chapter 6 False Hope
Page 73 →After losing her job as a teacher and working for three years as a domestic, my mother was able to find a job as a dormitory matron at Claflin University. She enjoyed providing guidance to young women facing the challenges of transitioning to adulthood. Although this position was far below her skill level, it provided her with a meaningful opportunity to become relevant again. Her self-esteem improved measurably, and a semblance of normalcy returned to the family. My mother always carried a quiet dignity throughout her life. In the face of adversity, she remained stoic and accepted whatever burden was placed upon her. She understood the price she would have to pay to advance the cause of freedom. Despite her unhappiness, we never heard her complain. She never cursed the darkness. Throughout her travails, my mother reminded us that her experiences paled in comparison to the hardships suffered by the Briggs’s plaintiffs.
The Briggs case began with an effort by Black citizens of Clarendon County to secure the same level of school bus transportation for Black children that white children enjoyed. Clarendon County is adjacent to Orangeburg County where I grew up. In 1947 (the year of my birth), many Black children of Clarendon County had to walk 18 miles or more roundtrip to an inferior school. The state of South Carolina provided thirty-three buses to transport white children but provided no transportation assistance to Black children, ostensibly because Black residents did not pay enough taxes.
Clarendon County has been described as a place where the lives of Black folks had changed the least since the end of slavery. In 1950, Page 74 →the county had a population of about 32,000, and 70 percent of its residents were African American. There were about 4,000 farms in the county and white people owned about 85 percent of the land.1
Levi Pearson and other parents of Black children of Clarendon County petitioned the school board for equal transportation services for their children. When the school board denied the request, Pearson filed a lawsuit in federal district court to enforce the “separate but equal” mandate of the US Supreme Court’s Plessy v. Ferguson decision. Unfortunately, Pearson filed his suit in the wrong school district, and the case was dismissed.2
The effort was renewed when more than one hundred Black residents of Clarendon County signed a petition to demand broader educational equality. The petition was organized by Reverend Joseph Armstrong DeLaine and Modjeska Monteith Simkins, noted civil rights leaders. Reverend DeLaine, a teacher at a local school in Silver, South Carolina, was soon fired.3 His wife Mattie was also fired from her position at Scott’s Branch school, as were all the other teachers who signed the petition. Firing schoolteachers was a common tactic used by the white establishment to retaliate against Black people who demanded their civil rights. One of my father’s sisters, Nora Bowers Jackson, taught in Manning, South Carolina, the county seat of Clarendon County.
Harry Briggs Sr., a World War II veteran, joined a lawsuit asking the Clarendon County School Board to provide total equality across all educational facilities. The scope of the suit was expanded, at the urging of South Carolina federal district court Judge J. Waties Waring (1880–1968) from an enforcement of the “separate but equal” mandate of the 1896 US Supreme Court’s Plessy v. Ferguson4 decision to a frontal attack on public school segregation as unconstitutional. Harry and Eliza Briggs, the named plaintiffs in the case, immediately lost their jobs—he as a service station attendant and she as a maid. Mr. Briggs was forced to relocate to Florida for the next ten years to support his family. Reverend DeLaine, a close friend of my family, Page 75 →moved to New York after an attempt was made on his life and after his family home and church in Clarendon County were burned.
