70 VILLANOVA LAW REVIEW [VOL. 6: p. 69 Unlike Edmond Cahn, I am doubtful, as well, about the wisdom of the decision in the desegregation cases. Though more vague and less crude, the Court's reasoning strikes me as having something in common with Professor Clark's conclusions even though not relying on his evidence. I shall try first to indicate once more my doubts about the decision and then to clarify the difference between social science and Professor Clark's doings. INTENDED AND ACTUAL EFFECTS OF Brown v. Board of Educ. The Court's intention in the Brown case was to end the humiliation and the attendant psychological damage to Negro children found to inhere in segregation. Will the means the Court has chosen accomplish this end? Will the prejudice which inflicts humiliation on Negroes be disminished? Events seem to have confirmed my original guess that the Court's action will turn out to be a very mixed blessing. It is often assumed that prejudice springs from ignorance and is reduced by knowledge and contact. This is certainly the case if the prejudice has no source but misinformation. Yet, misinformation often is the effect and not the cause of prejudice which itself springs from a variety of social and psychological sources. Information, or contact, is no cure where misinformation is the effect and not the cause of preju dice. The slaughter of the Jews in Germany was not due to ignorance or preceded by segregation or avoided by contact. In times past, hundreds of thousands of harmless old women were burned as witches. The people who accused them of being witches, who saw them riding through the air, etc., were their neighbors, villagers who had known them long and well. Clearly, contact produces as much as it reduces prejudice. And divorce cases suggest that even prolonged and intimate contact can produce hostility, contempt and prejudice just as well as affection, respect and knowledge. Much depends upon the conditions in which the contact takes place. Now, the imposition of congregation by the Court in Washing ton will hardly make the local white children compelled to go to school with Negro children (or their families which influence them) recep tive to the ideals to be fostered; nor will the circumstances help them perceive the actual individual Negro as distinguished from the stere type, or generate the open mind and the warmth the new schoolmate want. One need not be a psychologist to see that many, even of the previously indifferent or well-disposed, are likely to turn against the +82 1960] SOCIAL SCIENCE 71 Negroes: Southern resentment of the imposition is likely to be shifted the supposed to benefit from it. Is it less damaging for the Negru children to go to school together with resentful whites than arately? I cannot imagine that being resented and shunned perrally and concretely by their white schoolmates throughout every would be less humiliating to Negro children than a general abart knowledge that they are separately educated because of white relice. Curiously, social scientists, with rare exceptions, are not - interested in investigating the effects on Negro children of going hol with hostile whites. Desegregated education is supposed to almost magically -hence no need to investigate actual effects. The Court's view that "segregation with the sanction of the law" miliating is doubtlessly true under the historical circumstances. the implication that such segregation is more humiliating than gregation by legal compulsion is a non sequitur; yet no independent lence or argument supporting it was offered. Since the Court's rate! purpose was to extend constitutional protection against humiliaand is presumed effects, it seems to me that the Court should asked itself whether given its duty to extend such protection was effectively doing so. As it is, quite possibly the Court prescribed a medicinam pejor morbus, intensifying the humiliation it meant to ::inate. DOES THE CONSTITUTION REQUIRE The constitutional duty shouldered by the Court to protect against :: . 72 VILLANOVA LAW REVIEW [VOL. 6: p. 69 does not shed much light on the question; it does not, therefore, avoid the impression that the Constitution makes togetherness compulsory in public institutions if one of the parties feels disturbed by segregation. It is mainly the compulsory feature that makes me uneasy. Professor Clark writes: "nowhere does the Court demand what Dr. van den Haag calls 'compulsory congregation.' And certainly the Court does not attempt 'to compel equal esteem of groups for each other.'” He concludes that I "did not read or did not understand" the decision. This allegation seems inspired by the following passage.10 "The Supreme Court's decision did not deny that segregated facilities, equally good in all material respects, might be offered to all groups. But material equality, the Justices now hold, is not enough. The equal protection clause of the Fourteenth Amendment and the due process clause of the Fifth Amendment are found violated whenever, by means of segregating the members of a group in public facilities, the government intends to impose (or maintain) an inferior status for the group. The Court had little doubt that this was the intent or that the segregated Negroes felt slighted and were thus hurt. "Had the Court outlawed only the compulsory segregation of groups legislated by many Southern states, it would have extended freedom of association hitherto denied those Southerners of both races who wanted their children in mixed public schools. But the 1954 doctrine goes beyond prohibiting compulsory segregation to replace it with compulsory congregation. The Court, to increase freedom of association, curtailed freedom of dissociation. The Fourteenth Amendment was interpreted to mean that no group has the right to be separated from another on public property when the other's pride is hurt thereby. "If the pride. of one group is hurt by compulsory segregation, the pride of the other might be hurt by compulsory congregation. The pride of the group resisting congregation, the Court must have felt, is arrogant and snobbish and rests on a feeling of superiority undeserving of public protection. Whereas Negroes were found deserving of protection when they resist being stigmatized as inferior, injured in their pride, by segregation. Thus, not only are people equal before the law; the law now actively prevents one group from stamping another as inferior by refusing to open public facilities to common use. "The Court's decision has the defects of its virtues: it at tempts to compel equal esteem of groups for each other. This attempt narrows, as well as enlarges, the right we each have to associate with whoever consents to associate with us and to dis 9. Clark, supra note 5 at 237. 