The rest of the argument went no better. Watching helplessly, I sensed that the judges enjoyed giving Bob a hard time. They seemed to resent his assertiveness, and the idea that a black man could lecture them about equality did not appear to sit well with them. When the argument was over, the judges reserved their decision. Outside the courtroom our Cleveland attorneys were worried. Bob appeared unperturbed; it was just another day in court. When we were alone, however, he turned to me: “Don’t ever do that to me again, boy.”
A few weeks after the argument the court denied our appeal in a short, perfunctory decision. I had prepared myself for the loss, but the lack of any meaningful attempt by the judges to analyze the case caught me by surprise. Courts normally write explanatory opinions that detail the facts and discuss the competing legal concepts if the matter before them turns on a serious issue. The object is not only to resolve disputes but also to offer guidance to the legal profession with regard to how similar controversies should be viewed in the future. These judges, however, treated the idea of the rights of minority children in a major city’s entire school system as though they were unimportant. It was as if we hadn’t presented them with anything of substance requiring hard thought and careful analysis. We might as well have been fighting a parking ticket, it seemed.
I was tortured by the horrible, even grandiose thought that my mistake had cost us the case. But I also wondered whether Bob’s assertiveness had offended the judges. Perhaps if he had not adopted that knowing, professorial tone, we could have done better. It was an ugly line of thought, but I kept rolling it around in my head. I had seen white lawyers argue assertively in court, and none of them had Bob’s track record. But white people heard black people differently. It wasn’t just words with meanings. There was a meaning attached to an empowered black man, and it seemed to me that these appellate judges saw his stance as far too righteous. While I finally decided that a white lawyer would have had the same result, because the object was still an assault on a racial fortress that was being protected by a white school board, I could not stop thinking about that sort of implacable prejudice. I was confused and shaken, but Bob had already moved on to the next opportunity to expand the law. My background at Culver, Harvard, and in the military trained me on one objective: winning. In race cases, however, it was so easy to lose. The lesson I had to learn from Bob was to look back only to see how you could sharpen your arguments for the next time: Move on. The work awaited.
10
The Cincinnati School Case
Japanese knotweed is an invasive plant species that came to North America toward the end of the nineteenth century. It goes by many names. In some English-speaking countries it’s called “fleeceflower.” Other names include “pea shooters,” “Hancock’s curse,” “elephant ears,” “monkeyweed” “donkey rhubarb,” as well as American, Japanese, and Mexican bamboo (though it’s not bamboo).
The plant has a complex root system that makes it hard to kill. Only after years of cutting the visible parts can the subterranean roots be weakened enough to kill the plant. You have to destroy the root system to eradicate knotweed, and even then there’s a good chance it will rear up again. (In England the roots and soil that result from knotweed removal are controlled by strictly enforced laws.)
The civil rights cases we fought to mitigate the effects of racism in America were—and still remain—like Hancock’s Curse. It often seems to me that the roots run deeper than we can ever reach. John Hancock’s famous flourish on the Declaration of Independence presents an apt, if accidental, symbol here, since much of the civil rights movement stems from the Founding Fathers’ failure in the Constitution to extend the “unalienable rights” of the Declaration of Independence to nonwhite people, and instead accepts slavery with its infamous three-fifths-of-a-man formulation. That systemic, pervasive failure of moral imagination and its Civil War aftermath were the reasons Bob fought on as many fronts as possible with multiple cases that stood at least a shot of winding up in front of Chief Justice Warren’s Supreme Court, which for a brief period appeared open to extending the Constitution’s guarantees to people of color. Always with an eye on finding new ways to cut through the knotweed of racism in its countless manifestations, Bob knew that the roots of the problem remained untouched deep beneath the surface of the soil. Bob understood that racism in the North, with its unspoken codes, was a less visible but equally invidious and destructive version of the strain in the South, with its church bombings and lynching mobs. The key to breaking the back of public school segregation, he believed, was in the North.
Bob was hardly alone in this realization. In his book All Eyes Are Upon Us: Race and Politics from Boston to Brooklyn, Jason Sokol points out, “Through the 1960s, scholars as well as civil rights leaders questioned the racial meaning of the Mason-Dixon line. In 1961, historian Leon Litwack opened North of Slavery with a trenchant observation: the Mason-Dixon line ‘is a convenient but often misleading geographical division.’”
Jim Crow laws are a thing of the past, although the Supreme Court’s 2013 decision striking down key sections of the Voting Rights Act could, with the passage of voter identification laws in areas where there is a long history of racial suppression of the black vote, lead to their partial reestablishment. The hard truth today is that in all the years since Brown, and notwithstanding all the other state and federal laws written to promote equal rights that have been passed since the Civil War, racism remains a grave problem in the United States. A recent report by UCLA’s Civil Rights Project, called Brown at 60: Great Progress, a Long Retreat and an Uncertain Future, found that while schools in the South are significantly less segregated than they were before the landmark decision, things are actually worse in the rest of the country: “In the Northeast, schools are more intensely segregated for black students—meaning that in some cases they comprise 90 to 100 percent of a school’s population—than they were before 1968.”
