White Rage

by Carol Anderson

  While McCulloch saw the need to protect the ballot box, Attorney General John Mitchell announced that the Department of Justice, which he viewed as “an institution for law enforcement, not social improvement,” opposed the renewal of the Voting Rights Act because it targeted, and therefore discriminated against, the South.43 This upside-down framing of the VRA (and the sense that it was somehow not about the law but social engineering) purposely whitewashed the brutal electoral history of Jim Crow, somehow transforming ruthless perpetrators into innocent victims.

  Alabama, Georgia, Louisiana, Mississippi, South Carolina, Virginia, and thirty-nine counties in North Carolina were singled out in the Voting Rights Act because they had mocked the Fifteenth Amendment and then contemptuously toyed with electoral discrimination lawsuits brought under the anemic Civil Rights Act of 1957. In addition, many of these states had also sanctioned or even fomented widespread terrorism against voting rights activists. The bullet-riddled corpses of James Chaney, Andrew Goodman, and Michael Schwerner, unearthed after months spent beneath tons of dirt in Neshoba County, Mississippi, served as a warning that those advocating the right to vote were, as one local woman scoffed, “just looking for trouble.”44 The televised fury unleashed on peaceful demonstrators in Selma, Alabama, as they tried to symbolically carry to the state capital of Montgomery the casket of slain voting rights activist Jimmie Lee Jackson, who had been killed by law enforcement, was only larger in scale than the day-to-day brutality that led to less than 1 percent of blacks in Selma being registered to vote. The horror on the Edmund Pettus Bridge was punctuated shortly thereafter by the bludgeoning death of Reverend James Reeb, who had come to Selma in support of voting rights.45 The ambush and execution of Herbert Lee, who was helping to register blacks to vote, by a Mississippi legislator, followed soon after by a shotgun blast that blew off Louis Allen’s face, sent a signal that the death sentence awaited those who believed that the Fifteenth Amendment applied to African Americans too.46

  Despite Mitchell’s insinuation, the Voting Rights Act was neither capricious nor punitive. It was, as the Department of Justice noted, “targeted at those areas of the country where Congress believed the potential for discrimination to be the greatest.”47 In 1966, in South Carolina v. Katzenbach, the Supreme Court, in an 8–1 decision, affirmed the need for federal oversight, ruling that:

  Congress had found that case-by-case litigation [based on the 1957 Civil Rights Act] was inadequate to combat wide-spread and persistent discrimination in voting, because of the inordinate amount of time and energy required to overcome the obstructionist tactics invariably encountered in these lawsuits. After enduring nearly a century of systematic resistance to the Fifteenth Amendment, Congress might well decide to shift the advantage of time and inertia from the perpetrators of the evil to its victims.48

  Indeed, the impact of the Voting Rights Act was profound. Just prior to its passage, only 6.7 percent of black adults were registered to vote in Mississippi. Three years later, with federal oversight and Section 5 preclearance that required the Department of Justice or district court in Washington, D.C., to approve any changes to the state’s election laws, the number of black registered voters had skyrocketed to 59.4 percent.49

  Because the Voting Rights Act was clearly working, the first civil rights legislation Nixon sent to Congress proposed eliminating Section 5 and stretching the VRA’s scope to the entire country.50 Far from trying to disfranchise black voters, Nixon disingenuously explained, the amended legislation sought simply to address an imbalance that, when other areas of the nation also discriminated against segments of their citizenry, left the South unfairly singled out.51 What eventually became clear during the congressional hearings, however, was that Nixon’s new “civil rights legislation” would create a wholly uncivil America. “With the entire nation covered,” the attorney general admitted, “it would be impossible for the Civil Rights Division of the Department of Justice to screen every voting change in every county in the nation.” And thus, his staff would be unable to enforce the Voting Rights Act at all. Those who believed their rights had been violated at the ballot box, Mitchell continued, just needed to go through the courts. In essence, Nixon’s plan was to hurl African Americans and the nation back to the slow, litigious route carved out in the long-since-discredited Civil Rights Act of 1957.52

