IV. Resisting Brown

A. The Southern Manifesto and the Parker Doctrine

Negative reactions and opposition to Brown I and II were immediate and intense. In 1956, U.S. Senators and Representatives from southern states placed in the Congressional Record the “Southern Manifesto” in which they declared that the “unwarranted decision of the Supreme Court in the public school cases is now bearing the fruit always produced when men substitute naked power for established law.” These elected officials “pledg[ed] [themselves] to use all lawful means to bring about a reversal of this decision which is contrary to the Constitution.” Moreover, and going beyond words and protestations, resistance to Brown and to the broader pursuit of racial justice and integration came in the form of the murder, bombings, beatings, and castrations of those fighting for and seeking relief from the entrenched and enervating system of racial caste and hierarchy.

The meaning and mandate of the Court's decisions were articulated in limiting ways in one of the cases remanded by Brown II. In Briggs v. Elliott Judge John J. Parker, writing for a three-judge panel, opined that the Supreme Court

has not decided that the federal courts are to take over or regulate the public schools of the states. It has not decided that the states must mix persons of different races in the schools or must require them to attend schools or must deprive them of the right of choosing the schools they attend.

All that was decided “is that a state may not deny any person on account of race the right to attend any school that it maintains.” The Constitution is not violated where “the children of different races voluntarily attend different schools, as they attend different churches.” Accordingly, Parker concluded:

Nothing in the Constitution . . . takes away from the people freedom to choose the schools they attend. The Constitution, in other words, does not require integration. It merely forbids discrimination. It does not forbid such segregation as occurs as the result of voluntary action. It merely forbids the use of governmental power to enforce segregation.

Commenting on this integration-not-required reading of Brown, known as the “Parker Doctrine,” J. Harvie Wilkinson III stated:

The distinction between Thou Shalt Integrate and Thou Shalt Not Segregate is all-important. If Brown were read to require integration, southern school boards would be under an immediate duty to submit plans for substantial racial mixing. If, as Parker contended, Brown merely prohibited segregation, then the question became what evidence courts would accept that school boards were no longer doing so.

As other district courts agreed with and adopted Parker's approach, Briggs “set a standard for evasiveness by school districts throughout the South.” The dictum of that decision was “relied upon for a decade by those who sought to circumvent the mandate of Brown by perpetuating school segregation” until the Briggs approach was later rejected by the Supreme Court.

B. Resistance

Several southern state legislatures passed resolutions declaring Brown null and void, employing the doctrine of interposition and nullification, a theory dating back to the 1880s and associated with, among others, secessionist John Calhoun of South Carolina. “The doctrine's basic premise is that the Constitution is a compact between sovereign states that delegates strictly limited powers to the federal government. According to the theory, when the federal government exceeds those limits, states have a right to ‘interpose’ their authority between the federal government and their citizens.” A majority of the states of the former Confederacy adopted interposition resolutions calling for resistance to Brown and the nullification of federally imposed integration measures. For instance, in February 1956, Virginia resolved to employ “all ‘honorable, legal and constitutional’ means to ‘resist this illegal encroachment on our sovereign powers.”’

An audacious incidence of resistance to Brown and an event of great legal and historical significance occurred in 1957 when Arkansas Governor Orval Faubus and a mob prevented nine black students from enrolling at Little Rock Central High School. President Eisenhower responded by dispatching to Little Rock one thousand soldiers from the 101st Airborne Division (the same division deployed against the Nazis in Normandy in 1944); the Division restored order and the students enrolled in school.

 Three years later, in New Orleans, Louisiana, six-year-old Ruby Bridges was escorted by federal marshals past egg-and-tomato-throwing bigots and into the William Frantz Elementary School (a moment depicted in Norman Rockwell's famous painting The Problem We All Live With). This young child was “the first black pupil to integrate a school” in that city.