Change of Heart

By Melvin Maddocks

SIMPLE JUSTICE

by RICHARD KLUGER

823 pages. Knopf. $15.95.

On May 17, 1954, Chief Justice Earl Warren, speaking for a unanimous Supreme Court, found for the plaintiff in the case of Brown v. Board of Education of Topeka. Brown was Linda, a cheerful, slightly plump, eleven-year-old Kansas schoolgirl who happened to be black. Halfway through his opinion, the Chief Justice asked a long, deceptively innocent question: "Does segregation of children in public schools, solely on the basis of race, even though the physical facilities and other 'tangible' factors may be equal, deprive the children of the mi nority group of equal education opportunities? " His brief answer: "We believe that it does."

Even Justice Stanley Reed, who came nearest to dissenting, declared afterward that if this was not the most significant judgment in the history of the court, it came very close to it. Louis H. Pollak, later a dean of Yale Law School, called the Brown decision "probably the most important governmental act of any kind since the Emancipation Proclamation." Richard Kluger goes even farther. He puts this revolutionary ruling--deliberately phrased in bland language and read in a matter-of-fact voice by a moderate Republican from California--at the heart of 200 years of American history.

A sometime editor (Simon & Schuster, Atheneum) and sometime novelist (When the Bough Breaks, National Anthem), Richard Kluger has the special courage of the amateur: he is not afraid to be obvious. From the start, he argues, the Declaration of Independence was marred by a fundamental hypocrisy. All men were not created equal--if they happened to be black. More than 300 years after the introduction of slavery, nearly 100 years after the Emancipation Proclamation, the Brown decision belatedly acknowledged this cruelly corrupting double standard. It focused on the nation's most sensitive testing ground of equality--the public schools. By asking for this disingenuously titled "simple justice," the Warren Court made possible a second chapter to the American Dream--a "resurrection."

Bandleader's Eyes. In the icy light of 1976, Kluger's reading may seem falsely optimistic. Many now feel that too much was expected of the schools when they were in effect made instruments of social change. He himself is the first to point out that ten years after the Brown decision, only 1.17% of black schoolchildren were attending classes with white children in the states that once constituted the Confederacy. Nor does he neglect to mention that after 20 years 259 Chicago schools were 90% (or more) black, while 109 were 90% (or more) white. Yet obstinately, unfashionably--for surely this is not the civil rights '60s--he stands by his thesis.

The Brown decision, Kluger assumes, cannot be understood unless a reader is familiar with previous litigation. More than 100 cases are cited; in addition, the reader is given a cram course in constitutional law, with copious quotes from The Federalist. The Supreme Court passes in review, as well as the National Association for the Advancement of Colored People.

Some 900 names are listed in the index, and in the course of pointing American history toward his climactic moment, Kluger strikes off a small Who's Who of black politics, including a remarkable group portrait of the Howard Law School graduates commanded by Thurgood Marshall. The Supreme Court Justice was just a legal strategist then, and a bit of a bon vivant, dashing in tweeds, with wavy hair and eyes as soulful as a bandleader's. Kluger also provides a contrapuntal portrait of John W. Davis, who ran for the Democrats against Calvin Coolidge in 1924. A brilliant lawyer who served as counsel to Eugene Debs, Alger Hiss and Robert Oppenheimer, Davis was also what Kluger calls a "gentleman racist." At 80, wearing a cutaway, he appeared before the Supreme Court defending segregation by ingenious psychological and legal arguments.

Davis quoted from the black radical W.E.B. Du Bois, who had once written that the black parent who forced his youngsters into integrated schools--where they might be unfairly and inhumanly treated--was doing them no favor. Cannily mocking social scientists, he noted that "much of what is handed around under the name of social science is an effort on the part of the scientist to rationalize his own preconceptions." He bolstered his thesis by examining the separate but equal doctrine that had received numerous court approvals. Scholastic separation of the races, Davis added, had "been so often and so pointedly declared by the highest authorities that it should no longer be regarded as open to debate . . . only an excess of zeal can explain the present challenge."

Moral Resolution. If, in fact, the Brown decision had been made on strictly legal grounds, that challenge might have been thwarted. The Constitution is silent on the subject of racial minorities; nor can it be argued with certainty that the 14th Amendment was meant to support integration. (At the time it was passed, 24 out of 37 states either required or permitted segregated schools.)

The Brown decision was in the end less a lawyer's brief than a moral resolution. By making it the centerpiece of a vast pattern, Kluger sometimes tells the reader more than he wants to know (including the annual rainfall in Clarendon County: 50 inches) and relentlessly piles subplots upon subplots. But his collage of facts and events, institutions and people eventually documents nothing less than a national change of heart.

The change has certainly not been total or unchallenged. Twenty-two years later, neither the authorities who are interpreting the law nor the children who are often asked to bear its burden yet agree on the manner in which desegregation should be carried out. Nonetheless the law stands: an act of collective conscience. By making it clear at the end of 800-plus pages that on one spring day in 1954 Warren spoke not only for the court but for the U.S., Kluger has performed another kind of simple justice.

Melvin Maddocks

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