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The Pursuit of Racial and Ethnic
Equality in American Public Schools
The Pursuit of Racial
and Ethnic Equality in
American Public Schools
Mendez, Brown, and Beyond

Edited by Kristi L. Bowman

Michigan State University Press | East Lansing

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Contents

acknowledgments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ix

foreword by James E. Ryan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii

introduction by Kristi L. Bowman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xvii

PART I. Mendez, Brown, and the Civil Rights Act

Mendez (1946)

Standing on the Shoulders of Mendez v. Westminster . . . . . . . . . . . . . . . . . . . . . . . . . 5

Frederick P. Aguirre

Our Children Are Americans: Mendez v. Westminster and Mexican

American Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Philippa Strum
vi n Contents

Pursuing Equity at the Intersection of School Desegregation,

English-Language Instruction, and Immigration . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Kristi L. Bowman

Brown (1954)

The Rest of the Story of Brown v. Board of Education . . . . . . . . . . . . . . . . . . . . . . . . 57

Cheryl Brown Henderson

Brown v. Board of Education: An Axe in the Frozen Sea of Racism . . . . . . . . . . . . 61

Jack Greenberg

Integrating an All-White High School in the Segregated South:

Memories, Challenges, and Lessons Learned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Patricia A. Edwards

Brown’s 60th Anniversary: A Story of Judicial Isolation . . . . . . . . . . . . . . . . . . . . . . 97

Wendy Parker

The Civil Rights Act (1964)

Massive Resistance before the Civil Rights Act: The Integration

of Little Rock Central High School . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
John J. (Jack) Feeheley

Equity in Education: The Present and Future of the Civil Rights

Act of 1964. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
Allison R. Brown

Defining Discrimination: Intent, Impact, and the Future of Title VI

of the Civil Rights Act of 1964 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
Derek W. Black
 Contents n vii

PART II. Desegregation Unfolds

Milliken (1974)

Milliken v. Bradley: A Judicial Betrayal of Brown . . . . . . . . . . . . . . . . . . . . . . . . . . . 171

Nathaniel R. Jones

School Desegregation in Metropolitan Detroit: Struggling for Justice

in a Divided and Troubled Community . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
Joyce A. Baugh

Milliken and the Prospects for Racial Diversity in U.S. Public Schools . . . . . . . . 195
Charles T. Clotfelter

Jenkins (1995)

Missouri v. Jenkins: A Remedy without Objective Limitation . . . . . . . . . . . . . . . . 215

John R. Munich

Missed Opportunities, Enduring Legacies: School Segregation

and Desegregation in Kansas City, Missouri . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
Kevin Fox Gotham

The Legal Legacy of Missouri v. Jenkins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247

Kristi L. Bowman

Parents Involved and Meredith (2007)

Meredith v. Jefferson County Board of Education: A Community

Committed to Diverse Schools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273
Byron E. Leet

Making Schools More Separate and Unequal: Parents Involved in

Community Schools v. Seattle School District No. 1 . . . . . . . . . . . . . . . . . . . . . . . . . 279
Erwin Chemerinsky
viii n Contents

Contesting White Accumulation in Seattle: Toward a Materialist

Antiracist Analysis of School Desegregation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291
Michael J. Dumas

PART III. Looking to the Future

After Unitary Status: Examining Voluntary Integration Strategies

for Southern School Districts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315
Danielle R. Holley-Walker

Voluntary Integration and School Board Leadership in Louisville,

Kentucky . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339
Erica Frankenberg and Sarah Diem

How Adequacy Litigation Fails to Fulfill the Promise of Brown

(But How it Can Get Us Closer) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355
David Hinojosa and Karolina Walters

Teacher Evaluation and Collective Bargaining: The New Frontier

of Civil Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 381
Benjamin M. Superfine and Jessica J. Gottlieb

Education and Civil Rights: Lessons of Six Decades and Challenges

of a Changed Society . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .405
Gary Orfield

