Interview of A. E. Dick Howard. Interviewed by George Gilliam, Mason Mills, of The Ground Beneath Our Feet project.

A. E. Dick Howard served from 1962 to 1964 as a clerk for U. S. Supreme Court Justice Hugo Black, during the period when the case of Griffin v. Prince Edward County came before the court. He has served on the faculty of the University of Virginia Law School, and served as the executive director of the Virginia Commission on Constitutional Revision in 1968-69 when the constitution was amended to prevent school closings.

This interview was taken in 2000 for "Massive Resistance," episode four of "The Ground Beneath Our Feet: Virginia's History Since the Civil War," a production of George H. Gilliam and the Central Virginia Educational Television Corporation. George H. Gilliam is the Producer of the series, William G. Thomas, III the Assistant Producer, and Mason Mills the Director of Photography.

The transcripts represent what was said in the interview to the best of our ability. It is possible that some words, particularly names, have been misspelled. We have made no attempt to correct mistakes in grammar.

Brown I
Mr. Gilliam: The Prince Edward county case started with a student protest and lead to district court decisions and then was combined with other cases from around the country to be heard by the Supreme Court with the Brown decision. The Brown decision is viewed, I guess, as a landmark decision. What was different about Brown? Why was Brown earth-shattering?
Mr. Howard: I think the distinctive thing about the Brown decision was how it was both the outgrowth of decades of litigation and yet it did something different. Because the Court from Plessy versus Ferguson back in 1896 that laid down the separate but equal doctrine and that had been the kind of received view for many years. But the NAACP in a very, I think, effective litigating strategy had begun to chip away at that doctrine starting with professional schools and graduate schools. For example in 1950, the Supreme Court held that Texas could not simply create a separate law school for blacks and thereby avoid the desegregation of the University of Texas Law School. But up until the mid-1950s, until the time of Brown versus Board itself, 1954, it seemed that the cases had been turning on the separate but equal doctrine. So, when the Court heard arguments in Brown versus Board of Education the Court in effect assumed that, for the purpose of the case, that the facilities, black and white, either were equal or were in the process of being made equal; so that the case could not turn on that. They wanted to get that out of the picture and that brought them face to face with the central proposition. Is it, or can it be constitutional to separate students by race in public education, outright under the 14th Amendment. The Court talked a little bit about psychological findings, a sociological studies, I think all of that is frankly not central to the opinion. If one looks closely at Brown you find what it's really about, is this core proposition namely that it is inherently unequal, as the court put it, inherently unconstitutional to separate students by race in public education.
Mr. Gilliam: And how did the Court decide that?
Mr. Howard: Well they did that- it's interesting that they had arguments and then re-arguments on the question of what the framers of the 14th amendment intended. What was the state of affairs of 1868? And what are the problems you encounter there is that the Congress that approved the fourteenth amendment for promulgation of the states for ratification also appropriated money for segregated schools in the District of Columbia. Well, if you held yourself in a freeze-frame at 1868, you might say, "Well segregated schools must be constitutional." Well the Court pretty much brushed that aside. They heard the arguments on the history, but it was clear that the - that Earl Warren and Hugo Black and the others who made up the Warren Court in 1964, were simply impatient with the argument that you could hold back the forces of progress by looking at that 19th century history. Brown really is a progressive decision, which emphasizes how central education is to American life. That's what that opinion is finally about. That you cannot succeed in modern America without a good education and therefore there's a central moral decision at stake. Brown is as much a decision about how you treat people, the moral implications of public life, as it is the technical legalities of the law. You have to read Brown versus Board of Education not as a technical study in legal niceties but as a broad-brush conclusion about how we should treat a moral issue like desegregation.
Mr. Gilliam: Some people have argued that the defining characteristic of Americans is an abiding sense of hope. How did the American romance with hope and infinite possibilities play into the Court's thinking in Brown?
