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The Sweatt v. Painter case gained Heman Sweatt a place in the University of Texas Law School; more important was the first victory for the LDF campaign against segregation, abandoning the earlier attempt to make separate but equal truly equal. It also pioneered the use of historical and sociological evidence that separate but equal could never be equal.

The final chapter contends with the cases’ complex and paradoxical legacies for America’s cities and the civil rights movement. The covenant cases returned from the Supreme Court chamber into the hands of the white and black communities who would determine its impact on the substance of American life. The ensuing struggle to define and control the meaning of the cases gave new contours to two contradictory forces in the postwar nation: the racial ghetto and the struggle for black freedom. The chapter examines how the depths of white resistance to the decision dramatically curtailed the potential impact of the NAACP’s victory on the entrenchment of urban segregation. The chapter then argues, however, for a new understanding of how the campaign against restrictive covenants transformed the legal battle against Jim Crow. The victory in Shelley v. Kraemer set legal activists on a collision course with “separate but equal” jurisprudence and equipped them with essential alliances and tactics to succeed in that fight.

Chapter 7 analyzes two cases generally thought of as exemplary of the Supreme Court protecting or even progressively expanding civil rights protected under the Constitution. Brown and Obergefell are thought of by liberal theorists as examples of the Court getting things right. Of course they are also thought of as not grounded in the Constitution by conservative legal theorists. Brown famously overruled the “separate but equal” doctrine of Plessy v. Ferguson. Obergefell found a constitutional right to same-sex marriage. Interestingly, though the results are disputed by legal theorists, they are also thought by both sides of the debate to be examples of the Court properly understanding its role as supreme interpreter of the Constitution. This chapter challenges that interpretation. It presents Brown as an information-rich decision that exemplifies much that is required of democratic experimentalism. It presents Obergefell as arriving at the correct legal conclusion, but through a roundabout way that could have been better justified if the Court utilized the jurisprudence of democratic experimentalism. Posner’s opinion, Baskin v. Bogan is offered as a better option.

This chapter examines the U.S. Supreme Court landmark case of Plessy v. Ferguson (1896) and its influence on the form and content of the American novel. After providing a background on Plessy, which upheld de jure segregation in the United States until it was overturned by Brown v. Board of Education (1954), the chapter considers the legal argument of Albion Tourgée. It then analyzes a number of novels by authors such as Mark Twain, William Faulkner, Richard Wright, Ralph Ellison, Toni Morrison, and Edward P. Jones. In particular, it discusses the novel in order to elucidate the racial fictions and counterfactual imaginings embedded within the legal text of the doctrine of “equal but separate” established by Plessy.

The Civil War and its Constitutional Amendments notwithstanding, social integration was abhorrent to both northern and southern whites as late as the 1920s. The 1875 Civil Rights Act, passed by a Union Congress at the end of Reconstruction has been mischaracterized as an “integration” statute. Rather it was a “separate but equal” statute fully consistent with the mandate of Plessy v. Ferguson twenty years later. American Progressives developed a liberal social conscience about wealth distribution and the rights of labor, but these were combined with an aggressive “managed” racism that forced racial separation in education, housing, and sexual contact. These views were supported by social science, or “Brandeis briefs,” making the scientific case for state-mandated segregation. Only after anthropology and social science began to become more environmentalist in the 1930s did these scientific attitudes change.

Chapter 1 charts Turner’s acrimonious “relationship” with the Supreme Court. Starting with the Civil Rights Bill of 1875, the chapter examines how Turner’s support and belief that the Supreme Court could or would do anything to promote fairness and protect the rights of African Americans eroded over time. For Turner, as decision after decision nullified the spirit of the thirteenth, fourteenth, and fifteenth amendments, and moved America from the progress of Reconstruction, Turner’s rhetoric towards the Supreme Court and against the nation grew more bitter and his denouncements became much stronger.

This chapter traces the process of African American children in the tri-city area of Harlan County, Kentucky, becoming, like many others in the country, “children of integration” through the historic Brown v. Board of Education case. Both the inheritance and the risks of desegregation befell everyday black children; they would be the change agents for dismantling the “separate but equal” doctrine upheld by Plessy v. Ferguson. What was that experience like? By tracing the background of the Brown case and using oral history testimony, the chapter draws attention to the hidden injuries, loss of community, and transforming racial epistemologies that accompanied forced school desegregation. When asked to reflect on the perceived costs and benefits of desegregation, participant responses varied by generation and level of abstraction. While acknowledging the benefits, they all expressed some form of injury: a loss of community and African American identity.

The book opens with Almond’s development from boyhood through college, his marriage, and entry into the Army, which set the pattern for his life and military career. Life at the Virginia Military Institute, with its strong Confederate and military influences, shaped his outlook. Almond no doubt developed attitudes toward black people early on that would become apparent only decades later. Neither he nor his contemporaries would have considered their views racist. The Supreme Court decision Plessy v. Fergusson had enshrined the separate but equal doctrine in the nation’s social and legal framework guaranteed a separation of the races, and this was Almond’s reality. Almond had enjoyed success in high school and college, but his high achievement masked a sense of insecurity that would plague him for the rest of his life.

This chapter briefly details the post-1920 northern freedom struggle at the Jersey Shore. Despite continued efforts by grassroots black activists to press for integration, the black merchant class exploited the gradual decline of white entertainment spaces and the growing appeal of black consumer culture to lure in white customers and to downplay direct civil rights action. Rather than the typical “long march to freedom” promoted in many oft-told accounts, this chapter argues that the promise of consumption and the accompanying culture of growth spurred the region’s long retreat from earlier civil rights victories.

