CONTENTS INTRODUCTION I. A DREAM TEAM AIMS HIGH A. The Place B. The People C. The Remedy D. Unitary Status Proceedings II. MIXED RESULTS A. Macon County B. Decline in African American Teachers C. Achievement Scores III. THE VALUE OF LEE V. MACON COUNTY CONCLUSION INTRODUCTION
Fred D. Gray was thirty-two years old when he filed Lee v. Macon County Board of Education. (1) The suit quickly grew in scope and set in motion sweeping remedial orders compelling the desegregation of school districts, high school athletic conferences, junior colleges, trade schools, and four-year colleges and universities. (2) Professor Owen M. Fiss gave the remedy gushing praise, calling it "as ingenious, as path-breaking, as innovative as something like Marbury v. Madison." (3)
This Symposium rightly celebrates Mr. Gray, one of Case Western Reserve University School of Law's most famous graduates. (4) When he finished law school and returned home to Alabama in 1954, he vowed to "destroy everything segregated [he] could find." (5) The time and place were ripe for change. The Supreme Court had just decided Brown v. Board of Education, (6) and Alabama offered a plethora of places to battle segregation. As one of Alabama's few African American lawyers, Mr. Gray quickly began filing suits to challenge Alabama's racial hierarchy. (7)
While Lee v. Macon County may not be Mr. Gray's most well-known case (that honor properly belongs to his representation of Rosa Parks in her criminal case for refusing to give up her bus seat), (8) Lee v. Macon County presents a unique vehicle for examining the role of the law in dismantling de jure school segregation. The case offered perhaps the best opportunity for litigation to promote racial equality in American schools. The success (and failure) of this school desegregation case, thus, affords a unique chance to discover the true potential of litigation as a means to dismantling de jure segregation.
Alabama is not an obvious location for successful school desegregation. The state is not generally known for being at the forefront of creating racial equality, particularly when the suit started in 1963. More likely to come to mind is Governor George Wallace standing in the schoolhouse door to prevent integration. (9) Yet Alabama, through Lee v. Macon County, is where K-12 school desegregation litigation had one of its best chances for success. (10) I make this argument, which is largely based on the people involved in the case, in Part I of this Article. Part I also includes an overview of the litigation, from its beginning in 1963 to the present day (remarkably, aspects of the suit are still ongoing in 2017).
Part II examines the mixed results of the K-12 portion of Lee v. Macon County--inequalities are vastly improved since 1963, but persistent patterns of segregation and inequities remain. Here I focus on persistent segregation by school buildings, but also on the loss of African American teachers and the persistence of a racial achievement gap.
Part III addresses a continuing debate in the academic literature (and movies like Selma): the role of the litigation in creating change, as compared to social mobilization. (11) One could easily criticize the usefulness of Lee v. Macon County given the continuing segregation and inequality found in Alabama. In the end, however, I believe the lawsuit helped move Alabama closer to educational equity. Alabama would be worse off if Mr. Gray had not had the courage to file Lee v. Macon County.
A DREAM TEAM AIMS HIGH
Lee v. Macon County started with relatively minor goals. Mr. Gray filed the suit in January 1963, seeking admission of a select group of African American students to the all-white Tuskegee Public High School, a small rural school. (12) At the time, nine years after Brown I, Alabama public schools were entirely segregated; not a single African American student attended a white school, and no white student attended an African American school. (13) On August 13, 1963, U.S. District Court Judge Frank M. Johnson, Jr. ordered nonracial school assignments in the upcoming school year, set to start the next month, and a more comprehensive desegregation plan for the following year. (14) The school board complied and assigned thirteen African American students to Tuskegee Public High School. (15)
The beginning of Lee v. Macon County was fairly typical of school desegregation at the time. The goal then was the integration of white schools with the admission of a handful of African American students, typically selected as the best and brightest of the African American community and with parents willing to put their children onto the front lines of actualizing racial mixing in schools. (16) Within a year, however, the case took on its unique, comprehensive shape. At times in its long life of fifty-three years and counting, it represented true opportunities for social change through litigation. To learn more about that promise, the next sections examine Macon County, the Dream Team of players, and the resulting remedial orders.
