Research Material for Speech- "The Broken Promise of 'Brown v Board of Education' ", 2004

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COOPER V. AARON

Butler: Well, this school board in Little Rock, Arkansas, was not faced with theories, it was faced with actualities which are undermining and which are going to destroy the public school system in Little Rock, and when it's destroyed, it'll be destroyed not just for white students, it'll be destroyed all the way up and down the line, unless they're given an opportunity to work this thing out in a climate of calm rather than in a climate of hysteria.

Narrator: Chief Justice Warren did not want mobs to decide legal questions.

Warren: Mr. Butler, I think there's no member of this Court who fails to recognize the very great problem which your school board has. But, can we defer a program of this kind, merely because there are those elements in the community that will commit violence to prevent it from going into effect?

Butler: Mr. Chief Justice, I think so, but not directed to the people who form mobs, not directed to the people who are law defiers -- we're not standing up here taking, trying to argue for their side . . . (Warren: I know you're not) We are arguing for the great mass of people throughout the South, who I say again, and will say again and again, are not law defiers; they want to follow the law, but they -- as of this moment -- without certain state statutes having been tested in court, do not know just exactly what the law is in a particular give circumstance.

Narrator: Butler's final argument provoked a heated reply from Warren.

Butler: The point I'm making is this: that if the governor of any state says that a United States Supreme Court decision is not the law of the land, the people of that state, until it is really resolved, have a doubt in their mind and a right to have a doubt.

Warren: I have never heard such an argument made in a court of justice before, and I've tried many a case, over many a year. I never heard a lawyer say that the statement of a governor, as to what was legal or illegal, should control the action of any court.

Narrator: Thurgood Marshall speaks for Little Rock's black children. Marshall headed the NAACP legal staff for many years. He argued and won many civil rights cases before the Court, including Brown. He denounces Butler's appeal for delay.

Marshall: The truth of the matter is, these entire proceedings, starting with the filing of the petition of the school board way back in February, asking for time,

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the whole purpose of these proceedings is to get time. The objective of the proceedings is that the Little Rock schools be returned from desegregated to segregated status as of September school term.

I think we have to think about these children and their parents, these Negro children that went through this every day, and their parents that stayed at home wondering what was happening to their children, listening to the radio about the bomb threats and all of that business. I don't see how anybody under the sun could say, that after those children and those families went through that for a year to tell them: All you have done is gone. You fought for what you considered to be a democracy and you lost. And you go back to the segregated school from which you came. I just don't believe it. And I don't believe you can balance those rights.

Narrator: Marshall spoke to the Court like a teacher.

Marshall: Education is not the teaching of the three R's. Education is the teaching of the overall citizenship, to learn to live together with fellow citizens, and above all to learn to obey the law.

And the damage to the education in Arkansas and in Little Rock and in Central High comes about through the order of Judge Lemley which says that not only the school board and the state can and should submit to mob violence and threats of mob violence but that the federal judiciary likewise should do so.

I don't know of any more horrible destruction of principle of citizenship than to tell young children that, those of you who withdrew, rather than to go to school with Negroes, those of you who were punished last year -- the few that the school board did punish: Come back, all is forgiven, you win.

And therefore, I am not worried about the Negro children at this stage. I don't believe they're in this case as such. I worry about the white children in Little Rock who are told, as young people, that the way to get your rights is to violate the law and defy the lawful authorities. I'm worried about their future. I don't worry about those Negro kids' future. They've been struggling with democracy long enough. They know about it.

Narrator: Marshall appealed to the rule of law.

Marshall: The way this case stands, there must be a definitive decision -- I hate to use the two together, it's bad English but it's the best way I can do it -- that there be no doubt in Arkansas that the orders of that district court down there must be respected and cannot be suspended and cannot be interfered with by the legislature or anybody else. And less than that I don't think will give these young children the protection that they need and they most certainly deserve.

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Narrator: The justices also listened to Solicitor General J. Lee Rankin. He speaks for the federal government as a friend of the court.

Rankin: We think that this case involves the question of the maintenance of law and order, not only in this community and the state of Arkansas, but throughout this country.

Now, the desegregation of schools has gone forward in many areas of this country. It has gone ahead in border states, many areas without any difficulties whatever, and in some of the areas even of the deeper South.

What is there in this community, Little Rock, in Arkansas, that's different? Certainly people with pigment in their skin -- black or white -- were involved in those cases, in those areas, where the schools were desegregated without trouble between them. The element in this case is lawlessness. It is a community, a small number at first at least -- maybe more later -- who decided they were going to defy the laws of this country. And I say to you that that's a problem that's inherent in every little village, great city, or country area of this United States. There isn't a single policeman that isn't going to watch this Court and what it has to say about this matter that doesn't have to deal with people every day who don't like the law he is trying to administer and enforce. And he has to go against that public feeling and will and do his duty. That's the responsibility of every man in this country that's fit to occupy public office.

Narrator: Like Marshall, Rankin appealed to the rule of law.

