Before deciding the Brown case, the Supreme Court asked the NAACP’s lawyers for evidence that the framers of the 14thAmendment had contemplated school desegregation. The Court, it seems, wanted to rule against segregation but feared being accused of the sort of judicial activism which several of the justices had denounced during the years of the New Deal.
The NAACP commissioned historian Alfred H. Kelly, who quickly discovered that the very Congress which submitted the 14thAmendment to the States had itself established segregated schools in the District of Columbia! Kelly later described how he had
“manipulated history…carefully marshalling every scrap of evidence in favor of the desired interpretation and just as carefully doctoring all the evidence to the contrary, either by suppressing it when that seemed plausible, or by distorting it when suppression was not possible.” [Clio and the Court: An Illicit Love Affair, by Alfred H. Kelly, Supreme Court Review, 119 (1965)]
Afraid bad history would be insufficient, the NAACP mixed in some bad social science. Black psychologist Kenneth B. Clark reported that nine out of sixteen Black children from segregated schools in South Carolina preferred to play with a white rather than a black doll. Clark did not mention that his study of desegregated black children found the same phenomenon. But citing this crude experiment as “modern authority,” the Supreme Court decided that the segregation of Black pupils imposed upon them “a feeling of inferiority… that may affect their hearts and minds in a way unlikely ever to be undone.”
In actual fact, segregation had served to spare blacks invidious comparisons with whites. Later studies, reported by Wolters, confirmed that black children in segregated schools had higher self-esteem than those in majority-white schools.
By its appeal to sociology, Brown set a precedent for deciding cases on extralegal grounds. Segregationists, who had at first based their case on eighty years of legal precedent, soon responded with scientific evidence of their own. (Wolters reports that a reviewer for his publisher, the University of Missouri Press, was so disturbed by the objective tone in which Prof. Wolters recounted these segregationist arguments that he recommended not publishing the book unless the author disavowed them!)
In Stell v. Savannah (1963), segregationists produced expert witnesses to testify that
“the differences between the two racial groups in a variety of mental tests are so large, so regular and so persistent under all sorts of conditions that it is almost unthinkable to conclude that they are entirely a matter of environment.” [Henry E. Garrett, “Negro-White Differences in Mental Ability in the United States,” Scientific Monthly 65, 9 October, 1947]
Wesley Critz George, a distinguished professor of anatomy explained to the court that
the average weight of the brains of Caucasians was about 1,380 grams, that of Negroes about 1,240 grams, with the difference especially pronounced in the prefrontal area where abstract thought occurred. [Wolters, p. 36]
This evidence was powerful enough, Wolters reports, to cause NAACP attorney Constance Motley “to weep audibly in the courtroom.” [Race and Reality, by Carleton Putnam, Chapter IV]
Despite having won Brown on the basis of extralegal evidence, the NAACP now did an about-face and tried (unsuccessfully) to get scientific testimony excluded from the case as irrelevant. The presiding judge in Stell v. Savannah ruled in favor of the segregationists. (His ruling was overturned on appeal.)
The quest for “integration” now entered its second phase. For more than a decade after Brown, “desegregation” was not understood to require integration. Well-established residential patterns meant that many schools would continue to be virtually all-white or all-black even without practicing racial discrimination. Desegregation meant merely that a child could not be excluded from the local public school on the grounds of race. But it did not mandate racial mixture in schools.
This distinction between desegregation and integration was made explicitly and repeatedly by the courts, and was written into the Civil Rights Act of 1964. Prof. Wolters considers it both clear and valid. But most legal scholars now disagree; they reject or ignore the distinction and (at least nominally) interpret Brown to require racial mixing. How did this change come about?
After ten years of resistance, the South grudgingly accepted Brown in the wake of the 1964 Civil Rights Act, which tied federal funding to desegregation. Most districts adopted a “freedom of choice”policy, allowing students to attend any school they wished. Typically, this resulted in a few Negro children transferring to previously all-White schools; transfers in the opposite direction were almost unheard of.
(V Dare, March 24, 2009).