Brown: Plessy to Abbott

The decision in the now historic Brown vs. Board of Education of Topeka case heralded a new era for race relations in this country. That decision’s principle is deservedly recognized as a watershed moment in judicial, social and educational history. However, during the 50th anniversary of that decision, commentators question whether Brown’s promise of fully integrating the nation’s public schools has been fulfilled.

When viewed in context, Brown has been a spectacular success and has changed American life more than could have been imagined at the time the decision was handed down. The goal of the Brown litigants was to end state-sanctioned racial segregation in public education. As a result of their efforts, the United States Supreme Court unanimously declared, “We conclude that in the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” Accordingly, the nation’s attitude toward segregated lunch counters, restrooms, water fountains and a whole host of other “separate but equal” public facilities began to change. The Civil Rights Act of 1964, and the Voting Rights Act of 1965, which grew out of the Brown decision had a positive impact on employment, housing and a whole host of other social concerns.

Dred Scott For those who point to Brown, and to the fact that schools are becoming more segregated today, a brief historical review is important. A good beginning for this review is the Dred Scott decision issued by the Supreme Court on March 5, 1857. In that case, Dred Scott, a former slave, brought an action in trespass against John Sandford, alleging that Sandford had assaulted Scott, his wife and his children. The Supreme Court held that the constitutional guarantees contained in the Bill of Rights did not extend to Scott because the protections contained in that document were reserved for those who were citizens of the state in which they lived when the Constitution was adopted. Scott, because he was a former slave, was not permitted to become a citizen and no state had the power to grant him citizenship. In observing the state of affairs of blacks, the Court noted that at the time the Declaration of Independence and the Constitution were adopted, general attitudes in Europe and America reflected the following thinking:

Slaves had, for more than a century before, been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. Thus, the Court seized on the principal that states’ rights included the authority to adopt legislation limiting the civil rights of slaves and former slaves for their benefit.

Plessy vs. Ferguson Thirty-nine years later, the Supreme Court’s recognition of civil rights had progressed to the point that blacks had at least certain rights in public accommodations. In another decision, Plessy vs. Ferguson, Plessy asserted that since he was seven-eighths Caucasian and one-eighth African, he was entitled to be seated in an intrastate passenger railcar that was designated for whites. In the Plessy decision, the Court, after duly noting the great principle that, “All persons without distinction of age, or sex, birth or color, origin or condition, are equal before the law…,” then turned that principle on its head by noting further that:

When this great principle comes to be applied to the actual variations and conditions of persons in society, it will not warrant the assertion that men and women are legally clothed with the same civil and political powers, and that children and adults are legally to have the same functions and be subject to the same treatment; but only that the rights of all, as they are settled and regulated by law, are equally entitled to the paternal consideration and protection of the law for their maintenance and security.

Brown Decision By 1954, forty-eight years after the Plessy decision, the social evolution of the Supreme Court had progressed substantially and became more sensitive to the rights of blacks. The Brown Court quoted with approval a Kansas decision that found:

Segregation of white and colored children in the public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the Negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to retard the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racially integrated school system.

The Brown Court finalized its opinion with one of the most quoted phrases in Supreme Court jurisprudence: “We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”

Other Cases In the intervening half-century since the Brown decision, the Court has returned to the issue of race in education on several occasions. In the matter of Regents of University of California vs. Bakke, the Court held that racial quotas were unconstitutional. The Court reasoned that no constitutional right guaranteed that citizens would enter the various professions in lockstep proportion to their representation in the general community. Therefore, the state could not reserve spaces for certain races based simply on that race’s representation in the general community.

In Milliken vs. Bradley, after a district court found that governmental actions at all levels had combined to establish and maintain a pattern of residential segregation throughout the city of Detroit, the court ordered the implementation of a cross-district school desegregation plan in order to truly integrate the school systems. In overturning the district court, the Supreme Court held that it must be shown that racially discriminatory acts of the state or local school districts, or of a single school district, have been a substantial cause of interdistrict segregation.

The Court provided its most recent guidance in Grutter vs. Bollinger where the Court held that a state may consider an applicant’s race in order to ensure the educational benefits that flow from a diverse student population. Thus, the Supreme Court determined that while a state may not mandate racial quotas in its educational programs, nor may it implement interdistrict desegregation remedies, racial diversity is an important enough factor to warrant consideration in providing an education to pupils.

