CHAPTER IV

THE DAY IN COURT

Actually the legal story began long before that morning in Georgia. It started, together with so much else, in the Boas web and the many-sided aberrations which it spawned. Some understanding of its relation to the law was an essential prelude to the final crisis.

Just as no one supposed before the Boas cult became influential that there was any question about innate race differences, so no one in those days suspected the existence of a Negro "right" to integration in our schools. Indeed the fact that such a right did not exist had been well established in the courts.{1} To the proverbial man in the street there seemed no more reason to think that two races as physically different as the White and Negro had a legal right to mixed schooling than there was to suppose men had a legal right to use rest rooms for women. Since nothing in the legal or social climate suggested such a right, the sponsors of the Negro movement,{2} in close alliance with the cult, set themselves the task of suggesting it. The legal department of the NAACP was the practical instrument, using the law journals as well as the courts as "educational forums for molding opinion."{3}

The first task was to discredit the biological facts, and for this no better vehicle could have been asked than the rising dogmas of a "sociology" rooted in the Boas fantasy. As one writer expressed it in 1945, "the trend of racial theory . . . has been away

1. Plessy vs. Ferguson, 163 U.S. 537 (1896). See also Cumming vs. Board of Education, 175 U.S. 528 (1899); Berea College vs. Kentucky, 211 U.S. 45 (1908); Gong Lum vs. Rice, 275 U.S. 78 (1927).

2. The Negro "movement," as distinguished from what is now so often called a "revolution," of course began much earlier. The NAACP had started its work in 1909.

3. Clement E. Vose, "NAACP Strategy in the Covenant Cases," 1955, Western Reserve Law Review, Vol. VI, p. 111.

from physical concepts and biological processes, through cultural analysis [the Boas technique], and into a sociological and social-psychological study of social interrelations."{4}

No effort was spared to indoctrinate the Supreme Court by a barrage of articles in law reviews and sociological journals based on this "trend". Chief Justice Charles Evans Hughes had once remarked that "in confronting any serious problem, a wide-awake and careful judge will at once look to see if the subject has been discussed or the authorities collated and analyzed, in a good law periodical," and the NAACP saw to it that the new seed was widely sown in such sources.{5}

Much of the preliminary work had been done prior to 1954. For example, in the Covenant Cases (1948) dealing with racial restrictions in real estate agreements,{6} certain of the lower courts had become so surfeited with environmental briefs by amicus curiae that in one instance a court of appeals remarked:

"We well recognize that vociferous minorities of our citizens, instigated by politicians, not statesmen, clamor for judicial denial of public rights under the guise of public welfare . . .; but, the courts ought to be and are ever mindful of that basic thought which underlies representative democracy, 'Give all power to the many and they will oppress the few, give all power to the few and they will oppress the many . . .' [A] reservoir of protection is to be found in our guaranty of constitutional rights, per example, the right to private contract; and in the hesitancy of the courts to be swayed by that which is seemingly popular for the moment, but which finds little or no sound reason or precedent, either in law or equity."{7}

Naturally the NAACP did not permit such language to dampen its zeal, and the pressure arranged and encouraged by it continued

4. E. B. Reuter, "Racial Theory," 1945, 50 American Journal of Sociology, p. 456.

5. For a full discussion of this strategy, with citations, see Vose, op. cit., 101-145, especially the section "Flooding the Law Reviews," pp. 130-133.

6. Shelly vs. Kraemer, McGhee vs. Sipes, 334 U.S. 1; Hurd vs. Hodge, Uricolo vs. Hodge, 334 U.S. 24.

7. Perkins vs. Trustees of Monroe Ave. Church, 70 N.E. 2nd, 487, 492. (Ohio Appeals 1947).

unabated. At one point a poll was taken of organizations that planned to file amicus curiae briefs to the Supreme Court in the Covenant Cases and the following responded: the American Jewish Congress, American Jewish Committee, Protestant Council of New York City, Japanese American Citizens' League, Anti-Defamation League (Jewish), American Civil Liberties Union, Negro Elks, Congress of Industrial Organizations, Anti-Nazi League, Board of Home Missions of the Congregational Church, National Lawyers Guild, American Indian Association and the American Indian Council. Eventually a total of nineteen briefs were filed, and the Department of Justice had agreed to appear on the "open housing" side.

