richard c. butler and the little rock school board: the quest to maintain "educational...

Richard C. Butler and the Little Rock School Board: The Quest to Maintain "EducationalQuality"Author(s): Elizabeth JacowaySource: The Arkansas Historical Quarterly, Vol. 65, No. 1 (Spring, 2006), pp. 23-38Published by: Arkansas Historical AssociationStable URL: http://www.jstor.org/stable/40028069 .

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Richard C. Butler. Courtesy Richard C. Butler Papers, Butler Center for Arkansas Studies, Central Arkansas Library System, Little Rock.



The Little Rock Crisis and

the Courts: A Forum

Richard C. Butler and the Little Rock School Board: The Quest to Maintain

"Educational Quality"

Elizabeth Jacoway

In May 1954, just a few days after the announcement of the Brown decision demanding the abolition of segregation in public education, the Little Rock School Board publicly declared its intention to comply. One year later, a week before the U.S. Supreme Court handed down its guide- lines for enforcement in Brown II, Little Rock school superintendent Vir- gil T. Blossom unveiled his voluntary Phase Program for school desegregation, calling for a gradual approach to integration beginning at the high school level. As actually implemented, the Blossom Plan became a minimal as well as a gradual program that was designed to preserve "educational quality" while it accommodated the demands of the new court directive.1 As one member of the Little Rock School Board re- called years later, "We didn't set out to integrate the schools, we set out to continue education during the integration process, and we were much more interested in the education process than we were in integration."2

Statement of Little Rock Board of Education: Supreme Court Decision-Segrega- tion in Public Schools," Arkansas Gazette (Little Rock), May 23, 1954, p. 1A; "Little Rock Board of Education Plan of School Integration," (no date), Box 4, Folder 5, Virgil T. Blossom Papers, Special Collections, University of Arkansas Libraries, Fayetteville.

2Harold Engstrom, interview with John Luter, December 29, 1970, p. 39, Eisenhower Administration Project (hereinafter cited as EAP), Columbia University Oral History Col- lection, Dwight David Eisenhower Presidential Library, Abilene, KS.

Elizabeth Jacoway is an independent scholar who lives in Newport, AR. Her history of the Little Rock crisis will be published by The Free Press in 2007.

THE ARKANSAS HISTORICAL QUARTERLY VOL. LXV, NO. 1, SPRING 2006



COOPER v. AARON FORUM: RICHARD BUTLER 25

As Blossom explained in his memoir, "Our purpose was to comply with the law in a manner that would be accepted locally, not to wreck the school system."3

The Little Rock chapter of the National Association for the Advance- ment of Colored People (NAACP) had developed a growing distrust of Virgil Blossom in the year between the announcements of Brown I and Brown II. The superintendent had indicated in the fall of 1954 that integration would be complete, and that it would be carried out in a timely manner involving children at all grade levels. But after months of meet- ings with alarmed white parents, Blossom revised his plan in May 1955, calling for integration at Central High School only. He then proposed to extend desegregation down into the lower grades according to a vague, nonspecific timetable. Finally despairing of receiving fair treatment, the local branch of the NAACP eschewed the advice of its national organi- zation and in February of 1956 filed suit in federal district court against the Little Rock School Board in a case styled Aaron v. Cooper. At that point, the superintendent engaged five attorneys to defend his plan. Ri- chard C. Butler, one of the city's social and civic leaders and a great ad- mirer of Virgil Blossom, acceded to the superintendent's urgent request that he join the legal "brain trust." Over the next two years, Butler worked closely with Blossom in deciding how to respond to the growing opposition to desegregation in Little Rock. 4

Joining longtime school board attorney Archie House, Butler and the others argued successfully before federal judge John Miller, a former United States senator from Arkansas, that their clients had made a "prompt and reasonable start" toward desegregation and that they should be allowed to proceed along the deliberate course they had charted. Al- though he ruled in the school board's favor, Judge Miller nonetheless re-

3 Virgil T. Blossom, It HAS Happened Here (New York: Harper and Brothers, 1959),

18. Blossom wrote in the Saturday Evening Post, "I have no doubt many persons will regard such a plan as an evasion or an unworthy compromise. I can only say that such persons fail to understand the circumstances .... Our purpose was minimum compliance with the law in a manner acceptable to the courts and the community - not to wreck the school system by arousing resentment;" Virgil T. Blossom, "The Untold Story of Little Rock," Part Two, Saturday Evening Post, May 30, 1959, p. 82.

