-
7. Segregated Schools
- Liberty Fund
- Chapter
- Additional Information
Judiciary_101-150.indd 32 5/7/11 1:04 PM 7 Segregated Schools LE "desegregation" decision in Brown v. Board ofEducation1 was, as Richard Kluger called it, an act of"SimpleJustice,"2 a long overdue attempt to rectify the grievous wrongs done to the blacks. For the legal historian, however, the question is whether the Fourteenth Amendment authorized the Supreme Court to perform that act.3 For the Court, like every agency of government, may act only within the limits of its constitutional powers. As Lee stated in the Virginia Ratification Convention , "When a question arises with respect to the legality of any power, exercised or assumed," the question will be, "Is it enumerated in the Constitution? ... It is otherwise arbitrary and unconstitutional."4 In his illuminating study of the way in which the desegregation case was handled in the Supreme Court, Kluger asks, "Could it be reasonably claimed that segregation had been outlawed by the Fourteenth when the yet more basic emblem of citizenship-the ballot-had been withheld from the Negro under that amendment?"5 Given the rampant racism in the North of 1866-which still has to loose its grip-it needs to be explained how a North which provided for or mandated segregated schools6 was brought to vote for desegregation in the Amendment. When the "desegregation" case came to the Court in 1952, Justice Frankfurter assigned the task of compiling the legislative history of the I. 347 U.S. 483 (1954). 2. Richard Kluger, SimpleJustice (1976); hereinafter Kluger. 3·"The result," Archibald Cox stated, "can only be described as a revolution in constitutional law." The Role ofthe Supreme Court in American Government 57 (1976). 4· 3Jonathan Eliot, Debatesin the Several State Conventions on theAdoption oftheFederal Constitution 186 (1836); Berger, Congress v. The Supreme Court 13-16. 5· Kluger 635. 6. Infra at notes 24- 2 5. 132 Judiciary_101-150.indd 33 5/7/11 1:04 PM Segregated Schools 133 Amendment to his brilliant clerk, Alexander Bickel,7 who was destined to become one of the foremost authorities in the field of constitutional law. Upon completing the assignment, in August 1953, Bickel delivered his memorandum to Frankfurter with a covering letter in which he stated: "it is impossible to conclude that the 39th Congress intended that segregation be abolished; impossible also to conclude that they foresaw it might be, under the language they were adopting."8 When he later published a revision of that memorandum, he concluded: "there is no evidence whatever showing that for its sponsors the civil rights formula had anything to do with unsegregated schools. Wilson, its sponsor in the House, specifically disclaimed any such notion."9 Wilson, chairman of the House Judiciary Committee and the House Manager of the Bill, who could therefore speak authoritatively, had advised the House that the words "civil rights . . . do not mean that all citizens shall sit on juries, or that their children shall attend the same schools. These are not civil rights."10 Wilson's statement is proof positive that segregation was excluded from the scope of the bill. Another piece of evidence, which Alfred Kelly, one of the historians drawn into the case by the NAACP,11 considered "very damning," was the "removal ofthe 'no discrimination' clause from the Civil Rights Bill." The Bill, he stated, "was amended specifically to eliminate any reference to discriminatory practices like school segregation ... it looked as if a specific exclusion had been made."12 The deletion was made at the in7 ·Kluger 599, 653. 8. Id. 654. Kluger states that the Bickel memorandum held that "the legislative history , while revealing no evidence that the framers of the amendment had intended to prohibit school segregation, did not foreclose future generations from acting on the question , either by congressional statute or by judicial review." Id. 655; see also 634. But this is at odds with Bickel's covering letter, supra Chapter 6 at note 7· In fact, as will shortly appear, the framers deliberately excluded school segregation from the ambit of the Civil Rights Bill and therefore of the Amendment. 9· Bickel 56. ro. Globe I II 7. Wilson's statement is more fully quoted supra Chapter 2 at note 26. He later reiterated that the limited objectives of the bill did not extend to "setting aside the school laws and jury laws." Globe 1294. I r. Kluger 626. 12. Id. 635. Among the legal historians drawn into preparation of the briefs by the NAACP was Howard Jay Graham. Id. 625...