contributing authors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 431

index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 439
Acknowledgments

A volume like this is the result of the hard work of many, and perhaps
most importantly of the exceptionally talented contributing authors whose work
makes these issues of equity and equality come alive. In addition to expressing my
deep gratitude to each of the contributors, many others deserve thanks as well.
To begin with, Michigan State University Professors Nicholas Mercuro and John
Beck led the charge for MSU to commemorate the sixtieth anniversary of Brown v.
Board and the fiftieth anniversary of the federal Civil Rights Act, resulting in “Project
60/50”—a year-long, cross-campus series of over a hundred events focused on
understanding the legacy of these two monumental changes in law. One such event
was a unique and memorable symposium hosted at Michigan State University College
of Law and the University of Missouri-Kansas City College of Law in April 2014, and
shared between these two campuses via a two-day videoconference (MSU technology
geniuses Amanda Olivier and Matt Drury have my eternal gratitude for making the
whole thing work). Professor Mercuro played a substantial and indispensable role
in planning that conference, as did MSU College of Education Associate Dean and
Professor Michael Sedlak, Washington University Assistant Professor Michelle
Purdy, Michigan State Law Review Senior Symposia Editor Shannon Smith (MSU

n ix
x n Acknowledgments

Law ’14), and MSU Events Coordinator Sally Rice. UMKC Professor Daniel Weddle
and his team planned and hosted the Kansas City portion of the symposium and
in fact the genesis for the format came from his previous conference about student
speech. Most of the contributors to this volume came together in person and via
videoconference at our symposium. This volume, as well as a Michigan State Law
Review special issue, are both a direct outgrowth of that event.
The symposium was sponsored by numerous organizations and individuals,
including the Michigan State Law Review, the MSU College of Education, the MSU
Department of Political Science, the MSU LeFrak Forum on Science, Reason, and
Modern Democracy, the MSU Office for Inclusion and Intercultural Initiatives, the
Education Law Association, the University of Missouri-Kansas City School of Law,
the UMKC Joseph Cohen Lecture Fund, Sprint Corporation, UMB, UMKC Student
Affairs and student organizations, the Kansas City Metropolitan Bar Association, and
the following law firms in Kansas City: Ogletree Deakins; Husch Blackwell; Shook,
Hardy & Bacon LLP; Spencer, Fane, Britt & Browne, LLP; Wagstaff & Cartmell; and
Hardwick Law Firm LLC. MSU’s Project 60/50 also generously continued its support
of the symposium by assisting with the publication of this volume.
Many others deserve thanks for their work in helping shape and refine the
chapters in this volume. MSU Law students and recent graduates Courtney Soughers
(Class of 2014) and Kelsey Brunette (JD expected 2016) provided the bulk of edito-
rial assistance, assisted by Katila Howard (JD expected 2016) and Patrick O’Brien
(Class of 2013), and all of their efforts were excellent. MSU Law Librarian Barbara
Bean and my assistant Marie Gordon were helpful, as they always are, in countless
indispensable ways. Leading scholars across the country graciously agreed to review
chapters and provide helpful feedback to the authors, including Scott Bauries, Kevin
Brown, Tiffani Darden, Matthew Fletcher, Robert Garda Jr., Molly Hunter, Daniel
Kiel, Julie Mead, Eloise Pasachoff, Sarah Reckhow, Victor Romero, William Thro,
David Thronson, Kevin Welner, and John Yun.
Additionally, it has been a delight to work with MSU Press. Publisher Gabriel
Dotto and Editor in Chief Julie Loehr expressed early enthusiasm for this project;
Julie also provided essential advice about many issues. Julia Sullivan shepherded
nearly all of the chapters through some, if not all, of the editorial process, and Steven
Moore provided particularly helpful copyediting.
To end on a personal note, and to explain in part why I choose to spend my time
working on projects like this, it would be remiss if I did not also thank to my family
for their support and particularly my parents who taught me by their example that
public education is a community responsibility; the talented attorneys with whom I
practiced at Franczek Sullivan (now Franczek Radelet) in Chicago who let me share in
the awesome responsibility of representing school districts; and the many insightful
 Acknowledgments n xi

colleagues and students at MSU and across the country whose questions, comments,
and scholarship have continued to influence how and why I think and write about
education and equality. Finally, and perhaps most importantly, my husband Gabriel
Wrobel and our son Quinn Bowman Wrobel fill each day with small kindnesses and
great joy—and have shown such patience when I would be working on this volume
and say, again and again, “Just five more minutes.”

Kristi L. Bowman
East Lansing, Michigan
October 2014
 JAMES E. RYAN

Foreword

In 2014, as our nation celebrated the 60th anniversary of Brown v.

