I had not intended to write a “Part III” for this book. The object was to put forth a brief for the South in the single narrow field of racially separate public schools; my thought was to summarize and argue the law and the evidence ofBrownv.Board of Educationas the South views them, and to leave such issues as “sit-ins,” and voting rights, and the Negro’s future for another day. Yet a familiar part of the pleading in almost any case is the prayer of the petitioner, and there is something more to be said for the South in that hypothetical role.
Patience, the South would ask of its adversaries: Be patient; be tolerant of imperfection; be mindful that in these difficult areas of race and race relations, wisdom and virtue do not reside exclusively in the North, nor sin and ignorance exclusively in the South. The white man most surely has been at fault; that is conceded. But in his own way, the black man has been at fault too. And in neither racial camp can these faults be corrected in the twinkling of a generation.
The apostles of instant innovation, crying zealously for change, do not comprehend the elemental nature of the forces they are dealing with. “All is race,” said Disraeli inTancred; “there is no other truth.” The earliest history of man reflects an awareness of racial distinctions; in one fashion or another, discrimination has existed through all recorded time, and “prejudice,” if you please, like the poor, has been with us always. It exists among the Negro people themselves. It exists around the world, and may be seen in especially cruel and virulent forms in some of those nations said to be so terribly offended by the manifestations of segregation that remain in the American South. The beam in the eye of Herman Talmadge is small against the mote in the eye of Mr. Nehru. The Old World has lived with these problems several millennia longer than the New, but it has solved them not better; in truth, it has solved them much less well, and in most cases, it has not solved them at all.
As a creature of the law, racial segregation in the United States is dead. The voices once confidently raised in theSouth, crying that the court would reverse itself in time, have all but died out now. The court will not reverse itself. On February 26, 1962, aper curiamopinion rebuked a Mississippi Federal court in icy terms: “We have settled beyond question that no State may require racial segregation of interstate or intrastate transportation facilities. The question is no longer open; it is foreclosed as a litigable issue.” (Baileyv.Patterson, 30 LW 4164.) Similarly, the court has plunged far beyond the reasoning it advanced inBrownas a justification for prohibiting segregation in the schools; the hearts and minds of children, the importance of education, and the intangibles of a classroom do not figure at all in cases that involve golf courses, courthouse cafeterias, and the rest rooms of public buildings. Many staunch Southerners, declaring themselves unwilling to surrender, do not realize that as a matter of law, the war is over. There is now not the slightest possibility of a constitutional amendment to undo what the court did; the Congress will never pass a law that sanctions segregation in a public institution; the court is unanimous in its resolution, and some of its members are young. The Southern State that puts reliance hereafter in any law requiring racial separation is relying upon a vain and useless thing. We should be better off, as a matter of law, if Southern legislatures would go through their Codes with an art gum, erasing the word “Negro” wherever it appears. Statutory defenses against segregation, apart from any remaining value they may have in obtaining the law’s delays, are useless.
These are harsh truths for the South, but the South would do well to grasp them; once understood, they suggest a course of events in which accommodation may be found within the broad structure of a voluntary society. Ovid is sufficient authority for the maxim that nothing is stronger than custom; and by relying upon custom, and freedom, and precepts of the law as yet uncorrupted by the court, the South—and here I mean the white South and the Negro South alike—can discover some room to turn around in.
Virginia has pointed a way toward such an accommodation, so far as education is concerned, in its freedom-of-choice program. Under an act of the General Assembly of1958, every child in Virginia has arightto choose between attending a public school or a nonprofit, nonsectarian private school. The law has nothing to do with segregation or desegregation. The modest tuition grants provided in the law (in no case is a grant higher than the local per-pupil cost in public schools) are intended to represent each child’s equal share in a total appropriation for purposes of education, and the State stands indifferent to the child’s way of spending it: Public or private, it is all the same to the Commonwealth, so long as the child is schooled.
The freedom-of-choice plan is working now, harmoniously and effectively, in such areas of Virginia as Norfolk, Charlottesville, and Front Royal. In each of the localities, the public schools are desegregated; in each of the localities, good private schools are operating. Some white families have made one choice, some another. In a number of cases, white children living in Albemarle County and Norfolk County have obtained county tuition grants in order to attend the desegregated public schools of neighboring Charlottesville and Norfolk city. The State raises no objection. This is the students’ right.