  During the VRA’s extension hearings, South Carolina senator Strom Thurmond embraced the Nixon administration’s idea as he floated a narrative of racial innocence that minimized the terror and walled off the brutal history of disfranchisement. Thurmond was emphatic that it was just wrong “to continually charge a state and a people with any alleged injustice that occurred many years ago.” The NAACP’s Clarence Mitchell looked Thurmond in the eye and countered that the injustices were hardly “alleged” but, in fact, well documented. “We could fill this room with the record of discrimination in the state of South Carolina,” Mitchell informed the senator. Nor was Thurmond’s “many years ago” accurate. At every turn in the civil rights struggle, the NAACP’s representative asserted, “South Carolina has fought us all the way.” Indeed, in 1966, one year after the VRA had passed, the state went before the U.S. Supreme Court, arguing that the Voting Rights Act infringed on states’ rights, had illegally inserted federal registrars in counties that had literacy tests (which had been outlawed by the VRA), and presumed the state’s guilt simply because far into the twentieth century, only 0.8 percent of South Carolina’s voting-age black population was registered to vote. As Mitchell well knew, the court’s South Carolina v. Katzenbach decision dismantled every one of the state’s arguments and found the VRA constitutional. “Now that it appears we have won,” Mitchell observed, “we don’t want to have a situation develop where the White House gives back to South Carolina all the rights to discriminate that we have succeeded in wresting from them.”53

  The House and Senate agreed, refused to scuttle “the single most effective piece of civil rights legislation ever passed by Congress,” and instead renewed the Voting Rights Act for another five years.54 Still, the attorney general’s initial thrust had made it all too clear how vulnerable the VRA was now, with its very strength—the increase in black voting—exposing its political jugular. Under the right circumstances and in the right venue, the vaunted Voting Rights Act could be taken down.

  The Nixon administration turned its sights as well on Brown, which was already weakened by Massive Resistance and the subsequent tactic of stall and undermine. Almost fifteen years after the landmark Supreme Court decision, Mississippi, ever recalcitrant, had yet to desegregate its public school system. When, on July 3, 1969, the federal court ordered the state to implement Brown by that fall, Nixon’s attorney general, as well as his secretary of Health, Education, and Welfare, convinced the judges to reverse the decision because “time was too short and the administrative problems too difficult to accomplish … before the beginning of the 1969–1970 school year.”55 In other words, by rejecting the Cooper v. Aaron decision about the unacceptability of kowtowing to state-sponsored obstruction, the Department of Justice, in league with HEW, ignored that Mississippi had already had more than a decade to develop a plan.

  Nixon’s four new appointments to the Supreme Court would follow through by eviscerating the constitutional right of black children to an education and then some. As vacancies opened on the bench, the president was drawn to the “law and order” writings of Warren Burger, who would replace Earl Warren as chief justice. Nixon also approved of the “strict constructionists” decisions and southern roots of Virginian Lewis Powell, and remained impressed by the “moderately conservative philosophy” and relative youth (at forty-seven years old) of William Rehnquist. The most contentious battles came over two of Nixon’s Southern nominees, Clement Haynsworth, a “laundered segregationist,” in the opinion of Joseph Rauh, counsel to the Leadership Conference on Civil Rights; and G. Harrold Carswell, who had ruled that “segregation of the races is proper and the only practical and c
orrect way of life in our states.” After a bruising series of confirmation hearings, the Senate rejected both. Nixon then turned to his default choice, a Northerner, Harry Blackmun. Admiring his handiwork years later, the president reflected, “I consider my four appointments to the Supreme Court to have been among the most constructive and far-reaching actions of my presidency … The men I appointed shared my conservative judicial philosophy and significantly affected the balances of power that had developed in the Warren Court.”56 This was an understatement, even for Richard Nixon. The court’s subsequent decisions shut down access to quality education while allowing blatant racial discrimination to run rampant in criminal procedures.

