Academic journal article Law & Society Review

Enforcing Desegregation: A Case Study of Federal District Court Power and Social Change in Macon County Alabama

Academic journal article Law & Society Review

Enforcing Desegregation: A Case Study of Federal District Court Power and Social Change in Macon County Alabama

Article excerpt

This article closely examines Lee v. Macon County Board of Education, a case that grew from a challenge to school segregation in a small Alabama county and became the vehicle for statewide school desegregation. In its examination, the article, following the suggestion of Schultz and Gottlieb (1996: 90), deviates from the methodology used by Rosenberg and examines the role of the judiciary in school desegregation at the micro level. It explores the question whether and how lower court enforcement of a Supreme Court decision such as Brown v. Board of Education of Topeka Kansas (1954) (Brown) may bring about social change even though "in a government in which [powers] are separated from each other, the judiciary . . . will always be the least dangerous. ..." (Hamilton 1788). To what extent are the courts constrained by "the inability to develop appropriate policies and . . . lack of powers of implementation?" (Rosenberg 2008: 10).

Rosenberg lists three constraints on the ability of courts to produce meaningful social change: the limited nature of constitutional rights, the lack of judicial independence, and the judiciary's lack of powers of implementation. The second constraint, he says, can be overcome only with support from Congress and the executive, and the third only with support from some citizens or low levels of opposition from all citizens (Rosenberg, 35-36) Yet, Lee v. Macon County Board of Education produced meaningful social change despite the lack of support from Congress and a high level of opposition from whites in Macon County.

To those who seek instruments of social change, the question "Can courts bring about social change?" is the wrong question. As McCann (1994: 136) demonstrates, social change depends upon the confluence of several forces. Opponents of the racial caste system engaged in a multipronged attack in which the courts were an essential element. Litigation, pressure on the executive branch, lobbying Congress for legislation, marches, boycotts, sit-ins, Freedom Rides, and voter registration campaigns were the tools. The courts enabled many of these methods, even encouraging some of them, and they began enforcing Brown before Congress' landmark Civil Rights Act of 1964 empowered federal agencies to enforce school desegregation. John Doar succinctly summarized: "Look, if you're going to bring about a big cultural change in this country, you need the three branches of the federal government to work together ..." (Doar 2013: 304; see also Cummings (2013: 185), McCann (1992: 728), and Epstein and Walker (2007: 123)).

Examining litigation for social change through the lens of Lee v. Macon County Board of Education in its early phases reveals the complex interaction of the district court, the proponents of social change, the state and local governments, the federal executive branch, and the Congress. This article covers the first two years of the case, 1963-1965. By 1966, the enforcement of the Civil Rights Act of 1964 reinforced the judicial enforcement of Brown. But implementation of Brown in Alabama began when Congress had done nothing either to implement or interfere with the Brown decision.

This article examines the difficult question of causation: Did Brown bring about social change, or would the schools of the South, as Klarman seems to suggest, have desegregated faster if the Court had not decided Brown? It also examines whether the original objectives of the proponents of social change were met by the litigation. Any number of cases could serve as the vehicle for an empirical study of these questions, but Lee v. Macon County Board, of Education provides a more comprehensive set of issues than some. It addresses state interference with court-ordered desegregation, tuition grant statutes and their constitutionality, and the United States as a litigating amicus curiae, as well as the role of the state government, the Department of Justice, and the Department of Health Education and Welfare in bringing about desegregation (Lee v. …

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