Remembering Massive Resistance to School Desegregation
Published online by Cambridge University Press: 23 July 2013
The historian Charles Payne has described Brown v. Board of Education as “a milestone in search of something to signify.” Widely hailed as a symbol of Jim Crow's demise, the case is popularly understood to represent America at its best. For many, Brown symbolizes the end of segregation, a national condemnation of racism, a renewed commitment to the ideal of color-blind justice, or some combination of all of these, but Brown is equally affirmed in less celebratory narratives, in which it is seen to articulate a constitutional aspiration against which the injustice of current racial practices can be measured. Unlike the celebratory Brown, which indulges a fantasy of completion or accomplishment, this aspirational Brown marks “an appeal to law to make good on its promises” of equal citizenship and racial democracy, even if that promise remains as yet largely unfulfilled.
- Copyright © the American Society for Legal History, Inc. 2013
3. Harvie Wilkinson, J. III, From Brown to Bakke : the Supreme Court and School Integration, 1954–1978 (Oxford: Oxford University Press, 1979)Google Scholar, 11.
5. Balkin, Jack, What Brown v. Board of Education Should Have Said: The Nation's Top Experts Rewrite America's Landmark Civil Rights Decision (New York: New York University Press, 2002)Google Scholar, 14. A more general statement of Balkin's views on the aspirational theory of constitutional interpretation can be found in Constitutional Redemption: Political Faith in an Unjust World (Cambridge: Harvard University Press, 2011)Google Scholar.
6. On the ability to of the Court to create social change, see Rosenberg, Gerald, The Hollow Hope: Can Courts Bring About Social Change? (Chicago: University of Chicago Press, 1991)Google Scholar; Garrow, David, “Hopelessly Hollow History: Revisionist Devaluing of Brown v. Board of Education,” Virginia Law Review 80 (1994): 151–160CrossRefGoogle Scholar; Klarman, Michael, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (Oxford: Oxford University Press, 2004)Google Scholar; McCann, Michael, Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization (Chicago: University of Chicago Press, 1994)Google Scholar; and Schultz, David, Leveraging the Law: Using the Courts to Achieve Social Change (New York: Peter Lang, 1998)Google Scholar.
7. Omi, Michael and Winant, Howard, Racial Formation in the United States From the 1960s to the 1990s (New York: Routledge, 1994)Google Scholar.
8. Payne, “‘The Whole United States is Southern!’” 83–84.
10. Lassiter, Mathew and Crespino, Joseph, The Myth of Southern Exceptionalism (Oxford: Oxford University Press, 2009)CrossRefGoogle Scholar; and Lassiter, Mathew and Lewis, Andrew, The Moderate's Dilemma: Massive Resistance to School Desegregation in Virginia (Charlottesville: University of Virginia Press, 1998)Google Scholar.
12. Ackerman, Bruce, We The People, Volume 2: Transformations (Cambridge: Belknapp Press, 2000)Google Scholar; Kramer, Larry, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford: Oxford University Press, 2005)Google Scholar; Post, Robert and Siegel, Reva, “Popular Constitutionalism, Departmentalism, and Judicial Supremacy,” California Law Review 92 (2004):1027CrossRefGoogle Scholar; Balkin, Jack and Siegel, Reva, “Principles, Practices and Social Movements,” 154 University of Pennsylvania Law Review 927 (2005–2006)Google Scholar; and Tushnet, Mark, “Popular Constitutionalism as Political Law,” 81 Chicago–Kent Law Review 991–1006 (2006)Google Scholar.
13. Shulman, George, American Prophecy: Race and Redemption in American Popular Culture (Minneapolis: University of Minnesota Press, 2008)CrossRefGoogle Scholar; and Fairclough, Adam, To Redeem the Soul of America: the Southern Christian Leadership Conference and Martin Luther King, Jr. (Athens: University of Georgia Press, 1987)Google Scholar.
14. Berry, Mary Frances “Vindicating Martin Luther King, Jr.: The Road to a Color-Blind Society,” The Journal of Negro History, 81 (1996): 137–44CrossRefGoogle Scholar (describing the appropriation of civil rights rhetoric by anti-affirmative action groups); Cose, Ellis, Color-Blind: Seeing Beyond Race in a Race-Obsessed World (New York: Harper Perennial, 1997): 101–6Google Scholar; and Baker, Houston, Betrayal: How Black Intellectuals Have Abandoned the Ideals of the Civil Rights Era (New York: Columbia University Press, 2008)CrossRefGoogle Scholar.