Mr. Howard: Well, it's an essentially up beat opinion. Earl Warren was of manifestly optimistic kind of guy. He was the ultimate American representative of the Progressive movement of the first half of the twentieth century. I think, he was the sort of person, who through force of personality shaped that opinion. No one had ever accused Earl Warren of being a legal scholar. He wasn't burdened with that sort of thing. He saw things in simple straightforward grounds and it was, essentially, the expectation of hope. That as we begin the second half of the twentieth century World War II was behind us, prosperity was in the land. The '50s were prosperous time for most Americans, and yet it was clear that Black Americans were being left behind in that prosperity. Despite the contributions they had made in World War II, and to the war effort back at home and war industries and otherwise. They were simply could not be part of that new prosperity, that new expectation of hope unless they were able to be in the same classrooms with their white counterparts.
Mr. Gilliam: The decision of the Court seems to be almost detached from the real litigants, real people. It seems to almost float above the fray. There was no remedy explicitly stated. There was no timetable for compliance. It was almost like, as you say, a moral guidepost. Why did the Supreme Court duck or not confront at least the important issue of how and when?
Mr. Howard: On May the 17 in 1954 when the Court decided Brown versus Board of Education. The Court's opinion has a simple quality to it. It's an opinion, which actually papers over some of the internal concerns among the justices. It was possible, there might have been a dissent or two, Justice Frankfurter was concerned about the remedy, Justice Reed was a bit concerned, Justice Clark. Earl Warren realized that this opinion, because of the - it's confronting such a corrosive racial problem had to be unanimous. Well, one way to make it unanimous was to make it simple. Another way was to put off the question of implementation. So, the Court having decided in May, 1954 that school desegregation had to come about, that the separation of the races in public education was inherently unequal, then put off a re-argument, or a further argument the question of remedy. Therefore a year later, 1954, the court in the second Brown opinion addressed the question of how the country should go about implementing the Brown opinion itself. What's interesting about the 1955 opinion, two things: First, that the court did not itself try to set out what all the remedies must be. It gave examples of the sort of thing which might have to happen: redrawing of attendance boundaries, adjustment of school faculties, that kind of thing, but it gave no real attention to that. What it basically said was we're remanding this case back to the district courts, the Federal District Courts, for them to decide what remedies are appropriate given the circumstances of each school district. And then the court coined, or let's say, rediscovered a phrase which is forever, I think, imprinted on the public consciousness, and that it, they said that school desegregation must proceed with all deliberate speed. Now, that's a phrase that's is drawn from English equity practice it has centuries of jurisprudence behind it. In the garden-variety case it's not a very controversial phrase. But there's a certain built in ambiguity, attention. It's a phrase that is almost at war with itself. How can you be both deliberate, on the one hand, and undertake speed on the other. Well of course a phrase like that played into the hands of the opponents of Brown. The people who were gonna make sure that there was not gonna, in their lifetime, be any school integration. They sort of forgot the speed part and grabbed on to the deliberate part of it. So, when the district courts throughout the southern states had to begin to implement Brown, what they encountered was a rising air of hostility fanned by political rhetoric, fanned by lawyers who began to invent all kinds fancy ideas to make sure that Brown would never became the law of the land. So, the process after Brown II in 1955 was very arduous, hard fought, case by case, district by district under this formula of all deliberate speed.
Brown II
Mr. Gilliam: And yet the Brown II decision could be viewed as the ultimate confirmation of traditional notions of federalism. Where it was sent back to the localities and the states, and if they failed then to the lowest level of federal court to work on these local problems. Could you, sort of discuss how you see this relating to the traditional notions of federal state relationships?