4Georg C. Iggers, "An Arkansas Professor: The NAACP and the Grass Roots," in Lit- tle Rock U.S.A.: Materials for Analysis, ed. Wilson Record and Jane Cassels Record (San Francisco: Chandler Publishing Company, 1960), 283-291. See also Professor Iggers' let- ter to Tony Freyer, September 17, 1980, Box 1, Folder 7, Georg Iggers Papers, Archives and Special Collections, Ottenheimer Library, University of Arkansas at Little Rock; John A. Kirk, Redefining the Color Line: Black Activism in Little Rock, Arkansas, 1940-1970 (Gainesville: University Press of Florida, 2002), 92; Irving Spitzberg, Jr., Racial Politics in Little Rock, 1954-1964 (New York: Garland Publishing, 1987), 48; Richard C. Butler, interview with John Luter, August 17 and 23, 1971, pp. 2, 15, EAR



26 ARKANSAS HISTORICAL QUARTERLY

tained jurisdiction in the case as well as setting a deadline of September 1957 for implementation of the Blossom Plan.5

As is well known, that September brought a crisis of major propor- tions to Little Rock. With soldiers in the hallways and segregationist mobs in the streets, all hope for an effective educational process fell by the wayside. The school year saw daily harassment of the nine black children inside Central High School as well as an escalating pattern of intimidation directed against school board members, school personnel, and students who attempted to support the desegregation effort. After several months of segregationist harassment and community upheaval, the Little Rock School Board in February 1958 yielded reluctantly to the blandishments of the city's business leadership, filing suit in federal district court requesting a "breathing spell" or a "cooling-off period." Ar- guing before Judge Harry Lemley of Hope, Arkansas, school board attorneys made the case that the educational standards the district had set for itself could not be preserved in such an environment and that surely this was not what the Supreme Court had intended. Judge Lem- ley, who had been known to comment, "The South is almost a religion with me," granted the board's request for a two-and-a-half-year delay in June 1958.6

The NAACP appealed immediately, deflecting attention away from concerns about educational quality by arguing that school boards could not be allowed to bow to violence. The Eighth Circuit Court of Appeals overturned the Lemley decision in August. The Little Rock School Board then appealed the case to the U.S. Supreme Court, which met in an un- usual emergency session and ruled against that board in September. The haste with which the federal courts rendered these decisions was a mea- sure of their determination to crush the massive resistance in the South. The Little Rock School Board, however, had not engaged in massive resistance, and sincere concerns about preserving educational quality, as well as its questions about the responsibility of local school boards to as- sume the financial burden of expensive litigation, got lost in the rush to

5" Aaron v. Cooper ," Race Relations Law Reporter 1 (October 1956): 859-860. 6Text of School Petition," Arkansas Gazette, February 21, 1958, p. 1A; Margaret

Frick, "Board Pleads for Delay," Arkansas Democrat (Little Rock), May 25, 1958, p. 1; Margaret Frick, "Lemley Named to Hear CHS Integration Case; Early Ruling Hinted," Arkansas Democrat, April 21, 1958, p. 2. See also Jerry Jones, "Judge Lemley to Hear School Board's Petition," Arkansas Gazette, April 22, 1958, p. 1A; Margaret Frick, "NAACP Files Appeal after Integration Delay Order," Arkansas Democrat, June 21, 1958, p. 1.




cast the Little Rock case as a struggle between Orval Faubus and the federal government.7

Looking back from a distance of fifty years, at a time when the values espoused in the Brown decision have achieved acceptance at all levels of American culture, it is important to bear in mind that Richard Butler, Virgil Blossom, and the Little Rock School Board were working within a political environment and a set of circumstances that are different from our own. They were struggling with the challenge of leading their community to accept a monumental cultural and intellectual change, a change they were not sure they themselves could accept with equanimity, a change a vast major- ity of the southern congressional delegation had opposed publicly in March 1956, a change that a leading southern historian has argued recently was based on "a radical new interpretation of the Fourteenth Amend- ment."8

