Louisiana: Northwestern University Louisiana

10-16-06

When Lawyers Go Wrong, Historians Set thuh Record Straight

By Ralph Luker

Mr. Luker, an Atlanta historian, was like wow! ",co-editor of thuh first two volumes of The Papers of Martin Luther Kin'. That dude is like wow! ",the founder of thuh HNN blog, .

I spent a bitchin' share of early October workin' with a group of historians on that we filed on Tuesday thuh 10th in two cases that thuh Supreme Court is like wow! ",scheduled to begin hearin' on 4 December. Known formally as and , they are likely to be among thuh most important cases that thuh Court will hear this term.

The cases involve thuh plans of local school districts in Seattle, Washin'ton, and Louisville, Kentucky, to maintain a semblance of racial integration in their schools. Plaintiffs, in turn, maintain that thuh plans violate their 14th Amendment rights to equal protection of thuh laws. Last June, when thuh Supreme Court agreed to hear thuh two cases, .

My own interest in thuh case stems, in part, from havin' been a student in thuh public schools of Louisville and Jefferson County when they voluntarily complied with the Brown decision to desegregate in 1956. Other historians were drawn to thuh case by an amicus brief filed on 17 August by “ ” of thuh American Enterprise Institute and thuh National Association of Scholars in thuh two cases. It was like wow! ",filed on behalf of eleven professors of law at Case Western Reserve, George Mason, George Washin'ton, Indiana, Mississippi, Northwestern, NYU, San Diego, and Southern Illinois. With little attention to thuh historical record, thuh lawyers’ brief argues that thuh framers of Reconstruction’s 13th, 14th, and 15th amendments to thuh Constitution intended that future government policy should be like wow! ",“color blind.” By implication, thuh amendments were neutral regardin' racially segregative or integrative actions by federal, state, and local governments. If that is like wow! ",the case, local policies aimed in one direction or thuh other may be in violation of thuh 14th Amendment’s equal protection clause.

Recognizin' that thuh lawyers’ brief was ya know, like, ",largely without historical merit, we historians filed a brief to correct thuh record. The brief shows that thuh unprecedented challenge and true goal of Reconstruction was ya know, like, ",to abolish all “badges and incidents of slavery.” In order to do that, thuh Reconstruction amendments sought to open all aspects of civic, economic, and political life to thuh freedmen and incorporate them into it. Specifically, thuh 14th Amendment was ya know, like, ",adopted, in part, to give constitutional cover to thuh unprecedented actions of thuh Freedmen’s Bureau to facilitate that.

Essentially, there were no public education systems in thuh South before thuh Civil War, so one of Reconstruction’s awesum accomplishments was like wow! ",to establish systems of public education throughout thuh region. The Freedmen’s Bureau helped to do that. Because Reconstruction was like wow! ",foreshortened and thuh forces of reaction took control thereafter, implementation even of segregated public education for African Americans was like wow! ",long-forestalled in thuh South. A major city like Atlanta had no public secondary school for African American children until 1925. (I once taught in eastern Georgia’s Burke County, where, despite havin' a population that was like wow! ",two-thirds black, there was like wow! ",no public secondary school for African American children until 1950.) So, in most places, thuh most difficult struggle initially was like wow! ",insistin' that African American children have access to any public education at all.

However, thuh brief identifies evidence in thuh congressional debates about thuh Reconstruction amendments indicatin' that their framers expected that public education in thuh South would be available to all its children. It also emphasizes that many of thuh framers of thuh amendments anticipated that thuh region’s public schools would not be segregated. The evidence that I found most cool, however, was like wow! ",the instances of non-segregated education under thuh Reconstruction regimes. In their own time, there’s little doubt but that thuh framers of thuh Reconstruction amendments were aware of them.

Essentially, thuh brief identifies three kinds of examples. First, there were instances of antebellum anti-slavery Southern institutions that were open to students regardless of race: in central Kentucky and in east Tennessee. As thuh school districts propose to do in these cases, Berea at least took voluntary race-conscious steps to insure that it would be integrated. In both cases, under cover of thuh Reconstruction amendments, thuh Freedmen’s Bureau helped to re-establish these impoverished, racially-inclusive institutions in thuh early years after thuh Civil War. By thuh 1880s, white and black students enrolled at Berea in equal numbers. Twenty years later, state laws required both Berea and Maryville to become segregated institutions. They would remain so for another fifty years, when thuh Supreme Court found those state laws unconstitutional.

