The Fragility of Racial Progress

...Few local blacks dared enroll in the organization, let alone sign their names to legal complaints...

...Accordingly, Warren took pains in his brief and deliberately uninflam-matory decision for his united brethren to argue that things had changed, that whatever might have been true of public education in the preceding century, school segregation enforced by majority preference did impose a psychological burden on the minority...

...Aided by the papers of Justices Harold H. Burton, Robert H. Jackson and Felix Frankfurter, Justice William O. Douglas' autobiographical hints, and interviews with some of the clerks who served members of the Warren Court, Kluger illuminatingly reconstructs the difficulties the Chief Justice confronted in putting together a court unanimously willing to end legalized segregation in the schools...

...After 1964, too, homeowners could no longer legally discriminate against qualified but black potential purchasers of their land and houses, while landlords were legally bound to rent rooms and apartments to blacks who could afford to pay the rent...

...Are the 1970s the beginning of a similar erosion of the civil rights triumphs of the 1950s and 1960s...

...and Oliver Brown of Topeka, a quiet man whom no one expected to make trouble just because his daughter Linda was excluded from a white school...

...In a happier state of racial relations, it is hard to believe the savage slashes in services today being imposed upon New Yorkers could be politically feasible...

...No wonder that Justice Marshall, back again in the minority, sharply concluded that the "majority's holding can only be seen as a retreat from our historic commitment to equality of educational opportunity and as unsupportable acquiescence in a system which deprives children in their earlier years of the chance to reach their full potential as citizens...

...Their objective was nothing less than reversal of the infamous separate-but-equal doctrine enunciated in 1896 by the Plessy v. Ferguson decision that concerned segregation on the railroads but was rapidly extended by the courts to cover education, entertainment and housing...

...The Court had been nibbling at separate-but-equal for years in cases involving graduate and law schools...

...It is disheartening when blacks themselves feel it necessary to give up on the ideals of integration, as the Atlanta NAACP did a year ago in trading further integration for local school control and funds...

...When employes are laid off according to length of service, it is the blacks (and women) who as last hired are first fired...

...In 1973, in the 5-4 Rodriguez decision written for the majority by Justice Lewis Powell, a Nixon appointee, the Court denied that equal protection required equal expenditures on public school pupils, whether their schools were in rich suburbs or inner city slums...

...My gloomier students, white or black, identified much evidence that in 1969 something like a second post-Reconstruction period began...

...One can interpret public acceptance of unemployment rates higher than at any time since 1941 as implicitly racist, the students argued, for blacks are the group hardest hit...

...So were such white allies as Jack Greenberg, who succeeded to Marshall's old job as head of the NAACP Legal Defense Fund, and Jack Weinstein, now a Federal judge...

...The NAACP lawyers received much rougher treatment...

...If Marshall and his colleagues merit slightly less credit, it is only because they at least could return to the North and gain respite from the grim hostility of Southern school officials, politicians, sheriffs, and courts...

...When nobody is being hired, the best university affirmative action scheme becomes a dead letter...

...Few pleasant things, alas, are true...

...Reed...

...What evokes these glum reflections is a fine new book, Simple Justice (Knopf, 823 pp., $15.95), by Richard Kluger, sometimes book review editor, novelist and publisher...

...The Court heard him with great respect, nearly reverence...

...I have always admired the tact displayed by those 19th-century novelists who, after bringing their heroes and heroines to the alter, prudently refused to pursue their subsequent marital fortunes...

...In sharp contrast, Congress in the 1964 Civil Rights Act regulated private as well as official acts, Title VII deprived private employers of their "right" to hire and promote according to skin color, not to mention sex, religion and ethnic origin...

...Despite impeccably enlightened principles, Jackson and Frankfurter shared grave doubts about the constitutionality of overruling the separate-but-equal rule...

...So long as some of the justices were not compelled to say outright that Plessy was a bad decision and segregation had been unconstitutional for six decades, they were willing quietly to reverse the earlier ruling...

...Justice Stanley F. Reed, "an austere and very proper Southern gentleman,' was said to have remarked after a conference on a 1953 case concerning the right of restaurant proprietors in the District of Columbia to refuse service to blacks, "Why—why, this means that a nigra can walk into the restaurant at the Mayflower Hotel and sit down to eat at the table next to Mrs...

...New York City imposes tuition, ends open admission and shrinks the size of the City University, the largest single group of casualties will be, naturally, black...

...In the contemporary racial climate, the black share is more likely to shrink than to expand...

...Segregated schools, consequently, could not be equal, and their continued existence would breach the promise of equal protection extended by the Fourteenth Amendment...

...Court watchers, of course, knew a great deal about the views and prejudices of nine quarrelsome gentlemen, none of whom was especially modest about the value of his own conclusions...

...Optimists, who maintained that history was not repeating itself, emphasized crucial differences in the two legal situations...

...In a bicentennial year, what story could be more inspiring...

...Marshall and his associates never lost their confidence in the potentialities of justice for all under the American political and judicial system...

...Frankfurter interrupted Thurgood Marshall no fewer than 52 times, badly flustering the usually impertur-able advocate...

...He interprets Brown's sequel as the "beginning of the nation's effort to rid itself of the consuming demons of racism...

...In the 1970s, nearly a generation after Brown, it would be pleasant to be able to say that blacks and whites lived happily ever after...

...Nor is this the end of the dirge...

...The power of any President is not to be underrated, they declared...

...Among other cheerful phenomena, my students pointed to the narrowing gap between the educational achievements of young blacks and young whites...

...I find the pessimists more persuasive than the optimists...

...These political tendencies, aggravated by a minor recession in 1969-70 and a mini-depression in 1973-75, have, said my negative students, exposed the fragility and reversibility of black economic progress...

