As William Faulkner said, “The past is never dead. It’s not even past.” . . . I fear that if John Roberts is confirmed to be chief justice of the United States, the Supreme Court would no longer hear the people’s cries for justice.—Democratic congressman John Lewis of Georgia, longtime civil rights leader, beaten and jailed more than 40 times in the 1960s—testifying against John Roberts before the Senate Judiciary Committee, September 15
On May 15, 1954, Chief Justice Earl Warren issued the unanimous Supreme Court decision in Brown v. Board of Education declaring public school segregation unconstitutional. Included in the text of what appeared to be a landmark victory for the civil rights movement was a historic footnote, no. 11, citing research sources that had markedly influenced the Court’s ruling.
The footnote read: “K.B. Clark, ‘Effect of Pre-Prejudice and Discrimination on Personality Development [on black youth].’ ” Kenneth Bancroft Clark was the first black scholar to earn a Ph.D. in psychology at Columbia University; and later, at City College, he was the first black in New York City’s history to receive, in 1960, a permanent appointment to a city college. For years, he and his wife, Mamie Phipps Clark, also a distinguished scholar, had extensively interviewed segregated black children in various cities and states.
Their findings had led to this declaration by the Supreme Court in Brown v. Board of Education: “We conclude that in the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal [and segregated students are] deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.”
The day after the decision, Dr. Clark, elated, said that young blacks, freed of the stigma of segregation, could now “be proud of the fact that they are Americans.”
But when the Supreme Court decided to implement its decisions “with all deliberate speed,” Brown met massive resistance, and not only in the South. Through the years, moreover, in a series of further rulings, the Supreme Court so decimated its triumphant 1954 revitalization of the Constitution that, as Jonathan Kozol reports in the September 2005 Harper’s Magazine:
“In Chicago, by the academic year 2002–2003, 87 percent of public school enrollment was black; less than 10 percent were white. In St. Louis, 82 percent of the student population were black or Hispanic; in Philadelphia and Cleveland, 79 percent; in Los Angeles, 84 percent; in Detroit, 96 percent.”
The following statistics, making a farce of the Fourteenth Amendment, should be taken note of by Freddie Ferrer as well as the labor union leaders supporting the incumbent mayor: “In New York City, nearly three quarters of the [public school] students were black or Hispanic.” Also, as Bob Herbert pointed out in the July 21 New York Times, “Only 9.4 percent of African-American students get a Regents diploma” (purportedly indicating the student is prepared for college work). Many union members are black parents. (Emphasis added.)
I have yet to hear Michael Bloomberg, crowing about what he has accomplished in the schools, mention that the blatant segregation in those classes is a denial of Brown v. Board. But Chancellor Joe Klein is making some educational progress.
Through the rest of his life—he died May 1 at 90—Kenneth Clark kept fighting, in a range of posts, including at institutions he created, to bring Brown back to life. (See my chapters on him in Living the Bill of Rights, University of California Press, and Woody Klein’s invaluable Toward Humanity and Justice: The Writings of Kenneth Clark, published last year by Praeger.)
In last week’s column, I cited the two Supreme Court decisions that especially disabled Brown. In both—Board of Education of Oklahoma City v. Dowell (1991) and Freeman v. Pitts (1992)—the briefs to the Supreme Court by U.S. Solicitor General Kenneth Starr were also signed by his deputy, John Roberts. (I do not recall either case being mentioned in Roberts’s confirmation hearings.)
In Freeman v. Pitts, concerning public schools in Georgia, the Supreme Court decided (8-0) that once segregation had been ended by law in a school system, racial disparities caused by demographic shifts—residential segregation—no longer had to be remedied by school districts. Or by the Supreme Court.
The distant Supreme Court justices blithely ruled that if blacks can’t get into certain neighborhoods—resulting in heavily segregated schools—it is not a violation of Brown v. Board because the schools were no longer segregated by law. (Just by income.)
I called Kenneth Clark, with whom I’d had many conversations over the years, the day after the Freeman v. Pitts decision. He was depressed. Very depressed.
“We are now not only whittling down Brown v. Board of Education,” he told me, “but we are moving back to the ‘separate but equal’ doctrine of Plessy v. Ferguson . What the Court is saying is ‘Forget Brown v. Board of Education. Let’s put all that stuff about desegregation aside.’ What really bothers me is there doesn’t seem to be any concern about the children—white or black.”
He had momentarily been surprised, and moved, the night before by what he’d seen on television—from DeKalb County, where the case had originated, due to the county’s predominantly segregated school system.
Clark said, “I saw this white kid. He was around 11 or 12. And he was saying, ‘Look, this segregation is increasing bigotry.’ ”
If this aftermath of the briefs to the Supreme Court subverting Brown, which John Roberts signed, at all bothered him, there is no such indication in his now voluminous record. And he smoothly testified in his confirmation hearings that he stands by Brown v. Board. During those hearings, Democratic senator Richard Durbin of Illinois asked Roberts, “What are your core values?”
Aside from Roberts’s reaching the now realized pinnacle of his ambitions, that still remains a core question. In my head, I hear Hank Williams’s song “Cold, Cold Heart” when I think of the new chief justice.