15. Reynolds, William Bradford, “Affirmative Action and Its Negative Repercussions,” Annals of the American Academy of Political and Social Science 523 (1990): 39–41Google Scholar.
16. “Today's decision marks a deliberate and giant step backward in this Court's affirmative-action jurisprudence. Cynical of one municipality's attempt to redress the effects of past racial discrimination in a particular industry, the majority launches a grapeshot attack on race-conscious remedies in general.” City of Richmond v. J.A. Croson (448 U.S. 469, 529).
17. Parents Involved in Community Schools v. Seattle School District No.1, 127 S.Ct. 2738, 2782, citations removed.
19. Ibid., 2786-7. Chief Justice Roberts takes a similar line, invoking Brown and insisting (somewhat ambiguously) that “history will be heard.” 127 S.Ct. 2738, 2744.
20. Cho, Sumi, “Redeeming Whiteness in the Shadow of Internment: Earl Warren, Brown, and a Theory of Racial Redemption” Boston College Third World Law Journal 19 (1998–1999): 73Google Scholar. Similar concepts are found in Omi and Winant's discussion of “rearticulation” in Racial Formation, 99–104, and Siegel's, Reva “preservation-through-transformation” in “‘The Rule of Love’: Wife Beating as Prerogative and Privacy,” Yale Law Journal 105 (1996)CrossRefGoogle Scholar 2117, 2178–87.
23. On Southern exceptionalism, see Lassiter and Crespino, Myth of Southern Exceptionalism; on civil rights struggle in the North, see Sugrue, Thomas, Sweet Land of Liberty: The Forgotten Struggle For Civil Rights in the North (New York: Random House, 2009)Google Scholar; Countryman, Matthew, Up South: Civil Rights and Black Power in Philadelphia (Philadelphia: University of Pennsylvania Press, 2007)Google Scholar; and Theoharris, Jeanne and Woodward, Komozi, Freedom North: Black Freedom Struggles Outside the South, 1940–1980 (New York: Palgrave MacMillan, 2003)CrossRefGoogle Scholar; on dangers of nationalist appeals within civil rights discourse, see Singh, Nikhil, Black is a Country: Race and the Unfinished Struggle for Democracy (Cambridge: Harvard University Press, 2005)Google Scholar.
24. The editorial was reprinted in The Citizens' Council newspaper (Jackson, MS), Volume 1, No.1, October 1955, p1.
25. Waring, Thomas R., “The Southern Case Against Desegregation,” Harper's Magazine, 212: 1268 (January 1956): 42Google Scholar.
26. Bartley, Numan, The Rise of Massive Resistance: Race and Politics in the South During the 1950s (Baton Rouge: Louisiana State University Press, 1969), 3Google Scholar.
29. Fairclough, Adam, “A Political Coup d'Etat?: How the Enemies of Earl Long Overwhelmed Racial Moderation in Louisiana,” in Massive Resistance: Southern Opposition to the Second Reconstruction, ed. Webb, Clive (Oxford: Oxford University Press, 2005)Google Scholar.
32. Hale, Grace, Making Whiteness: The Culture of Segregation in the South, 1890–1940 (New York: Vintage Books, 1999)Google Scholar.
33. Lassiter and Lewis, The Moderate's Dilemma.
35. Bartley, Rise of Massive Resistance, 126–49. For a comprehensive defense of interposition by its fiercest champion, see Kilpatrick, James, The Southern Case For School Segregation (New York: Crowell–Collier Press, 1962)Google Scholar; see also, Joseph Thorndike, “‘The Sometimes Sordid Level of Segregation’: James J. Kilpatrick and the Virginia Campaign against Brown,” in Lassiter and Lewis, Moderate's Dilemma, 42.
36. Under Mississippi law: “It shall be unlawful for any member of the white or Caucasian race to attend any school of high school level or below wholly or partially supported by funds of the State of Mississippi which is also attended by a member or members of the colored or Negro race.” (quoted in Bartley, Rise of Massive Resistance, 77).
