CONTENTS INTRODUCTION I. OBJECTIONS TO INTERRACIAL SEXUAL RELATIONSHIPS DURING THE COLONIAL AND ANTEBELLUM PERIODS A. Religious Prohibitions on Interracial Sexual Relations During the Colonial Period B. Legal Prohibitions Against Interracial Sexual Unions During the Colonial Era C. Scientific Objections to Interracial Sexual Relations Before the Civil War II. ANTI-MISCEGENATION AFTER THE CIVIL WAR AND ABOLITION A. Challenges to the Validity of Anti-Miscegenation Statutes After Abolition B. Scientific Evidence of the Biological Problems Created by the Production of Mixed-Raced People C. Ascendency of the One-Drop Rule Was Partially Due to Concerns About Miscegentation D. The Marginal Man Hypothesis: Mixed-Race Blacks Encouraged to Identify with Only Their African Ancestry III. CHANGES IN ATTITUDES AND ACCEPTANCE OF INTERRACIAL SEXUAL RELATIONS SINCE THE COMMENCEMENT OF SCHOOL DESEGREGATION A. Increasing Interracial Relationships and the Multiracial Movement CONCLUSION INTRODUCTION
We gather here today at the Fred Gray Symposium. This is in celebration of the life and the influence that he has had on American society. He is one of a handful of lawyers that helped to fundamentally restructure the world we live in. And, speaking as one who was just the second attorney of color to work at a law firm of any significant size in the history of the state of Indiana and as the first professor of color to obtain tenure at my law school, Indiana University Maurer School of Law, I am a personal beneficiary of the world he helped to bring about. Thus, it is a rare pleasure that I have the opportunity to pay homage to one of my personal heroes.
I am contributing to this Symposium by discussing one of the major areas that Attorney Gray positively impacted during the Civil Rights Era: school desegregation. On January 28. 1963, he filed suit in the federal district court of Montgomery, Alabama, on behalf of the parents of sixteen school-age children from eight Tuskegee families. (1) At that time, no public school in the state of Alabama had enrolled white and black students together. (2) In order for us to recall what American society was like then we only need to recall that two weeks earlier in Montgomery, George Wallace took the oath of office of Governor. While standing on the gold star that marked the exact spot where almost 102 years earlier Jefferson Davis was sworn in as the provisional president of the Confederate States of America, Wallace delivered his infamous inaugural address where he declared:
It is very appropriate then that from this Cradle of the Confederacy, this very Heart of the Great Anglo-Saxon Southland, that today we sound the drum for freedom as have our generations of forebears before us done, time and again down through history. Let us rise to the call of freedom-loving blood that is in us and send our answer to the tyranny that clanks its chains upon the South. In the name of the greatest people that have ever trod this earth, I draw the line in the dust and toss the gauntlet before the feet of tyranny ... and I say ... segregation now ... segregation tomorrow ... segregation forever. (3) As is apparent from the inaugural address of George Wallace, a man who received ninety-six percent of the vote in the November, 1962 general election, (4) most Alabama whites were dead set against any form of school desegregation.
But, the school desegregation litigation commenced by Attorney Gray led to a 1967 opinion by a three-judge panel of U.S. District Judges in the case of Lee v. Macon County Board of Education. (5) In what was one of the most important school desegregation cases of the Civil Rights Era, the court ordered the desegregation of all Alabama public schools not already subject to such court decrees. (6) Thus, Attorney Gray helped desegregate more than 100 local school systems.