Tuskegee Public High School is located in Macon County, Alabama, a county notable for two reasons. First, it is and was a predominately black county. (17) Yet in 1963, whites "controlled all the political offices, including the Board of Education." (18) For whites, their numerical minority status meant affording rights to African Americans could cause the loss of their power--and the possibility that African Americans would in turn oppress them as much as they had oppressed African Americans. That made affording any rights to African Americans frightening to many white citizens of Macon County. From an African American perspective, their numbers were the opposite of frightening. Their numerical strength gave them a real opportunity for political power and a large community of moral support to pursue equality throughout the county.
A second feature of Macon County increased the chances of African Americans gaining political power and economic support. Its county seat, Tuskegee, was home to two segregated entities that empowered its African American citizenry. In 1881, Booker T. Washington founded the Tuskegee Institute for educating African Americans. (19) The city also housed the Tuskegee Veterans Hospital. (20) The hospital was founded solely for African American veterans and was staffed by African American doctors and nurses. Critically, employment at the Tuskegee Institute or Tuskegee Veterans Hospital gave their workers "economic independence." (21) That independence had been reflected as early as 1941, when future voting rights plaintiff Dr. Charles G. Gomillion formed the Tuskegee Civil Association (TCA) to promote racial equality. (22)
In sum, Macon County was well positioned as a place to litigate the need to integrate schools. It housed a number of educated, economically independent African American citizens committed to advancing the cause of racial equality, including school desegregation. (23) Detroit Lee, the lead plaintiff in Lee v. Macon County, for example, worked for Tuskegee Veterans Hospital. (24) Macon County had the makings of a community committed to integration.
The story of Lee v. Macon County would be fundamentally different without Governor George Wallace, who took office a mere week before Mr. Gray filed Lee v. Macon County. At his inauguration for governor, he had declared his opposition to Mr. Gray's cause of integration: "segregation now ... segregation tomorrow ... segregation forever." (25) Learning that the Macon County school board intended to follow Judge Johnson's 1963 order and allow African American students into Tuskegee Public High School, Governor Wallace employed the Alabama State Troopers and National Guard to close and keep closed Tuskegee Public High School. (26) He also spent state monies to open the all-white, ostensibly private Macon Academy, so white students and teachers would have a place for education. (27)
Governor Wallace paid a high price for his intervention. His actions demonstrated his and the State's complicity in establishing and maintaining de jure segregation at the local level, making them appropriate parties and potentially legally responsible in cases like Lee v. Macon County. Mr. Gray successfully moved to add Governor Wallace and other state officials as defendants in 1964. (28)
Forcing Governor Wallace's inclusion in Lee v. Macon County set the stage for far-reaching litigation. Including state officials as defendants created an exceptionally strong opportunity to desegregate Alabama schools. Now, rather than filing individual school desegregation suits in each of Alabama's over one hundred school districts with their own sets of plaintiffs, lawyers, and courtrooms, plaintiffs would litigate the validity of and remedy for Alabama's de jure segregation in one courtroom, with one set of lawyers. (29) In addition, the state by definition had statewide power, and having both the state and individual school districts subject to court order created the opportunity for more expansive and thorough remedies.
Just as critically, the state defendants faced U.S. District Court Judge Frank M. Johnson, Jr. A son of Alabama and former college and law school classmate of Governor Wallace, Judge Johnson had already proven more than willing to side with civil rights plaintiffs. (30) The U.S. Department of Justice often sought to litigate civil rights cases in his courtroom, and Dr. Martin Luther King, Jr. called him "a man who gave true meaning to the word 'justice.'" (31) Having Judge Johnson presiding over a statewide suit to desegregate Alabama schools presented a wealth of opportunities to the plaintiffs. The state defendants, fully aware of Judge Johnson's willingness to side with civil rights plaintiffs, fought their joinder in the lawsuit, but without success. (32)
While Judge Johnson was the judge most intimately involved in Lee v. Macon County...