Meanwhile full-length articles were published in The Annals, Yale Law Journal, University of Chicago Law Review, National Bar Journal, Architectural Forum, National Lawyers Guild Review, Journal of Land and Public Utility Economics, and Survey Graphic.{8} Needless to say, the vast majority of both briefs and articles were saturated with the Boas dogma. Not one word unmasking the scientific fallacy beneath the whole façade could be found. Apparently the Whites as well as the Negroes were already bemused.

On May 3, 1948, a unanimous Supreme Court decided in favor of the Negroes. The opinion did not mention a single sociological article. But no one could deny that the work of the NAACP and its cluster of associated organizations had been decisive. The foundation for the desegregation cases had been laid. The ghost of Boas sat on the Supreme Court, put there by "vociferous minorities" with only the forces of ignorance and intellectual inertia{9} in opposition.

The manner in which the ghost now entered the classic Brown{10} decision desegregating the public schools was somewhat oblique. When John W. Davis, counsel for the South in that case and a for-

8. Vose, op. cit., 132-3, gives titles and citations for these and other articles.

9. Ignorant and inert in the sense of totally unaware of the scientific facts and the history of their distortion.

10. Brown vs. Board of Education of Topeka, 347 U.S. 482 (1954).

mer Democratic candidate for the Presidency, learned that the Supreme Court had based its decision at least in part on sociological material which had not been introduced in evidence, he was so stunned it was said to have killed him.{11} Courts never rested decisions on materials which had not been offered in evidence at the trial because, as to those materials, both sides had not had an opportunity to be heard. The only exception to this rule were facts of common knowledge, such, for example, as the fact that the sun rises in the east. Then a court could take "judicial notice" of those facts. Apparently the Supreme Court now felt it could take judicial notice of Boas—in other words Boas had achieved the status of the rising sun.

But only obliquely. In the Covenant Cases there had been no reference at all to sociological articles. In the Brown case, in a footnote to its opinion, the Supreme Court referred to various sociological tracts and at the end of the note added, "see generally Myrdal, An American Dilemma." This reference, however oblique, was an effective way of saying "see generally Boas and his disciples" for Myrdal's American Dilemma{12} was Boas from beginning to end.

For instance, a characteristic passage from Myrdal, a Swedish socialist, read: "The last two or three decades have seen a veritable revolution in scientific thought on the racial characteristics of the Negro. . . . By inventing and applying ingenious specialized research methods, the popular race dogma [that races are not by nature equal in their capacity for civilization] is being victoriously pursued into every corner and effectively exposed as fallacious or at least unsubstantiated. . . . It is now becoming difficult for even popular writers to express other views than the ones of racial equalitarianism and still retain intellectual respect."{13}

Neither John W. Davis, nor anyone else for the South, was given the chance to answer such statements. Clearly enough, Myrdal's arguments could have been exploded by any informed

11. A mutual friend to the author personally.

12. Gunnar Myrdal, An American Dilemma, The Negro Problem and Modern Democracy, 1944, New York.

13. Myrdal, op. cit., pp. 91-96.

cross-examination had he been called to the witness stand.{14} Not only could Myrdal have been answered by evidence which existed in 1954; as of 1963 he could be discredited completely. I had already considered the reply to such of his statements as "the social sciences in America . . . have gone through a conspicuous development, increasingly giving the preponderance to environment instead of to hereditary." Freeman, Holzinger, Erlenmeyer-Kimling, Jarvik, Burt, Howard, Gates and their colleagues would have something to say on that score.{15}

But there was another, more serious aspect to the Brown case. The Supreme Court reached its decision bathed in the ambiance of Boas but with specific reference to the testimony of the Negroes' chief witness, Kenneth B. Clark, himself a Negro. The Court in its opinion leaned heavily upon the damage suffered by Negro children from segregation, as Clark conceived it—a damage which the Court said might "affect their hearts and minds in a way unlikely ever to be undone."

These words from the Court were based on evidence Clark presented{16} which consisted of a series of tests done on Negro children with dolls. Clark had shown Negro and White dolls to Negro children in a segregated school and had asked them, first, "which doll do you prefer?" and next, "which doll looks like you?" There had been some pitiful moments when, after choosing a White doll as a preference, a child was asked the second question and burst into "uncontrollable tears." A staff member of the NAACP later publicly remarked that "on the surface at least, Thurgood's [referring to Clark's] black and white dolls won the case, not the historians."{17}

But Clark's summation of his evidence was not confined to pathos. He stated that ten (later in the testimony, nine) out of

14. See for example Myrdal's attempt to discredit brain weight as a racial factor, op. cit., p. 91n, by references to Mall. Compare Supra, p. 52.

