Review of Richard Kluger’s "Simple Justice" by Yvette Zmaila / Education Rights / In Motion Magazine

"Simple Justice" was written by Richard Kluger and covers the history of Brown v. Board of Education, the epochal Supreme Court decision that outlawed segregation, and the story of black America’s century-long struggle for equality under law….” It was published by Vintage Books, A Division of Random House, New York ©1977. During this time, desegregation was in its infancy. Although segregation was outlawed by the court in 1954, it took more than 20 years for states to fully respond to the court’s directives to desegregate schools. This review of Simple Justice was written as part of an independent reading project while attending the William S. Boyd School of Law in Las Vegas, Nevada.

In addition to this article, also read: "Reflections on the 50th Anniversary of the Brown Decision", by Pedro A. Noguera and Robert Cohen; and "50 years after Brown: Latinos paved way for historic school desegregation case" by Carlos Munoz Jr.

Kluger’s book is a comprehensive compilation of history that takes the reader from the inequities of slavery to freedom bells to the forcing of integration in schools and to the roots of laws with heavy affect on Blacks. The story is an unfolding process on how permission to hate caused the disparagement of millions of Blacks in America over nearly three hundred years. Consequently, with no rights bound to be honored the memories of Black people remains a slow fading picture of injustice, degradation and abuse. In essence, we are taught how Blacks were ultimately acknowledged their simple justice.

In some manner, Kluger’s tale presents America’s own version of a living holocaust. We face the underlying thread of Simple Justice in circular vignettes that distinguish between how slavery and segregation were no longer fashionable thinking as of 1954 when compared to the basic dishonesty underlying the history of how educating blacks separately from whites was justified by the various branches of government. Initially, Kluger places us in the deep South were ownership of Blacks was no different than owning a mule. Readers are confronted with the distasteful presentment of how Black people were perceived as slightly a degree above an animal bred to bid white man’s workload. Later, Kluger demonstrates how passage of the Thirteenth Amendment was intended to free slaves and describes the abolitionist’s efforts in doing so. Here, we learn that the freedom of Blacks was less a humanitarian act than an economic one. The battles between the North and South proved to, in theory, free slaves from bondage but at a cost. While a few good men prophesied that Blacks were created equal by God’s hands, the movement to free Blacks gained momentum spirited by economic and technological innovations such as the railroad, export, import, finance, and the North’s desire for more white immigrants to join America’s workforce to improve our then evolving nation. It was our inspiration for world power that freed slaves and gave them their initial phyrric victory of a vote with passage of the Fifteenth Amendment. Freemen were then placed to sea without a ship.

Later, Simple Justice becomes a visionary tour for understanding how the law has served to create and alter who we are as a society at this very moment here and now.1 A large part of the story tracks the evolution of the passage of the Fourteenth Amendment coupled with progressively more articulate acts for civil rights. Lastly, Kluger contributes to any would be attorney’s understanding of trial strategy and teamwork by providing a wealth of insight into the thinking and planning of lawsuits and legislation which gave heart and soul to the civil rights movement in America. In particular, it is fascinating to read about the shelf life of the Margold Strategy for pursing desegregation. We are instructed to know what they think and why they think it. Kluger helps us grasp how the courts have shaped what we mean by freedom, equality, liberty, property and equal protection of the laws. Ultimately, we learn how the Supreme Court of the United States became the forum, the only place that would listen, so that people of color could find their voice. This book, seemingly, is about Brown v. Board Education, but it turns out to be much more.