The private schools now operating in Virginia have limited their admissions, to the best of my knowledge, to white pupils only. This condition may change in time; nothing prevents the organization of nonprofit schools for Negroes only, or for Negroes and whites together. In any event, the right of any group of parents to found a school to their taste would appear beyond successful challenge. “The most natural right of man,” said Tocqueville, “next to the right of acting for himself, is that of combining his exertions with those of his fellow creatures and of acting in common with them. The right of association therefore appears to be almost as inalienable in nature as the right of personal liberty. No legislature can attack it without impairing the foundations of society.”
Virginia is feeling its way carefully with the freedom-of-choice program. In the 1960-61 school year, 8127 pupils (or a little less than 1 per cent of the 874,000 children in public schools) gave up their right to attend a public school and chose, instead, to exercise their rights under the 1958law. They obtained grants amounting to $1.8 million out of total school spending (including sums for capital outlays) of some $290 million. Public school administrators, many of whom are fearful of private school competition and jealously opposed to the program, tend to regard the grants as a net cost—as something taken away from them. Plainly this is not true. About $200,000 in grants were taken by pupils who applied the sums to tuition costs in neighboring public schools, as in Charlottesville and Norfolk; other outlays were offset by the simple absence of the pupils from public schools—the State did not have to build classrooms or hire teachers to teach them. When it is kept in mind that the nonprofit private schools must meet their own capital costs from contributions and endowments, the prospect of an ultimate saving to the Commonwealth becomes evident. These construction costs are a part of the price a free people should be permitted to pay for freedom to conduct their lives as they wish. It is inconceivable that Federal courts should outlaw this voluntary, nondiscriminatory plan as a mere subterfuge or circumvention of theBrowndecision. It emphatically is not.
InPiercev.Society of Sisters(268 U. S. 510) the Supreme Court laid down the principles on which Virginia is relying. The opinion held unconstitutional an Oregon act of 1922 requiring children of that State to attend public schools and public schools only. A private military academy and a Catholic parochial school complained that the law violated the right of parents to choose schools for their children where the pupils would receive the sort of training the parents wished them to have; beyond that, the law violated the right of private schools and teachers to engage in a useful and lawful business or profession.
A unanimous court, speaking through Mr. Justice McReynolds, accepted the plaintiffs’ position entirely. Oregon’s law “unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.” Their rights in this regard are guaranteed by the Constitution and may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State. “The fundamental theoryof liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”
As Douglas said inLernerv.Casey(357 U. S. 468), the liberties guaranteed to the citizen by the First and Fourteenth amendments include “the right to believe what one chooses, the right to differ from his neighbor, the right to pick and choose the political philosophy that he likes best, the right to associate with whomever he chooses, the right to join the groups he prefers, the privilege of selecting his own path to salvation.” And in a case upholding the right of Negroes to associate, Mr. Justice Harlan expressed for the court the same view that white parents take in forming a private school for their children: “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Fourteenth Amendment.” (NAACPv.Alabama, 357 U. S. 449.)
The high court’s opinion in theSchool Segregation Casesdid nothing to interfere with these basic concepts of individual freedom of action in areas of education. It is important to understand, the Fourth U. S. Circuit Court of Appeals has said, “exactly what the Supreme Court has decided [inBrown] and what it has not decided in this case”:
It has not decided that the Federal courts are to take over or regulate the public schools of the States. It has not decided that the States must mix persons of different races in the schools or must require them to attend schools, or must deprive them of the right of choosing the schools they attend. What it has decided, and all that it has decided, is that a State may not deny to any person on account of race the right to attend any school that it maintains. This, under the decision of the Supreme Court, the State may not do directly or indirectly; but if the schools which it maintains are open to children of allraces, no violation of the Constitution is involved even though the children of different races voluntarily attend different schools, as they attend different churches. Nothing in the Constitution or in the decision of the Supreme Court takes away from the people the freedom to choose the schools they attend. The Constitution, in other words, does not require integration. It merely forbids discrimination. It does not forbid such segregation as the result of voluntary action. It merely forbids the use of governmental power to enforce segregation. The Fourteenth Amendment is a limitation upon the exercise of power by the state or State agencies, not a limitation upon the freedom of individuals.