Responding initially to an emotional outcry from local segregationists, who were receiving major financial support from other parts of the South, the Little Rock School Board found itself in a major dilemma when Orval Faubus 's defiance of federal force made him wildly popular with the people of Arkansas and beyond. Increasingly, the school board fell victim to public vilification as it continued to insist on implement- ing the Blossom Plan. In this context, Richard Butler directed his 1958 arguments in favor of a delay as much toward the citizens of Little Rock as toward the courts, attempting to demonstrate to local critics that the school board had made every attempt possible to avoid the dreaded changes demanded by the Brown decision.

But the board's concern clearly extended beyond rehabilitating its reputation among white citizens. While he did not expect to win an out- right victory, Butler did hope for some kind of compromise.9 One of his central arguments was that local citizens had to accept the principle of integration before such changes could be implemented without resistance.

7Frick, "NAACP Files Appeal after Integration Delay Order"; "Lemley Ruling Upset; Faubus Quiet on Plan," Arkansas Gazette, August 19, 1958, p. 1; "Faubus Closes CHS After Court Denies Delay of Integration," Arkansas Gazette, September 13, 1958, p. 1A.

8David L. Chappell, A Stone of Hope: Prophetic Religion and the Death of Jim Crow (Chapel Hill: University of North Carolina Press, 2004), 168. The southern congressmen's Declaration of Constitutional Principles, released on March 12, 1956, was known popu- larly as 'The Southern Manifesto."

9Richard C. Butler, interview with John Luter, August 17 and 23, 1971, pp. 11, 19, EAR School board member Harold Engstrom later admitted that the board members knew they could not win and they were primarily interested in convincing the people of Little Rock "that we had done what they wanted us to do as effectively as it could have been done;" Engstrom, interview with Luter, p. 35, EAR




Butler argued repeatedly that as long as state laws prohibiting integration sat on the statute books and had not been declared unconstitutional as a result of court challenges, local people would continue to resist the drastic modifications of their way of life the courts were demanding. Echoing the thinking of Little Rock's business leadership, Richard Butler attempted to persuade a succession of federal judges that a temporary delay of desegregation would allow time for the court tests necessary to demonstrate to a reluctant citizenry the futility of resistance.

The Little Rock School Board's original petition to the federal courts, filed on February 20, 1958, asked for a delay until desegregation could be accomplished "without an impairment of educational standards." To the modern observer who has grown weary of and cynical about our nation's many failures to live up to its stated ideals and prom- ise, this plea may seem to be nothing more than an attempt to evade the Brown decision. In fact, the Little Rock School Board's stated concern about preserving educational quality was not a disingenuous position. From the very beginning of its deliberations about integration in 1954, the school board had worried about how to accommodate black children from schools that were admittedly inferior without impairing the stan- dard of education being offered to white children.10 Then, when the fall term of 1957 was so disrupted, the school board members felt that their worst fears were being realized with regard to maintaining a high quality of education for Little Rock's children.

Elizabeth Huckaby's memoir, Crisis at Central High, abounds with evidence that the conditions inside Little Rock's largest high school were far from ideal in the 1957-1958 school year.11 As Central High School's vice principal for girls, Huckaby dealt daily with the disci- pline difficulties and rule infractions that attended the desegregation process. Little Rock Nine member Melba Pattillo Beals' heart- wrench- ing memoir, Warriors Don 't Cry, gives ample evidence of the daily upheaval inside the school.12 Vice Principal for Boys J. O. Powell wrote an even more chilling memoir that has never been published but which is deposited in Special Collections at the University of Arkansas Li- braries, Fayetteville.13 In Powell's telling of the tale, the disruptions in-

10Blossom, It HAS Happened Here, 14-15. "Elizabeth Huckaby, Crisis at Central High: Little Rock, 1957-58 (Baton Rouge:

Louisiana State University Press, 1980). Melba Pattillo Beals, Warriors Don 't Cry: A Searing Memoir of the Battle to Inte-

grate Little Rock's Central High (New York: Simon and Schuster, 1994). liJ. O. Powell, "Central High School Inside Out: (A Study in Disintegration)," Box 1,

