CHAPTER V

DECISIONS—ON AND OFF THE RECORD

Anti-climax though it seemed to me who had been preoccupied with the central issue, what followed at Brunswick nevertheless had a vital bearing on two collateral points which were constantly arising in the Negro controversy.

The White children's last witness was Dr. Ernest van den Haag, the New York University professor who had unmasked Kenneth Clark. Following Dr. George on the afternoon of May 10 he testified at length concerning the effect upon the exceptional Negro of transfer to integrated schools.

This, the overlap problem, was one of the second lines of defense to which the liberal habitually retreated after defeat on the biological issues, and van den Haag dealt with it exhaustively. He developed the subject of group identification from a psychological standpoint, remarking that "although . . . a superior pupil might possibly identify with other superior pupils of a different group, as a matter of fact, in my experience, the pupil retains his identification with his own group. This identification may lead to certain psychological consequences . . . ."

The point involved, of course, was the integrationists' argument that segregation, whatever might be said for it in the case of the average Negro, was unfair to the superior Negro—that he, at any rate, was entitled to schooling among his White peers. Van den Haag offered material concerning the effect upon all Negroes of forced disassociation from then own group and forced integration with a basically different group, a subject which was to be further developed in companion cases to Stell.{1}

Again no significant cross-examination occurred. But in the course of what little there was, a point arose which brought the

1. See Brown vs. School District No. 20, 226 Fed. Supp. 819 (E.D.S.C. 1963), Evers vs. Jackson School District, 232 Fed. Supp. 241 (S.D. Miss., 1964); also, Opinion of the Court in Stell, infra, pp. 90-91. Also infra, pp. 121-2.

Stell case into sharp focus. Several times during the trial, counsel for the Negroes had fallen back on what I might call a subdivision of the undocumented-assertion technique of the hierarchy. It consisted in asking: "Isn't yours the minority view?" It was a form of the one-man-one-vote concept gone berserk and it fitted well into socialism's regimentation philosophy. So I was gratified when van den Haag, too, faced the question and answered it as follows:

Q. "Well, let me ask you this, Doctor: Does your position, as you have testified to here today, does that reflect the majority opinion or the minority opinion?

A. " . . . If you will permit me, I will have to tell you that I have not counted heads on the matter, and the reason I have not counted heads is that it has never appeared to me that scientific questions are decided by a vote, and I know of no one who would today agree to that.

"Let me suggest that when Galileo decided that the earth moves around the sun the majority opinion at that time decided or insisted that the sun moves around the earth, but Galileo was right, though he was a minority of one, and so should I find myself in this minority of one I would not regret it. I have not established what the size of the group is that shares my views or what the size of the group is that holds different views . . . . I don't know whether they amount to the majority, but certainly they include a great number of distinguished men.

"However, their behavior and my personal contact with them has not convinced me that they have taken their positions on the basis of what they themselves would normally consider as evidence [emphasis added] and it has also convinced me that they feel sort of a moral duty, right or wrong, to take this position, and feel apparently that to take this position that they are considerably morally better and justifies ignoring and sometimes tailoring scientific evidence."

The matter could hardly have been more tactfully stated. In these words van den Haag drew a thumbnail sketch of a worldwide condition. And he confirmed a prescription for the hypnosis of millions: Indoctrinate a controlling group of scientists in a politically oriented, environmentalist dogma over a period of two generations; make a moral issue out of something immoral; persecute and suppress any dissenters; infiltrate the mass media, and finally persuade the courts by introducing only falsified evidence. Thereafter rely solely, in those courts, on the "majority" view. Never again permit the truth to come to light if you can help it. Thus before my eyes at this trial had unrolled the pattern I had found everywhere else in our national life in almost exact duplication.

The testimony on May 10th virtually ended the trial. There were a few remaining technicalities which were handled at a sitting of the Court at Savannah on May 13, but I did not remain for these. I went home to await the decision.

On June 28 the Court announced its opinion and judgment, together with certain findings, the chief of which were:

"5. The psychometric test results have conclusively demonstrated that the differences between white and negro students in learning capabilities and school performance vary in increasing degree from the pre-school period through the completion of high school. The differences between white and negro students were consistent on all types of tests and increased with chronological age at a predictable and constant rate. The negro overlap of the median white scores dropped from approximately 15 % in the lowest grades to 1-2 % in the highest and indicated that the negro group reached an educational plateau as much as four years before the white group. When a special control group was selected for identity of age and intelligence quotient in the lower grades, the negro students lagged by two to four years when the entire group reached the 12th grade.