Board of Education, I was asked—on a number of different occasions—to remark
on the legacy of the decision. To be sure, Brown gave us much worth celebrating.
It overturned Plessy v. Ferguson by asserting that separate educational facilities are
inherently unequal; it put forth the idea that access to education was a fundamental
right; and it delivered a heartening victory to the growing civil rights movement.
But the legacy of Brown (as well as Mendez v. Westminster, which helped lay the
groundwork for the landmark Supreme Court desegregation case) has not been an
uninterrupted march toward equality and educational opportunity. In fact, in the
decades since, this country has done more than just stumble from the path charted
by Brown and Mendez. From the decision in Milliken v. Bradley to restrict the reach
of desegregation efforts to the ruling in Parents Involved v. Seattle that struck down
voluntary district integration plans, the Court has largely turned away from the goal
of racially integrated k–12 schools.
And as a people, we have mostly accepted school segregation as the status quo.
Rather than work to fulfill the underlying ideal of Brown, we have largely accepted
the divide between poor, minority, urban districts and middle-class, white, suburban

n xiii
xiv n James E. Ryan

districts. There are some who believe we can continue to educate our children in
separate school systems, relying on more money and more testing to equalize op-
portunity. But 40 years of school finance reform and 30 years of test-based reform tell
a much different story. African American and Latino students, despite modest gains,
continue to lag behind white students on achievement exams, in high school gradua-
tion rates, and in college completion rates. Separate may not inherently be unequal,
but isolation based on race and class almost invariably leads to disparate outcomes.
What may be lost in a focus on academic achievement, however, is a deeper
social issue that both Brown and Mendez address. Chief Justice Earl Warren was no
doubt correct in claiming that “the impact [of segregation] is greater when it has
the sanction of law,” but de facto segregation—if we are to accept the somewhat
questionable premise that residential segregation is entirely the result of private
choice—also threatens our society in a very real way. By 2043, the United States will
be majority-minority. The National Center for Education Statistics projected that
America’s public schools already became majority-minority in fall of 2014. And yet
the average white student attends a school that is nearly three-fourths white; the
average Latino student attends a school that is 57% Latino; and the average African
American student attends a school that is nearly half African American. More than
one in three African American children attend a 90–100% minority school, and the
percentage of African American students attending these high-density minority
schools in the Northeast has actually increased since 1968 (from 42.7% in 1968 to
51.4% in 2011). More and more, this nation is retreating—or being concentrated—into
enclaves of “our own kind.”
It would be simplistic to lay the weight of all of our society’s ills on the shoulders
of racial isolation in our schools. But when we are faced with images of race riots in
our streets or when we listen to the vitriol spewed at immigrants and their children,
can we honestly tell ourselves that none of this hatred or fear is born out of the
distance between us? The social and civic mission of schools was once more widely
accepted. In the early days of public education, advocates touted schools as training
grounds for future citizens—places where the values and knowledge necessary to
function in our democratic society could be instilled. Today, our society is becoming
increasingly diverse, and that fact will not change just because we refuse to confront
it. To be prepared for success in a pluralistic democracy—to be prepared to address
the challenges of stereotype, racism, and inequality of resources and opportunities
that such a democracy faces—we must learn how to build relationships across racial
and ethnic boundaries. Integrated schools can help us do this. They can teach our
children to appreciate rather than avoid difference and to understand more fully
how similar we really are. Integrated schools can lead, slowly but surely, to a more
integrated and just society.
 Foreword n xv

The question becomes—how do we do it? The answer is, of course, as complex as

the history that brought us here. This volume captures that complexity. It dismisses
the notion that the issue is as simple as “black and white,” beginning with a personal
and legal exploration of Mendez v. Westminster and the educational challenges
unique to Latino and Latina students. It details the triumph and tragedies of Brown
and tells the story of the Civil Rights Act from its roots on the steps of Little Rock
Central High School to the tests it faces in the modern era. It provides a sobering
review of the Supreme Court’s dismantling of the toolkit available to combat racial
isolation, from Milliken to Missouri v. Jenkins to Parents Involved. And it turns to
the future—to the paths, legal, grassroots, and otherwise, through which we can
continue to pursue racial and ethnic equality.
But most importantly, it helps to spark a conversation this nation must have.
We have to remove our heads from the sand, accept that separate simply cannot be
equal, and start to find a way to come together. The responsibility lies squarely with
us. The legacies of Brown and Mendez do not lie in decisions issued by two courts
decades ago; they live in the ongoing struggle for justice this book recounts and in
the future it begs us to build.

