In my own observation, this is quite true; the notable fact, as yet unrecognized by many staunch Southern segregationists, is that a new Negro is in fact emerging—the bright young high school senior, the serious college student, the impatient middle-class Negro couple, struggling for respectability and status. Their impact is yet to be wholly felt within their own race, but it is being felt increasingly upon white institutions; and as a consequence, as Carleton observes, racial attitudes among white persons in certain parts of the South are subtly changing. He terms this a “softening.” It is sometimes a hardening, too, as white families, having long cherished an affection for “their” Negroes, discover that their charges prefer not to be known as Uncle Toms or Aunt Jemimas; the disillusioned reaction, out of chagrin and embarrassment, is to let them bail themselves out of trouble, if that’s the way they want it. The relationship changes. But if the Southern Negro is to find salvation at all, he must find it in this trend to independence and maturity. “The most important immediate force at work to emancipate the Negro of the South,” says Carleton, “is the Southern Negro himself. A great change has come over him. He is no longer an Uncle Tom, or even the kind of Negro approved of by Booker T. Washington. He now talks back. He has a new self-respect, a new confidence, a new independence. Increasingly he is depending less on Northern Negro initiative and leadership and is supplying his own.” To the extent that this prophecy is fulfilled—for all the bitter incidents, severances, and failures that may be expected—the upward and forward motion of the Negro will be recorded.
“The fault is not in our stars, but in ourselves, that we are underlings.” The brooding, introspective advice of Cassius ought not to be spurned; it ought rather to be put to thoughtful use by those genuinely (as distinguished from merely politically) concerned with the Negroes’ movement out of an underling’s status. James B. Conant has recognized this, however belatedly, in his Slums and Suburbs. Here Dr. Conant paints a grimly realistic picture of a Negro child’s life in the urban slums of the North, where the child may live six flights up in a tenement offering “one filthy room with a bed, a light bulb, and a stink.” It is after visiting such tenements, and inspecting the schools attended by slum children, that he grows impatient “with both critics and defenders of public education who ignore the realities of school situations to engage in fruitless debate about educational philosophy, purposes, and the like: These situations call for action, not for hair-splitting arguments.”
Dr. Conant is a distinguished spokesman for liberalism, but unlike most of his fastidious brethren, he came to the slums, and smelled them, and began to see realities fair and clear. What he has to say about Negro education merits a sober hearing. He is convinced that it is wrong to insist upon a curriculum completely unsuited to the needs of the children required to take it: “Foreign languages in Grade 7 or algebra in Grade 8 ... have little place in a school in which half the pupils in that grade read at the fourth-grade level or below. Homework has little relevance in a situation where home is a filthy, noisy tenement.” By the same token, it may be suggested that in the rural South, school offerings ought to be adapted to real life also; and though Dr. Conant is a staunch opponent of school segregation as such—that is, to the assignment of pupils to schools solely by reason of their race—he sees no reason why satisfactory education cannot be provided in all Negro schools. Arbitrarily to shift children around, simply to satisfy sociological theories of an ideal race-mixture, impressed Dr. Conant as wrong. This approach treats children “as though they were pawns on a chessboard.”
But these children, white and black, are not mere pawns on a chessboard, and whatever the sins or submissions of their great-grandfathers may have been, they merit consideration in their own right. In the South, this consideration steadily is being extended. If we of the South cannot turn the clock back to 1868, when the Fourteenth Amendment was ratified, at least we can strive to turn the clock back to 1896, when the doctrine of separate but equal school facilities received a sort of casual endorsement from a Supreme Court concerned primarily with a question of public transportation. True, the apostles of the Brave New World will denounce the idea of applying the constitutional principles of 1896 to problems of the early 1960s, but there have been entirely too many such denunciations from thoughtless and ill-informed pedagogues. The Negro (precisely as the white) is entitled, so far as a system of education is concerned, to the same educational opportunities afforded his white counterpart, and neither more nor less. What he does with these educational opportunities thereafter is his question to answer.
I do not profess to know what the future holds for the Southern Negro, or for that matter, for the Northern Negro. The achievements of the colored people of the 1950s merit at least provisional applause: They are fighting their way out of millennial shadows—and more power to them! If an arriving generation of Negro children can sustain this momentum, the race should move ahead, first within itself, as Dr. Conant pleads, and in time—in time—toward equality with the larger and more established community around it. When that hour of equality arrives—whenever that hour arrives—white “prejudices” predictably will dissolve; there no longer would be a basis for them. What comes thereafter I cannot suggest, but it is reasonable to surmise that barriers once lowered will not thereafter be raised capriciously again. When the Negro race proves itself, in terms of Western values of maturity and achievement, it will be time enough to talk of complete social and economic integration. Until then, it is pointless to argue sociology; it is more useful, in every way, to meditate upon the transcendent issues of the law.
Part II
The Law
I think the proper course is to recognize that a State legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State, and that courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular court may happen to entertain.
—Oliver Wendell Holmes.
I
On May 17, 1954, the Supreme Court of the United States handed down its unanimous decision in the School Segregation Cases. By general agreement, this decision is regarded as the court’s most momentous opinion of this century; indeed, only the court’s opinion of 1856 in the Dred Scott case is thought to have had greater impact upon the American people or upon the course of historic events. Because of its destructive effect upon the stability of law and the permanence of long-established institutions, the school decision, in my own view, surpassed Scott v. Sanford in the area of jurisprudence gone mad. In one stroke, the Warren court violated those precepts of judicial restraint and constitutional interpretation which it most frequently has insisted on in the past; it transformed itself into a super-legislature—more, it usurped the functions of constitutional amendment that lie with not fewer than three-fourths of the States. Abandoning law, the court wedded sociology; discarding eighty years of unbroken precedent, members of the court substituted their own notions of psychology and moral fitness for the plain and palpable meaning of the Fourteenth Amendment in terms of racially separate public schools. And having prohibited unto the States the exercise of a power the States had been exercising with judicial approval since 1868, the court capped its day’s work by decreeing an end to segregation in schools of the District of Columbia. This latter stroke was achieved by judicial coup de main that left even the court’s best friends embarrassed; what happened, Ralph Catterall has remarked, is that the court declared “unthinkable” that which had been universally thought for 166 years.