A three-judge panel of the district court ordered the Clarendon County school district to “promptly” furnish equal educational facilities to Black children. The “separate but equal” doctrine had been upheld for another day, with a mandate to make the treatment equal. On the panel, the courageous Judge Waring filed a dissent to the majority opinion that would later be supported by the US Supreme Court. He wrote:
There is absolutely no reasonable explanation for racial prejudice. It is all caused by unreasoning emotional reactions and these are gained in early childhood. Let the little child’s mind be poisoned by prejudice of this kind and it is practically impossible to remove these impressions, however many years he may have of teaching by philosophers, religious leaders or patriotic citizens. If segregation is wrong, then the place to stop it is in the first grade and not in graduate colleges . . . Segregation in education can never produce equality . . . Segregation is per se inequality.5
After his dissenting opinion in Briggs and other unpopular judicial decisions enforcing the rights of African Americans, Judge Waring’s house was attacked, and he was later ostracized from the community in which he grew up and found it necessary to move away from Charleston. He took up residency in New York for the next sixteen years until his death. After he died, Judge Waring’s body was returned to Charleston, where he was buried in the Waring family plot at Magnolia Cemetery. Approximately 200 African Americans and less than a dozen white persons attended his burial. Judge Waring’s legacy received recognition many years after his death when local politicians supported the Federal Judiciary in renaming the Charleston Federal Courthouse the J. Waties Waring Judicial Center.
Page 76 →Twenty years after his self-imposed exile from South Carolina, I taught Contract Law to his great-nephew, Thomas R. Waring III, at USC, where I was the first full-time African American law professor. While Tom had never met his great uncle, he referred to his uncle as a “strange bird.” This was not too surprising since there was tension in the Waring family over Judge Waring’s divorce from his Charleston-born wife of more than thirty years and remarriage to a northern matron. Tom’s father, Thomas R. Waring Jr (1907–93), nephew of Judge Waring, and editor of the Charleston News and Courier (a leading newspaper in that city), strongly disagreed with Judge Waring’s earlier decision invalidating the South Carolina Democratic Party’s white primary. Because South Carolina was virtually a one-party state, the denial of Black participation in the primary was tantamount to disfranchising them.6
When the Brown decision was issued, African Americans reveled in its moral clarity. Chief Justice Earl Warren read the unanimous decision from the US Supreme Court bench:
In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education . . . a right which must be made available to all on equal terms. . . . To segregate [Black children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community. . . . We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal.7
The fact of its unanimity signaled that the court was clear about how the United States should remedy its ugly and shameful racial past and move forward into a colorblind future. However, we later found out that this unanimity masked the tensions of a Court divided on how it should address the race question.
Page 77 →Although Brown was unanimously decided in 1954, at the end of the first argument of the case in 1952, only a plurality of the court was in favor of eliminating school segregation. Although racial attitudes of white people toward Black people were changing after World War II, the Justices who sat on the Brown court all grew up during a time of white supremacy. The only thing the Brown justices had in common was they were appointed for their economic liberalism and views embracing judicial restraint toward New Deal social legislation.
Would it have been better if Brown had been decided by a 5–4 vote that would have reflected divisions in the country with competing ideas in concurring and dissenting opinions about how the nation should deal with school segregation? Or was the moral force of unanimity needed on this issue? In 2012, I heard a colloquy at Harvard Law School between then Justice Stephen Breyer and former Justice David Souter. Both were of the view that 5–4 decisions simply reflect the politicization of the populous. The important factor is the integrity used in deciding a case. It is because of that integrity that Supreme Court decisions are accepted by the public without a populous revolution.
Although the court’s 1954 decision outlawed racial segregation in public schools, the Justices put off deciding how to remedy the problem for another year. They were trying to determine whether gradual or swift desegregation would be preferable, measured by likely white resistance. In its remedial decision in 1955, the court delegated to local federal district courts the task of designing remedies, with the mandate that desegregation plans from school boards be considered with “all deliberate speed.” The response in South Carolina was tepid, as the district court pulled a sleight of hand by outlawing racial segregation, but refusing to require desegregation.
It angers me that my mother was prevented from pursuing her chosen profession for seven years for an act of conscience. I often Page 78 →wonder whether she would have put her career on the line had she known how fragile the Brown opinion was. The “all deliberate speed” mandate of Brown provided false hope to Black folks. Desegregation was neither deliberate nor speedy. It would take another fifteen years to realize any semblance of the abolition of the dual education system. In Swann v. Charlotte-Mecklenburg Board of Education (1971), the US Supreme Court finally issued the mandate that segregation be dismantled “root and branch” and outlined specific factors to be considered to eliminate the effects of segregation.8
The Supreme Court in the Brown case was conflicted over how the decision should be enforced. Despite the warnings of several members of the court that outlawing school segregation would be met with resistance, they did not anticipate how vehement the backlash would be.