Although the bulk of Kluger’s story traces the legal challenges that affected Black peoples’ freedom, it cannot go unsaid that initially the read requires a confrontation with bondage. There is sadness to this part of America’s history that ought not to be forgotten. Kluger eloquently strings together words to bring one’s attention to the role of slavery since the early colonial times. Whether we attribute the human zest for ownership of colored people to the Roman empire or to our own deep-South we are forced to travel some distance by facing this essence of “man’s inhumanity to man”. To justify slavery as the “the way things were” still begs to define what lied beneath slave owners’ abilities to look past the wounded eyes and beating hearts of the black people they so brutally possessed. To the slave owners, blacks breath of life and flesh was only part human or three-fifths man. Our only glimpse of an explanation to this phenomenon outside of the economic realities explained by Kluger comes toward the tail end of the book, where Justice Jackson writes “…the Brown decision must be sensitive to the emotions of those who think their blood, birth and lineage is something worthy of protection by separatism….”

In retrospect, justice was not a condition precedent to the initial freeing of slaves. Only a handful of abolitionists argued that Blacks were created by God therewith deserving of their free will and brotherly love. In hindsight, Kruger’s story demonstrates that these men of moral conscience played the lesser role in the accomplishment of Blacks’ freedom. Both the beginning and end of slavery evolved from man’s greed for wealth. Within these parameters, Kluger’s account of the freedom movement and the amazing course of civil rights developments begin to take shape.

The Fifteenth amendment was passed in order to grant free Blacks participation in the polls. It was a political move insisted upon by the Republican Party desperately in need of the black vote to retain power and control of Congress. While seemingly a validation of black liberty, the voting mechanisms created in spite of the Fifthteenth Amendment proved to create a different form of peonage. Although blacks in theory held the right to vote, it was not until recent times (the Voting Act of 1965) that “one man one vote” became the norm. Black voters usually had to meet criteria that were impossible given their circumstances at the time. The tariffs on voting and restrictions proved to exclude black men’s’ votes for nearly two centuries. Kluger describes the ingenious methods used by whites to circumvent the laws that were passed to grant Blacks equality. Most heinous of all of course were the Jim Crow laws and state Black Codes. In the voting arena, it was not until well into the late twentieth century where the black voting block became influential. Interestingly, once the voting block was in motion the Republican founding party of the black vote made a full circle effort to contain it. Twenty years after Kluger published Simple Justice, the black vote continues to be controversial. Nevertheless, this story clearly demonstrates the effect of voting on liberty.

The heart of the black struggle has always included a “question of whether equality may prevail under conditions of separation”. Simple Justice provides detailed coverage of Brown v. Board of Education along with Plessy v. Ferguson and other notable cases in the history of the civil rights movement and desegregation of schools. After nearly three hundred years of Black history, the Supreme Court finally proclaims that “separate but equal” can no longer serve as good law. What we take from the history of the school desegregation cases is the idea that schools are the pillar of equality. We know that Brown is the old granddaddy of legal challenges to discrimination in elementary and secondary schools in South Carolina, Delaware, Virginia, Kansas, and the District of Columbia. However, what was born of Brown is the ultimate truth that learning and education is fundamental to the exercise of liberty. Now, many years later we continue to believe the words of Justice Warren when he said that education "is perhaps the most important function of state and local governments.... Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms."

Kluger’s accounts of the incredible battles fought for equal education by NAACP Legal Defense Fund attorneys and white converts with egalitarian souls is truly magnanimous when viewed in a today context. The legal battles of education during history extend benefits to all people of all colors in all ways. Our civil rights and protections have grown out of the boldness of a small group of people in the 1950’s who made it their business to use law as a mechanism to hold others accountable. It is indeed a fantastic exemplar of how statutes are given life. In Brown, the court defines liberty as that range of behaviors individuals are free to pursue in addition to freedom from bodily constraint to be restricted only when there is a proper government objective. It took several centuries of effort for the court to hold that segregation was not a reasonable government objective and that it imposed an arbitrary deprivation of liberty in view of the due process clause of the fifth and fourteenth Amendments. Something we now take for granted came so slowly and with such pain.