* * *
Bob’s focus on the North was prescient. He was a giant in the Movement long before I met him. He started working at the NAACP Legal Defense and Educational Fund in 1944, as an assistant counsel to Thurgood Marshall, straight out of the U.S. Army Air Corps, where he had almost been court-martialed for his resistance to racial segregation. Besides Brown, there was a long list of other big cases, but the 1958 case, NAACP v. Alabama, stood out because the Supreme Court decided in favor of the NAACP, thus protecting its membership lists from public scrutiny and removing a tool of intimidation used in the South after Brown was decided. The opposition never ceased looking for ways to maintain segregation. Bob’s objective was to make advances while protecting the ground already taken. Always looking to reinforce existing case law that would advance civil rights and take new issues to the nation’s highest court, Bob argued or coargued and won an unimaginable twenty-one of twenty-two cases that he brought or helped bring before the U.S. Supreme Court.
On the road day after day and month after month, traveling in Jim Crow railcars or driving on Jim Crow roads, where danger was never more than an instant away for any black man, Bob always built toward an all-out attack on Plessy v. Ferguson and on school segregation. Some of his earliest cases challenged the so-called separate-but-equal doctrine of Plessy. By the time I was getting ready to leave Culver in 1954, Bob had argued school segregation cases in Southern or border-state courtrooms, which were joined together in Brown before the United States Supreme Court.
As Bob began to focus his attention northward, I slowly began to look around me. Maybe I already knew in vague terms that the white construction of race was one-sided. I sensed that from Bill and Lorraina. I saw just the tiniest tip of the iceberg at Culver and Harvard. I watched the television coverage of the Freedom Rides and the sit-ins, and I remember the fury of the mobs that tried to block the integration of a school in Little Rock. My eyes were opened by news accounts about those coward bombers—churches attacked, children killed, random people lynched—but until I started to work for the NA
ACP, I didn’t understand the harsh realities of racism in the North.
* * *
In the summer of 1964, right after I became an NAACP lawyer, Bob traveled to Mississippi to investigate the disappearance of three civil rights workers, James Chaney, Andrew Goodman, and Michael Schwerner. While he was there the county attorney, Rayford Jones, kept calling Bob by his first name—he said “Robert”—rather than “Mr. Carter.” Bob knew there had been a conspiracy to kill Chaney and his companions, and still he stood up to Jones. Bob called Jones “Rayford,” an unheard-of violation of Mississippi’s racial rules.
That was around the time I met my first Southern judge in Baton Rouge, but otherwise my days were spent at Freedom House preparing for trial in another of the Northern campaign cases against the Cincinnati school board, while Bob was in Neshoba County. Bob was hopeful that this new round of cases in Cincinnati and Springfield would offset the disappointments in the Gary, Indiana, case, as well as in Cleveland.
Soon I was off to Cincinnati to supervise our trial preparation. My plane landed at an airport in Kentucky across the Ohio River from the “Queen City.” Since slavery had been abolished, Cincinnati was a terminal city for the so-called great migration. Blacks traveled north to escape Jim Crow laws and to find work in industrial jobs that whites also wanted. What they found in Cincinnati’s flat downtown, surrounded by seven hills, was another kind of segregation, one that wasn’t as evident as Jim Crow but whose effect was to lock the city’s black children into mostly segregated schools while keeping the great majority of them out of white schools.
In the 1960s the black population was crammed into downtown Cincinnati, living in small worn-out houses or packed into old working-class apartments that were often literally falling apart, in the shadows of defunct factories. Jobs were moving out to the suburbs along with the city’s white population. The inner-city blacks were trapped. As urban renewal projects tore down their neighborhoods, they were forced into ghettos at the base of the hills, as well as a few of the more rundown arteries that led to the suburbs.
Bob told me to work with Norris Muldrow, a volunteer attorney at the local NAACP branch to prepare the case, which was called Tina Deal v. Cincinnati Board of Education. A small but powerful-looking black man in his thirties, Norris had worked his way through law school, attending at night, and was a single practitioner. He was one of the few lawyers in the city who served the black community. We met at the downtown Hilton, where I was staying, his briefcase bulging with legal papers, maps, and other documents that he thought might help us put together the case. Norris suggested a drive around the city, so I could get a feel for the various neighborhoods and schools. While we drove around, he told me about the case, stopping the tour repeatedly to drop in on or call this or that client, with me fuming as I waited in his car, not entirely sympathetic to his day filled with too many people with too many problems.
The Cincinnati Board of Education had operated a small number of totally segregated elementary schools, which it called “voluntary Negro schools,” until 1955. Norris said that recently there had been NAACP demonstrations that led to halfhearted promises to look into the segregation issue, and the appointment of one lone black member to the school board, but absolutely no action was taken to integrate the schools, and the demonstrations had petered out.
“They just wait you out,” Norris said. “And people have to get back to work. They’re relying on us to do the job.”