My charge in this discussion was to address the significant impact of Fred Gray's career regarding school desegregation. I could talk about the case of Lee v. Macon County Board of Education (7) or about the impact of school desegregation litigation on the integration of public schools in Alabama, the South, or throughout the country. (8) But, whether national, regional, or local, the school desegregation story is a familiar one. It is a story of the rise and fall of school desegregation. There was a period of increasing school desegregation from the early-1960s to the mid-1970s, brought about by major Congressional legislation such as the Civil Rights Act of 1964 and the Elementary and Secondary Education Act of 1965 and by federal court decisions in cases like Lee v. Macon County, Green v. County School Board of New Kent County, (9) Swann v. Charlotte-Mecklenburg Board of Education, (10) and Wright v. Council of Emporia. (11) However, by the end of his first term, President Richard Nixon had appointed four justices to the Supreme Court. (12) These Nixon appointees made up four of the five-justice majority in the Court's 1974 decision in Milliken v. Bradley. (13) In Milliken, the Supreme Court limited the scope of school desegregation decrees to the offending school district's boundaries, absent very unusual circumstances. (14) The negative impact of Milliken on school desegregation was two-fold. It provided a simple exit from the scope of school desegregation remedies for white families who did not want their children to participate in such a process. These families simply had to move from a district under a school desegregation order to an adjacent one that was not. As a result, it helped to generate, if not condone, the white flight that frustrated a host of desegregation efforts throughout the country. Secondly, this limit 011 the scope of desegregation remedies meant that in many urban school districts, effective desegregation was not possible because there were not enough white students in the district to accomplish it. (15) As a result, Milliken eliminated any real likelihood that court-ordered school desegregation would effectively provide education in majority white schools for the bulk of black school children. (16) Thus, what followed the time of the growth of school desegregation was a period of stagnation from the mid-1970s to the late-1980s. As the story of the unfolding history of school desegregation progressed towards its ultimate conclusion, we come to the Court's school desegregation termination decisions in the early 1990s. Board of Education of Oklahoma City v. Dowell, (17) Freeman v. Pitts. (18) and Missouri v. Jenkins. (19) With these decisions, federal courts throughout the country began to dissolve school desegregation decrees, which led, predictably, to the rise of resegregation in the early 1990s. (20)
The Court's school desegregation termination decisions also marked the beginning of the withdrawal of the federal courts' engagement with school desegregation. But, the abandonment of school desegregation left the issue to the political process. However, the Court's next major school desegregation opinion occurred a dozen years after its last termination decision. In Parents Involved in Community Schools v. Seattle School District No. 1, (21) the Supreme Court delivered its final blow to school desegregation efforts by the political process. The Supreme Court struck down voluntary school desegregation plans adopted by the school districts in Seattle. Washington, and Jefferson County, Kentucky, as violations of the equal protection clause. (22) In so doing, the Court ruled unconstitutional the very kind of school desegregation plans that it had required school districts implement in order to remedy their operation of a dual school system.
We can see the effect of these major events impacting school desegregation reflected in the historical percentages of black students attending majority white schools and hyper-segregated schools--schools in which ninety percent or more of students are underrepresented minorities. In 1968, 23.4% of black students attended majority-white schools nationwide; by 1972, this had increased to 36.4%, and it would reach its all-time high of 37.1% in 1980. (23) Also in the 1968 69 school year, 64.3% of black students nationwide went to hyper-segregated schools; four years later, that percentage had decreased to 38.7%, and it reached its all-time low of 32.5% in 1986. (24) Desegregation was even more rapid and pronounced in the South. When Attorney Gray filed the complaint in Lee v. Macon County, 99% of black public school children attended totally segregated schools. (25) In 1967, only 13.9% of black students attended majority-white schools; but by 1972, that figure had jumped to 36.4%, and it "reach[ed] its zenith of 43.5% in 1988." (26) Also, the percentage of southern blacks in hyper segregated schools decreased from 77.8% in 1968 to 23% in 1980. (27) By the early 1990s, however, we had "already seen the maximum amount of racial mixing in public schools that will exist in our lifetime." (28) For the country as a whole, the percentage of blacks in hyper-segregated schools has steadily increased from 32% in 1988 to "[o]ver a third (37.4%)" in 2000. (29) Over the past fifteen years we have seen more and more school desegregation decrees terminated. In the South, by 2000. the percentage of blacks attending majority white schools dropped to 31% and in 2011 it was down to 23.2%. (30)
The school desegregation in Alabama followed the southern trend. From 1968 to 1980. the percentage of blacks attending majority white schools increased from 8.3% to 44.3% and the percentage enrolled in hyper-segregated schools dropped to 31.9 in 1980. (31) However, by 2001. the percentage of blacks attending majority white schools in Alabama had decreased to 29.6% with the percentage attending hyper-segregated schools increasing to 43%. (32) The percentage of blacks in hyper-segregated schools remained about the same--almost 42%--in 2011. (33)
The tawdry history of school...