Dead End: The Development of Nineteenth-Century Litigation on Racial Discrimination in Schools - An Inaugural Lecture delivered before the University of Oxford on 28 February 1985

Abstract

When the first Justice John Marshall Harlan announced in 1899 in the case of Cumming v. Richmond County that the Supreme Court of the United States would not enjoin the school board of Augusta, Georgia, from supporting white public high schools after it had cut off funds from a black high school, he discussed no precedent cases. Had he entered into an examination of the vast body of relevant litigation, both federal and state, Harlan would have found it more difficult to justify leaving black children's rights to the discretion of almost universally white school boards. Like Harlan, professional historians have paid too little attention to these cases, and no one has yet treated the whole sweep of legal actions on racial discrimination in education in the nineteenth century. Was Harlan in Cumming, and was Justice Henry Billings Brown in Plessy v. Ferguson following the general trend of case law, or were their opinions departures from previous state or federal court decisions? Was the line of cases straight, or did it waver, and if so, how and why? In particular, to what degree did post-bellum court decisions follow Massachusetts Chief Justice Lemuel Shaw's 1850 judgment in Roberts v. Boston, which Justice Brown quoted so memorably in his 1896 Plessy opinion? How large an effect did the Fourteenth Amendment and the wartime and postwar racial egalitarianism have on the protection of black educational rights? How complete was what William Gillette has termed the 'retreat from Reconstruction', and how long did it take to execute that retrograde manoeuvre? What standards developed in early equal protection law, and upon what bases did judges decide that segregation was or was not legitimate, that racial disparities in education were or were not sufficiently great to merit correction by the courts? In what types of communities did such suits arise, and what sorts of men, judges as well as lawyers, stood for or against equal rights? Was the black struggle against racial discrimination in schools hopelessly lost from the beginning because of unvarying and deeply-held racist beliefs among virtually all white Americans, or were those beliefs sufficiently malleable to allow some black progress? Was the unity of nineteenth-century whites behind racial segregation in schools so solid that the 1954 Brown decision, as Raoul Berger has charged, 'upended' the law, reading the Fourteenth Amendment 'to mean exactly the opposite of what its framers designed it to mean'? In the largest sense, what light do the cases throw on the historical development of race relations in America?

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