The Segregation Issue

THE SUPREME COURT The Segregation Issue

For more than a year, the big & little guns of the South have been lobbing ominous shells in the direction of the U.S. Supreme Court. Said Georgia's Governor Herman Talmadge: "As long as I am governor, Negroes will not be admitted to white schools." Popped Grand Dragon Bill Hendrix of the Ku Klux Klan: if segregation is abolished, "the American Confederate Army" will march in armed rebellion. Cried South Carolina's Governor Jimmy Byrnes: "South Carolina will not, now nor for some years to come, mix white and colored children in our schools. If the court changes what is now the law of the land [so that we cannot] maintain segregation . . . we will abandon the public school system. To do that would be choosing the lesser of two great evils."

Last week, far from shellshocked, but obviously aware that it was dealing with high explosives, the Supreme Court settled back to listen to three days of argument on the U.S.'s sharpest social issue: segregation of Negroes and whites in public schools. Segregation is mandatory under the laws of 17 states, and is legal, if local districts want it, in four others.* Before the court were cases from four states (South Carolina, Virginia, Delaware and Kansas) and the District of Columbia. The cases varied in detail, but they added up to a carefully coordinated effort by the National Association for the Advancement of Colored People and other Negro groups to force the court into a far-reaching decision. The court chamber was packed for the hearings, and the waiting line (unsegregated) stretched out the doors through the long marble corridor and down the front steps.

Strange Rebuttal. The main objective of the N.A.A.C.P.'s lawyers was to carry the court beyond the "separate but equal" ruling laid down in the Plessy v. Ferguson case in 1896: i.e., segregated facilities are constitutional so long as Negro facilities are equal to those for whites.

The N.A.A.C.P. lawyers turned scornfully on segregation in the nation's capital. "There is no place for a segregated school system in the capital of the free world," said Counsel James M. Nabrit Jr. Attorney George Hayes argued that segregation, imposed by the District's board of education, deprives Negroes "of their liberty and property without due process of law," a violation of the Fifth Amendment.

The District's lawyers had a strange rebuttal. Congress established Washington's separate Negro schools in 1862 to "elevate" the ex-slaves, said Assistant Corporation Counsel Milton Korman. Washington Negroes have never had nonsegregated education, hence "they haven't enjoyed any right that has been taken away from them." Congress had repeatedly voted funds for separate schools and even for an assistant superintendent for Negro schools, so it has accepted segregation in fact, he said.

"A Vast Congregation." In the four other cases, the N.A.A.C.P. lawyers demanded the overturn of segregation because state segregation laws violate the 14th Amendment's promise of "equal protection of the laws." Said N.A.A.C.P.'s Lawyer Thurgood Marshall: "You cannot use race as a basis for classification . . . If Ralph Bunche were assigned to South Carolina his children would have to go to a Jim Crow school." But the defense's distinguished John W. Davis,* 79 (retained by the state of South Carolina), argued that the 14th Amendment has nothing to do with "the right of a state to classify pupils in its public schools on the basis of sex or age or mental capacity or race." Obviously, said Davis, Congress doesn't view the Constitution as a bar to segregation because it still sanctions segregation in the District of Columbia.

"Is it not a fact that the very strength and fiber of our federal system is local self-government in those matters for which local action is competent?" asked Davis. "Is it not of all the activities of government the one which most nearly approaches the hearts and minds of people: the question of the education of their young? Is it not the height of wisdom that the manner in which that shall be conducted should be left to those most immediately affected by it . . .? I respectfully submit to the court that there is no reason assigned here why this court or any other should reverse the findings of 90 years."

Marshall replied, in effect, that segregated school facilities cannot be equal, that "racial discriminations in and of themselves are invidious" and unconstitutional. From the bench Justice Stanley Reed bore in on Lawyer Marshall: "Have the states the right to weigh the advantages and disadvantages of segregation and require equality of employment, for instance?" Said Marshall: "Yes, sir." Justice Felix Frankfurter had a tougher one: "Do you really think it helps us not to recognize that behind this are certain facts of life? The question is whether a [state] legislature can address itself to those facts of life in spite of, or within, the 14th Amendment." Was it an "irrelevant consideration," pressed Frankfurter, to remember that some states have "a vast congregation of Negro population, and some don't? . . . Can you escape those sociological facts, Mr. Marshall?"

"No, I cannot escape it," replied Marshall. "But if I did . . . I would have to throw completely aside the personal and present rights of these [Negroes]."

Drastic Alternatives. The sociological facts beyond the courtroom were evident to any newspaper reading Justice. To many a powerful, conservative Southerner, school segregation symbolizes the last major barrier before that final day when Negroes and whites will intermingle socially--perhaps even marry. In Southern localities where Negroes outnumber whites, the whites believe that an end to segregation would shatter the established pattern of living.

Last year Herman Talmadge's Georgia legislature decided that any school district which did not provide separate schools would automatically lose its state funds. If segregation is declared unconstitutional, Georgia intends to turn the schools over to private operators and some how parcel state funds to individual students and let them "arrange" for their own education. Last month South Carolina voted (2-1) for a state amendment authorizing the end of the public-school system (which the legislature presumably would ratify if the Supreme Court rules against segregation). The schools would be turned over to churches or other private groups. Not all Southern states intend to be so drastic: Virginia and Alabama have rejected the Georgia-South Carolina plan, but they and the others are prepared to fight a long legal delaying battle to hang on to segregation.

Double Burden. Most Southern states are building new Negro schools which are as good as white schools, or have acknowledged that facilities are unequal and have taken steps to do something about it. Some of the steps have been drastic and far-reaching: e.g., South Carolina's $75 million bond issue for construction of Negro schools. Nevertheless, it will be many a year before Negro school facilities in most Southern states are equal to white.

The South is painfully aware that "separate but equal," if fully carried out, imposes a double tax burden which most communities cannot stand. And therein lies the hope of Southern reformers for an evolutionary answer to segregation without a drastic new court decision. Some Southern school districts would rather combine white and Negro schools than accept the burden of separate and equal. Already, more than half the Southern states, in obedience to court orders for separate but equal colleges, have quietly permitted Negro college students to go to school with white students because construction of separate colleges is obviously impossible.

Last week the disagreeing lawyers broadly agreed that a court decision which wrought an overnight change would be harmful. The Department of Justice, as a "friend of the court," reminded the Justices that the court often provides for "gradual relocation" in its sweeping antitrust decrees. N.A.A.C.P. Lawyer Marshall suggested that, once the principle of non-segregation is established, the Southern school boards might soften the blow by redistricting (as does many a Northern school board) so that most Negroes would attend one school and most whites another. (This proposal Frankfurter contemptuously rated as "gerrymandering.") How thorny the Supreme Court may find the problem was indicated last week as the Justices disappeared behind their red curtain. Word spread that they might not rule on these cases until late next spring.

* The 17: Alabama, Arkansas, Delaware, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi. Missouri, North Carolina, Oklahoma, South Carolina. Tennessee, Texas, Virginia, West Virginia. The four "permissive" states: Arizona, Kansas, New Mexico and Wyoming. The District of Columbia falls somewhere in between: the schools have always been segregated and Congress has officially recognized the fact without actually ordering segregation. For other news of Attorney Davis, see EDUCATION. British magazines and newspapers, in reporting last week's Supreme Court hearings, missed an interesting statistic: the percentage of U.S. Negroes attending college (.5%) is higher than the percentage of the entire British population attending college (.2%).

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