New Jersey Today New Jersey has one of the strongest anti-discrimination laws in the country. N.J.S.A. 10:5-4 provides that:

All persons shall have the opportunity to obtain employment, and to obtain all the accommodations, advantages, facilities, and privileges of any place of public accommodation, publicly assisted housing accommodation, and other real property without discrimination because of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, familial status, disability, nationality, sex or source of lawful income used for rental or mortgage payments, subject only to conditions and limitations applicable alike to all persons. This opportunity is recognized as and declared to be a civil right.

However, despite the state’s strong stance against discrimination, New Jersey’s public education system ranks as one of the most segregated systems in the union. Earlier this year, Harvard University’s Civil Rights Project found that 50.8 percent of African-American students in New Jersey attend schools that are 90 to 100 percent minority, making New Jersey the fifth most segregated state in the nation. The same study found that 41.8 percent of New Jersey’s Latino students attend schools that are 90 to 100 percent minority.

The apparent inconsistency between enumerated rights and actual practice is longstanding and has interwoven itself into the fabric of New Jersey society. Initially, the New Jersey Legislature first undertook to provide public education in 1829. In 1844, the state constitution was amended to provide that the public school system be “for the equal benefit of all the people of the state.” In 1850, however, the New Jersey General Assembly expressly sanctioned segregated schools when it granted Morris Township the authority to establish separate schools for black and white children.

In 1863, the superintendent of public instruction determined that all local school trustees had the authority to segregate their schools. The majority of segregated schools were located in southern New Jersey where citizens had close family and business ties to the South and where the African-American population was larger. Northern New Jersey, on the other hand, had relatively few black students; integration was more acceptable where it involved a limited number of black children.

In 1881, the New Jersey Legislature enacted pamphlet law 1881, making it illegal to exclude a child between the ages of 5 and 18 from a public school because of religion, nationality or color. However, despite the statute, the Burlington City Public School District, which consisted of four schools, reserved three of them for white children. In May 1883, Jeremiah Pierce, a mulatto, sought to enroll his children in the school closest to his home. However, he was rejected based on the district’s practice of reserving one school for black students. After Pierce filed suit seeking a court order requiring the district to admit his children, the Court ruled that the district could not exclude the children on the basis of their color. Despite this ruling many African-American families preferred to keep their children in segregated schools. They did this in fear of retaliation and in order to prevent their children from being physically and psychologically abused by intolerant white teachers and students.

When the Brown decision was handed down, African-Americans of the day were both skeptical and fearful. “We felt that it would take years to integrate the schools,” says Agnes Bell, a former New Jersey teacher who was in college in South Carolina at that time. “We felt that the whites wouldn’t accept us in their schools, so we didn’t really worry about the decision.” Olea Lyles, who saw her children transferred from all-black schools in southern New Jersey to nearby white schools voiced similar sentiments. “I was against integration because I was afraid my children would be abused in the white schools.” Lyles also recalled run-ins with white teachers who refused to teach black students or who placed them in the back of the room and ignored them.

The spark to end segregated schools throughout the North came in the late 1940s after the end of World War II. Facing the influx of a large number of African-American migrants from the South, as well as the hypocrisy of fighting Nazi racism against Jews and gypsies in Europe while sanctioning racism back home, many northern legislatures began to reconsider their attitudes on race relations. But more pragmatically, this population shift brought with it a large number of blacks and their political power. Politicians of the day were astute enough to recognize the potential and responded to the needs of their new constituency.

This tremendous migration of southern blacks tended to heighten racial tensions. Many school officials who tolerated integration when the number of black children seeking admission to white schools was small, began to reverse their positions when faced with an ever-increasing volume of southern blacks. Between 1919 and 1935, the number of separate schools for African-American students in New Jersey increased by 35 percent. Many white school officials argued that the black students, who had only recently arrived from the South, were poorly educated and not educationally prepared for northern schools. Professor Davison Douglas from the William and Mary School of Law in Virginia reports that the Trenton superintendent of schools took this position in 1927:

The problem of retardation is more serious among colored children than among any other racial group. I am inclined to believe that the further expansion of segregation…is the only real practical solution…The low educational age of most of those coming from the South…adds materially to our problem.

