Number 4

Summer 2004

Simple Justice Revisited

Joseph E. Illick

In 1976 Richard Kluger published Simple Justice: The History of Brown v. Board of Education and Black Americas Struggle for Equality (Knopf), which has been reissued this year with a new final chapter surveying the fate of Brown during the half century since the decision was rendered. The book focused on black lawyers and their development of a strategy to overturn segregation via the courts, emphasizing along the way the African-American awareness of the link between the attainment of social equality and education. If this first rendering of Simple Justice was climaxed by the success of its protagonists, the new edition calls attention to some victories but too many defeats.

Kluger, who had been a journalist, book editor, and novelist before turning to social history, published what is now widely regarded as the definitive treatment of Brown (Simple Justice was a National Book Award finalist; Kluger later received a Pulitzer Prize for Ashes to Ashes, his study of the tobacco industry). A classmate of mine at Princeton, we spoke in the backyard of his home in Berkeley, California, in April 2004.

Our Class of 1956 included two Negroes (as they were called in polite society in the 1950s) among its 700 members. Although the Brown decision occurred in the midst of our undergraduate years, it had no immediate meaning for me, and I suspect it may have been the same for Dick Kluger. He had attended private schools in New York City, where his sole African-American classmate was the light-skinned son of James Weldon Johnson, distinguished educator and composer of "Lift Every Voice," the unofficial Negro national anthem which Kluger learned in the sixth grade. He pointed out to me that he had dedicated Simple Justice to his two young sons and to the two daughters of his cleaning woman, almost the only black person he knew at the time.

His awareness in the 1960s of the civil rights movement—not to mention the anti-war, environmental, consumer, and women's movements—sensitized him to his isolation from the social ferment coursing through American life. And he was convinced that the Brown decision "was one of the exceptional moments in American history." As an editor at Simon and Schuster, he began searching for an appropriate author for a book on the subject.

But the journalists he approached had neither the legal background crucial to such an undertaking nor the inclination to study law, while academics were put off by the prospect of the numerous personal interviews necessary to the project. Kluger was prepared to undertake such leg-work through his previous newspaper experience (the New York Post, the Wall Street Journal, and the New York Herald Tribune) and was well-acquainted with aspects of black literature and the sociology of racism, and thus began—in what he terms "a spasm of extreme hubris"—to consider writing the book himself.

It was critical, he knew, to gain access to relevant people and documents. He phoned the NAACP Legal Defense Fund, the group that carried the civil rights cases forward. Jack Greenberg, who had succeeded Thurgood Marshall as the Director Counsel, assured him that the materials existed and he could have access to them. On examination the Defense Fund files, though loosely organized, proved a treasure trove of intra-office memos and drafts for briefs -- a virtually complete record of the activities leading to Brown, simply waiting to be mined. And the office staff was more than willing to put him in touch with the participants he would need to interview.

Kluger began his research as a moonlighting effort, but as the monumental proportions of the task became apparent, he made a major career decision: he would give up his employment as an editor and attempt to make his living solely as a writer. He was almost forty with a wife and two young children.

Working in his favor was the very recent publication of the oral arguments presented to the Supreme Court, while at the NAACP office he had found transcripts of the U. S. District Court trials brought to challenge Jim Crow schooling. He complemented these sources with extensive reading of legal texts in a kind of self-taught constitutional history course.

Simultaneously, as a former newspaperman, he was savoring the personal interviews ahead, which needed to be undertaken expeditiously, given the age of many of the interviewees. In this endeavor he wasn’t entirely successful. Thurgood Marshall, the chief attorney for the Brown plaintiffs and later the first African-American justice on the Supreme Court, was unreachable until the end of the project, when his recollection was failing—or, as Kluger puts it, when it had become "somewhat selective." "It might have been a very different book if I had had access to him early and throughout. [But] you go with the strength of your materials," Kluger reflected. But he was able to talk with many African Americans, especially attorneys, who had done the field work for Brown; no one before Kluger had bothered. (All his interviews have been transcribed and are at the Sterling Memorial Library at Yale; they are available to researchers -- and are listed at the end of Simple Justice.)

And he was able to interview three of the 1954 Supreme Court Justices: William O. Douglas, Tom Clark, and Earl Warren. (Justices Felix Frankfurter and Harold Burton left helpful conference notes.) Warren had retired -- he would not have consented to an interview while still sitting -- in 1970 while in his late seventies. This was a deeply important get-together, Kluger believes, since without Warren the Brown decision wouldn't have happened, certainly not with unanimity nor in 1954. Rather, the Court would likely have drafted only a decree calling for equalization of school facilities without desegregation (á la Plessy v. Ferguson, the 1896 decision that laid the foundation for segregation), which would have been vulnerable to southern delaying tactics. Nevertheless, to achieve a unanimous decision ordering desegregation, Warren conceded to the foot draggers by allowing the "all deliberate speed" condition to be included in the court's 1955 decision implementing Brown (often called "Brown II"). "Deliberate" became more the watchword than "speed," leading newly-retired Justice Hugo Black to state in 1970 that the Court should have issued a forthwith decree saying segregation was unconstitutional and had to end at once. Warren, unhappy with Black's observation and convinced that the justices should have maintained their unanimity into posterity, remarked, "Why didn't he say so then?"

I mentioned to Kluger that three African-American law professors in just-published books—Charles J. Ogletree, Jr., All Deliberate Speed; Derrick Bell, Silent Covenants; and Sheryll Cashin, The Failures of Integration—all seemed to be arguing that, in view of what has happened since 1954/55, equalization would have worked better for blacks than integration has. Kluger characterized that argument as "nonsense." He continued: "African Americans attending integrated schools, by almost every measurable yardstick, are doing better in their lives—as students, as graduates, as they move ahead in their careers."