15. Supra, p. 58n.

16. In Briggs vs. Elliott, 98 F. Supp. 529 (E.D.S.C. 1951), one of the cases consolidated for argument before the Court that resulted in the Brown decision.

17. Speech by Alfred H. Kelly, infra, p. 73.

sixteen Negro children had picked the White doll as the one that "looked like you." From this he concluded that "these children . . . have been definitely harmed in the development of their personalities . . . My opinion is that a fundamental effect of segregation is basic confusion in the individuals and their concept about themselves, conflicting in their self images."

Clark then proceeded to tell the Supreme Court that he had made previous tests "consistent" with those he entered in the record. Whether intentional or not, this was the reverse of the fact. His previous tests were not only not "consistent", they actually contradicted his testimony before the Court.

They had been made on 134 Negro children in segregated schools in Arkansas and 119 Negro children in unsegregated nursery and public schools in Springfield, Mass. The black and white dolls had been presented and the same questions asked. Clark's own conclusions on the results had been that ". . . the southern children in segregated schools are less pronounced in their preference for the white doll, compared to the northern [unsegregated] children's definite preference for this doll. Although still in a minority, a higher percentage of southern children, compared to northern, prefer to play with the colored doll or think that it is a 'nice' doll."{18}

That is to say, Clark's previous research, done on a much larger number of Negro children, indicated that any personality damage which might be disclosed by his doll tests was not only not caused by segregation, it was actually reduced by it. Clark had put on a fantastic performance. In the measured words of a federal judge

18. Kenneth B. and Mamie Clark, "Racial Identification and Preference in Negro children," 1952, Readings in Social Psychology, Newcomb and Hartley, eds., New York. For a discussion of Clark's self-contradictions in his later attempts to explain his performance in Brown, see the Scientific Statement submitted by Dr. Ernest van den Haag, professor of Social Philosophy at New York University, to the Senate Judiciary Committee in connection with Senate Bill No. 1731 (Submitted Feb. 12, 1964.) See also, generally, Ross and van de Haag, The Fabric of Society, 1957,'New York, pp. 163-66; Ernest van den Haag, "Social Science Testimony in the Desegregation Cases—a Reply to Professor Kenneth Clark;" 1960, Villanova Law Review, Vol. 6, No. 1, pp. 69-79.

in a subsequent case, "I am forced to find that the principal evidence of injury relied on by the Supreme Court in Brown was unworthy of belief."{19}

Thus, apart from the general deception inherent in the propaganda of the Boas cult, the Court was subjected to specific deception from its chief witness on a specific and decisive point. It appeared that "segregation with the sanction of the law" in fact abated the sense of inferiority which the Court imagined it created, although nothing could, in the nature of things, change the limitations themselves—the fundamental point on which the Court had been deceived."{20}

The whole situation brought to mind the confession seven years later of Dr. Alfred H. Kelly, the NAACP staff member already quoted, who stressed the importance of the dolls but whose function had been to arrange evidence on the historical question of whether or not Congress intended the 14th Amendment to require the desegregation of schools in the District of Columbia.{21} Dr. Kelly, Professor of History at Wayne State University, spoke as follows in an address to the annual meeting of the American Historical Association on December 28, 1961: "The problem we faced was not the historian's discovery of the truth, the whole truth and nothing but the truth; the problem instead was the formulation of an adequate gloss on the fateful events of 1866 sufficient to convince the Court that we had something of a historical case. . . . It is not that we were engaged in formulating lies; there was nothing as crude and naive as that. But we were using facts, emphasizing facts, bearing down on facts, sliding off facts, quietly ignoring facts and above all interpreting facts in a way to do what [Thurgood] Marshall said we had to do—'get by those boys down

19. Evers vs. Jackscon School District, 232 Fed. Supp. 241 (S.C. Miss. 1964).

20. For a further discussion of the relationship of the scientific evidence to the Court's decision, see infra, pp. 141-2.