Douglas provides another example of the thinking of the times via a principal in Atlantic City who explained his support for segregation:

I believe in segregation….black children are like little animals. There is no civilization in their homes. They shouldn’t hold up white children who have had these things for centuries. They are not as clean. They are careless about their bodies. Why should we contaminate our race?

Some leading African-Americans of the day were also skeptical of integration in the schools. Even the esteemed black historian and sociologist, W.E.B. DuBois, concluded that the psychological damage inflicted on black children in racially mixed schools outweighed the advantages of school integration. This position was supported by blacks coming from the South who were more familiar and comfortable with segregated schools.

Douglas also reports that over 100,000 blacks migrated to New Jersey between 1910 and 1940, resulting in considerable political influence. As a result, the General Assembly created a new state agency in 1938, the New Jersey State Temporary Commission on the Condition of the Urban Colored Population. The Commission issued a report in 1939 that detailed the extent of segregation in the schools of New Jersey and recommended further study of the issue.

NAACP Achievements The push for integration in New Jersey was spearheaded by the National Association for the Advancement of Colored People. The NAACP lobbied state and local officials to end school segregation and solicited the support of local churches, labor unions and other groups supportive of school integration. In Camden, the NAACP urged the school board to end the historic practice of segregated schools. When the board responded that segregated schools continued to exist because black parents had not requested transfers to white schools, the NAACP initiated an extensive public service campaign urging black parents to enroll their children in their neighborhood schools instead of more distant segregated schools.

Additionally, the NAACP lobbied the Legislature to oppose school segregation. A new state agency, the Division Against Discrimination, announced its opposition to school segregation, and in 1945, with the adoption of a new constitution, New Jersey became the first state in the nation to expressly prohibit school segregation. Governor Alfred Driscoll then directed the Division Against Discrimination to take aggressive action to eliminate school segregation and granted the Division the authority to withhold state funds from noncompliant districts. This threat, combined with the Division’s ability to negotiate with these districts, resulted in the cessation of segregated school districts in thirty of forty-three districts that maintained segregated schools by the end of 1948. When the NAACP filed suit against Camden, the board voted to end segregation by eliminating dual school districts. The remaining segregated districts soon followed suit.

Abbott Decision Even after Brown, studies show that the level of school segregation has actually increased since 1988 in New Jersey. Despite the New Jersey Supreme Court decision in Jenkins, providing that the Legislature had granted the commissioner broad powers to end de facto segregation in certain circumstances, progress has been slow in coming. The Abbott litigation, while essentially a funding matter, necessarily involves the issue of segregation.

Initiated in 1981 by the Education Law Center, Abbott has been extremely successful in establishing that the unequal funding mechanism promulgated by the state has deprived urban students of their constitutional right to the same thorough and efficient education received by their suburban peers.

Unfortunately, New Jersey’s judicial history of school segregation litigation is ambivalent at best. While the state supreme court ruled in Jenkins that the commissioner had the authority to address de facto segregation, the federal District Court of New Jersey ruled that authority has limits. For example, in 1971, Vivian Spencer filed a complaint in New Jersey federal court asserting that the state’s public schools in various school districts were racially imbalanced and therefore in violation of the equal protection clause of the 5th Amendment to the United States Constitution. The court found that, “Even with the concededly affirmative duty to integrate [the public schools], the [commissioner’s] standard is still one of reasonableness. If the drawing of district lines is reasonable and not intended to foster segregation then that action satisfies the mandate of the United States Supreme Court.” The court went on to hold that school district lines based on municipal boundaries are not unreasonable. The court reasoned that because de facto segregation existed through no discriminatory action of state officials, no remedy was available to Ms. Spencer.

The victory of the Brown case is almost universally accepted today; segregation is harmful to minority students and integration benefits both minority and majority students academically, as well as socially. It allows them to learn and respect different viewpoints, and encourages the acceptance and tolerance of those divergent views.

During the Brown era, the migration of blacks to northern cities, combined with a political awareness of the voting power of these blacks, helped spur the integration movement. Add to these factors the legal pressure and activism of civil rights groups that convinced blacks of their ability to affect social change, and the result was an atmosphere ripe for injustice to be challenged. Today, the migration of additional populations to this country should serve as an indication that diversity will continue to be a topic of concern for the foreseeable future. Therefore, Brown should be seen as a monumental step in the elimination of segregation throughout this nation.

—By Carl Tanksley Jr., Esq., Assistant Counsel, New Jersey School Boards Association