James E. Ryan is the Dean and Charles William Eliot Professor at the Harvard Graduate
School of Education.
 KRISTI L. BO WMAN

Introduction

Anniversaries are often cause for reflection and 2014—the sixtieth

anniversary of Brown v. Board of Education1 and the fiftieth of the federal Civil Rights
Act2—was no different. As we looked back on those two momentous events in U.S.
history, we celebrated, criticized, and argued about how far we have come and how
far we have yet to go. Over the course of twenty-four chapters, the commentary in
this volume captures many of those conversations. Taken together, the chapters trace
the narrative arc of school desegregation.
In some ways it is obvious that this volume is part of a discussion that began
long ago and that will continue many years in the future—that is the nature of the
pursuit of equality, educational or otherwise. But this volume is also part of larger
conversations about the significance of law, the importance of education, and the
potential to reform educational institutions through law. As such, it is informed by
several interrelated premises. First, law and society are in a dynamic relationship and
thus constantly influence one another.3 Second, the meaning of “equality” changes
over time, and where a line is drawn can turn something unfair into something
unconstitutional overnight. 4 Third, a robust debate exists about the extent to which
courts can create social change, with some arguing that litigation victories should

n xvii
xviii n Kristi L. Bowman

be broadly construed, including changing the course of a social movement or

influencing policy.5 Fourth, to engage questions of educational equality effectively,
a multidisciplinary approach is necessary, as is a discussion of housing segregation.6
Fifth and finally, the experiences of people whose education is shaped by the law,
and who themselves shape the law, matter.7 Their stories are important and their
voices should be heard.
Accordingly, some of the contributing authors were parties to and attorneys
in some of the most significant educational equality cases in U.S. history; many
others are leading scholars in law, education, sociology, and public policy. They
write from a diversity of perspectives and about a range of issues, and thus make
the complexity of the past, present, and future of school desegregation come alive.
The pursuit of racial and ethnic equality in education has a complicated history,
yet it is also one that is necessary to understand if we are to fully appreciate the
space we occupy today.
This volume begins at a point in time and in a place where school desegregation
started to gain momentum, in the early 1940s in California. Specifically, we enter
the story of the pursuit of educational equality during World War II, when Japanese
Americans, including the Munemitsu family in Westminster, California, were forced
out of their homes and into internment camps. During the Munemitsus’ absence,
they rented their farm to Gonzalo and Felícitas Méndez. When the Méndezes
sought to enroll their children in the local schools, they were told that their children
could not attend Westminster Main Elementary—they should instead attend the
“Mexican” school in town. Eventually, the Méndez family and others sued school
districts engaged in this practice and in 1946 won a judgment against the districts
in Mendez v. Westminster.8 This was the first school desegregation victory for
plaintiffs in federal court. Although the precedent created by the decision was
binding only in one area of California, the decision was used by many across the
state to dismantle the system of separate schools for children of Mexican heritage.
In chapter 1, Judge Frederick Aguirre powerfully recounts his own family’s history
of immigration and segregation and also discusses how his father used the Mendez
decision to integrate the local schools shortly before Aguirre began kindergarten.
In chapter 2, political scientist Philippa Strum draws together historical research
and extensive interviews with members of the Méndez family and others to tell the
story of Mendez in wonderful detail, bringing both the people and the litigation to
life. In chapter 3, I discuss the complicated relationship Latinos and Latinas have
had with school desegregation from the Mendez litigation through the present day
and also examine how that relationship has intersected with both immigration law
and English-language instruction rights. Together, these chapters ensure that the
Méndezes’ story is not lost to history, and that we consider Latinos and Latinas
 Introduction n xix

