Remembering Cooper v. Aaron, the Supreme Court Case That Sent the Message that Brown's Promise of Desegregation Must Be Kept

By CARL TOBIAS

Thursday, Oct. 09, 2008

Fifty years ago, the United States Supreme Court issued its landmark decision in Cooper v. Aaron. This opinion marked the beginning of the end for resistance to government-enforced public school desegregation, which Brown v. Board of Education had earlier mandated. Granted, Cooper v. Aaron did not immediately or thoroughly foster public education's desegregation. However, Cooper did break the back of resistance and commenced gradual public school desegregation, and for this reason, it is a truly historic case.

The Problems with Enforcing Brown v. Board

The Supreme Court's 1954 Brown decision overruled the separate but equal doctrine and held that segregated public schools violated the Equal Protection Clause in the Fourteenth Amendment. Because Brown only recognized the particular plaintiffs' constitutional rights, the Justices heard reargument on the appropriate remedy and, in 1955, issued the Brown II opinion instructing public schools to desegregate "with all deliberate speed."

Unfortunately, many state and local officials viewed the all deliberate speed language as a signal that the Court was not requiring desegregation to occur promptly or comprehensively. This perspective was reinforced because after Brown II, the Justices issued no major desegregation rulings and entrusted implementation of Brown's mandate to federal district judges, the "58 Lonely Men," in jurisdictions with segregated public education.

Accordingly, over the four years following Brown, there was very little public school desegregation, especially in the South. Parading under the banners of States Rights, "Massive Resistance" and Interposition, most states and localities did not desegregate or desegregated as reluctantly, slowly and minimally as possible.

Thus, when desegregation opponents contended that Arkansas officials had no duty "to obey federal court orders resting on [the] Court's interpretation of the U.S. Constitution" in Brown, thereby further delaying desegregation, the stage was set for a showdown. "Recognizing the vital importance of [deciding] the issues in time to permit arrangements" for the impending 1958 school year, the Justices convened a rare late August Special Term.

The Cooper Opinion and Its Importance

In deciding Cooper, the Court strongly reaffirmed Brown's mandate, reiterating that segregation violated the Fourteenth Amendment and public schools must be desegregated.

The Justices invoked Marbury v. Madison for the proposition that it is "emphatically the province and duty of the judicial department to say what the law is." The Court then declared that Brown's mandate prohibited state legislative, executive and judicial officers from nullifying openly or indirectly through "evasive schemes for segregation" children's constitutional rights "not to be discriminated against in school admission" because of race. The Justices concomitantly invoked the Supremacy Clause for the idea that no such official "can war against the Constitution without violating his oath to support it."

The Cooper opinion was a ringing endorsement of Brown's mandate and signaled that the Justices would not countenance additional efforts to evade this pronouncement. Before Cooper, minimal desegregation had occurred. Thereafter, most jurisdictions gradually complied with Brown. For example, on the same January 1959 day, the Virginia Supreme Court and a Virginia federal court both ordered the reopening of the Norfolk public schools that the General Assembly had required be closed if they desegregated.

Thorough desegregation had to await passage of the mid-1960s Civil Rights Acts and the Department of Health, Education and Welfare's threats to cut off federal public school funding, if schools did not desegregate.

Nevertheless, on its 50th anniversary, Cooper should be remembered and honored because its issuance began the slow desegregation of public education and because the decision ultimately gave meaning to Brown's mandate. Moreover, and more broadly, Cooper is a valuable reminder that law, when conjoined with social and political action, can facilitate the realization of individual rights - a reminder that is all the more timely this election season.


Carl Tobias is the Williams Professor at the University of Richmond School of Law.

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