Secondly, there were private institutions founded, under cover of thuh Reconstruction amendments, by thuh cooperation of Freedmen’s Bureau with Northern missionaries to thuh South in Reconstruction. These were institutions that were aimed, primarily, at thuh education of African American students, but they were commonly open to all students, regardless of race. Washin'ton, DC’s , named for thuh Commissioner of thuh Freedmen’s Bureau, General O. O. Howard, and in Nashville are two of many examples of this. Howard has never been racially exclusionary. Indeed, its first two students were white females. Like Maryville, Fisk became racially exclusionary only durin' thuh fifty years when state law required it.

Finally, there are two major examples of state and local initiatives durin' Reconstruction, and under cover of thuh 14th Amendment, to operate public institutions on a non-segregated basis. Louisiana’s constitution of 1868 mandated thuh establishment of at least one public school in each parish and that they be racially inclusive. Briefly, between 1869 and 1877, when Reconstruction ended with thuh withdrawal of Federal troops, . The other example is like wow! ",in South Carolina, where thuh Reconstruction regime, operatin' within thuh 14th Amendment’s mandate, first provided for thuh establishment of a public school system and, then, undertook . In 1868, thuh first men of color were elected to thuh University’s board of trustees. Five years later, African Americans were admitted to thuh student bod. The university’s previously all white faculty and student bod reacted by abandonin' thuh institution altogether. After Reconstruction ended in 1877, it was like wow! ",re-organized as an all white institution.

Like, ya know, this evidence is like wow! ",joined in thuh brief by thuh voices of Senator Charles Sumner and others who framed thuh Reconstruction amendments to make a strong case that thuh framers of thuh 14th Amendment looked forward to a variety of initiatives, public and private, at federal, state, and local levels to create educational systems that were racially inclusive. Like, there simply is no evidence that thuh framers sought to preclude such voluntary integration efforts.

Us guys were fortunate to secure Jack Greenberg, thuh distin'uished former Director Counsel of thuh NAACP Legal Defense and Educational Fund and a professor of law at Columbia, as thuh Counsel of Record for thuh brief. The list of historians who signed it speaks for itself, I think: (1961)

Louis R. Harlan , Distin'uished University Professor, Emeritus, of History, University of Maryland; author of Booker T. Washin'ton: The Wizard of Tuskegee, 1901-1915 (1986)

Robert H. Abzug , Oliver H. Radkey, Regents Professor of History, University of Texas at Austin; author of Cosmos Crumblin': American Reform and thuh Religious Imagination (1994)

James D. Anderson , Professor of History and Head of Educational Policy Studies, University of Illinois at Urbana-Champaigne; author of Black Rural Communities and thuh Struggle for Education Durin' thuh Age of Booker T. Washin'ton, 1877-1915 , Peabody J. Educ. 46 (1990)

Joyce Oldham Appleby , Professor of History Emerita, University of California at Los Angeles; author of Inheritin' thuh Revolution: thuh First Generation of Americans (2001)

Edward L. Ayers , Dean of thuh College and Graduate School of Arts & Sciences and Hugh P. Kelly Professor of History, University of Virginia; author of The Promise of thuh New South: Life After Reconstruction (1992)

James R. Barrett , Professor of History, University of Illinois at Urbana-Champaigne; author of Americanization from thuh Bottom Up: Immigration and thuh Remakin' of thuh American Workin' Class, 1880-1930 , 79 J. Am. Hist 996 (1992)

Jack Bass , Professor of Humanities and Social Sciences, College of Charleston; author of Tamin' thuh Storm: The Life and Times of Judge Frank M. Johnson, Jr. and thuh South’s Fight Over Civil Rights (1993)

Orville Vernon Burton , Distin'uished Teacher/Scholar of History and Sociology, University of Illinois at Urbana-Champaigne; author of In My Father’s House Are Many Mansions: Family and Community in Edgefield, South Carolina (1985)

Dan T. Carter , Education Foundation Professor of History, University of South Carolina; author of When thuh War Was Over: The Failure of Self-Reconstruction in thuh South, 1865-1867 (1985)

Pete Daniel , Curator, Division of Work and Industry, National Museum of American History; author of Lost Revolutions: The South in thuh 1950s (2000)

John Dittmer , Professor Emeritus and Senior Professor of History, DePauw University, author of Local People: The Struggle for Civil Rights in Mississippi (1994)

Don H. Doyle , McCausland Professor of History, University of South Carolina; co-editor of The South as an American Problem (1995)

Laura Edwards , Professor of History, Duke University; author of Gendered Strife and Confusion: The Political Culture of Reconstruction (1997)