It has not decided that the Federal courts are to take over or regulate the public schools of the States. It has not decided that the States must mix persons of different races in the schools or must require them to attend schools, or must deprive them of the right of choosing the schools they attend. What it has decided, and all that it has decided, is that a State may not deny to any person on account of race the right to attend any school that it maintains. This, under the decision of the Supreme Court, the State may not do directly or indirectly; but if the schools which it maintains are open to children of allraces, no violation of the Constitution is involved even though the children of different races voluntarily attend different schools, as they attend different churches. Nothing in the Constitution or in the decision of the Supreme Court takes away from the people the freedom to choose the schools they attend. The Constitution, in other words, does not require integration. It merely forbids discrimination. It does not forbid such segregation as the result of voluntary action. It merely forbids the use of governmental power to enforce segregation. The Fourteenth Amendment is a limitation upon the exercise of power by the state or State agencies, not a limitation upon the freedom of individuals.
This interpretation by an exceptionally able appellate court offers the South, if only the South will accept it (and if our more rabid and influential friends in the North will abate their impatient demands), some basis for a tolerable way of life. In its immediate application, the Supreme Court’s decision in the four suits decided byBrownwas not, of course, “the supreme law of the land.” It was, as every court opinion must be, simply the law of the case, disposing of the controversies between the named plaintiffs and the named defendants. Even though such suits are “class actions,” the class in each case is limited by such facts as those of geography; a court order directed against Clarendon County does not require the superintendent of schools in adjoining Sumter County to do anything. Thus, under well-accepted principles of law, the counties and cities of the South that are not under court order stand under no legal obligation to alter their traditional school policies. No law or court order requires them to integrate; no law or court order requires them affirmatively to take any action. True, if a point is made of it, and formal complaint of discrimination is filed, local school officials must then yield to the principles laid down by the Supreme Court; they can yield voluntarily, or they can go through the motions of a predictable court proceeding, but they cannot deny the child by reason of his race the right to attend any public school under their supervision.
This deliberate, unhurried view of the school problem tends to madden the professional integrationist. He looks atthe progress of desegregation in the South, eight years afterBrown, and apart from the border States he sees:
These figures arouse the South’s critics, but another fact contributes more significantly to their exasperation: The people of the South, white and Negro together, continue to dwell amiably side by side. Except where hired missionaries from the NAACP can stir up a lawsuit, agitation for an end to school segregation ranges from small to nil. The Southern States have put these past eight years to good use in pouring a fortune into equalization of Negro school facilities. Old patterns persist because many Negro families, to the disgust of the U. S. Civil Rights Commission, find the patterns not intolerable. In Virginia, for example, Negro parents know that they can petition successfully for admission of their children to the nearest “white” school; local officials no longer even resort to court delays. But three years after collapse of Virginia’s massive resistance, fewer than one-quarter of 1 per cent of the Negro parents have taken the trouble to do so.
This slow path toward evolutionary change should commend itself to reasonably minded men. Whatever violence to constitutional law was done by theBrowndecision, it is done; we ought not to condone it, defend it, rationalize it, or forgive it, but we ought not to pretend that it never happened. We of the South have to live with these new legal principles, and accommodate our society to them. So far as the education of children is concerned, this can be done (1) by continuing to provide the best possible schools our resources can provide; (2) by continuing to separate children by race, in the certain conviction that such basic pupil assignments violate no law or court order, and are in accord with community wishes; and (3) by approving and accepting individual, particular applications for transfer or admission on a genuinely nondiscriminatory basis. And if, in addition, entirely apart from any racial considerations whatever, a freedom-of-choice program can be put in motion to stimulate the growth of private education, the South’s school problems can be controlled for a long time to come.
Your petitioners are hopeful that such an approach, much as it may annoy the advocates of compulsory integration, will find a favorable response among men who are willing to take the long view. It seems to us wholly in accord with the oldest principles of federalism—principles that have contributed much to the strength and vitality of this Republic. It is the diversity of the States, their ability to experiment, their right and power to respond to a variety of local conditions and customs that together prevent the evils of excessive centralism. “The traditions and habits of centuries were not intended to be overthrown when the Fourteenth Amendment was passed,” said Holmes. He remarked again: “There is nothing that I more deprecate than the use of the Fourteenth Amendment beyond the absolute compulsion of its words to prevent the making of social experiments that an important part of the community desires, in the insulated chambers afforded by the several States, even though the experiments may seem futile or even noxious to me and to those whose judgment I most respect.”