21. That Congress did not intend any such requirement in the District, and consequently did not intend it in the states, would seem sufficiently clear from the fact that it did not desegregate the District schools. As to the legality of the 14th Amendment itself, see Race and Reason, pp. 97-98.

there!' "{22} While this might be permitted to the average partisan in a law case, it was not precisely the attitude expected of a "scientist." Kenneth Clark, moreover, had attempted something more than a sliding off the facts in his own effort to "get by the boys".

Altogether the background of the Brown decision seemed so redolent of fallacy and deceit as to be entirely unacceptable in a nation dedicated to the honorable traditions of our Anglo-American jurisprudence. And to those of us connected with the National Putnam Letters Committee it appeared high time something was done about it.

Consequently we were gratified to learn in the spring of 1963 that the parents of certain White children in the Savannah-Chatham County region of Georgia were preparing to intervene in a court action involving the desegregation of their schools. The Negroes, represented by the NAACP, were the plaintiffs and were demanding desegregation, the Savannah-Chatham Board of Education were the defendants, and the White children were to appear as intervenors.

This case, to be called Stell vs. the Savannah Board of Education,{23} seemed to offer an opportunity to correct the situation at last. Now it would be possible to expose the fallacies and supply the deficiencies in Brown. The proponents of the environmental sociology, the cultural anthropologists, the Montagus, the Klinebergs, and the Clarks could be cross-examined under oath on the witness stand. So could the Garretts and the Georges. Finally, adequate press coverage would permit a beginning in the education of the public about the facts.

Therefore, on May 8, 1963, the day before the start of the trial, all of us who were interested in the White children's side,

22. Later in this speech the following curious passage occurs: "A good Freudian psychologist, I know, will be hugging himself with sardonic joy at this point, observing with self-satisfied glee that academic man obviously has as great a capacity for manipulating reality by myth in order to preserve his personal integrity [sic] as has any ordinary day laborer—perhaps an even greater capacity because of his superior mythmaking abilities. I do not know." One wonders what Kelly's definition of personal integrity is.

23. 220 Fed. Supp. 667 (S.D. Ga. 1963). Cited hereafter as Stell.

and in the larger issues involved, proceeded to Brunswick, Georgia,{24} with high hopes. Carter Pittman, George Leonard, Charles Bloch and Walter Cowart were the attorneys for these children and established themselves at a motel where they were joined by Drs. Garrett, George, Osborne, Armstrong and van den Haag as scientific witnesses. It had been decided that it would be best not to embarrass Dr. Coon by asking him to enter the controversy; his position as dean of the world's physical anthropologists deserved detachment, but material from The Origin of Races would be sponsored by Dr. George and therefore subject to cross-examination by the Negroes. I joined the group on the afternoon of the 8th as an observer.

Attorneys for the Negroes were at another hotel, but we were advised that they would include both Jack Greenberg and Constance Motley, a mulatto, each of whom had played a part as counsel for the NAACP in Brown.{25} We did not know as yet that they would have no scientific witnesses. Had I suspected this, I might have felt some preliminary apprehension. I might have wondered if it could be possible that, having succeeded in shutting out all the vital evidence in Brown, the Negroes expected to keep it shut out now. Such a policy would require a surpassing confidence in the partisanship of the Supreme Court and of the trial and appellate judges. It would have to assume that ways could be found to avoid reopening a previous decision reached on the basis of deception and concealment when the deception was unmasked and the truth revealed. It would also involve a confession on the part of the Negroes that cross-examination of the hierarchy under oath was something they dared not face. Fortunately for our rest that night, none of us foresaw the future.

May 9th dawned clear and warm—a pleasant, early-summer day in the Sea Island country. The public benches in the courtroom were occupied early by both Whites and Negroes but the

24. The first two days of the trial, May 9 and 10, were held at Brunswick, the third day, May 13, at Savannah.

25. Greenberg had now become General Counsel for the NAACP Legal Defense Fund. He did not appear at the trial.

press was scantily represented. I did not remember seeing any correspondent for the New York Times. The swearing-in was soon over, and the morning spent in the examination and cross-examination of the Superintendent of Schools regarding the fact of segregation in Savannah-Chatham County and the problems that would arise if desegregation occurred. Not until mid-afternoon did attorneys for the White children open their case with the calling of Dr. R. T. Osborne as their first scientific witness.