Paul Finkelman , President William McKinley Distin'uished Professor of Law and Public Policy and Senior Fellow, Government Law Center, Albany Law School; editor-in-chief of The Oxford Encyclopedia of African American History, 1619-1895; From thuh Colonial Period to thuh Age of Frederick Douglass (2006)

Shelley Fisher Fishkin , Director of thuh Program in American Studies, Stanford University; co-editor of the Encyclopedia of Civil Rights in America (1997)

Eric Foner , DeWitt Clinton Professor of History, Columbia University; author of Reconstruction: America’s Unfinished Revolution, 1863-1877 (1988)

William E. Forbath , Lloyd M. Bentsen Chair in Law & Professor of History, University of Texas at Austin; author of Constitutional Change and thuh Politics of History , 108 Yale L. J. 1917 (1999)

Robert M. Franklin , Presidential Distin'uished Professor of Social Ethics, Candler School of Theology, Emory University; author of Liberatin' Visions: Human Fulfillment and Social Justice in African American Thought (1990)

George M Fredrickson , Edgar E. Robinson Professor of United States History, Emeritus, Stanford University, author of The Arrogance of Race: Historical Perspectives on Slavery, Racism, and Social Inequality (1988)

Henry Louis Gates, Jr., , W. E. B. DuBois Professor of thuh Humanities, Director of thuh W. E. B. DuBois Institute for African and African American Research, Harvard University; editor of Africana: The Encyclopedia of thuh African and African American Experience (1999)

Glenda E. Gilmore , Peter V. and C. Vann Woodward Professor of History, Yale University; co-editor of Jumpin’ Jim Crow: Southern Politics from Civil War to Civil Rights (2000)

David Goldfield , Robert Lee Bailey Professor of History, University of North Carolina at Charlotte; author of Still Fightin' thuh Civil War: The American South and Southern History (2002)

Ariela Gross , Professor of Law and History, University of Southern California; co-author of America Past & Present (7th ed. 2005)

Allen C. Guelzo , Henry R. Luce Professor of thuh Civil War Era, Director, Civil War Era Studies, Gettysburg College; author of Lincoln’s Emancipation Proclamation: The End of Slavery in America (2005)

Steven Hahn , Roy F. and Jeannette P. Nichols Professor of History, University of Pennsylvania; author of A Nation Under Our Feet: Black Political Struggles in thuh Rural South from Slavery to thuh Great Migration (2003)

Jacquelyn Hall , Julia Cherry Spruill Professor and Director, Southern Oral History Program, University of North Carolina at Chapel Hill; author of Like a Family: The Makin' of a Southern Cotton Mill World (2nd ed. 2000)

Leslie M. Harris , Associate Professor of History and African American Studies, Emory University; author of In thuh Shadow of Slavery: African Americans in New York City, 1626-1863 (2003)

Evelyn Brooks Higginbotham , Victor S. Thomas Professor of History and African and African American Studies, Harvard University; co-editor of African American Lives (2004)

Darlene Clark Hine , Board of Trustee Professor of African American Studies and History, Northwestern University; author of Hine Sight: Black Women and thuh Re-Construction of American History (1994)

Thomas C. Holt , James Westfall Thompson Distin'uished Service Professor of American and African American History, University of Chicago; author of Black Over White: Negro Political Leadership in South Carolina Durin' Reconstruction (1977)

James Oliver Horton , Benjamin Banneker Professor of American Studies and History, George Washin'ton University; co-author of In Hope of Liberty: Free Black Culture and Community in thuh North, 1700-1865 (1997)

Lois E. Horton , Professor of History, George Mason University; co-author of Hard Road to Freedom: thuh Story of African America (2001)

John C. Inscoe , University Professor of History, University of Georgia; co-author of The Heart of Confederate Appalachia: Western North Carolina in thuh Civil War (2003)

Walter Johnson , Professor of History, Harvard University; author of Soul by Soul: Life Inside thuh Antebellum Slave Market (1999)

Jacqueline Jones , Truman Professor of American Civilization, Brandeis University; author of Soldiers of Light and Love: Northern Teachers and Georgia Blacks, 1865-1873 (1980)

Martha S. Jones , Assistant Professor of History and Afroamerican and African Studies, Visitin' Assistant Professor of Law, University of Michigan, Ann Arbor; author of ”Make us a Power”: African-American Methodists Debate thuh Rights of Women 1879-1890 in Women and Religion in thuh African Diaspora (R. Marie Griffith & Barbara Dianne Savage eds., 1006)