We began to see the Supreme Court retreat from court-ordered desegregation in the 1970s. The court retreated from vigorous enforcement of desegregation when lower courts tried to address a diminishing number of white students in districts subject to court orders by including suburbs in remedying urban segregation. Because the court confined its remedies to individual school districts, white families simply moved thereby defeating integration efforts.
The US Supreme Court presided over by Chief Justice John Roberts for the past twenty years has been particularly hostile to school integration. The court shows increasing hostility toward the use of racial classifications even when school systems pursue voluntary school integration. The court has insisted on color blindness in assigning students to schools. The court’s preoccupation with affirmative action explains the judicial focus on colorblindness as the equivalent of equal protection of the laws, particularly where scarce resources like places in elite universities, public contracts, or employment are at issue.
Has Brown been perverted by the courts over the years? In a sense, we have come full circle on school desegregation since Brown. Page 79 →We are now seeing the resegregation of the public school system since the courts have abandoned enforcement because they do not want to tackle de facto segregation resulting from individual choice establishing segregated residential patterns. With recent Supreme Court decisions making it harder to achieve and maintain school desegregation, public school children are more racially isolated now than at any point since Brown was decided. This backsliding makes it even more critical to continue defending the principles articulated in Brown and leading the ongoing struggle to provide an equal opportunity to learn for children in every one of our nation’s classrooms.
The legal victory in Brown did not transform the country overnight. However, Brown and the struggles to implement its vision over the subsequent half century did end Jim Crow laws mandating racial separation. Striking down segregation in the nation’s public schools provided a major catalyst for the civil rights movement, making possible advancements in desegregating housing, public accommodations, institutions of higher education, and enhancing the right to vote. The decision gave hope to Black Americans by permanently discrediting the legal rationale underpinning the racial caste system that had been endorsed or accepted by government at all levels.
Although the promise of equal educational opportunities still has not been met, I think my mother would be pleased that her sacrifice was not in vain. While the goal of education equality has been elusive since the promise of the Brown decision, I now better understand how history often betrays Black Americans.
Impact of Barack Obama’s Election
I was staying at the Mayflower Hotel on Connecticut Avenue in Washington, DC, the evening of June 7, 2008. After a long and tiring day of legal meetings, I heard a news flash on the television that Hillary Clinton had ended her campaign for the Democratic Party’s nomination for president of the United States. She endorsed Barack Obama, who instantaneously became the presumptive party Page 80 →nominee. While somewhat expected, the news stopped me in my tracks. It caused me to reflect on the historic significance of the first Black person becoming the nominee for president of one of the two major political parties. Unable to contain my excitement, I could not sit still in my hotel room. I walked three blocks down Connecticut Avenue, across Farragut Square to Lafayette Square, across from the White House. I just stood there in silence gazing at the brightly lit White House.
My eyes welled up with tears as I thought about the generational struggle for civil rights. I thought about the price my family paid, along with many other Black families, to get to this moment in history. I thought about my paternal great-grandfather who escaped being lynched in Clarendon County, South Carolina. I thought about the sacrifice my mother made—fired from her job as a public schoolteacher for seven years—because she dared to demand the immediate desegregation of the public schools in South Carolina after the Brown v. Board of Education decision was handed down in 1954. I thought about the hardships I endured in attending the recently desegregated University of South Carolina in 1964. I thought about how narrowly I escaped serious bodily injury in 1965 at the hands of a group of white thugs, who chased the car I was driving, with two white women, on a desolate road in North Carolina one night en route to a civil rights conference in Washington, DC. I thought about the three Black students massacred by white highway patrol officers at South Carolina State College in 1968, in my hometown of Orangeburg, for exercising their First Amendment right of peacefully picketing a racially segregated bowling alley. I thought about the countless Black folks I had known, who suffered under the boot of racial oppression that devalued their worth and treated them as second-class citizens.