Beyond the political story, Brown confers to people in the trenches (educators per se) a most amazing responsibility to ensure that all children learn and become cognizant that they are created equal as a birthright. In Simple Justice, there are multiple accounts of the brave young black people who continued to show up at the doorsteps of professional schools and public schools even though they were clearly unwelcome. There is no doubt that Kluger intends his readers to encounter firmly a value for the intense struggle black people faced in order to gain access to learning. Still, we are left to contemplate how education serves as the buffer between survival of the fittest and elitism and how equalization with all “deliberate speed” has taken well over fifty years. Generally, Brown continues to serve a “conscious guiding” role in classrooms and school systems of America who still struggle to maintain color blind ordered services.

A great part of Kluger’s book covers the court decisions and strategies used by NAACP and its allies in finding mechanisms in which to ground their arguments for desegregation and full and fair equality. After numerous attempts to gain access to equal education in district courts, five cases were consolidated and worked their way up to the Supreme Court of the United States. Here, the Brown decision is memorialized in history as the court’s boldest step in serving as an agent of social change. In this case, equality in education went much beyond the four corners of a schoolhouse. Kluger’s Simple Justice is also instructive in teaching lessons about perpetuation. Despite Brown in 1954, Black children still disproportionately perform only half as well as their white peers. Kluger leaves us with questions as to how law is implemented in light of society’s customs, traditions and values. Although the government once no longer sanctions “separate but equal” cannot force individuals’ to change their perceptions about status and skin color. On account of Kluger, we are left to wonder if ever there will be a time in society where caste systems and poverty affect equally only those who do not strive or make efforts to improve their lots instead of those born different from the majority.

Indeed it is fascinating to think of how nine people cast their votes in a manner that made them the conscience of the American nation. A nothing to nothing victory (where the legislative history of the Fourteenth did neither require nor restrict segregation). Simple Justice is a story about how the court took risks, the zeal of white converts for the cause of racial equality (i.e., Waties Waring, Alfred Kelly, Elman and others) and the fortitude of black civil rights leaders and black attorneys working in unison to bring about meaning to legislation that proffered liberty and justice for all. Kluger presents the ingenuity; fears and desperate moves Blacks went through to accomplish these great tasks. We learn about how the legal dream team used sociological data and other evidence of segregation's malign effect on the psyches of black children to cause the Justices to emote. The evidence included black and white dolls used to demonstrate how the Fourteenth Amendment necessitated true equal protection to avoid harmful influence on the ability of children to learn. The team argued that segregation retarded the educational and mental development of Negro children such that they were deprived benefits they would receive in integrated schools. Kluger tells us how Chief Justice Warren and Felix Frankfurter resorted to crafty thinking, with a lack of consensus, to bring on board the other justices. Undeniably, their patience changed the face of “free at last” forever.

In addition, Simple Justice reminds us that freedom without resources is simply a different form of slavery. We get a glimpse of our current Chief Justice Rehnquist’s memo to Justice Jackson written while a young law clerk. In his writings, Rehnquist told the Justice "In the long run it is the majority who will determine what the constitutional rights of the minority are. I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by liberal colleagues, but I think Plessy v. Ferguson the legal foundation for mandatory racial segregation was right and should be re-affirmed." (William Rehnquist). Here again, Kluger presents a sample of the change process. This many years later, we are left to query the intent of our Chief Justice. We wonder, because of his denials, whether he still personally believes that separate but equal constitutes equality under the law. Of course, some of the staunch advocates of segregation later changed their hearts and became equally zealous advocates of righting past wrongs (i.e. Justice Harlan).

In this book, we are also introduced to a number of the pivotal brave black lawyers like Charles Houston, William Hastie, Thurgood Marshall, James Nabrit, and Spottswood Robinson who masterminded and strategize the legal battle that lead to moving the desegregation cases through the system up to the Supreme Court of the United States. We see how the NAACP advocated for access to higher education and how blacks gained access to graduate and professional education after battles like Missouri ex rel Gaines v. Canada (1938), Sweatt v. Painter (1950), and McLaurin v. Oklahoma (1950). Then came the children. Kluger shows us how one legal rule led to the next. In particular, Kluger demonstrates how United States v. Cruikshank, Plessy v. Ferguson and Roberts v. The City of Boston revealed the internal processes of the judiciary in dealing with its own prejudice. Judicial nominees played a significant role in delaying implementation of the post -Civil War Civil Rights Acts that were intended to flesh out black men’s freedom.