Mr. Howard: You have to carry yourself back in time to 1955. Because the Warren Court was not yet fully full-blown. The 1960s were the hey-day of Warren Court activism when the states began to be seen, by the court, as part of the problem. In the 1950s, the court was still of a mind that traditional federalism principles should apply. Frankfurter, in particular, was anxious that the states be given the chance to fashion problems appropriate to local conditions. I believe the justices, this is my personal impression, the justices that I've - remember from those days, having talked to, hearing what they had to say about Brown. I think they had no idea, how much resistance and opposition there was going to be to Brown. And that's why they saw this as a traditional equitable remedy. I mean they knew this was not an easy thing to do. But they thought it would be a matter of trying working out with - local folks would have input at the level of the district court. You wouldn't have a uniform remedy for the entire country. That of course, rural areas and cities might differ. Areas with large racial populations might differ from those with a small cluster of minorities. And of course you would have variations. But, I think there was a fundamental hope that things would move along at a measured pace and say in a few years time, say by 1960, let's say, things would be well on the road to completion. It turned out history didn't work out that way, but I'm not sure that the justices could have expected things to be like that.
Mr. Gilliam: In Virginia, localities reacted in many different ways. Prince Edward County seemed to develop the most extreme reaction. What can you tell about what was going on in Prince Edward County and what led up to the 1964 Supreme Court case in Griffin?
Prince Edward Case
Mr. Howard: I think - It's interesting that Prince Edward should have been the focal point. Because if you think about Southside Virginia, Charlotte, Mecklenburg, Brunswick, all the other counties. Why Prince Edward? It could have been some of the other counties. One reason of course is that Prince Edward was after all one of the original five lawsuits which were brought together to be Brown versus Board of Education in 1954. You had cases from South Carolina, Kansas, Delaware, the District of Columbia and Virginia. So, in a sense the Prince Edward case was near the head of the queue to begin with. But, I think there was more than that at work, I think the local newspaper, the Farmville Herald, played a role in fanning resistance down there and I think finally, the local officials who were committed to resistance were aided and abetted in every way by the Commonwealth of Virginia, by the political leadership, by the Byrd machine, which frankly was beginning to sort of lose hold and in some ways you'd have to say that it was the racial issue actually that gave the Byrd machine a further lease on life from the '50s into the '60s. So, they were not unhappy in that respect, politically, about the way things were going. And in Richmond the legislature was beginning to devise Massive Resistance, pupil-placement programs, freedom of choice. In many ways Virginia became the cockpit of legal devices for resisting Brown versus Board of Education. Obviously, tempers ran even higher in the Deep South as we discovered in the 1960s with the Civil Rights Movement. But, Virginia has always had this legalistic tradition and so interposition, which had died in the 19th century, was reborn. Jack Kilpatrick on the pages of the Richmond News Leader sort of rediscovered that doctrine. So, in Richmond there was this hot bed of how can we use the form of the law, the Virginia Constitution, the state statutes, litigation in the courts to put off desegregation and Prince Edward Country became the stage on which all of this was being acted out. Obviously it affected other communities, Charlottesville, Norfolk, Arlington, and others. But I think somehow Prince Edward became the test case.
Mr. Gilliam: So, Prince Edward decided that it would do something that the state had been ordered not to do and that is to simply not appropriate any money for any schools, for any public schools.
Mr. Howard: That's exactly right. The state at first in 1956, as part of massive resistance had basically taken the power in its own hands to decide to close schools, well the Virginia Supreme Court under the state constitution held that that was not permissible by state law.
Mr. Gilliam: In Harrison v. Day?
