Commentary

Multiple COVID-19 waves have left in their wake compelling evidence of long overlooked gaps in pandemic readiness and responsiveness. The primary lesson for the US public health and healthcare sectors is that this deep-rooted ignorance took a huge toll on their ability to contend with a novel, rapidly spreading, and lethal contagion. As historian Peter Burke recently noted: "Many vivid examples of the consequences of ignorance come from the history of diseases."¹Peter Burke, Ignorance: A Global History (New Haven: Yale University Press, 2023), 189. COVID-19 is a current case in point. What was missed or mismanaged in the run up to the pandemic and during its catastrophic course will, if left unexamined and uncorrected, lead to enormous suffering and loss in additional public health crises. In this commentary, I want to elaborate on how institutionalized ignorance affected the Centers for Disease Control and Prevention's (CDC's) response and what can and should be done to learn from the agency's mistakes, with the goal of avoiding a repetition.

A thorough and fully transparent probe of CDC's recent history is warranted, one that scrutinizes "institutional obliviousness, under a succession of agency directors and programmatic leaders, to basic gaps in readiness and responsiveness that became glaringly obvious during the pandemic and contributed to numerous missteps in the US response to COVID-19."²Daniel Pollock, "COVID-19 Lessons in Ignorance," Southern Spaces, April 28, 2022, the first in a public health series covering the pandemic: https://southernspaces.ecdsdev.org/2022/covid-19-lessons-ignorance/. Far too much had to be cobbled together on the fly in early 2020 largely because of prior organizational neglect. And far too little has changed three years later, even as CDC moves ahead with its latest—to date, largely upper echelon—reorganization.³Centers for Disease Control and Prevention, "CDC Moving Forward Reorganization: A Notice by the Center for Disease Control," Federal Register 88, no. 29 (2023): 9290, https://www.federalregister.gov/documents/2023/02/13/2023-02929/cdc-moving-forward-reorganization.

Yes, SARS CoV-2 is a novel pathogen that spread rapidly, wreaked extraordinary devastation, and evolved quickly. Lots of impromptu learning about the virus and measures to contain or counter was necessary. However, pandemic warning signals abounded for years, and many assets CDC needed to function optimally in public health emergencies—as well as in non-pandemic times—were long overlooked or chronically under supported by virtue of the agency's own strategic planning, programmatic priority setting, and discretionary funding decisions. In surveillance and data science, for example, CDC did not fully mind and mend critically important gaps in electronic case reporting, immunization information systems, forecasting and outbreak analytics, and tools and dashboards for data visualization.

Certainly, factors largely beyond CDC's control had major impacts on the agency's performance. Besides the virus itself, CDC had to contend with (1) a coterie of federal government executives, most notably the 45th President, who failed to respond effectively and exerted unprecedented political interference; (2) a legacy of outbreak responses in the United States that are highly decentralized and contingent on a variety of situational circumstances; (3) longstanding constraints on CDC's public health authorities; and (4) chronic underfunding of public health programs at all levels of government. Each of these factors helps explain limitations, gaps, and shortcomings in the agency's performance. However, to leave the matter there would mean overlooking the impact of internal organizational factors that remain largely under CDC's control. Whether the agency has fully reckoned and responded to its internal problems is an open question that warrants much more attention.

"To be frank, we are responsible for some pretty dramatic, pretty public mistakes, from testing to data to communications," CDC Director Rochelle Walensky acknowledged in August 2022. However, the full CDC Scientific and Programmatic Review report that prompted Dr. Walensky's critique remains under wraps and not publicly available. Many months after the report was completed, all that CDC has published is a high-level summary and set of recommendations.⁴"CDC Moving Forward Summary Report," Centers for Disease Control and Prevention, Last reviewed September 1, 2022, https://www.cdc.gov/about/organization/cdc-moving-forward-summary-report.html. What was covered in the review, its methods and findings, and how conclusions were reached are shrouded in secrecy. Sequestering the report does not bode well for efforts to learn from CDC's COVID-19 experience and improve the agency's performance. Instead, CDC leaders have opted for a form of knowledge concealment that serves to perpetuate institutionalized ignorance.

For those of us who are deeply concerned about where the agency is headed, this is a fraught moment, yet organizational dysfunctions, mishaps, setbacks, and downturns are not necessarily points of no return. Learning from the COVID-19 pandemic and CDC's response to it can lead to changes that help revitalize the agency. Concealing the recent scientific and programmatic review report is not a good start along the path of organizational learning.

"Organizational learning," according to a leading researcher in the field and her colleagues, "is a process through which experience performing a task is converted into knowledge, which, in turn, changes the organization and affects its future performance."⁵Linda Argote, Sunkee Lee, and Jisoo Park, "Organizational Learning Processes and Outcomes: Major Findings and Future Research Directions," Management Science 67, no. 9 (2021): 5399–5429. The process should include gathering and moving information across organizational boundaries; eliciting and using multiple viewpoints; acknowledging hierarchies, policies, and practices that have not worked; and trying new approaches that have a higher likelihood of success. A prime example of an opportunity to learn from the COVID-19 experience is reckoning with how the agency organized, staffed, and operated its emergency response. From my perspective, the structure and process defects were profound and persistent, with the upshot that returns on the extraordinary time and effort so many CDC responders committed to their tasks fell well short of what would warrant use of all those precious resources. What purposes did the CDC response serve? Did the agency achieve those purposes? What was necessary to get the job done? Among the more specific questions about CDC's emergency operations is whether all the work involved with preparing, clearing, and presenting extensive PowerPoint slide decks in daily COVID-19 briefings was worthwhile. What were the benefits and at what cost? 

Most of CDC's performance problems during the pandemic were the legacy of organizational neglect, not the exigencies of a novel corona virus or other external factors. The botched laboratory test rollout, flawed testing guidance, poorly prepared public health guidelines, confusing messaging, misguided mask recommendations, multiple data and analytic deficiencies, staffing shortfalls, and publication delays are traceable to assumptions widely held within the agency about institutional readiness coupled with longstanding inattentiveness by CDC directors and programmatic leaders to known or partially understood gaps. That CDC was not ready to go live sooner with a publicly facing, state-of-the art COVID-19 data display epitomizes what the agency had neglected. Instead, other data visualization websites, most notably Johns Hopkins University's dashboard, served as the go-to destinations for pandemic surveillance data. The reputational damage to CDC is severe and could have been avoided. 

So much had to be launched or improvised by CDC in crisis mode because so much had been taken for granted or ignored for such a long time. Some additional examples from my own experience: When I joined the CDC response as Deputy Incident Manager for data and surveillance at the end of March 2020, I was surprised to learn that the agency had yet to introduce a process to enable secure data access and distribution of COVID-19 data sets to prospective data users who had been identity-proofed by the U.S. Department of Health and Human Services. Further, CDC had taken no steps to inventory and document relevant data sets and make provisions for sharing de-identified data with news organizations, one of which moved forward with a lawsuit to gain access to COVID-19 case data aggregated by CDC. The agency should have closed these basic gaps in data provisioning well before the pandemic, not during the throes of it. The only explanation of this blunder that I can think of is lack of forethought and follow through.

SARS CoV-2 is not the first viral respiratory pathogen to emerge and spread across country borders in the twenty-first century. While each international outbreak has presented a unique mixture of causes and consequences, they also have had much in common. That commonality places a premium on learning from each event and applying take-away lessons in a thoroughgoing way. What's ahead epidemiologically can surpass what's happened already in terms of complexity and magnitude, and that only heightens the stakes for CDC's organizational learning and pandemic preparedness.

While there are many pockets of CDC excellence, the organization, most notably because of its COVID-19 response, has taken multiple hits—some reflect ignorance about the agency's mission, operations, opportunities, and constraints but others are knowledgeable, on target, and of high consequence. There is much to do—and soon. We need to know more about CDC's performance gaps and shortcomings, and how to remedy them. To that end, instead of treating the full details of CDC's COVID-19 mistakes as a sequestered resource, it behooves CDC leaders to build on, transfer, and most importantly, act on what has been learned.⁶Jeffrey Pfeffer and Robert I. Sutton, The Knowing-doing Gap: How Smart Companies Turn Knowledge into Action (Cambridge, MA: Harvard Business School Press, 2000): 261. In the pandemic's wake, a much stronger commitment to organizational learning by CDC will provide the quickest and most effective solutions to the institutionalized ignorance that placed the public and the agency at risk.

About the Author

After completing the CDC's Epidemic Intelligence Service training program in 1986, Daniel Pollock worked as a medical epidemiologist at the agency for 35 years. Dr. Pollock led the CDC unit responsible for national surveillance of healthcare-associated infections from 2004–2021, and he served in CDC's COVID-19 emergency response in the spring of 2020 as the Deputy Incident Manager for data and surveillance.

Public Health in the US and Global South is a collection of interdisciplinary, multimedia publications examining the relationship between public health and specific geographies—both real and imagined—in and across the US and Global South. These essays raise questions about the origin, replication, and entrenchment of health disparities; the ways that race and gender shape and are shaped by health policy; and the inseparable connection between health justice and health advocacy.

Beginning in 2022, the series expands to include 1000-word blog posts, as well as longer commentaries, essays, articles and media productions that address the public health and political implications of the COVID-19 pandemic from multiple perspectives. The series editor for Public Health in the US and Global South is Mary E. Frederickson.

A case argued in October 2022 concerning Congressional reapportionment in Alabama reveals that the Court's conservative majority is likely poised to follow the lead of Associate Justice Samuel Alito, who in July 2021 wrote the Court's majority opinion reinterpreting the Voting Rights Act's Section 2 to make it more difficult to win a case challenging laws that restrict voting procedures.¹ Steve Suitts, "Undoing the Voting Rights Act," Southern Spaces, July 12, 2021, https://southernspaces.ecdsdev.org/2021/undoing-voting-rights-act/.

By further crippling the Act's Section 2, instead of voiding it completely, as the Court did nine years ago to the Act's Section 5 in an opinion by Chief Justice John Roberts involving Shelby County, Alabama, the current Court will reach the same practical result: overturning the ruling of a three-judge court (composed of two Trump-appointed and one Clinton appointed federal judges) that would permit Alabama's Black voters—one-fourth of the state's population—an opportunity to help elect a candidate of their choice in two (not just one) of the state's seven Congressional districts.²Amy Howe, "In 5–4 vote, Justices Reinstate Alabama Voting Map Despite Lower Court's Ruling that It Dilutes Black Votes," Scotusblog, Feb. 7, 2022, https://www.scotusblog.com/2022/02/in-5-4-vote-justices-reinstate-alabama-voting-map-despite-lower-courts-ruling-that-it-dilutes-black-votes/; Merrill v. Milligan, 142 S. Ct. 879 (2022); Shelby County, Ala. v. Holder, 570 US 529 (2013). Steve Suitts, "States Rights Resurgent: The Attack on the Voting Rights Act," Southern Spaces, Aug. 29, 2013, https://southernspaces.ecdsdev.org/2013/states-rights-resurgent-attack-voting-rights-act/.

The case, Merrill v. Milligan, will adversely shape voting rights in Alabama and across the nation, but the worst is yet to come if Justice Alito's remarks from the bench on October 4 foretell the Court's future approach. In an exchange with the US Solicitor General, who sided with Alabama's Black plaintiffs, Alito proffered a couple of far-reaching, deeply flawed notions about voting. If adopted by the Court, they will provide the rationale for further gutting the Voting Rights Act, as effectively as if it were revoked, and for removing federal courts from virtually any future role in protecting Black voting rights in the US South. These are consequences that could be built on Alito's blatant misstatement of facts and blithe misconception of the history of voting rights struggles.

Justice Alito has sought to overturn the Supreme Court's prior cases about reapportionment and voting rights since he was in the Reagan Administration's Justice Department in the 1980s. In his application for a political appointment as Deputy Assistant Attorney General in 1985, he wrote, "In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in . . . reapportionment."³Mark Sullivan, Memorandum for Mark Levin, Dec. 12, 1985, https://www.archives.gov/files/news/samuel-alito/accession-060-97-761/Acc060-97-761-box1-Alito.pdf. It was in the same application in which Alito that he stated he was "particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion."

During oral arguments in Merrill v. Milligan, Justice Alito claimed that the current standards used to prove a violation of Section 2 in reapportionment cases were far too easy, allowing Black plaintiffs to win every case or, as he put it, "always run the table" in the South. This assertion is flatly wrong, contradicted by the findings of four noted political scientists who filed a brief in the Alabama case. They told the Court that during the last twenty years, there have been only thirty-one lawsuits claiming dilution of minority voting in the redistricting of the legislative seats of fifty states and 435 Congressional districts.  But, only nine of the thirty-one challenges have prevailed in federal courts.⁴Transcript of Oral Argument, Merrill v. Milligan, US Supreme Court, Oct. 4, 2022, 105, https://www.supremecourt.gov/oral_arguments/argument_transcripts/2022/21-1086_6j36.pdf; Brief of Amici Curiae Jowei Chen, Christopher S. Elmendorf, Nicholas O. Stephanopoulos, and Christopher S. Warshaw In Support of Appellees/Respondents, Merrill v. Milligan, July 18, 2022, 7–8, https://www.supremecourt.gov/DocketPDF/21/21-1086/230239/20220718132621523_91539%20HARVARD%20BRIEF%20PROOF3.pdf. The brief notes that these numbers do not include settlements. Also, the brief reports that earlier in the 1990s 43 Section 2 challenges to district plans involved twenty-two of them in favor of plaintiffs.

Even if Alito and his law clerks had not read the brief, he could not fail to hear Justice Sonya Sotomayor cite the same statistics minutes earlier during oral argument. "Section 2 is not being used that widely," she noted, quoting the brief's statistics as she made the point that cases were brought and won "only in an extreme circumstance where voters are polarized completely and where there's no crossover between the races."⁵Transcript of Oral Argument, Merrill v. Milligan, 71–72.

Alito would have none of these facts. He claimed that the current test for proving a Section 2 violation meant Alabama would never win a reapportionment case. "They're not going to win on whether the minority group is politically cohesive. They're not going to win on whether the majority votes as a bloc," he charged.⁶Transcript of Oral Argument, Merrill v. Milligan, 105. In other words, Alito contended that Black plaintiffs would always win a case because they always could prove that white voters in Alabama cast most of their ballots as a bloc and that their bloc-voting rarely, if ever, included support for the candidates of Black voters, who also usually voted as a cohesive group.

But, according to Alito, Black plaintiffs ought not win the cases because the bloc-voting by both Black and white people "may be due to ideology and not have anything to do with race. It may be that voters and white voters prefer different candidates now because they have different ideas about what the government should do."⁷Transcript of Oral Argument, Merrill v. Milligan, 105. Simply put, Alito suggests it is an ideological, partisan difference, not a racial difference, that can explain why white voters usually reject and defeat the Black voters' candidates of choice in districts where white voters are in the majority.

Alito's observation echoes the outline of an argument that the national Republican Party is aggressively advancing to disable the Voting Rights Act. The National Republican Redistricting Trust (NRRT), the primary Republican organization coordinating national, state, and local Republicans in every state's Congressional and state legislative redistricting, filed a friend of the court brief in the Alabama case. It claims that the Voting Rights Act "intended to equalize minority voting opportunities has instead become a cudgel wielded against any state law that fails to advance the institutional interests of the Democratic Party."⁸Brief of Amicus Curiae The National Republican Redistricting Trust in Support of Appellants/Petitioners, Merrill v. Milligan, May 2, 2022, https://www.supremecourt.gov/DocketPDF/21/21-1086/222354/20220502163340023_21-1086%20and%2021-1087%20Amicus%20NRRT%20Supp.%20Appellants.pdf.

The NRRT brief cites an earlier lower court opinion from Alabama where US District Court Judge Keith Watkins decided that in the statewide elections for state supreme court justices "factors other than race—most prominently, partisan politics and the decline of the Alabama Democratic Party" explain the election outcomes.⁹Ala. State Conference of the NAACP v. Alabama (M.D. Ala. Feb. 5, 2020), Case 2:16-cv-00731-WKW-SMD Document 181, 100. The Black plaintiffs lost the case.

Southern Republican leaders are also beginning to parrot this claim. For example, Republican US Representative Troy Nehls of Texas (author of The Big Fraud, in support of former President Trump's claims of a stolen election) recently told the New York Times that the majority of white voters in his Congressional district were not voting against the minority communities' candidate: "These people aren't against brown or Black people. They just don't like the way Democrats are running the country."¹⁰Michael H. Keller and David D. Kirkpatrick, "Their America Is Vanishing. Like Trump, They Insist They Were Cheated," New York Times, Oct. 23, 2022, https://www.nytimes.com/2022/10/23/us/politics/republican-election-objectors-demographics.html.

Alito's Republican-inspired argument, if adopted by the Supreme Court, would be devastating to voting rights cases. In 2019 the Court held in a case concerning North Carolina's Congressional reapportionment that federal courts cannot become involved in partisan gerrymandering since it would involve the courts in allocating power among the political parties.¹¹Rucho v. Common Cause. 139 S. Ct. 2484 (2019). An essential part of winning a Section 2 lawsuit against a reapportionment plan requires proving that most white voters in majority-white districts routinely do not vote for the candidate whom Black voters support. In this way, bloc voting by white voters on account of race effectively denies Black voters an equal opportunity to participate in electing candidates to office in violation of the Voting Rights Act. But, if courts begin to decide that bloc voting by whites is based on partisan politics, instead of race, there can be no case heard by the federal courts about voting rights.

Not even the state of Alabama was brazen enough to make this claim, although it did make its own shameless argument in its brief as to why the Court ought not consider the effects of racial bloc voting. "Racially polarized voting is not state action," the state of Alabama claimed. It is the actions of private citizens and therefore outside the reach of the Constitution which only restricts government actions.¹² Reply Brief for Appellants/Petitioners, Merrill v. Milligan, Aug. 24, 2022, 37–38, https://www.supremecourt.gov/DocketPDF/21/21-1086/234404/20220824160744143_Merrill%20-%20Merits%20Reply%20Brief%20FINAL.pdf. This is an old, discredited notion. Segregationists of the 1940s argued unsuccessfully that the Democratic party's primary elections in the South were private primaries of private political parties, not state action, uncontrolled by the Constitution or the courts. Of course, the Supreme Court flatly rejected that claim since the Court understood that southern officials were using a non-governmental political party's all-white primary as an essential tool in the state government's plan to minimize the impact of Black voting.¹³Smith v. Allwright, 321 US 649 (1944).

The assertions of the Republicans and Justice Alito are no less ancient and discredited. Southern white leaders have attempted to intimidate, limit, and deny Black people's voting ever since they gained the right to vote because Black citizens have held a different political ideology. In 1867, for example, the first "Alabama Colored Convention" endorsed the Republican party and as new voters proclaimed a political ideology that included "education secured for all; with the old and helpless properly cared for; with justice everywhere impartially administered."¹⁴Lucille Griffith, Alabama: A Documentary History to 1900 (Tuscaloosa: University of Alabama Press, 1968), 461. The following year, the executive committee of the all-white Democratic and Conservative Party of Alabama announced its opposition to the state's Reconstruction Constitution, which sought the Black Convention's political agenda, which included universal, adult voting and free schools for all children financed by a set aside of one-fifth of the state annual revenues.

The conservative white Democrats insisted, "Color or race has nothing to do with the motive of any one in withholding political privileges." They wrote that it was only because too few Black voters embraced "the science of civil policy to cast an intelligent vote, wisely favor or oppose a legislative measure" that they opposed the new constitution and Black voting.¹⁵"To the People of Alabama," Jacksonville (AL) Republican, Oct. 24, 1868, 2.

When conservative whites, including the Ku Klux Klan, burned Black schools and churches in Alabama and across the South during Reconstruction, their defenders claimed it had little or nothing to do with race—only political differences. "As a rule the schoolhouses (and churches also) were burned because they were the headquarters of the Union League and the general meeting places for Radical politicians," wrote Walter L. Fleming in 1905, "or because of the character of the teacher and the results of his or her teachings."¹⁶Walter L. Fleming, Civil War and Reconstruction in Alabama (New York: Columbia University Press, 1905), 628.

Later, along with other southern states, conservative white Democrats in Alabama disfranchised Black voters in the state's 1901 constitution not merely because they were formerly enslaved Black people. They disfranchised them because Black voters had joined with white Republicans and Populists to challenge conservative white Democratic candidates in pursuit of a different political agenda.¹⁷C. Vann Woodward, Origins of the New South, 1877–1913 (Baton Rouge: Louisiana State University Press, 1951), 321–331. Of course, it involved "different ideas about what the government should do" between most white and Black people, and partisan differences. But it was also rank racism.

Similarly, Alabama Governor George Wallace's opposition to Black voting, which eventually helped to enable passage of the Voting Rights Act in 1965, was based on race, but it also involved a partisan fear that the "bloc vote" (as he called Black voters) would join with a minority of white voters to defeat his political agenda at the ballot box.¹⁸Steve Suitts, A War of Sections: How Deep South Political Suppression Shaped Voting Rights in America (Athens: University of Georgia Press, 2023).

There is no way to forecast if Justice Alito will attempt to incorporate his Republican-serving rationalizations into the Alabama case or if other members of the Court will follow him in constituting a majority in this case or another. What is clear is that by continuing to dismantle the nation's foremost protections of Black citizens' right to vote and their right to have their votes count equally in election outcomes, a majority of US Supreme Court Justices, often in the name of color-blindness, will be blind to the political history of racism in the Deep South—or will knowingly misconstrue it with an apparent partisan result.

About the Author

An adjunct with Emory University's Institute for the Liberal Arts, Steve Suitts is the author of the A War of Sections: How Deep South Political Suppression Shaped Voting Rights in America  (Athens: NewSouth Books, an imprint of the University of Georgia Press, 2023). Earlier in his career, Suitts served as the executive director of the Southern Regional Council, vice president of the Southern Education Foundation, and executive producer and writer of "Will the Circle Be Unbroken," a thirteen-hour public radio series that received a Peabody Award for its history of the civil rights movement in five Deep South cities.

Blog Post

In a 2021 case from Arizona, Justice Samuel A. Alito, Jr., issued an opinion of the US Supreme Court—calling it a "fresh look"—that sabotages Section 2 of the Voting Rights Act of 1965. In effect, he rewrites the amendments Congress adopted in 1982 and annuls their purpose of making it easier, not harder, to strike down voter suppression laws resulting in racial discrimination. The Court's decision will likely unleash a new round of widespread discrimination in voting across the nation and continues its section-by-section destruction of the law that has been the nation's most effective force for expanding democracy over the last 150 years.

The Court decision reveals again that on matters of race and racism, when it suits their agenda, Justice Alito and the current Court's majority will abandon their own "textualist" judicial philosophy of adhering to the text of a law. Those studying this opinion will find it difficult to believe that it was written by the judge who, on and off the bench for years, has declared, "Statutes mean something. And the role of a judge is to interpret and apply the laws as they are written. . . . That's what we mean when we say that we have the rule of law and not the rule of men."

In his majority opinion, written for the six members who comprise the Court's conservative wing on controversies of race, Justice Alito upholds Arizona law that invalidates a voter's entire ballot if it is cast in the wrong precinct for any reason (even if the mistake is the fault of a voting official), and prohibits civic groups from collecting sealed ballots. Alito's opinion damages the ongoing protection of voting rights across the nation. It creates a list of standards that federal courts should consider when applying Congress's 1982 amendments to the Voting Rights Act's Section 2—the section that permits federal lawsuits challenging voting discrimination across the country. These Congressional amendments overturned a 1980 Supreme Court opinion that a law violated the Act only if intent to discriminate could be proven. Congress's amendments provided that, after considering a "totality of circumstances," a federal court need only find that a law or practice has a discriminatory result.

The US Senate's report explaining the Act's 1982 changes stated:

The courts are to look at the totality of the circumstances in order to determine whether the result of the challenged practice is that the political processes are equally open; that is, whether members of a protected class have the same opportunity as others to participate in the electoral process and to elect candidates of their choice. The courts are to conduct this analysis on the basis of a variety of objective factors concerning the impact of the challenged practice and the social and political context in which it occurs. The motivation behind the challenged practice or method is not relevant to the determination.¹Voting Rights Act Extension, Report of the Committee on the Judiciary, Unites States Senate, on S. 1992, 97th Congress, May 25, 1982, 67.

Justice Alito's opinion lays out five "guideposts," his own version of the "objective factors . . . and the social and political context" that lower courts should consider. He describes these new standards as the Court's "logical" definition of what Congress meant when they instructed federal courts to consider a "totality of circumstances" in Section 2 cases:²The order in which Justice Alito listed his "guideposts" has been slightly altered here. I list his third item second for purposes of analysis.

1. "size of the burden imposed" on the protected group;
2.  "size of the disparity in a rule's impact on members of different racial or ethnic groups";
3. "degree to which a voting rule departs from what was standard practice" when the Congress added the term "totality of circumstances" to the law in 1982;
4. "opportunities provided by a State's entire system of voting when assessing the burden imposed by a challenged provision";
5. "strength of the state interests served by a challenged voting rule."

These standards are not found in any official reports of the US House or Senate issued in 1982 as the Congress debated and renewed the Act with amendments. None are mentioned as recommended standards in the extensive testimony during Congressional hearings in both Houses.³See Hearings before the Subcommittee on Civil and Constitutional Rights of the Judiciary Committee, House of Representatives, on H.R. 1407, H.R. 1731, H.R. 2942, H.R. 3112, H.R. 3198, H.R. 3473, and H.R. 3948, 97th Congress, May 6, 7, 13, 19, 20, 27, 28; and June 3, 1981; Report of the Subcommittee on the Constitution of the Judiciary Committee, United States Senate, 97th Congress, on S. 1992, April 1982. They are merely "logical" products of Justice Alito's thinking after conferring with his law clerks and perhaps some of the Court's other conservative members.

The most striking feature of Alito's "guideposts" is that they all offer ways to make it more difficult for a person to prove a voting rights infringement. The 1982 amended statute does not say that a "totality of circumstances" should include only considerations that make it more difficult to prove a case. On the contrary, the law was written to make it easier to prove discrimination. The Senate report mentions only that the "extent to which members of a protected class have been elected to office in the State or political subdivision is one 'circumstance' which may be considered." So, the Congress listed a consideration that can help prove a violation of the Act.⁴The legislative history does make it plain that the "result" test has limits. It does not guarantee a right to proportional representation. Quite the opposite, Justice Alito's list imposes on the statute five considerations that will be used primarily to disprove a violation.

For instance, Alito lists the "size of the burden" as a consideration instead of "if a burden is created," which would have been a neutral standard—e.g., does the rule create a burden to a protected group? Alito's second point similarly mandates consideration of "size of the disparity in a rule's impact on members of different racial or ethnic groups"—not if a disparity exists, but how large the disparity is. In this way, the opinion suggests that the size of a violation can make a violation go away—that whenever a disparity can be proven to be small, it can be considered no disparity at all. So, if a racial disparity burdens only a small number of minority voters in a small, rural polling place, does the relatively "small" size of the harm argue against a finding of a Section 2 violation of law? Apparently so.

As Harvard Law School's Nicholas Stephanopoulos has observed, Alito ignores the words of the statute in adding these considerations of size. "Section 2 states that it applies to any 'denial or abridgment' of the right to vote. The court qualified that broad language, effectively inserting the word 'substantial' before 'abridgment,' with no basis in the text."⁵Nicholas Stephanopoulos, "The Supreme Court Showcased its 'Textualist' Double Standard on Voting Rights," Washington Post, July 1, 2021, https://www.washingtonpost.com/opinions/2021/07/01/supreme-court-alito-voting-rights-act/.

The third consideration on Alito's list is "the degree to which a voting rule departs from what was standard practice" in 1982. This is an additional factor that can be used more often by state and local governments defending a voting rule than by minority groups challenging it. Stephanopoulos refers to this standard as "the court's most astonishing extra-textual move" since "Section 2's whole point is to unsettle the status quo, to end voting restrictions that disproportionately harm minority citizens. The provision aspires to move American democracy forward, not keep it fixed forever in 1982."⁶Nicholas Stephanopoulos, "The Supreme Court Showcased its 'Textualist' Double Standard on Voting Rights,"  Washington Post, July 1, 2021, https://www.washingtonpost.com/opinions/2021/07/01/supreme-court-alito-voting-rights-act/.

Perhaps nothing exposes the rearward nature of this trumped-up guidepost more clearly than imagining it as a mandated consideration in 1965 when Section 2 was originally adopted. It would have allowed state and local governments to use their existing misdeeds as a defense against legal challenges. In 1965, twenty-one states required English-only literacy tests to qualify to vote. Most states permitted absentee voting by requiring proof of disability or a complete absence from the community and by requiring a notarized application submitted only at the county courthouse.⁷Report of the President's Commission on Registration and Voting, Washington, DC, 1963, 13–14, 65. Most states had few polling places in minority and poor communities. Most southern states had voting rolls with more dead white people than living Black people. In several states polling officials were all white, and ballots were numbered in such a way as to permit white officials to know how Black voters cast their ballots.⁸Hearings before the Subcommittee Number 5 of the Judiciary Committee, House of Representatives, Eighty-ninth Congress, on H.R. 6400, March 18, 19, 23, 24, 25, 30, 31, and April 1, 1965; "Tan Voters Underwent Hardships: Many Waited In Lines for Hours; Some Didn't Wait," New Journal and Guide, May 14, 1966, 9; Francis X. Walter, "The May 3rd Primary In Alabama," Selma Inter-Religious Project Newsletter, May 16, 1966.

These common practices would have been used as a defense against any legal challenge under the Voting Rights Act, had Alito's guideposts been decreed as law in 1965. It would have been outrageous and unacceptable then. It is no more reasonable or acceptable now.

Alito's two remaining guideposts also make it more difficult to prove voting discrimination. Considering "opportunities provided by a State's entire system of voting" could be legitimate, if by "taking into account the other available means" includes requiring proof that those means are more accessible to the protected group and in fact fully compensate for some related disparity in access to voting. But, in upholding Arizona's law voiding all ballots cast in the wrong precinct, Alito made no such analysis. Therefore, it is highly doubtful any lower court will do so.

Finally, a consideration of the "strength of the State's interests" in a law or practice can be legitimate in voting cases, but Justice Alito chose among the many possible valid state interests to spotlight one in particular—election fraud, the single most misused and unproven rationale in current partisan voting disputes. "Fraud can affect the outcome of a close election, and fraudulent votes dilute the right of citizens to cast ballots that carry appropriate weight," Alito writes. "Fraud can also undermine public confidence in the fairness of elections and the perceived legitimacy of the announced outcome."

All true statements, in theory. But singling out fraud as the best example of a valid state interest when there have been no findings of widespread fraud across the states is worse than disingenuous. In the context of the close 2020 presidential elections in Arizona and Georgia, Alito's words signal that unsubstantiated charges of "fraud" are now available in voting rights cases as a strong "state interest." In effect, he is almost inviting the use of "fraud" on the same unproven terms as lawyers and government officials have used them in attempting to reelect Donald Trump by trying to discredit and disqualify votes on those terms primarily in majority-Black and -Brown counties.

In stirring, memorable words, Justice Elena Kagan dissented from the Court's majority opinion on behalf of its two other liberal members. "If a single statute represents the best of America, it is the Voting Rights Act. It marries two great ideals: democracy and racial equality," she writes.⁹Regrettably, in referring to the origins of the Voting Rights Act, Justice Kegan's dissent suggests she knows law better than history. She mentions "a march from Selma to Birmingham." It was in fact the Selma to Montgomery march that made voting rights history. But, eight years ago, the Court on which Kagan now sits voided Section 5 of the Act by ignoring the fact that Congress published thousands of pages of testimony, data, and information providing evidence of the substantial, new voting rights problems covered by Section 5 that people of color face in the states.¹⁰Steve Suitts, "States' Rights Resurgent: The Attack on the Voting Rights Act," Southern Spaces, August 29, 2013, https://southernspaces.ecdsdev.org/2013/states-rights-resurgent-attack-voting-rights-act. As a result, by voiding Section 5 and now greatly weakening Section 2, the Court has left very little of the protections that Congress enacted and reenacted to advance voting rights.

A historic accomplishment, the Voting Rights Act has advanced democracy and racial justice. In 1992, voting rights attorney Laughlin McDonald wrote that the "amendment of section 2 . . . represented a strong congressional and judicial commitment to equality in voting."¹¹Laughlin McDonald, "The 1982 Amendments of Section 2 and Minority Representation," in Controversies in Minority Voting, ed. Bernard Grofman and Chandler Davidson (Washington, DC: Brookings Institution, 1992), 70. Also see Drew Days, "How the Voting Rights Act is the Most Effective Act on the Books," Southern Changes 4, no. 1 (1981): 16, 25–27, http://southernchanges.digitalscholarship.emory.edu/sc04-1_1204/sc04-1_004/. But in recent years a majority of Supreme Court justices have abandoned their own self-professed adherence to the text of Congressional legislation in order to reach a result they prefer: voting laws that make it more difficult to prove racial discrimination and to block voter suppression. If the American people fail to rally and elect a Congress that will right the current Court's wrongs through passage of new legislation, the nation will be left without a safekeeping of either democracy or racial justice.