37. Lassiter and Lewis, The Moderate's Dilemma; Cobb, James, On the Selling of the South: The Southern Crusade for Industrial Development, 1936–1980 (Baton Rouge: Louisiana State University Press, 1982)Google Scholar.
38. Hershman, James, “Massive Resistance Meets Its Match: The Emergence of a Pro-Public School Majority,” in The Moderate's Dilemma, 104–33Google Scholar.
40. Lassiter and Lewis, The Moderate's Dilemma, 14.
41. Quoted in Smith, “‘When Reason Collides with Prejudice’: Armistead Lloyd Boothe and the Politics of Moderation,” in The Moderate's Dilemma, 44Google Scholar.
43. Quoted in Lewis, “Emergency Mothers: Basement Schools and the Preservation of Public Education in Charlottesville,” The Moderate's Dilemma, 52Google Scholar.
44. Bartley, Rise of Massive Resistance, 78.
45. Klarman, From Jim Crow to Civil Rights, 330.
46. Lewis, George, Massive Resistance: The White Response to the Civil Rights Movement (London: Hodder Arnold, 2006), 8Google Scholar.
47. Hershman, “Massive Resistance Meets Its Match,” 106.
48. Lassiter, The Silent Majority, 4.
50. Parker's opinion receives a sympathetic reception in Andrew Kull, The Color-Blind Constitution (Cambridge: Harvard University Press, 1992), 171–81Google Scholar; more critical receptions can be found in Peter Irons, Jim Crow's Children, 174–77; and J. Wilkinson, From Brown to Bakke, 81–82.
51. Briggs v. Elliott, 132 F. Supp. 776, 777.
52. Green v. New Kent County, 391 U.S. 430 (1968); and Swann v. Charlotte-Mecklenburg 402 U.S. 1 (1971).
53. See Lassiter's devastating critique of the distinction: “De Jure/De Facto Segregation: The Long Shadow of a National Myth,” in Lassiter and Crespino, Myth of Southern Exceptionalism (arguing that de facto segregation is equally the product of state action, which was necessary to create the wide-scale residential segregation that drives “de facto” school segregation); See also Orfield, Gary and Eaton, Susan eds., Dismantling Desegregation: The Quiet Reversal of Brown v. Board of Education (New York: The New Press, 1997) 291–330Google Scholar.
54. 413 U.S. 189, 258.
55. Miliken v. Bradley 418 U.S. 717 (1974).
56. Parents Involved in Community Schools v. Seattle School District No. 1 127 S.Ct. 2738, 2769.
57. Spann, Girardeau, “Disintegration,” University of Louisville Law Review 46 (2007–2008): 565–630Google Scholar; Fischback, Jonathan, Rhee, Will, and Cacace, Robert, “Race at the Pivot Point: The Future of Race-Based Policies to Remedy De Jure Segregation After Parents Involved in Community Schools,” Harvard Civil Rights-Civil Liberties Law Review 43 (2008): 491–538Google Scholar.
58. Klarman, Michael, “How Brown Changed Race Relations: The Backlash Thesis,” Journal of American History 81 (2004)Google Scholar; Walker, Anders, The Ghost of Jim Crow: How Southern Moderates Used Brown v. Board of Education to Stall Civil Rights (Oxford: Oxford University Press, 2009)CrossRefGoogle Scholar.
59. Bartley, Rise of Massive Resistance, 82–107.
60. Cover, Robert, “Violence and the Word,” in Narrative, Violence, and the Law: The Essays of Robert Cover, Edited by Minow, Martha, Ryan, Michael and Sarat, Austin (Ann Arbor: University of Michigan Press, 1995): 203–4Google Scholar. Schmidt, Christopher, “The Sit-Ins and the State Action Doctrine,” William and Mary Bill of Rights Journal 18 (2010):777Google Scholar.
61. Cover, “Violence and the Word,” 203.
62. Robert Cover, “Nomos and Narrative,” in Narrative, Violence and the Law, 103.
66. Peltason, Jack Walter, Fifty-Eight Lonely Men: Southern Judges and School Desegregation (Urbana: University of Illinois Press 1974), 33Google Scholar.