"6. The tests covered general intelligence, reading and arithmetic achievement, and mental maturity. On the last, the white average was 22 points above the negro average. The achievement tests showed major ability pattern differences. On reading comprehension and arithmetic fundamentals there was virtually no overlap between the two groups . . . .

"8. All the evidence before the Court was to the effect that the differences in tests results between the white and negro students is attributable in large part to hereditary factors, predictably resulting from a difference in the races. The evidence establishes and the Court so finds that of the twenty-point difference in maturity test results between negro and white students in Savannah-Chatham County a negligible portion can be attributed to environmental factors. Furthermore no evidence whatsoever was offered to this Court to show that racial integration of the schools could reduce these differences. Substantially all the difference between these two groups of children is inherent in the individuals and must be dealt with by the defendants [the School Board] as an unchangeable factor in programming the schools for the best educational results."

So much for the basic facts. Then the Court turned to a related matter:

"11. The congregation of two substantial and identifiable groups in a single classroom, under circumstances of distinct group identification and varying abilities would lead to conflict impairing the educational process. It is essential for an individual to identify himself with a reference group for healthy personality development. Physical and psychological differences are the common basis of group identification, indeed they compel such self-identification. To increase this divisive tendency, it has been established without contradiction, that selective association is a universal human trait; that physically observable racial differences form the basis for preferential association and that patterns of racial preference are formed and firmly established at a preschool age.

"12. The effects of intergroup association are reasonably predictable on the basis of that branch of psychology known as social dynamics. In the case of two identifiable groups in the same classroom, intergroup tensions and conflicts result. These become substantial when the groups have a high identification index in a situation where the difference between them is as great as that existing between white and negro children in the Savannah-Chatham County schools."

Finally the Court came to the question of the exceptional Negro:

"15. Throughout the trial, counsel for plaintiffs emphasized the conceded ability of certain superior negro children to meet the progress norms of the white classes and implied that at least selective transfers of such students to white schools would not cause injury similar to the effects of group integration. The Court finds that such selective integration would cause even greater psychological harm to the individual negro children involved and to the balance of their group.

"16. Negro children so transferred would not only lose their right of achievement in their own group but would move to a class where they would be inescapably conscious of total social rejection by the dominant group. Such children must try to identify themselves with the white children while unable to free themselves from continuing identification with other negro children. Additionally, the children involved, while able to maintain the rate of the white class at first, would, according to all of the test results, thereafter tend to fall further back in each succeeding term.

"17. The effects on the remaining negro children would be even more injurious. The loss of the better group members would greatly increase any existing sense of inferiority. The competitive drive to educational accomplishment for those not transferred would be taken away. The Court finds that selective integration would cause substantial and irremovable psychological injury both to the individual transferee and to other negro children."

In view of these and other findings, the Court not unreasonably rendered judgment in favor of the White children; perhaps it would be more accurate to say in favor of all the children. The injunction prayed for by the NAACP was denied and their complaint dismissed.

I could also add parenthetically that no meaningful discussion of the case occurred in any newspaper of national influence.{2} The Opinion and Judgment dropped into a deep well of silence.

So now nothing remained but to await the NAACP appeal to the Fifth Circuit Court of Appeals. A hearing before that court was held on April 9, 1964, in Atlanta. I was not present, but some who were informed me that the smouldering anger of certain of the judges was ill-concealed. I could guess that it was the kind of anger often characteristic of men faced with a moral challenge beyond their capacity to meet.

Then on June 18 came their decision. It reversed the trial court, ignoring the evidence entirely. First they said: "We reiterate that no inferior federal court may refrain from acting as required by that decision [the decision of the Supreme Court in Brown]

2. One magazine, U.S. News and World Report, on May 27, 1963, carried a brief commentary.

even if such a court should conclude that the Supreme Court erred either as to its facts or as to the law." Thus they transferred all responsibility concerning the evidence to the Supreme Court. But they could not resist the following characteristic aside on the subject of overlap:

"The real fallacy, Constitution-wise, of the classification theory is that many of the Negro pupils overlap many of the white pupils in achievement and aptitude but are nevertheless to be segregated on the basis of race. They are to be separated, regardless of how great their ability as individuals, into schools with members of their own race because of the difference in test averages as between the races. Therein is the discrimination. The individual Negro student is not to be treated as an individual and allowed to proceed along with other individuals on the basis of ability alone without regard to race."

