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Excerpted From: Leland Ware, Black Lawyers and Civil Rights: The NAACP's Legal Campaign Against Segregation, 67 Washington University Journal of Law & Policy 393 (2022) (59 Footnotes) (Full Document)

LelandwareThe Civil Rights Movement is remembered as a broad-based, grassroots series of events consisting of mass marches, boycotts, and other protest activities of the 1950s and '60s. Actually, that was the second phase. The first phase commenced in 1935 with a long-range, carefully orchestrated series of lawsuits that culminated with the 1954 decision in Brown v. Board of Education. This Essay is an overview of the legal campaign, including the organization, development, and execution of legal challenges to segregation, by the NAACP working with national and local Black lawyers' organizations such as the Mound City Bar Association.

The Essay begins with a discussion of Plessy v. Ferguson's establishment of the “separate-but-equal” doctrine. It describes the development in the 1930s of the NAACP's analysis and recommendations for legal challenges to segregation. It also explains the execution of the “equalization” strategy that culminated with Brown v. Board of Education. The following section analyzes the southern states' “massive resistance” to school integration in the 1950s and '60s. The concluding sections explain how the federal subsidies that made the development of suburban communities possible intentionally excluded African American families. The legacy of government's discriminatory housing policies is reflected in high levels of continuing segregation in neighborhoods and schools in many urban communities.

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In 1896, the Supreme Court ruled in Plessy v. Ferguson that “the enforced separation of the races ... neither abridges the privileges or immunities of the colored man, deprives him of this property without due process of law nor denies him equal protection of the law within the meaning of the Fourteenth Amendment.” The Court endorsed segregation and established the “separate-but-equal” doctrine. It held New Orleans's segregation ordinance did not violate the Constitution if the facilities provided for blacks were equal to those reserved for whites. The Court observed “[i]f one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.” The vision of segregation was a two-tiered society. Blacks could work as domestic servants, janitors, laborers, and other menial occupations. They were not allowed to vote in the South. They were confined to crowded, substandard housing in segregated neighborhoods.

In 1909, the National Association for the Advancement of Colored People (NAACP) was established to fight segregation. After years of unsuccessful lobbying, public education, and protest activities, the NAACP shifted its focus. In 1922, Charles Garland, the son of a Boston millionaire, donated $800,000 to establish a fund to support radical causes. A committee was established that included James Weldon Johnson, the executive secretary of the NAACP; Roger Baldwin, the founder of the American Civil Liberties Union; and other progressives. Garland turned the money over with the request it be given away as quickly as possible, even to unpopular causes. The committee proposed that the fund award a grant to the NAACP to carry out large-scale legal campaigns to advance the constitutional rights of African Americans.

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In the 1950s and '60s, Civil Rights advocates hoped that placing black and white students in the same schools would create equal educational opportunities for the entire student body. That did not always work out. In many schools, African Americans and Latinos are still treated differently and less favorably than similarly situated white students. One of the factors driving the current phenomenon is implicit bias. Researchers have shown that many white teachers make negative assumptions about students' capacity to learn based on their backgrounds and ethnicity. This is an unconscious attitude that occurs automatically without the perpetrator's knowledge. Negative stereotypes about black students are communicated by, among other things, body language, affect, and speech. When black students perceive a teacher's negative attitudes, it can adversely affect their interactions with teachers.

Educational success entails a range of cultural behaviors, extending to such non-academic attributes as decorum, mannerisms, and accents. White students from affluent backgrounds have learned the expected behavior. In many cases, children from low-income and minority backgrounds have not. Affluent students fit the pattern of their teachers' expectations. Underprivileged and minority students are frequently seen as “difficult” and presenting “challenges.”

An example of this phenomenon is reflected in research on discipline disparities. In March of 2014, the U.S. Department of Education released data containing information on approximately 16,500 school districts, 97,000 schools, and 49 million students. The data showed that racial disparities in out-of-school suspensions start at the earliest stages of the educational process. African American children represent 18% of preschool enrollment but 42% of the preschool children who are suspended once, and 48% of the preschool children suspended more than once.

Overall, black students are suspended and expelled at a rate three times greater than white students. On average, 5% of white students are suspended, compared to 16% of black students. Black students represent 16% of the student population, but 32%-42% of students suspended or expelled. Numerous studies show that the higher rates of discipline received by African American students are not attributable to more serious or more disruptive behavior.

Social capital is transmitted by the parents of affluent students. They are inculcated with speech patterns, styles of dress, and comportment that equip them with the attributes needed to reproduce their parents' social position. These class-based advantages can be erroneously interpreted as a reflection of a student's “hard work” or “innate” ability. Unconscious assumptions can create formidable barriers to their success. The nation still has a long way to go to achieve equality in educational settings.

Leland Ware, Louis L. Redding Chair and Professor of Law & Public Policy, University of Delaware.

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