In January of 1959, the courts put an end to the uncertainty. Two sets of judges—federal and state—ruled the school closure laws unconstitutional. As long as public schools operated in any locality of the state, they found, it was a violation of the guarantee of equal protection to shut them down in another. Conceding that his state must, finally, obey the courts, the governor convened an emergency session of the state legislature to revoke the school closure legislation and form a commission to propose a new course of action.19
• • •
While the state legislature began to work out a new plan, Buchanan and Nutter put the finishing touches on their own plan. On February 10, eight days after Norfolk reopened its schools, they sent a “private” report to all the members of the new commission. The economists made their case in the race-neutral, value-free language of their discipline, offering what they depicted as a strictly economic argument—on “matters of fact, not of values.” Yet they were, in effect, urging the state to ignore its concerned white parents and continue to stonewall the African Americans seeking equal schooling. And they knew it, which is why they noted that by intervening, they were “letting the chips fall where they may.”20
While most Virginians now assumed that the path forward would include gradual integration in most parts of the state, albeit with mechanisms holding it to a minimum, Professors Buchanan and Nutter made the case for the very opposite: unlimited privatization of education. As believers in individual liberty, they said, they approved of neither “involuntary (or coercive) segregation” nor “involuntary integration.”21 Tax-funded private schools were the answer.
They offered a plan they believed could salvage what remained of massive resistance while surviving court review. How? Privatize education, but do so on the basis of strictly economic arguments. First and foremost, they contended that public schools, which they insisted on referring to as “state-run schools,” had an effective “monopoly.” They lacked adequate competition, because on their own, few parents could afford alternatives. As a result, like all monopolies, state-run schools had no incentive to improve. “Privately operated schools,” by contrast, would have to compete for students, so they would have a strong incentive to try out a “diversity” of curricula, not only encouraging experimentation but meeting different tastes. In essence, “every parent could cast his vote in the [educational] marketplace and have it count.” To foster this system, Virginia should provide a tax-subsidized voucher to any parent who wished to send a child to a private school for any reason. Those schools, being private, would enjoy autonomy, admitting or rejecting students as they chose to, without government interference.22
The importance of the economists’ case rested less on what they proposed than on how their proposals were framed to undercut the arguments of the parents and others who were saying that Virginia simply could not afford to subsidize private schools to salvage segregation.23 Not so, the Chicago-trained scholars countered: those who argued this way were making an accounting error by failing to consider the significant dollar value of existing school facilities. If authorities “sold all the buildings and equipment to private owners,” that would equalize the operating costs of the two systems, and the private schools would prove their inherent superiority. They assured those charged with recommending a court-proof approach that fears that “industry will leave Virginia unless we keep the traditional system of public schools” were groundless. Corporations would not care who ran the schools, they said, as long as good education was available. “All that matters” for the economy, the two scholars maintained, was that the state government support some school system “cheaply and efficiently.” How that schooling was provided was immaterial.24
It was a radical proposal, no question about it, the work of ideologues so committed to their own postulates that they disdained evidence to the contrary, including the cries of colleagues outside economics. Indeed, about ten days before they reached out to the state legislators, over one hundred and fifty moderate local professors had released a petition urging “respect for law and order”; that is, compliance with the federal courts. The scholars described “the maintenance of an efficient system of public education” as the foundation of “our democratic system of self-government.” In a state that denied black citizens political representation, the signers pointedly urged that “all the races . . . be respectfully consulted” and involved “in seeking a satisfactory solution” to the crisis. “We emphatically believe, in keeping with basic democratic principles,” they concluded, that local people have the right to “solve our school problems ourselves,” an implicit reproach of the state government closing schools in local communities that wanted to obey the courts, such as Charlottesville.25
Buchanan and Nutter disagreed: to them, as to Kilpatrick, that would be bowing to federal coercion. It was the team’s first intervention on a public policy issue in their adopted state and they wanted to get it right, so Nutter asked his mentor at the University of Chicago to review their statement on the “ticklish situation.” After all, their arguments were in line with Milton Friedman’s own 1955 article making the case for just such action, which he had written as news of segregationist public officials’ threats to close public education garnered national media attention.26
Friedman found the 1959 Buchanan-Nutter report “admirable.” He urged them to “circulate it widely privately and also seriously consider its publication.” And then he admitted that he “would go much farther than you [have]. . . . In principle the full burden of education should be borne by the parents of children,” not paid by the state. Why, you may wonder, did Friedman want the government out of schooling? That would promote personal responsibility—through birth control. If parents had to bear the full cost of educating their children, he believed they would have “the appropriate number of children.”27
Antigovernment economists had already been worrying about the tax consequences of the then near-hegemonic commitment to public education. Buchanan, together with a like-minded economist, Roger A. Freeman, had served on the National Tax Association’s Committee on the Financing of Public Education, where the two men flagged the growing public school spending of the baby boom era as a “pork barrel” problem and a threat to states’ rights, because with federal investment in education would come regulations concerning how it was to be spent. “Who is going to pay the taxes needed to finance the ambitious programs which are being proposed?” Freeman demanded in a publication issued by the American Enterprise Institute.28 “No nation,” he said in reference to compulsory high school, “has ever attempted to keep so many children in school so long.” It was an excess of democracy to try to educate so many, he suggested, and it would cost taxpayers too much money.29
Professor Freeman also warned the Volker Fund, the foundation that funded Buchanan’s center and most libertarian endeavors, that those calling for more spending on schooling were not just “well organized throughout the country.” They were doing first-rate research and “an extremely effective job of disseminating” their findings. By contrast, “action to offset this propaganda has been negligible,” because the foes of government spending were “largely unorganized.”30 The southern schools fight was changing that, however, opening new hope to the property rights supremacists associated with the Volker Fund.
