Setting Aside the Will of the Plaintiffs: How and Why the 1950s School-desegregation Strategy Marginalized Experiences of Black Self-determination in Unequal Schools and Examples of Black Self-sufficiency in Equalization Plans
| Publication year | 2010 |
Georgia State University Law Review
Article 2
12-1-2006
Setting Aside the Will of the Plaintiffs: How and Why the 1950s School-Desegregation Strategy Marginalized Experiences of Black Self-Determination in Unequal Schools and Examples of Black Self-Sufficiency in Equalization Plans
Amos N. Jones
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Recommended Citation
Jones, Amos N. (2006) "Setting Aside the Will of the Plaintiffs: How and Why the 1950s School-Desegregation Strategy Marginalized Experiences of Black Self-Determination in Unequal Schools and Examples of Black Self-Sufficiency in Equalization Plans," Georgia State University Law Review: Vol. 23: Iss. 2, Article 2. Available at: http://digitalarchive.gsu.edu/gsulr/vol23/iss2/2
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SETTING ASIDE THE WILL OF THE PLAINTIFFS: HOW AND WHY THE 1950S SCHOOL-DESEGREGATION STRATEGY MARGINALIZED EXPERIENCES OF BLACK SELF-DETERMINATION IN UNEQUAL SCHOOLS AND EXAMPLES OF BLACK SELF-SUFFICIENCY IN EQUALIZATION PLANS
Amos N. Jones*
"[W]e have got to renounce a program that always involves humiliating self-stultifying scrambling to crawl somewhere where we are not wanted; where we crouch panting like a whipped dog .... No, by God, stand erect in a mud-puddle and tell the white world to go to hell, rather than lick boots in a parlor. "J
Introduction
In April of 2006, the Omaha, Nebraska, school system attracted international attention after the state legislature approved a plan to divide the system into three districts that seemed to leave black students racially segregated from the rest of the system's students.
* Fulbright Visiting Scholar, Centre for Comparative Constitutional Studies, University of Melbourne Law School. J.D., Harvard Law School, 2006. M.S., Columbia University Graduate School of Journalism, 2003.1 thank Professor Lani Guinier, Professor Kenneth W. Mack, and Professor Charles J. Ogletree, Jr., for engaging me in projects relevant to this study and for introducing to the world thought-provoking commentary on Brown v. Board of Education, 347 U.S. 483 (1954). For their indefatigable sharing, I thank the outstanding librarians and other custodians of resources at Howard University and the Library of Congress, especially Joellen El Bashir, Curator of Manuscripts at Howard's Moorland-Spingarn Research Center.
1. W.E.B. Du Bois, Editorial, The Anti-Segregation Campaign, the crisis, June 1934, at 182. By 1934, Du Bois was undergoing growing pessimism as segregation remained despite the work of the NAACP, and in January of that year, he opined that Negroes should face the fact that they would die segregated, in spite of their best efforts: "to hate segregation was inevitably to hate themselves," he argued, and it therefore would be "far better to embrace voluntary segregation in schools, colleges, [and] businesses—both for reasons of psychic well-being and to build concentrated strength for later fights." Taylor Branch, Parting the Waters: America in the King Years 1954-63, at 51 (1988).
2. See Sam Dillon, Law to Segregate Omaha Schools Divides Nebraska, N.Y. times, Apr. 15, 2006, at A9 ("Civil rights scholars call the legislation the most blatant recent effort in the nation to
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The 45,000-student Omaha school system is 46 percent white, 31 percent black, 20 percent Hispanic, and 3 percent Asian or American Indian. The legislation effecting an abandonment of more than thirty years of efforts to improve educational outcomes for black schoolchildren through racial integration was sponsored by the only black member of the state's unicameral, nonpartisan legislature, Senator Ernie Chambers of Omaha, a leader long critical of the Omaha schools because of their failure to close the racial achievement gap.4 Gary Orfield, director of the Civil Rights Project at Harvard University, has said that such efforts to resegregate schools by race "keep popping up in various parts of the country" and opines that such programs skate near or across the line of what is constitutionally permissible: "I hear about something like this every few months, but usually when districts hear the legal realities from civil rights lawyers, they tend to back off their plans."5 Yet, what is constitutionally permissible as to the use of race in assigning children to public schools could change very soon, now that an apparently more conservative Supreme Court has decided to consider two racial-balancing cases—one from Seattle and one from Louisville, Kentucky—that frame an issue that the Court had declined to hear when Justice Sandra Day O'Connor was still serving.6
create segregated school systems or, as in Omaha, to resegregate districts that had been integrated by court order. Omaha ran a mandatory busing program from 1976 to 1999.").