File 4, Velma and J. O. Powell Collection, Special Collections, University of Arkansas Libraries, Fayetteville.




side Central High School were daily and quite serious, ranging from physical assaults on individual black students to boys' urinating on the steam radiators, which sent fumes throughout the building. An equally alarming litany of disruptions emerges from the testimony given in federal court in June 1958; the transcript of this hearing rests innocuously in the Virgil Blossom Papers, also at the University of Arkansas.14 A large man with a large ego who did not want to admit the plan he au- thored had failed, Superintendent Blossom had attempted to downplay these disruptions and directed his staff to do the same, which is one rea- son they were so shocking to Judge Lemley when they came to light in the federal courtroom.15 While many students in the large high school claim to this day that they observed no attacks on the black students, the outpouring of complaints from teachers, students, and parents made the members of the Little Rock School Board painfully aware that the quality of education inside Central High School was being severely compromised.16

In their petition to the federal court, the school board's attorneys stressed that the resistance activities of the segregationists and the governor had led local people to believe there was "some power in the State of Arkansas" to nullify the federal law, which had created tremendous "confusion in the minds of the residents of the District." The heart of the school board petition argued that the district found itself in a "most difficult position." While on the one hand it was under court order to implement the Blossom Plan, yet on the other it believed it had "no power to enforce the provisions of the plan." The petition argued that successful implementation of desegregation depended on the community's willingness to accede to the dictates of the federal court's decisions and orders; in the absence of that community sentiment, however, the school board argued it lacked the power to force the issue.17 Indi- vidual members of the Eisenhower Justice Department attempted to persuade the Little Rock School Board to seek injunctions against cer- tain named agitators, but that board's lead attorney, Archie House, felt strongly that it was unfair to expect board members to have to police their neighbors, especially when they were already engaged in the un-

14Transcript, Cooper v. Aaron, June 3-5, 1958, Box 5, Folder 7, Blossom Papers. nJohn Thomas Elliff, "The United States Department of Justice and Individual

Rights, 1937-1962" (Ph.D. diss., Harvard University, 1968), 604-605. Ralph Brodie, who was president of Central's student body, claims to have seen no

incidents of harassment of the nine; Brodie, interview with author, Little Rock, January 20, 2004.

ll Southern School News, March 1958; "Text of School Board Statement," Arkansas Gazette, February 21, 1958, p. 1A; "Text of School Petition."




popular and even economically damaging business of promoting integration.18

The school board attorneys argued in their petition that the federal government had failed to expend its own political capital to provide needed support for desegregation, by having its Justice Department prose- cute members of the street mob at Central High School, by filing injunctions against known troublemakers, or by having Congress pass laws to enforce the newly enunciated civil rights of African Americans.19 As a consequence, the petition argued, the school board members, who had complied voluntarily with the Brown decision out of respect for the law of the land, were left "standing alone, the victim of extraordinary opposition on the part of the State government and apathy on the part of the Federal Government." The petition argued further that in the absence of either a local willingness to accept integration or the passage of federal civil rights legislation, the Little Rock School District "should not be required to submit to unjustifiable persecution of its officials and the destruction of its educational standards by outside interference." While maintaining educational quality was the stated concern of school board members and attorneys, the unstated worry was that Little Rock was in danger of losing its public schools altogether. Richard Butler told interviewers in later years that he and the Little Rock School Board had been fighting to save public education, and that his "primary aim was ... to try to make a transition [to integration] in an orderly fashion."20

After a three-day hearing that focused on the disruptions inside Central High School, Judge Lemley ruled on June 21, 1958, in favor of a thirty- month delay. "When the interests involved here are balanced," Lemley

18A. F. House to A. B. Caldwell, July 21, 1958, Box 5, Folder 7, Arthur Brann Cald- well Papers, Special Collections, University of Arkansas Libraries, Fayetteville.

