Desegregation As a Cold War Imperative

+(,121/,1( Citation: 41 Stan. L. Rev. 61 1988-1989 Content downloaded/printed from HeinOnline (http://heinonline.org) Thu Jul 14 14:45:09 2011 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0038-9765 Desegregation as a Cold War Imperative Mary L. Dudziak* It is in the context of the present world struggle between freedom and tyranny that the problem of racial discrimination must be viewed. - Brief for the United States as Amicus Curiae, Brown v. Board of Education1 I. INTRODUCTION At the height of the McCarthy era, when Congressional committees were exposing "communist infiltration" in many areas of American 3 life,2 the Supreme Court was upholding loyalty oath requirements, * Associate Professor, University of Iowa College of Law. A.B., 1978, University of Cal- ifornia, Berkeley; J.D., 1984, Yale; M.A., M.Phil., 1986, Yale. For their helpful comments and other important support for my work, I am grateful to Brooks Ammerman, Ian Ayres, David Baldus, Derrick Bell, Steve Burton, Richard Buxbaum, Michael Green, Jack Greenberg, Herb Hovenkamp, Carolyn Jones, Laura Kalman, Rick Matasar, and Ellen Schrecker. I would also like to thank those who attended my faculty semi- nars at the Univeristy of Iowa College of Law and Tulane Law School, and my presentation at the 1987 American Society for Legal History Conference. Their questions and ideas contrib- uted to this article. Sally Marks at the National Archives and Carol Briley at the Truman Library provided valuable assistance with archival research. Funding for research was provided by the American Historical Association in the the form of a Littleton-Griswold Research Grant, The University of Iowa, and the Iowa Law foundation. I am eternally grateful to Uni- versity House at the University of Iowa and to the History Department at the University of California, Santa Barbara for providing me with quiet places to write. I would like to thank my research assistants, Leanne Lay, Peter Parry, Bill Hoekstra, and Penny Arnold, my secretary, Rita Jansen, and the Iowa Law Library staff, for the parts they have played in this effort. 1. Brief for the United States as Amicus Curiae at 6, Brown v. Board of Education, 347 U.S. 483 (1954). 2. See V. NAVASKY, NAMING NAMES (1980); INTERNAL SECURITY MANUAL, S. Doc. No. 47, 83rd Cong., Ist Sess. 221-26 (1953) (lists dozens of hearings on communists and subversives concerning infiltration of minority groups, infiltration of labor unions, communist activities in Cincinnati, communist espionage, subversion of the telegraph industry, communist infiltration of veterans groups, communist underground printing facilities, and other matters). 3. See Gerende v. Board of Supervisors, 341 U.S. 56 (1951) (unanimously upheld Mary- land statute that required candidates for public office to swear out affidavits that they were not engaged in seeking the violent overthrow of the government, and were not knowing members of an organization with such goals); Garner v. Board of Public Works, 341 U.S. 716 (1951) (sustained Los Angeles ordinance that required city employees to swear they had not belonged to an organization advocating the overthrow of the government within the last five years); Adler v. Board of Education, 342 U.S. 485 (1952) (upheld New York statute that barred from employment in the public schools anyone belonging to an organization listed by the state board of regents as advocating the violent overthrow of the government). Notwithstanding its willingness to uphold many "loyalty" programs, the court did impose some constitutional limits. See Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951) (divided Court overturned dismissal of Committee's complaint concerning its in- clusion on the Attorney General's list of subversive organizations); Wieman v. Updegraff, 344 HeinOnline -- 41 Stan. L. Rev. 61 1988-1989 STANFORD LAW REVIEW [Vol. 41:61 and the executive branch was ferreting out alleged communists in government,4 the U.S. Attorney General filed a pro-civil rights brief in what would become one of the most celebrated civil rights cases in American history: Brown v. Board of Education.5 Although seemingly at odds with the restrictive approach to individual rights in other con- texts,6 the U.S. government's participation in the desegregation cases during the McCarthy era was no anomaly. In the years following World War II, racial discrimination in the United States received increasing attention from other countries. Newspapers throughout the world carried stories about discrimination against non-white visiting foreign dignitaries, as well as against Ameri- can blacks. At a time when the U.S. hoped to reshape the postwar world in its own image, the international attention given to