The Limits of Law in Accomplishing Racial Change: School Segregation in the Pre-'Brown' North
69 Pages Posted: 23 Jan 2011 Last revised: 18 Feb 2011
Date Written: 1997
During the past forty years, courts have been widely celebrated as important agents of racial change, with "Brown v. Board of Education" as the paradigmatic example of the ability of the judiciary to foster racial progress in the face of significant cultural and political opposition. Yet in recent years, numerous scholars have questioned the ability of courts to function as a significant force for racial progress without broad political and cultural support. Some of these scholars have concluded that the traditional emphasis on the role of the courts - especially the "Brown" Court - in securing racial gains are overstated and that certain aspects of racial reform, such as southern school desegregation, did not take place in this country until the elective branches of government embraced the desegregation agenda in the mid-1960s. These scholars suggest that courts - even the Supreme Court - are considerably more limited in their ability to effect social reform in the absence of significant popular support than we have previously imagined. Other scholars, associated with the critical race theory movement, go even further and conclude that the inherent conservatism of courts inhibits their willingness to produce meaningful change on behalf of racial minorities. Both groups of scholars suggest that courts alone are unable to bring about significant racial change and that political activism and private initiatives are more promising means of ensuring racial gains.
While the issue of the ability of courts to effectuate racial change has received considerable scholarly attention in recent years, less attention has been paid to the ability of law more broadly defined - as manifest in legislative and executive actions as well as court decisions - to foster social reform. The capacity of statutory law to promote social change appears obvious, because statutes presumably reflect the majoritarian support that makes the underlying change possible. Yet statutory enactments that seek to reverse longstanding social and cultural patterns - particularly those associated with race - often fail to achieve their desired effect. Some statutes contain inadequate enforcement mechanisms, others do not reflect a real commitment to racial reform, while others fail due to significant cultural and political opposition.
This Article seeks to broaden the conversation about law and racial change by examining the interplay between legal rules - as manifest in both court decisions and statutes - and racial progress in the context of the campaign against school segregation in northern states prior to the Supreme Court's decision in "Brown v. Board of Education." In the North, virtually every state prohibited school segregation by statute during the last three decades of the nineteenth century, and the vast majority of state courts, when called upon, enforced those statutes by requiring school integration. With this type of "legal" support for pupil mixing, one might expect to find thoroughly desegregated northern school systems. Indeed, many observers have - mistakenly - interpreted the enactment of the extensive state anti-segregation legislation as evidence that officially sanctioned school segregation ended in the North as of the end of the nineteenth century. Yet despite this legal support for school integration, government sponsored school segregation - such as the assignment of black children to separate "colored" schools or classrooms - persisted in open defiance of state law in many northern communities until the late 1940s and early 1950s. This Article explores the reasons for this dissonance between legal rule and social reality and seeks to provide insight into the broader question of how law affects racial change.
This Article focuses primarily on desegregation efforts in four states: New Jersey, Pennsylvania, Ohio, and Illinois. The focus on these states is deliberate. Each of these states abolished segregated schools by statute during the 1870s and 1880s and in each, the vast majority of judicial challenges seeking to enforce those statutes succeeded. Yet despite unambiguous legislation that mandated integrated schools and a court system prepared to uphold these legislative prohibitions, many local school districts in each of these states operated segregated schools in open defiance of state law until the early 1950s. Although other northern states also enacted anti-segregation legislation during the nineteenth century and in some instances failed to enforce that legislation, it was in these four states, because of their large black populations and their proximity to the South, that the dissonance between legal rule and social reality was the greatest.
The campaign to desegregate northern schools exposes the difficulties of legal rule and judicial decision forcing racial change. Just as the "Brown" decision failed to desegregate southern schools during the 1950s and early 1960s until both the President and the Congress committed themselves to racial desegregation with the enactment of the Civil Rights Act of 1964, so court decisions and statutes could not eliminate officially sanctioned northern school segregation during the pre-"Brown" era until a political environment developed in which majoritarian interests were served by desegregation. The enactment of the anti-segregation legislation had been an important first step in the campaign against state-mandated segregation in northern schools, but the campaign would need seventy years of cultural and political change to achieve success. And even then, that success, as has been true of so many racial "gains" in this country's history, proved somewhat hollow as it left untouched the burgeoning growth of northern residential segregation.
Keywords: school desegregation, northern school desegregation, law and culture, racial change, limits of law in social change, social change, civil rights history, black attitudes towards desegregation, desegregation history, legal history of race, courts and racial discrimination
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