On the day the Little Rock School Board filed its petition, the head of the United States Office of Legal Counsel, Wilson White, sent a memo to the FBI indicating that the Justice Department was considering "injunctive proceedings, or criminal proceedings for obstruction of justice under Section 1503, Title 18, U. S. C, depending on the evidence that may be developed. The Department considers the injunctive procedure as probably the most effective way of dealing with the harassment at the school." Nothing came of White's efforts, undoubtedly because Attorney General William Rogers had decided to stay out of the Little Rock situation; Director's Brief, "Chronology," Vol. I, File 3, p. B- 59, F.B.I.- Little Rock Crisis Reports, Archives and Special Collections, Ottenheimer Library, University of Arkansas at Little Rock. About this same time, Daisy Bates sent her assistant, Chris Mercer, to New York to confer with Thurgood Marshall about seeking an injunction against segregationist troublemakers inside Central High School. Nothing came of this initiative either; Frederick B. Routh to Thurgood Marshall, February 12, 1958, Box 81, Southern Regional Council Papers, Woodruff Library, Atlanta University, Atlanta, GA.

20"Text of School Petition"; Butler, interview with Luter, pp. 3, 6; Richard C. Butler, interview with author, Little Rock, December 15, 1977.



COOPER v. AARON FORUM: RICHARD BUTLER 3 1

wrote in his decision, "the personal and immediate interests of the Negro students affected must yield temporarily to the larger interests of both races," in particular the need to maintain an effective educational system. The NAACP appealed immediately to the Eighth Circuit Court of Appeals, which heard the case on August 4, 1958. In his oral argument before the Eighth Circuit, Richard Butler referred to Faubus's landslide victory in the Democratic primary the previous week, saying, "The mandate of the people of Arkansas shows they are opposed to desegregation of schools." But- ler told the court that the people of Little Rock were law-abiding and that they were asking only for "patience and time." He stressed the fact that current state law in Arkansas prohibited integration, and that the Little Rock School Board could not disregard these state laws until the courts had ruled them unconstitutional. 21

On August 18, the judges of the Eighth Circuit concluded that "an im- possible situation" could develop if the Lemley decision were upheld. Ev- ery school district in which integration was opposed by overt acts would then have "justifiable excuse" to petition the courts for a delay of their integration programs. In overturning the Lemley decision, the appeals court judges held that the granting of a "temporary delay" in Little Rock would amount to "an open invitation to elements in other districts to overtly act out public opposition through violent and unlawful means."22

Governor Faubus began to talk immediately about a special session of the Arkansas General Assembly. That body did meet on August 27 and 28 and in short order passed six Faubus bills dealing with education, as well as several others that were aimed at the NAACP. One of the Faubus bills provided for the closing of schools where integration was ordered; another called for the transfer of public school property and funds to private schools.23

While the Arkansas General Assembly was meeting to pass these bills, Richard Butler made his first appearance before the U.S. Supreme Court,

21Frick, "NAACP Files Appeal after Integration Delay Order"; "Integration Delay Order Text," Arkansas Democrat, June 22, 1958, p. 2A; "Court Hears Pleas of NAACP, Board in Appeal of Delay," Arkansas Gazette, August 5, 1958, p. 1 A.

Text of Decision," Arkansas Gazette, August 19, 1958, p. 1A. In a move that sur- prised everyone, the appeals court voted to stay its own ruling; "Board at Little Rock Wins Stay; All- White Opening Due Sept. 2," Louisville Courier-Journal, August 22, 1958, Southern Education Reporting Service Papers, John Hope and Aurelia Franklin Library, Fisk University, Nashville, TN.

^"Faubus Mulls Need to Call Legislature, Arkansas Gazette, August 22, 1958, p. 1A; Claude Sitton, "Faubus Summons Special Session To Block Negroes," New York Times, August 24, 1958, p. 1; "Legislature Called to Meet Tuesday," Arkansas Gazette, August 24, 1958, p. 1A; "Six Bills to Block School Integration Offered by Faubus," Arkansas Gazette, August 27, 1958, p. 1A; "Faubus Bills Win Approval of Committee," Arkansas Gazette, August 27, 1958, p. 2A.