As well, Kluger shows us what people living during this time period thought about Brown with interviews and glimpses of the legal transcripts for the case. To some extent, we peak behind the scenes at the work product (mental impressions, diaries and notes) that were created by Justices Burton, Jackson, and Frankfurter during the Court’s private conferences on Brown. Beneath the robes, there is a view of how the Brown decision was shaped by the court. Though we never really know what went on in the minds of these nine justices, we do know they were conflicted in accommodating the people of the South and in upholding the true meaning of freedom, liberty, and justice. In some ways, the court was compelled to finesse black rights to contain white peoples’ outrage.

Initially, when Brown was argued the Court was sharply split. There was a narrow majority for ending segregation and overruling Plessy, but the decision lacked consensus and would probably be ineffective in rooting out segregation which the South hung on to as their deeply rooted culture bound values. Apparently, Justice Frankfurter persuaded the Court to reschedule until there was consensus, and the parties were to submit briefs on the legislative history of the Fourteenth Amendment. By luck of sorts, Chief Justice Vinson (who opposed overruling Plessy) died just before the new term opened. President Eisenhower appointed Chief Justice Warren and the Brown is the golden child of what would forever be known as “ the Warren Court.” Justice Warren tried to respect the Southerners but refused to politic away the meaning of free and equal.

Conclusion

Simple Justice hightlights many great efforts but makes the contribution of Thurgood Marshall a particularly awesome contribution to the current freedoms and equality we have as people of all colors. In a quote by Gene Seymour in a review of Thurgood Marshall: American Revolutionary by Juan Williams we are asked to reflect our present status taken in light of Kluger’s book. Seymour ends his review of Marshall’s role in the law with the idea that “...law, as Marshall believed in it, has done its part for the twentieth century. Whose turn is it for the twenty-first? Ours, one by one.”

Kluger’s book inspires readers who believe that separateness creates inferiority as to status in the community and damage to the hearts and minds of children in ways unlikely ever to be undone. As a result, Simple Justice is a terrific motivator for readers willing to be brave, as were the blacks who struggled for our liberties, by shouldering some of the responsibility toward helping society improve the remaining fragileness promulgated by poverty and discrimination. Simple Justice inspires human effort to continue combating the ill effects of ghettoization and poverty with modern day focus on economic progress and social justice rather than race based struggles. Civil rights advocates who read Kluger’s book depart with the idea that solidifying the rights of people of color creates respect for the rights of whites. Hence, civil rights and freedom reduces crime and increases human productivity. After all is said and done, equal protection must be a two way street.

Footnote 1

See Adoption of Fourteenth Amendment (1868) and relevant cases such as: Slaughterhouse Cases, Dred Scott, Plessy v. Ferguson (1896) Brown v. Board of Education (I and II), Briggs v. Elliot, Davis v. County Board of Virginia, Gebhardt v. Belton, Robert v. City of Boston, Brea College v. Kentucky, Gong Lum v. Rice, Bolling v. Sharpe, Cumming v. County Board of Education, Smith v. Allwright, Sweat v. Painter, McLaurin v. Oklahoma Board of Regents, San Antonio Independent Schools v. Rodriguez, Swann v. Charlotte Mechlenburg Board of Education, Murray V. Perason, Milken v. Bradley, Loving v. Virginia. Gomillion v. Lightfoot, Baker v. Carr, Escobedo v. Illinois, and Miranda v. Arizona.

About the author: Yvette Zmaila is a Puerto Rican educator who has devoted a good part of her career advocating for the improvement of education of minority children. She has a BS in Education, an MS in Counseling, an M. Ed. in Educational Administration; and graduated with a Juris Doctorate from the William S. Boyd School of Law in December 2003.

Published in In Motion Magazine March 2, 2005.