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Session I: Plessy v. Ferguson and Brown v. Board of Education

November 19-20, 2004
at Dillard University and Xavier University of Louisiana, New Orleans, Louisiana

Introduction: Judith Loredo, interim dean of academic programs, Huston-Tillotson University
Moderator: Katherine Kurs, Professor of Religious Studies, New School University
Panelists: Gail Bowman, Professor of Philosophy and Religion, Dillard University; Augustus Richard Norton, Professor Anthropology and International Relations, Boston University; and R. Eugene Rice, Senior Scholar, Association of American Colleges and Universities.

Following are excerpts from Session I of the conference:

Moderator: David Dent, Professor of Journalism, New York University.

Panelists: Derrick Bell, Professor of Law, New York University School of Law; Keith Medley, author and journalist.

Derrick Bell: Plessy v. Ferguson was a Supreme Court recognition that gave legal purchase to segregation that had existed in one form or another through the 1880s. . . and it gave legal legitimacy to patterns and practices of segregation and subordination that were widespread in the South and the North.

The great sense of so many of the civil rights people was that segregation was the evil, and that if somehow you could get the Supreme Court to find it unconstitutional—to find it in law that it burdened black people as much as we realized it in fact—then everything else would be straightened out. So that was the great campaign, to get the court to declare segregation illegal.

Leaders thought that education was the weak link in the segregation chain, so that was the focus. Finally, Brown was decided and fortuitously so, because it came at a time when America was trying to assert leadership in competition with Russia and other communist nations who were having a field day regarding all the segregation, lynching, and so forth, as they appealed to emerging governments, most of whom were not white.

The Supreme Court opinion does not mention the foreign policy implications or the domestic subversion. This had been a harsh court in regard to civil liberties. Those were major factors in getting through the Brown decision. We hailed the decision because we thought it marked the end of segregation. But we didn't realize that what we thought was the evil, segregation, was a manifestation of the real evil—racism. And once segregation was struck down as a legal matter, that racism would manifest itself in other forms.

The unhappy news is that today Brown, beyond having some symbolic value, has no legal value. It has not been reversed, but as one legal scholar predicted years ago, it has become—the dreaded word—irrelevant. There is no civil rights case likely to be brought today in which the citation of Brown, even in a liberal court, would gain more than a sad smile.

I had hailed Brown. I spent five or six years with the Legal Defense Fund. I supervised work on two or three other school segregation cases, and I thought my place in heaven was assured. I was wrong. And I wish I had understood how wrong I was many years ago.

I now think that, from the standpoint of education, there are a lot of commentators who feel that much of the change in segregation would have come about without Brown. I can't say they are right or wrong. It is clear that Brown was of inspirational value, but as far as education is concerned at every level, it was a disaster. We didn't think it was going to be a disaster, but it has proven to be. There are many more segregated schools now than there were then. The implementation that I helped bring about, with court orders, resulted in the closing of black schools, firing black teachers and principals, and sending black kids not to the best white schools but to the least best, where some did well and some did not.

Knowing what I now know—and I'm not always welcome when I say this—I think we would have been better off from an educational standpoint if the court had said, "No, we're not going to strike down separate but equal. We are going to recognize that the separate part has been forced with great rigor and the equal part has been ignored. And we are going to force school boards to enforce the equal part with regard to facilities, teacher salaries, putting blacks on school boards, and we'll see what where we go from there."

The other things, I think, would have come along. I think school boards would have recognized that they could not afford two equal school systems.

So that's my controversial contribution to get us started.

Keith Medley: I understand what Dr. Bell is saying, but I would say that without that Supreme Court decision in the South I would not have had any of the jobs I've held to this day. My schoolteacher remembers when she was paid less than whites, and she didn't know what she could have obtained under equal opportunity.

In 1996, David Duke ran for office in Louisiana and gained a strong showing among white voters. So I don't believe that we would ever have had truly integrated schools without this legislation. Every article I have written about civil rights could have started "before Plessy v. Ferguson" or "after Plessy v. Ferguson."

In 1890 the Louisiana legislature passed a law segregating the railroad trains. And a group of 18 calling themselves the Citizens Committee for the Annulment of the Separate Car Law formed in 1891 to challenged it in court. They saw this law as an attempt to undercut the 14th Amendment, the basis for African-American citizenship. The Plessy case went on from 1890 to 1896. It was meant to be not separate but equal, but separate and inferior, separate and degrading.

The committee raised money, brought two test cases to bring to court, even got the railways to cooperate with them, and hired a policeman to arrest Homer Plessy so that there was someone facing the proper charges. They saw the fight not as black vs. white but as racial supremacy vs. equality. It wasn't too far from here in June 1892 that Homer Plessy went to the East Louisiana Railroad yards, caught the train, and was arrested by a detective and jailed. This is what brought the case to court.

He had two lawyers: James Walker, oddly an ex-Confederate private, and his national lawyer Albion Tourgee. Tourgee was interested in this case because he was a true believer and spent most of his life fighting for black equality. Remember the Dred Scott decision, declaring blacks as no better than pieces of furniture that can be dragged from state to state. In 1896, Tourgee argued the Plessy case before the Supreme Court.

The person who actually saw the law through the legislature and became governor said that the white supremacy for which we have fought so hard has now crystallized into the constitution. In 1900 the school board stopped any black education after the fifth grade, so that black children would not be educated beyond their station in life.