10. Ross & VAN DEN HAAG, op. cit. supra note 2 at 163. FALL 1960] SOCIAL SCIENCE 73 sociate from whomever we do not care to associate with. Of course people can still send their children to private segregated schools. But this makes segregation a privilege of the rich. The snob value of segregation will be increased thus, as well as the resentment of the Southern 'poor whites,' who must use the public schools and are already a highly prejudiced group.. Time will tell whether the Court overshot its mark whether its generosity exceeded its wisdom." I believe that it is fair to say that segregation is compulsory if imposed by law regardless of the wishes of at least one of the segregated groups; and, eo ipso, that congregation is compulsory if imposed by law regardless of the wishes of at least one of the groups concerned. Further, the purpose of the Court in decreeing compulsory congregation was to end a situation which (in the language of the lower courts cited with approval by Chief Justice Warren) denotes "the inferiority of the Negro group." I think it is fair and reasonable then to interpret the Court's mandate as compelling congregation in the hope of compelling "equal esteem" of the groups for each other. After all, the Court, though vague, did not suggest that congregation is a good per se; or segregation bad per se; it found segregation "inherently unequal" because of its humiliating connotations which congregation was to avoid. An alternative reading is possible, but would lead to very odd conclusions and deprive the decision of the rationale it is generally conceded to have. Hence, my opinion remains that, though the end be laudable, the means do not suit it; that compulsory congregation is objectionable and not the proper remedy for the at least equally objectionable compulsory segregation its replaces. The Court would have been on better grounds legally, morally and in terms of prospective effects had it outlawed compulsory segregation without replacing it with compulsory congregation.11 11. VAN DEN HAAG, EDUCATION AS AN INDUSTRY appendix B (1956): "People have a right to be prejudiced and intolerant, although one has a right to persuade them to truth and tolerance, and educators have a duty to do so. But no one has a right to impose his prejudice and to injure others through his intolerance. Laws permitting segregation must be distinguished from laws making segregation (or nonsegregation) compulsory. The former increase, while the latter decrease freedom. "There should be schools for whites, schools for Negroes, and schools which both can attend, just as there are colleges for males, females, and cocducational ones. As any man or woman may choose a college restricted to his (or her) own sex, or one attended by both, so any white or Negro should be able to choose freely a school attended by those of his own group alone, or one where attendance by both groups is permitted. Neither the legal enforcement of segregation or compulsory congreFation the outlawing of segregation are consistent with freedom. No Negro (or white) ought to be compelled to attend an exclusive Negro (or white) school, but any Negro (or white) ought to be allowed, if he wants to. Whether the school chosen by the student (or the school which has elected to accept him) is 'white', 74 VILLANOVA LAW REVIEW [VOL. 6: p. 69 . ILLITERACIES, IRRELEVANCIES AND INACCURACIES Professor Clark is sure that an analysis which comes to conclusions differing from his own cannot be based on "direct knowledge of the facts" and is due to failure to "read" or "understand" the relevant material. This accusation is levelled against me whenever I differ from Professor Clark, be it only in phrasing. Nor am I the only victim. Thus, Edmond Cahn wrote:12 "Moreover, if affronts are repeated often enough, they may ultimately injure the victim's backbone. We hear there are American Negroes who protest they do not feel insulted by racially segregated public schools. If there are any such Negroes, then they are the ones who have been injured most grievously of all, because segregation has shattered their spines and deprived them of self-respect." Professor Clark comments as follows:18 The 'shattering of spines' is Professor Cahn's contribution to the knowledge of the detrimental effects of racial segregation. No social scientist testified to this 'fact'." This comment has the merit of throwing into bold 'mixed', or 'black', it should afford educational opportunity equal to that of the school forsaken for 'racial' reasons. "Should Negroes (or whites) not elect to attend schools restricted to their 'race' these schools would disappear and only mixed ones would survive. But that would happen only as prejudices are overcome, not as a result of legal compulsion. Neither Negroes nor whites should be compelled to associate with each other, but both should be free to. This implies that either group may on occasion reject association with the other. It is true that if one wants to associates with someone and is rejected, it hurts. But would it hurt less to be tolerated by legal compulsion? To this possible pain we all must adjust ourselves throughout our adult life — and if segregation at times seems silly, the demand for compulsory nonsegregation is more silly. The right to freely associate with, or disassociate from, each other is a basic constituent of freedom even if the use made of this right is at times snobbish, silly or misinformed. Should schools which exclude whites (or Negroes) survive, they will do no more harm than the survival of Smith or Amherst though we must admit that the reasons for the segregation of races are even less logical than those for segregation of sexes. al "Many believe that although the foregoing argument is correct, putting it in practice would be too expensive for the communities likely to want separate schools in addition to mixed ones which would become obligatory if separate facilities are provided. The mixed schools would accommodate the group which does not wish to be deprived of association with 'races' other than its own. It is true that the triplication of facilities (which is not always required; the same facilities may be used separately at times) involves considerable extra expense. But in a democracy, a community has the right to decide whether it wants less education per capita and lower taxes, or more education and higher taxes, and also whether it wants less good (but equal) facilities, for the sake of the desired separation; just as it has the right to decide on more beer and less education if it wishes. We may try to persuade people not to take that decision; but we may not compel them." Events have convinced me that the Court's decision is not likely to achieve more actual congregation than my proposals would have. Possibly less. And having caused much resistance, the decision might well delay even this result and in the process intensify hostilities all around. 12. Cahn, supra note 1 at 158-59. |