After winning the nomination, Barack Obama ran an animated campaign with his signature chant, “Fired up! Ready to go!”9 and a hopeful and bold vision of “Yes We Can.” Confronted with a severe Page 81 →economic crisis that devastated the job market and threatened the wealth of many Americans, Obama appealed to a wide and diverse swath of America, who believed that their lives would be improved under his policies. On election night, the young mixed-race, president-elect’s vision for America reached its apotheosis in his Chicago victory speech to the nation. In eloquent and optimistic prose, he tried to put to rest the question of whether the country could ever reconcile the contradiction enshrined in its founding document of a new nation dedicated to the principles of liberty and equality while protecting the status quo of enslavement in the very same document: “If there is anyone out there who doubts that America is a place where all things are possible; who still wonder if the dream of our Founders is alive in our time; who still question the power of our democracy, tonight is your answer.”
In a column in the New York Times the next day, Thomas Friedman summed up the historic event:
And so it came to pass that on Nov. 4, 2008 . . . the Civil War ended, as a black man—Barack Hussein Obama—won enough electoral votes to become president of the United States.
Despite decades of civil rights legislation, judicial interventions and social activism—despite Brown v. Board of Education, Martin Luther King’s I-have-a-dream crusade and the 1964 Civil Rights Act—the Civil War could never truly be said to be over until America’s white majority actually elected an African-American as president.
That is what happened, . . . and that is why we wake up to a different country. Yes, the struggle for equality is never done. But we can start afresh now from a whole new baseline. Let every child and every citizen and every new immigrant know that from this day forward: Everything really is possible in America.
Page 82 →When Barack Obama achieved the improbable dream of the presidency, many of us aging baby boomers finally realized the fruits of our forty-nine-year seemingly impossible journey. In the 1960s, we dreamed of a new order of racial and gender equality, self-determination for oppressed peoples and nations around the globe, and an end to war and the embrace of peace and love. Our leaders were young and idealistic. We reveled in the style and intelligence of our young prince of Camelot, John Kennedy; were swayed by the moral authority of Martin Luther King Jr., who believed that nonviolent passive resistance was the best response to violence and oppression; and were true believers in Bobby Kennedy’s crusade to seek a newer world.
But when Donald Trump was elected to succeed Barack Obama’s historic presidency, history betrayed us again, as it did at the end of Reconstruction. Trump stood for the polar opposite of what Obama believed in. Trump despised Obama and campaigned on a theme of racial bigotry, questioning his birthright citizenship, with the aim of undoing the policies and programs, especially Obamacare, that Obama had put in place. Further, Trump has a pathological obsession that he deserves the Nobel Peace Prize because Obama received it in 2009. Trump has done very little to enhance peace in the world to warrant receipt of the award.
After Trump’s election, predictably, the prophecy about his disrespect for the Constitution and the rule of law came to pass. President Trump was impeached twice by the US House of Representatives. This was the first time in American history that a president has been impeached two times. His first impeachment was on December 18, 2019, under two articles of impeachment for abuse of power and obstruction of Congress. Trump was accused of coercing a foreign power, Ukraine, to assist in rigging the 2020 presidential election process in his favor, and allegedly obstructing Congress’s attempts to investigate this activity. In the trial that followed in the Senate, he was acquitted by a margin of 48–52 on the first count with Mitt Page 83 →Romney joining all Democrats and Independents in voting to convict. On the second count, all Senators followed their party line with a vote count of 47–53.