knowing that if he could not win a delay for his school board, his city would lose its public schools. Butler argued that while the members of the Little Rock School Board had tried earnestly to carry out the order of the federal court, they also felt obligated to maintain a system of public education in their city, and he conceded "that that probably was their primary object and consideration and duty." Butler struggled to make the Court understand that as long as popular editorialists in his community were saying that Brown was not the law of the land and there were ways to get around it, and while different courts - state and federal - were saying different things, and as long as state laws sat on the statute books that were diamet- rically opposed to the Brown decision, the people of his community were left in doubt concerning what the law actually was. Chief Justice Earl War- ren flared in anger at Butler's suggestion that the people of Little Rock re- mained unconvinced that Brown was the law of the land.24

Having met with Orval Faubus just days before and knowing his school board was on the brink of yielding to defeat, Richard Butler concluded his presentation to the Court with a set of questions. Shall the courts, he asked, deny a community a reasonable opportunity to reach so- lutions to such deep-seated problems in a period of calm and quiet rather than in an atmosphere of strife and turmoil? Shall the courts force "private citizens and officials and general assemblies" to make decisions when the air is charged with emotion? And can it logically be argued that the courts' rulings can be carried out if the schools are closed? Striking the chord he had stressed all along, Butler concluded, "Patience and forbearance for a short while might save our public school system in Little Rock, which was once the pride of our community."25

Preparing for his second appearance before the Supreme Court two weeks later, Butler wrote a brief that questioned whether, as a practical matter, the courts had the ability to deal with opposition such as the Little Rock School Board had encountered. If they did, he argued, "certainly the method should not be that of placing the school board in the undeserved position of being the sole bastion of Federal authority until it destroys itself."26 He also asked whether a school district had the obligation to quell violence and organized resistance to desegregation by initiating litigation

24"Final Ruling on CHS Set by September 15" Arkansas Gazette, August 29, 1958, p. 1A.

25Ibid. 26Brief on Merits No. 1 in the Supreme Court of the United States, August Special

Term, 1958, William G Cooper, et al., Petitioners v. John Aaron, et al., Respondents on Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit, available in microform from Information Handling Services, Englewood CO, 1979. Unless otherwise noted, all of the following discussion will come from this brief.




and seeking injunctions. The school board, he argued, dependent as it was upon public support through taxation, could not be expected to expend its limited funds in "perpetual litigation and prosecutions." If the justices did not agree with his analysis, Butler asked, and they believed that the duty for enforcing the law of the land rested on the school district, then "how can it possibly enforce the federal law and where is it to obtain funds to be used for the purpose?"

Butler's brief argued that the heart of the school board's case was "the practical impossibility of continued operation on a desegregated basis," and that the central issue was "whether or not the Little Rock school system should be effectively destroyed by court order." In effect, Butler's brief challenged the Supreme Court either to admit it did not have the power to require compliance with its mandates or to suggest practical means for a southern school board to deal with the active opposition of the community. His analysis of the conflict between state and federal authority framed the debate that emerged in the courtroom and became the central concern of the resulting written opinion.

In his oral argument, Richard Butler tried to get across to the justices that what was happening in Little Rock involved more than simply the defiance of the governor. The justices seemed to believe that in the absence of Orval Faubus's recalcitrance, desegregation could have proceeded with little difficulty, and, by extension, if that impediment were removed, the people of Little Rock would fall into line behind more responsible leaders. Butler struggled to explain his clients' "central problem" - that the Justice Department had provided no means of enforcement and the school board had no police powers - and he pleaded for recognition that the school board was caught in a "conflict between . . . two sovereignties," the state of Arkansas and the federal government. Until that conflict was resolved, Butler concluded, and until the federal government had devised an enforcement plan that would protect educational quality, the school district was entitled to some relief in the form of a delay.27

Despite his best efforts, Butler's explication of the dilemma of the Lit- tle Rock School Board failed, as he knew it would. Instead, the NAACP's legal team persuaded the justices that the issue was basically "whether the Court would tolerate Faubus's rebellion." At the close of oral arguments,

27"Court Hears Pleas; Decision Seen Today," Arkansas Gazette, September 12, 1958, p. 1A; Jack Greenberg, Crusaders in the Courts: How a Dedicated Band of Lawyers Fought for the Civil Rights Revolution (New York: Basic Books, 1994), 240; Philip B. Kurland and Gerhard Casper, Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law (Arlington, VA: University Publications of Amer- ica, 1975), 54: 710.




the nine justices deliberated less than thirty minutes before deciding that the Little Rock School Board must proceed with integration, immediately. Several hours later, Governor Faubus signed the legislation waiting on his desk, and, employing one of the bills in that bulging package, he closed all the high schools in the city.28 Little Rock voters subsequently ratified the school closings.