Dr. Osborne, Professor of Psychology and Director of the Student Guidance Center at the University of Georgia, established his qualifications as an expert in the field of educational testing and personality measurement. Then he proceeded to disclose the results of studies he had made for the Superintendent in Chatham County:

Q. [By Mr. Leonard] "What conclusions did you come to in this study?"

A. "At all levels in the educational program there are differences in achievement between the white and negro pupils. The differences are noticeable at the pre-school level and persist throughout the entire program in the Chatham County Schools through the 12th grade."

Q. "Are the differences of a particular type only or do they vary in patterns or according to schools?"

A. "The differences are found in reading, achievement, mathematics, mental maturity."{26}

On cross-examination Mrs. Motley, for the NAACP, confined herself to raising the usual point as to the existence of overlap, which Dr. Osborne did not deny. Mrs. Motley then suggested that since there was overlap "these differences you are talking about don't have anything to do with race," to which Osborne may be forgiven for answering, "I don't understand the question."

Q. [By Mrs. Motley] "It [the difference] may be the result of the inferior education in the Negro schools or the Negro environment, right.

26. For a full discussion of these tests, including graphs, see "Intervenors' Exhibit 1" to Transcript of Proceedings, Stell.

A. "Either one. That's right."

Q. "Then it can't be attributed wholly to race, by your study, right?"

A. "Not wholly to race."

All this was a somewhat elementary mixture of the fact of overlap and the relative influence of heredity and environment which did not affect the point on which Osborne's evidence bore, and Osborne shortly thereafter was excused.

Counsel for the White children next placed Dr. Garrett on the stand but before he could do more than qualify himself Mrs. Motley confronted the Court with a threat intended to cut off further evidence. This was the tactic we might have expected—the move to shut out the scientific facts at the source, to prevent their even getting into the trial record, or reaching the public, whatever else might happen later.

Mrs. Motley: "Here we go, your Honor. We are going over the same thing."

The Court: "I will make the same ruling I did on the others. I am going to hear all of this evidence and you can make your objections when we get through with the evidence and then I will hear both sides . . . ."

Mrs. Motley: "Your Honor, I think that what the plaintiffs [Negroes] are going to have to do is to go to the Fifth Circuit, or some other court, and get a Writ of Prohibition, or something, against this kind of testimony."

The Court: "I have already ruled on that. I said that I was going to hear the testimony, and then after I hear it, then you raise your objections . . . ."

Mrs. Motley: "It is delaying an adjudication of this case, your Honor."

The Court: "The adjudication of the case will be delivered promptly, I will assure you of that, because Judge Tuttle [presiding judge of the Fifth Circuit] has ordered me to file it by Monday, but if I can't file it by Monday I am sure he will understand that I am still in the trial of the case."

Mrs. Motley: "Well, he has already ruled, your Honor, that this kind of testimony is not going to be considered in any court. He has tried to make that plain."

The Court: "Well, he is just one Judge, you know."

Mrs. Motley: "Well, I am as sure as I am standing here that the United States Supreme Court, after three times ruling that segregation is unconstitutional, is not now going to reverse itself on this man's testimony or any other testimony."

The Court: "Well, let's don't bring it up any more. I have determined that I am going to hear this evidence, and after the evidence is concluded if you want to raise an objection at that time I will hear from you, but I have determined that I am going to hear this evidence. I have stated that three or four times. I am going to hear it. I think it is material."

Mrs. Motley: "Then we would like to make this motion——"

The Court: "——All right."

Mrs. Motley: "The Rules provide, the statute provides that we can take an appeal by a certificate from this Court to the Court of Appeals as to whether this kind of evidence is admissible."

The Court: "No, I am not going to do that. You can take it up in the regular course, if I decide against you. I have not decided against you yet, but if I decide against you, why, you can take it by the regular course, but I am not going to certify to the Court of Appeals of anything."

Mrs. Motley: "Well, the point is we want this question determined before all of this evidence is put into the record."

The Court: "Well, you seem hard to convince, but I am trying to convince you that I am going to hear it, and that's that. So, you may proceed. I don't mean to be discourteous but I said that to start with, that I was going to hear it all. This is an important case. It is a novel case. All right, you may proceed."