Trump’s second impeachment resulted from his alleged failed attempt to overturn the popular vote of the electorate in the 2020 presidential election. His actions included an hour-long conversation with the Republican Secretary of State of Georgia to pressure him, under threat of a criminal prosecution, to find enough votes to overturn the Georgia results in favor of Joseph Biden. Allegations of fraud in the election process were made by House and Senate Republicans to delay the electoral vote count on January 6, 2021. However, several federal courts and the US Supreme Court had already thrown out more than sixty-three lawsuits filed by Trump because of insufficient evidence of fraud. In addition, the Senate leadership and former Attorney General Barr recognized the legitimacy of Biden’s election.
While Congress was counting electoral votes, Trump held a rally at the Ellipse, across from the White House, of his loyal and misguided supporters, invited to Washington by him, and encouraged them to march to the Capitol. The result was chaos at the Capitol, which was breached, and Congress was prevented for hours from completing its work as the Capitol police battled the rioters for hours until the Capitol was cleared. The violent disturbance put the safety of the entire Congress and the vice president in jeopardy and resulted in the death of a Capitol policeman attempting to protect the US Capitol and its occupants. There were four other deaths that occurred during and after the disturbance.
In response to Trump’s actions and inactions in refusing to quickly quell the mob, the House of Representatives hastily filed an Article of Impeachment against him for “Incitement of Insurrection” and quickly impeached him with bipartisan support. The impeachment article could have been sent to the Senate forthwith if Republican majority leader, Mitch McConnell, had reconvened Page 84 →Senate members from recess while Trump was still in office. McConnell refused to do so. He did not want the trial to occur on his watch. The article was not sent to the Senate until after Biden was sworn in and the new majority leader, Chuck Schumer, had been installed.
The House of Representatives managers presented the article of impeachment to the Senate. In the tally of votes for guilt or acquittal, only seven Republicans joined all Democrats in voting to convict Trump by a vote of 57–43.10 It takes a two-thirds supermajority of the Senate to remove a president from office. The remainder of the Republican caucus voted for acquittal on the theory that, since Trump had left office before he was tried, he could not be convicted because the remedy of trying a former president was not provided in the Constitution. Trump’s term of office had expired, but if he had been convicted, the Senate could have then taken action to bar him from holding a federal office in the future.
Instead, Trump was elected to a second term as president and is now more determined than ever to reign his destructive tendencies on his political enemies, the US Constitution, and the rule of law. He is systematically destroying or corrupting democratic institutions, severely cutting or ending essential social welfare programs that benefit less privileged citizens through executive fiat, attacking civil rights and anti-discrimination laws, ruthlessly deporting undocumented immigrants with violent tactics from Immigration and Customs Enforcement (ICE) agents who have been deployed primarily to Democrat-controlled cities, distancing the United States from long-time foreign allies, and generally ignoring congressional enactments, norms, and the moral underpinning of the rule of law.
The Republican-controlled Congress is complicit in his actions; it refrains from criticizing Trump out of fear of his wrath politically and personally. The conservative majority of the US Supreme Court has also enabled his authoritarian impulses by allowing him to flout laws enacted by Congress in service of its world view of a unitary executive, with control over most, if not all, actions taken by Page 85 →the executive branch. The Court’s enabling actions follow on the heels of its discredited seminal opinion in Trump v. United States.11 In reviewing Trumps’s actions to overturn the results of the 2020 election, the court, in a decision anchored in neither historical precedent or plausible reasoning, ruled that the former president is immune from prosecution for “official” actions taken under his sweeping powers and duties as president.
Since many historical legal remedies are now closed, the only hope of saving our democracy is citizens protest, pushback, and legal action to try to maintain as much of the status quo as possible until the Democrats hopefully regain congressional control in the next congress. It is heartening that we are now seeing the largest nationwide protest gatherings in the country’s history against Trump policies.
These events have taught me the bitter lesson that my mother learned seventy years earlier in seeking educational opportunities for Black children. The present all too often betrays achievements made in the past; it disappoints, it causes us to question progress, it reminds us that history repeats, and just maybe, it reflects an immutable truth that nothing is ever past.
