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Playing the Long Game

Virginia Civil Rights Memorial: The sculpture by artist Stanley Bleifeld portrays Barbara Johns, who, when she was sixteen years old, led a student walkout from the woefully inadequate high school for African Americans in Farmville, Virginia.

April 23, 1951 is not a day that will live in infamy. Except, perhaps for some klansmen and school administrators who struggle, even now, to keep black children out of public schools.

But it is a day that progressives should remember and reflect upon as new, younger, less hidebound members of Congress start challenging the "norms" and the standard protocols and manners that allow new ideas to be discussed, and too often dismissed, while corporate lobbyists instruct both Democrats and Republicans about what the big-business community wants done.

On April 23, 1951, 16-year-old Barbara Johns convinced, then led, 450 students to walk out of their segregated high school in Farmville, Virginia. White school administrators wanted their strike to end. The NAACP wanted the students to return to class, telling them to bide their time, and wait for gradual progress. The students stayed out of school and the NAACP Legal Defense Fund ("LDF") finally agreed to file a desegregation suit for them.

Davis v. County School Board became one of the five cases that were joined together to be argued and decided by the United States Supreme Court under the name of Brown v. Board of Education. Of the five cases, Davis, spurred by Barbara John's school strike, was the only suit filed as the result of action by students, children, rather than by parents, wanting better schools.

In four weeks, we will celebrate the 65th anniversary of the Brown v. Board of Education decision, and will lament how long the stony road stretches before us until that decision becomes more real than aspirational. The paths of the cases that combined to become Brown are as relevant today as they were in the early 50s.

In four weeks, we will celebrate the 65th anniversary of the Brown v. Board of Education decision, and will lament how long the stony road stretches before us until that decision becomes more real than aspirational. The paths of the cases that combined to become Brown are as relevant today as they were in the early 50s. Learning their lessons could help today's progressives, trying to modernize the House and Senate, and more local political bodies, to avoid time consuming mistakes, and seize opportunities.

When Barbara Johns hatched her plan for a student strike, many black leaders opposed such action. The NAACP had a carefully considered desegregation strategy. They planned to work from the top down, desegregating graduate and professional schools, then colleges, and only after that work, attempting to desegregate high, middle and elementary schools. Leaders were apprehensive that direct assault on the most populous schools, elementary and middle schools would be much more threatening to the white population, and likely to lead to adverse precedents that would then be difficult to attack. The NAACP planned and tried to stick to a very Pelosi/Biden-like steady, "sensible" strategy of measured progress.

Steady, measured, well planned progress can lead to fabulous results. Thurgood Marshall's planned attack on segregation laid down a pattern of decisions that would lead to Brown v. Board. But while building that record, the law, with all its majesty and procedural pace, left young children to languish in segregated non-schools while lawyers made learned arguments and appealed adverse decisions.

Men who had fought the Nazi scourge in WW-II returned home with little interest in being told that they should sink back into America's apartheid system, and they should teach their children "proper" obeisance. They had seen other worlds. They had heard lectures on freedom and tyranny. And they wanted better for their children than they had had.

They taught their children what they had seen and learned. They gave them dreams of a better world. No one had taught them, parents or children, about legal procedure and protocol, or the need for the stately pace of litigation. No one taught them the benefits of "top down" desegregation efforts. And when people told them, "not this generation, it will be better for your children's children" they demurred.

Around the nation, but mostly in RED states, parents of young black children took them to white schools and tried to enroll them. When they were turned away, they turned to local lawyers to file desegregation lawsuits for them. They relied on the precedents the NAACP had been racking up in graduate and professional school cases.

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And they lost. Over and over. Courts cited Plessy v. Ferguson for the law that segregation was OK, as long as segregated schools were "separate but equal."

So creative lawyers started to take that requirement seriously. They started to establish that there were NO "equal" schools for black children. Some suits demanded equal schools instead of integrated schools. And white-controlled school districts resisted such demands with the same stridency they used against integrating schools. They provided the evidence that, whatever the Plessy requirement, they had no intention of ever providing equal schools for black children.

When Barbara John's parents filed the Davis case, they didn't tell the NAACP to pound sand because it wanted a slow, steady course of litigation. They asked for and received the NAACP's best, most experienced litigators. They differed on policy, but they shared long-game goals, and they knew that the NAACP had the legal talent and the practical experience to bring the results that they desired.

Antonin Scalia learned this lesson when Anthony Kennedy relied on Scalia's language to justify legalizing gay marriage. Sometimes the strongest argument for your case is voiced by your most strident opponents. The lawyers for the women in whose favor Kennedy ruled knew Kennedy to be both a hardcore misogynist and a racist. But they put their lives in his hands because of his experience living in San Francisco.

Progressives should learn from history. They may have different goals and may want different things than Nancy Pelosi or Elijah Cummings. But on many, many policies and aspirations they agree. And Alexandria Ocasio-Cortez, wise beyond her years, has acknowledged that she is just learning about how Congress and Washington work.

People who want significant change now will benefit by studying those who worked significant change in the past. Our founding fathers fought a bloody war against their Royalist oppressors, but during that war negotiated for support in traditional style with the equally oppressive French Royalist government and other monarchies. Black parents trying to get their children educated relied on our legal structures and evidentiary laws to finally get the Courts to recognize that there is NO "equal" as long as there is "separate." And the gay community repeatedly used the voices of homophobia to establish that all genders should have legal rights.

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It is heartening to see many new "progressives" touting a Green New Deal as a way to use our in-place system to plan and implement planet-saving proposals. Part of that effort should be built on using established, even "conservative" procedures and statements to explain both the need and the legislative right to take important progressive steps.

Similarly, corporate America watched the successes of churches organizing and driving the Civil Rights Movement. And they created the "moral majority" and other pro-business "religious" businesses to mimic that success for anti-Christian, anti-worker, anti-freedom goals. They built a huge and hugely profitable for-profit church community, based largely on entertaining "congregations" and making a few performer/ministers very wealthy.

But as every business does, they overreached. They ended up getting the Roberts Court to reverse centuries of jurisprudence, and hold that religious freedom cases should be decided on, among other evidence, the "sincerity" of the religious litigants. This is a massive opportunity for progressives to respond to the for-profit corporate church movement. People asserting religious beliefs for the right to discriminate, cheat, advertise falsely, etc. should be challenged on what the Supreme Court now says is the "sincerity" test of their beliefs.

This could be a major front for weakening the political power of corporate churches. But it can only work if people will use the tools and procedures that our traditional legal system has provided. Like the parents seeking better schools for their children, and the gays seeking equal rights for themselves, progressives will succeed if they work, where they can, within existing systems, rather than burning energy inventing and testing and weeding through potential new systems. And if they learn to use the words and procedures of the right wing against the right wing.

Tom Hall

Tom Hall