Mr. Howard: Exactly, in Harrison v. Day the Supreme Court of Virginia said that Virginia's constitution was violated when the state undertook to close particular schools or withhold state funds. Well in effect that passed the ball back to the counties and in 1959 with another round of state legislation the state moved from massive resistance to a new phase, in which they repealed the compulsory public attendance laws, they revised Virginia's constitution to permit tuition grants to be given to children in nonsectarian nonprofit private schools. So, they basically were putting in place a set of legal tools, no one of which would be seen to do the job of preventing integration but could be used in tandem. Well, Prince Edward set out to use all of those tools. Closing the schools outright, making local tuition grants available to students in those schools, using state tuition grants to supplement the local grants and finally giving property tax exemptions for people who made contributions to the then emerging private academies in Prince Edward. So, you had all the pieces were being put in place and for the first year from 1959 to 1960 basically the private academy was being run with private funds. But, starting in 1960 with all these state devices in place for the next four years, you had rather a nice system operating for the white students. Because they were the ones in the Prince Edward County Academy being clearly made possible first by the fact that public schools were not open and therefore required no public funds, no taxes were being levied for those schools, and then of course being made possible by the channeling of both state and county money to students who were going to the private schools. It seemed like a neat legal package to get around Brown.
Mr. Gilliam: As I understand, Prince Edward County's basic argument as the case went through the court was that under our basic notions of federalism, a federal court cannot order a local board of supervisors to appropriate money for tax - to levy a tax to appropriate money for schools.-
Mr. Howard: Exactly.
Mr. Gilliam: And certainly, if the federal court had attempted on a naked basis to order a local jurisdiction to levy a tax and appropriate it for anything there would have been howls from the traditionalist. How did the Supreme Court get around that argument?
Mr. Howard: The key to the 1964 Prince Edward County case in the Supreme Court, I think was the step that the court took beyond the traditional remedies. Traditional remedies being telling the state or local authorities what they must not do, what they could not do, what the constitution forbade them to do, a transition from that into actually allowing federal courts to place positive or affirmative mandates upon school boards, or local governing bodies. Up to this point, from 1954, the first Brown decision, for the next decade or so, the remedies that were being used by federal district courts to implement Brown were essentially negative remedies. For example, the district court that had supervision of the Prince Edward County case, did enjoin the county from giving tuition grants. Well that's a negative remedy. They say you can't do that; you can't give them the money. But the district court had stopped short of telling the county you must levy taxes and reopen the schools. That would have been a step, which I think a district judge would have thought beyond his equitable or remedial powers and then therefore something he wouldn't have been willing to do. When the case got to the Supreme Court in 1964, you have to realize now this is ten years after Brown versus Board of Education and the Supreme Court had really heard very few cases in that decade of time. They had Cooper versus Aaron, the Little Rock case, back in 1956, and of course they had the second Brown decision in 1955, but with those exceptions, that decade had pretty much gone by with the burden on the local courts, the federal district courts to try to work out things. Well, the Supreme Court was not unaware that not much was happening, token integration in most parts of the South. In Virginia, schools for example very few blacks were going to school with whites. Even ten years after Brown, well the - it was clear that the all deliberate speed language had collapsed, that that formula wasn't going to work, the Court was beginning to be increasingly impatient. Also by 1964, one has to realize by that time the Warren Court was in full stride, that some - Felix Frankfurter had left - had had a stroke and left the court. He had been replaced by Arthur Goldberg who was an activist. There was now a working liberal activist majority on the U.S. Supreme Court. This is the era of one-person one vote, of Miranda, of the nationalization of criminal procedure and so forth. So, in that context, you have a court hearing the Prince Edward County case, here it is ten years later and Prince Edward County is back. And think, not only has progress not been made, but things are worse because the public schools are not even open in Prince Edward County, at least they open in 1954 as poor as they might have been at that time. So, the court, clearly having lost patience, wrote an opinion, and it's a fairly short opinion. It's not very long, it's not very technical, basically the court recited the history of what had happened at Prince Edward County and said, "This won't do. That, we'll lay aside the question what might have happened if all the schools in Virginia had closed. But here you've got one county. School children throughout Virginia are going to schools every day. But not in Prince Edward County. They've closed their schools. That is not equal protection of the laws under the fourteenth amendment. White children have this opportunity to go to these private schools, but black children are just out of luck." So, the court said, first they said, "even assuming-", and this is a pretty big rich-reach, "even assuming that their might be an occasion for a county to close public schools, whatever might justify that race and opposition to desegregation does not qualify as a constitutional reason, so can't be done. Therefore a right has been violated." And now, unlike Brown I back in 1954, the court in the 1964 decision moved right on to the remedy stage. And say, fine, now we have told you that the right has been violated, what does Prince Edward County have to do about it? And the Supreme Court remanded the case to the District Court saying, "not only is it appropriate to enjoin tuition grants, the channeling of public money to private students, it's appropriate that the remedy include an order to the Prince Edward County Board of Supervisors to levy taxes for schools and to reopen the schools." Now that opinion short as it was, was a very significant step forward for the cases right up to the 1960s. Traditionally remedies had been, remedies in which you tried to encourage people to do something by saying what they couldn't do. By making it hard for them to do what they want to do they would have to move on to do the right thing. The court by the 1960s now reached the point of being willing to say, even to a publicly elected county of board supervisors, here's what you have to do. You will do this to implement the constitution.
