On May 17, 1954, the U.S. Supreme Court ruled in Brown v. Board of Education that racially segregated public schools were unconstitutional. The unanimous decision dealt a severe blow to the Jim Crow system of state-sponsored discrimination against blacks and other racial minorities. The Court ruled that separate treatment for people of different races violates the Fourteenth Amendment's guarantee to all Americans of equal protection under the law.
Government officials, who had sworn an oath to uphold the Constitution, should have embraced the Brown decision and moved swiftly to end all forms of racial discrimination. But we all know that did not happen. Instead, Brown was followed by one of the ugliest episodes in America's painful struggle for civil rights: the South's "massive resistance" to federal court orders ending state-sponsored discrimination. In a nation built upon the rule of law, public officials fought both openly and surreptitiously to preserve unjust and unconstitutional laws and practices. Their refusal to abide by federal court orders denied justice to millions of blacks for decades.
Even as we rejoice that the Jim Crow system is now history, however, the Constitution's guarantee of equal protection is again being violated--this time by government-enforced racial preferences. Racial preferences are not simply a benign policy choice over which reasonable people can differ. Since the mid-1980s, the U.S. Supreme Court has ruled unequivocally that racial classifications or preferences of any kind are equally pernicious no matter which race they are intended to help or harm. All state-sponsored racial preference policies are now presumptively unconstitutional and must be struck down, except in the rarest circumstances.
Instead of embracing these clear court decisions striking down racial preferences, however, a shocking new movement of "massive resistance" has re-emerged in defense of the indefensible. True, few advocates of racial preferences are motivated by bigotry, and they do not resort to violence or physical intimidation to enforce their will. But they are, in some ways, more influential than the leaders of the old massive resistance movement.
Unlike their forebears of the 1950s and 1960s, who were fighting a losing cause against the combined will of the three branches of the federal government, the modern heirs of the new massive resistance run the federal bureaucracy and federal law enforcement agencies. In fact, they occupy key civil rights offices of the executive branch as well as the White House itself. And despite court rulings to the contrary, they continue to insist that government entities can and should use racial preferences to distribute economic and educational opportunities.
Forty years ago, many Americans felt anger and disgust toward segregationists such as Arkansas governor Orval Faubus who earned their place in history as leaders of the massive resistance to desegregation. Today's massive resistance to racial equality is led by another former governor of Arkansas, Bill Clinton.
Massive Resistance in the Past
On March 12, 1956, 101 southern members of Congress issued the "Southern Manifesto," which denounced the Brown decision. The signatories pledged to resist Brown for as long as they could and to use "all lawful means to maintain segregation." They also commended "those states which have declared the intention to resist." Technically, the Brown decision applied only to the school boards that were defendants in that case. State and local officials in the South who supported the manifesto refused to follow the Court's ruling in Brown and agreed not to desegregate their schools unless and until there was a specific ruling requiring them to do so. They also refused to extend the logical reasoning of Brown to any other government facility or service, such as municipal swimming pools or buses.
As historians have noted, the manifesto gave a patina of respectability to massive resistance in the South. …