That betrayal of history observed by mother in her day is manifesting itself again, seventy years later, with the US Supreme Court’s further dilution of the effectiveness of the Voting Rights Act of 1965.12 Such dilution is likely to bring about a profound erosion of Black political power. The Act has been the essential foundation of expanded voting power by African Americans, especially in the South with its history of violent Jim Crow voter suppression. The enfranchisement of Black citizens has resulted in the election of thousands of African Americans to political office throughout the nation, including the election of President Barack Obama. The Supreme Court has severely diluted Section 2 of the Act, which prohibits drawing electoral maps that minimize minority voters’ ability to elect candidate of their own choosing. Lacking in understanding Page 86 →and appreciation of the history of the Black struggle for enfranchisement (which continues to this day), the US Supreme Court draws its motivation from the fanciful notion that majority-minority districts discriminate against white people. In a dissenting opinion, Justice Elena Kagan observed: the Act “was born of the literal blood of Union soldiers and civil rights marchers. It ushered in awe-inspiring change, bringing this Nation closer to fulfilling the ideals of democracy and racial equality. . . . This [is the] latest chapter in the majority’s now-completed demolition of the Voting Rights Act.”13 We are already seeing a rapid response to the decision by Southern states to redraw congressional maps to eliminate seats held by Black-elected officials. If these states are successful, we will be witnessing, in effect, the restoration of Jim Crow voter suppression.
At the dawning of the twentieth century, my grandfather, Professor Brown, read from Professor Du Bois’s work, The Souls of Black Folk, that “the problem of the twentieth century is the problem of the color line.”14 Almost one hundred years later at the dawning of the twenty-first century, I would read from Professor John Hope Franklin’s work, The Color Line, that “the problem of the twenty-first century will be the problem of the color line.”15 Professor Franklin’s world view is supported by many leading historians, including Jon Meacham, who has observed that “the saga of race in America is a tragic one—and it unfolds still.”16
Are we any closer to creating a colorblind society now than at any point in the past? My mother confronted that question in her day and concluded that we are far from achieving that ideal. However, she did not despair. She took the long view of history and understood that her life was merely a bridge along the way. Her primary focus was to serve as a role model for other Black citizens who aspired to the same goal of racial equality. Every day of her life was dedicated to encouraging other Black folk to keep fighting for freedom.
Likewise, Professor Richard T. Greener, the first Black professor appointed to the faculty at USC, saw his role during his short Page 87 →Reconstruction tenure there as a role model to inspire Black students at USC and throughout South Carolina to continue their education. In 1873, he brought to the university the intellectual tools to build a first-class school with an integrated faculty and student body. Three years after leaving Harvard College as its first Black graduate, he distinguished himself as a professor who taught mental and moral philosophy, a librarian who revamped an outdated library, and a part-time law teacher while a law student receiving a diploma in 1876. He was an activist who lobbied the South Carolina legislature for free higher education for all, including former slaves and poor white people. Unfortunately, his dream of creating a colorblind school was thwarted soon after his arrival on campus by most white faculty members who resigned and most white students who withdrew from the university. His dream was dashed in 1877 when USC was closed to Black residents at the end of Reconstruction. However, to his credit, many of his Black students later became prominent professional figures in South Carolina.17
In 1973, when I joined the law faculty at USC as its first full-time African American professor, I too viewed my presence primarily as a role model to assist Black students studying there at the time and to encourage Black residents throughout the state to apply to law school, and to recruit additional Black faculty members. As my mother and Professor Greener recognized, I viewed my tenure as a bridge to advance the cause of racial equality. I had no illusion that my appointment was an indication that we were any closer to a colorblind society. That said, since I’ve always held a long view of history, I may be disappointed in the absence of sustained progress, but I am not disillusioned. We must summon the perseverance of our enslaved ancestors and stay in the fight for equal rights and justice, however long it takes.