Indeed, he makes the case in the new edition of Simple Justice that we are in fact moving in the direction of a more integrated America. African Americans are surely more visible to whites than ever before. Black culture is welcome in mainstream society as evidenced in our music, language, dress, behavior. African Americans are more than proportionately represented in the military, government, and arts and entertainment, though not in business America.

Yet in the integration of secondary and elementary education, there has been regression rather than progress. 1988 was the high-water mark of school desegregation, measured by black children attending white majority schools; in that year it reached 43 per cent, even though President Ronald Reagan's administration opposed desegregation and took steps to reduce the Justice Department's oversight on the matter. Today that number is down to about 30 per cent.

What has happened? Kluger points out that after the Brown decision came down desegregation proceeded relatively easily in public facilities other than schools. Not only did the courts stand firm but the communities obeyed. The schools provided a different scenario. Here children would mingle all day, acquiring social habits from one another, and this very fact alarmed white supemacists and segregationists, provoking the strongest resistance, especially in the deep South.

In addition, neither the Presidents of the United States nor the Congress furthered the cause of desegregation. Dwight D. Eisenhower, in particular, failed as a moral leader in Kluger's view. He might have called upon white Americans to change the school situation not only because the Supreme Court said so but, considering the heinous treatment of blacks for such a long time, desegregation was the right way for whites to deal with their fellow citizens. But nothing like that was ever said.

Rather, the situation played out in a series of court rulings calculated to determine what was appropriate in bussing, pairing schools, and so forth. Laying out such a vast and complicated pattern took time and encouraged those who wanted to stall. While the NAACP Legal Defense Fund remained vital, it could not move the cause of school integration forward as presidential administrations and the Supreme Court moved to the right.

In 1973, in San Antonio Independent School District v. Rodriguez, the U. S. Supreme Court decided against the argument that equal protection should mean that every child in a state that has mandatory public education should have equal resources made available to him or her, regardless of the wealth of the community in which the child lived. This case was lost by one vote in the Burger Court. If the equal funding argument had prevailed, Kluger believes, the situation today would be significantly better, not necessarily in terms of school desegregration but in the availability of resources where there wasn't integration.

By the early 1990s a Court majority guided by Chief Justice Rehnquist rendered three important decisions that have allowed the resegregation of the schools by directing the federal district courts, which had imposed desegregation plans on the reluctant segregated school districts, to assure these communities that once they had achieved a "unitary school system"—meaning there were no longer separate black and white schools, even though there might be black-majority schools—once they had made their best efforts to get racial balance among the schools, whether by bussing or pairing or redistricting, they no longer needed to worry about oversight from federal courts. Essentially, this meant the communities could return to the way things were before desegregation.

Of course the Court does not decide in a vacuum. The Justices are clearly aware of popular attitudes and their political implications. Even the Warren Court, which represented a high-water mark in terms of being open and eager to bring long-delayed racial justice to America, was at pains not to accuse the South. (It did not, for example, condemn Plessy v. Ferguson as bad law, but the truth is that to discriminate against some element of the population—in this case African Americans—there must be compelling state interest. Plessy, while denying it, was plainly grounded in white supremacy.)

Kluger observes that a couple of decades after the Brown decision, when the consciousness of white Americans had been raised enough for them to concede the injustice of segregation, there remained an attitude among many whites, north and south, which rejected association with blacks, who were viewed as socially, intellectually, and even morally inferior. This was the feeling that underlay white flight to the suburbs, a reaction that was a sign both of prejudice and of frustration with reality—you can't change a culture overnight, or in a generation, even with the best of intentions.

White flight was unfair, premature and yet understandable. But as that flight has continued from the mid-seventies to today the attitude of these same whites or their children toward blacks has altered. Most white Americans concede that African Americans had a real grievance against the biased thinking, conduct and laws of the land. Blatant discrimination is no longer socially, politically, or legally permissible. Whites have admitted their guilt; now it's up to blacks to take the strides that will raise them to the white level of economic and cultural achievement. Whites hope that blacks will do so, but they must do so largely without help.

That's the Republican point of view, almost officially. What this attitude ignores is the enormous disadvantage black people bear after generations of suffering. This disadvantage must be compensated for in order for blacks to have a chance to reach the mainstream community, Kluger believes. But white receptivity to such social policy has atrophied in the face of national administrations that responded to black grievances through "benign neglect" under President Richard M. Nixon and, more recently, with "callous indifference" to black aspirations.

Still, Kluger sees reason for optimism. Changes in areas other than education are taking place, though often slowly. The poverty level among blacks has dropped from 55 per cent to 22 per cent over the past half century. And nearly 80 per cent of African Americans now graduate from high school as compared to 14 per cent in 1950. There are more mixed communities, more mixed marriages; 50 years ago one per cent of marriages were mixed, while today its 12 per cent.

"We run through cycles in our country," Kluger notes, "and I think we're ready for a swing the other way. We have the wealth in America to adopt social policies that attack the culture of poverty and try in a serious way to level the playing field. Its been true of this country for a long time, that we are a wealthy society, while the left-behinds are tragically neglected. We are compassionate and cruel at the same time."

Postscript: For a recent retrospective review of Simple Justice see Robert Lowe's "Richard Kluger's Simple Justice after 29 Years," History of Education Quarterly 44 (Spring 2004).

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