When Lawyers Go Wrong, Historians Set the Record Straight





Mr. Luker, an Atlanta historian, was co-editor of the first two volumes of The Papers of Martin Luther King. He is the founder of the HNN blog, Cliopatria.

I spent a good share of early October working with a group of historians on an amicus brief that we filed on Tuesday the 10th in two cases that the Supreme Court is scheduled to begin hearing on 4 December. Known formally as Parents Involved in Community Schools v. Seattle School District No. 1 and Crystal D. Meredith, Custodial Parent ... v. Jefferson County Board of Education, et al., they are likely to be among the most important cases that the Court will hear this term.

The cases involve the plans of local school districts in Seattle, Washington, and Louisville, Kentucky, to maintain a semblance of racial integration in their schools. Plaintiffs, in turn, maintain that the plans violate their 14th Amendment rights to equal protection of the laws. Last June, when the Supreme Court agreed to hear the two cases, the Christian Science Monitor offered this summary of their import.

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

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

Essentially, there were no public education systems in the South before the Civil War, so one of Reconstruction’s great accomplishments was to establish systems of public education throughout the region. The Freedmen’s Bureau helped to do that. Because Reconstruction was foreshortened and the forces of reaction took control thereafter, implementation even of segregated public education for African Americans was long-forestalled in the 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 having a population that was two-thirds black, there was no public secondary school for African American children until 1950.) So, in most places, the most difficult struggle initially was insisting that African American children have access to any public education at all.

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

Essentially, the brief identifies three kinds of examples. First, there were instances of antebellum anti-slavery Southern institutions that were open to students regardless of race: Berea College in central Kentucky and Maryville College in east Tennessee. As the 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 the Reconstruction amendments, the Freedmen’s Bureau helped to re-establish these impoverished, racially-inclusive institutions in the early years after the Civil War. By the 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 the Supreme Court found those state laws unconstitutional.

Secondly, there were private institutions founded, under cover of the Reconstruction amendments, by the cooperation of Freedmen’s Bureau with Northern missionaries to the South in Reconstruction. These were institutions that were aimed, primarily, at the education of African American students, but they were commonly open to all students, regardless of race. Washington, DC’s Howard University, named for the Commissioner of the Freedmen’s Bureau, General O. O. Howard, and Fisk University 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 during the fifty years when state law required it.

Finally, there are two major examples of state and local initiatives during Reconstruction, and under cover of the 14th Amendment, to operate public institutions on a non-segregated basis. Louisiana’s constitution of 1868 mandated the 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 the withdrawal of Federal troops, racially inclusive public schools flourished, at least in New Orleans. The other example is in South Carolina, where the Reconstruction regime, operating within the 14th Amendment’s mandate, first provided for the establishment of a public school system and, then, undertook the desegregation of the University of South Carolina. In 1868, the first men of color were elected to the University’s board of trustees. Five years later, African Americans were admitted to the student body. The university’s previously all white faculty and student body reacted by abandoning the institution altogether. After Reconstruction ended in 1877, it was re-organized as an all white institution.

This evidence is joined in the brief by the voices of Senator Charles Sumner and others who framed the Reconstruction amendments to make a strong case that the framers of the 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. There simply is no evidence that the framers sought to preclude such voluntary integration efforts.

We were fortunate to secure Jack Greenberg, the distinguished former Director Counsel of the NAACP Legal Defense and Educational Fund and a professor of law at Columbia, as the Counsel of Record for the brief. The list of historians who signed it speaks for itself, I think:

John Hope Franklin, John Matthews Manley Distinguish Service Professor Professor Emeritus, University of Chicago and James B. Duke Professor Emeritus of History, Duke University; author of Reconstruction After the Civil War (1961)

Louis R. Harlan, Distinguished University Professor, Emeritus, of History, University of Maryland; author of Booker T. Washington: 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 Crumbling: American Reform and the 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 the Struggle for Education During the Age of Booker T. Washington, 1877-1915, Peabody J. Educ. 46 (1990)

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

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

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

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

Orville Vernon Burton, Distinguished 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 the War Was Over: The Failure of Self-Reconstruction in the South, 1865-1867 (1985)

Pete Daniel, Curator, Division of Work and Industry, National Museum of American History; author of Lost Revolutions: The South in the 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 Distinguished 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 the Colonial Period to the Age of Frederick Douglass (2006)

Shelley Fisher Fishkin, Director of the 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 the Politics of History, 108 Yale L. J. 1917 (1999)

Robert M. Franklin, Presidential Distinguished Professor of Social Ethics, Candler School of Theology, Emory University; author of Liberating 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 the Humanities, Director of the W. E. B. DuBois Institute for African and African American Research, Harvard University; editor of Africana: The Encyclopedia of the 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 Fighting the 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 the 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 the Rural South from Slavery to the 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 Making 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 the 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 the Re-Construction of American History (1994)

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

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

Lois E. Horton, Professor of History, George Mason University; co-author of Hard Road to Freedom: the 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 the Civil War (2003)

Walter Johnson, Professor of History, Harvard University; author of Soul by Soul: Life Inside the 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, Visiting Assistant Professor of Law, University of Michigan, Ann Arbor; author of ”Make us a Power”: African-American Methodists Debate the Rights of Women 1879-1890 in Women and Religion in the African Diaspora (R. Marie Griffith & Barbara Dianne Savage eds., 1006)

Charles Joyner, Burroughs Distinguished Professor of Southern History and Culture, Coastal Carolina University; author of Down by the 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 & the 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 the 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 Creating Black Americans: African American History and Its Meanings, 1619 to the Present (2005)

Dylan C. Penningroth, Professor of History, Northwestern University; author of The Claims of Kinfolk: African American Property and Community in the 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 the 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 the Urban Crisis: Race and Inequality in Postwar Detroit (2005)

Sterling Stuckey, Distinguished Professor Emeritus of History, University of California, Riverside; author of Slave Culture: Nationalist Theory and the 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 the Era of Jim Crow 2000 Utah L. Rev. 267 (2001)

Unbeknownst to us, a second group of historians and legal scholars filed a compatible brief in the two cases, which draws on more recent history for its evidence. It is signed by:

William H. Chafe, Dean of the 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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chris l pettit - 10/18/2006

And proof that historians can be helpful in the discussion of law when they utilize their talents and authority properly without ideological bias. This is fantastic because it seems as though the historians, including yourself, are attacking the ideological professors (pseudo-scholars) of law that simply have no idea what the law is or what the history is surrounding this issue and are acting much like KC does when he blathers his ideological nonsense or presumes he has the scholarship to have any sort of legal discussion. Historians filing an amicus brief to set the historical record straight and demonstrate to the ideologically inept what the historical fact is should be a vital part of legal proceedings. Now if only if would be respected as it should, along with briefs by environmental scientists, human rights scholars, feminist scholars, and the like.

I am glad to see historians acknowleging that they can have a significant influence and contribution to the legal system by clarifying history and keeping ideologues from manipulating history or narrow mindedly confining themselves to quasi-legal arguments while understanding that they usually have no authority to argue the theory or substance of the legal framework.

If only this could happen more often...

CP

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