Of course, it was plain enough that the one thing Motley dreaded, and what she was beginning to realize might be coming, was a real examination of all the evidence so long evaded and suppressed. It was an understandable fear, disclosed under mounting tension. She subsided for the moment but later in the course of Dr. Garrett's testimony this exchange occurred:

Mrs. Motley: "Well, your Honor, I would like to say this then: Judge Tuttle has said that we can renew our motion on Monday for the appointment of another Judge to hear this case, and on Monday we plan to do that. We don't plan to appear in Savannah on Monday. We plan to file that motion in the Fifth Circuit."

The Court: "That's your privilege. However, I think that is more or less a threat, and let the record show that, but that isn't bothering me a bit. I am going to do what I think is right, and I am sure Judge Tuttle will agree with me that is right."

A statement by the Court later in the proceedings disclosed that Mrs. Motley did apply and was refused.{27} The Fifth Circuit was not prepared to go quite so far so soon.

But to return to the testimony of Dr. Garrett, he proceeded to present on a national scale evidence of the same nature as that offered by Dr. Osborne on a local scale, with special emphasis on those tests which had revealed no appreciable improvement in Negro performance when socio-economic factors were equated. The obvious implication that this made the causes of the difference in performance primarily genetic was again not lost on Mrs. Motley:

Q. [By Mrs. Motley] "Now, why is there such a tremendous difference between the overlap in other parts of the country and Chatham County?"

A. "Well, I can only hazard a guess at that. I think the southern Negro is mostly rural or agricultural. He is not very selective. The selective ones probably have gone north. He is unmixed, generally, and I think a lot of those factors come in."

Q. "So, it doesn't have to do with race, necessarily, does it, just environment?"

A. "I think it has to do with environment. It has to do with race, too."

Q. "Well, what does [intelligence] quotient have to do with race?"

A. "Because the difference is one where the race is concerned, and if you make studies of the performance of the Negro child—it was found in a study of 8,000 children in Chicago not long ago, and they were able to find 103 children, Negro children, with intelligence quotients above 120, that is very bright. Now, they had to look through 8,000 to get them, and in a comparable group of 8,000 white children you would get 800 with I.Q.'s above 120 which, to me, shows that the incidence of high intelligence is about 7-8 to 1."

Q. "What about the 103 Negroes that do?"

A. "80% of them are mixed blood."

Q. "How do you know that?"

A. "They said so. I don't know whether they knew it or not, but that's what they said."

27. Stell Printed Transcript, p. 176.

Q. "Who said it?"

A. "The children, or their parents. It's reported in the report."

Q. "Now, this 2% [overlap] in Savannah, Chatham County, Georgia, would you be in favor of putting them in the white schools?"

A. "No."

Q. "That's what I thought."

A. "Do you know why? You didn't ask me why."

Q. "I think that's obvious."

A. "Because I think they would be miserable and I'm a friend of the children. I don't want to put them in there and hurt them."

Q. Did you ask them whether they would be miserable or not?"

A. "No, and you didn't either."{28}

This completed the Negro cross-examination of Garrett. His testimony had carried the trial into its second day. During the intervening night the usual strenuous conferences and preparations had occurred. No one was sure whether members of the hierarchy were going to appear for the Negroes, but we now began to suspect that they would not—that the NAACP had more confidence in the appellate courts deciding in their favor against all the evidence than they did in the hierarchy surviving cross-examination. It was a contemptuous reliance on an extraordinary coalition.

Early in the proceedings next morning after Dr. Garrett stepped down, George Leonard called to the stand Dr. Clairette Armstrong who had been for two years Professional Chief Psychologist at Bellevue Hospital in New York City. She had run various tests on truancy in the New York schools and testified to the effect of school frustration on runaways. One-third of Negro truants, she had found, were truants by their own admission because of inability to maintain the standard in integrated classes. In cross-examination Mrs. Motley continued her attack:

Q. [By Mrs. Motley] "Well, let me ask you this: Is it your testimony that Negro children in Chatham County, Georgia,

28. For further discussion of the exceptional Negro, see infra, pp. 87, 90-93, 121-3, 125-6.

should not be admitted to schools with white children because Negroes are inherently inferior?"

A. "Well, the results show that they can't keep up with the averages of the Whites, don't they?"

Q. "That's right, but what's the reason for that?"

A. "I am strongly on the organic side. I think it's an innate, intrinsic ability. Of course, if they were brought up in a vacuum, even the bright ones wouldn't succeed either, but in an average school situation the bright ones show their metal as a rule . . . ."