3. Scott Bauer, Omaha Schools Split Along Race Lines, ASSOCIATED PRESS NEWSWIRES, Apr. 14, 2006, available at http://global.factiva.com/aa/defauIt.aspx?pp=Print.
4. Dillon, supra note 2.
5. Id.
6. Linda Greenhouse, Court to Weigh Race As a Factor in School Rolls, N.Y. TIMES, June 6, 2006, at Al. She reported:
The eventual decision on whether they can take race into account could affect hundreds of school systems in all areas of the country. The court accepted challenges to plans in Louisville, Ky., where the schools were once racially segregated by law, and in Seattle, where segregation was never official but was widespread because of residential patterns. Federal appeals courts upheld these plans, both of which offer students a choice of schools while taking race into account in deciding which transfer applications to accept. Variations of this approach are common, and have been under legal attack around the country. The Supreme Court's decision to add the cases to the calendar for its next term, a step that by all appearances was controversial within the court and unexpected outside it, plunged the new Roberts court into one of the country's deepest constitutional debates.
Id.
2006] SETTING ASIDE THE WILL OF THE PLAINTIFFS 289
Predictably, the National Association for the Advancement of Colored People is vociferously opposing the Omaha plan.7 NAACP President and CEO Bruce S. Gordon declared, "We strongly oppose the Nebraska law that divides the Omaha public schools along racial lines. The Supreme Court ruled 52 years ago that separate but equal schools result in inequality and poor education for minority children. We will use every advocacy tool, including legal, at our disposal to
Q
fight this unconstitutional law " But why?
The problem of black underachievement despite years of attempts at racial integration has been analyzed widely.9 As early as 30 years ago, then-Harvard Law Professor Derrick Bell already was calling for an approach to educating black children not unlike Omaha's new plan.10 Thirty years before Bell's about-face, the NAACP Legal Defense and Education Fund and black political activists had fought, often successfully, not for school desegregation, but for the equalization of schools within their de facto segregated contexts.11
This Article re-examines the decision to move the civil rights struggle in education from pursuing equalization measures to pursuing desegregation programs. The Article contextualizes within the transforming legal strategy that culminated in the Brown v. Board of Education decision of 1954 the lived experiences of ordinary black students of the period, a named plaintiff, and the intellectual architect of desegregation himself. I generally argue in support of Bell's apologetic declarations of thirty years ago. Drawing on primary sources archived at the Library of Congress and Howard University in Washington, D.C., I revisit the clients' stated objectives
7. Talking Points, NAACP, Resegregation of Omaha Schools, http://www.naacp.org/advocacy/talkmg_jM)ints_omaha/index.html (last visited Nov. 8, 2006) ("The NAACP spearheaded the fight to have public school segregation declared illegal by the U.S. Supreme Court more than SO years ago. We strongly condemn this plan that resegregates Omaha public schools and retreats from the legacy of Brown v. Board of Ed"),
8. Id
9. Charles J. Ogletree, Jr., All Deliberate Speed: Reflections on the First Half Century of Brown v. Board of Education275-76,310-16 (2004).
10. See generally Derrick A. Bell, Jr., Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 Yale L.J. 470 (1976).
11. See Genna Rae McNeil, Groundwork: Charles Hamilton Houston and the Struggle for Civil Rights 141-42(1983).
12. 347 U.S. 483 (1954).
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in challenging the school-equality problems of the mid-Twentieth Century, surveying historical perspectives of the clients who protested inferior schools, as well as non-plaintiff members of the class from my hometown of Lexington, Kentucky, and my mother's native west Tennessee. Personally informed and affected by what happened during those days, what many leading blacks of the period clearly wanted, and what those blacks achieved when systems succeeded at school equalization rather than integration, I argue that the black lawyers and their cooperating white counsel assumed an elitist professional posture that typifies practicing lawyers today—an orientation from which they set aside the real experiences of affected blacks, socially engineering an outcome that has not effected educational uplift for the black masses relative to whites.13 But I also provide context for the NAACP's decision to attack segregation itself in education, revisiting the personal experiences of chief...
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