  Two important 5–4 Supreme Court decisions in which Nixon’s appointees were in the slim but decisive majority undercut the possibility that Brown would ever fully be implemented. The first was the 1973 San Antonio Independent School District v. Rodriguez case. Parents from an impoverished, overwhelmingly minority neighborhood took Texas to court because the school funding mechanism, which relied on property taxes, created such disparate revenues as to make equal educational opportunity impossible. Of course, the value of property, on which school funding was heavily based, derived from government enforcement of residential segregation and discriminatory housing laws, as well as a series of public policy and zoning decisions such as where to put landfills, erect sewage treatment plants, allow liquor stores, and approve industrial plants.57 Zoning had had a particularly deleterious effect on the Edgewood neighborhood of San Antonio, which was 96 percent Mexican American and black. That section had the lowest property value in the city, as well as the lowest median income.58

  So committed were the parents to their children’s education, however, that they voted for school levies that taxed their property at the highest rate in the area, which, even then, generated only $21 per student per academic year. Whereas the affluent, predominately white San Antonio neighborhood of Alamo Heights, whose property tax rate was significantly lower than Edgewood’s, still produced enough revenue to expend $307 per pupil. Or, to put it another way, Alamo Heights secured nearly 1,500 percent more in funding with a significantly lower tax rate.59

  Seeing the inequity, the parents in Edgewood screamed foul and sued. The U.S. district court, using Brown as the template, agreed. In a survey of 110 school districts throughout the state, the judges found that while the wealthiest districts in Texas taxed their property at 31 cents per $100, the poorest were “burdened” with a rate of 70 cents. Nevertheless, the district court continued, even with their low tax rate, the rich districts netted $525 more per pupil than the poor districts did. Clearly, the judges concluded, Texas’s funding scheme “makes education a function of the local property tax base.” The district court, therefore, ruled that “education is a fundamental right,” that the state’s use of “wealth” was a synonym for race and thus subject to judicial “strict scrutiny,” and that Texas’s funding scheme was irrational and violated the equal protection clause of the Fourteenth Amendment.60 As the case moved up to the U.S. Supreme Court, Texas pleaded racial innocence and claimed not only that it was meeting the bare minimum requirements for access to education but also that it could not and should not be held responsible for the differences between what poor districts and wealthy ones amassed.

  Nixon’s four appointees to the court, as well as Potter Stewart, who had been tapped by Eisenhower, agreed. In a March 1973 ruling that pulled the rug out from under Brown, they found that “there is no fundamental right to education in the Constitution.” The justices concluded, too, that the state’s funding scheme “did not systematically discriminate against all poor people in Texas,” and, because reliance on property taxes to fund schools was used across the country, the method was not “so irrational as to be invidiously discriminatory.” For the court, then, the funding scheme, in which, for example, Chicago allocated $5,265 for African American pupils while the adjacent suburban school district of Niles appropriated $9,371 per student, was perfectly constitutional. Thus, despite the same kinds of rampant funding disparities that had led to Brown, Justice Lewis Powell declared that he saw no discriminatory public policy at all. With residential segregation no longer enforced by the government, whites and minorities alike, he felt, were free to move wherever they wanted in search of better schools. The fact that most minorities—after centuries of government-enforced racism in education and employment—simply did not have the economic wherewithal to move was overlooked.

  And so, even in the waning days of the Civil Rights Movement, entrenched, constitutionally unequal education was once again an important part of the nation’s way of life. “The Equal Protection Clause does not require absolute equality,” Powell declared in a powerfully worded edict, “or precisely equal advantages.”61 What was at work here was class, not race; and class, unlike race, was not a “suspect category” that required “strict scrutiny.” If Texas had a rational basis for its property tax system, the justices concluded, then the mechanism met judicial standards, despite producing a 975 percent disparity in school funding between white and minority children in Texas.