That hope depended on indifference, at best, to the harm being inflicted on African Americans. To a person, after all, the southerners clamoring for state subsidies for private schooling were whites who wanted to maintain segregation. Black Virginians, by contrast, boycotted the vouchers, viewing them as an affront. Oliver Hill, one of the NAACP attorneys who filed suit for the student strikers of Prince Edward, stated crisply the principle on which they opposed the grants: “No one in a democratic society has a right to have his private prejudices financed at public expense.”31
Indeed, even Buchanan’s University of Chicago mentor, Frank Knight, expressed some concern abou
t “racists” before a visit to Charlottesville. Buchanan responded that Chicago had far more “race hatred” than any place he had lived in the South. He assured Knight that “the Virginia attitude on the whole mess” stemming from Brown had not been based on racism. “The transcendent issue,” he instructed his former teacher, was “whether the federal government shall dictate the solutions.”32
It is true that many observers at the time, and scholars since, have reduced the conflict to one of racial attitudes alone, disposing too easily of the political-economic fears and philosophical commitments that stiffened many whites’ will to fight. So a “both/and” construction would be reasonable. Indeed, since the abolitionists had first enlisted the Commerce Clause of the Constitution to try to stop the profitable interstate traffic in human beings, and later when the New Deal had leveraged it to regulate the economy, class and race had been interwoven with property rights and public power in ways that cannot be understood well with a single-factor analysis.33 To pose the schools conflict as “either/or” in the way Buchanan did, however, was a willful misrepresentation. It waved aside the reality that those who opposed school desegregation had to be coached to invoke the Constitution rather than white supremacy as the reason for their stand. And now he was teaching them to use Mont Pelerin Society economics, too.
Yet why did Buchanan imagine that his proposal for thoroughgoing privatization of public schooling would gain traction with state legislators? Had he not seen the enthusiasm generated by Wensel’s campaign and the crowds at the pro–public school rallies? Those crowds were not northerners brought south to stir up trouble, as spokesmen of the right liked to insinuate. Their members were in good part men and women President Eisenhower might have referred to as modern Republicans, the kind of voters he had been trying to attract.34
Buchanan had first pitched his program to Colgate Darden as a way to push back against federal overreach in the name of liberty. But the parents’ mobilization to save the public schools had revealed harder truths. It wasn’t just the northeastern elite that rejected his vision of a free society. It was tens of thousands of white moderate citizens of the state in whose name Byrd was defying federal power. In fact, the legislators who had voted against the school closure law represented more Virginians than those who voted for it, but the state’s system of apportioning representation made rural votes count for more than urban and suburban votes (rather like the U.S. Senate and the Electoral College overrepresent rural states with small populations).35
Was the problem for those who promoted economic liberty majority rule itself? The economists’ next intervention raised that possibility.
• • •
In early April of 1959, a little less than two months after Buchanan and Nutter circulated their report, the commission set up to chart the way forward voted 22–16 against recommending a proposed change to the state constitution to enable the privatization of public education, a course so new that the verb “to privatize” had not yet been called into being. Some freedom-of-choice vouchers, yes; changing the constitution to further privatization, no. Infuriated, the massive resistance forces organized to build public pressure for such constitutional change. But where they had dominated the public discussion before the school closures, after the moderates’ mobilization, the divide was now closer to a draw. They needed help to have any chance of prevailing in the General Assembly.