To know that Brown was a great occasion, one need only think back on the advocates. The old order crumbled, but not without eloquence. Indeed, at the oral arguments in Brown, John W. Davis may have mounted segregation’s last memorable defense. He was eighty-years old at the time Brown was last argued, and his voice and memory had begun to fade. “Some of his friends,” reported Time, “were sorry to hear him, at twilight, singing segregation’s old unsweet song.” Yet he remained the Supreme Court’s great advocate, not only of his day but, perhaps, of all time. Like a rock he stood for segregation: . . . “If it [integration] is done on the mathematical basis [in Clarendon County, South Carolina], . . . you would have 27 Negroes and 3 whites in one schoolroom. Would that make the children any happier? Would they learn any more quickly? Would their lives be more serene? . . . . . . . Would the terrible psychological disaster being wrought, according to some of these witnesses, to the colored child be removed if he has three white children sitting somewhere in the same schoolroom?” . . . Like Robert E. Lee, Davis went the path of ennobling defeat, a testament to the South’s ability to recruit men of character and principle to its most woeful cause: . . . “Let me say this for the State of South Carolina. It did not come here, as Thad Stevens would have wished, in sackcloth and ashes. . . . It is convinced that the happiness, the progress, and the welfare of these children is best promoted in segregated schools.” . . . And he summoned the wisdom of the ages to his side: . . . “Somewhere, sometime, to every principle comes a moment of repose when it has been so often announced, so confidently relied upon, so long continued, that it passes the limits of judicial discretion and disturbance. . . . As it had to Lee, the struggle and the defeat ultimately exhausted Davis.

Chapter 5 examines how the moral and physical health of consumers and consumer districts became tied to economic rights, commercial expansion, and political stability. Intertwined in these debates were competing consumer and leisure discourses. Free consumer advocates advanced and protected the underground economy of leisure and advocates of consumer protection advanced a program of economic growth and environmental justice. Together, these campaigns helped contain campaigns for integrated leisure by solidifying the legal doctrine of “separate but equal.”

The Supreme Court in Swann drove the yellow school bus down the road of racial reform. And a bumpy journey it would prove to be. Why, one wonders, did the Court choose busing among all the alternatives available? Why, moreover, was that choice unanimous? Why, lastly, had several justices even swallowed their personal misgivings to join the opinion? For the Court’s commitment to this fateful step, there exist various explanations. One is that the Court never anticipated just how much opposition compulsory busing would provoke. Northern sentiment had not yet been aroused at the time of Swann; South Boston was but a speck on the racial horizon. The justices might still have believed opposition to busing just another eruption of the same southern temper that had produced Little Rock, Prince Edward, and the ugly happenings at Lamar. By 1970, moreover, the Court was most impatient with the South and more than a little embarrassed that sixteen years after Brown the task of southern integration remained incomplete. Thus Swann seemed the final step in the South’s subjugation. That busing would soon become the hottest issue of national domestic politics, the justices had not as yet fully foreseen. There was more to the Court’s approval of busing than integrating the South. Green had whetted the Court’s appetite for numbers. Black-white percentages at last gave the Court a concrete measuring rod, an objective determinant of a school board’s good faith. If one’s goal for schools was statistical racial balance, busing seemed the most direct way to achieve it. In fact, busing seemed the only way to achieve it in the urban metropolis where the races lived largely apart. But something more profound motivated the Court’s probusing stance in 1971: a mystical force in the catacombs of the Supreme Court known as the spirit of Brown. Brown’s legacy was a special race consciousness, an understanding among justices that blacks were henceforth to enjoy constitutional priority.

Reatha Clark King is a woman who began life in rural Georgia and rose to become a chemist, a college president, and vice president of a major corporate foundation. Reatha Belle Clark was born in Pavo, Georgia, on April 11, 1938, the second of three daughters born to Willie and Ola Watts Clark Campbell. Her mother Ola had a third grade education and her father Willie was illiterate. Her families were sharecroppers in Pavo. Her mother and grandmother raised her in Moultrie, Georgia, after her parents separated when she was young. She and her sisters worked long hours in the cotton and tobacco field during the summer to raise money. She could pick 200 pounds of cotton a day and earn $6.00, which was more than her mother’s salary as a maid. 1 In the 1940s in the rural segregated South, the only career aspirations for young black girls were to become a hairdresser, a teacher, or a nurse. Reatha started school at the age of four in the one-room schoolhouse at Mt. Zion Baptist Church. Still more than a decade before Brown v. Board of Education , Reatha’s schools were segregated. The teacher, Miss Florence Frazier, became Reatha’s first role model. Reatha said, “I never wondered if I could succeed in a subject. It was only a question of whether I wanted to study the subject.” She later attended the segregated Moutrie High School for Negro Youth. Despite missing much school to attend to fieldwork, Reatha maintained her studies. She graduated in 1954 as the valedictorian of her class. Reatha received a scholarship to enter Clark College in September 1954, originally planning to major in home economics and teach in her local high school. These plans changed after her first chemistry course with Alfred Spriggs, the chemistry professor. He encouraged her to major in chemistry and go to graduate school. She found that chemistry was the perfect major for her. She says, “Both the subject matter and methodology were interesting and challenging; the laboratory and lecture sessions were exciting; and my fellow students in chemistry were both serious students and fun to work with.”