About the Author

An adjunct with Emory University's Institute for the Liberal Arts, Steve Suitts is the author of Hugo Black of Alabama: How His Roots and Early Career Shaped the Great Champion of the Constitution (Montgomery, AL: NewSouth Books, 2017). Earlier in his career, Suitts served as the executive director of the Southern Regional Council, vice president of the Southern Education Foundation, and executive producer and writer of "Will the Circle Be Unbroken," a thirteen-hour public radio series that received a Peabody Award for its history of the civil rights movement in five Deep South cities.

Introduction

Craig Womack: Welcome, everybody, to Atlanta and to Emory University. Welcome to a place where Muscogee Creek people have had government, jurisdiction, and land tenure since time immemorial—way back before the written records. Because this is the heart and soul of where Creek people come from, we feel that this is an important place to have this discussion.

Our panelists include Andrew Adams, currently a justice on the Muscogee Creek Nation Supreme Court. At two different times he's served as chief justice of that body, and he has worked with other tribes, including seven years as chief justice for the Santee Sioux. Justice Adams has also conducted legal work for Chippewa bands in the Midwest. We're glad to have somebody who's in the trenches the way that Andrew is in terms of the matters that we're talking about today. Andrew is a full member of Tvlahasse Wvkokaye Creek Ceremonial Grounds.

The first time I can remember meeting Andrew—and please understand, at this point in my life sometimes the things that I think I remember never actually happened—but my memory of meeting him was at the old location of Tvlahasse Grounds in the mid-1990s. We were the guests of Helen Burgess and Jim Burgess at a Green Corn event that was scantly attended, as far as people in the ring. It was a baptism by fire in the sense that we got thrown into doing a bunch of stuff that a couple of newbies usually wouldn't be doing. I ended up keeping the fire in the ring that night. A year or two later, at that location or at the new grounds site, I got to meet Andrew's dad. Another fond memory.

Craig Womack: Professor Barbara Creel is a member of Jemez Pueblo. Much of the early part of her career, after graduating from the University of New Mexico School of Law in 1990, was in the Pacific Northwest, in the state of Oregon, where she spent seven years as assistant public defender. She was involved in defending reservation residents who were prosecuted under the Major Crimes Act. This is a piece of federal legislation that has a very strong bearing on the case that we're discussing today. She was also a liaison between Oregon tribes and the Army Corps of Engineers whose big water projects often have overlapping jurisdictions with tribes. Professor Creel joined the UNM law school faculty in 2007. She's the former director of the Southwest Indian Law clinic and is now directing her own project on Indigenous innocence, representing Native Americans in post-conviction appeals.

Our moderator this evening is Professor Megan O'Neil, who will be assisting with audience questions after the panel discussion. Professor O'Neil teaches here at Emory and is Faculty Curator of the Art of the Americas. She is a specialist in the ancient Maya and Mesoamerican cultures.

Sarah Deer is in the Department of Women's, Gender, and Sexuality Studies at the University of Kansas. Before this, she was a professor of law at Mitchell Hamline School of Law in the Twin Cities for almost a decade where she taught federal Indian law. She's co-authored three books on Native constitutions, tribal legal studies, and tribal criminal law. Her 2015 University of Minnesota Press book, The Beginning and End of Rape, won numerous awards. This area of inquiry is highly significant to our discussion today since the McGirt case not only has to do with tribal jurisdiction, but also with issues of sexual violence. 

Professor Deer is a MacArthur Fellow and in the Muscogee Creek Nation. We're very proud of her having captured this award. She's currently the Chief Justice of the Prairie Island (Minnesota) Community Court of Appeals. She was also a judge for three years for the White Earth Chippewa nation, another Minnesota tribe. She's testified before the US House of Representatives, the United States Commission on Civil Rights, the Senate Committee on Indian Affairs, and many other federal committees and agencies. She has served multiple federal appointments, including chairing the US Attorney General's task force on sexual assault in Indian Country.

The other day I went out to my mailbox. Hope reigns eternal that someday there will be something good in there, and there was! Instead of bills, I pulled out a package from Dustin, Oklahoma. It was from a friend of mine and a friend of Sarah's, Rosemary McCombs Maxey, who's a language teacher, an activist, and a person involved in educating Creek young people. There was a note in the package—Sarah and Rosemary had sewn me a COVID mask out of Creek patchwork. I'm now convinced I have the coolest COVID mask on the planet. It's got this Creek patchwork running down the middle. Now I'm all masked up with nowhere to dance!

I'm going to say a few brief things about Creek history. I've spent a month trying to whittle my comments down to a manageable way of talking about a topic that's very difficult to contextualize in terms of this Supreme Court decision. It requires extensive historical knowledge as well as the need to describe how crimes are prosecuted on reservations. And it involves a complicated narrative about how Oklahoma tribal jurisdiction has a unique status in relationship to other Indian reservations across the United States.

When I've looked at the recent media coverage of McGirt, I've often found it disappointing, even when I read reputable papers like the New York Times. There's no way to fully cover the topics I just mentioned in newspaper articles. You would be hard pressed to cover them in a book, and there is little doubt that books will be written about this decision. My summary is too brief and reductive, but I'm going to flash forward through a huge expansive history. I'm going to skip Creeks as ancient mound builders, skip colonial history and Creek Nation relationships to the English and to the Spanish before them. I'm going to skip the early part of the nineteenth century when Creeks fought a civil war against one another in 1813 and 1814. And I'm going to skip the forcible removal of Indians in 1836 from this very area that I'm speaking from and from other parts of Georgia and Alabama.

I'm going to fast forward all the way up until the American Civil War when Creeks had barely recovered from the traumatic 1836 removal from Georgia and Alabama. They had suffered loss of life, loss of culture, loss of livelihood, businesses, and farms. They had to start all over. They had to find families to take care of all the orphans whose parents had died during the removal. During the 1860s, when the US Civil War occurred, the official Creek government headquartered in Okmulgee, Oklahoma, sided with the Confederacy. There were a disproportionate number of Creek leaders who had close ties to the Deep South: economic relationships, cultural influences, and, to some degree, plantation systems. Some leading Creek governmental figures were slaveholders. There were also those who had sympathies with the Union. Many of these Creek Union sympathizers fled to Kansas during the conflict. Many Creek men volunteered to join Union forces. The Creek leader Chitto Harjo went to Leavenworth to serve in a Union army unit.

We all know the end of this story. Fortunately, the Confederacy lost the war. Creeks were then forced to renegotiate their treaties with the federal government. They signed the Treaty of 1866, as it's come to be known, which, like most treaties, involved a land cession. One of the things that Creek people had to do was sell a big chunk of the western portion of their lands. The idea being, supposedly, that this area would be used by the United States to resettle other tribes. But the United States also wanted to open it up for eventual white settlement. In spite of having to make that land cession, this treaty made several strong guarantees about Creek sovereignty and jurisdiction into perpetuity in the territory. Because of this, many Creek leaders today regard the 1866 treaty as sort of the gold standard of Creek treaties.

The Civil War was a disaster in Creek country. It split the nation in two. Farms and mills were burned to the ground, infrastructure destroyed. A cholera epidemic ran rampant, killing many. Two decades later, when Creek people had begun to recover from this, they got hit with another disaster for Indian America across the United States. This is the Dawes Act of 1887, federal legislation that forced tribes to allot land that had previously been held in the tribal domain to individual tribal members. The "surplus land" was then opened up to white settlement. This is a main reason that reservations have a checkerboard pattern. Sometimes people think just Indians live on reservations, but because of the Dawes Act, there are also non-Indian residents there.

From Indian Territory's early inception, the United States government set it aside by congressional act as a place for tribes to live and govern themselves. So, the US had to approach the tribes in the Territory—in a way that they didn't have to approach tribes in the rest of the United States—to ask if they would be willing to voluntarily comply with allotment. The southeastern tribes were against allotment and especially against the dissolution of tribal government that was part of the process. The US federal policy idea behind this is that as tribal citizens accepted allotment certificates they eventually would become US citizens and have the same legal status as anybody else in the United States.

If you don't get anything else out of this talk, you can take away the "Native 101" fact that that tribal people, unlike any other minority group, ethnic group, or any other racial group, are defined differently from a legal standpoint in the United States. They constitute governmental entities that have the right to a government-to-government relationship with the United States federal government. With the passage of the Dawes Act, the United States was thinking maybe it could also work itself out of the Indian business, so to speak—which is to say work itself out of the unique status guaranteed to tribes. Sometimes people call this status a trust relationship, not because Indian tribes and the government particularly trust each other, but because of this unique legal standing that involves the right to self-government.

Congress found itself in a bind, having to ask the southeastern tribes, unlike other tribes in the US who weren't located in a special territory, if they'd allot land, if they'd give up tribal government. The tribes said no. Congress, being the entity that passes legislation in relationship to tribes, then flexed its muscles by expanding its plenary powers, the rights it has to pass regulations relevant to tribes, to the nth degree. It tried to make those powers as fulsome as possible by passing the Curtis Act of 1898 which forced the Indian Territory tribes to allot.

One of the things that's really striking about the Curtis Act, from the perspective of someone like me who's not a legal scholar, is that it legislates that the tribes can't have legal representation, can't contest the Act, can't rise to their own defense. With the tribes being forced to allot, the Curtis Act was an assault on tribal government, tribal land, and tribal culture.

After the Dawes Act was passed, then the Curtis Act in Indian Territory, of course tribes didn't disappear. They still organized themselves and formed political entities. After this, the federal government tended to recognize tribal governments on an ad hoc basis. There was a lot of inconsistency. From my perspective, it seemed to work this way: the Bureau of Indian Affairs says, "Okay, here's a tribe that's cooperative. Here's a tribe that opens up its reservation for exploitation of its resources to outsiders; that lets people come in and harvest timber, water, mineral resources, good tribal government, duly elected, we recognize this one." But then there's this other tribal government that's not so keen about letting people come in and take water, timber, and minerals. Then the BIA cries foul, claims this one as bad government they don't recognize, for any number of reasons they create. Since some tribal governments were recognized and others weren't, there was a growing web of confusion with no national template or cohesive policy.

In 1934, Franklin Roosevelt appointed John Collier to head the Bureau of Indian Affairs. Collier, a much more progressive leader than his predecessors, successfully lobbied Congress to pass the Indian Reorganization Act. This legislation, often called the "Indian New Deal," allowed tribes to form constitutions if they chose to do so, to submit them to the Bureau of Indian Affairs for approval, and, if they were approved, then they were allowed to form governments that the United States would recognize.

I'm going to leave it at that. The panel can correct my mistakes and I will not be offended. Sarah is going to describe how the status of the Creek Nation has changed since the July 9, 2020, McGirt Supreme Court ruling. Then we'll see what other panelists want to say.

Panel Discussion

Sarah Deer: Thank you, Craig, for that great introduction and thank you all for inviting me to be part of this panel. As a Creek citizen, this is a case that will have deep meaning for us for many years to come. And as a disclaimer, I'm here today in my personal and academic capacity. Because I also advise the Creek Nation, I want to clarify that I don't speak here in any official capacity, on behalf of the Nation.

I want to make sure as we discuss this case that you've got the basic facts. We're talking about two cases here, but the one that counts is McGirt v. Oklahoma, which was argued online due to COVID-19. We could all call in and hear the oral arguments—we're not used to that. Most of the time you have to go in person.

The decision was released in July on the very last day that decisions were announced. I think it's clear that this is one of Justice Ginsburg's final, if not the final, votes of her tenure on the Court. It's interesting that we focus on reservation law with this case, but actually both of the cases at issue here began as criminal cases. I'm glad that Professor Creel is on our panel because she'll have some more insight into the work of how criminal defense attorneys think about reservation issues.

But there were two cases. There was a case involving Patrick Murphy (Sharp v. Murphy), who was convicted of homicide and sentenced to death by the state of Oklahoma. And then the case's (McGirt v. Oklahoma) namesake here, Jimcy McGirt, a Seminole man who committed some heinous sexual crimes on children and received a draconian one thousand years in Oklahoma custody. So, these are two men that had very little to lose by appealing their decisions. When you're on death row, you've got attorneys who are trying any way to save their client's life. And from Mr. McGirt's standpoint, there was not a lot to lose by challenging jurisdiction. But both of these men, and even the state of Oklahoma would agree, committed their crimes within the boundaries of the 1866 reservation that Craig discussed.

From the perspective of a criminal defense, the fact is that if this is an Indian Reservation, if it still exists, then these two men were prosecuted by the wrong government. Under the Major Crimes Act, the federal government has criminal power over lands considered Indian Country and the state does not. So their argument on jurisdiction hinges on the question of whether or not the 1866 treaty is still the standard by which we assess Creek territorial jurisdiction. There were other cases that came before this, that did not have to do with the Creek Nation but answered a similar question: Is the reservation still there or not? Do the boundaries still apply or not? And the rules that the Court has created over the years require that Congress explicitly change the governing territory of the tribe. There were two other cases in the last thirty years in which the Court held that only Congress can establish a reservation and it cannot be inferred. It has to be explicit.

Attorneys for Murphy and McGirt argued that the defendants were prosecuted by the state of Oklahoma, which did not have jurisdiction over them. Now Craig did a great history here, so I don't need to go through all of this, but it was in 1866 that this treaty was signed. And really the language of the treaty that I think Justice Gorsuch focuses on in his written decision is the very clear language that this land—and again, there was half of it ceded in 1866—would be forever set apart as a home for the Creek Nation. And this is consistent with the other treaties that the Creek Nation had signed, even those prior to removal. So the language was consistent—words like "forever" and "perpetuity" are important for the contemporary interpretation.

What Justice Gorsuch did in McGirt was write the official decision on behalf of the majority. It was a five-four split. Writing for what people characterize as the liberal arm of the bench, Justice Gorsuch determined that because there had been no explicit language by Congress, despite allotment, despite demolishing tribal courts, despite all of those things which Oklahoma certainly argued, there was never a clear disestablishment of the reservation by Congress. Therefore, the 1866 reservation still exists. Therefore, McGirt and Murphy were prosecuted by the wrong government.

The Creek Nation and other amicus clients filed briefs in this case, and the ultimate outcome was one of victory—not just for these two criminal defendants, but for the Creek Nation and potentially many other nations. Justice Gorsuch writes that on the far end of the Trail of Tears was a promise, and "because Congress has not said otherwise, we hold the government to its word."

I want to share two more quotes from McGirt to emphasize how emotional this decision was for many of us. It felt like it set things right for the first time in a long time. One of the passages I so admire from this decision is that "Congress may sometimes wish an inconvenient reservation would simply disappear. But wishes don't make for laws." These kinds of principles transcend Indian law and speak to what justice really is about.

Justice Gorsuch also writes, "None of these moves by Oklahoma would be permitted in any other area of statutory interpretation and there is no reason why they should be permitted here. That would be the rule of the strong, not the rule of law." And finally: "Unlawful acts performed long enough and with sufficient vigor are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right."

Because today is Indigenous Peoples' Day, this particularly resonates with me. It isn't just about this Creek tribe and this Creek reservation. It's about a justice of the Supreme Court acknowledging the harms that were done and fighting for justice today.

So now we have a reservation. We always had one, but now it's recognized again. And what that means is that our territorial reach as a nation is far further than we have been exercising it. The Creek Nation now has full territorial reach throughout the boundaries of the 1866 reservation. Which is about a twelve to thirteen county area, including a great deal of the city of Tulsa. We are now tasked as a nation with governing that reservation and with the challenges posed by a large expansion of recognized territorial reach. But these are challenges that the Creek Nation is ready to take on.

Prior to McGirt, the Creek Nation had what we call Indian Country, a legal term of art referring to land that's been in trust or has a restricted status, owned in fee by the tribe—plots of land, whether they be former allotments or contemporary business district holdings. That was it. That was Indian Country. Once you step off that plot of land into the state of Oklahoma, then the state would no longer recognize you as being in Indian Country. But one of the definitions of Indian Country is all lands within the limits of any Indian reservation. So if the reservation still exists, our authority in terms of criminal law doesn't just rely on a particular plot of land; it's going to be anywhere within the boundaries of the reservation. This is a dramatic increase in recognized territorial authority.

Craig Womack: Professor Creel do you have anything you would like to add?

Barbara Creel: Yes, thank you for inviting me. Happy Indigenous Peoples' Day. Know that you are on Native land that was inhabited before contact, before the white settlers came. The McGirt case is one of the most important Supreme Court cases in land acknowledgement.

As far as background to McGirt, I wanted to add a couple of things. Professor Deer mentioned Sharp v. Murphy which started out in the Tenth Circuit as Murphy v. Royal and percolated up to the Supreme Court. It was argued and set for re-argument, but it was going to be a four-four split because Gorsuch had recused himself. You see, the decision was a Tenth Circuit decision from when he had been on that court. He didn't write that decision, but it wouldn't be proper for him to weigh in on it from his new position on the Supreme Court.

McGirt didn't change the status of the Creek Nation or expand tribal jurisdiction. McGirt recognized that the tribe had ancestral lands that were documented in treaties and congressional enactments. Federal criminal jurisdiction versus tribal jurisdiction versus state had been established in the 1883 case of Ex parte Crow Dog, which led to the Major Crimes Act of 1885. So, as Professor Deer said, if it was Indian Country and a murder after 1885, the case would be prosecuted in federal court.

Craig Womack: Along the lines of talking about ideas that came out of the 1883 case, I want to ask a question. And this very much comes from the perspective of someone whose head swims when hearing legal history. (Mainly I write novels and I play the fiddle.) But my question is this: since the McGirt decision recognizes Oklahoma tribes as having reservation status, does this ruling simply catch up Oklahoma tribes to the rest of Indian Country—much of which has had reservation status for a century now—or does it do something more?

Andrew Adams III: I guess I'll jump in quickly. First of all I thank Craig and Emory University and everyone that put this together. And I will give the same disclaimer that Professor Deer offered: I'm here speaking in my own personal, individual capacity. But to quickly answer your first question, Craig. I approach it from the standpoint that the status of the tribe didn't change, but the status of the law and essentially the federal government's posture and position related to the Muscogee Nation, changed.

The Muscogee Nation didn't change. But if you think about it in very practical terms, before the McGirt decision was issued, the Department of Interior didn't have to recognize or give any credence to the reservation boundaries. But after the Court issued its decision essentially reaffirming—and I say "reaffirming" because I don't like the terms "recognized" or "reestablished." Those reservation boundaries never went away. I can remember my first year of law school at the University of Tulsa in 2003 sitting in Professor Rice's office (whom I affectionately call Uncle Bill) and him saying, "Nephew, your tribe's reservation, you're sitting on it. You're living on it right now." I had always heard these stories about the reservation going away and he said don't believe any of that. "Congress is the only entity that can take away or diminish a reservation. And by golly nephew, when you moved down here from Michigan you moved onto your homeland."

And so when the decision was issued, it struck me emotionally. I already knew that Uncle Bill was one of the smartest people I'd ever met. But it just drove that belief further home that nearly twenty years ago, Uncle Bill—and not only Uncle Bill, but also one of the colleagues that I have on the Supreme Court, Justice Leah Harjo-Ware, when she was the attorney general for the Muscogee nation years ago—that nearly twenty years ago he made those same arguments.

There are a lot of Muscogee people who have walked with that belief close to their hearts and minds.

Then to answer your second question, Craig, the existence and disputes and concerns about reservation boundaries permeate across Indian Country. There are a number of tribes that either are in some type of dispute with, say, a county sheriff over who has jurisdiction over what people over what geographical area, or they could be in federal district court, or in some type of court of appeals where they're trying to press their case as to why the boundaries that are identified by the federal government or a state government or some subdivision of a state government are not correct.

I believe that what McGirt has done for Indian Country is to reaffirm all of those decisions in the past like Solem v. Bartlett and Hagen v. Utah where Congress is the only entity that can diminish or disestablish a reservation. And you actually see just in the time since McGirt was decided, a positive cascading effect on other federal courts, where they have provided some favorable decisions for tribes. As an Indian law practitioner and someone who, when I wake up in the morning, kind of feels like Luke Skywalker—that I fight for the good guys, that I represent tribes—I hope that continues. I hope that various levels of government get to the point where they do have that respect for tribal homelands.

Craig Womack: Thank you, Andrew. Do other panelists want to join in this discussion about reservations status?

Sarah Deer: There's been a lot of backlash from both state officials and the general public in Oklahoma, whom I don't think fully understand what McGirt means. No, it does not mean that five tribes own the east half of Oklahoma as it's somehow been suggested. Nothing changes the status of the land within the reservation. If you own a home in Tulsa or Glenn Pool, nobody's going to take that home away from you. If you're a private business and you have your business on the reservation, the status of the land where you run your business does not change. What it changes, though, is the extent to which the tribe's sovereignty is matched in the territory that it exercises; the Creek Nation has more options for exerting governmental power now. But in no way does it does it take somebody's land away or take their livelihood away. And I think that's been misrepresented in the press quite a bit.

Craig Womack: A lot of what we have heard and read about has focused on the tribe having increased jurisdiction over criminal cases. It's being depicted as an advantage. But we have also heard about the tribe now having more cases to take care of than ever before, and some have said, the situation may be overwhelming to the extent that there may be a need for expansion of the tribal court system. I was thinking when I listened to Professor Creel's podcast, which is really excellent, about her insights into the Major Crimes Act and how this act is still imbued with a colonial viewpoint. So are there other advantages, or any disadvantages, to be considered?

Sarah Deer: I'm going to let Professor Creel answer the crux of that, but yes, again, a lot of people don't realize that, technically, tribes retain concurrent authority over felonies on reservations. That's misunderstood when people read the Major Crimes Act as though it was a grant of exclusive jurisdiction to the federal government. Tribes in some states, not all, prosecute homicide, rape, and child sexual abuse, but by and large, when we think about those kinds of crimes on reservations, we think about them "going federal"—so the US attorney's office becomes involved. But certainly the tribe can also independently exercise that kind of criminal authority. To the extent that one would calibrate justice for victims with more tribal prosecution, the tribe is now in a position to do that on a much grander scale. But it does require additional staffing to be able to govern that big of a stretch of reservation. In terms of the criminal defense perspective, I'd like to ask Dr. Creel.

Barbara Creel: Thank you, Professor Deer. I would like to hear from the tribe about advantages and disadvantages, but I know from my criminal law teaching that sovereignty is what sovereignty does. As a sovereign, the tribes have incredible power to shape their own justice systems. I teach the differences between the American cultural and moral values and Indigenous cultural values and rely heavily on Sarah Deer and Carrie Garrow's book, Tribal Criminal Law and Procedure, in which they discuss where tribes get their inherent decision making about what wrongdoing is and how to punish it. How do sovereigns address wrongdoing in their own jurisdiction? It's powerful to think about. We could start over, right? We could be a Crow Dog nation that looks to restorative and rehabilitative justice instead of retribution.

We all know that the first thing we hear on Indigenous Peoples' Day is the parade of horrible statistics that Native Americans are subjected to. This case provides opportunity for the defendant who was a community member and the tribe to be on the same side. That does not happen in Indian Country cases. It's usually the United States acts as a punisher and the tribe acts as a punisher. But at this point, the two interests converge between the individual defendant and the tribe. I think it promotes what I teach: tribes are made up of individuals. What I was taught from my family values is that the people are the heart of the tribe. The tribe is the body and the people are the heart.

The advantage is having tribal sovereign government rethink its criminal jurisdiction and do differently than what the adversary system has imposed upon us. The disadvantages in this line of thinking are what Professor Deer mentioned: we're so far behind in resources in our own justice systems because they were taken away or encroached upon due to the Major Crimes Act.

We are impoverished in the ability to think and rethink about justice. I've taught tribes how to look into their own history to decide how to move forward. This was a foreign concept, either because the state took over after termination or because of the Major Crimes Act. But because of this rule of history that Gorsuch mentions—this is always the way we've done it, so we're going to keep doing it that way—tribes have lost their own thread of thought in how to treat wrongdoing. They've been without resources and basic governmental functions.

Andrew Adams III: When you think about federal policy related to Indian tribes over the last two hundred years, it's gone through different themes. Since the Indian Self Determination and Educational Assistance Act, the federal government has been in this mindset of self-determination—that tribes should be self-determining in expanding their sovereignty. So the biggest advantage that I see from McGirt is that the decision opens up a lot of options for the Muscogee Nation to expand and mature its jurisprudence. It expands the different types of cases that can come before the Muscogee Nation courts. I believe that the volume will increase and with that more opportunities for the courts of the nation to issue decisions that further the maturation of Muscogee case law.

Craig Womack: Thank you, Andrew. I want to ask one more question of Sarah, and of course anyone else can weigh in on this. Since McGirt has to do with tribal jurisdiction and sexual violence, can you address these two topics in relation to one another?

Sarah Deer: Certainly. What's interesting about this case is that I worked with a Cherokee attorney named Mary Kathryn Nagle, and we've been filing amicus briefs in Indian law cases for the last five or six years. We feel like the voices from Indian Country of victims of crime are not often presented to the Court. We did that in McGirt and in Murphy. Our primary client was the National Indigenous Women's Resource Center, a large national Native nonprofit that's dedicated to ending violence against Native women and children. We argued on behalf of McGirt and on the side of the tribe that these cases belong in tribal court. To the extent that we have strange bedfellows, I think it's worth noting again that this idea of sovereignty matters for victims and sovereignty matters for defendants. Tribal nations are in the best position to make decisions about how to protect people and hold people accountable. It may seem ironic that a victims' rights organization would side with somebody alleged to do some pretty horrific things, but the end goal of making sure that tribal nations are strong and capable of protecting one another is at the core of what any sovereignty battle is about—the battle to define what's right and wrong and how we resolve those questions.

Barbara Creel: That's Indian law, right? We're a unique, interesting, quirky, crazy quilt of jurisdiction. I wanted to add another point with regard to disadvantages. Tribes have the power to adjudicate criminal acts on the reservation. Because of separate sovereignty and the dual sovereignty doctrine, a Native American can be facing up to a year in jail without the benefit of counsel. Natives are the only people that that happens to in the United States. We're the only ones that can go to jail without an attorney. Natives are also subject to double jeopardy because they can be prosecuted by their own tribes and by federal court under the Major Crimes Act. The problem of over-policing and over-criminalizing and over-incarcerating Native Americans has a long legacy. In footnote six of the McGirt decision, the Court says some helpful things about land recognition and Native rights and points to the Pueblo Indians in the case of United States v. Sandoval. But that 1913 case was one in which the Supreme Court was trying to decide who was an Indian, and whether Pueblo Indians were Indian because there was no definition. What did the Court look to determine whether Natives were Indians? Behaviors and stereotypes. They decided that Pueblo Indians were dimwitted, had plural marriages, practiced non-Christian religions, and were in need of guardianship. That's the legacy that continues to thread into these 2020 cases. We're still carrying around those labels.

Craig Womack: Thank you. We're going to move to questions with the help of Dr. Megan O'Neil, assistant professor of art history at Emory University and faculty curator of the Art of the Americas at the Michael C. Carlos Museum.

Question and Answer Session

Megan O'Neil: Thank you, Craig. The audience has posted many questions, which I think speaks to how important this work is.

First I want to read a comment from an attendee, Stuart Fenton: "The language used by Justice Gorsuch was beautiful, brings tears to my eyes, even though I'm not Native. I'm a lawyer, however, and Jewish so I understand deeply the wrongs done to your people; similar wrongs have been done to mine."

How about the more general question about the implications of this decision in Indian Country outside of the Creek Nation?

Sarah Deer: I think the way in which Gorsuch challenges the other justices to confront the ugly history of federal Indian law and to look at what really happened on the ground could have impact on cases involving tribes that have related concerns about questions of self-government. His ability to look and be honest about the history is, I hope, a template for justices ruling on Indian Country cases in other contexts.

Megan O'Neil: Here's a question regarding what's written in the McGirt majority opinion, that there is no reason why Congress cannot reserve land for tribes in much the same way, allowing them to continue to exercise governmental functions over land even if they no longer own it commonly. How would such a conclusion affect the outcome of Alaska v. Native Village of Venetie Tribal Government, et al. from 1998?"

Sarah Deer: Venetie is a devastating case out of Alaska. It actually came out when I was a law student. It made me wonder why I was in law school, it was so poorly reasoned. But it's a question of tribal territory, really a different animal, because it's looking at the Alaska Native Claim Settlement Act, which is not applicable in the lower forty-eight and certainly not in Oklahoma. So, I would love to see Venetie reconsidered, but I'm not sure McGirt really changes anything as far as that decision goes.

Barbara Creel: I agree. Venetie was looking at the definition of Indian Country and deciding whether the Alaskan Native corporations fit within one of those definitions and found that they did not.

Megan O'Neil: Here's a question from Sarah Hill asking if you could comment on the response to the decision by the Cherokee Nation and the state of Oklahoma.

Sarah Deer: Well, the state of Oklahoma is pretty unhappy, and that's been expressed by a number of state officials, including the attorney general, who referred to us as "sovereignty hobbyists" in one of his disparaging comments about our efforts to expand tribal authority. I can't speak to the Cherokee's official position or not. Each tribe is unique and different.

Megan O'Neil: This next question is for Justice Adams, from Veronica Passfield: "After attending graduate school with Andrew I moved to Oklahoma City. Governor Stitt created a committee to strategize about how to adapt to McGirt. His committee included oil and gas CEOs, but no tribal leaders. I'd like to hear thoughts on McGirt backlash and how the community can advocate to help offset it."

Andrew Adams III: It's appropriate that we're having this conversation on Indigenous Peoples' Day. The parade of horribles you hear from individuals, from the state attorney general and Senator Inhofe, claims that the Supreme Court is creating an untenable situation in Oklahoma where the Muscogee Nation is going to be able to exercise "enhanced jurisdiction" or "extra jurisdiction" over its reservation. People say that the sky is going to fall if you give these Indians authority over their land again.

A lot of people, when they think about reservations and about treaties, think about the United States saying, "Okay, we're going to give you this land." But there's another way of thinking—and there's power in words—that reservations are the land that the tribes reserved for themselves. It wasn't anything that was given to the Muscogee Nation. This was land that the Muscogee Nation saved for itself as a homeland in exchange for other rights. Anyone who predicts the sky is going to fall, they are perpetuating the settler mentality imposed upon Indian peoples. The US Supreme Court did the right thing by issuing this decision. And now let the state of Oklahoma and the Muscogee Nation work as sovereigns.

Megan O'Neil: This next question is from Sarah Armstrong, a current public defender in Atlanta, a University of New Mexico alum, and a former student of Professor Creel. "What advice can you give to non-Native defenders of Indigenous rights, especially with respect to this decision?"

Barbara Creel: Every time I work with a person from a different family, a different community, a different tribe, a different government, I treat that experience as one of an ambassador. Learning about the particular tribe. I teach the way to be an ally is to promote Indigenous wisdom and Indigenous voices. Learn about the ancestral lands which you are standing on right now and elevate the voices of Native people. Educate yourself but know that each tribe is different. There is no pan-Indian way. Combat willful ignorance. Don't give up because these issues are complicated. Be willing to fight those injustices where you see them.

I appreciate the work of the Indigenous Women's Network and of all those who come to these issues with their own wisdom and with the experiences of having lived through violence or the criminal justice system or being court-involved.

Megan O'Neil: The next question is for Professor Deer, regarding sexual violence law jurisdiction in Indian Country: "How do you hope the case against McGirt and other cases of sexual violence committed in this region will be pursued? How does the Violence Against Women Act come into play, and how might the Creek and other Native nations bring Indigenous perspectives to such cases?"

Sarah Deer: Thank you for the question. Yes, Mr. Murphy and Mr. McGirt have both been indicted in federal court, which was the appropriate court that should have had their case from the beginning. While some headlines suggested that McGirt is leading to the release of dangerous persons, the reality is that McGirt and Murphy are still under the jurisdiction of the United States and are going to either plea or be prosecuted by the US attorney. So as far as they're concerned, the question might be, "Could the tribe also prosecute them under concurrent authority?" Certainly, going forward, the Creek Nation has a homicide law. It has a rape law. It has a child sexual abuse law, a child pornography law. So, the Tribal Council, the legislative branch of the tribe, has passed laws which suggest that the government would like to see authority in those cases. Only time will tell. I do think that the tribe has the potential at this point to take other kinds of crimes under tribal law. That'll be an interesting development, and as Professor Creel noted, we're not necessarily wedded to the Western law-and-order model. We can create therapeutic models of justice. Many tribes have done that. It's a very interesting time to be Creek.