Not only is this approach in accord with a wise federalism;it also offers the greatest opportunity to the Southern Negro himself. In the course of a debate in theSaturday Reviewwith William Sloane Coffin, the New York-born William F. Buckley, Jr., said this: “If it is true that the separation of the races on account of color is nonrational, then circumstance will in due course break down segregation. When it becomes self-evident that biological, intellectual, cultural, and psychic similarities among the races render social separation atavistic, then the myths will begin to fade, as they have done in respect of the Irish, the Italian, the Jew; then integration will come—the right kind of integration.”
The South has begun to look upon its Negro people, sinceBrown, in a new way. Shortcomings of the Negro that earlier had been merely sensed are now acutely seen. But this is no bad thing. Before any social ill may be remedied, it first must be diagnosed and understood. Many a Southerner is now sensitive to the outward and visible signs of segregation; he was not so before. Today the detritus of a crumbling institution may be observed at every hand, and there are times when he squirms a little inside. This retreat to neutrality on the white man’s part is a necessary condition if the Negro,by his own exertions, is to find an equal place in the sun. In the end, the white man cannot do the job for him; Jim Crow is dead, but the legal shot that felled him also put Massa in the cold, cold ground. It is said that the high court “cast off the Negro’s shackles”; it cast off his crutches too. The paternalism of generations is vanishing year by year, to be replaced by a healthy skepticism: The Negro says he’s the white man’s equal;show me.
No decree of court, no act of Congress, can give the Negro more than this. He has no right—no legal right, no moral right—to intrude upon the private institutions of his neighbors. If individual liberty means anything, it must mean that each individual, regardless of color, is at liberty to choose his own personal and business associates, and to choose them for whatever reason. This the Negro must understand. If he is to become a part of this association, on equal terms, he must do what every other race of men has done since time began, and that is to demonstrate hisworth to the community he seeks to enter. For more than three-hundred years, the white South by and large has regarded such entry as impossible. I would be less than honest if I did not acknowledge that a great part of the Deep South still views the slightest yielding as anathema. But elsewhere in my changing and unchanging land, the old unequivocal “no” to Negro equality slowly merges into a doubtful “maybe.” On the day that I write these concluding paragraphs, the local transit company in Richmond has announced employment of its first Negro bus drivers. The story made page one; but it made just the bottom of page one, and the Capital of the late Confederacy will not voice the slightest ripple of objection. If these drivers make it up the hill, others will follow. If the first Negro clerks in local retail stores can sell themselves, the experience of one merchant will persuade his neighbor. And the more the Negro people can do within their own neighborhoods and business communities, the more the white community’s retreat to neutrality will continue.
I believe the South will maintain what I have termed essential separation of the races for years to come. This means very nearly total segregation in education, where the intimate, personal, and prolonged association of white and Negro boys and girls, in public schools, in massive numbers, as social equals, is more than community attitudes will accept. The sad example of Prince Edward County, where a resolute rural people abandoned all public schools, offers an instructive lesson to the advocates of frontal assault. “We see the wisdom of Solon’s remark,” Jefferson once observed, “that no more good must be attempted than the nation can bear.” This essential separation also takes in such wholly social institutions as private clubs. I cannot foresee the integration of Protestant churches in the South. And whatever the Supreme Court may do in time to the miscegenation laws, ostracism, swift and certain, awaits those who would cross this marital line. But my guess would be that in areas of higher education, in many fields of employment, in professional associations, in such quasi-public fields as hotels, restaurants, and concert halls, doors that have been closed will open one by one. And a South that oncewould have regarded these innovations with horror will view them at first with surprise, then with regret, for a time with distaste, and at last with indifference. As the migration of the Negro out of the South continues, other parts of the nation, at once benefited and handicapped for want of the South’s experience in coexistence, will grapple in their own fashion with the cultural and economic assimilation of the Negro. They will not find it easy, but they can rely upon this: The South will not intrude its views upon theirs. This is a big country, a great country; it remains the freest country on earth, and the Negro people are a part of it. The law has done what it can for Negroes as a whole; the law will do more, in specific situations. The rest is up to time, and up to the Negroes themselves.