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Revamping the Doctrine of Separate and Equal

March 26, 2000|J. Morgan Kousser | J. Morgan Kousser is a professor of history and social science at the California Institute of Technology and the author of "Colorblind Injustice: Minority Voting Rights and the Undoing

PASADENA — 'Our Constitution is colorblind," declared Justice John Marshall Harlan, a hero of the current "conservative" Supreme Court majority, in his famous dissent in the 1896 railroad segregation case, Plessy vs. Ferguson. Three years later, however, Harlan revealed he was blind, as well, to the most flagrant government discrimination against African Americans. Those who celebrate the colorblind slogan of the 21st-century Supreme Court might learn from the 19th-century example.

In 1899, the U.S. Supreme Court, for the first time, decided a case on racial discrimination in schools, Cumming vs. School Board of Richmond County, Ga. The chief question to be decided was, in effect, whether the court would enforce the equal part of Plessy's "separate but equal" ruling. Writing the opinion for a unanimous court, Harlan answered that question in the negative.

In fact, Harlan went farther, ruling that to win an equal-protection case involving schools, blacks had to show not only that a law or practice discriminated against them, but also that it was adopted because of "racial hostility." School boards that could manage to smile while discriminating were home free, and the degree of racial injustice in Southern education rose dramatically. What were the facts of the Cumming case? What lessons does it hold for us 100 years later?

In a burst of Reconstruction idealism in 1872, citizens of Augusta, Ga., the principal city in Richmond County, wrote and the Georgia state legislature passed a law providing for separate schools for African Americans and whites. This was an advance: There had been no public schools for blacks, free or slave, in the South before the Civil War. That law, moreover, required that the school board "provide of the Second Reconstruction."

the same facilities for each" race, including schoolhouses "and all other matters appertaining to education." In other words, separate was supposed to be equal.

It never was. The school administrators accommodated all white elementary students, instituted a high school for white girls, subsidized white Catholic primary schools and a white Baptist high school and began a kindergarten and night school for whites. But every year, hundreds of black school-age students were turned away from the few, usually old and rented buildings reserved for blacks.

African Americans in Augusta persistently protested such inequalities, and in 1880, the school board gave in to demands that it comply at least partly with the law and establish a high school. Ware High School, the only black public high school in Georgia in the 19th century, was an immediate success, its public commencements attracting leading white local and state officials, and its graduates providing elementary students in the area with the best-educated African American teachers in the state. (Few teachers of either race had any college education at that time.)

Yet, in 1897, the Richmond County School Board, over the objections of three members from the white working-class ward, closed Ware High. Local black leaders, led by plaintiff John C. Ladeveze, buttonholed board members, petitioned and finally sued. Interestingly enough, the local court judge read the state law and enjoined the board from paying for any white high schools until it reopened Ware. To interpret state law any other way, he concluded, would violate the equal-protection clause of the 14th Amendment to the U.S. Constitution. Unfortunately, the Georgia Supreme Court overturned the judge, deliberately misreading the meaning of the law and ignoring the 14th Amendment.

The Augusta black community raised the money to appeal to the U.S. Supreme Court, where they were represented by one of the country's premier constitutional lawyers, former U.S. Sen. George F. Edmunds. School-board lawyers contended that education was a state function, that federal law did not require states to offer blacks schooling and that, in any event, the board had the legal discretion to transfer the money it had used for 60 black high-school students to the education of 180 African American elementary-school students. Blacks, they suggested, could go to private religious high schools. Edmunds, who had sat in the Congress that passed the 14th Amendment, said such arguments completely undermine the equal-protection clause, and that if the board needed money for black elementary schools, it could take from the disproportionate share of its budget allocated to white schools.

Harlan sided with the school board. Apparently mesmerized by the board's picture of hundreds of young, illiterate black children who could be accommodated if only their older brothers and sisters were denied a public education, Harlan accepted the board's argument that education was a state concern that could be invaded only if plaintiffs could prove the board acted because of racial animus.

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