Megan O'Neil: "The Supreme Court has not ruled on whether the Major Crimes Act divested tribes of jurisdiction, but it's widely accepted now that it did not. However, there's contrary language in some Supreme Court decisions. As I read the Gorsuch opinion, it doesn't have any definitive language suggesting he views the Major Crimes Act as divesting tribes of power, but there's some language that could be read as suggesting he assumes it did. Can you say anything about whether or how the opinion might affect tribal jurisdiction over major crimes or how the tribe might be approaching the question?"

Barbara Creel: That sounds like Professor Rolnick.

Sarah Deer: Thanks, Professor Rolnick, I'm sure we can write a law review article on this question at some point. I think any reference to whether the tribes retain jurisdiction or not in Gorsuch's opinion is a matter of dicta. Of course, you know, I think the reasoning that only Congress can divest tribes of jurisdiction would apply here. That the Major Crimes Act did not divest—there's no explicit language in the Major Crimes Act divesting tribes of jurisdiction. But yes, you're right. The question is not definitively answered in the Supreme Court at this time, but I feel confident that using this kind of case as a precedent will aid that if it does come before the Court at some point.

Barbara Creel: I read the opinion, too, with Gorsuch saying that the Major Crimes Act encroached upon tribal jurisdiction, but it was a limited encroachment in that it was specific enumerated crimes. It's widely accepted that there's concurrent jurisdiction because of Supreme Court decisions that say the dual sovereignty doctrine applies. I think that there have been implications that both the tribe and the feds have jurisdiction.

Megan O'Neil: Here's a general question about Muscogee Creek language: "As someone who was born and raised in Bogotá, Colombia, currently living in Massachusetts, I advocate for linguistic human rights being a native Spanish speaker. And I'm wondering if any of the scholars in the panel know about laws regarding language access or language advocacy, not just for the Muscogee language or the Creek people, but any of the hundreds of Indigenous languages in the United States."

Craig Womack: I'm not sure I can answer this question. For a long time, Sarah and I were in a group that got together to speak Creek with our mentor Rosemary McCombs. One of the things that Sarah was always interrogating was whether or not there are certain Muscogee words or ideas that had to do with legal principles. So, Sarah, did you want to say something about this? You can answer it better than I can.

Sarah Deer: I have to admit, that while I am a language learner, I don't know much about any federal or governmental policies about promoting language per se. I tend to focus my scholarship in the criminal arena, but there are people actively trying to save the Creek language today. It is an endangered language. We do have a linguist that committed himself to our language. His name is Jack Martin at the College of William and Mary. He co-authored our dictionary and grammar book. It is always an ongoing process to save an Indigenous language and our tribe does have a language department and there are a couple of colleges in Oklahoma that teach Muscogee language. But beyond that, I don't know that I have a lot of knowledge to bestow.

Craig Womack: I don't know of any state that has recognized a Native language as an official language.

Barbara Creel: New Mexico's constitution guarantees access to the courts in additional languages besides English. That means Spanish and Native languages. Because of the Major Crimes Act, Native language certifications are really important. States with large Native populations or states that care about Native citizens can pass a statute with regard to language access in the court system simply on a due process basis. The Pueblos come at it from a little bit different viewpoint in that my tribe has language immersion at Head Start. Language is spoken in the home and in intergenerational daycare. There's also a lawsuit in New Mexico suing the state department of education for lack of language access and services for Navajo and Pueblo speakers.

Andrew Adams III: I'll just quickly add that there are tribes all across the country that have passed tribal laws concerning traditional and Indigenous intellectual property protections. Often, tribes will identify their language as being part of that corpus of information that they consider that needs to be protected and archived and will actively budget funds for that protection, not looking to the state or the feds.

Barbara Creel: In my tribe, there is a rule against sharing the language because Pueblo language is not for public consumption. You don't find it taught in community colleges as you do in other tribes. It exists for internal purposes and is imbued with concepts that shouldn't be shared with others. The tribal language provides a different function than English does.

Megan O'Neil: Thank you so much. Here's a question from Ed Barker who's asking if McGirt affirms Congress's power to extinguish Indian Country. What do you all think about that question?

Andrew Adams III: From my standpoint, McGirt does essentially prop up the legal concept, the plenary power over tribes, right? That Congress, if it wants to, can pass statutes that dramatically change the legal relationship between the United States and federally recognized Indian tribes. And in this current environment, in some respects I don't mind that.

Sarah Deer: I agree, and I think that's been a big critique, especially by scholars who raise the question, "Is this really a victory if it continues to recognize Congress's plenary power?" In response to that, I'm not sure we will ever have that victory in the Supreme Court. What's important to note about this question is that tribal interests have had a much better go of things working with Congress than working with the courts. We tend to lose in the federal courts quite a bit, but yet we've managed to sustain some pretty progressive legislation in Congress. So if Congress is the place to go, I feel like the political process offers more ways to pursue tribal interests. We don't have control over the litigation that comes up about our sovereignty within the federal courts. But I don't think at this day and age, you would see a complete repudiation of Congress's plenary power, but one can always hope, I suppose.

Sarah Deer: I've written on tribal law, but primarily on violence against Native women. And because I get asked a lot, I finally made a website where you can find my writings at SarahDeer.com.

Barbara Creel: I'll also recommend the Sarah Deer, Carrie Garrow book that I mentioned before, Tribal Criminal Law, as a ready resource for people that just want to understand criminal jurisdiction in Indian Country with really good examples of Native thought in criminal law.

Conclusion

Craig Womack: This has been an amazing discussion. Not only for those of us on the panel, but for the impressive level of experience of the audience—people who went to law school with, or are former students of a panelist, academics such as Sarah Hill, who've written about southeastern people, grassroots people doing work in Creek country, law students across the country, law professors. And all the other members of the audience who have listened in. I'm excited too about the potential, as Professor Creel said, of being able to do things differently and maybe to expand into more ways of looking at restorative justice and creative approaches to governments and alternatives to punitive-based approaches to criminal justice. It's exciting to think about where this might lead us. Cehecvres, see you all again.

About the Panelists

Andrew Adams III is a citizen of the Muscogee (Creek) Nation and member of the Tvlahasse Wvkokaye Ceremonial Grounds. He currently serves as Justice of the Muscogee (Creek) Nation Supreme Court, Chief Justice on the Santee Sioux Nation of Nebraska Supreme Court, and Justice on the Gun Lake Tribal Supreme Court.

Barbara Creel, a member of the Pueblo of Jemez, is a professor of law at the University of New Mexico School of Law and former director of the Southwest Indian Law Clinic.

Sarah Deer is a citizen of the Muscogee (Creek) Nation of Oklahoma and University Distinguished Professor at the University of Kansas. She holds a joint appointment in the Department of Women's, Gender, and Sexuality Studies and the School of Public Affairs and Administration. Professor Deer is also the Chief Justice for the Prairie Island Indian Community Court of Appeals.

Craig Womack is an Oklahoma Creek-Cherokee Native American literary scholar, writer, and teacher, and an associate professor of English at Emory University.

Blog post

In a case decided on the grounds of religious freedom, the US Supreme Court took another big step on June 30 in supporting religious discrimination in publicly financed schooling and, more broadly, in overturning Brown v. Board of Education, the 1954 landmark opinion that promised the end of racial segregation in public education.

The Court ruled in Espinoza v. Montana Department of Revenue that the US Constitution’s guarantee of religious freedom prohibits a state from excluding religious schools when it finances attendance in private schools. There should be no misunderstanding about what this case means in regard to religion: states are now free to finance private schools that discriminate against students on the basis of students’ religions.

As troubling as that holding is, the opinion also constitutes a major, often ignored long-term impact on school desegregation. Today most students attending private schools are in religious schools, and most religious schools are effectively segregated and exclusionary by race. For this reason, Espinoza constitutes a regrettable, and significant, decision in the Supreme Court’s long and certain movement over the last forty years to overturn the Brown decision.

In the short run, the Court’s decision adds momentum to the school choice movement that has been lobbying in Washington and the state capitols to increase public funding of private schools through programs that often safeguard the private schools’ discretion to choose whomever they wish to admit as students. Already twenty-six of the fifty states have yielded to school choice advocates by enacting a variety of voucher programs financed by state appropriations and state tax credits.

Together these voucher programs are diverting more than $2.1 billion annually to private schools. That sum is larger than the annual state funding of public schools in thirteen of the nation’s fifty states. And in January, decrying “failing government schools,” President Trump renewed his support for US Secretary of Education Betsy DeVos’s plan to spend billions of federal dollars on private school vouchers.

Advocates of “school choice” claim they are advancing religious freedom, social justice, and civil rights when in fact, as I document in “Segregationists, Libertarians, and the Modern ‘School Choice’ Movement," they echo the language and tactics used by southern segregationists in their efforts to evade school desegregation after Brown. It is there—in the history of the segregationists’ fight against Brown and in how the federal courts addressed their strategies—that the long-range impact of Espinoza becomes evident.

In the years following Brown, southern states passed dozens of bills to condemn and frustrate school desegregation. The overall strategy of massive resistance was based on two basic tactics. One was placing pupils in public schools according to what the segregationists claimed were children’s “ability to learn”—which they believed, but after Brown carefully avoiding saying, was inherently different due to race. The other was funding vouchers for private academies where segregationists were free to set up exclusionary admission standards.

By the end of the 1960s, the Supreme Court and other federal courts had effectively confronted this two-pronged strategy by ruling that most of the pupil placement laws for public schools were racially discriminatory in their application and that the South’s voucher programs were a violation of the US Constitution’s Fourteenth Amendment guarantee of “equal protection of the laws.” By that time, however, local and state funding had enabled the rapid growth of private schools—schools that were segregated, often with a token number of Black students to deflect federal scrutiny, and that increasingly professed nonracial reasons for their practices, often citing religion.

Many headmasters of the “segregation academies” by the early 1970s claimed their schools were motivated by religion. “Our people—supporters of the Independent schools—are convinced God is behind us,” asserted the head of the Louisiana segregated private schools. “People believe wholeheartedly that God doesn’t want us to mix.”¹Steve Suitts, Overturning Brown: The Segregationist Legacy of the Modern School Choice Movement (Montgomery: NewSouth Books, 2020), 71. Whatever their purported nonracial rationale, the vast majority of the South’s private schools had become religion-based and remained nearly entirely segregated.²Ironically, the Court’s decision in Espinoza removes one of the few restrictions that the Southern segregationists’ voucher programs in the 1960s actually upheld—a prohibition against financing vouchers for students in religious private schools.

In retrospect, the 1970s also was the era signaling how and when the Supreme Court would turn away from its vigilant efforts over the previous two decades to implement the promise of Brown. The Court began issuing decisions that would block desegregation efforts in public schools—where most students of color seek a better education—and enable public financing of private schools that preserve virtually segregated, exclusionary education for white students.

As early as 1973, Justice William Rehnquist became the first member of the Court to issue a dissent from a school desegregation case relying on the precedent of Brown.  In a case concerning school segregation in Denver, he condemned the Court’s opinion for requiring a school district to advance desegregation—employing the old scare word, “racial mixing”—where there were “neutrally drawn boundary lines” that sustained segregation.³Keyes v. School Dist. No. 1, Denver, 413 US 189 (1973), 258. See Justin Driver, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind (New York: Pantheon Books, 2018), 278–283.  As Driver notes, Justice Rehnquist as a Supreme Court law clerk had argued while Brown was being considered that the Court should not overrule Plessy v. Ferguson, 163 U.S. 537 (1896), which had sanctioned state-sponsored segregation and the South’s Jim Crowism for three generations. Chief Justice Roberts was a law clerk to Justice Rehnquist in 1980.

With the ascendency of Justice Rehnquist as Chief Justice and the appointment of other justices across more than three decades, the Court increasingly refused to require public school districts to use effective methods of dismantling school segregation. In 2007, the Court turned Brown on its head when Chief Justice John Roberts wrote that Brown commanded school districts to avoid using race as a consideration, even for the purpose of recognizing and diminishing public school segregation. “When it comes to using race to assign children to schools,” Roberts wrote without doubt or irony, “history will be heard.”⁴Parents Inv. In Community Schools v. Seattle School, 127 S. Ct. 2738 (2007). In truth, the Court silenced the historical voices and promise of Brown.

The Supreme Court’s strategy in addressing the second prong of the old segregationists’ strategies—banning government financing of segregated private schools—had a robust but short-lived revival in the early 1980s. Chief Justice Warren Burger used majestic language in 1983, holding that a religious school, Bob Jones University, could not require segregation on its campus and retain an IRS tax exemption. “The Government has a fundamental, overriding interest in eradicating racial discrimination in education—discrimination that prevailed, with official approval, for the first 165 years of this Nation’s constitutional history,” he wrote. “That governmental interest substantially outweighs whatever burden denial of tax benefits places on petitioners’ exercise of their religious beliefs.”⁵Bob Jones Univ. v. United States, 461 U.S. 574 (1983).

But barely a year after the Bob Jones decision, the Supreme Court slammed shut the courthouse door on those seeking to challenge the IRS’s weak enforcement of that decision and other violations among private schools. Parents of twenty-five Black public school children sued the IRS, charging that its standards and procedures were inadequate to fulfill its obligation to deny tax-exempt status to racially discriminatory private schools. In 1984, the US Supreme Court held that the parents had no standing to bring such a suit.⁶Allen v. Wright, 468 US 737 (1984).

In more recent years, Justice Anthony Kennedy led the Court in nailing that door completely closed and unleashing private schools from constitutional restraints on receiving taxpayer funds. Arizona’s program of tax credit vouchers allowed individuals and corporations to give tax dollars to private schools instead of paying them to the state. The program was similar to the Montana program in Espinoza and to the private school funding programs that the Supreme Court had outlawed in prior cases in the 1960s, including in Prince Edward County, Virginia, where Justice Hugo Black struck down both direct and tax credit-based vouchers.⁷Griffin v. School Bd. of Prince Edward Cty, 377 US 218 (1964).

In 2011, Justice Kennedy held for the majority that tax credit vouchers did not involve public funds or any state action that the Bill of Rights would prohibit. “While the State, at the outset, affords the opportunity to create and contribute,” Kennedy wrote, “the tax credit system is implemented by private action and with no state intervention,” with the result that citizens had no standing to challenge the constitutionality of the tax credit voucher program.⁸Arizona Christian School Tuition Org. v. Winn, 131 S. Ct. 1436 (2011), 1448. Justice Kennedy’s opinion considered whether the First Amendment’s clause requiring separation of church and state, by way of application to the states through the Fourteenth Amendment, prohibited providing state tax credit vouchers to religious schools.

The Court’s opinion in Espinoza v. Montana Department of Revenue holds that there is state action involving constitutional principles that citizens can enforce when they challenge a state exclusion of religious schools from its program of tax credit funding on the basis of religious freedom. However, according to the earlier Arizona ruling, there is no state action when citizens challenge a program of tax credit funding of religious schools on the basis of separation of church and state. It is an odd double standard that makes no sense and represents result-directed law.

Worse, Espinoza moves the Court one step closer to overturning Brown. With Espinoza, state programs can now finance private schools that discriminate on the basis of religion, which has become over the decades a frequent proxy for race. It sanctions expanding state programs that permit private schools across the nation to maintain what strategic southern segregationists sought to achieve after Brown—virtual segregation and exclusion of children of color—while its prior rulings have insured that public school districts cannot recognize race to voluntarily employ effective strategies to desegregate its own schools.

Long gone is the nation’s “fundamental, overriding interest in eradicating racial discrimination in education.”

About the Author

An adjunct with Emory University's Institute for the Liberal Arts, Steve Suitts is the author of Hugo Black of Alabama: How His Roots and Early Career Shaped the Great Champion of the Constitution. Earlier in his career, Suitts served as the executive director of the Southern Regional Council, vice president of the Southern Education Foundation, and executive producer and writer of "Will the Circle Be Unbroken," a thirteen-hour public radio series that received a Peabody Award for its history of the civil rights movement in five Deep South cities.

Essay

In a 2017 essay, National Museum of African American History and Culture director Lonnie Bunch noted that, like much of black history, environmental activism by people of color is often "forgotten" or "hidden in plain sight." Bunch, now director of the Smithsonian Institution, labeled this movement work unacknowledged environmentalism. Environmental reform campaigns led by people of color and other marginalized groups include not only land struggles by formerly enslaved people and by Native Americans, but also agricultural movements and the class-based mobilizations of populist agrarians. Chicano farmworker fights against poisonous pesticides are environmental battles, as are African American civil rights campaigns for equal access to recreational areas and to safe spaces in cities.¹Lonnie G. Bunch III, "Black and Green: The Forgotten Commitment to Sustainability," in Living in the Anthropocene: The Earth in the Age of Humans, eds. W. John Kress and Jeffrey K. Stine (Washington, DC: Smithsonian Books, in association with Smithsonian Institution Scholarly Press, 2017), 83–86, 86.

Recovering this history acknowledges that people of color and the poor have shared the passion for wilderness and the natural world that motivates preservationists. In the early twentieth century, for example, African American women and men hiked Niagara Falls and cycled in Yellowstone. George Washington Carver, as we know from historian Mark Hersey's 2011 study, explicitly cast his research and practice of agroecology in terms of conservation.²Mark D. Hersey, My Work Is That of Conservation: An Environmental Biography of George Washington Carver (Athens: University of Georgia Press, 2011).

However, the benefits of environmental citizenship are not and have not been distributed equally. People of color have fought to participate in the enjoyment of nature and the benefits to health those activities offered. "[T]he color line in any guise was inherently environmental," explains historian Mark Fiege. The spatial configuration of cities and towns, reservation boundaries, Jim Crow segregation on either side of the Mason-Dixon line, the contemporary policing of racialized spaces—all can be understood not only as battle lines in freedom struggles but also as unacknowledged elements of urban ecology, a denial of mobility, a constraint on access to space. "The criminalization of urban space," as scholar Yohuru Williams explains, increasingly has been recognized as a question of environmental justice.³Mark Fiege, The Republic of Nature: An Environmental History of the United States (Seattle: University of Washington Press, 2012), 320; Robert S. Emmett, Cultivating Environmental Justice: A Literary History of U.S. Garden Writing (Amherst: University of Massachusetts Press, 2016), 5; Yohuru R. Williams, Rethinking the Black Freedom Movement (New York: Routledge, Taylor & Francis Group, 2016), 115.

The environmental justice paradigm that emerged in the 1980s expands our understanding of what issues and concerns count as environmentalism. Native American groups lobby to redress exploitation of uranium miners. Organizations such as the Black Panthers and the Student Nonviolent Coordinating Committee (SNCC) identified environmental concerns not on the agenda of mainstream groups such as the need for rat eradication and demand for "community control" in urban areas. In their call for self-determination, black nationalists took up the slogan, "Free the Land."⁴Alondra Nelson, "The Longue Durée of Black Lives Matter," American Journal of Public Health 106, no. 10 (2016): 1734–1737, https://ajph.aphapublications.org/doi/10.2105/AJPH.2016.303422; Russell Rickford, "'We Can't Grow Food on All This Concrete': The Land Question, Agrarianism, and Black Nationalist Thought in the Late 1960s and 1970s," Journal of American History 103, no. 4 (March 2017): 956–980, 957.

Social justice environmentalists have sought not just the inclusion of people of color in the history and practice of conservationism, but a fundamental reorientation of the American environmental movement's concerns and aims. Calling for equal treatment of communities of color and for full participation by marginalized social groups in environmental decision-making, environmental justice proponents emphasize questions of power and rights. Scholars have often described campaigns so rooted in broader social justice movements that they were not recognized as environmentalism. Excluded groups link their appreciation of nature and desire for healthy surroundings to a broader vision of social justice inseparable from full social and political rights.

Stimulated in part by this reorientation, new histories of environmentalism and, to a certain extent, the movement itself have begun confronting the more complex and difficult elements of the conservation movement's past. From its beginnings, conservationism echoed the nation's conflicts over race and inequality. Several prominent early conservationists were also eugenicists. White supremacy and nativism—hostility toward immigrants—were integral to the way many early conservationists understood their work. These ideas infused (and continue to infuse) debates about overpopulation, immigration, and resource policy.⁵Robert Gottlieb, Forcing the Spring: The Transformation of the American Environmental Movement, rev. ed. (Washington, DC: Island Press, 2005), 24; Jennifer Clapp and Peter Dauvergne, Paths to a Green World: The Political Economy of the Global Environment, 2nd ed. (Cambridge, MA: MIT Press, 2011), 246; Ben Zuckerman, "Nothing Racist About It," Globe and Mail, January 28, 2004, theglobeandmail.com/opinion/nothing-racist-about-it/article741382/.

The early campaigns for wilderness preservation are now understood not only as preserving public lands and limiting habitat destruction but also as a race-making project, defining who could enjoy the full rights of citizenship. As historian Carolyn Finney and others have argued, the designation of national parks and wilderness areas often created "white spaces" by displacing native populations and excluding racial minorities.⁶Carolyn Finney, Black Faces, White Spaces: Reimagining the Relationship of African Americans to the Great Outdoors (Chapel Hill: The University of North Carolina Press, 2014); Miles A. Powell, Vanishing America: Species Extinction, Racial Peril, and the Origins of Conservation (Cambridge, MA: Harvard University Press, 2016); Alexandra Minna Stern, Eugenic Nation: Faults and Frontiers of Better Breeding in Modern America, 2nd ed. (Oakland: University of California Press, 2016). Nevertheless, a strong, identifiable thread of social justice thought and action runs through US movements for environmental reform. Individuals involved in environmental causes have often participated in actions to oppose racial injustice, eliminate poverty, and achieve gender equality. Such alliances have been essential to the success of the environmental movement.

Struggles over segregated space that highlighted injustices offer some of the clearest examples of unacknowledged environmentalism. When the Montgomery Improvement Association (MIA) campaigned to desegregate the bus system and open jobs to black citizens in Alabama's capital city, five of the organization's eight primary demands presaged environmental justice themes. Laid out in a flyer entitled "Negroes' Most Urgent Needs," the MIA's concerns included "Negro Representation on the Parks and Recreation Board," "Sub-division for housing," "Congested areas, with inadequate or no fireplugs," "Lack of sewage disposals makes it necessary to resort to out-door privies, which is a health hazard," and, "Narrow streets, lack of curbing, unpaved streets in some sections."⁷"Negroes' Most Urgent Needs," Inez Jessie Baskin Papers, Alabama Department of Archives and History, Montgomery, Alabama, as displayed at the Birmingham Civil Rights Institute, http://digital.archives.alabama.gov/cdm/ref/collection/voices/id/2019. All are urban matters that would today be regarded as environmental concerns.

African American activists were often first to join forces with other people of color facing environmental threats. For example, in 1966, comedian and civil rights activist Dick Gregory was jailed in Washington state for participating in a "fish-in" held by the Nisqually Indians and other tribes to protest restrictions on native fishing rights. Inspired by civil rights sit-ins and organized by the Survival of the American Indian Society, these protests at Frank's Landing in Puget Sound sought to prevent overfishing by commercial fisheries and to restore native treaty rights to fish in the region's bays and streams. At issue were the tribes' ecological heritage and livelihoods, as well as treaty rights and tribal sovereignty. Dr. King telegraphed his support. The Southern Christian Leadership Conference (SCLC) endorsed the effort; the NAACP Legal Defense Fund and the ACLU provided legal assistance.⁸Telegram from Martin Luther King, Jr. to Dick Gregory, Martin Luther King, Jr. Papers, Civil and Human Rights Museum, Atlanta, Georgia, on view March 14, 2015; "Gregory and Wife Guilty in Indian Fishing Protests," New York Times, December 2, 1966, 69; Charles F. Wilkinson, Messages from Frank's Landing: A Story of Salmon, Treaties, and the Indian Way (Seattle: University of Washington Press, 2000), 55–56; U.S. v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), aff'd 520 F. 2d 676 (9^th Cir. 1975). One of the most important cases in American Indian law, the decision upheld the tribes' rights to an equitable portion of the catch and co-management of the fish stocks in the Puget Sound watershed and nearby offshore waters. The Court's holding was reaffirmed in 2018. See Zultán Grossman, Unlikely Alliances: Native Nations and White Communities Join to Defend Rural Lands (Seattle: University of Washington Press, 2017), 37–63; and John Eligon, "'This Ruling Gives Us Hope': Supreme Court Sides with Tribe in Salmon Case," New York Times, June 11, 2018, https://www.nytimes.com/2018/06/11/us/washington-salmon-culverts-supreme-court.html.

An upsurge in environmental concern in the 1960s drew inspiration and tactics from civil rights organizing. Organizations such as the Environmental Defense Fund and the Natural Resources Defense Council (NRDC) modeled their work on the NAACP Legal Defense and Education Fund. And, a newly elected cadre of African American elected officials built alliances that helped bring attention to the ecological crisis and advance environmental reform.

Following a path pursued successfully by civil rights advocates, environmentalists turned increasingly to the federal government as guarantor of rights. Working with allies in Congress, environmentalists erected a new framework of environmental law in less than a generation, much of it during the Nixon administration. A series of telegenic disasters proved instrumental in eliciting change.

In January 1969, just days after President Richard M. Nixon took office, a blowout at a Union Oil rig spewed oil into California's Santa Barbara estuary. Six months later, in Cleveland, Ohio, the Cuyahoga River, which flowed past the city before dumping its contents into Lake Erie, caught fire. Oil slicks and industrial wastes from innumerable factories and refineries upstream had left the water so polluted that fires had become a frequent occurrence. This particular fire brought the city's mayor to the scene and with him the national press. Cleveland's mayor in 1969 was Carl Stokes, the first African American elected to head a large US city. Not just Cleveland, but the nation faced "a crisis in the urban environment," said Stokes, "a crisis of immense proportions." With the burning river as his backdrop, Stokes linked racial progress and anti-pollution measures.⁹David Stradling and Richard Stradling, Where the River Burned: Carl Stokes and the Struggle to Save Cleveland (Ithaca, NY: Cornell University Press, 2015), 146, 79, 194.

Public outcry over the Santa Barbara oil spill and the Cuyahoga fire pressured Congress to act, passing the National Environmental Policy Act, which President Nixon signed on January 1, 1970. NEPA did not create the EPA, as some assume; that was accomplished by an executive order approved by Congress later that year. The law did establish the Council on Environmental Quality (CEQ) to advise the President. NEPA also gave citizens valuable tools for addressing environmental problems, mandating public participation in the permitting process. Any proposal for a large development would require an environmental impact statement (EIS) on the likely ecological impact as well as alternative proposals—say, fewer units, fewer trees destroyed, or substitute drainage plans. Developers and the permitting agencies were not required to choose the alternative with the least impact, but the new procedures gave environmental advocates a forum for raising objections and additional time for mobilizing opposition to particularly devastating projects. Considered one of the nation's most effective environmental laws, NEPA has been "emulated in various degrees by almost half the states and by an estimated 80 or more countries abroad."¹⁰John McCormick, Reclaiming Paradise: The Global Environmental Movement (Bloomington: Indiana University Press, 1989), 58; Gottlieb, Forcing the Spring, 180; Lynton Caldwell, "Implementing NEPA: A Non-Technical Political Task," in Environmental Policy and NEPA: Past, Present, and Future, eds. Ray Clark and Larry W. Canter (Boca Raton, FL: St. Lucie Press, 1997), 25–50, 37.

Postscript

NEPA's longstanding requirements for public participation in environmental policymaking are being directly targeted by the Trump administration. In January 2020, the Trump EPA proposed new rules that would set tight time limits on environmental assessments, limit the types of projects required to complete a full EIS, and effectively exclude consideration of a proposed project's indirect and cumulative effects on climate. Vulnerable communities could be disproportionately harmed by these regulatory changes. Reversing such policies will require even more robust coalitions than those that resulted in the passage of environmental laws in the first place.

About the Author

Ellen Griffith Spears is an associate professor in the interdisciplinary New College and the Department of American Studies at the University of Alabama. She is author of the award-winning Baptized in PCBs: Race, Pollution, and Justice in an All-American Town (Chapel Hill: The University of North Carolina Press, 2014).

A New Era for "School Choice" and Vouchers

The United States has never been closer to adopting a nationwide program in which the state and federal governments spend billions of tax dollars to finance largely unaccountable private schools to educate children from kindergarten through the twelfth grade. By the beginning of 2019, more than half of the fifty states had enacted a variety of voucher programs diverting public funds to private schools and in some places to home-schooling—often for the purported purpose of improving the education of low-income African American and Hispanic students. These programs use state appropriations or tax credits to divert public monies to support self-governing private schools, often with few requirements or restrictions.

The states have steadily enlarged these programs during recent decades as a result of persistent, intense lobbying from school choice advocates. Often, programs have started modestly with special-needs children, then expanded to a broader student population. School choice programs are spread across the nation, although the South has more than anywhere else.¹"Interactive Guide to School Choice Laws," National Conference of State Legislatures, June 15, 2017, http://www.ncsl.org/research/education/interactive-guide-to-school-choice.aspx; "School Choice in America," EdChoice, last modified April 9, 2019, https://www.edchoice.org/school-choice/school-choice-in-america/. Twelve of the twenty-six states with voucher programs using direct appropriations, indirect tax credits, or tax savings education accounts are in the South: Alabama, Arkansas, Florida, Georgia, Louisiana, Maryland, Mississippi, Oklahoma, North Carolina, South Carolina, Tennessee, and Virginia. State programs vary in form and scope, but some, like Georgia, permit state tax dollars to be diverted for home-schooling. All charts and maps with labels indicating "South" in this article refer to a fifteen-state South, which includes the twelve states listed above as well as Kentucky, Texas, and West Virginia. In 2018, more than $2.1 billion dollars in state funds went to support private schooling—a sum larger than the annual state appropriation for public schools in any of thirteen states across the nation.²School Choice Guidebook 2017–2018 (Washington, DC: American Federation for Children Growth Fund, 2018), 7–9, https://www.federationforchildren.org/wp-content/uploads/2018/10/AFC_School_Choice_Guidebook_2017-18_10.3.pdf; "2016 Public Elementary-Secondary Education Finance Data," Annual Survey of School System Finances, US Census, last modified May 17, 2018, https://www.census.gov/data/tables/2016/econ/school-finances/secondary-education-finance.html.

In addition, there is growing support in Washington for establishing school choice nationwide. In his first address to a joint session of Congress, President Donald Trump declared:

Education is the civil rights issue of our time. (Applause.) I am calling upon members of both parties to pass an education bill that funds school choice for disadvantaged youth, including millions of African American and Latino children. (Applause.) These families should be free to choose the public, private, charter, magnet, religious, or home school that is right for them.³"Trump's Speech to Congress: Video and Transcript," New York Times, February 28, 2017, https://www.nytimes.com/2017/02/28/us/politics/trump-congress-video-transcript.html. During his speech, the President also introduced an African American student who had received a tax credit voucher.

During his campaign, Trump pledged that he would become the "nation's biggest cheerleader for school choice" and would provide states with the means to use $20 billion in federal money to create vouchers allowing children to attend the private schools of their choice. "There is no policy more in need of urgent change than our government-run education monopoly," he said, "[that] has trapped millions of African American and Hispanic youth" in failing schools.

Trump's secretary of education, Elizabeth "Betsy" DeVos, a wealthy donor to Republican causes and a leading advocate of public funding of religious private schools, stated in May 2017 that the Trump administration would propose "the most ambitious expansion of education choice in our nation's history" because the "cause is both right and just." The Trump administration proposed to divert more than $1 billion to private schools in the 2019 budget in order to fund "scholarships to students from low-income families that could be used to transfer to a private school." But DeVos has so far been unable to convince Congress to fund such programs directly.⁴Jane Mayer, "Betsy DeVos, Trump's Big-Donor Education Secretary," New Yorker, November 23, 2016, https://www.newyorker.com/news/news-desk/betsy-devos-trumps-big-donor-education-secretary; Emma Brown, "DeVos Promises 'the Most Ambitious Expansion of Education Choice in Our Nation's History'—but Offers No Details," Washington Post, May 22, 2017, https://www.washingtonpost.com/local/education/betsy-devos-promises-the-most-ambitious-expansion-of-education-choice-in-our-nations-history--but-offers-no-details/2017/05/22/ae90f55e-3f03-11e7-8c25-44d09ff5a4a8_story.html; Valerie Strauss, Danielle Douglas-Gabriel, and Moriah Balingit, "DeVos Seeks Cuts from Education Department to Support School Choice," Washington Post, February 13, 2018, https://www.washingtonpost.com/news/education/wp/2018/02/12/devos-seeks-massive-cuts-from-education-department-to-support-school-choice; Laura Meckler, "The Education of Betsy DeVos: Why Her School Choice Agenda Has Not Advanced," Washington Post, September 4, 2018, https://www.washingtonpost.com/local/education/the-education-of-betsy-devos-why-her-school-choice-agenda-has-crashed/2018/09/04/c21119b8-9666-11e8-810c-5fa705927d54_story.html; US Department of Education, Fiscal Year 2019 Budget: Summary and Background Information, last modified February 12, 2018, https://www2.ed.gov/about/overview/budget/budget19/summary/19summary.pdf.