Q. "Do you think the Negroes are innately inferior to whites, is that your testimony?"

A. "There is a spread, of course, from lowest to highest, but the averages, on the averages, the means are different, so that from my own experience, I would say that it is an inferiority."

Q. "And on what do you base your conclusion that this is due to race?"

A. "The mere fact that it occurs in all the literature and all the statistical studies, in all research, and in my own experience."

Q. "Now, have you made any tests yourself which would show conclusively that this is race alone?"

A. "I just said 'yes.' I would say it is race. There is nothing else that you can attribute it to. The study of 400 delinquent boys that I have quoted, 200 black and 200 whites, or 200 Negroes, 200 whites, have shown it right through scholastically, intelligence, and so forth."

Such was the substance of the Negro cross-examination of Dr. Armstrong on that second, decisive morning. She was excused and a few minutes' recess taken. The crowd in the public benches rose to stretch their legs in the corridors.

I paced the corridors, too, with a sense of approaching climax. The next witness would be Dr. George and, to me at least, this was the crux of the case. In the testimony so far, through the psychology witnesses, everything had been done that could be done in the nature of that subject to refute the Boas dogma. Dr. Garrett had even invaded the field of genetics, citing the Newman-Holzinger study and the study of Sir Cyril Burt with their evidence on the preponderant influence of heredity over environment. But no amount of testimony from these sources could equal in finality an examination of anatomical structure. This was the substance of inheritance, a disclosure of just what it was the Negro inherited.

Obviously Mrs. Motley must realize this, and I anticipated that now, if ever, she would be on the warpath—except for one thing. Our case was ironclad, and if she touched it the strength of our position could only be enhanced. This area did not lend itself to any possible conflict of interpretation. Nor was the court a forum for slippery evasions and diversions. The chicanery of the hierarchy would be useless here; so would the undocumented assertions, and the political bombast. All that really remained for Motley now was silence and an implicit faith in her unique alliance.

At last the recess ended and Dr. George took the stand. At the table for counsel for the Negroes, I sensed a certain restlessness. George identified himself and established his qualifications without interruption. Motley was holding her fire.

Next George proceeded, step by step, to survey the relationship between brain weight, body size and intelligence throughout the animal kingdom. He discussed the importance of the prefrontal areas of the brain—"in the porpoise and that group of aquatic mammals the evolutionary increase of brain size is in the sensory lobes, not in the frontal lobes."

Then, still without interruption, he examined the authorities on the function of the pre-frontal areas in man:

Q. [By Mr. Pittman] "What are the higher mental processes, so regarded among scientists?"

A. "Well, would you let me read?"

Q. "Yes, sir, anything with which you agree."

A. "Well, I read recently through my interest in this matter to see what the latest studies by competent neurologists had to say about this. This is a statement from the textbook, 'The Neuro-anatomical Basis for Clinical Neurology,' published in 1961, by Talmadge Peele, who is Neurologist at Duke Medical School. It is the pre-frontal portion of the frontal lobes which are primarily concerned with these higher mental activities according to the evidence that we have. He says: 'The pre-frontal portion of the frontal lobes, while contributing to the elaborateness of movement, bestows upon an individual an ability to plan and to look ahead, a capacity for perceiving a stimulus or problem, not only as an event of the present, but in relation to past experience and anticipation of future possibilities and the ability to maintain a steadfastness of purpose in the face of distractions and an ability to adjust himself agreeably to his neighbors and to control his emotional reactions.' Now, there is Peele's statement, which answers your question and I accept it as mine."

Next George surveyed the findings of Vint and others on the relative weight and structure of White and Negro brains, amid total silence. Perhaps I should say there was silence except for one sound. I was distressed to realize that Constance Motley was weeping audibly.

Q. "Doctor, I will ask you whether or not these differences in brain structures are inherited or are they the result of environment?"

A. "Well, in my mind, there is no doubt that they are inherited."

Q. "Can those differences, in your opinion, be modified by environment?"

A. "To a minimal degree."

Q. "Over what period of time?"

A. "Well, I think that it's possible in the course of a lifetime. Our experiences, of course, affect our brains to some extent. But to increase the inherited basis would require, perhaps, a hundred thousand years to allow time for the concurrences of mutations and the survival of beneficial mutations. We all have brains which we subject to experience and to education and it is reasonable to suppose that education and experience influence to some extent the structures of the brain, but there is no evidence that it increases its mass in any significant degree."