67. Quoted in Smith, “When Reason Collides with Prejudice,” 47.
68. Peltason, Fifty-Eight Lonely Men, 36.
69. Quoted in Bartley, Rise of Massive Resistance, 145–46.
70. Quoted in Bartley, Rise of Massive Resistance, 132, my emphasis.
71. Congressional Record, 84th Congress Second Session. Vol. 102, part 4 (March 12, 1956) Washington, D.C.: Governmental Printing Office, 1956. 4459–4460.
73. Bartley, Rise of Massive Resistance, 127.
75. Walker, Ghost of Jim Crow, 21.
76. Bartley, Rise of Massive Resistance, 134, my emphasis.
77. Waring, “Southern Case Against Desegregation,” 40.
78. Cook, Eugene and Potter, William, “The School Segregation Cases: Opposing the Opinion of the Supreme Court,” American Bar Association Journal 42 (1956): 313, 391Google Scholar.
79. Byrnes, James F. (1956). The Supreme Court Must Be Curbed [Pamphlet]. Greenwood, MS: Association of Citizens' Councils, p16Google Scholar.
81. See, generally, Symposium: “Fidelity in Constitutional Theory,” Fordham Law Review 65(4) (1996–1997), pp 1247–1818.Google Scholar
82. Kramer, Larry, We the People: Popular Constitutionalism and Judicial Review (Oxford: Oxford University Press 2004)Google Scholar. But, see Post and Siegel, “Popular Constitutionalism, Departmentalism, and Judicial Supremacy,” California Law Review 92 (2004): 1027 (arguing that the two are not mutually exclusive)Google Scholar.
83. Christopher Schmidt, “The Tea Party and the Constitution” (March 2011) http://works.bepress.com/christopher_schmidt/29
84. Balkin and Siegel, “Principles, Practices and Social Movements,” 946–48.
86. Bartley, Rise of Massive Resistance, 146.
87. Peltason, Fifty-Eight Lonely Men, 137; and Anderson, Karen, “Massive Resistance, Violence, and Southern Social Relations,” in Massive ResistanceGoogle Scholar.
88. Peltason, Fifty-Eight Lonely Men, 140.
90. Anderson, “Massive Resistance, Violence, and Southern Social Relations,” 211.
92. R. Carter Pittman, “The Federal Invasion of Arkansas, In Light of the Constitution,” American Mercury, (February, 1958). http://rcarterpittman.org/essays/misc/Federal_Invasion_of_Arkansas.html
93. Lively, Earl Jr.The Invasion of Mississippi (Belamont, MA: American Opinion, 1963), v, viiGoogle Scholar.
94. Cooper v. Aaron 358 U.S. 1, 15.
99. Brown II, 349 U.S. 294, 300.
100. Cooper v. Aaron 358 U.S. 1, 7, my emphasis.
105. Eisenhower's television address is quoted in Bartley, Rise of Massive Resistance, 265.
106. Walker, Jim Crow's Ghost, 160.
107. Klarman, From Jim Crow to Civil Rights, 342.
108. Walker, Jim Crow's Ghost, 160–62.
109. Klarman, From Jim Crow to Civil Rights, 314.
110. Shuttlesworth v. Birmingham Board of Education.
111. Kelley v. Board of Ed. of Nashville; Judge Skelly is quoted in Klarman, From Jim Crow to Civil Rights, 333.
112. Walker, Jim Crow's Ghost.
113. Murakawa, Naomi, “The Origins of the Carceral Crisis: Racial Order as ‘Law and Order’ in postwar American Politics,” in Race and American Political Development, ed. Lowndes, Joseph E., Novkov, Julie, Warren, Dorean T. (New York: Routledge, 2008)Google Scholar, 235, 252. See also, Weaver, Vesla, “Frontlash: Race and the Development of Punitive Crime Policy,” Studies in American Political Development 21 (2007) 230–65CrossRefGoogle Scholar.
114. Omi and Winant, Racial Formation, 123–24; See also, Lowndes, Joseph, From the New Deal to the New Right: Race and the Southern Origins of Modern Conservatism (New Haven: Yale University Press, 2008)Google Scholar.
117. Waquant, “Hyperincarceration,” 79.