  Fully recognizing the implications of Rodriguez, Justice Thurgood Marshall was apoplectic. More than 40 percent of black children fourteen and under lived with families below the poverty line, as compared with about 10 percent of white children.62 Under those circumstances, Marshall feared, African American children wouldn’t stand a chance. The decision, he wrote in his dissent, could “only be seen as a retreat” from a “commitment to equality of educational opportunity” as well as an “unsupportable” capitulation to “a system which deprives children … of the chance to reach their full potential as citizens.” He was simply dumbfounded that the majority would acknowledge the existence of widely disparate funding for schools across Texas but then, instead of focusing on the cause of that disparity, clumsily pirouette to all of the state’s supposed efforts to close the gaps. “The issue,” Marshall explained, “is not whether Texas is doing its best to ameliorate the worst features of a discriminatory scheme but, rather, whether the scheme itself is in fact unconstitutionally discriminatory.”63

  Moreover, he found it the height of “absurdity” that Texas could actually argue there was no correlation between funding and school quality and then, from that faulty premise, deduce that there were “no discriminatory consequences for the children of the disadvantaged districts.” Given the slew of amicus curiae briefs flooding the court supporting Texas’s school funding scheme against the poor’s challenge, Marshall wryly observed that if “financing variations are so insignificant to educational quality it is difficult to understand why a number of our country’s wealthiest school districts … have nevertheless zealously pursued its cause before this Court.” He was equally unimpressed with Texas’ tendency to parade before the justices stories of children who had excelled despite living in under-resourced districts as some sort of proof that funding was irrelevant. That a child could excel even when “forced to attend an underfunded school with poorer physical facilities, less experienced teachers, larger classes,” and a number of other deficits compared with “a school with substantially more funds,” Marshall barked, “is to the credit of the child not the State.”64 Rodriguez placed the onus solely on the backs of the most vulnerable, while walling off access to the necessary resources for quality education, and played beautifully into the “colorblind,” post-civil-rights language of substituting economics for race, yet achieving a similar result. The simple truth was that, by virtue of the sheer demographics of poverty, Rodriguez would have not only a disparate impact on African American children but also a disastrous one.

  The next year, Nixon’s Supreme Court appointees landed yet another powerful blow to Brown. This time the case emerged out of the North, in Detroit, which, by the early 1970s, was a predominately black city surrounded by overwhelmingly white suburbs. The K–12 system mirrored the racial geography, with virtually all the schools in the city more than 90 percent
African American. Those schools were overcrowded, sometimes with classrooms holding as many as fifty students, and buildings so decayed and unsafe that classes were taught in trailers parked on the school grounds. Vera Bradley, a black mother of two sons, Richard and Ronald, wanted more for her children and turned to the NAACP for help. On August 18, 1970, Association general counsel Nathaniel Jones filed suit in the federal district court on Bradley’s behalf against a number of officials including Governor William Milliken because, Jones noted, “these children were kept in schools that the Supreme Court said … were unconstitutional.” City leaders, hoping to have the case withdrawn, devised a number of plans to integrate the K–12 system, but, as the district court noted, each scheme left the schools overwhelmingly identifiable racially and Detroit even blacker than before. The judge therefore ordered a metropolitan Detroit desegregation plan that spread beyond the city’s borders. The suburbs immediately protested.65

  The U.S. Supreme Court, however, calmed their fears. Just as Rodriguez ensured that funding in overwhelmingly white suburbs would never leak into the city schools, Milliken v. Bradley (1974) ensured that whites would not have to attend schools with African Americans. To accomplish this feat, the court had to ignore the role the law had played—in residential segregation; white flight; discriminatory public policy that financed, subsidized, and maintained white suburbs; and legislation that drew and redrew boundaries and curtailed transportation options—in keeping black children trapped in impoverished cities and subpar schools. Five justices held there was no evidence whatsoever that the outlying school districts had discriminated against blacks or been responsible for the racially distinct condition of inner-city Detroit. And if the suburbs were not part of the problem, the court reasoned, they could not be part of the solution. Then, as if to underscore the full retreat from Brown, the justices emphasized the importance of “local control” of schools and chastised the district court for overstepping its bounds. In a final coup de grâce, they added that Brown did not require “any particular racial balance in each school, grade, or classroom.”66