Pittman and George were proceeding methodically through the evidence in spite of the tension in the courtroom. They covered the principal authorities, including Coon.

Q. "Now, Doctor, are you familiar with the writings, or some of the writings, of Dr. Carleton Coon?"

A. "Yes, I have read his Origin of Races with a great interest . . ."

Q. "If I may, Doctor, I will read to you an excerpt from pages 115 and 116 . . . and after reading it I will ask you if you agree with him."

A. "All right."

Q. " 'Human beings also vary in temperament. It is a common observation among anthropologists who have worked in many parts of the world in intimate contact with people of differences—people of different races—that racial differences in temperament also exist and can be predicted. Races also differ in the size and weight of endocrine glands, and in the substances carried in the urine. The study of these variations has just begun, and many readers who believe in the current dogma that all behavioral differences are due to man's unique capacity for learning will find this unpalatable, but the burden of proof is on them. If such differences are not related to the endocrine system, then man is indeed a unique animal.' Do you agree with that statement, Doctor?"

A. "I think that is very fundamentally sound, yes."

There could be no turning back now; the examination continued ruthlessly, methodically, with a cumulative impact.

Q. "Doctor, I would like to call your attention to a statement by Dr. James H. Sequeira, which appeared in the March 1932 issue of The British Medical Journal, and ask if you agree with that? . . . Are you familiar with Dr. Sequeira's writing?"

A. "Yes, I have read it in the Journal."

Q. "I will read, now, a portion: 'The average cranial capacity of the European is 1,490 c.cm, while that of the East African is only 1,310 c.cm. The average weight of the brains is set out in the following table:

Caucasoid (meaning white) 1,380 grams.
East African 1,280 grams.
Negroid 1,240 grams.
Australoid 1,180 grams.

"Do you agree with those findings by Dr. Sequeira?"

A. "Yes, I do, give or take a few grams here and there, they have been confirmed by many other studies."

Q. "In that same article, Doctor, . . . I will read this to you; Sequeira says that, according to his findings and that of Dr. Vint's observations, the frontal cortex may be summarized as follows:

'The infragranular layer, East African 106. European 100. The granular layer, East African, 98.7. European 100. The supragranular layer East Africa 92. European 100.' Does that, Doctor, in your opinion, correctly state the difference in measurements of the frontal cortex between the East African and the European according to your studies?"

A. "That is the correct statement that Vint made, and I can only accept his statement, and I have no reason to consider it wrong."{29}

Q. "I continue one further paragraph: 'The infra-granular layer is held to be the seat of the representation—the physical basis—of the animal instincts, reproduction, self-preservation, etc., the granular layer that of the perception of sensations; while the supra-granular layer is concerned with will, intellect, control, etc. The two latter may be looked upon as the physical basis of mind. In the East African, therefore, animal instincts are provided with 6 per cent more physical basis than in the European, but the physical basis of "mind" shows a preponderance in favor of the European of 9.3 per cent.' Now, do you agree with that statement?"

A. "Yes, I do."

So it went on through all the biological evidence. Motley controlled herself in time, but there were no challenges whatever from the NAACP. Nor was one word of cross-examination attempted. At the conclusion of Dr. George's testimony the Transcript read:

Mr. Pittman: "That's all, Doctor."

The Court: "Any questions?"

Mrs. Motley: "No questions, your Honor."

The Court: "Any questions from the Savannah people [the School Board]?"

Mr. Leverett: "No."

The Court: "All right, Doctor. You may step down . . ."

Thus into the record under oath, unchallenged and uncontradicted either by counsel or by opposing witnesses, went the heart of the Stell case—damning in its indictment of the scien-

29. Dr. George has submitted to me the following footnote to this answer: "The data in the question were evidently taken from Sequeira's report of Vint's preliminary paper (Kenya and East African Medical Journal). In essential facts these are in accord with data given in Vint's definitive paper (Vint, 1934, Journal of Anatomy 68:216), with one exception: in that definitive paper Vint reports the infra-granular as being thicker in the East African than in the European only in the visuosensory area of the cortex."

tific hierarchy, a stripping-off of decades of deceit and chicanery at the core of public policy, an immediate levy upon the honor of the higher courts.

Anything further in the courtroom now could only be anti-climax.