racial segre- gation was troublesome and embarrassing. The focus of American foreign policy at this point was to promote democracy and to "contain" communism. However, the international focus on U.S. racial problems meant that the image of American democracy was tarnished. The ap- parent contradictions between American political ideology and practice led to particular foreign policy difficulties with countries in Asia, Africa and Latin America. U.S. government officials realized that their ability U.S. 183 (1952) (Oklahoma statute requiring state employees to swear they had not belonged in the last five years to an organization listed by the Attorney General as a "communist front" or "subversive" violated Due Process Clause of the Fourteenth Amendment, since as con- strued by the Oklahoma Supreme Court it punished membership by those unaware of organization's activities). 4. On March 22, 1947, President Harry S Truman signed Exec. Order No. 9835, 12 Fed. Reg. 1935, which required loyalty investigations for all persons entering employment in Exec- utive Branch departments and agencies. Subsequently, onJune 23, 1947, ten Department of State officials were summarily dismissed because of their alleged involvement with an un- named foreign power. R. FREELAND, THE TRUMAN DOCTRINE AND THE ORIGINS OF MCCARTHY- IsM 203-04 (1972). In December 1947, the Attorney General issued a list of "fascist, Communist, or subversive" organizations that was used by government and private employers to measure loyalty. la- at 207-16. On April 28, 1951, Truman issued Exec. Order No. 10241, 16 Fed. Reg. 3690, tightening standards for reviewing loyalty from "reasonable grounds ... for the belief that the person is disloyal to the government" to "reasonable doubt as to the loyalty of the individual involved to the Government." The result was that 565 employees cleared under the earlier standard were again investigated. E. BoNTEcou, THE FEDERAL Loy- ALTY-SECURITY PROGRAM 26-30, 68-72 (1953). 5. 347 U.S. 483 (1954). The Justice Department's brief was filed in December 1952, in the final weeks of the Truman Administration. See Elman, The Solicitor General's Office, Justice Frankfurter,and Civil Rights Litigation, 1946-1960: An Oral History, 100 HARV. L. REV. 817, 826- 27 (1987). At that time, SenatorJoseph R. McCarthy was preparing to take over the Commit- tee on Government Operations, as well as its Permanent Subcommittee on" Investigations, which was quickly dubbed the "McCarthy Subcommittee." McCarthy used the Committee as a vehicle to continue his investigations of alleged subversives. See T. REEVES, THE LIFE AND TIMES OF JOE MCCARTHY: A BIOGRAPHY 459-62 (1982); R. ROVERE, SENATOR JOE MCCARTHY 185-91 (1959). By the time Brown was decided on May 17, 1954, McCarthy's influence was on the decline. On that very day, President Eisenhower called a halt to the Army-McCarthy hearings. See N.Y. Times, May 18, 1954, at 1, col. 1. It was McCarthy's widely televised behavior during the hearings that initiated his fall from grace. See T. REEVES, supra, at 595-637; R. ROVERE, supra, at 215-31. 6. See T. EMERSON & D. HABER, POLITICAL AND CIVIL RIGHTS IN THE UNITED STATES at vii (lst ed. 1952). HeinOnline -- 41 Stan. L. Rev. 62 1988-1989 November 1988] DESEGREGATION to sell democracy to the Third World was seriously hampered by con- tinuing racial injustice at home. Accordingly, efforts to promote civil rights within the United States were consistent with, and important to, the more central U.S. mission of fighting world communism. The literature on desegregation during the 1940s and 1950s has failed to consider the subject within the context of other important aspects of American cultural history during the postwar era. Most scholars seem to assume that little outside the subject of race relations is relevant to the topic. 7 As a result, historians of Brown seem to write 7. As Gerald Home has noted, "the fact that the Brown ruling came in the midst of a concerted governmental campaign against international and domestic communism is one of the most overlooked aspects of the decision." G. HORNE, BLACK AND RED: W.E.B. Du Bois AND THE AFRO-AMERICAN RESPONSE TO THE COLD WAR, 1944-1963, at 227 (1986). The literature on school desegregation is very rich in many other respects. Scholars have studied desegregation in a variety of different settings. See T. FREYER, THE LrrLE ROCK CRI- sis: A CONSTrrTrIONAL INTERPRETATION (1984) (Little Rock, Ark.); D. KIRP, JUST SCHOOLS: THE IDEA OF RACIAL EOUALITY IN AMERICAN EDUCATION (1982) (San Francisco Bay Area, Ca- lif.); J. LUKAS, COMMON GROUND (1985) (Boston, Mass.); B. SMITH, THEY CLOSED THEIR SCHOOLS: PRINCE EDWARD COUNTY, VIRGINIA, 1951-1964 (1965).

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