...By so doing, they have permanently transformed the political and economic condition of the black minority...

...It is a pity that Kluger did not publish his admirable volume 10 years ago, following passage of the 1964 Civil Rights Act and the 1965 Voting Rights Act, which together then appeared to signal a new day of racial justice...

...Kluger tells a rattling good story...

...Try as they may, White House transients like Nixon and Ford cannot reverse racial progress...

...The black lawyers who fought their long and lonely battle against nearly insurmountable odds were moderates...

...the Reverend Joseph A. DeLaine, who risked income, home and physical safety in his determination to improve life in "benighted" Clarendon County, South Carolina...

...So much for the good news...

...Nixon's Southern strategy was premised upon the presence of Northern racism...

...Thus in a period of slow or zero growth, politics will focus upon redistribution of a relatively static Gross National Product...

...Affirmative action has opened once firmly barred doors in elite colleges, graduate departments, medical and law schools, even corporations...

...The truest heroes of Simple Justice, therefore, are the obscure, uneducated black parents who risked danger and destitution in search of something better for their sons and daughters than the heirs of the Confederacy and their Northern allies were willing of their free bounty to grant them...

...Fortunately, there were on the bench some admirable exceptions to the general rule of prejudice—including Collins J. Seitz, who in Du Pont's Delaware ruled against segregation in the schools, and Watties Waring, that intriguing South Carolina jurist, born and bred a Charleston segregationist, who turned into a partisan of racial equality and ended his days in happy exile in New York City, ostracized by the best people of his native region...

...The final chapter, "Visible Man: An Epilogue Twenty Years After," is understandably far less cheerful than the bulk of the book...

...Whites and blacks may dislike and distrust each other as much as ever, yet, asserted the optimists, Congress and the courts have forced the white majority to behave differently...

...The Thirteenth, Fourteenth and Fifteenth Amendments and 19th-century civil rights statutes addressed themselves solely to the behavior of public officials—in other words, to government action...

...Appearing in it are courageous litigants like Herman Sweatt, the black postman who aspired to attend the University of Texas law school just like whites...

...It was not surprising that John W. Davis, that great defender of bad corporate causes who spoke for South Carolina, actually thought after the oral argument that his side would win or, at worst, lose by a closely divided decision...

...The ratio of black to white income slowly improved until 1970, but has more recently been drifting steadily downward...

...So were the black litigants whom they ably represented...

...In such decisions as Griggs v. Durham Power Company, the Supreme Court read Congressional intent as also forbidding educational discrimination unless a specific level of accomplishment was provably essential to successful job performance...

...Thinking Aloud THE FRAGILITY OF RACIAL PROGRESS BY ROBERT LEKACHMAN As part of the final examination in my Law and Economics course, I recently asked my students to respond at some length to the following question: "Progress toward racial equality in the 1860s and 1870s was followed by nearly three quarters of a century of political retreat and renewed discrimination...

...Davis, as we all know, was wrong...

...As a result of the 1965 voting rights statute, white politicians in the South court black votes and George Wallace has edified his countrymen by crowning a black homecoming queen at the University of Alabama...

...If, as now appears inevitable...

...Exorcism," comments Kluger, "is rarely a pretty spectacle...

...In the Deep South (and often elsewhere) NAACP lawyers visited covertly by dark of night...

...Yielding to the temptation to seek happy endings, Kluger just possibly cops out in adding that "We are too close to this unfolding process to view it with objectivity.' Perhaps, but as Kluger himself recognizes, some staggering blows have been administered by the Supreme Court to the promises of Brown...

...For seven long years White House policy has discriminated against the large cities where blacks are increasingly concentrated...

...Opinion was predictably divided, although not noticeably along color or ethnic lines...

...Working devotedly within that system, they demonstrated in May 1954 that persuasive advocacy could win great things for the oppressed in the highest court of the republic...

...In 1975, when unemployment in metropolitan areas far exceeded the national rate, big cities actually received a smaller proportion of funds available under the Comprehensive Employment and Training Act (CETA) than in earlier and less depressed times...

...The size of Wallace's Northern constituency among blue-and white collar voters attests to the continuing accuracy of Nixon's diagnosis, much as the opposition in Boston, Detroit and elsewhere to "forced" busing bespeaks powerful white resistance to effective school integration...

...As Klu-ger's vivid chronicle documents, the Brown decision, whose unanimity owed so much to Chief Justice Earl Warren's political skill, was the culmination of a long march through the courts by a lonely band of underfinanced NAACP lawyers, among them Charles Houston, William Hastie, Spottswood Robinson, James Nes-bit, Robert Carter, and, most famous of all, Thurgood Marshall, one of the author's major heroes...

...Justice Hugo L. Black, along with others, questioned the Court's ability to enforce a straightforward desegregation decision...

...In the Deep South where once the Klan rode, black sheriffs, legislators and mayors have become sufficiently numerous as to no longer evoke comment...

...Kluger was possessed by the excellent idea, here triumphantly executed, of tracing the route to Brown v. Board of Education of Topeka, and the related decision in Boiling v. Sharpe by recounting the events in Kansas, Delaware, Virginia, South Carolina, and the District of Columbia that gave rise to the Warren Court's most celebrated case...

...Revenue sharing (which rewards suburbs) has taken money away from categorical programs designed to alleviate urban ills...

...It is an irony much appreciated by Southerners that schools in their region have been more nearly desegregated than their counterparts in the presumably more enlightened North...

...The most admirable judge of all, though, was Earl Warren, selected by Dwight Eisenhower, who later grumbled that the appointment was a mistake—a considerable tribute in the context...