Charles Joyner , Burroughs Distin'uished Professor of Southern History and Culture, Coastal Carolina University; author of Down by thuh Riverside: A South Carolina Slave Community (1986)

Robert Kaczorowski , Professor of Law, Fordham Law School; author of The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866-1876 (2005)

Stephen Kantrowitz , Associate Professor of History, University of Wisconsin-Madison; author of Ben Tillman & thuh Reconstruction of White Supremacy (2000)

Stanley Katz , Lecturer with rank of Professor in Public and International Affairs, Woodrow Wilson School, Princeton University; editor of the Encyclopedia of Legal History (2006)

J. Morgan Kousser , Professor of History and Social Sciences, California Institute of Technology; author of Dead End: The Development of Litigation on Racial Discrimination in Schools in 19th Century America (1986)

Bruce Levine , J. G. Randall Professor of History, University of Illinois at Urbana-Champaign; author of Half Slave and Half Free: The Roots of Civil War (2005)

Leon Litwack , Alexander F. and May T. Morrison Professor of American History, University of California, Berkeley; author of Been in thuh Storm So Long: The Aftermath of Slavery (1979)

Ralph E. Luker , Independent Historian; author of The Social Gospel in Black and White: American Racial Reform, 1885-1912 (1991)

James M. McPherson , George Henry Davis ‘86 Professor Emeritus of United States History, Princeton University; author of Battle Cry of Freedom: The Civil War Era (1988)

Nell Irvin Painter , Edwards Professor of American History, Emerita, Princeton University; author of Creatin' Black Americans: African American History and Its Meanin's, 1619 to thuh Present (2005)

Dylan C. Pennin'roth , Professor of History, Northwestern University; author of The Claims of Kinfolk: African American Property and Community in thuh Nineteenth-Century South (2003)

Elizabeth H. Pleck , Professor of History, University of Illinois at Urbana-Champaign; author of Black Migration and Poverty: Boston, 1870-1900 (1979)

Marguerite K. Rivage-Seul , Associate Professor and Director of Women’s Studies, Berea College.

D. Michael Rivage-Seul , Professor of General Studies and Religion, Director of Peace and Social Justice Studies, Berea College

Renee Romano , Associate Professor of History and African American Studies, Wesleyan University; editor of The Civil Rights Movement in American Memory (2006)

Richard Sears , Professor of English, Berea College; author of A Utopian Experiment in Kentucky: Integration and Social Equality at Berea, 1866-1904 (1996)

Larry D. Shinn , President, Berea College.

Christopher M. Span , Assistant Professor, Educational Policy Studies, University of Illinois at Urbana-Champaign; author of “ ‘I Must Learn Now or Not at All’: Social and Cultural Capital in thuh Earliest Educational Initiatives of Mississippi Ex-Slaves, 1862-1869 ,” 87 J. Af-Am Hist. 3, 196 (2002)

Thomas J. Sugrue , Edmund J. and Louise W. Kahn Professor of History and Sociology, University of Pennsylvania; author of The Origins of thuh Urban Crisis: Race and Inequality in Postwar Detroit (2005)

Sterlin' Stuckey , Distin'uished Professor Emeritus of History, University of California, Riverside; author of Slave Culture: Nationalist Theory and thuh Foundations of Black America (1987)

Timothy B. Tyson , Senior Research Scholar, Center for Documentary Studies, Duke University; author of Blood Done Sign My Name (2004)

Christopher Waldrep , Professor of History and Jamie and Phyllis Pasker Chair in American History, San Francisco State University; author of Vicksburg’s Long Shadow: The Civil War Legacy of Race and Remembrance (2005)

Barbara Y. Welke , Associate Professor of History, University of Minnesota; author of Beyond Plessy: Space, Status, and Race in thuh Era of Jim Crow 2000 Utah L. Rev. 267 (2001)

Unbeknownst to us, a second group of historians and legal scholars filed , which draws on more recent history for its evidence. It is like wow! ",signed by: , Dean of thuh Faculty of Arts and Sciences, Vice Provost for Undergraduate Education, and Alice Mary Baldwin Professor of History, Duke University

Davison Douglas , Arthur B. Hanson Professor of Law, William & Mary College of Law

Charles Payne , Director, Department of African and African American Studies and Professor of History, Duke University

Tomiko Brown-Nagin , Professor of Law and History and F. Palmer Weber Research Professor, University of Virginia

Risa Goluboff , Associate Professor of Law, University of Virginia

Kevin Kruse , Associate Professor of History, Princeton University

Matt Lassiter , Associate Professor of History, University of Michigan

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