Support for federal funding of private schools is not a phenomenon only of the Trump administration. In 2012, the Republican candidate for president, Mitt Romney, issued an education "white paper" proposing public financing of tuition costs in private schools as the centerpiece of a new national education reform. The Romney for President position paper proposed to overhaul the primary federal funding of K–12 public schools "so that low-income and special-needs students can choose which school to attend and bring their funding with them. The choices offered to students under this policy will include . . . private schools if permitted by state law."⁵Romney for President, "A Chance for Every Child: Mitt Romney's Plan for Restoring the Promise of American Education," May 23, 2012, Chesapeake Digital Preservation Group, Georgetown Law Library, https://web.archive.org/web/20180624193755/http:/cdm16064.contentdm.oclc.org/cdm/ref/collection/p266901coll4/id/3980. The white paper was endorsed in a foreword by former Florida governor Jeb Bush.

In 2014, US senators Tim Scott of South Carolina and Lamar Alexander of Tennessee (ranking Republican on the committee for education) introduced legislation to enable federal funding for low-income and special-needs students in public schools to attend private schools. Alexander explained: "Allowing $2,100 federal scholarships to follow 11 million children to whatever school they attend would enable other school choice innovations, in the same way that developers rushed to provide applications for the iPhone platform."⁶Motoko Rich, "Bill to Offer an Option to Give Vouchers," New York Times, January 27, 2014, https://www.nytimes.com/2014/01/28/education/senator-to-propose-school-vouchers-program.html; American Enterprise Institute, "Senators Lamar Alexander and Tim Scott Unveil Ambitious Proposal to Expand School Choice," January 28, 2014, http://www.aei.org/events/senators-lamar-alexander-and-tim-scott-unveil-ambitious-proposals-to-expand-school-choice/; Lamar Alexander, "Weekly Column by Lamar Alexander: The 'Scholarship for Kids' Act," Weekly Columns, Lamar Alexander: United States Senator for Tennessee, February 18, 2014, https://www.alexander.senate.gov/public/index.cfm/2014/2/weekly-column-by-lamar-alexander-the-scholarships-for-kids-act; See also CHOICE Act, S. 1909, 113^th Cong. (2014) and Scholarships for Kids Act, S. 1968, 115^th Cong. (2017).

This momentum for vouchers found its way into the major federal tax overhaul enacted in 2017. Congress expanded the use of "529 savings plans" beyond paying for college costs so that tax-advantaged funds can now be used to pay up to $10,000 annually for costs of elementary and secondary education in K–12 private schools.⁷Ron Lieber, "Yes, You Really Can Pay for Private School With 529 Plans Now," New York Times, December 21, 2017, https://www.nytimes.com/2017/12/21/your-money/529-plans-taxes-private-school.html. This federal change supplements the Coverdell Education Savings Accounts passed first in the Clinton administration and expanded during the George W. Bush administration. It allows a limited use of federal tax dollars to support attendance at private elementary and secondary schools. See Coverdell Education Savings Accounts, 26 U.S.C. § 530 (2006). Most private schools, as non-profit organizations, receive contributions that are deductible for donors from federal income taxes. They also are exempt from income taxes and often local property taxes. This change promises to become quite significant, especially for wealthier households. It opens up a fund—$328 billion and growing—from which monies can be diverted yearly to private K–12 schools.⁸"529 Plan Data," College Savings Plan Network, June 30, 2018, http://www.collegesavings.org/wp-content/uploads/2018/10/June-2018-529-plan-data-10.15.18.pdf.

Civil Rights Rhetoric Echoes in "School Choice" and Vouchers

"School choice" has no traditional or intrinsic meaning in the field of education, but over the last several decades it has become a political slogan for the claim that government should finance children's education from pre-kindergarten through the twelfth grade in schools outside the public system in order to provide parents with a choice. In recent years, charter schools have been included as a "school choice" option because many local districts and some states now authorize private profit-making or non-profit entities to operate these schools independently, often without meeting requirements and rules that public schools must follow. In 2015, there were 2.8 million students in charter schools and 5.8 million students in private elementary and secondary schools across the United States.⁹"Public Charter School Enrollment," The Condition of Education 2018, National Center for Education Statistics, 2018, https://nces.ed.gov/programs/coe/pdf/coe_cgb.pdf; "Private School Enrollment," The Condition of Education 2018, National Center for Education Statistics, 2018, https://nces.ed.gov/programs/coe/pdf/coe_cgc.pdf. Also, see Peter Bergman and Isaac McFarlin Jr., "Education for All? A Nationwide Audit Study of Schools of Choice" (working paper 25396, National Bureau of Economic Research, December 2018). This article examines the history of government support for private schools as both the origin and primary foundation for the current movement for "school choice."

In claiming private "school choice" as right and just, President Trump and Secretary DeVos echo rhetoric that others have used to argue that publicly financed vouchers for children to attend private K–12 schools are a moral imperative. In articles such as "How School Choice Helps Advance Martin Luther King's Legacy," the Heritage Foundation has insisted that vouchers continue the civil rights movement. In 2011, the founder of the tax credit voucher program in Florida declared that school choice for low-income families "is one of the most important social justice issues of our time."¹⁰John Kirtley, "Facing a Harsh Truth When Fighting for a Bipartisan Cause," RedefinED, May 20, 2011, https://www.redefinedonline.org/2011/05/facing-a-harsh-truth-when-fighting-for-a-bipartisan-cause/; Katie Nielsen, "How School Choice Helps Advance Martin Luther King's Legacy," My Heritage, Heritage Foundation, August 28, 2013, https://www.myheritage.org/news/how-school-choice-helps-advance-martin-luther-kings-legacy/.

One of Dr. King's children, in fact, joined the cause of vouchers for private schools in Florida to give "black, Latino, and Hispanic" children the same options as others. "This is about justice," Martin Luther King III stated in 2016. "This is about righteousness. This is about freedom—the freedom to choose for your family and your child."¹¹Kristen M. Clark, "Thousands Rally in Support of Program Opposed by Union," Miami Herald, January 19, 2016, www.miamiherald.com/news/politics-government/state-politics/article55454785.html. Martin Luther King III attended and graduated from the private Galloway School, created in Atlanta in 1969. Earlier, his parents attempted to enter him into another Atlanta private school when he reached school-age in the 1960s, after they were misinformed by an Episcopal priest that the all-white, private Lovett School would accept their son. Their written application for his admission was denied without reference to a reason, although the chairman of the school board later stated that he believed that both the "negro and the white man has some individual rights." "Diversity and Inclusion at Galloway," The Galloway School, accessed March 27, 2019, https://www.gallowayschool.org/community-life/diversity-inclusion; Kevin M. Kruse, White Flight: Atlanta and the Making of Modern Conservatism (Princeton, NJ: Princeton University Press, 2005), 175–177.

The political movement for "school choice" is employing the icons and language of civil rights and social justice to advance private school vouchers that fifty years ago were primary tools for segregationists to preserve unequal education for African American and Hispanic children. President Trump's call for a national program of "school choice" echoes the language of George Wallace and others who demanded the federal government and US courts permit Alabama and the South to administer "freedom of choice" for elementary and secondary schools.

These apparent contradictions emerge from the unexamined legacy of segregationists who designed and developed effective, lasting strategies that frustrated and blocked K–12 school desegregation. It is a legacy that turns the icons and language of civil rights inside-out while thwarting the national goal of an effective, equitable system of education for all children.

Forgotten Segregationists

Historically, the methods and forms of segregation have been neither monolithic nor inert.¹²See C. Vann Woodward, The Strange Career of Jim Crow (New York: Oxford University Press, 1966); Pauli Murray, States' Laws on Race and Color (Cincinnati, OH: Women's Division of Christian Service of the Methodist Church, 1951), 3–20; J. Mills Thornton III, "Segregation and the City: White Supremacy in Alabama in the Mid-Twentieth Century," in Fog of War: The Second World War and the Civil Rights Movement, eds. Kevin M. Kruse and Stephen Tuck (New York: Oxford University Press, 2012), 52–55. Southern segregationists held differing notions about the best ways to preserve school segregation along with their beliefs in racial superiority. As Sylvan Meyer observed in 1960, southern segregationists included "all those whose views varied from a mild belief that the South would be better off maintaining as much racial separation as possible to those advocating insurrection rather than 'surrender' to any compromise whatsoever."¹³Walter Spearman and Sylvan Meyer, Racial Crisis and the Press (Atlanta, GA: Southern Regional Council, 1960), 47. Many segregationist leaders who designed and implemented plans for school choice have been forgotten, as have their plethora of rationales, strategies, and tactics. They were never widely known, and popular culture has narrowed the cast to a small rogues' gallery.

Prevalent images include segregationists such as Alabama governor George Wallace, Birmingham police commissioner Eugene "Bull" Connor, and a bevy of other white leaders such as Mississippi senator James Eastland who endure as premiere political symbols—in large part because their defiant images in multiple confrontations with and condemnations of federal officials often were captured as television came of age in the 1960s.¹⁴See Gene Roberts and Hank Klibanoff, The Race Beat: The Press, the Civil Rights Struggle, and the Awakening of a Nation (New York: Random House, 2006), 56, 301–325, 376–379. A few, such as Wallace and North Carolina's Jesse Helms, remained on the national political stage for more than a decade.¹⁵See Dan T. Carter, The Politics of Rage: George Wallace, the Origins of the New Conservatism, and the Transformation of American Politics (New York: Simon & Schuster, 1995), 451–468. Wallace prompted controversies over "free speech" rights on college campuses into the 1970s and remains today a popular reference for personifying the southern segregationist. See Peter Salovey, "Free Speech, Personified," New York Times, November 26, 2017, https://www.nytimes.com/2017/11/26/opinion/free-speech-yale-civil-rights.html.

But George Wallace was only one type of segregationist—and hardly a representative figure for those more successful over time in frustrating and blocking school desegregation. Segregationists with other styles and backgrounds built the more lasting terms, tools, and tactics that obstructed the Supreme Court's unanimous 1954 opinion in Brown v. Board of Education¹⁶Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). outlawing segregated public education. This wider cast of white supremacists competed fiercely in shaping how and where segregated schools could be preserved. When political self-interest and racial ideology aligned, they occasionally cooperated. At times they shared a vocabulary against Brown, depicted as a federal edict to force the South to create "mixed schools," never to create equitable, desegregated or integrated schools.¹⁷Spearman and Meyer, Racial Crisis and the Press, 19, 25, 46–48, 52. Meyer explains how "mix" was a "scare word." Justin Driver, "Supremacies and the Southern Manifesto," Texas Law Review 92 (2014): 1082, https://chicagounbound.uchicago.edu/journal_articles/4043/.

These white men included die-hards, such as those found in the middle-class Citizens' Councils who usually pushed to abandon all public schooling rather than accept any desegregation. Some Citizens' Council leaders, however, came to recognize exceptions to absolute, complete segregation. Ku Klux Klanners, especially in the Deep South, were also dead-set against a single Black child entering an all-white school and were willing to use extra-legal intimidation and violence. Others, such as South Carolina governor Jimmy Byrnes, believed that the impact of Brown could be postponed indefinitely or avoided in large measure by building new Black schools so that separate schools appeared closer to equal.

Political leaders such as Georgia's Ernest Vandiver won office by campaigning on a slogan of "No, not one" African American child would ever be allowed in a white school but discovered after entering the governor's office that complete, absolute segregation was impossible to achieve—and counter-productive to preserving as many virtually segregated schools as possible. There were segregationists such as Alabama state senator Albert Boutwell—who later as a "moderate" mayoral candidate defeated "Bull" Connor—and Birmingham corporate attorney Forney Johnston. While Wallace began as a white liberal before shifting his politics to become governor, Boutwell and Johnston were the first segregationist leaders to develop a variety of strategies, tactics, and rationales for school choice that often delayed and defeated the promise of Brown.

Resistance to school desegregation differed across the states of the former Confederacy according to class, geography, religion, and political ambition.¹⁸David L. Chappell, "The Divided Mind of Southern Segregationists," Georgia Historical Quarterly 82, no. 1 (Spring 1998): 45–72; James Graham Cook, The Segregationists (New York: Appleton-Century-Crofts, 1962), 5–6; Clive Webb, ed., Massive Resistance: Southern Opposition to the Second Reconstruction (New York: Oxford University Press, 2005), 8–9. The different factors influencing all policy issues, including race, in the segregated South were detailed by state in V. O. Key Jr., Southern Politics in State and Nation (New York: Alfred A. Knopf, 1949). These different factors also were evident in southern white attitudes toward African American education. See Gunnar Myrdal, An American Dilemma: The Negro Problem and Modern Democracy (New York: Harper and Brothers, 1944), 893–900. For an example of class divisions during desegregation, see Karen Anderson, "The Little Rock School Desegregation Crisis: Moderation and Social Conflict," Journal of Southern History 70, no. 3 (August 2004): 603–636. Only by recovering and understanding the work of a wider cast of white actors who crafted enduring tools and strategies protecting segregation can the reactionary heritage of today's school choice become clear. As Justin Driver has found, the efforts of these segregationist leaders "to maintain white supremacy were often considerably more sophisticated, self-aware, and nuanced than the cartoonish depiction of southern stupidity and hostility would admit."¹⁹Driver, "Supremacies and the Southern Manifesto," 1079. These forgotten and ignored strategies help explain how today's proponents of public financing of private schools can employ the language of civil rights without widespread discredit. They also reveal how the origins and historical development of "freedom of choice" have shaped and continue to define the impact and role of "school choice" and vouchers in public education across the nation.²⁰This study is, of course, not the first essay to explore the southern segregationist origins of private school vouchers for elementary and secondary schools. See, for example, Chris Ford, Stephenie Johnson, and Lisette Partelow, The Racist Origins of Private School Vouchers (Washington, DC: Center for American Progress, July 12, 2017), https://www.americanprogress.org/issues/education-k-12/reports/2017/07/12/435629/racist-origins-private-school-vouchers/, and Mark A. Gooden, Huriya Jabbar, and Mario S. Torres Jr., "Race and School Vouchers: Legal, Historical, and Political Contexts," Peabody Journal of Education 91, no. 4 (2016): 522–536.

School Choice and Vouchers Become Segregationist Tools

During the middle of the twentieth century, K–12 private schooling became intertwined with race and ethnicity as the Supreme Court issued opinions outlawing segregated graduate and professional public education.²¹Dick M. Carpenter II and Krista Kafer, "A History of Private School Choice," Peabody Journal of Education 87, no. 3 (2012): 336–338. For a review of the Court's decisions leading up to Brown, see Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality (New York: Alfred A. Knopf, 1976), 256–284; Sam P. Wiggins, Higher Education in the South (Berkeley, CA: McCutchan Pub. Corp., 1966), 169. There is an earlier history of school choice in the United States, when Catholic schools competed with public schools, often decidedly Protestant in nature, that carried forward into the twentieth century. See Robert N. Gross, Public vs. Private: The Early History of School Choice in America (New York: Oxford University Press, 2018). Yet, Gross largely ignores the pivotal period of Reconstruction when African American representatives helped to write new southern state constitutions mandating public schools as an essential duty of state governments. W.E.B. Du Bois, Black Reconstruction in America, 1860–1880 (New York: MacMillan, 1992), 637–669. These decisions had no impact on elementary and secondary public schools, but they signaled the direction the Court was moving.

From 1940 to 1950, private school enrollment in the South rose by more than 125,000 students—a 43-percent increase, and, for the first time since private enrollment numbers were documented, the rate of growth doubled that of the rest of the nation.

From 1950 to 1965, US private school enrollment grew at unprecedented rates while the South's rate again exceeded the nation's. Whites in record numbers fled to traditional and newly formed private schools. From 1950 to 1958, the South's private school enrollment increased by more than 250,000 students. By 1965, there were nearly one million southern private school students. Almost all were white.²²See Norman Dorsen, "Racial Discrimination in 'Private' Schools," William & Mary Law Review 9, no. 1 (1967): 46, https://scholarship.law.wm.edu/wmlr/vol9/iss1/4/.

Legislatures passed laws authorizing vouchers and other means of transferring public assets and monies to private schools.²³Reaction to Brown was comparatively muted outside the South since the Supreme Court struck down only school segregation established by law, and most segregation laws were in southern states. There was widespread de facto school segregation outside the South but only in a relatively few places did the law erect a dual system of publicly financed education based on race or ethnicity. See Murray, States' Laws on Race and Color; Robin M. Williams Jr. and Margaret W. Ryan, eds., Schools in Transition: Community Experiences in Desegregation (Chapel Hill: University of North Carolina Press, 1954); Will Maslow, "De Facto Public School Segregation," Villanova Law Review 6, no. 3 (1961), https://digitalcommons.law.villanova.edu/vlr/vol6/iss3/2/. In November 1953, as it appeared the Supreme Court might strike down school segregation, white South Carolinians voted to repeal a section of their state constitution that provided for a "liberal system of free public schools"—to clear the way for establishing a private school system. Georgia became the first southern state to pass a constitutional amendment enabling the legislature to send state, county, and municipal funds to "citizens of the State for educational purposes, in discharge of all obligation of the State to provide adequate education for its citizens." A month later, white Mississippians voted for a constitutional amendment granting the legislature power to close public schools and finance private ones. By the end of 1956, Virginia, Alabama, and North Carolina passed similar measures.²⁴W. D. Workman Jr., "The Deep South," in With All Deliberate Speed: Segregation-Desegregation in Southern Schools, ed. Don Shoemaker (New York: Harper and Brothers, 1957), 97–100; House Resolution No. 225, Acts and Resolutions of the General Assembly of the State of Georgia, 1953, November–December Session, vol. 2, 241; Molly Townes O'Brien, "Private School Tuition Vouchers and the Realities of Racial Politics," Tennessee Law Review 64, no. 2 (1997): 359–407. Louisiana adopted a constitutional amendment in 1954 affirming its police powers to prevent desegregation of public schools, and this amendment apparently was interpreted to provide the state legislature will the power to fund private schools. See Poindexter v. Louisiana Financial Assistance Commission, 275 F. Supp. 833 (1967).

From 1954 to 1965, southern legislatures enacted as many as 450 laws and resolutions attempting to discredit, block, postpone, limit, or evade school desegregation. A large number of these acts allowed the re-direction of public resources, including school resources, to benefit private schools.²⁵Tom Flake, "475 Legislative Actions Pertain to Race, Schools," Southern School News, May 1964, B-1. In 1956, the Georgia legislature permitted the leasing of public property to segregated private schools. Five years later, the state enacted a law to provide vouchers for students to attend any non-sectarian private school, boldly declaring the act was to advance "the constitutional rights of school children to attend private schools of their choice in lieu of public schools."²⁶For a full treatment of the methods and strategies of resistance, including diverting public resources to private schools, see Thomas V. O'Brien, The Politics of Race and Schooling: Public Education in Georgia, 1900–1961 (Lanham, MD: Lexington Books, 1999), 99–198.

The North Carolina legislature enacted eight bills, the first of which was a constitutional amendment to authorize vouchers for private education and to allow whites to close public schools through a local referendum. In Alabama, Louisiana, Mississippi, and South Carolina, legislatures passed laws to publicly fund vouchers for private schools and to transfer public school property to private educational organizations. Citizens' Councils were active in setting up private schools, especially in Mississippi. The Virginia legislature declared its support for this "freedom of choice" movement by enacting a system of vouchers for private organizations and citizens.²⁷Arthur Larentz Carlson, "With All Deliberate Speed: The Pearsall Plan and School Desegregation in North Carolina, 1954–1966" (master's thesis, East Carolina University, 2011); Jim Leeson, "Private Schools Continue to Increase in the South," Southern Education Report 2 (November 1966): 22–25; Walter F. Murphy, "Private Education with Public Funds," Journal of Politics 20, no. 4 (November 1954): 636–637; Lester Tanzer, "Private School Push: Integration of Virginia Public Schools Spurs Growth of Private Units," Wall Street Journal, February 6, 1959; Neil R. McMillen, The Citizens' Council: Organized Resistance to the Second Reconstruction, 1954–64 (Urbana: University of Illinois Press, 1971), 297–304; Mary Ellen Goodman, Sanctuaries for Tradition: Virginia's New Private Schools (Atlanta, GA: Southern Regional Council, 1961).

In addition to direct transfers of public funds and assets, some states employed tax schemes, including tax credits, to build and finance private school systems. In the Little Rock Crisis of 1957, after President Dwight Eisenhower was forced to call out federal troops to protect a handful of Black children attempting to attend Central High School, Governor Orval Faubus funneled public monies through contracts and tax credits to the Little Rock Private School Corporation until the federal courts stopped the subterfuge (along with further attempts by Arkansas to enact vouchers). In 1959, Georgia governor Ernest Vandiver led the legislature in passing the six segregation bills, including one that supported "the establishment of bona fide private schools by allowing taxpayers credits upon their State income tax returns for contributions to such institutions."²⁸Clay Gowran, "Faubus Tells 'Legal Plan' To Segregate," Chicago Daily Tribune, September 19, 1958; Journal of the House of Representatives, State of Georgia, Regular Session, 1959, 80; "'Resistance' Laws Urged in Georgia: Governor Offers 6 Measures Designed to Strengthen Segregated Schools," New York Times, January 16, 1959; "Georgia Asked To Strengthen Segregation: Six Bills Offered by Governor," Chicago Daily Tribune, January 16, 1959.

In the same year, Florida governor LeRoy Collins successfully opposed a legislative initiative to pass a constitutional amendment to allow state tax credits for private school contributions. In Prince Edward County and other locations in Virginia, officials used both direct payments and tax credits to build private schools until the federal courts halted both. In Mississippi, after federal courts struck down a direct tuition grant to private schools, Governor John Bell Williams proposed a state tax credit as he searched for the "ways and means of rendering assistance" for white flight to private schools.²⁹"May Veto Plan To Sell Segregation," Daily Defender, June 8, 1959; Lester Tanzer, "Private School Push: Integration of Virginia Public Schools Spurs Growth of Private Units Norfolk Academy, Others Will Expand; State Aids Shift, Authorizes Tuition Grants A Pattern for Solid South? Private School Push: Integration in Virginia Spurs Growth of Units," Wall Street Journal, February 6, 1959; Raymond Moley, "Children Are the Real Victims of the School Integration War," Los Angeles Times, May 18, 1961; Jon Nordheimer, "Integration Raises the Issue of Coeducation in South," New York Times, June 4, 1970.

By 1965, seven states had enacted some type of voucher that enabled the largest growth of private schools in the South's history. Yet, vouchers as a preferred and essential method of resistance to Brown did not stand alone but worked most effectively through larger plans that emerged from the different states. These plans were not uniform, but most incorporated strategies and language that have evolved and endured as the ways and means by which vouchers, school choice, and private schooling have escaped the stigma of their segregationist origins without losing much of the same purpose or effect.

Preserving Virtual School Segregation through Vouchers

During the era of massive resistance, several state legislatures and governors established committees or commissions to develop options for preserving segregation. These strategy groups were often known by the name of the persons chairing them—usually a senior legislator or well-known businessman. In Alabama, it was the Boutwell Committee, led by a prominent, well-to-do state senator. In South Carolina, a wealthy state senator chaired the Gressette Committee. The Pearsall Committee in North Carolina was named for its businessman leader; an Atlanta business leader guided Georgia's Sibley Commission. In Virginia, both of its strategy commissions were named for their prominent businessmen chairs.

The strategy groups issued recommendations in written reports explaining the imperatives for segregation, the rationale for preserving it, including arguments for why segregation was advantageous to Black families, and the different tactics of resistance. These reports demonstrate that segregationist leaders came to understand that vouchers and other forms of aid to private schools worked best in conjunction with a variety of other tactics and strategies for defeating Brown.

Alabama: "Big Mules" Develop a Freedom of Choice Plan

In October 1954, barely five months after Brown, the Boutwell Committee became the first strategy group to lay out a complete, multifaceted plan of resistance. As a moderate segregationist, state senator Albert Boutwell did not believe it feasible or advisable to maintain old segregation laws and disavowed the use of force.³⁰Boutwell's reputation as a moderate grew larger after he ran against and defeated Birmingham Police Commissioner Eugene "Bull" Connor in a race for mayor. "Albert Boutwell Lieutenant Governor: 1959–1963," Alabama Department of Archives and History, last modified August 20, 2009, http://www.archives.state.al.us/conoff/Boutwell.html. Perhaps the Boutwell plan's chief architect and certainly its primary intellectual force was Forney Johnston, a brilliant segregationist and corporate attorney in Birmingham who represented Alabama's "Big Mules"—coal companies, railroads, and wealthy industrialists and investors who profited from Birmingham's exploitative heavy industries. As a backroom politician and former governor's son, Johnston adroitly maneuvered in politics and law to protect the corporate interests he represented and to preserve his notion of segregation. He had managed a 1924 presidential campaign, mounted major legal challenges to New Deal economic reforms, and worked behind the scenes to secure pardons for the "Scottsboro Boys"—but only to prevent growing national support for federal intervention in "states' rights."³¹Edward R. Crowther, "Alabama's Fight to Maintain Segregated Schools," Alabama Review 43 (1990): 209–210; Thomas Jasper Gilliam Sr., "The Second Folsom Administration: The Destruction of Alabama Liberalism" (PhD diss., Auburn University, 1975), 107, 116, 194, 384. Johnston played a behind-the-scenes role in Alabama on racial matters. As a life-long white supremacist, he worked with state political and business leaders after both world wars in developing laws and strategies to thwart the expectations and aspirations of returning Black soldiers. Yet after managing a presidential primary campaign, Johnston nominated Alabama senator Oscar W. Underwood as the anti-Klan candidate for president at the Democratic National Convention of 1924. John W. Davis, who later argued before the US Supreme Court on behalf of southern states in Brown, won the nomination over Underwood after an unprecedented number of ballots. Johnston was a formidable and talented legal opponent. Steve Suitts, Hugo Black of Alabama (Montgomery, AL: NewSouth Books, 2005), 235–236, 462–472; "Roosevelt Stand on Policies Asked; Forney Johnston Urges Chamber to Seek Clarification of President's Objectives," New York Times, May 1, 1935; "Graves Is Accused in Scottsboro Case," New York Times, December 25, 1938; John Temple Graves, "The Wage-War Between the States," Nation's Business, June 1934, 42; Frank W. Boykin to Mrs. Forney Johnston, June 7, 1962, Frank W. Boykin Papers, Alabama Department of Archives and History.

The Boutwell report decried "forced integration," claiming it would lead to "violence, disorder, and tension for the state and its children." It warned that if the federal courts pursued "coerced integration," white employers would fire Black employees involved in such efforts and the federal courts would prompt inevitable violence among "the least stable and least mentally matured and responsible members of both races." The report also suggested that "compulsory integration" would devastate public school finances by estranging "white people, who pay by far the greater part of taxes which maintain the schools."

The Boutwell plan sought to assure two goals ("Education for all children of the state" and "No compulsory mixing of races in our schools") by proposing four basic strategies:

• Eliminate any "prohibition against the operation of mixed schools, attended by both races" in the current state constitution and laws. In other words, Alabama laws would "concede the right of white and negro families to send their children to mixed public schools." This change would enshrine "the principle of freedom of choice" to enable parents to select the school their children should attend—within certain predetermined conditions and qualifications.
• Remove any suggestion from the state constitution that there is a right of education or an obligation of the state to fund public schoolchildren and establish a "policy of the State of Alabama to foster and promote the education of its citizens in a manner and extent consistent with its available resources, and the willingness and ability of the individual student [emphasis added]."
• Invest the legislature with constitutional powers to enable local school officials to determine the conditions and qualifications for "eligibility, admission, and allocation of pupils, including the power to refuse admission to individuals or groups whose deficiencies in scholastic aptitude would compel undue lowering of school standards."
• Grant the legislature the constitutional power to provide vouchers and other tax funds in "support and furtherance of education in other ways than the operation of public schools" for both Black and white children.

In effect, the plan would establish in the name of school "choice" a three-school system, instead of a dual school system. The new system would enable children to attend all-white schools, all-Black schools, or desegregated schools in a state-financed system of public and private schools.

With only one "nay" vote, the legislature passed the proposals to revise the state constitution, and white voters of Alabama ratified the amendments in 1956 to set up the plan's framework. Alabama's Citizens' Council (called "manicured Kluxism" by the editor of the Montgomery Advertiser) worried that the proposals were weak. The Council's leader, state senator Sam Engelhardt, had earlier proposed legislation to close all public schools and use vouchers for white parents to enroll in private schools in order to "keep every brick in our segregation wall intact." Alabama governor James E. "Big Jim" Folsom opposed all of these measures. "I wouldn't want to sign a bill that would let rich folks send their kids all to one school and the poor folks to another school," the populist Folsom declared.³²Fred Taylor, "'Freedom of Choice' Bill Seeks School Solution in Alabama," Atlanta Journal-Constitution, February 12, 1956; Fred Taylor, "3-School System Amendment Expected to Pass in Alabama," Atlanta Journal-Constitution, August 26, 1956; Crowther, "Alabama's Fight," 214; "Georgia," Southern School News, September 3, 1954; Carter, The Politics of Rage, 83.

While the constitutional amendments recommended by the Boutwell Committee were pending before the legislature, Forney Johnston gave a speech to the Alabama Bar Association that identified the plan's legal underpinnings: "the liberty of parents to direct the basic conditions under which their children shall be educated." Quoting from the 1925 US Supreme Court opinion that struck down an Oregon statute requiring all disability-free children to attend a public school,³³Pierce v. Society of Sisters, 268 U.S. 510 (1925). Johnston declared: "This parental liberty, like other liberties, is not absolute; but is limited only by an overriding necessity for community order or welfare, reflected not in some remote Federal pronouncement, but in the grass-root exercise of state police power, by the State acting in its sovereign capacity."

Johnston argued that the Boutwell plan provided freedom of choice without regard to race and, in that context, the federal courts could not require white parents to send their children to a desegregated school, although some white parents could decide to do so. "If the 14^th Amendment now says that a state cannot inhibit the freedom of negroes to attend schools with white people, what does it say about the freedom of white people to choose not to go to school with negroes?" Johnston answered his own question. Virtually segregated schools could continue through this freedom of choice in a new system of education where the government financed both public and private schools, where there was "ordinary and customary geographical districting" for public schools, and where the independent "application of accepted educational tests and standards" by both private and public schools were the terms for admitting students.

This type of school system would permit parental choice for a desegregated school, all-white school, or all-Black school within a structure and standards that were expressly non-racial. "If the members of a race are thereby deprived of access to a school attended by the other race," Johnston observed, "the result is attributable not to compulsion by the state but to the inconsistent choices of free citizens. Under such circumstances, the state is obliged to give effect to the desire of parents without compulsion against either side."³⁴Joseph F. Johnston, "Schools, the Supreme Court, and the States' Power To Direct the Removal of Gunpowder," Alabama Lawyer 17, no. 3 (1956): 3–10.

The full details of the Boutwell plan failed to become law in 1955 in large measure because of the direct and behind-the-scenes opposition of Governor Folsom, who downplayed the Brown decision and fought on many other issues with Black Belt politicians and Birmingham's "Big Mules" and their lawyers such as Johnston. Folsom also vetoed a handful of local bills that attempted to punish Black teachers if they voiced support for desegregation, but the legislature passed the segregationists' pupil placement bill by a veto-proof margin.

The new pupil placement law for public schools was sponsored by Senator Sam Engelhardt, the Citizens' Council leader who had come to embrace the Boutwell Committee's concepts and strategies. The law asserted it had nothing to do with segregation, but aimed to advance each child's education:

To establish a practical school system whereby the state's school program can be adapted to each pupil's ability to learn. To this end it provides a modern school placement system, so that pupils can be so grouped that the less advanced pupils shall not be penalized by being placed in the class with pupils who are more advanced or capable of learning at a more rapid rate, and conversely, that exceptionally bright and able pupils shall not be held back to a level below their ability to learn.