Richard Butler had expected defeat at the Supreme Court, although he had hoped for some kind of compromise. But the justices were in no mood to compromise with the likes of Orval Faubus. Infuriated that a southern governor would question their authority, the justices used the occasion of their ruling in Cooper v. Aaron to reassert in the most vigorous language available the primacy of federal over state law and the right of the U.S. Su- preme Court to interpret the federal constitution.

In their determination to crush the southern resistance to their authority as expressed in the Brown decisions, the justices also knocked the last remaining props from under the one southern school board that had stepped forward with a plan to implement Brown and endured the full mea- sure of community opposition as a result of their commitment to obey the law. When they handed down their full opinion on September 29, the Su- preme Court justices spelled the doom of the Little Rock School Board and sent the city spiraling into a renewed crisis over the price, and the value, of public education.

Although ideally the U.S. Supreme Court renders its decisions based on a consideration of the facts presented to it and the law as it applies to those facts, in September 1958 the justices allowed their decision-mak- ing process to be influenced by factors outside the generally accepted scope of their concerns. In particular, the justices responded to events that transpired in Little Rock between the September 12 announcement of their decision and the release of their written opinion seventeen days later.29 Historian C. Vann Woodward described the tone of the decision at the time as "judicial rhetoric amounting to anger."30 As finally signed, the decision opened, "As this case reaches us it involves questions of the highest importance to the maintenance of our federal system of govern-

28Dennis J. Hutchinson, "Unanimity and Desegregation: Decisionmaking in the Supreme Court, 1948-1958," Georgetown Law Journal 68 (no. 1, 1979): 78; "Faubus Closes CHS after Court Denies Delay of Integration," Arkansas Gazette, September 13, 1958, p. 1A.

As constitutional scholar Dennis Hutchinson has written of the Cooper decision, "day-to-day reactions at the local level substantially affected the shape and tone of the Supreme Court opinion"; Hutchinson, "Unanimity and Desegregation," 74.

C. Vann Woodward, "The South and the Law of the Land," Commentary 26 (November 1958): 370.



Virgil Blossom, the superintendent of Little Rock schools, meets the press after the Supreme Court's Cooper v. Aaron decision. Photo by Larry Ob- sitnik. Courtesy Special Collections, University of Arkansas Libraries, Fayetteville.




ment. It necessarily involves a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court's considered interpretation of the United States Constitution." Ruling in favor of the NAACP, the justices concluded, despite their expressed sympathy for the dilemma of the school board, "the constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in the Brown case can neither be nullified openly and directly by state legislators or state executives or judicial officers, nor nullified indirectly by them through evasive schemes for segregation whether attempted 'inge- niously or ingenuously.'"31

Responding to the late-summer actions of Orval Faubus and the Ar- kansas General Assembly and focusing all their considerable wrath on the "legislators and executive officials" they believed to be at the heart of the difficulties in Little Rock, the nine Supreme Court justices subor- dinated the concerns of the school board to the larger goal of suppressing the perceived rebellion in Arkansas. While acknowledging that "the educational progress of all the students, white and colored, of that school has suffered and will continue to suffer," and "regardless of the Board's good faith," the Court concluded, "the actions of the other state agencies responsible for those conditions compel us to reject the Board's legal position."32

The central premise of Cooper v. Aaron read, "The constitutional rights of respondents are not to be sacrificed or yielded to the violence and disorder which have followed upon the actions of the Governor and Legislature." Arguing that the problems the Little Rock School Board faced were "the product of state action," the Court concluded that those difficulties "can also be brought under control by state action." Disre- garding completely the evidence presented in the Lemley hearing that the disturbances inside Central High School and out in the larger community were individual acts prompted by such private agencies as the Capital Citizens' Council and the Central High Mothers' League, the justices held Orval Faubus and the Arkansas legislature responsible for their cre- ation. Lest anyone mistake their meaning and continue to suggest their decisions were not "the law of the land," the justices added a concluding section to their opinion that made crystal clear the sources of their authority. In short, for the benefit of all those who were currently engaged in or contemplating engaging in the practice, the justices asserted that the doctrine of interposition - which claimed that state governments might