All too obviously the Court here was ignoring Dr. van den Haag's testimony on this precise point and the findings upon it of the Court below. It looked suspiciously, to counsel and to me, as if the Court had not even read them. But what was worse, it here gave as one reason for its decision a concept which, if generally applied, would disrupt our society. It was in effect holding unconstitutional any law which disadvantaged any individual belonging to a group whose average performance justified that law.

For example, state statutes limiting working hours for women in factories had been held constitutional because the average woman was not as strong as the average man, and in spite of the fact that certain women were stronger than many men. Would the Fifth Circuit in such a case now paraphrase its racial holding to read: "The real fallacy, Constitution-wise, of the classification theory is that many women overlap many men in strength but are nevertheless to be segregated on the basis of sex. They are to be forbidden to work, regardless of how great their strength as individuals or their financial need, because of the difference in the average endurance of the two sexes."

Or one could take the case of the exceptional minor who was not allowed to vote, drive a car or marry simply because the average minor was not considered wise, or experienced, or mature enough to do these things. Certainly many minors had better judgment, more experience and more intelligence than many adults. Would the Fifth Circuit now paraphrase themselves and say: "The real fallacy, Constitution-wise, of the classification theory is that many minors overlap many adults in judgment and intelligence but are nevertheless to be segregated on the basis of age. They are to be denied the right to vote, to drive and to marry regardless of how great their judgment and intelligence as individuals, because of the limitations of the average minor. Therein is the discrimination. The individual minor is not to be treated as an individual and allowed to proceed along with other individuals on the basis of ability alone without regard to age."

Restating these situations in the Fifth Circuit's own words seemed to make the invalidity of their reasoning sufficiently clear. It would be disastrous to compel society to accept the burden of the average child at the voting booth or automobile license bureau in order to satisfy the exceptional child, and it was proving equally disastrous to accept the average Negro in White schools in order to satisfy the exceptional Negro. To damage a whole society with torrents of injurious influences in order to accommodate the exceptional few was something new even to socialism.

In fact in reading the opinion of the Fifth Circuit Court of Appeals I had to pinch myself to believe I was not dreaming. I seemed to be wandering in some sort of judicial Alice in Wonderland. But the last straw, say rather the last blow, was yet to come. The White children took the reversal by the Fifth Circuit to the Supreme Court by a petition for a writ of certiorari, and the long wait for its final ruling started.

Six months later it came. I remembered well the afternoon it was expected. I was in telephone communication with Leonard. We waited hardly knowing whether to hope or despair. What possible reason could the Supreme Court give for ignoring decisive and uncontradicted evidence with a fundamental bearing upon both a nation's domestic welfare and a total world situation?

The least the Court could do, we thought, would be to remand the case to the trial court for a rehearing in which the NAACP would be required to put the hierarchy on the witness stand. In that way the entire subject could be even more glaringly exposed. It hardly seemed proper to ask: did the Supreme Court dare? How could it possibly do otherwise when to fail would have such shattering implications?

Not only were Leonard and I waiting for the ruling. The attorneys general of seven states had filed a petition with the Court asking that certiorari be granted. Besides this, during the interval since the decision in the Fifth Circuit, the trial court in Evers,{3} acting on even more complete evidence than had been offered in Stell, had closed its opinion with the following paragraph:

"In the opinion of this Court, the facts in this case point up a most serious situation, and, indeed, 'cry out' for a reappraisal and complete reconsideration of the findings and conclusions of the United States Supreme Court in the Brown decision, as interpreted by the United States Court of Appeals for the Fifth Circuit. Accordingly, this Court respectfully urges a complete reconsideration of the decision in the Brown case."

Suddenly my telephone rang. I picked up the receiver and heard Leonard's voice. The news from the Supreme Court had just come in. Certiorari in Stell was denied. There was no explanation, no comment. There would be no rehearing, no further proceedings.

Stell had dropped into a deeper chasm than any well of silence. The appeal to truth, the levy upon honor, had failed.

3. On July 6, 1964, the trial court in Evers had felt compelled, against what it found to be the weight of the evidence, to decide for the NAACP, because of the prior ruling of the Fifth Circuit in Stell. The final farce in this circus of absurdity was reached in the opinion of the Fifth Circuit on Jan. 26, 1966, confirming the decision in Evers in favor of the Negroes, and offering a new excuse for its action. This argument is considered infra, pp. 141-2.