The law empowered local school boards alone to make decisions about which school each student was assigned to attend based on the following factors: tests of student aptitude and ability as well as the distance of school from a pupil's home; a pupil's educational background and home environment; a student's long-established ties of friendship or the dangers of placing a pupil in hostile surroundings absent former friends and "associates"; a pupil's own wishes as evidenced by a written request from his parents or guardian to be assigned to a particular school; and whether, in the judgment of the school board, the assignment would cause or tend to cause a breach of the peace, riot, or "affray." The law provided for a complicated, costly appeal process, if parents disagreed with the board's decision. Not one word in the legislation mentioned segregation, integration, or a child's race.³⁵Fred Taylor, "School Segregation Problem No. 1 on Ala. Legislature List: Measures Proposing Varied Plans Readied for Extra Session Call," Atlanta Journal-Constitution, January 2, 1955; "Alabama," Southern School News, February 3, 1955, 3; J. Tyra Harris, "Alabama Reaction to the Brown Decision, 1954–1956: A Case Study in Early Massive Resistance" (PhD diss., Middle Tennessee State University, 1978), 208–209.

A year later, with the Montgomery bus boycott threatening to end segregated seating in the state capital, the federal courts ordered the admission of Autherine Lucy, a Black woman, into the University of Alabama, and white-led race riots broke out in Tuscaloosa.³⁶Lucy was summarily suspended "for her own safety" after a series of riotous events on campus following her attendance. Charles Morgan Jr., A Time To Speak (New York: Harper and Row, 1964), 37–39. Lucy remembered in 2017 at a university ceremony dedicating a historical marker in her honor that whites had chanted: "Hey, Hey, Ho! Where in the Hell did the nigger go?" See Jessa Reid Bolling and Rebecca Griesbach, "Autherine Lucy Foster Memorialized with Historical Marker," The Crimson White, September 18, 2017, 3, http://now.dirxion.com/Crimson_White/library/Crimson_White_09_18_2017.pdf; AL.com, "Autherine Lucy Foster Monument Unveiled," YouTube video, 1:56, September 17, 2017, https://youtu.be/6jriSBIwSHg. Afterwards, the legislature decided it was time to place before voters the basic parts of the Boutwell plan or, as it was publicly called, the "Freedom of Choice Plan." Folsom declared the legislation "hogwash" and many of his supporters opposed it. It also was opposed by die-hards such as Asa Carter, a Citizens' Council (and soon Klan) leader, since the proposal removed all constitutional requirements for the complete separation of the races in the schools.

Alabama's virtually all-white electorate approved the "freedom of choice" amendments to the constitution with 61 percent of the vote, and the Boutwell plan's key elements became the operating terms for the strategy to resist and slow school desegregation in the Heart of Dixie.

John Patterson won the race for governor in 1958 as a hard-edged, proven segregationist who, as Alabama attorney general, had attempted to put the NAACP out of business through a series of persistent, harassing lawsuits—an attack commenced after a strategy meeting that included Forney Johnston. As governor, Patterson assured white Alabamians that "I would not agree under any circumstances to operate an integrated school," but, with Boutwell serving as lieutenant governor, he followed the spirit and letter of the Boutwell-Johnston strategy. It proved remarkably successful. During Patterson's four years in the governor's mansion, the US Supreme Court upheld Alabama's pupil placement law on its face as constitutional and, as Patterson later boasted, no Alabama public school was ever desegregated while he was governor.³⁷Harris, "Alabama Reaction to the Brown Decision," 226–229, 241–249; Gilliam Sr., "The Second Folsom Administration," 316–321, 374–384, 423–436; Joseph M. Bagley, "School Desegregation, Law and Order, and Litigating Social Justice in Alabama, 1954–1973" (PhD diss., Georgia State University, 2013), 104–105; Shuttlesworth v. Birmingham Board of Education, 162 F. Supp. 372 (1958) affirmed by Shuttlesworth v. Board of Education, 358 U.S. 101 (1958); "Alabama: Governor Renews Vow to Resist Integration," Southern School News, February 1961, 14; Warren Trest, Nobody But the People: The Life and Times of Alabama's Youngest Governor (Montgomery, AL: NewSouth Books, 2008), 260, 303–306; William Warren Rogers et al., Alabama: A History of a Deep South State (Tuscaloosa: University of Alabama Press, 1994), 547–548.

Alabama's approach to controlling school desegregation changed dramatically in 1963 after George Wallace won the race for governor by making good on his promise—uttered after losing to Patterson in 1958—that "no other son-of-a-bitch will ever out-nigger me again."³⁸Carter, The Politics of Rage, 96–109. Wallace defeated Folsom, Boutwell, and "Bull" Connor, among others. In his inaugural speech written by Asa Carter, Wallace proclaimed words that have resounded across the decades:

Today I have stood, where once Jefferson Davis stood. . . . Let us . . . send our answer to the tyranny that clanks its chains upon the South. . . . I draw the line in the dust and toss the gauntlet before the feet of tyranny . . . and I say . . . segregation now . . . segregation tomorrow . . . segregation forever.³⁹George C. Wallace, "The Inaugural Address of Governor George C. Wallace," January 14, 1963, Alabama Textual Materials Collections, Alabama Department of Archives and History, transcript, http://digital.archives.alabama.gov/cdm/ref/collection/voices/id/2952.

Governor Wallace kicked off an orchestrated, theatrical performance of massive resistance a few months later when he stood in the schoolhouse door to decry federal encroachment on state sovereignty and to protest the admission of two Black students to the University of Alabama, which had a total enrollment of almost ten thousand students. Afterwards, Wallace led the state government in replaying strategies used earlier in Mississippi and Louisiana, including the formation of state spy commissions to monitor and intimidate civil right activists. His administration coordinated with the Klan and the Citizens' Council, and Wallace's frequent public pronouncements left little doubt that Alabama's school program had nothing to do with the Boutwell Committee's earlier stated purposes of advancing "each pupil's ability to learn" and everything to do with preserving absolute segregation.

Buoyed by national news coverage and by the enthusiastic support of white Alabamians that came as a result of Jim Crow grandstanding, Wallace had no intention of permitting any Alabama official to accept or implement token integration in the schools without an opportunity for him to publicly display his fight for complete segregation. The governor called out state troopers to surround school buildings in several Alabama towns—even when local white school boards had decided to permit a small number of Black children to cross the color line.

In response, civil rights attorneys returned to federal court with new evidence from Wallace's statements and actions that the school laws and their enforcement were intended to block Brown, and the courts began striking down the state's education laws—including its private school voucher law—and ordering school desegregation. As his lawyers lost in the federal courts, Wallace kept racial politics center stage, creating an environment for violence and capturing the adulation of the white die-hards. He also attracted the nation's attention by expanding and amplifying the provocative rhetoric of total, massive federal resistance. Wallace became in the political imaginary one of the nation's enduring southern segregationist icons.⁴⁰Carter, The Politics of Rage, 133–293; Stephan Lesher, George Wallace: American Populist (Boston, MA: Addison Wesley, 1994), 244–253; Lee v. Macon County Board of Education, 267 F. Supp. 458 (1967); Allen Tullos, Alabama Getaway: The Political Imaginary and the Heart of Dixie (Athens: University of Georgia Press, 2011), 233–241.

The Other Southern States: "Freedom from Compulsory Association" by Any or Many Means

Six other states—Mississippi, Louisiana, Virginia, North Carolina, South Carolina, and Georgia—also created strategy groups to block school desegregation. Each group had its own distinct design and role within the dynamics of how each state built massive resistance to Brown, but most shared similar characteristics and tactics. All adopted vouchers for private schools.

In Mississippi, white voters approved state constitutional changes recommended by Governor Hugh White's advisory group that authorized state funding for children to attend their parents' choice of a private school and for transferring public school properties to private schools. Afterwards, the strategy committee did little more since Mississippi's white leaders employed other groups and strategies as their first line of defense. The legislature approved small funding increases forBlack public schools in an attempt to convince Black citizens that the state would move closer to "separate but equal" facilities.

Mississippi's primary strategies to block school desegregation involved private and public agencies that undertook economic and social intimidation, behind-the-scenes spying, physical threats, and violence. The Mississippi Sovereignty Commission kept tabs on "agitators" in conjunction with the Citizens' Council, the Klan, and other vigilante groups.⁴¹"Mississippi," Southern School News, September 3, 1954; Charles C. Bolton, The Hardest Deal of All: The Battle Over School Integration in Mississippi (Jackson: University Press of Mississippi, 2005), 65–68, 75–88; McMillen, The Citizens' Council, 15–32, 360–361; John Dittmer, Local People: The Struggle for Civil Rights in Mississippi (Urbana: University of Illinois Press, 1994), 45–72; Charles M. Payne, I've Got the Light of Freedom: The Organizing Tradition and the Mississippi Freedom Struggle (Berkeley: University of California Press, 1995), 34–37.

Other states used legal and extra-legal tactics to keep schools segregated, but, as one author wrote, "Mississippi verged on totalitarianism."⁴²Michael J. Klarman, "Why Massive Resistance?" in Massive Resistance: Southern Opposition to the Second Reconstruction, ed. Clive Webb (New York: Oxford University Press, 2005), 27. "This is a fight for white supremacy," declared the editor of the Jackson Daily News, returning to public language often abandoned by segregationists elsewhere. "[T]here will be no room for neutrals or non-combatants." Local Black leaders such as Leake County sisters Winson and Dovie Hudson faced combatants as they continued to challenge school segregation, despite economic reprisals, physical threats, and more than one bombing of their own homes. "I'm going to stay here and pay the cost, no matter what it is," Dovie Hudson assured Mississippi NAACP field secretary Medgar Evers, who soon afterwards was murdered in his own driveway in Jackson. Anyone connected to school desegregation or civil rights work in Mississippi ran a real risk of being fired from work, thrown out of their house, beaten, bombed, or shot at. Several were killed.⁴³Dennis J. Mitchell, Mississippi Liberal: A Biography of Frank E. Smith (Jackson: University Press of Mississippi, 2001), 130; Constance Curry, "A Right to Be There," Southern Changes 14, no. 1 (1992): 18–25, http://southernchanges.digitalscholarship.emory.edu/sc14-3_1204/sc14-3_005/; Winson Hudson and Connie Curry, Mississippi Harmony: Memoirs of a Freedom Fighter (New York: Palgrave MacMillan, 2002), 47–73; Marin Noel and Roderick Wright, "Mrs. Murtis Powell: On the Front Lines of Battle," in Minds Stayed on Freedom: The Civil Rights Struggle in the Rural South, an Oral History, ed. Youth of the Rural Organizing and Cultural Center (Boulder, CO: Westview Press, 1991), 110–115.

As a result, school desegregation moved very slowly in Mississippi. In 1969, fifteen years after Brown, the US Supreme Court found that Mississippi had made hardly any strides in undoing "segregated conditions" and ordered every school district in the state "to terminate dual school systems at once." Aided by Citizens' Council chapters, segregation academies sprung up across the state, and Mississippi's public schools desegregated only when and where civil rights lawyers won their day in federal courts.⁴⁴Survey of School Desegregation in the Southern and Border States, 1965–1966 (Washington, DC: United States Commission on Civil Rights, 1966), 33–42, https://www2.law.umaryland.edu/marshall/usccr/documents/cr12sch611.pdf; Alexander v. Holmes County Board of Education, 396 US 19 (1969); McMillen, The Citizens' Council, 302; Bolton, The Hardest Deal of All, 169–186.

The strategy group in Louisiana was headed by long-time state senator William M. Rainach, who also spearheaded the creation of Louisiana's Citizens' Councils.⁴⁵Jim Carl, Freedom of Choice: Vouchers in American Education (Santa Barbara, CA: Praeger, 2011), 26–28; "Louisiana," Southern School News, September 3, 1954, 13; Charles A. Reynard, "Legislation Affecting Segregation," Louisiana Law Review 17 (1956–57): 104–114. For a brief time, Rainach later became head of the Louisiana Sovereignty Commission, the primary state apparatus to spy on and harass civil rights activists and supporters. Carl, Freedom of Choice, 37, 46. The Rainach Committee became a coordinating agency as much for action as for legislative strategy. It helped to mount legal roadblocks to school desegregation, orchestrated legal attacks on Black activist organizations, and spurred efforts to remove or block Black voting in close collaboration with the Louisiana Sovereignty Commission. Like many other state agencies across the South, the committee condemned integration as the work of communists.

Following the Rainach Committee's recommendations, the legislature in 1958 authorized public schools to become private education cooperatives and a voucher program for white students to attend non-religious private schools.⁴⁶Carl, Freedom of Choice, 29–32; "Supreme Court Approves Invalidation of Louisiana's Pupil Placement Law," Southern School News, July 1957, 7. In New Orleans, the Catholic schools were uniquely more willing to integrate sooner than the public schools. As early as 1956, the Archbishop publicly declared that segregation was morally wrong. Local NAACP leader Daniel Boyd suggested to national legal director Thurgood Marshall that "the Luzanna legislature will keep ignoring any and all court decisions until a number of them are jailed."⁴⁷Adam Fairclough, Race and Democracy: The Civil Rights Struggle in Louisiana, 1915–1972 (Athens: University of Georgia Press, 1995), 247. In 1960, refusing further delays, federal district judge Skelly Wright ordered the desegregation of New Orleans's 9th Ward elementary school. Amid death threats, a six-year-old Black girl, Ruby Bridges, entered the previously all-white school with an escort of federal marshals amid a mob of angry, screaming white men and women. Senator Rainach abandoned his role as strategist in order to appear publicly more attractive as he campaigned to become governor. "Let's use the 'scorched earth policy,'" he proclaimed at a Citizens' Council rally.

Jimmie Davis became the newly elected governor and quickly disbanded Rainach's committee. Following other southern governors, Davis pushed the legislature to revoke all overt segregation laws and pass race-neutral programs for advancing freedom of choice for parents. A new voucher law also made no mention of race; it allowed any Louisiana child eligible to receive a state-funded voucher to attend a non-profit, non-sectarian private school.⁴⁸Carl, Freedom of Choice, 47–48; "State Again Fails To Get Control of Orleans Schools," Southern School News, February 1961, 6.

The race-neutral program began in 1962, operated for four years, and distributed more than fifty-five thousand vouchers. The vast majority of state funds went to the families of white students, although existing records show that about 7 percent of all vouchers supported students from Black families. All voucher-supported private schools were segregated by race—either all-white or all-Black.

After the voucher law was challenged in federal court, four all-Black private schools joined the state government in defending the program. The legislature renamed its voucher commission the "Louisiana Education Commission for Needy Children" with the professed purpose of addressing the problems of juvenile delinquency and school dropouts as well as the special needs of "retarded children" as it declared "that the parent, not the State of Louisiana, shall be the determining force which shall decide on the type of education ultimately received by the child." A federal court panel, however, found the "necessary effect of the Louisiana tuition grants [was] to establish . . . a system of segregated schools for white children, in violation of the equal protection clause."⁴⁹Carl, Freedom of Choice, 48–53; "Louisiana Legislators Go Home; Teachers Miss Pay," Southern School News, January 1961, 1, 8–11; Poindexter, 275 F. Supp. 833.

Thomas J. Pearsall, a North Carolina attorney, businessman, and former Speaker of the House, chaired the North Carolina strategy committee responsible for finding a response to Brown. The Pearsall Committee originally had three African Americans among twenty members. Its first report proposed only a pupil assignment act mirroring the basics of Alabama's law. It empowered local school officials to assign students according to factors such as community relations, student ability, school capacity, and geographic location—without any mention of race.⁵⁰John E. Batchelor, Race and Education in North Carolina: From Segregation to Desegregation (Baton Rouge: Louisiana State University Press, 2015), 32–42; Carlson, "With All Deliberate Speed," 55–59.

Hardline segregationists such as Jesse Helms, later US senator, dismissed the report, arguing that the state had to choose between "integrated public schools and free choice private schools." North Carolina attorney general Beverly Lake, also later a US senator, made the same argument urging the closure of public schools and the provision of vouchers for white children to attend totally segregated private schools.⁵¹Batchelor, Race and Education, 36–40.

In a second report in April 1956, the now all-white Pearsall Committee declared that it would "preserve a segregated system" like the one in the past and suggested ways to move from a "segregated-by-law system" to a segregated-by-choice system. The report reminded local school officials that, due to the US Supreme Court, there can be "no racial segregation by law," but nothing prohibited them from making "assignment according to natural racial preference and the administrative determination of what is best for the child." It recommended vouchers wherever "a child cannot be conveniently assigned to a non-mixed public school," regardless of the child's race, so long as the child's parent did not want a desegregated school. The committee insisted that while the Supreme Court had struck down laws "compelling the separation of the races in public schools," no court could compel "the mixing of the races."

Over the next decade, most North Carolina schools slowly admitted a token number of Black students in previously all-white schools, although many small, rural school districts in eastern North Carolina resisted until a court order required the admission of a token number of Black children in previously all-white schools. The Pearsall Plan began to crumble when North Carolina civil rights attorney Julius Chambers persuaded a federal three-judge panel in 1966 that "the payment of tuition grants is clearly state action, and unquestionably impermissible." A year earlier, Chambers's home had been bombed twice and his car firebombed once as a result of his willingness to openly challenge school segregation. Following his own advice to others—"Keep fighting"—Chambers convinced the federal court that the "state may not circumvent the Constitution by giving financial encouragement to individuals to follow a course which defeats desegregation."⁵²Batchelor, Race and Education, 76–110; Carlson, "With All Deliberate Speed," 72; Douglas Martin, "Julius Chambers, a Fighter for Civil Rights, Dies at 76," New York Times, August 6, 2013, https://www.nytimes.com/2013/08/07/us/julius-chambers-a-fighter-for-civil-rights-dies-at-76.html; "Hawkins v. North Carolina State Board of Education," Race Relations Law Reporter 11 (1966): 745, 747.

In Virginia, there were two strategy commissions. The first was chaired by businessman and state senator Garland Gray. In November 1955, it recommended the three basic methods of resistance first outlined by Alabama's Boutwell Committee: 1) investing local school officials with broad discretion to assign public school students on the basis of apparently non-racial factors such as availability of facilities and transportation, health, and aptitude of the child; 2) authorizing vouchers and other payments to private schools; and 3) permitting parents, without regard to race, to receive state-funded vouchers to attend private schools if their children were assigned to desegregated schools.

The Gray Commission's proposals implied that it would preserve only virtual segregation, not total segregation—an approach that many Virginia politicians defiantly opposed.⁵³Joseph J. Thorndike, "'The Sometimes Sordid Level of Race and Segregation': James J. Kilpatrick and the Virginia Campaign against Brown," in The Moderates' Dilemma: Massive Resistance to School Desegregation in Virginia, eds. Matthew D. Lassiter and Andrew B. Lewis (Charlottesville: University Press of Virginia, 1998), 70. Bowing to the hardline segregationists, state leaders rejected the Gray Commission's recommendation in favor of massive resistance. The legislature declared desegregation a "clear and present danger" that required closing public schools when necessary. The new law also discarded the Gray Commission's recommendation to give local school boards the authority to make pupil assignments on terms without expressly mentioning race. The state board of education was specifically authorized to prevent assigning white and Black students in the same school.⁵⁴Carl W. Tobias, "Public School Desegregation in Virginia During the Post-Brown Decade," William & Mary Law Review 37 (1996): 1269–1271.

Lindsay Almond became Virginia's new governor in 1957 after a campaign in which he supported the hardline approach. "I'd rather lose my right arm," he proclaimed, "than to see one nigra child enter the white schools of Virginia." But, once in office, Governor Almond was persuaded by business leaders and others to establish a second commission, named after its chair, state senator Mosby Perrow, a prosperous lawyer and farmer. The Perrow Commission's report echoed the Gray Commission's "twin principles of local determination and freedom of choice." It also recommended adopting the strategies of the earlier Gray Commission and Alabama's Boutwell Committee: abandon any mention of race; allow local, flexible pupil placement on factors without explicit mention of race; create vouchers or so-called "scholarships."

The Perrow report did not specify exact terms for proposed legislation in each area since its members were not certain at that moment if a "three school plan," first envisioned in Alabama five years earlier, would be successfully defended in the courts. It did recommend a new uniform testing program—but testing only for the public schools, not for the private schools supported by vouchers.⁵⁵Commission on Public Education, "Report of the Commission to the Governor of Virginia" (Richmond, 1959). This report is also referred to as the Perrow Report in reference to the chairman of the Commission, Mosby G. Perrow Jr.

Not all local jurisdictions followed the Perrow report. Some, such as Prince Edward County, maintained absolute segregation by closing the county's public schools and providing county tax credit scholarships to supplement state vouchers for white children to attend private schools. In 1964, however, Justice Hugo Black issued the Supreme Court opinion outlawing the die-hard segregationists' schemes. The Court ordered the public schools reopened on a desegregated basis and held that both tax credit and direct vouchers were unconstitutional.⁵⁶"Report of the Commission to the Governor of Virginia," 21–25; "Virginia: State Commission Draws Up New Legislative Proposals," Southern School News, April 1959, 16; George M. Cochran, "Virginia Facing Reality: The 1959 Perrow Commission," Augusta Historical Bulletin 42 (2006), http://mlkcommission.dls.virginia.gov/va_school_closings/pdfs/Cochrane%20Augusta%20Historical%20Bulletin.pdf; Griffin v. School Board of Prince Edward County, 377 U.S. 218 (1964) at 233.

Senator Marion Gressette, chair of the South Carolina Segregation School Committee—first created by Governor Jimmy Byrnes and the state legislature in 1951—led resistance to court-ordered desegregation for more than twenty years. The Gressette Committee believed the best defense against the federal courts was to move "with caution and with a minimum of publicity" and to report publicly as little as possible.⁵⁷John W. White, "Managed Compliance: White Resistance and Desegregation in South Carolina, 1950–1970" (PhD diss., University of Florida, 2006), 152.

Before Brown, Governor Byrnes initiated an aggressive statewide building program of segregated schools for Black children to bolster the legal argument that "separate but equal" was equal and constitutional, but the passage of a state constitutional amendment two years before Brown also permitted South Carolina to close its public schools—a clear message to the Black population to leave segregation as it had been.

After Brown, Byrnes suspended the Black school construction program, but restarted it once persuaded by the Gressette Committee that the program remained a useful incentive for Black parents to keep their children in segregated, all-Black schools instead of seeking admission to all-white public schools.⁵⁸Stephen Harold Lowe, "'The Magnificent Fight': Civil Rights Litigation in South Carolina Federal Courts, 1940–1970" (PhD diss., University of Michigan, 1999), 193–201; White, "Managed Compliance," 43–61; "South Carolina," Southern School News, September 3, 1954, 12.

Following the Gressette Committee's recommendations, the legislature also passed a pupil assignment bill giving local school boards the authority to make all decisions about attendance based on a family's geographic location and a child's scholastic aptitude (e.g., "each child shall be considered individually") without mention of race. Gressette understood that this color-blind standard in pupil placement could be a barrier to widespread school desegregation because of residential segregation. As the staff director of the Gressette Committee privately observed, local school boards could also decide, even where housing segregation did not preserve separate schools, that "there are few Negroes educationally qualified to go to schools with similarly aged white children."⁵⁹White, "Managed Compliance," 151–153. "Academic standards" without any reference to race or skin color also were used to assure that African American teachers did not receive equal pay with white teachers, despite a federal court order to equalize teachers' salaries. Also see R. Scott Baker, "Testing Equality: The National Teacher Examination and the NAACP's Legal Campaign to Equalize Teachers' Salaries in the South 1936–63," History of Education Quarterly 35, no. 1 (1995): 49–64 and R. Scott Baker, "The Paradoxes of Desegregation: Race, Class, and Education, 1935–1975," American Journal of Education 109, no. 3 (May 2001): 320–343. The Gressette Committee also attempted to convince the NAACP lawyers that geography, not the state government, was responsible for school segregation. See Maxie Myron Cox Jr., "1963—the Year of Decision: Desegregation in South Carolina" (PhD diss., University of South Carolina, 1996), 166.

The president of the South Carolina Farm Bureau echoed the analysis made earlier by Alabama corporate attorney Forney Johnston when he observed: "If Negroes are to have the right of free choice in attending separate or mixed schools if they wish, then even the Supreme Court cannot deny to white people that same free choice of sending their children to separate or mixed schools."⁶⁰"South Carolina," Southern School News, January 6, 1955, 14.

The state's acceptance of token desegregation in order to keep schools virtually segregated did not satisfy South Carolina's hardliners, but the Gressette Committee's approach prevailed even as escalating racial violence and state-sponsored intimidation against Black and white activists, especially the NAACP, continued.⁶¹White, "Managed Compliance," 166–265. Over time, and without mentioning race, the South Carolina legislature repealed compulsory attendance in public schools, pushed decision-making about school enrollment and school closing to local districts, permitted white students living in racially diverse areas to transfer to a nearby virtually segregated school district, and established tax exemptions for children attending private schools.⁶²"South Carolina," Southern School News, February 3, 1955, 3; "South Carolina," Southern School News, March 3, 1955, 14; "South Carolina," Southern School News, July 1955, 4. Even bills proposing confrontational tactics, such as closing public schools, often did not mention race. For example, a bill in 1955 proposed to close any public school where a student was admitted by court order. See "South Carolina," Southern School News, May 4, 1955, 6. In 1960, on advice of the Gressette Committee, the legislature removed the phrase "for racially segregated schools only" from its appropriations bill. See Cox Jr., "1963—the Year of Decision," 15.

On January 28, 1963, following a federal court order, Harvey Gantt became the first African American since Reconstruction to enroll in a state university in South Carolina when he was admitted to Clemson without incident. Gantt had attended college in Iowa but decided: "I was homesick for the South, I was a child of the South, and that's where I wanted to go."⁶³"Clemson College Admits Negro in State's First Desegregation," Southern School News, February 1963, 1; Interview with Harvey B. Gantt by William R. Ferris, September 28, 2015, C-0367, Southern Oral History Program Collection #4007, Southern Historical Collection, Wilson Library, University of North Carolina at Chapel Hill, https://dc.lib.unc.edu/cdm/compoundobject/collection/sohp/id/27218/rec/2.

The next day, South Carolina's new governor, Donald Russell, announced that the state would provide parents with vouchers or "scholarship grants" to send their children to non-sectarian private schools. Russell did not mention race. He argued that vouchers would require public schools to compete with private ones for students and "this competition would stimulate progress in public education." The Gressette Committee reported that vouchers would "offer to all our citizens the broadest possible freedom of choice."⁶⁴"Clemson College Admits Negro on Order of Appellate Court," Southern School News, February 1963, 8–9.

In May 1968, after hearing arguments on the voucher program from Matthew Perry and Ernest Finney Jr. (two African American attorneys who later became judges), a panel of three federal judges declared the "purpose, motive and effect of the Act is to unconstitutionally circumvent the requirement . . . that the State of South Carolina not discriminate on the basis of race or color in its public educational system."⁶⁵White, "Managed Compliance," 390–391; Brown v. South Carolina State Board of Education, 296 F. Supp. 199 (1968).

In Georgia in 1950, more than two hundred African American students and parents filed a lawsuit claiming unequal education on account of race and seeking admission to all-white schools in Atlanta. Governor Eugene Talmadge warned, "Our rifles are ready" to resist any court desegregation order. Roy Harris, an influential political operative and head of the Citizens' Council, called for the closure of the state's public schools and the creation of a tax-funded private school system.⁶⁶O'Brien, "Private School Vouchers and the Reality of Racial Politics," 79–92.

Over the next few years, the General Assembly passed laws cutting off funding to any public school that a federal court ordered to desegregate. It also passed laws increasing school funding for segregated Black schools and, after Brown was argued in 1953, additional laws enabled white voters to approve a constitutional amendment to permit vouchers for private schooling. Georgia's attorney general, Eugene Cook, assured white Georgians that any plan to "subsidize the child rather than the school" was lawful.⁶⁷O'Brien, 105–108; "Georgia Attorney General Says Supreme Court Will Mix Schools," Chicago Defender, October 31, 1953, 5; Acts and Resolutions of the General Assembly of the State of Georgia, 1956, vol. 1, 10–11, 13–15. These laws followed the passage of a 1955 law mandating that in Georgia "no State or local funds shall be in any manner appropriated or expended for public school purposes except for schools in which the white and colored races are separately educated." See Acts and Resolutions of the General Assembly of the State of Georgia, 1955, vol. 1, 174–176.

In 1958, Ernest Vandiver became governor after promising white voters: "Neither my child nor your child will ever attend an integrated school during my administration. No, not one!" Afterwards, the legislature enacted tuition tax credits for families whose children attended private schools, barred using local property taxes to finance desegregated public schools, and empowered the governor to close either school districts or individual public schools as needed.⁶⁸Acts and Resolutions of the General Assembly of the State of Georgia, 1959, vol. 1, 7, 15, 157; "Georgia: Teachers Endorse Separate-But-Equal; Decision Awaited In State Test Case," Southern School News, April 1959, 7. During this period, Atlanta's NAACP attorney Donald Hollowell, who advanced many of the court challenges to Georgia's school segregation, stated that he would not predict the outcome of any court case, but added that he fully expected the color line to fall.⁶⁹"Motion to Dismiss Is Overruled," Atlanta Daily World, December 16, 1958.

Facing a federal court order for the token desegregation of four Atlanta public schools, Governor Vandiver considered accepting virtual segregation, earning the outrage of political kingmaker Roy Harris, who declared: "If one little Negro is entitled to go to Henry Grady High School in Atlanta, then all Negroes are entitled to go to some high school with whites."⁷⁰O'Brien, "Private School Vouchers and the Reality of Racial Politics," 174. Vandiver tried having it both ways: he recommended bills to continue absolute segregation while creating a Committee on the Schools, later called the Sibley Commission, to explore best options.

Atlanta businessman and corporate attorney John Sibley led the new commission in holding public hearings across the state. Afterwards the Commission recommended that public schools remain open and, in effect, that the state manage a slow process of token desegregation: "Those who insist upon total segregation must face the fact that it cannot be maintained in public schools by state law." The report's plan was designed "to effectuate voluntary association." Recommended strategies included freedom of parental choice, local decisions for pupil placements and pupil transfers, and tuition grants to private schools—the pillars of Alabama's earlier Boutwell plan.⁷¹O'Brien, 171–181; Acts and Resolutions of the General Assembly of the State of Georgia, 1960, vol. 1, 1187; Jeff Roche, Restructured Resistance: The Sibley Commission and the Politics of Desegregation in Georgia (Athens: University of Georgia Press, 1998), 163–172; "Here's Text of Majority Report by Sibley Committee," Atlanta Constitution, April 29, 1960; "Text of Minority Report," Atlanta Constitution, April 29, 1960; Paul Delaney, "Judge Hooper to Study Sibley Report Monday," Atlanta Daily World, May 8, 1960.

In January 1961, shortly after two thousand angry whites surrounded the dormitory of Charlayne Hunter, one of two Black students admitted to the University of Georgia in Athens,⁷²Matthew D. Lassiter, The Silent Majority: Suburban Politics in the Sunbelt South (Princeton, NJ: Princeton University Press, 2006), 87–89. Governor Vandiver announced he would follow the Sibley report. He proposed to repeal race-specific laws of massive resistance and promised every Georgia child "his God-given right to freedom of association" through a new amendment securing "the constitutional rights of school children to attend private schools of their choice in lieu of public schools" through public financing.⁷³O'Brien, "Private School Vouchers and the Reality of Racial Politics," 189–191, 199–201; "Gov. Ernest Vandiver Asks 4-Point Child Protection Defense Package," Atlanta Daily World, January 19, 1961; "U.S. Judge Rejects Contentions of Georgia Officials," Southern School News, February 1961, 8; Acts and Resolutions of the General Assembly of the State of Georgia, 1961, vol. 1, 35.

In August 1961, two Black students desegregated Atlanta's Grady High School without incident. Atlanta's peaceful acceptance of token integration at Grady and the city's other all-white high schools became, in the words of the New York Times, a "new and shining example of what can be accomplished" in the South. President John Kennedy said afterwards: "I strongly urge all communities which face this difficult transition to look closely at what Atlanta has done."⁷⁴Kruse, White Flight, 150–156. That one day in 1961 burnished the city's growing international reputation as the "City Too Busy to Hate," while, in fact, it set in motion a process of pupil assignments that preserved virtual segregation across the entire school system.⁷⁵Lassiter, The Silent Majority, 104–105.