Rankin: So I say to you, if this school board has any doubt about what the law is, it can turn to the Constitution that it is under oath to support, just as the members of this Court and myself. They should look first to the Constitution. That's what the Constitution, our basic document, says. And then they can look to any federal laws or treaties. And then they can look down to see if there is anything in the constitution of the state or the state laws or their own regulations that they should enforce.

But I say, I think without any proper challenge, that their obligation before this country, in their own community, and before this Court, is to use all the power that they have and exhaust it to try to perform that oath, and first start out with trying to carry out the obligations of the Constitution of the United States as interpreted by this Court.

And in conclusion, let me say that on this Supreme Court building is carved the inscription, "Equal Justice Under Law." All Americans take pride in this controlling principle of our government. It is there as a reminder of the great objective of this Court in all of its decisions. Now, in the gravity of this new challenge to constitutional rights, I respectfully suggest that each time that

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it becomes an issue the Court must say, in a manner that cannot be misunderstood, throughout the length and breadth of this land: There can be no equality of justice for our people if the law steps aside, even for a moment, at the command of force and violence.

Narrator: Richard Butler made a final appeal for delay.

Butler: All we're asking, all we're asking at this time, is for time, to try to do those things and work out these problems that may bring peace and harmony, and do it in a period of calm when they can be done and not in a period of turmoil and strife.

Can it be logically argued that the ruling of this Court can be carried out, as this Court said it should, in an effective manner, when schools are closed, or if operated at all, with armed troops parading not only the grounds but the halls and classrooms themselves? Patience and forbearance for a short while might save our public school system in Little Rock.

Narrator: The justices had no patience with appeals for delay. The day after this argument, on September 12th, 1958, the Court issued a three-paragraph opinion. The justices unanimously affirmed the lower court orders that integration of Little Rock schools proceed without delay.

Two weeks later the Court issued a longer, detailed opinion. Normally, one justice writes for the Court. In this case -- to emphasize its importance -- all nine justices signed the opinion. They agreed that the case "raises questions of the highest importance" to the federal system of government. They rejected the claim that, in their words, "there is no duty on state officials to obey federal court orders resting on this Court's considered interpretation of the United States Constitution."

Arkansas officials attempted, the Court said, "to perpetuate . . . the system of racial segregation which this Court" struck down in the Brown case. The opinion documented the record of violence against black students, inside and outside Central High School. The justices wrote that "violent resistance" to integration was "directly traceable" to Governor Faubus and Arkansas lawmakers. The justices did not mince words. "The constitutional rights" of black children, they said, "are not to be sacrificed or yielded to the violence and disorder which have followed upon the actions of the Governor and Legislature."

The justices firmly upheld the judicial supremacy over state action. The Brown decision "is the supreme law of the land," they said. They expressed contempt for officials like Governor Faubus who waged, in their words, "war against the Constitution."

War over school integration continued after the Court's ruling. Little Rock

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officials refused to obey court orders and closed all high schools until 1959. Finally, parents and voters who cared more about education than segregation changed the school board. The integration of Little Rock schools resumed.

The Court's decision established an important precedent. But it did not end conflict over racial issues that have divided Americans since the time of slavery. School segregation, a relic of that system, stubbornly refuses to go away. Judges can decide legal issues, but they can't change housing patterns or cultural attitudes. Since its unanimous decision in Cooper v. Aaron, the Supreme Court has split over cases dealing with school integration. Brown remains on the books, but the question remains: Will black children in schools across the country receive the integrated -- and equal -- education the Constitution commands? It is a fateful question for the country.

EDITED SUPREME COURT OPINION

Cooper v. Aaron

Opinion of the Court by THE CHIEF JUSTICE, MR. JUSTICE BLACK, MR. JUSTICE FRANKFURTER, MR. JUSTICE DOUGLAS, MR. JUSTICE BURTON, MR. JUSTICE CLARK, MR. JUSTICE HARLAN, MR. JUSTICE BRENNAN, and MR. JUSTICE WHITTAKER.

As this case reaches us it raises questions of the highest importance to the maintenance of our federal system of government. It necessarily involves a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court's considered interpretation of the United States Constitution. Specifically it involves actions by the Governor and Legislature of Arkansas upon the premise that they are not bound by our holding in Brown v. Board of Education, 347 U. S. 483. That holding was that the Fourteenth Amendment forbids States to use their governmental powers to bar children on racial grounds from attending schools where there is state participation through any arrangement, management, funds or property. We are urged to uphold a suspension of the Little Rock School Board's plan to do away with segregated public schools in Little Rock until state laws and efforts to upset and nullify our holding in Brown v. Board of Education have been further challenged and tested in the courts. We reject these contentions. . . .

The following are the facts and circumstances so far as necessary to show how the legal questions are presented. . . .

On May 20, 1954, . . . the Little Rock District School Board adopted, and on May 23, 1954, made public, a statement of policy entitled "Supreme Court Decision -- Segregation in Public Schools." In this statement the Board recognized that