1971 Constitution
Mr. Gilliam: You addressed some of the issues that had come up in the Price Edward County case. How was the 1971 constitution structured so that this type of argument could never again be made?
Mr. Howard: The present Virginia constitution, the 1971 constitution, was actually in the process of being drafted and adopted and approved in the late '60s and early '70s so it came right on the heels of this 1964 Prince Edward County decision. Obviously, both the commission, the constitutional revision commission and the members of the legislature were very much aware that among the major issues to be decided during the revision process was how to deal with public education. There were other important issues as well, but this one was especially touchy. The commissioners, and I certainly think they did the right thing, tried to drive the legislature in the direction of being sure that we would never see a repetition of what happened in Prince Edward County. And the result of that, I think actually is a pretty good formula. The General Assembly, under the 1971 constitution, has the primary responsibility for deciding how much money needs to be appropriated statewide to support schools. The Board of Education has the primary responsibility for curriculum and structuring what's to be taught. So, there's a sort of a tandem responsibility there. Now, within that framework you have the role of the counties and cities and we have in Virginia, as in so many states, a long tradition of local control of schools; and neither the commission or the legislature wanted to so centralize public education as to undermine that tradition. I mean, I would argue and I think - I hope others would agree, that the vitality of public education ultimately depends upon the commitment of people at the grass roots level. The people who support the school, who send their children to schools, who see what happens day to day; they have to feel like they have a direct voice in running those schools. So, what we tried to do in drafting the new constitution was to keep that tradition very much part of the scene, while at the same time, not allowing local decisions to run amok as they did in Prince Edward County.
Mr. Howard: In shaping the education article of the new constitution we tried on the one hand to preserve a respect for local input, the tradition of local people having an important say in how local school should be run. But coupling that with the recognition that there is also a important state role to be played, including an adherence to the values which are constitutional values, equal protection and equality. So, what we tried to do was while having local schools run by local boards of education and local superintendents, then have the legislatures role being one of deciding how much money was needed both statewide and jurisdiction by jurisdiction and once the General Assembly fixes those amounts and decides how much each locality should contribute.
Mr. Gilliam: When you framed the 1971 constitution what balance were you trying to seek between local and state, and what was the- what's the net result?
Mr. Howard: In framing the 1971 constitution we sought to strike a reasonable balance between local control of local schools and the ability of the state, and indeed a mandate at the state level, to see that certain values were preserved at the same time. I think we were able to do that, in particular in how money is to be allocated to schools. That when the General Assembly decides how much money is needed to run the school system statewide, and county and city, by county and city. Then there's a mandate upon those localities to contribute their share and indeed under the Virginia constitution no city or county may close its schools. They are under a constitutional mandate to keep their schools open and to make their contributions to it. And the reason for that provision is obvious, and that is Prince Edward County. That Prince Edward County having run amok in the 1960s we were determined that that should not happen again in Virginia and I think the new constitution does that.

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