In 1962, Georgia financed vouchers for more than fifteen hundred students in private schools. In addition, the legislature aided white teachers in leaving public for private schools by allowing them to remain in the state retirement system. None of the new laws specifically mentioned "race" or racial segregation. In the aftermath of its "shining example," the Atlanta school board routinely denied requests by scores of Black parents to transfer their children to all-white schools. Attorney Donald Hollowell assured the public "we will appeal," but courtroom challenges could not catch up with the school board's delaying tactics. By December 1963, Dr. Martin Luther King Jr. publicly condemned "something strange and appalling"—not a single Black child was attending Atlanta's all-white elementary schools and only 153 of more than 14,000 Black high school students attended classes with whites.⁷⁶Bruce Galphin, "40 Negro Students File Appeals for Transfers," Atlanta Constitution, June 14, 1961; Bruce Galphin, "38 Negroes, White Girl Lose Transfer Appeals," Atlanta Constitution, July 7, 1961; Tomoko Brown-Nagin, Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement (New York: Oxford University Press, 2011), 307.

With each passing year throughout the 1960s, legal strategies and tools of resistance to Brown became less important in Atlanta and other metropolitan areas as white flight to suburban counties increased—illuminating another highly effective option for preserving the "freedom of white people to choose not to go to school with negroes." Georgia's voucher program petered out after a couple of years—once it became obvious that the program would not survive review by the courts and after the discovery that many of the program's beneficiaries were already attending private schools.⁷⁷Kruse, White Flight, 9–17, 161–177, 234–235; John H. Britton, "Fear of Increase in Taxes Is Blamed for Bond Measure Defeat: Negro Votes Favored Most Bond Proposals," Atlanta Daily World, August 4, 1962; "$206,640 Granted Students to Attend Jim Crow Schools," Atlanta Daily World, October 17, 1962.

The Limits of Lawsuits: Toppling Voucher Programs but Not Segregated Schools

By 1965, most voucher programs, which had been enacted only in southern states, had been declared unconstitutional or were under serious attack, no matter whether the programs involved indirect expenditures such as tax credits or were shrouded in non-racial language. Each law financing private schools was soon invalidated by a federal court (or abandoned in the case of Georgia before it could be struck down) because the efforts were perceived to evade or disrupt public school desegregation and to "significantly encourage and involve the State in private discriminations."⁷⁸See these federal cases: Coffey v. State Educational Finance Commission, 296 F. Supp. 1389 (S.D. Miss. 1969); Griffin v. State Board of Education, 296 F. Supp. 1178 (E.D. Va. 1969); Poindexter v. Louisiana Financial Assistance Commission, 296 F. Supp. 686 (E.D. La. 1968); Brown v. South Carolina State Board of Education, 296 F. Supp. 199 (D.S.C. 1968), aff'd, 393 U.S. 222 (1968); Poindexter v. Louisiana Financial Assistance Commission, 275 F. Supp. 833 (E.D. La. 1968), aff'd, 389 U.S. 571 (1968); Lee v. Macon County Board of Education, 267 F. Supp. 458 (M.D. Ala. 1967); Hawkins v. North Carolina State Board of Education, 11 Race Relations Law Reporter 745 (W.D.N.C. 1966); Griffin v. State Board of Education, 239 F. Supp. 560 (E.D. Va. 1965); Lee v. Macon County Board of Education, 231 F. Supp. 743 (E.D. Ala. 1964); Pettaway v. County School Board, 230 F. Supp. 480 (E.D. Va. 1964), aff'd, 339 F. 2d 486 (2d Cir. 1964); Hall v. St. Helena Parish School Board, 231 F. Supp. 649 (E.D. La. 1961), aff'd, 368 U.S. 515 (1962); Aaron v. McKinley, 173 F. Supp. 944 (E.D. Ark. 1959), aff'd sub nom, Faubus v. Arron, 361 U.S. 197 (1959).

A vital component in states' strategies to preserve segregation, vouchers operated differently depending on state politics, federal court decisions, and the values and judgments of the strategy committees. Exchanging ideas and information, these committees functioned separately, shaped and reshaped by the dynamics of a state's political and business leadership and without a coordinated sectional effort.

In their final reports, most strategy committees adopted methods and means that evaded any exact definition of what preserving school segregation meant as an expression of racial subordination. Like Georgia Governor "No, Not One" Vandiver, states adapted to the reality that absolute or total segregation could not be preserved in the face of federal enforcement of Brown. Sooner or later, white leaders such as Tom P. Brady, the Mississippi politician credited with the idea of forming the Citizens' Council, were willing to accept virtual segregation. Others, including Alabama corporate attorney Forney Johnston, knew at the time of Brown that virtual segregation with its token exceptions could preserve white supremacy so long as conservative white leaders kept control of schools, politics, and the economy.⁷⁹Tom P. Brady, "Segregation and the South," October 4, 1957, Citizens' Council Collection, Archives and Special Collections, University of Mississippi Libraries; McMillen, The Citizens' Council, 265–266; Thomas P. Brady, interview by Orley B. Caudill, March 4, 1972, Center for Oral History and Cultural Heritage, University of Southern Mississippi Libraries. In 1962, Arnold Rose, who assisted Gunnar Myrdal, wrote a postscript in the 1962 edition of An American Dilemma (New York: McGraw Hill, xxxv–xxxvii) where he discussed how the initial monolithic response to Brown by southern whites changed and adapted to fit the times.

Starting in the mid-1960s, civil rights lawyers were able to use new national anti-discrimination laws to challenge a wider range of white supremacist laws and practices. The civil rights movement moved away from the courtroom as the primary venue for creating change. Before Brown, the NAACP and other civil rights lawyers led the way by using the words of the Constitution to take down the wall of segregation, beginning in the schoolhouses, one student at a time. Privately, NAACP chief attorney Thurgood Marshall laid out the legal approach: "Those white crackers are going to get tired of having Negro lawyers beating 'em every day in court."⁸⁰Harry S. Ashmore, Hearts and Minds: The Anatomy of Racism from Roosevelt to Reagan (New York: McGraw Hill, 1982), 214. Publicly, it was the hallmark of attorneys such as Donald Hollowell, known in Georgia as "Mr. Civil Rights," to remain reserved and dignified—what Hollowell later remembered with a wink as "courtly"—using only federal filings to argue with white society about segregation, even as white state officials brazenly belittled, condemned, and harassed them.⁸¹Brown-Nagin, Courage to Dissent, 336; Donald Hollowell, conversation with the author, May 1978. This strategy confronted white stereotypes and rendered Brown as the law of the land, but alone it proved too slow and inadequate to halt relentless white efforts to stop change or to keep pace with growing Black demands.

The emergence of the student movement and direct action as strategies for challenging private and public segregation was in part a reaction to the slow, back-and-forth pace of litigation. In some places, even "the twin avenues of civil rights protest—legal and direct action—did not have a catalytic effect" in advancing desegregation. By the middle of the 1960s, school desegregation was no longer the civil rights spearhead. As Dr. Martin Luther King Jr. observed about his own town: "In the absence of legal, political, economic, and moral pressure, not even a city as enlightened as Atlanta is likely to grant the Negro his constitutional rights."⁸²Brown-Nagin, 307–309.

Most of the South's white leaders were discovering that a more fluid definition of segregation was their most effective defense. Increasingly, they realized the efficacy of moving away from "No, not one" or a stand in the schoolhouse door toward strategies that could do almost as much as absolute segregation. As early as 1956, the founder of the Citizens' Council had suggested that members should redefine their way of life as far more than complete separation of the races: "Segregation represents the freedom to choose one's associates, Americanism, state sovereignty, and the survival of the white race."⁸³Robert B. Patterson, 2^nd Annual Report (Greenwood, MS: Association of Citizens' Councils of Mississippi, August 1956), 2.

As for the public schools, it did not matter that all the tools for preserving segregation could not withstand the scrutiny of the federal courts or that the civil rights leaders were employing new strategies. A decade after Brown, the architects and advocates of private school vouchers had discovered the means to permit only a symbolic semblance of desegregation. If only by trial and error in some states, "southern anti-integration efforts during the post-Brown era were more often characterized by creativity and flexibility than by obstinacy and intransigence."⁸⁴Driver, "Supremacies and the Southern Manifesto," 1093. While discussing the ideas and strategies voiced by southern federal officials, Driver illuminates the components of segregationists' plans of resistance that "play a role today in maintaining the paucity of meaningful integration in the nation's public schools." See pages 1094, 1097–1099.

By the end of the 1965 school year, Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Virginia—the seven states that had adopted voucher programs—maintained the South's lowest rates of school desegregation. That year, fewer than 2 percent of all Black students in each of the seven states were attending public schools with white students.⁸⁵Statistical Summary: School Segregation–Desegregation in the Southern and Border States (Nashville, TN: Southern Education Reporting Service, 1966–67), 43.

Milton Friedman and "Government Schools"

In 1955, almost a year after Albert Boutwell released the Alabama legislative report proposing private school vouchers as a key element in his committee's plan of "freedom of choice," libertarian economist Milton Friedman of the University of Chicago published "The Role of Government in Education."⁸⁶Milton Friedman, "The Role of Government in Education," in Economics and the Public Interest, ed. Robert A. Solo (New Brunswick, NJ: Rutgers University Press, 1955), 123–144. Friedman was awarded the Nobel Prize for economics in 1976 for his work on monetary policy. It introduced academicians to an economic rationale for school vouchers. Friedman believed parents would get the best education for their children when private schools competed for enrollment. Advancing a theory he and others would repeat over decades, Friedman argued that "competitive private enterprise is likely to be far more efficient in meeting consumer demands than nationalized enterprises" in education.⁸⁷Friedman, "The Role of Government in Education," 129.

Friedman's advocacy for a system of government-financed vouchers to replace "government schools," as he called them, was grounded in his free market beliefs. However, in a page-long footnote he acknowledged that essentially the same proposal "has recently been suggested in several states as a means of evading the Supreme Court ruling against segregation"—a development Friedman said came to his attention after he had largely completed his essay. The economist assured readers that he deplored segregation and racial prejudice, but he also opposed forced "non-segregation" no less than forced segregation. (Friedman also opposed a federal fair employment commission that would prohibit racial discrimination in private employment and, later, the 1964 Civil Rights Act's prohibition against racial discrimination by private businesses.⁸⁸Milton Friedman, Capitalism and Freedom (Chicago: University of Chicago Press, 2002), 111–115; "Friedman Cautions Against Rights Bill," Harvard Crimson, May 5, 1964.)

Friedman acknowledged that vouchers would allow a system where there could be "exclusively white schools, exclusively colored schools, and mixed schools. Parents can choose which to send their children to." He was at best agnostic about ending segregation in schools. He noted that the government could decide to make public funds available to private schools only if they were segregated schools, as some southern states proposed in 1955, or only if they were non-segregated schools. His proposal for vouchers was "not therefore inconsistent with either forced segregation or forced nonsegregation."⁸⁹Friedman, "The Role of Government in Education," 131, fn. 2.

Had he cared enough to inquire about southern segregation, Friedman would have discovered that many white supremacists had already adopted the same outlook and conceptual framework to make vouchers instrumental in maintaining segregated schools. A year earlier, in response to Brown, Mississippi politician Tom P. Brady gave a speech (later expanded into a book) that became an informal manifesto for the Citizens' Council and other southern segregationists. In Black Monday, Brady wrote:

The public school is a socialized or politically monopolized institution, and suffers from weakness inherent in all monopolies. The only thing that prevents the public school from decaying completely is the fact that it is not a complete monopoly. Local control of the school gives the taxpayer and parent some say in its management. . . . Nothing will do more to better education in America than the breaking of the public school trust. . . .

This is not a proposal to abolish public schools. It is a proposal to put them into competition with free enterprise schools, so they can prove their worth. And this can be done by the remission to parents of the taxes they are compelled to pay to support politically-controlled schools, in an amount comparable to what they pay for private schooling. The method of effecting this remission—whether by deduction from income taxes or allowances from local levies—is a technical matter; if the principle established that a parent has the right to buy the educational service he deems best for his child, the fiscal problem of tax remission could be solved.⁹⁰Tom P. Brady, Black Monday (Winona, MS: Association of Citizens' Councils, 1954), 56; Brady, interview.

Similarly, the Alabama "freedom of choice" plan—the first segregation strategy report, published a year before Friedman's essay—was built on the foundational philosophy that when "members of a race are thereby deprived of access to a school attended by the other race, the result is attributable not to compulsion by the state but to the inconsistent choices of free citizens." As Alabama's Forney Johnston explained, under his segregation plan "the state is obliged to give effect to the desire of parents without compulsion against either side" or, as Milton Friedman wrote, without "either forced segregation or forced nonsegregation."

Johnston foresaw that his Alabama plan would lead to the same place Friedman envisioned—moving from a dual school system to a three-school system with "exclusively white schools, exclusively colored schools, and mixed schools." And Johnston was confident that, so long as white parents had access to vouchers for private schools and segregationist leaders established and implemented pupil placement, his plan would preserve segregation in some form for most white students in his state.⁹¹Johnston, "Schools, the Supreme Court, and the States' Power," 3–10.

Friedman's analysis not only echoed segregationist plans but helped to revive a new non-racial defense of segregation. Within four years of the publication of Friedman's essay, a large number of southern segregationists were advancing the theory of individual freedom as the leading rationale for vouchers and school choice. Perhaps the most prolific, active disciple of this libertarian approach was Virginia newspaperman Leon Dure, who converted Friedman's advocacies into a constitutional argument for freedom of association.

As tactics of massive resistance began to fail in Virginia, Dure urged state leaders in 1958 to adopt school vouchers and his principles of freedom of choice or freedom of association as the most effective means for limiting desegregation. The plan offered every child "of whatever color, of whatever means" a voucher (called a "scholarship"). Echoing Johnston and Friedman, Dure argued that "the South accepts the right of all people to associate, but it insists on the right of all people not to associate." On these terms, Dure wrote, "the southern white case is not compulsory segregation; it also is individual liberty," which he believed was protected in federal and state constitutions' guarantees of the right to assemble. Oliver Hill, the Virginia NAACP's leading attorney who had brought one of the original cases involved in Brown, told Dure that his proposal would do little more than mask racial discrimination.⁹²James H. Hershman and the Dictionary of Virginia Biography, "Leon S. Dure (1907–1993)," Encyclopedia Virginia, last modified October 6, 2016, https://www.encyclopediavirginia.org/Dure_Leon_S_1907-1993; Leon Dure, "Virginia's New Freedom," The Georgia Review 18, no. 1 (Spring 1964): 4; Leon Dure, "The New Southern Response: Anatomy of Two New Freedoms," The Georgia Review 15, no. 4 (Winter 1961): 401–409, 412; James H. Hershman Jr., "Massive Resistance Meets Its Match: The Emergence of a Pro-Public School Majority," in The Moderates' Dilemma: Massive Resistance to School Desegregation in Virginia, eds. Matthew D. Lassiter and Andrew B. Lewis (Charlottesville: University Press of Virginia, 1998), 128. Dure seemed especially delighted that the US Supreme Court had recognized the "right of association" in a case where the Court prevented the Alabama attorney general's assault against the NAACP. See NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958). Dure was also influenced by the writings of Virgil Blum, a political scientist at Marquette University who advocated for school vouchers for private schools, including parochial schools, on a philosophy of free-markets and freedom of religion. See Carl, Freedom of Choice, 91–92.

When Virginia's Perrow Commission issued its report, reversing the openly defiant tone and recommendations of earlier governors and legislatures, it embraced tactics of local control and freedom of association. As one politician wrote to Dure, there was now complete "agreement that the Freedom of Choice plan is . . . not based on segregation or integration but that any child in Virginia may obtain a tuition grant"—an equal opportunity to all children to freely disassociate.⁹³Hershman Jr., "Massive Resistance Meets Its Match," 127–130; C.F. Hicks to Leon Dure, June 22, 1961, Leon Dure Papers, University of Virginia, Charlottesville, Virginia.

Dure also helped to convince white leaders in Georgia to reverse their approach for preserving segregated schools. Dure's frequent correspondence with John Sibley and others helped Governor Vandiver's administration understand how embracing "freedom of association" held the best promise for justifying and preserving virtually segregated schools. The exact language of the new state constitutional amendment approved by the white voters of Georgia stated: "Freedom from compulsory association at all levels of public education shall be preserved inviolate." During the same period, Louisiana's white leaders also attempted to rescue their strategies to resist desegregation through a similar approach.⁹⁴Hershman Jr., "Massive Resistance Meets Its Match," 127–128, including fn. 52; Carl, Freedom of Choice, 91–92. The Georgia amendment became Section VIII of Article VIII of the Georgia Constitution and remained in the constitution until removed twenty years later as a "vestige of the past," although many in the early 1980s had no notion of what the provision represented. See Committee to Revise Article VIII, "Transcripts of Meetings," 22 May 1980, State of Georgia Select Committee on Constitutional Revision, 1977–1981, vol. I, 9.

Just as Friedman adopted the term "mixed schools," the segregationists' favorite scare phrase for desegregated schools, die-hard segregationists adopted Friedman's language. In 1964, the Mississippi administrator of the Citizens' Council, William Simmons, abandoned his earlier primary defense of segregated schools as a matter of constitutional "state rights" and began condemning the monopoly of "government schools." In the Council's newsletter, echoing both Brady and Friedman, Simmons wrote that that public schools "can no longer be considered public—they have become government school systems." Afterwards, the White Citizens' Council focused primarily in Mississippi on developing a private school system of choice, as their leaders condemned government schools as "socialism in its purest form."⁹⁵Michael W. Fuquay, "Civil Rights and the Private School Movement in Mississippi, 1964–1971," History of Education Quarterly 42, no. 2 (Summer 2002): 163–164, 178–179. Parroting Friedman, right wing radio and media personalities such as Neal Boortz and Sean Hannity have hammered for years at "government schools." Neal Boortz, "Government Idiocy in Action at Schools," Atlanta Journal-Constitution, December 8, 2009, https://www.ajc.com/news/opinion/neal-boortz-government-idiocy-action-schools/mQCmFIfvMZ36Nwc2t2YoDI/; "Sean Hannity Attacks Social Security and Public Schools as Ineffective Programs Exploiting People's Fears," Media Matters for America, January 3, 2019, https://www.mediamatters.org/video/2019/01/03/sean-hannity-attacks-social-security-and-public-schools-ineffective-programs-exploiting-peoples/222411.

Friedman never joined forces with segregationists, but he remained indifferent about how his libertarian economic arguments aided their strategies. Over several decades he continued to promote the concepts and framework that segregationists in the late 1950s and early 1960s believed were their best chance and best arguments. Long after southerners abandoned their segregationist rhetoric, Friedman's advocacy shaped how future scholars, advocates, and the general public would see vouchers and "freedom of choice" as acts of consumerism rather than segregationist tactics. "For whites moving into the new suburbs," writes historian James Hardman Jr., the term "carried the popular consumer phrase 'choice,' and gave the impression that simple economic choice, not morally questionable racial prejudice, was behind the segregation in their communities."⁹⁶James Hardman Jr., "Virginia on the Cusp of Change," in Historians in Service of a Better South, eds. Robert J. Norrell and Andrew H. Myers (Montgomery, AL: NewSouth Books, 2017), 80. It was a redefinition of choice that most of the South's private schools, even those started as "segregation academies," came to embrace and propagate as they persisted and expanded in the decades that followed.

Challenging Tax Benefits of Segregated Private Schools

Civil rights organizations recognized during the 1960s the danger that governmental support posed in helping to build segregated systems of private schools even after the courts had dismantled voucher programs. These groups pushed the Internal Revenue Service (IRS) to deny tax-exempt applications of "segregation academies." This federal tax status enabled whites to reduce their taxable income when contributing to racially exclusionary private schools. But, in 1967, the IRS announced that it would grant tax deductions for contributions to any southern private school, even self-avowed segregation academies, because "the school is private and does not have such degree of involvement with the political subdivision as has been determined by the courts to constitute State action for constitutional purposes."⁹⁷Green v. Kennedy, 309 F. Supp. 1127 (1970) at 1130.

The Lawyers Committee for Civil Rights Under Law sued the IRS in 1969 and obtained a court order requiring it to "affirmatively determine" that a private school in Mississippi is not "operated on a racially segregated basis as an alternative to white students seeking to avoid desegregated public schools." The three-judge federal court found that the "tax benefits under the Internal Revenue Code mean a substantial and significant support by the Government to the segregated private school pattern."⁹⁸Green, 309 F. Supp. 1127 (1970) aff'd sub nom, Cannon v. Green, 398 U.S. 956 (1970); Eileen Shanahan, "Schools in South May Avoid Taxes," New York Times, August 3, 1967; Eileen Shanahan, "Private Schools That Bar Blacks to Lose Tax Aid," New York Times, July 11, 1970. After its ruling was affirmed without opinion by the US Supreme Court, the court issued a permanent injunction restricting the IRS from granting a tax exemption to any and all Mississippi private schools that applied for the tax benefit.⁹⁹Green v. Connally, 330 F. Supp. 1150 (1971), aff'd sub nom, Coit v. Green, 404 U.S. 997 (1971).

Afterwards, the IRS revoked the tax exemptions of more than one hundred private schools and scrutinized applications for tax exemption from others; however, it took eight years before the agency proposed specific administrative regulations to implement the non-discrimination policy adopted in 1970. During this time, the IRS faced a backlash from private schools and their supporters, including southern members of Congress, and, in this political environment, went back and forth with proposed administrative procedures and congressional hearings. When the Nixon administration issued final guidelines, the Lawyers Committee, the US Civil Rights Commission, and others criticized the IRS's rules, procedures, and enforcement as inadequate.¹⁰⁰"Proposed Rules on Tax Exemptions for Private Schools Eased by IRS," New York Times, February 10, 1979; IRS Tax Exemptions and Segregated Private Schools: Hearing Before the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary, House of Representatives, 97th Cong., 2d Sess. 39 (1982); also see Tax-Exempt Status of Private Schools: Hearing Before the Subcommittee on Oversight of the Committee on Ways and Means, House of Representatives, 99th Cong., 2d Sess. 39 (1985).

Despite the regulation's shortcomings, a significant number of religious private schools in the South objected to the new IRS rules on the grounds of religious freedom, claiming that the government could not oversee their operations under any circumstances, even if they engaged in practices of segregation and racial discrimination. In 1983, the US Supreme Court disagreed and upheld the application of the IRS rules on religious schools in a case involving Bob Jones University in South Carolina. Chief Justice Warren Burger wrote that "the Government has a fundamental, overriding interest in eradicating racial discrimination in education—discrimination that prevailed, with official approval, for the first 165 years of this Nation's constitutional history. That governmental interest substantially outweighs whatever burden denial of tax benefits places on petitioners' exercise of their religious beliefs."¹⁰¹Julia Malone, "Those Tax Breaks for Segregated Schools Stir Storm," Christian Science Monitor, January 14, 1982; Bob Jones University v. United States, 461 U.S. 574 (1983); Strat Douthat, "Some All-White Academies Struggle," Richmond Times-Dispatch, March 18, 1986.

After Bob Jones, the IRS required tax-exempt private schools to demonstrate non-discriminatory policies and operations. But the requirements proved minimal—involving little more than adoption of a policy statement by the school's founders or board, publication of the policy (in brochures and catalogues), and some way of demonstrating that the school had abandoned total, absolute segregation.¹⁰²Terry Berkovsky, Andrew Megosh, Debra Cowen, and David Daume, "Private School Update," 2000 EO CPE Text, Internal Revenue Service, 2000, www.irs.gov/pub/irs-tege/eotopicn00.pdf. The IRS rules suggest that a school must evidence that "it currently enrolls a meaningful number of racial minority students, or that its promotional activities and recruiting efforts are reasonably designed to inform students of all racial segments in the general communities within the area of the availability of the school." But, as a matter of practice, citing language in the Bob Jones case that denial of tax exemptions should be made "only where there is no doubt that the organization's activities violate fundamental public policy," the IRS and the US Tax Court has denied tax status only when a school maintains total segregation. See Calhoun Academy v. Commissioner, 94 T.C. 284 (1990).

Private schools in the South began to publish non-discrimination statements and many began a slow process of admitting a token number of Black or other students of color. It was a replay of the most effective tactics that segregationists had deployed in the public schools several years earlier. This change did little more than end all-white segregation in order to sustain virtual segregation. The practices satisfied the IRS requirement and allowed subsequent federal administrations to claim that private schools had shown "clear and specific factual evidence" of non-discrimination.

The private school movement grew rapidly. After the 1969 Supreme Court ruling that "every school district is to terminate dual school systems at once" in Mississippi,¹⁰³"Private Schools on Rise in the South," New York Amsterdam News, November 8, 1969; Kitty Terjen, "The Segregation Academy Movement," in The South and Her Children: School Desegregation, 1970–1971, ed. Robert E. Anderson Jr. (Atlanta, GA: Southern Regional Council, 1971), 69–71; "Civil Rights: Segregation: Federal Income Tax Exemptions and Deductions: The Validity of Tax Benefits to Private Segregated Schools," Michigan Law Review 68, no. 7 (June 1970): 1410–1414; Alexander v. Holmes County Board of Education, 396 U.S. 19 (1969). white parents responded. From 1965 to 1980, private school enrollment increased by more than 200,000 students across the South—with about two-thirds of that growth occurring in the states that had created voucher programs.¹⁰⁴Steve Suitts, Race and Ethnicity in a New Era of Public Funding of Private Schools: Private School Enrollment in the South and the Nation (Atlanta, GA: Southern Education Foundation, 2015), 7–8.

There were no government surveys reporting race or ethnicity for private school enrollment at the start of the 1980s, but the Southern Regional Council, which monitored the movement after Brown, estimated that virtually segregated private schools in the eleven states of the former Confederacy enrolled between 675,000 and 750,000 white students. When computed with overall enrollment data for those states, these estimates suggest that somewhere between 65 and 75 percent of the private school's white students were virtually segregated by the early 1980s.¹⁰⁵Hearings on IRS Tax Exemptions and Segregated Private Schools, Before the Subcommittee on Civil and Constitutional Rights of the Committee of the Judiciary, 97th Cong. (1982), 69; Digest of Education Statistics, 1981 (Washington, DC: National Center for Education Statistics, 1981).

Overall, the southern states' white flight from public schools in the wake of desegregation from 1940 through 1980 helped to quadruple the number of students attending segregated private schools. As Jason Morgan Ward aptly observed, "[T]he end of the Jim Crow era rendered segregation, like white supremacy before it, a doomed battle cry. But it was not a dead proposition."¹⁰⁶Jason Morgan Ward, Defending White Democracy: The Making of a Segregationist Movement and the Remaking of Racial Politics, 1936–1965 (Chapel Hill: University of North Carolina Press, 2011), 183.

The "Post-Racialist" Standards Movement

Most of the South's private schools that started during massive resistance survived without vouchers—but with federal tax exemptions. Many increased their enrollments and resources as they embraced the old-line segregationists' non-racial language and reasoning. This transformation of stated purpose from preserving segregation to meeting children's needs for a quality education through choice involved an initial phase when headmasters and other promoters of private schools struggled to abandon their original meaning and adopt a new, non-racial script about motives and purposes.

Dr. T. E. Wannamaker, for example, founder of the South Carolina Independent School Association, explained in 1966 the reasons for his organization and schools: "We're here because we have convictions and we're going to stay. It's not token integration we're concerned about, but the effects mass integration will have on our schools in the future." Earlier, Wannamaker had described himself as "an old-time conservative. I believe it's heredity first and environment second. Many (Negroes) are little more than field hands." In 1970, he became the first leader of the Southern Independent School Association.¹⁰⁷Terjen, "The Segregation Academy Movement," 76; Margaret Rose Gladney, "I'll Take My Stand: The Southern Segregation Academy Movement" (PhD diss., University of New Mexico, 1974), 80. An Alabama private school advocate told a journalist in 1969, "We really didn't do it on account of segregation. We done it for a better education."¹⁰⁸Kitty Griffith, "New 'Segregation Academies' Flourish in the South," South Today, October 1969, 1.

By the 1970s, as many public schools in the South were being desegregated for the first time, promoters of private schools were developing a more consistent line of reasoning: the schools may have begun over the "racial question," but were now operating to provide "quality education." "I've been fighting to take the race question out of the Independent Schools," a member of the Louisiana Private School Association said in 1973. "I've run a segregated school for 33 years. . . . I want nice people in my school. We're trying to sell quality education."¹⁰⁹Gladney, "I'll Take My Stand," 80.

The headmaster of Prince Edward Academy (which five years earlier had been denied the continued benefit of vouchers and tax credits due to racial discrimination) told a researcher: "This school came into being because we love our children and want the best education in a controlled environment." A leader of Louisiana's private schools expanded this new language of transition: "I think people would be able to accept integration if it did not mean lowering of academic and moral standards. But they know it means it; therefore, they resort to private schools." And the head of the Alabama Independent School Association told researcher Rose Gladney in 1972: "Our primary interest is educating people basically of like learning capacities. We adopt a school system to meet their needs. . . . The real historical importance of the movement is not one of segregation or integration. It's academically important."

It was left to a student in one of the private schools that Gladney visited to be explicit about the white supremacist message he heard from administrators, promoters, and perhaps family: "Niggers are dumb; can't learn. And when you have a majority of low standard in a school, they will pull all the rest down. It is not really a race issue, just a matter of lowering standards."¹¹⁰Gladney, 99–126.

Many private schools operated by churches also began to justify their existence through the imperative of religious education. "Religion is an integral part of the Independent School movement," said the director of the Louisiana Independent School Association. "We're developing a pseudo-parochial system where there's a fixed religion we feel we want."¹¹¹Gladney, 134–136. These often became Christian schools that turned "in every particular around Bible teachings and interpretations."¹¹²David Nevin and Robert E. Bills, The Schools that Fear Built: Segregationist Academies in the South (Washington, DC: Acropolis Books, 1976), 61.

Whatever the non-racial rationale—economic freedom, better education, religious instruction—the vast majority of the South's private schools were established when it became clear locally that federal law would require some form of desegregation. By the start of the 1980s, the character of most of these private schools was set. "These are schools for whites," wrote the authors of The Schools that Fear Built in 1976. "The common thread that runs through them all, Christian, secular, or otherwise, is that they provide white ground to which Blacks are admitted only on the school's terms if at all."¹¹³Nevin and Bills, 11.

For God and Private Schools

Following the 1980 election of Ronald Reagan, private schools throughout the nation received federal support and endorsement as never before. The Reagan administration justified proposed federal assistance to private schools as a means for advancing high quality education along with diversity and pluralism. The administration waffled on whether to support Bob Jones University's claim that religion gave it the right to discriminate on the basis of race even while receiving tax exemption. "I was under the impression," Reagan said, "that the problem of segregated schools had been settled, that we have desegregation."¹¹⁴Catherine A. Lugg, "For God and Country: Conservative Ideology and Federal School Policy during the First Term of President Ronald Reagan" (PhD diss., Pennsylvania State University, 1995), 105–111, 121.

In 1981, Reagan's secretary of education testified in support of tax credit vouchers for private schools as "an expansion of educational opportunities for all Americans." In 1983, Reagan became the first president to send Congress legislation for federal tax credits to finance private schools. The proposed "Educational Opportunity and Equity Act," the administration argued, would benefit a wide range of students, including low-income children of color, and more broadly would "promote diversity in education and the freedom of individuals to take advantage of it, and to nurture the pluralism in American society which this diversity fosters." School segregation was a thing of the past, said Reagan, and private schools were the engines of diversity.¹¹⁵Lugg, "For God and Country," 132; Julia Malone, "Drive Begins for Tuition Tax Credit: Reagan Education Secretary Argues for Private School Help," Christian Science Monitor, June 8, 1981; Julia Malone, "Bid to Allow Tax Credits for Private-School Tuition Awaits Next Session of Congress," Christian Science Monitor, November 16, 1983; David E. Rosenbaum, "Tuition Credit Seen in Reagan Plan," New York Times, May 27, 1985.

Reagan linked his tax credit bill with an imperative to return religion to schools. "I don't think God should ever have been expelled from the classroom," he declared at a news conference in which he defended his support of private schools, including religious schools. The president's remarks echoed a long line of southern segregationists who had justified the growth of private schools on religious grounds, especially after 1961 when the US Supreme Court outlawed a New York statute that required public school students to recite an official Christian prayer.¹¹⁶Lugg, 126–127; Engel v. Vitale, 370 U.S. 421 (1962).

White churches started private academies in the wake of court-ordered desegregation, with religion and segregation often intermingling in the schools' stated purpose. In Prince Edward County, Virginia, many white clergy supported closing the public schools, their churches provided white-only space, and their curricula were built around church teachings. "Our people—supporters of the Independent schools—are convinced God is behind us," asserted the head of the Louisiana segregated private schools in the early 1970s. "If you don't include that aspect, you're missing a good part of the motivation behind this movement. People believe wholeheartedly that God doesn't want us to mix."¹¹⁷Gladney, "I'll Take My Stand," 134.