Buchanan and Nutter entered the debate again at this moment. The timing of their efforts strongly suggests coordination with Jack Kilpatrick in an eleventh-hour push to persuade the legislators to go further. He editorialized in favor of the changes, which would allow the General Assembly “to authorize any county, on a vote of its [enfranchised] people, to abandon public schools entirely and shift altogether to a scholarship [voucher] approach.” This was the plan Prince Edward County was about to put into effect, now that it faced its own court order to cease racial discrimination come fall. White county leaders’ answer to the court was that because no one had access to public education, no group was being discriminated against. The state constitutional change would also allow localities to sell off their public school buildings and resources to private operators, as the Buchanan-Nutter report urged. Three days later, the two economists went public with their long report advocating school privatization, as Milton Friedman had earlier urged, publishing it in two full-page installments in the Richmond Times-Dispatch.36
But when put to a political test, the team failed yet again. The resolution in question—to end the constitutional guarantee of free public schools throughout the state—went down in the House of Delegates by a vote of 53–45. The legislators’ reluctance to go that far is not surprising. Not many bought the argument that, as a state legislator from Appomattox, of all places, expressed it, “it’s not the education of our children that’s so important. It’s states’ rights.” That seemed too radical even for state legislators who had prided themselves on their defiance of the Supreme Court. Most understood that a fire sale of tax-funded public schools to private school operators would be political suicide. They wanted to stop integration, not be ejected from office.37
The vote marked the definitive end of the state’s official policy of massive resistance to Brown. “The Byrd machine,” observed one reporter, “misread the feeling of the majority of Virginians.”38 The Organization never recovered its former power.
• • •
For his part, Jim Buchanan learned lessons from this experience that informed his thinking for the rest of his life. Faced with majority opinion as expressed in votes, politicians could not be counted on to stand by their stated commitments. Even those who previously had pledged fealty to state sovereignty, individual liberty, and free enterprise would buckle, owing to their self-interest in reelection. Buchanan also learned that his adopted state was more committed to public education than he had realized, having taken his cues from Harry Byrd and Jack Kilpatrick. Of course, he blamed the defeat on “educrats” (as segregationists so often called teachers’ associations, principals, PTAs, and school-of-education faculty), whose influence he had underestimated. He learned something else, too: constitutions matter. If a constitution enabled what he would call “socialism” (which, in Virginia’s case, meant requiring a system of public schools), it would be nearly impossible to achieve his vision of radical transformation without changing the constitution.
Over the next few years, with the expansion of the southern electorate and the demise of Harry Byrd’s approach to governance looming, James Buchanan began developing the innovative approach to political economy for which he was later awarded the Nobel Prize. In these final hours of the massive resistance era, then, can be found the seed of the ideas guiding today’s attack on the public sector and robust democracy alike.
Meanwhile, back in the county where Barbara Rose Johns first organized for fair treatment, and where officials continued to insist that they would abandon public education entirely rather than submit to “dictation” by federal courts, the Board of Supervisors voted a few weeks later to close the schools.39 That September, they padlocked every public school and opened new private schools for the white children while leaving some eighteen hundred black children with no formal education whatsoever. “It’s the nation’s first county,” reported the Wall Street Journal, “to go completely out of the public school business.” Local black youth remained schoolless from 1959 to 1964, when a federal court intervened to stop the abuse.40
Throughout those five years, as James Buchanan developed the Virginia school of political economy, he remained mute about the well-publicized tragedy. He saw no reason to distinguish the liberty white county leaders claimed as self-justification for denying education to a community that had dared to challenge them in federal court from what he was seeking to advance with his new school of thought. Quite the contrary, he aggressively defended his adopted state. As the Prince Edward schools remained padlocked and Virginia used tax re
venues to build up an infrastructure of segregated white private schools (in a formally color-blind voucher system that survived court challenge until 1968), while keeping black voters from the polls, another southern-born economist, Broadus Mitchell, reached out to Buchanan. Mitchell, who had resigned from Johns Hopkins University two decades before over its refusal to admit a black student, challenged the Thomas Jefferson Center to leave the realm of fine philosophical abstraction and hold a program on “democracy in education”—and, in the name of “social decency,” stand up for the integration of UVA. Buchanan answered curtly that “Virginia, as a state, has, in my opinion, largely resolved her own problems” in education. He then sent the new university president his own rebuke to the “annoying” letter, calling Mitchell “a long-time joiner of all ‘soft-headed,’ ‘liberal’ causes,” and lied that his critic had made “no notable contributions” as a scholar.41
CHAPTER 5
TO PROTECT CAPITALISM FROM GOVERNMENT
Had the contest between states’ rights and individual rights abated after Brown and its progeny, James Buchanan and the right-wing donors who underwrote his center might have felt less urgency. But that is not what happened. As anticipated, a court that found segregated schooling to be a violation of the Constitution’s guarantee of equal protection soon began to heed challenges to other realms of southern life in which state governments were inflicting or safeguarding inequity. Of the many areas of vulnerability, none stood out as more egregious than state actions to suppress citizen participation in the political process, particularly but not only among African Americans, and to misrepresent the will of the majority. So it is not surprising that voting rights cases moved to the forefront of the national agenda. Nor that the results proved transformative all around.
Democracy in Chains Page 11