When it closed these “voluntary” schools, the board’s administrators put most of the students into nearly all-black schools. Since then segregation among the elementary schools was maintained by the careful placement of new buildings within gerrymandered district lines, and crazy, crisscrossing busing patterns that could exist only for the purpose of keeping white and black children separate. There was a little more integration at the junior high and high school levels, but board officials had worked hard to limit black attendance in the more elite white schools. The few schools with large numbers of both black and white students were disadvantaged in every way and were in poor neighborhoods.
After we had talked and driven around, I told Norris what I knew he didn’t want to hear: “Carter doesn’t want us to argue that the school board intentionally segregated these schools.”
His face registered disbelief.
“Someone has to call them on what they’ve done,” Norris finally responded. “How can we pretend like all this segregation is an accident? The community won’t put up with it, and I won’t either. I don’t care how much time it takes me. I want everyone to see these people for what they are. And I really don’t care whether or not Robert L. Carter has some theory about how to win a Northern school case. This is my town, and my NAACP branch, and I will prove, single-handedly if I have to, that Cincinnati segregates its schools on purpose and cheats black schoolchildren out of a decent education the same way Southern cities do.”
Having seen the severity of the segregation problem in Cincinnati, I was with him.
“I’ll talk to Carter and get back to you,” I told him.
Back in New York, Bob was irritated. He lectured me for not persuading Norris to drop his intent proof, but agreed we couldn’t stop him.
“Argue both,” he instructed.
I called Norris to tell him the news, and suggested that we try to harmonize our approaches. He would develop the case for intentional segregation, and I would work with him to get the evidence and obtain the experts I would need to prove Bob’s psychological-impact approach, comparing the performance of children at mainly black and mainly white schools, as well as comparing the facilities, the courses offered, and the teacher qualifications.
A few weeks later, Norris’s insistence paid its first dividend.
We were in Judge John W. Peck’s federal court chamber, and he was listening to the school board’s well-regarded lawyer, C. R. Beirne, explain how our case was no different from the Gary case. Beirne was telling the judge that he should apply the Bell and Cleveland rulings, require us to prove intentional and not de facto segregation, and dismiss our case if we couldn’t.
Judge Peck nodded his agreement.
“How can you win?” he asked Norris and me.
”We have evidence of intentional segregation,” Norris replied. “And we can prove in addition that the black schools were inferior and that, as such, they harmed the children who were forced to attend them, but we need access to the board’s files to develop our proof.”
Shaking his head dubiously, Peck said he would grant our request to inspect the board’s records before deciding whether we could have a trial.
“Just put him in a room with the files,” Peck instructed Beirne, looking over at Muldrow, “and have your people tell him where to find the different types of documents.”
When I reported back, Bob didn’t like the sound of things.
“We’re only going to win these cases in the Supreme Court,” he reminded me. “Giving free rein to a local attorney just slows us down. But fine, it’s already in play. Get a professor of education to analyze the data Muldrow gets for you, so long as you do it with no money because we can’t pay anyone.”
By the early fall, Norris had dug out reams of helpful documents from the board’s files, including some evidence of intentional segregation based on reports in the board’s possession showing how its administrators drew school-district boundary lines and designed crazy-quilt bus patterns, and reports documenting how high-majority black schools had less-qualified teachers, fewer substitutes, and inferior facilities. Meanwhile I had found a professor of education at Antioch College named Philip Rothman, who was willing to help us with the impact part of the case and document the black schools’ inferiority.
On September 25, 1964, however, we got some bad news. A federal appeals court rejected Bob’s de facto segregation argument in Downs v. Board of Education of Kansas City, another case that he hoped might make it to the Supreme Court. Again the case provided an example
of school administrators openly segregating students, but Carter had tried to expand the scope of Brown and had lost. Because the Kansas City schools had been openly segregated until after Brown, Bob thought the Supreme Court might review the court of appeals decision, and was disappointed when it denied a review in 1965.
The Springfield case took place as Norris and I were getting ready for trial. The outcome there, after a five-day trial, provided a glimmer of hope. Judge George Sweeney ruled that the city’s neighborhood-school policy was not a subterfuge for intentional segregation. However, drawing on the testimony of the NAACP’s social psychologist, Thomas F. Pettigrew, Sweeney agreed that racial isolation in the public schools damaged the self-image of black children and limited their educational progress, denying them equal protection of the law under the Fourteenth Amendment: “It is neither just nor sensible to proscribe segregation having its basis in affirmative state action while at the same time failing to provide a remedy for segregation which grows out of discrimination in housing, or other economic or social factors,” Judge Sweeney reasoned.
In Springfield, where the public schoolchildren were more than 80 percent white, any school that was “appreciably more than fifty percent non-white” was segregated, the judge determined. He ordered the board to submit a plan to eliminate, if possible, “within the framework of effective educational procedures,” the racial concentrations. One week later, however, Sweeney allowed the school board to appeal before developing that desegregation plan.
At our next court conference in Cincinnati, I gave Judge Peck the Springfield opinion, but he was not impressed. Instead he framed the legal issue as containing only one question: Did a school board have “an affirmative duty to balance races?” When Norris and I tried to explain that our charges were much broader, Judge Peck frowned.
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