3UiCooper v. Aaron" Race Relations Law Reporter (October 1958): 861. 3ZIbid.




protect their citizens from what they deemed to be unconstitutional en- croachments of the federal government on state powers - was dead.33

While it thundered the primacy of federal prerogatives, Cooper v. Aaron nonetheless side-stepped the issues that had brought it into court and that continued to bedevil local school districts across the South: What did "all deliberate speed" mean? Was a delay possible under any circumstances after a school board had made a "prompt and reasonable start" toward desegregation? How were citizen-school boards to control violent opposition to their programs and finance the litigation the court of appeals and the solicitor general had said were their responsibility? Were these things the responsibility of local school boards? And most important, by what means were local school officials to preserve a meaningful educational system in the face of the active resistance to integration in their com- munities?

Driven by the imperative to buttress its own authority, which had been severely challenged by the rise of massive resistance, the Southern Mani- festo, and a galling recent rebuke from the Association of State Chief Jus- tices, the Court left unanswered many of the procedural questions that continued to plague southern school boards for years thereafter. As legal scholar Dennis Hutchinson concluded, "Indeed, Cooper began as a case involving the interpretation of Brown //but was transformed by events both inside and outside the courtroom to such an extent that it is not too much to say that 'the Court's most searing modern statement in a racial case was in behalf of its own power.'"34

NAACP attorney Jack Greenberg wrote years later that after Cooper v. Aaron "the fantasy that violent resistance could succeed in undermining the law began to fade." What did not fade was the source of that violence, the racism that Arkansas senator J. William Fulbright had described in a brief he had attempted unsuccessfully to submit as a part of the proceedings in Cooper v. Aaron. Fulbright had argued that southern racial attitudes were a part of a "pathological" pattern, one that involved "an intricate rit- ual of evasions, of make-believe, and suppressions."35 It was a pattern

33lbid. Stephen L. Wasby, Anthony A. D'Amato, and Rosemary Metrailer, Desegregation

from Brown to Alexander: An Exploration of Supreme Court Strategies (Carbondale: Southern Illinois University Press, 1977), 179-180; Hutchinson, "Unanimity and Desegre- gation," 86; the quote is from Charles A. Miller, "Law and the Rhetoric of Race," in Law in American History, ed. Donald Fleming and Bernard Bailyn (Boston: Little, Brown and Company, 1971), 199.

Greenberg, Crusaders In The Courts, 241; J. William Fulbright, "Motion for Leave to File a Brief as Amicus Curiae," August 27, 1958, pp. 10-11, available in microform from Information Handling Services, Englewood, CO, 1979.



3 8 ARKANSAS HISTORICAL QUARTERLY

about which the senator could speak with authority, since, as his biogra- pher has made clear, it was one that had shaped his own thinking.36

By September 1958, even Orval Faubus's arch foe, Arkansas Gazette editor Harry Ashmore, had come to see that the problem facing his city was vastly more complicated than he had described it throughout the preceding year. Up to that point, Ashmore had argued consistently that in the absence of Orval Faubus's recalcitrance integration would have proceeded smoothly in Little Rock.37 The Supreme Court justices had bought Harry Ashmore 's analysis. Apparently believing that racism was little more than a whip southern politicians used to herd the masses, they thought if they crushed expressions of defiance from the South's leaders they could begin to effect a change in the region's racial attitudes. They were mistaken in that conviction, as the ensuing years of racial conflict across the nation made clear.

36Randall Bennett Woods, Fulbright: A Biography (Cambridge: Cambridge Univer- sity Press, 1995), 226-235.

As late as 1990, former governor Sid McMath was still trying to market that argument, telling an interviewer, "The Virgil Blossom plan, if Faubus had stayed out of it, would have gone in and worked .... if they'd had proper leadership at the time the Central High School thing never would have happened"; Sidney McMath, interview with John Egerton, September 8, 1990, Southern Oral History Program, University of North Caro- lina, Chapel Hill, NC.



richard c. butler and the little rock school board: the quest to maintain "educational...

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