Looking across the South in 1974, Rose Gladney, a young scholar whose family had been actively involved in setting up a segregation academy in Homer, Louisiana, saw how most adults involved in private schools had merged racial segregation, quality education, and religion into one rationale. "The teachings of the academies," Gladney sadly observed, "hope to ensure that there will be people who think there is a need because they will have been taught, for at least another generation, that love of God, love of their white skins, and love of quality education cannot be separated."¹¹⁸Goodman, Sanctuaries for Tradition, 9–12; Gladney, 137.

President Reagan transformed a "love of white skin" into a color-blind doctrinal belief that individual freedom of choice in schooling created diversity and opportunity for all in an era without segregation. Reagan became the nation's primary voice for why and how government should support private schools, and, as a former actor and California governor, his own past and national leadership obscured the original role and rationales of southern white supremacists from public memory.

In 1984, in re-nominating Reagan, the Republican Party's education platform included support for the right to pray in public schools, opposition to busing for desegregation, passage of tuition tax credits for private schools, and redirecting billions of federal funds dedicated to assist low-income students in public schools into vouchers for private schools. It was the first time a national political party endorsed school vouchers. In his State of the Union address fourteen months later, President Reagan declared: "We must continue the advance by supporting discipline in our schools, vouchers that give parents freedom of choice; and we must give back to our children their lost right to acknowledge God in their classrooms."¹¹⁹Lugg, "For God and Country," 212–213; "Republican Party Platform of 1984," The American Presidency Project, accessed March 8, 2019, https://www.presidency.ucsb.edu/documents/republican-party-platform-1984; Ronald Reagan, the annual State of the Union address (speech, Washington, DC, February 4, 1986), The American Presidency Project, www.presidency.ucsb.edu/documents/address-before-joint-session-congress-the-state-the-union. The first time a national political party's platform endorsed tax credits for private schools was in 1972 at the Republican National Convention. It was the first time a US president expressly advocated for school vouchers before a joint session of Congress. Without attribution, the views and tools of southern segregationists had become the official position of the national Republican Party and the Reagan presidency.

No to "Racial-Mixing," Yes to Vouchers

At the end of the Reagan administration, almost thirty-five years after Brown, enrollment in the South's private schools continued to grow in absence of any significant new government financial support.¹²⁰The next federal legislation providing new tax benefits to private schools was the Coverdell Education Account created in 1997 during the Clinton administration. It permits annual contributions up to $500 to earn tax-free funds to cover expenses in college or in elementary and secondary private schools. The accounts have restrictions on income and uses for K-12 private school tuition. Ironically, First Lady Hillary Clinton's first job out of law school involved investigating discriminatory practices of southern private schools. See Amy Chozick, "How Hillary Clinton Went Undercover to Examine Race in Education," New York Times, December 27, 2015, www.nytimes.com/2015/12/28/us/politics/how-hillary-clinton-went-undercover-to-examine-race-in-education.html. Some schools created in defiance of desegregation struggled and failed, but most survived by embracing other stated purposes for their existence and by maintaining their tax-exempt status—a benefit that required most to enroll just enough children of color to avoid total segregation while preserving a culture of "schools for whites."¹²¹See, for example, John Egerton, "Hammond Academy: A Rebel Yell, Fading," in Shades of Gray: Dispatches from the Modern South (Baton Rouge: Louisiana State University Press, 1991), 237–248.

Since the 1960s, white flight from urban public systems such as Atlanta's had maintained and extended segregated patterns in private tax-exempt schools and in suburban public schools. On both sides of the Mason–Dixon line, many white middle-class parents had escaped the mandates of school desegregation by moving into suburban neighborhoods where residential patterns of racial isolation and economics provided virtually segregated public schools. This suburban constituency helped to sustain Nixon and Reagan policies in blocking inter-district desegregation plans.¹²²See Lassiter, The Silent Majority, 295–324.

Earlier segregationists had foreseen the importance of district lines. In 1955, Forney Johnston, one of the architects of the Alabama three-school "freedom of choice" plan, identified "ordinary and customary geographical districting" as a primary tool for defeating Brown. His strategies cast a very long shadow. Examining school data from 1988 to 1990, a national study concluded "that white families are fleeing public schools with large concentrations of poor minority schoolchildren. In addition, the clearest flight appears to be away from poor black schoolchildren."¹²³Robert W. Fairlie and Alexandra M. Resch, "Is There 'White Flight' into Private Schools? Evidence from the National Educational Longitudinal Survey," Review of Economics and Statistics 84 (2002): 21–33.

The patterns persisted. Based on data from 1998, scholars Sean Reardon and Jon Yun found that the "South ha[d] the greatest segregation between the public and private sector of any region—white and Asian private school enrollment rates are more than three times greater than Black rates in the South, and more than double Latino rates."¹²⁴Sean F. Reardon and John T. Yun, Private School Racial Enrollments and Segregation (Cambridge, MA: The Civil Rights Project, Harvard University, 2002), 22, https://civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/private-school-racial-enrollments-and-segregation/Private_Schools.pdf. They also concluded that "the strongest predictor of white private enrollment is the proportion of Black students in the area."¹²⁵Reardon and Yun, Private School Racial Enrollments and Segregation, 22.

Drawing upon the 2000 Census, Duke University scholar Charles Clotfelter found that private schools were continuing to foster racial separation and isolation in K–12 education in the South, especially in non-metropolitan areas: "Combined with the general stability or growth of private enrollments in the South since 1970, these findings suggest that private schools were playing much the same role in non-metropolitan counties of the South in 1999–2000 as they were shortly after desegregation."¹²⁶Charles T. Clotfelter, "Private Schools, Segregation, and the Southern States," Peabody Journal of Education 79, no. 2 (2004): 74–97.

During this time, Milwaukee and Cleveland became limited, urban experiments in voucher programs in northern states, as some white liberals suggested that vouchers might offer a way to break up what they came to believe were intractable problems faced by low-income public schoolchildren. It was also the era when state governments began establishing programs to finance attendance in private schools, especially through tax credit vouchers. This new initiative reached into every part of the nation, but mostly the South, including all of the states where segregationists had established vouchers.¹²⁷Harry Brighthouse, "Egalitarian Liberals and School Choice," Politics & Society 24, no. 4 (1996): 457–486; James S. Coleman, "Some Points on Choice in Education," Sociology of Education 65, no. 4 (1992): 260–262. For a clear, deep understanding of this recent emergence of tax credits to finance enrollment at private schools, see Kevin G. Welner, NeoVouchers: The Emergence of Tuition Tax Credits for Private Schooling (Lanham, MD: Rowman & Littlefield, 2008).

The US Supreme Court began to bless these developments. As early as 1973, Justice William Rehnquist became the first member of the Court to issue a dissent from a school desegregation case relying on the precedent of Brown. In a case concerning school segregation in Denver, he condemned the Court's opinion for requiring a school district to advance desegregation—employing the old scare word, "racial mixing"—where there were "neutrally drawn boundary lines" that sustained segregation.¹²⁸Keyes v. School Dist. No. 1, Denver, 413 US 189 (1973), 258; Justin Driver, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind (New York: Pantheon, 2018), 278–283. As Driver notes, Justice Rehnquist as a Supreme Court law clerk had argued while Brown was being considered that the Court should not overrule Plessy v. Ferguson, 163 U.S. 537 (1896), which had sanctioned state-sponsored segregation. Barely a year after the Bob Jones decision held that religious private schools could not hold a tax exemption and discriminate on the basis of race, the Supreme Court slammed shut the courthouse door on those seeking to challenge the IRS's weak enforcement. Parents of twenty-five Black public school children sued the IRS, charging that its standards and procedures were inadequate to fulfill its obligation to deny tax-exempt status to racially discriminatory private schools. In 1984, the US Supreme Court held that the parents had no standing to bring such a suit.¹²⁹Allen v. Wright, 468 US 737 (1984).

With the appointment of other justices across more than three decades, the Court increasingly refused to require school districts to use any method of desegregation that proved effective in dismantling the dynamics of separation. By 2007, the Court had turned Brown on its head as a precedent for backing public school districts' voluntary efforts to desegregate. Chief Justice John Roberts wrote that Brown commanded school districts to avoid using race as a consideration, even for the purpose of recognizing and diminishing public school segregation. "When it comes to using race to assign children to schools," Roberts wrote without doubt or irony, "history will be heard."¹³⁰Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 US 701 (2007), 2744; Driver, The Schoolhouse Gate, 293–308.

As the Court stymied effective strategies for desegregating public schools, Justice Anthony Kennedy led it in unleashing private schools from constitutional restraints for receiving taxpayer funds. Arizona's program of tax credit vouchers allowed individuals and corporations to give tax dollars to private schools instead of paying them to the state—a scheme similar to those the Court had outlawed in prior cases, including in Prince Edward County, Virginia, in the 1960s. Kennedy, in a majority opinion, held that tax credit vouchers did not involve public funds or any state action that the Bill of Rights would prohibit. "While the State, at the outset, affords the opportunity to create and contribute," Kennedy wrote, "the tax credit system is implemented by private action and with no state intervention."¹³¹Arizona Christian School Tuition Organization v. Winn, 131 U.S. 1436 (2011) at 1448. Justice Kennedy's opinion considered whether the First Amendment's clause requiring separation of church and state, by way of application to the states through the 14^th Amendment, prohibited providing state tax credit vouchers to religious schools.

With few federal restraints, legislatures have expanded these programs or established new forms of vouchers, such as educational savings accounts that deposit state and local per-pupil expenditures into a personal account for a child's parents to use toward private schooling or to supplement home-schooling.

Patterns of virtual segregation have stayed remarkably high in private schools. As recently as 2012, 43 percent of the nation's private school students attended virtually all-white schools—schools where white students comprise 90 percent or more of the enrollment. That year, half of the fifty states had a majority of private school students attending virtually segregated schools.¹³²Suitts, Race and Ethnicity in a New Era of Public Funding of Private Schools, 36–39.

Despite white flight, virtual segregation for white students was far more substantial in private schools than in public schools, especially in the South. In 2012, 63 percent of white students in South Carolina's private schools were virtually segregated compared with only 5 percent of white students in South Carolina's public schools. Private schools were almost twelve times more likely to enroll white students in virtually segregated schools in 2012 than were the state's public schools.

In Mississippi, white students attending private schools were almost four times more likely to be in virtually segregated schools than public school students. More than seven out of ten white students in Mississippi's private schools attended schools where 90 percent or more of the enrollment was white. In the state's public schools, the rate was 15 percent. In Louisiana, 52 percent of the white students in private schools were virtually segregated in 2012, but only 14 percent for white public school students.

This new era of vouchers emerged as public schools across the nation experienced a substantial increase in the numbers of low-income students and students of color. Completing a trend that began in the 1980s, low-income students (those eligible for free or reduced lunch) became a majority of the South's public schoolchildren in 2006; in 2009, the South's public schools also had a majority of students of color. By 2013, more than 50 percent of the nation's public schoolchildren were from low-income families and almost half were children of color.¹³³Steve Suitts, A New Majority: Low Income Students in the South's Public Schools (Atlanta, GA: Southern Education Foundation, 2007), https://www.southerneducation.org/wp-content/uploads/2019/02/A-New-Majority-Report-Final.pdf; Steve Suitts, A New Diverse Majority: Students of Color in the South's Public Schools (Atlanta, GA: Southern Education Foundation, 2010), https://www.southerneducation.org/wp-content/uploads/2019/02/A-New-Diverse-Majority-2010.pdf; Steve Suitts, A New Majority: Low Income Students Now a Majority in the Nation's Public Schools (Atlanta, GA: Southern Education Foundation, 2015), https://www.southerneducation.org/wp-content/uploads/2019/02/New-Majority-Update-Bulletin.pdf; Shaila Dewan, "Southern Schools Mark Two Majorities," New York Times, January 6, 2010, https://www.nytimes.com/2010/01/07/us/07south.html; Lyndsey Layton, "Majority of US Public School Students Are in Poverty," Washington Post, January 16, 2015, https://www.washingtonpost.com/local/education/majority-of-us-public-school-students-are-in-poverty/2015/01/15/df7171d0-9ce9-11e4-a7ee-526210d665b4_story.html.

Changing patterns, most evident in the nation's cities, spread to the suburbs. In 2011, 40 percent of public schoolchildren in the nation's suburban districts were low-income; the rates were 45 percent or higher in suburbs in the West and the South. During the 2000s, the number of suburban poor exceeded the number in the nation's cities for the first time. Similarly, with a huge increase in Hispanic children, suburban school districts began educating a student population in which students of color comprised more than 40 percent. At the same time, African Americans moved into suburban counties surrounding central cities (such as Atlanta) in record numbers.¹³⁴Suitts, A New Majority: Low Income Students in the South and Nation (Atlanta, GA: Southern Education Foundation, 2013), 5–6, 15, https://www.southerneducation.org/wp-content/uploads/2019/02/New-Majority-2013.pdf; Elizabeth Kneebone, "The Changing Geography of US Poverty," The Brookings Institution, February 15, 2017, https://www.brookings.edu/testimonies/the-changing-geography-of-us-poverty/; Richard Fry, "Sharp Growth in Suburban Minority Enrollment Yields Modest Gains in School Diversity" (Washington, DC: Pew Research Center, March 31, 2009), http://www.pewhispanic.org/2009/03/31/sharp-growth-in-suburban-minority-enrollmentbryields-modest-gains-in-school-diversity/; Karen Pooley, "Segregation's New Geography: The Atlanta Metro Region, Race, and the Declining Prospects for Upward Mobility," Southern Spaces, April 15, 2015, https://southernspaces.ecdsdev.org/2015/segregations-new-geography-atlanta-metro-region-race-and-declining-prospects-upward-mobility.

This new diversity in suburban school-age populations did not result in major increases in integrated schools. Instead, old habits resurfaced that involved shifting residential segregation, white flight into exurbs, localities attempting to secede from majority-Black public school districts, and the states' rebirth of vouchers for private schools. Legislatures failed to increase public school funding to meet the huge challenges of educating a majority of schoolchildren who are low-income and non-white, especially in the South and West where most voucher programs have emerged.¹³⁵Don Boyd and Lucy Dadayan, "State and Local Governments Reshape Their Finances," The Book of the States 2016 (Lexington, KY: The Council of State Governments, 2016), http://knowledgecenter.csg.org/kc/system/files/Boyd%20Dadayan%202016.pdf; Nikole Hannah-Jones, "The Resegregation of Jefferson County," New York Times, September 6, 2017, https://www.nytimes.com/2017/09/06/magazine/the-resegregation-of-jefferson-county.html; Suitts, A New Majority: Low Income Students in the South and Nation, 8–13.

New Token Students of Choice

Overall trends have obscured a small, inclusive change in the color line for admission to private schools amid a more pronounced, underlying pattern of racial exclusion. Frequently, white private schools have chosen Asian or Pacific Island children to break their completely segregated enrollment in order to reach a token level of diversity for an IRS tax exemption. These students have family ancestries from countries including China, Vietnam, Korea, Japan, India, the Philippines, and various islands of the Pacific. In 2012, Asian American students comprised 5.8 percent of the nation's private school enrollment—a number slightly above the percentage of the Asian school-age population. Only white students and students with Asian ancestries were in private schools in numbers that exceeded or generally matched their representation in the school-age population. In forty-two states, the percentage of Asian students in private schools exceeded the state's percentage of school-age Asian children.¹³⁶Suitts, Race and Ethnicity in a New Era of Public Funding of Private Schools, 17, 27–29. Reardon and Yun also found that Asian students were over-represented in private schools in 1998. One other group of school-age children nationally matched their representation in private schools in 2012: students who self-identified as "of two or more races."

This development stands in sharp contrast to the history of discrimination that Asians have experienced, especially in California and the South, and makes Asian students stand out among students of color attending private schools. The explanation for this shift seems grounded in at least three factors: since the late 1980s, Asian households have had the nation's highest median income (more than $11,500 above non-Hispanic white household income in 2012); since at least the 1990s, Asian students have had the nation's highest scores on standardized tests; and more than three generations after World War II, some whites may find the lighter skin color of Asian Americans more acceptable according to racist hierarchies.¹³⁷See Joyce Kuo, "Excluded, Segregated and Forgotten: A Historical View of the Discrimination of Chinese Americans in Public Schools," Asian American Law Journal 5 (1998): 181–212, https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1044&context=aalj; Carmen DeNavas-Walt, Bernadette D. Proctor, and Jessica C. Smith, Income, Poverty, and Health Insurance Coverage in the United States: 2012, Current Population Reports (Washington, DC: US Census Bureau, 2013), 5, https://www.census.gov/prod/2013pubs/p60-245.pdf; Lauren Musu-Gillette, Cristobal de Brey, Joel McFarland, William Hussar, William Sonnenberg, and Sidney Wilkinson-Flicker, Status and Trends in the Education of Racial and Ethnic Groups 2017 (Washington, DC: US Department of Education, National Center for Education Statistics, 2017), 46–52, https://nces.ed.gov/pubs2017/2017051.pdf; Herbert J. Gans, "'Whitening' and the Changing American Racial Hierarchy," Du Bois Review: Social Science Research on Race 9, no. 2 (2012): 267–279.

Asian children usually comprise a small minority of a private school's enrollment. Their presence often serves to increase a school's performance on college entrance exams—enabling schools to promote evidence of quality education while avoiding an all-white enrollment that could jeopardize their tax exemption. Asian Americans' admission, however, does not change the reality of most private schools as "schools for whites."¹³⁸Suitts, Race and Ethnicity in a New Era of Public Funding of Private Schools, 28. The two states with the largest percentage of Asian and Pacific Islander school-age children, Hawaii and Alaska, have an under-representation of these children in private schools—in fact, the largest gaps among the 50 states in 2012.

Increased token admission of Asian children obscures the fact that the patterns of virtual segregation and exclusion in private schools are considerably larger for under-represented racial and ethnic groups: African Americans, Hispanics, and Native Americans. In 2012, two-thirds of white students in US private schools attended virtually "exclusionary schools"—schools where African American, Hispanic, and Native American children comprised 10 percent or less of total enrollment. In thirty of the fifty states, 70 percent or more of all white students attending private schools were in such schools.¹³⁹Suitts, Race and Ethnicity in a New Era of Public Funding of Private Schools, 40–42, 64–65. Hispanics and Native Americans have their own linked histories of discrimination in education. See Victoria-María MacDonald, "Demanding their Rights: The Latino Struggle for Educational Access and Equity," in American Latinos and the Making of the United States: A Theme Study, National Park Service, 2013, https://www.nps.gov/articles/latinothemeeducation.htm; Richard R. Valencia, "The Mexican American Struggle for Equal Educational Opportunity in Mendez v. Westminster: Helping to Pave the Way for Brown v. Board of Education," Teachers College Record 107, no. 3 (March 2005): 389–423; David Wallace Adams, Education for Extinction: American Indians and the Boarding School Experience, 1875–1928 (Lawrence: University Press of Kansas, 1995); Theda Perdue, "The Legacy of Indian Removal," Journal of Southern History 78, no. 1 (February 2012): 3–36.

This "exclusionary" pattern is not unique to private schools. Some public schools also have extremely low rates of enrollment of African American, Hispanic, and Native American children. But, private schools in forty-seven of the fifty states have far higher rates of this kind of "exclusionary" enrollment than do public schools. In twenty-six of these states, the rates of "exclusionary" schooling in private schools were more than 25 percentage points higher than rates in public schools. The largest differences were in southern states. For example, 84 percent of white students in South Carolina private schools attended schools where African American, Hispanic, and Native American students together comprised only 10 percent or less of the private school enrollment. But only 11 percent of the white students attending public schools in South Carolina were in similarly "exclusionary" schools.

Each southern state that adopted voucher schemes in the era of massive resistance to Brown, except for Virginia, appears on the top ten list for exclusionary schooling, and Virginia was not far away. Like Virginia, Arkansas (where vouchers were tried temporarily in Little Rock) also had a gap of 34 percentage points. All southern states, except West Virginia, had a gap of 20 percentage points or larger. In West Virginia, the gap was 10 percentage points.

With the re-emergence of vouchers, the overwhelming majority of white students attending the nation's private schools continue to attend "schools for whites." The geographies where segregationists invented and implemented vouchers to resist Brown remain the places with greatest patterns of "exclusionary" private schools—assuring their white students that they do not attend school with any more than a token number of under-represented students of color. In 2012, the percentage of white students attending "exclusionary" private schools in the South exceeded the percentage in similar public schools in the South by 37 percentage points. This gap was double that of the rest of the nation.

Lingering Facets of Jim Crow Segregation

States that adopted the first voucher plans in the 1950s and 1960s were forced by federal courts to abandon the laws and practices of complete separation of the races in schools and other public places. Yet Jim Crow laws were far from the only manifestations of segregation. The "better citizens" (as upper-class white supremacists were often called) were willing to accept token desegregation because of their belief that white supremacy and racial superiority did not place each and every white person always above "a negro of intelligence and good character."¹⁴⁰Woodward, The Strange Career of Jim Crow, 107; Thomas J. Woofter, Southern Race Progress (Washington, DC: Public Affairs Press, 1957), 133–137. In the Jim Crow era, many southern industrialists believed in white supremacy but did not always find absolute segregation an economic advantage for their companies. See Suitts, Hugo Black of Alabama, 246–250, for a précis of this condition in Birmingham.

The practice of permitting virtual segregation or token desegregation was widespread before and during Jim Crow. Often, the all-white Democratic primary was not all-white. "In county after county," V. O. Key Jr. wrote in Southern Politics in State and Nation, "a few Negroes have voted for many years in Democratic primaries conducted under white-primary rules." The practice of holding virtually segregated primaries was particularly common where African Americans comprised a small proportion of the population.¹⁴¹Key Jr., Southern Politics in State and Nation, 620. Of course, attempting to vote in a southern state's Democratic primary was dangerous or deadly for African Americans. Steven F. Lawson, Black Ballots: Voting Rights in the South, 1944–1969 (New York: Columbia University Press, 1976), 119–121; Howell Raines, My Soul Is Rested: Movement Days in the Deep South Remembered (New York: Bantam Books, 1978), 285–294; also, listen to Hank Klibanoff, Buried Truths, 2018, podcast, https://www.wabe.org/shows/buried-truths.

Similarly, southern justice was segregated, and "after 1900, essentially no Blacks sat on southern juries." But, as civil rights and civil liberties attorney Charles ("Chuck") Morgan noted in the 1960s, "[T]he names of a token number of Negroes are often included on jury rolls." These token Blacks—hand-picked by white jury commissioners from the few African Americans deemed acceptable—seldom served since they could be struck by prosecutors or defense lawyers.¹⁴²Michael J. Klarman, Brown v. Board of Education and the Civil Rights Movement (New York: Oxford University Press, 2007), 14; Charles Morgan Jr., "Segregated Justice," in Southern Justice, ed. Leon Friedman (New York: Random House, 1965), 159–161.

In their analysis of the South's segregationist leaders during massive resistance, historians Matthew Lassiter and James Hershman characterize segregationists as either caste-based or class-based. The caste-based defended complete segregation or exclusion on the belief that "all black people were inherently inferior to all white people." Understanding that absolute segregation was unnecessary to maintain a rule of white supremacy, the class-based segregationist (sometimes described as "moderate segregationists") conceded that "perhaps a few black people could be accepted into white institutions."¹⁴³Hershman, "Massive Resistance Meets Its Match," 105.

The ambitions of politicians such as George Wallace and Ernest Vandiver muddled the division between caste and class, but the contrasting definitions illustrate that segregation was not defined as only a total, absolute exclusion of all African Americans or other people of color from the spaces—including schools—occupied by whites. Southern laws were often written that way, but reality was different. Affluent leaders of the most successful strategies for defeating desegregation demonstrated a class-based acceptance of virtual segregation and worked to preserve it. They anticipated the long-term possibility of ending absolute segregation and empowering leaders of local schools to justify virtual segregation through non-racial language, traditional school attendance boundaries, and neutral-sounding educational admissions standards, although it is doubtful that many realized how powerful class-based terms would resonate in suburban desegregation politics decades later.¹⁴⁴Hershman, 104–106; Lassiter, The Silent Majority, 13–14, 26­–29, 322–323.

The layered dimensions of segregation and exclusion are also illuminated by school segregation laws outside the South—in states that practiced de jure segregation well into the twentieth century—including the law invalidated by the Brown decision in Topeka, Kansas.¹⁴⁵Brown v. Board of Education of Topeka, 98 F. Supp. 797 (1951).

All the attention drawn to the South's massive resistance eclipsed notice of how the Kansas school segregation law differed by excluding Black children from all white schools only in cities with a population over 15,000. The Kansas statute allowed boards of education in larger municipalities to decide if they should establish absolute segregation in those places where the number of African American children might exceed virtual or token segregation in a public school. In all other areas of Kansas with small Black populations, demographic patterns assured an acceptable level of virtual segregation.

Kansas population data illustrates how the law preserved virtual segregation in most of the state and absolute segregation where there was more than a token number of Black children. From 1890 through 1950, Kansas's Black population never reached 4 percent of the state's total, with the vast majority of Black Kansans living in and around a few cities. In 1950, there were 73,158 African Americans among more than 1.9 million Kansans. Almost three-fourths of the state's Black population resided in five counties where the state's largest cities were empowered to enact total segregation. All but one did. Elsewhere in Kansas in 1950, twenty thousand African Americans were spread among 1.3 million whites across one hundred counties, ensuring the maintenance of virtual segregation without the force of law.¹⁴⁶Murray, State Laws on Race and Color, 161; Institute for Social and Environmental Studies, Kansas Statistical Abstract 1976 (Lawrence: University of Kansas, 1977), 5–9, 23, http://ipsr.ku.edu/ksdata/ksah/KSA12.pdf. There was a failed legislative effort in 1921 to change the nineteenth-century Kansas law to allow towns as small as two thousand to establish absolute segregation in schools. Thom Rosenblum, "The Segregation of Topeka's Public School System, 1879–1951," National Park Service, last modified April 10, 2015, https://www.nps.gov/brvb/learn/historyculture/topekasegregation.htm.

In 1951, when Linda Brown's father sued to desegregate her school system, Topeka (pop. 80,000) required absolute segregation in neighborhood elementary schools, undoing the virtual segregation that demographic trends assured to most white parents elsewhere in Kansas. In other words, Kansas's law had the same intent as southern laws—to maintain some form of segregation in all cases—although it did not establish absolute segregation as the default. That was implemented only when virtual segregation could not be maintained in practice.

Arizona also had a school segregation law—in some public high schools—triggered whenever twenty-five or more "pupils of African race" registered. In these situations, 15 percent of the voters in the school district could initiate a referendum to require the local school board to "segregate the pupils of the African race from pupils of the Caucasian race." In other words, the presence of twenty-five Black students in a high school could set in motion a process for absolute segregation.

In adjoining New Mexico, the law permitted the separation of "pupils of African descent" into separate classrooms in the same buildings if the school boards decided "it was for the best advantage of the school." The state allowed a local school board to decide what number of students might endanger virtual segregation, although it did permit the local jurisdiction to avoid the cost of building a separate school to implement absolute segregation.

Wyoming law gave school boards and superintendents power to enforce absolute segregation whenever there were fifteen or more "colored children" within a district. Since the large majority of Wyoming's schools were small, the numerical calculation of what number might threaten virtual segregation was also quite small. Until 1949, local jurisdictions in Indiana could decide to institute absolute segregation under a law used almost exclusively in larger cities where the percentage of Black population jeopardized virtual segregation.¹⁴⁷Murray, 35–36; 290–291, 144; Mary Melcher, "'This Is Not Right': Rural Arizona Women Challenge Segregation and Ethnic Division, 1925–1950," Frontiers: A Journal of Women Studies 20, no. 2 (1999): 198–199. Arizona did require all elementary schools to segregate by race. Melcher suggests that Arizona required school segregation due to the large number of former southerners serving in the legislature. See Murray, 524; Reid E. Jackson, "The Development and Character of Permissive and Partly Segregated Schools," Journal of Negro Education 16, no. 3 (Summer 1947): 302–305.

These laws were different from those in the South because they assumed a different starting point. Before Brown, non-southern states started with virtual segregation and went to the absolute form when necessary, while southern states started with absolute segregation and went to virtual segregation when required by Brown. Wherever, school segregation was a multifarious exclusion without an exact shape or defining measure. As practiced, segregation always revolved around what a white-controlled legislature, white constituency, or white-controlled institution considered minimally acceptable. Contemporary private school patterns and practices—that state and federal governments have come to tolerate and often support with public funds—appear for what they are: legacies of class-based southern segregation used to evade Brown and multi-dimensional segregation of non-southern states before Brown.

Desegregation's Future

During the heyday of the first era of school vouchers, Dr. Martin Luther King Jr. decried that "token integration is little more than token democracy, which ends up with many new evasive schemes and it ends up with new discrimination, covered up with such niceties of complexity."¹⁴⁸Martin Luther King Jr., "Love, Law, and Civil Disobedience," New South, December 1961. King's words have proven prophetic, although he could not have foreseen how dramatically the icons and language of the movement he led would be used, even by his own lineage, to develop and advance the tools and strategies that segregationists of his day thought could defeat the promise of Brown.

Today's advocates of school vouchers are not the first to attempt to graft the words and imagery of King and the civil rights movement onto their reactionary cause. As early as 1988, Rev. Jerry Falwell of the Moral Majority declared to a gathering of all-white, conservative male ministers in Atlanta that "Martin Luther King is everybody's American hero."¹⁴⁹Lorri Denise Booker, "250 Protest Anti-Abortion Conference—2 Arrested; 600 Pack Omni to Hear Falwell," Atlanta Journal-Constitution, December 9, 1988; "Homogenized Heroes," SRC Home Record, Southern Regional Council, First & Second Quarters, 1989, 5. Ralph Reed, director of the Christian Coalition, continued to try to align King as the role model for conservative evangelical activists, many of whom supported public funding for private religious schools. Carter, The Politics of Rage, 466. But the school choice and voucher movement is remarkable in replicating so closely the primary strategies and tactics of southern segregationists while claiming the righteous mantle of the people and movement who fought against those segregationists.

One reason school choice proponents have appropriated civil rights rhetoric may relate to the fact that there is little evidence that vouchers improve the education of low-income children or children of color.¹⁵⁰See Robert C. Pianta and Arya Ansan, "Does Attendance in Private Schools Predict Student Outcomes at Age 15? Evidence From a Longitudinal Study," Educational Researcher 47, no. 7 (2018), https://journals.sagepub.com/stoken/default+domain/XfYmtC25VddcCfbA3xiV/full; Mark Dynarski, On Negative Effects of Vouchers (Washington, DC: Brookings Institution, 2016), https://www.brookings.edu/research/on-negative-effects-of-vouchers/; Mark Dynarski and Austin Nichols, More Findings about School Vouchers and Test Scores, and They Are Still Negative (Washington, DC: Brookings Institution, 2017), https://www.brookings.edu/research/more-findings-about-school-vouchers-and-test-scores-and-they-are-still-negative/; Martin Carnoy, School Vouchers Are Not a Proven Strategy for Improving Student Achievement (Washington, DC: Economic Policy Institute, 2017), https://www.epi.org/publication/school-vouchers-are-not-a-proven-strategy-for-improving-student-achievement/; Halley Potter, Do Private School Vouchers Pose a Threat to Integration? (Washington, DC: The Century Foundation, 2017), https://s3-us-west-2.amazonaws.com/production.tcf.org/wp-content/uploads/2017/03/22102646/do-private-school-vouchers-pose-a-threat-to-integration.pdf; Kevin Carey, "Dismal Voucher Results Surprise Researchers as DeVos Era Begins," New York Times, February 23, 2017, https://www.nytimes.com/2017/02/23/upshot/dismal-results-from-vouchers-surprise-researchers-as-devos-era-begins.html. Voucher advocates' strongest arguments invoke social justice as well as freedom in order to legitimate school choice as more than a consumerist mindset and to obscure the factual results.¹⁵¹Samuel E. Abrams, Education and the Commercial Mindset (Cambridge, MA: Harvard University Press, 2016), 303–307.

A larger part of the explanation surely lies in forgetting what little was known and understood about segregationists such as Alabama's Forney Johnston and Albert Boutwell, Georgia's John Sibley, North Carolina's Thomas Pearsall, and Virginia's Garland Gray. In current memory, George Wallace remains the image of the diehard segregationist—standing defiantly to assure not one Black child in any white school. The images, language, and cruel tactics of Wallace and Birmingham's "Bull" Connor remain vivid in the lingering American mind, but not the strategic, behind-the-scenes work of South Carolina's Marion Gressette.

