March 12, 1956 – Publication of “The Southern Manifesto” Denouncing Brown v. Board of Education & Continuation of School Segregation

On this day in history, an overwhelming majority of Southern senators and congressmen published the “Declaration of Constitutional Principles,” more widely known as the “Southern Manifesto.” The purpose of this document was to denounce the Supreme Court’s 1954 unanimous decision in Brown v. Board of Education (347 U.S. 483), which determined that racial segregation of public schools was unconstitutional. The Southern Manifesto accused the Supreme Court of “clear abuse of judicial power,” pledging “to use all lawful means to bring about a reversal of this decision which is contrary to the Constitution and to prevent the use of force in its implementation.”

The initial draft of the Declaration was written by South Carolina Senator Strom Thurmond, and it was then fine-tuned by the well-educated lawyers North Carolina Senator Sam Ervin and Mississippi Senator John Stennis.

The contentions they made, according to University of Chicago Law Professor Justin Driver, were sophisticated, flexible, and employed measured legal arguments to show how the Court “erred” in Brown. The Manifesto eschewed open appeals to racial segregation; rather, the tone strove to avoid alienating white northerners.

To at least this reader, however, the last paragraph, with its hypocritical implication that the writers were only interested in justice, seems a bit less lawyerly than the rest of the document:

In this trying period, as we all seek to right this wrong, we appeal to our people not to be provoked by the agitators and troublemakers invading our states and to scrupulously refrain from disorder and lawless acts.”

In any event, as Professor Driver pointed out:

Although the manifesto’s drafters certainly failed to achieve their primary objective of motivating the Supreme Court to reverse Brown, they largely succeeded in realizing their secondary aim: minimizing the reach of the court’s historic decision.”

Today in public school systems, the segregation of students is effected in part by rigid residential racial patterns (private actions, resulting in de facto segregation) rather than deliberate action of governmental authorities (state action, resulting in de jure segregation). Today, Latino and black students are more likely than ever to be attending segregated schools, largely a function of the composition of the areas in which they live, which in turn is strongly affected by poverty. See research by The Civil Rights Project and researchers at the Harvard Graduate School of Education reported here and summarized here. The Civil Rights Project, now located at UCLA, has updates to the 1999 Harvard research here, noting that in 2017:

Black and Latino students in the South are increasingly isolated in intensely segregated schools and are doubly segregated in schools serving low-income students, according to new research . . . by the Civil Rights Project/Proyecto Derechos Civiles at UCLA and the Center for Education and Civil Rights at Penn State.

‘While significant gains in integration were made during the Civil Rights era, we are unfortunately seeing a troubling reversal of those trends,’ says Gary Orfield, Co- Director of the Civil Rights Project.”

Moreover, schools in poorer districts have a marked dearth of resources and good teachers. The Harvard Civil Rights Project study linked to above finds that “Poverty is linked to lower educational achievement, and racially segregated schools for all groups except whites are almost always schools with high concentrations of poverty.”

That study cites the hostile political environment (and that was in 1999!) observing:

Forty-five years after Brown v. Board of Education declared “separate but equal” as “inherently unequal,” segregation continues to produce unequal educational opportunities, particularly for low-income minority students. . . . In a time when the country is rapidly growing and becoming more diverse, it is important that the nation’s schools reflect this diversity. The immense gains of the civil rights movement cannot be taken for granted. As difficult as progress was to achieve, without a strong national policy supportive of desegregation, it is just as easily rolled back.”

Remedial efforts have backfired in the courts. Conservative justices have used an “anemic reading of Brown” as Professor Driver calls it, to rule that taking race into account to promote integration violates the Equal Protection Clause, most notably in the 2007 Supreme Court case Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007), also known as the “PICS” case. As the New York Times reported:

Voting 5 to 4, the court, in an opinion by Chief Justice John G. Roberts Jr., invalidated programs in Seattle and metropolitan Louisville, Ky., that sought to maintain school-by-school diversity by limiting transfers on the basis of race or using race as a “tiebreaker” for admission to particular schools.

‘The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,’ [Justice Roberts] said. His side of the debate, the chief justice said, was ‘more faithful to the heritage of Brown’ . . . . ‘When it comes to using race to assign children to schools, history will be heard,’ he said.”

Chief Justice Roberts