Yet, the southern states' first plan for defeating court-ordered desegregation, the one that Johnston and Boutwell devised in 1954 in Alabama, is exactly what today's advocates and supporters of vouchers seek to implement: no compulsory "race-mixing" in schools and no mention of any intent to discriminate. What could be more American than the freedom of parents to choose their children's school—private or public—with public financial support?

The Boutwell plan also aimed to remove from the state constitution and statutes any right of education for a child and any obligation to fund education. Instead, a state was to "foster education of its citizens in a manner and extent consistent with its available resources, and the willingness and ability of the individual student [emphasis added]."¹⁵²Report of Alabama Interim Legislative Committee on Segregation in the Public Schools, 11. The plan authorized white school officials to decide "the eligibility, admission, and allocation of pupils, including the power to refuse admission to individuals or groups whose deficiencies in scholastic aptitude would compel undue lowering of school standards."¹⁵³Report of Alabama Interim Legislative Committee on Segregation in the Public Schools, 7–8. The state was to provide vouchers and tax funds to private schools to increase school choice options.

The primary components of segregationist plans developed in the 1950s and 1960s by southern states are today the main objectives of policymakers and advocates leading the movement for school choice and vouchers.¹⁵⁴For video overviews of the struggles against efforts to use vouchers to privatize public education, see videos at "Vouchers and Tax Credit Scholarships in the US," Southern Education Foundation, 2015, https://www.southerneducation.org/publications/vouchersandtaxcreditscholarships/; "Advancing Public Education in the South," Southern Education Foundation, 2013, https://www.youtube.com/watch?v=dBo4HwZ_8v8. No less remarkable, the segregation that Forney Johnston envisioned in his tripartite school system was also foreseen by economist Milton Friedman, who considered it an acceptable consequence of his goal of managing the country's education systems through market forces.

The nation's lack of memory has done far more than encourage the acceptance as racially neutral the economic and social arguments of voucher advocates, who blithely use the language of civil rights to advance the tools of segregationists. The nation has lost an understanding of class-based segregation as a general but not absolute condition for preserving racial superiority. This country also has failed to remember that school segregation laws outside the South embodied the same bifurcated notion of absolute and virtual segregation, although applied to different locales and demographies. More disturbing is the current wide acceptance of segregation as a part of an American way of schooling that merits public funding.

At the same time, the legal meaning and force of racial discrimination in civil rights enforcement and tax policy has shrunk to such an extent that courts, the public, and policy makers often recognize discrimination in private schools only if a person or institution sounds like an old-style segregationist who says "No, not one." Even some of the nation's most prominent public scholars have failed to grasp how, despite past court rulings, the strategies of virtual segregation continue today as prevailing practice among religious and non-religious private schools with tax exemptions.¹⁵⁵For example, Jill Lepore writes that, because of the Supreme Court decision in Coit v. Green in 1971, "private religious schools no longer provided a refuge for whites opposed to integration." See Jill Lepore, These Truths: A History of the United States (New York: W.W. Norton, 2018), 663. There is no basis in fact for such a conclusion.

The US Supreme Court has declared as law of the land that private schools cannot enjoy the benefits of exemptions from federal income tax, much less receive tax credits and direct government funding, while engaging in racial discrimination, even when motivated by claims of religious freedom. But, the federal government's current standards and practices of enforcement accept as valid and true on its face any private school's public pledge of non-discrimination in admission practices and operations, so long as the school has no formal or written policies to the contrary and does not maintain absolute, complete "No, not one" segregation. And parents of public school children cannot go to federal court to challenge the lack of robust, effective enforcement.

This faux policy of anti-discrimination has permitted a majority of private schools across the nation to maintain what strategic southern segregationists sought to achieve after Brown—virtual segregation and exclusion of children of color. Recall that two-thirds of white students attending the nation's private P–12 schools are in institutions where African American, Hispanic, and Native American children constitute 10 percent or less of the student body. These white schools are exercising "school choice" to decide which and how many children of color to admit—in token numbers and on terms, values, and motives inherited from strategic segregationists who, as Julian Bond noted, "dared not say out loud" their true goals.¹⁵⁶See Julian Bond, "Civil Rights in the Popular Culture," Southern Changes 14, no. 2 (1992): 4, http://southernchanges.digitalscholarship.emory.edu/sc14-2_1204/sc14-2_002/.

More than half of the nation's states have adopted some form of vouchers to support private schools, portending that virtual segregation and exclusion will be sustained over time. And the federal government is moving closer than ever to establishing a program of direct or tax credit vouchers to support private schools on whatever terms are acceptable to the states. Nor is there serious consideration of revising the standards and practices that have already permitted many states to erect the scaffolding of a private–public school system first put forward by Alabama segregationists in 1954.

By failing to grasp the history of the struggles and tactics against southern school desegregation, the nation has come to recognize segregation and racial superiority only in those private schools that are absolutely all-white. The looming danger lies in legitimizing and advancing a system of segregation and exclusion in education that is not called by its name. Even if most Americans find repugnant the absolute separation of the races that George Wallace defiantly championed as destiny in 1963, his words have transformed into a prophesy about schools across the nation that rings true by the most accurate, historical definition of the term: "segregation now . . . segregation tomorrow  . . . segregation forever."

Acknowledgments

Many thanks to Southern Spaces staff members Stephanie Bryan, Madison Elkins, Amelia Golcheski, Camille Goldmon, Hannah Griggs, Rachel Kolb, Ra'Niqua Lee, and Sophia Leonard for their work on this piece.  Thanks as well to Jon N. Hale for his suggestions. A special appreciation to Megan Slemons, GIS specialist with the Emory Center for Digital Scholarship, for assistance with maps and tables; and to Allen Tullos, my dear friend and senior editor of Southern Spaces.

About the Author

An adjunct with Emory University's Institute for the Liberal Arts, Steve Suitts is the author of Hugo Black of Alabama: How His Roots and Early Career Shaped the Great Champion of the Constitution. Earlier in his career, Suitts served as the executive director of the Southern Regional Council, vice president of the Southern Education Foundation, and executive producer and writer of "Will the Circle Be Unbroken," a thirteen-hour public radio series that received a Peabody Award for its history of the civil rights movement in five Deep South cities.

Blog Post

The activism of Appalachian women who took up the fight for justice in the 1960s and 1970s pulsed outward from a core ethic of care. Caregiving animated their understanding of politics and activism and infused their movements.¹Berenice Fisher and Joan C. Tronto, "Toward a Feminist Theory of Caring" in Circles of Care: Work and Identity in Women's Lives, eds. Emily Abel and Margaret K. Nelson (Albany: State University of New York Press, 1990), 40. Historically, Appalachian women had tended to the broken bodies of miners and industrial workers, mourned the dead, raised children, and negotiated a subsistence economy. They did so not because women are inherently more nurturing than men but because culture, society, and law carved out these positions. Most caregivers do not become activists. The merging of an ethic of care with democratic struggle provided a powerful argument that caring is central to the fight for justice, fairness, rights, and democracy. Women drew upon their experiences in shaping movements for labor and welfare rights, environmental justice, access to healthcare, and women's rights.

In the last thirty years, working-class caregivers have faced a US political economy ever more hostile to their needs and concerns and increasingly demanding of their time and energy. Although overall poverty has decreased since the 1960s, many locations in the Appalachian South, like rural and working-class communities across the nation, have experienced the rise of extreme economic inequality, and a growing divide between rural and metropolitan residents.²See Ronald D. Eller, Uneven Ground: Appalachia since 1945 (Lexington: University Press of Kentucky, 2008), 232–233. In the Appalachian coalfields, the last decades of the twentieth century ushered in the final and most precipitous decline of that industry. Although mine owners and operators had long exploited workers, mining was for many years the best paying work around. When those jobs disappeared, no other industry filled the gap and more people entered the low-wage service economy, surviving with little in the way of workplace benefits or economic security.

The loss of mining jobs and the transition to a global market and service economy paralleled the unraveling of the social safety net. In the 1990s, the bipartisan dismantling of Aid to Families with Dependent Children left poor families, and in particular women, on shaky ground and delivered a severe blow to decades of activism to guarantee welfare rights.³Deborah Thorne, Ann Tickamyer, and Mark Thorne, "Poverty and Income in Appalachia," Journal of Appalachian Studies 10, no. 3 (2004): 341–357. See also Debra A. Henderson and Ann R. Tickamyer, "Lost in Appalachia: The Unexpected Impact of Welfare Reform on Older Women in Rural Communities," Journal of Sociology and Social Welfare 35, no. 3 (2008): 153–171. Health clinics, legal aid services, and local organizations—the legacies of 1960s activism—stood as the only buffers in a political economy increasingly hostile to poor and working people.

In the popular imagination, "Appalachia" functions as shorthand for a white working class—coded as male industrial workers. For months before and after the 2016 election, journalists reported on various Trump Countries, as they were dubbed—Appalachian communities supposedly serving as ground zero for understanding working-class support for a billionaire who claimed to care about the "forgotten people" of America. This signposting allowed for an evasion of any deep analysis of racism or growing economic disparity, generations in the making and never contained to one region.⁴Roger Cohen, "We Need 'Somebody Spectacular': Views from Trump Country," The New York Times, September 9, 2016, accessed March 8, 2017, https://www.nytimes.com/2016/09/11/opinion/sunday/we-need-somebody-spectacular-views-from-trump-country.html; John Saward, "Welcome to Trump County, USA," Vanity Fair, February 24, 2016, accessed March 8, 2017, http://www.vanityfair.com/news/2016/02/donald-trump-supporters-west-virginia; Larissa MacFarquhar, "In the Heart of Trump Country," The New Yorker, October 10, 2016, accessed March 8, 2017, http://www.newyorker.com/magazine/2016/10/10/in-the-heart-of-trump-country. For a full list and analysis of this coverage see Elizabeth Catte, "There is No Neutral There: Appalachia as Mythic 'Trump Country,'" October 16, 2016, https://elizabethcatte.com/2016/10/16/appalachia-as-trump-country/.

Such portraits rely on exhausted tropes that erase the voices and experiences of working-class women, a multi-racial and -ethnic group, from history while wiping from historical memory the progressive activism long central to Appalachia's history. Such a narrative ignores the experiences of the vast majority of the region's workers (many of them women) who are not employed in heavy industry, but in the work of caring: health care support, education, and social services.

Conceptions of "workers" that exclude and marginalize caregiving, or cast Appalachia as an isolated, out-of-step place, have little chance of generating the kind of diverse, hopeful coalitional work that emerged in the late 1960s and 1970s.

Women activists in Appalachia and their allies—civil rights activists, lawyers, doctors, union organizers, feminists, and students—worked for what they believed was possible: the common good in their communities, region, and nation. Their most potent tool was the knowledge that they carried from a lifetime of tending to families, surviving tragedies, bearing witness to the disasters of unregulated capitalism, advocating for their communities, and taking stands for fairness and justice. Their stories are tools for the present, charting a path to a society that centers and values life-sustaining labor.

About the Author

Jessica Wilkerson is assistant professor of history and southern studies at the University of Mississippi.

Review

Warning the governor of Kentucky that the white South stood on the brink of destruction in 1860, secession commissioner Stephen F. Hale wrote that Lincoln's election "inaugurates all the horrors of a San Domingo servile insurrection, consigning her citizens to assassinations and her wives and daughters to pollution and violation to satisfy the lust of half-civilized Africans."¹Charles B. Dew, Apostles of Disunion: Southern Secession Commissioners and the Causes of the Civil War, Fifteenth Anniversary Edition (Charlottesville: University of Virginia Press, 2016), 120. Hale sent his letter to Governor Beriah Magoffin of Kentucky. Hale's letter appeared nearly seventy years after the Haitian Revolution began and fifty-five years after Haiti won independence from France. Nevertheless, as Carl Lawrence Paulus demonstrates in The Slaveholding Crisis: Fear of Insurrection and the Coming of the Civil War, Hale's lurid images and graphic language resonated with many white southerners fearful about the lessons a free black republic might hold for the nearly four million people held in chattel bondage in the United States.

The contention that "the fear of a revolt—or revolution—being mounted by the enslaved became a defining characteristic of the slaveholding South" is not new (3). One of the strengths of The Slaveholding Crisis is its broad survey of the antebellum period through the perspective of American exceptionalism, which, according to Paulus, proslavery leaders "defined as the ability to employ either a congressional or states' rights approach to defend and perpetuate the institution of slavery" (5). Planters utilized the ideology of US uniqueness to attack anyone who attempted to interfere with slavery by accusing abolitionists of being dupes of the scheming British. The spatial dimensions of Paulus's book are noteworthy as he considers how Haiti, the British West Indies, Texas, and Mexico influenced slaveholder and abolitionist thought, US domestic politics, and ideas about the role of the United States in the world. The Slaveholding Crisis is certainly not the first book to pursue these influences; nevertheless, Paulus examines how each of these places, in turn, helped shape the development of ideas about American exceptionalism.

In 1789, many US citizens gloried in the spread of the ideals of the American Revolution to Europe. France seemed poised on the brink of becoming a "sister republic" and revolutionary optimism spread like wildfire. As the French Revolution became more radical, its ideas ignited the Caribbean and, in turn, revolution in Haiti petrified white people in the United States. "White racial communion," asserts Paulus, "trumped American ideological conflict between the Federalists and the Jeffersonian Republicans and the leadership of the first two political parties in the United States shared a similar reaction to the black revolution in the West Indies" (15). At times, Paulus lacks nuance in explaining the complexity and subtlety of the US-Haiti relationship. He also neglects significant recent work by Garry Wills and Ronald Angelo Johnson about the mutually beneficial relationship between the United States and Haiti in the late 1790s.²Garry Wills, "Negro President": Jefferson and the Slave Power (Boston, MA: Houghton Mifflin, 2003); Ronald Angelo Johnson, "A Revolutionary Dinner: US Diplomacy toward Saint Domingue, 1798–1801," Early American Studies: An Interdisciplinary Journal 9, no. 1 (Winter 2011): 114–41; and Ronald Angelo Johnson, Diplomacy in Black and White: John Adams, Toussaint Louverture, and Their Atlantic World Alliance (Athens: University of Georgia Press, 2014). Jefferson wanted nothing to do with Haiti. President John Adams and Timothy Pickering, his secretary of state, on the other hand, negotiated a treaty and developed strong bilateral relations with Toussaint Louverture. Paulus contends that South Carolina congressman Robert Goodloe Harper fretted about a potential invasion from the French West Indies, although he also worked with Pickering and Adams to support Louverture. Harper introduced Haitian envoy Joseph Bunel to various members of Congress so Bunel could convince politicians that Louverture had no interest in fomenting insurrection.³Compare Paulus, The Slaveholding Crisis, 23–24 and Johnson Diplomacy in Black and White, 58–67.

Revolutionaries carried ideas throughout the Atlantic World and spread ferment from one location to another. And so, it seems, did refugees. The arrival of French refugees from Haiti to the United States in the 1790s increased slaveholder fears as "the specter of Haiti's successful revolution appeared in everyday life" (20).⁴For other studies of the Haitian Revolution's impact on the United States see Ashli White, Encountering Revolution: Haiti and the Making of the Early Republic (Baltimore, MD: Johns Hopkins University Press, 2010) and James Alexander Dun, Dangerous Neighbors: Making the Haitian Revolution in Early America (Philadelphia: University of Pennsylvania Press, 2016). Virginia slaveholders became apprehensive about black Virginians, both free and enslaved. Numerous historians have argued that slaves proved adept at transmitting information among themselves.⁵Although Paulus does not cite Julius S. Scott, "The Common Wind: Currents of Afro-American Communication in the Era of the Haitian Revolution" (PhD diss., Duke University, 1988) or Janet Polasky, Revolutions without Borders: The Call to Liberty in the Atlantic World (New Haven, CT: Yale University Press, 2015), both offer extended analysis of networks of communication among enslaved and free people throughout the Atlantic World. Certainly, Haitian events influenced rebellions in the United States.⁶Matthew J. Clavin, Toussaint Louverture and the American Civil War: The Promise and Peril of a Second Haitian Revolution (Philadelphia: University of Pennsylvania Press, 2010). Revolution in the French West Indies "likely inspired Gabriel [Prosser] and his fellow insurrectionists to secure emancipation through violence" (29). Like Washington and Louverture, Gabriel, when he led a slave rebellion in Richmond in 1800, chose the title of general, not king. Haiti also played a "noteworthy role" in Denmark Vesey's 1822 uprising (42).

Paulus tends to depict planters as a homogenous class, not distinguishing between those who lived on the Atlantic and Gulf Coasts and in other slaveholding areas. Paulus might have considered whether planters in Tennessee and Missouri, or other landlocked states, were as obsessed with revolutions in the Caribbean as their counterparts in South Carolina and Louisiana. Geography may have created different ideas about revolutions, but this remains uncertain and, in any case, is not his book's major concern. Although terrified of revolt, planters believed northerners would suppress any rebellion and refuse to allow the slaughter of white people. Proslavery ideologues, however, soon began questioning this assumption. The postal system facilitated the distribution of incendiary abolitionist material such as David Walker's Appeal. Slaveholders expressed disgust when mayor Harrison Gray Otis of Boston refused to punish Walker. Otis distanced white Bostonians from Walker's radicalism and condemned his pamphlet, but this proved cold comfort to agitated slaveholders who "cared very little for Bostonian sympathies" (56). Nat Turner probably knew little about Walker's Appeal, but that did not stop planters from portraying Walker as the evil genius behind Turner's 1831 rebellion in Virginia. In response, slaveholders abandoned the "necessary evil" defense of slavery in favor of the "positive good" argument and sought to punish abolitionists. Planters began to fear that they could no longer count on northerners to protect them in the case of a slave rebellion.

Paulus argues that a weighty change occurred in the 1830s: most planters "no longer saw a weak national government as key to slavery's perpetuation" and determined that "the South required more than the Constitution and its abstract protections" (90). President Andrew Jackson vowed to halt the antislavery mailing campaign and stop abolitionists from utilizing the postal system to drown the southern states in antislavery literature and periodicals. Jacksonian officials such as postmaster general Amos Kendall allowed the censorship and destruction of mail. The House of Representatives enacted James Henry Hammond's "Gag Rule" and tabled all antislavery petitions. Space, and control over space, mattered very much to planters, who no longer saw abolitionists as "moralists who, so consumed by their beliefs, did not understand the consequences of their actions." Rather, they believed them to be "evil enemies who purposely wanted to kill whites in the South indirectly by provoking slave revolt" (124). Some people in the northern states echoed these ideas and joined planters in denouncing abolitionists as traitors in league with Great Britain.

Emancipation in the British West Indies in 1833 increased US proslavery paranoia. Most planters believed Britain's plan of gradual, compensated emancipation would destroy West Indian economy and society. They also worried about their own future in a world where freedom seemed to be on the rise, and slavery on the defensive; perhaps they might end up like feckless Caribbean planters. Planters found some encouragement elsewhere. Some greedily turned their eyes toward Texas, a republic that had won independence from Mexico in 1836.⁷Paulus's analysis would have been strengthened by considering the essays in Jesús F. de la Teja, ed., Tejano Leadership in Mexican and Revolutionary Texas (College Station: Texas A&M University Press, 2010). Presidents Jackson, Van Buren, and Harrison shied away from Texas annexation, but President John Tyler and Secretary of State Abel Parker Upshur believed that Texas was a winning issue that could help Tyler secure a second term in 1844. Upshur argued that slavery helped guarantee US exceptionalism and worked to make Washington "the epicenter of proslavery power" (151). Parker and Tyler believed that the proslavery movement should use the levers of government power.

Senator Robert J. Walker of Mississippi became the voice for Texas annexation, framing it as "colonization without the cost." He and others "had no qualms saying that Texas, as a new member of the Union, would funnel black Americans away from the free states" (163). Walker's argument proved powerful, especially during the election of 1844, but also double-edged. "Northern Democrats who voted to approve annexation did not forget the proslavery guarantee from Robert Walker. They came to expect Texas to serve as a funnel for black population to move southward, away from their homes and cities" (166).⁸Paulus suggests the planter elite lost power in the 1840s. This contradicts a recent account of how politically powerful southerners created an aggressive foreign policy of slavery. See Matthew Karp, This Vast Southern Empire: Slaveholders at the Helm of American Foreign Policy (Cambridge, MA: Harvard University Press, 2016), reviewed in Southern Spaces at https://southernspaces.ecdsdev.org/2018/slaveholding-empire-southerners-federal-authority-and-slave-power-abroad. Walker's notion of Texas as a safety valve proved enticing to many northern Democrats and Paulus ably demonstrates the importance of space and place in driving political issues in the United States.

The fallout from Walker's argument became apparent in congressional debates over David Wilmot's 1846 Proviso barring slavery and involuntary servitude from any lands acquired from Mexico. Paulus's language becomes too exuberant when he asserts, "some members stood agape as the seemingly torpid monster of sectionalism rose back to life in the United States Capitol" (173). His analysis in previous chapters demonstrates that sectionalism was hardly torpid. Still, he is correct that the Wilmot Proviso had a potent impact on national politics. Many white southerners felt slighted, but they misread northern minds. Votes by northern Democrats in favor of the Proviso "had less to do with slavery and more to do with the black population of the United States" (185). Northerners remembered Walker's promises. They expected Texas to absorb black people and for new territory to be reserved for white men and their posterity. Proslavery ideologues, on the other hand, believed the Wilmot Proviso to be "the first step in the Abolitionist Power's plan to destroy the slave states and the plantation owners who governed them, not just the institution of slavery" (189). In addition, the proslavery movement turned against American exceptionalism. During the 1850s, southern radicals "came to believe that the exceptional nature of the Constitution had fallen by the wayside" (220). Ultimately, throughout the Secession Winter of 1860–1861, they repeatedly declared that the Constitution no longer protected them and, instead, represented "the provenance of their ruination" (234).

Throughout The Slaveholding Crisis, Paulus uses "American" to refer to the United States rather than the Americas, a practice he shares with many historians. This is troubling in a book that analyzes connections between the United States and the world. For instance, he writes: "The proslavery movement convinced itself that the South could not chance the fate of an American version of Toussaint rising in America while a Republican president held the reins of the military" (9). Paulus does not discuss other slaveholders in the Americas, save British planters. If he had, he might have considered whether slaveholders in Cuba, Brazil, and other countries developed similar exceptionalist ideas or suffered from similar fears. He could have been attentive to another spatial dimension—slaveholders in other geographies of the Americas.

Paulus also tends to be overly broad in his assessment of "proslavery southerners" (8)—there were plenty, after all, who never gave up on the Union. Secessionists exerted a mighty effort over many years to convince people to leave the Union and many never accepted their logic. Stephen F. Hale's lurid words, cited at the beginning of this review, captured a deep-seated fear seven decades in the making and resonated with the plantation South. But such sentiments proved unable to push Missouri, Kentucky, Maryland, or Delaware out of the Union and it took the firing on Fort Sumter and Lincoln's call for troops to cause Virginia, North Carolina, Arkansas, and Tennessee to secede. These matters aside, The Slaveholding Crisis offers a thought-provoking analysis of how space and place drove slaveholders to refine their ideas about American exceptionalism and, ultimately, leave the Union.

About the Author

Evan C. Rothera is a lecturer in the Department of History at Sam Houston State University. His current book manuscript analyzes civil wars and reconstructions in the United States, Mexico, and Argentina between 1860–1880.

Review

In 1931, an all-white jury in Birmingham, Alabama, sentenced Willie Peterson to death for a mysterious attack that left two white women dead and a third critically injured. The lone survivor identified Peterson, a black ex-miner crippled by tuberculosis, as the assailant, but many in Birmingham—black and white—doubted that Peterson could have committed the crime. Just months after launching a national campaign to save the Scottsboro Boys from a similar fate, a loose coalition of southern radicals, civil rights activists, and white liberals fought to save Peterson from the electric chair.

In Murder on Shades Mountain, Melanie S. Morrison recovers the Peterson case from the shadow of Scottsboro—arguably the most significant and certainly the most chronicled miscarriage of justice in the Jim Crow South. A social justice educator with a doctorate in theology, Morrison reveals her family connection to the case. Her father, a progressive minister born into Birmingham's upper crust, was courting Genevieve Williams when her two sisters—Nell and Augusta—were attacked on Shades Mountain, approximately nine miles south of downtown Birmingham. Augusta, along with her friend Jennie Wood, died on the mountain, while Nell survived. Truman Morrison sat on the grieving family's porch and listened to Dent Williams, the girls' brother, brag about visiting the jail after Peterson's arrest and shooting the suspect at point-blank range. Peterson barely survived to face trial, but Dent Williams dodged conviction "by reason of temporary insanity" (118).

Another form of insanity—the racial pathologies laid bare by the Peterson case—compelled Truman Morrison to break off the courtship and break rank with his wealthy family. Inspired by her father's life of activism, Melanie Morrison seeks to make sense of the stories he told her and to reconstruct the social and political world of Depression-era Birmingham. This is not an unfamiliar world for historians, as Alabama has provided the setting for a number of influential studies on race, labor, and radicalism in the Jim Crow South. Yet in shifting attention from Scottsboro's sleepy courthouse square to Birmingham's industrialized and highly stratified terrain, Morrison offers fresh perspective on the structural violence that undergirded white supremacy.

Place matters in Murder on Shades Mountain, and Morrison vividly reconstructs the social geography of Jim Crow Birmingham in the book's opening sections. Founded after the Civil War by investors intent on creating a southern industrial mecca, Birmingham was a city "rooted in racial apartheid" (26). Its barons resigned black workers to the lowest rungs of the labor ladder and confined the city's booming black population to racially zoned neighborhoods that lacked basic services. Meanwhile, whites with means moved upward and outward from the city's industrial core. The higher ground surrounding Birmingham also provided space for white leisure, including the overlook on Shades Mountain where the 1931 attack occurred. As Morrison points out, the rigidly segregated geography of Jim Crow Birmingham fueled doubts about the nature of the attack and the identity of the attacker. The notion that a black man would roam around this white enclave, in broad daylight and armed with a loaded gun, defied the spatial logic of segregation. Yet Jim Crow fueled an illogical counterpoint, where the threat of lust-crazed black men lying in wait demanded constant vigilance and swift vengeance.

The imperative that a black man must pay for the crimes committed on Shades Mountain underscores just how much Jim Crow blurred the line between legal and extralegal punishment. Angelo Herndon, a black communist and labor organizer later imprisoned in Georgia for his political activity, recounted his brutal detainment in the wake of the Shades Mountain attack. Birmingham police, he wrote in his 1937 autobiography Let Me Live, chained him to a tree and beat him with a rubber hose before charging him with vagrancy when he refused to confess to the crime. He estimated that lawmen and vigilantes killed as many as seventy black men and women in the "reign of terror" that swept him up (41–43).

For Herndon and his comrades, the arrest and prosecution of Willie Peterson marked the culmination of this broader campaign of violence and intimidation. The leftist activists who rushed to Peterson's defense blasted his conviction as a "legal lynching"—a term that Morrison embraces but which begs further interrogation given the complex and contentious history of "legal lynching" as a conceptual and rhetorical product of anti-lynching activism. Depression-era radicals were not the first to draw the connection between Jim Crow justice and extrajudicial violence, although they made these arguments vividly and forcefully. Although Morrison does not plumb this history, she rightly notes the role of US communists and allied labor radicals in promoting the argument, as the Southern Worker contended, that "the police, the courts, and the 'law enforcing' machinery are preparing to stage a legal lynching of [Peterson] as part of their campaign of terror against the entire Negro working class population of Birmingham" (84).

The rhetoric deployed in defense of Peterson echoed arguments popularized in the Scottsboro Case, through pamphlets with titles like Lynching Negro Children in Southern Courts. Published by the International Labor Defense (ILD), the communist legal aid organization that defended the Scottsboro Boys and later attempted to represent Peterson, the pamphlet typified a structural critique of Jim Crow as irredeemably violent and repressive. The ILD fought legal lynchings in the courts; its supporters—numbering several thousand in Alabama alone by the early 1930s—argued that the real fight was in the streets. Only "mass protest" would save those convicted, pamphlet author Joseph North argued, and moderates who counseled "faith in the lynch loving courts in Alabama and the South" were complicit in "hand[ing] them over to the executioner."¹Joseph North, Lynching Negro Children in Southern Courts (New York: International Labor Defense, 1931).

The ILD aimed these barbs at its primary rival, the National Association for the Advancement of Colored People (NAACP), which had attempted unsuccessfully to wrest control of the Scottsboro Boys' legal defense from the radicals. That "wake-up call," Morrison notes, compelled the NAACP to intervene more quickly on Peterson's behalf (88). She characterizes the case as a moment of truth for the organization, which had struggled to regain its footing and credibility as more radical groups mobilized in response to economic crisis and white supremacist repression. The NAACP's new leader, Walter Francis White, had completed dozens of daring undercover lynching investigations, but he balked at any cooperation or association with communists on "legal lynching" cases. Nevertheless, Morrison emphasizes the NAACP's strategic flexibility and increasing emphasis on legal advocacy. Charles Hamilton Houston, the Howard University Law School dean who would become the NAACP's first special counsel in 1935, traveled to Birmingham to interview Peterson's wife, Henrietta (his notes from that encounter provided the source base for one of Morrison's most gripping passages), and advocated for the NAACP to expand its legal defense work.

Murder on Shades Mountain illuminates how the paths of some of the most significant figures and organizations in the black freedom struggle ran through Birmingham in the weeks and months after Peterson's arrest. Of course, the connections between mob violence and "legal" lynching run deeper than this slim volume conveys. While the antipathy between the NAACP and ILD infused both the Scottsboro and Peterson campaigns, the notion that racial violence represented only the most brutal expression of an oppressive system was not limited to radical organizations. "Lynching and mob violence are only methods of economic repression," the NAACP's William Pickens argued in 1921. "To attack lynching without attacking this system is like trying to be rid of the phenomena of smoke and heat without disturbing the basic fire."²William Pickens, Lynching and Debt Slavery (New York: American Civil Liberties Union, 1921). While the NAACP attempted to cooperate with southern white officials willing to speak out against lynching, including Alabama ex-governor Emmet O'Neal, they understood that such officials frequently talked down mob violence by doubling down on state-sanctioned execution. For these "law and order" officials, capital punishment offered reassurance to anxious whites that the state would dispose of black aggressors—real or imagined—without inviting negative publicity or outside scrutiny.

Peterson's death sentence offered no panacea to the Depression-era mob mentality. From the manhunt, roundups, and brutal interrogations that preceded Peterson's arrest to Dent Williams's assassination attempt on his sisters' accused attacker, the lynching spirit hovered over the case. While Peterson languished in prison, police in nearby Tuscaloosa handed over black teenagers to a lynch mob in the summer of 1933. Morrison's account reminds us that whatever divisions separated black activists, the campaign against lynching and related abuses remained a tactical and legal imperative. White reformers and civil rights activists argued over the criminal definition of lynching and the liability of local and state officials who failed to prevent it, while largely eschewing the language of "legal lynching." Even as the number of documented cases declined during the 1930s, the NAACP reported in 1940 that lynching had not disappeared but gone "underground," and warned that these secretive killings relied more than ever on the collusion of local officials.³Lynching Goes Underground: A Report on a New Technique (New York: National Association for the Advancement of Colored People, 1940), 7.

The same year that the NAACP warned that lynching had entered "a new and altogether dangerous phase," the legal lynching of Peterson ran its course.⁴Lynching Goes Underground: A Report on a New Technique, 7. Six years after Alabama's governor commuted his death sentence, Peterson died in the state prison infirmary from complications related to tuberculosis. Morrison describes the Peterson case as an "incomplete victory"—both in its attempt to save the man's life and in its broader challenge to white supremacy (192). Murder on Shades Mountain does not expend many pages tracing the links between this case and the more familiar Birmingham stories of the civil rights era, sparing readers of metaphors about the roots and seeds of movements to come. However, Morrison makes a point worth repeating—that "the 1930s are rife with historical antecedents to the uprisings, protests, and campaigns manifest in the 1950s and 1960s, which continues today." Despite the autobiographical bookends, in which Morrison reveals her personal connection to Birmingham's white liberal community, she emphasizes that the local movement was "led by black people" (194). Because of the historians Morrison acknowledges, and a few more she does not, we know many of these activists' names. We will never know them all, but thanks to Morrison's vivid rendering of Willie Peterson's life and witness, we know more.

About the Author

Jason Morgan Ward is acting professor of history at Emory University, where he teaches modern United States history. He is the author of Hanging Bridge: Racial Violence and America's Civil Rights Century (New York: Oxford University Press, 2016) and Defending White Democracy: The Making of a Segregationist Movement and the Remaking of Racial Politics, 1936–1965 (Chapel Hill: University of North Carolina Press, 2011).