not only as part of the present complexity of school desegregation, but also as an
important part of the foundation of school desegregation.
In addition to setting into motion the events that would result in Mendez, the
World War II era influenced the course of school desegregation in many other ways
as well. For example: the Supreme Court became increasingly protective of civil
rights and started to question Plessy v. Ferguson’s “separate but equal” definition of
equality;9 African Americans, especially veterans returning from overseas, began to
register to vote and to exercise the franchise in significant numbers, though often
in the face of great resistance and violence;10 and the Supreme Court struck down
restrictive housing covenants and invalidated segregation in higher education.11 In
sum, as law professor Michael Klarman has written, “World War II was a watershed
in U.S. race relations. The changes in racial attitudes and practices that occurred
in the 1940s were more rapid and fundamental than any that had taken place since
Reconstruction.”12 Yet, across the country, laws still sanctioned and in some states
still required children to be educated separately based on their race.
When the 1950s began, so too did the protests and lawsuits that would eventu-
ally lead to the Court’s unanimous decision in 1954: Brown v. Board of Education.13
Through the Brown decision, the Supreme Court changed the definition of equality,
overturning Plessy in the context of public schooling. The reaction to Brown across
much of the American South was appropriately named Massive Resistance, but
eventually Brown itself became the culture. Today, Brown is one of the few Supreme
Court decisions most Americans know regardless of their level of education or
profession, and it is frequently cited in civil rights and human rights decisions by
courts around the world.14
Much has been said about Brown and this volume captures that discussion
and adds to it. In chapter 4, Brown Foundation founding president Cheryl Brown
Henderson poignantly remembers the Topeka NAACP’s crucial role in the litigation
and discusses her family’s experiences as the lead plaintiffs in the case. In chapter
5, law professor and former NAACP General Counsel Jack Greenberg, who was
one of the attorneys in Brown, reflects on Brown after the passage of many decades
and persuasively concludes that Brown’s most important legacy is to have shifted
culture by displacing the norm of state-sanctioned segregation. This culture shift
did not happen quickly, though, and in chapter 6, education professor Patricia
Edwards bravely tells us what the implementation of Brown was like by recounting
her understandably formative experience as one of the second group of African
American children to integrate a formerly all-white high school in Albany, Georgia.
In chapter 7, law professor Wendy Parker asks whether school desegregation became
easier to realize over time, walking us through the litigation in the four school
districts whose school desegregation lawsuits were consolidated into Brown and
xx n Kristi L. Bowman

litigation in the Middle District of Alabama, insightfully concluding that although

social resistance eventually retreated, the isolation of the judiciary has remained a
substantial obstacle to desegregation.
As some of those chapters note, the reaction to Brown and to school integration
across much of the American South was often intensely hostile and sometimes also
violent. The integration of Little Rock Central High School in 1957 exemplifies Mas-
sive Resistance, and in chapter 8, former FBI agent John (“Jack”) Feeheley recounts
with vivid detail his experience as an undercover agent on the scene of the weeks-long
integration standoff in Little Rock. The school integration battles there and in other
communities were part of the radicalization of Southern politics, and thus part of
what demonstrated the necessity of the federal Civil Rights Act of 1964.15
Ten years after the Court decided Brown, the federal Civil Rights Act cleared
the way for the federal government to enforce that decision by allowing the attorney
general of the United States to become a plaintiff in a school desegregation case
(thus removing that burden from private parties and the nonprofit organizations
who had mainly litigated the cases), and by prohibiting racial discrimination in
schools that receive federal funds—including not only intentional discrimination,
but also government action that has a disparate impact on students.16 Although
often overlooked in favor of a focus on the Supreme Court’s decisions, these aspects
of the Civil Rights Act have been extraordinarily significant not only in actually
desegregating schools, but also in enabling the federal government to continue to
combat racial and ethnic inequality as times change. In chapter 9, Allison Brown,
a program officer at Open Society Foundations and former Department of Justice
attorney, writes compellingly about the contemporary use of Title VI to challenge
racial and ethnic disparities in school discipline and proposes ways to reclaim the
power of the Act as we move forward. In chapter 10, law professor Derek Black
analyzes the Court’s 2002 decision in Alexander v. Sandoval, which significantly
limited the power of Title VI, and offers three nuanced and much-needed proposals
to restore Title VI to its original strength.
Thus in the first section of this book, we see that Mendez, Brown, and the Civil
Rights Act formed a promise of equality. In the second section, we see that the Court
stepped back from that promise as school desegregation took hold in the North and
the contours of appropriate remedies played out in litigation involving Detroit and
Kansas City, and as the voluntary integration policies adopted in Seattle, Washington,
and Louisville, Kentucky, were overturned by the Court.
In 1974, by the time the Court decided Milliken v. Bradley,17 it had recognized
that intentional segregation could happen even in the absence of statutes requiring
or permitting it, which had been prevalent across the South. Milliken arose out of
Detroit; the district court found that the state and the school district had engaged
 Introduction n xxi

in unconstitutional action and ordered a cross-district remedy given the racially-

isolated nature of the district, and the state’s involvement in creating racial isolation.
The Court’s 1974 decision, the first of its two in the Milliken litigation, prohibited
the district court from using an inter-district remedy for what it determined were
intra-district harms. In chapter 11, retired Judge Nathaniel Jones, who was the
NAACP General Counsel at the time of Milliken, provides an important window
into the NAACP’s legal strategy in the case, discussion of the trial, and somber
reflections on the Court’s decision. In chapter 12, political science professor Joyce
Baugh discusses the many dynamics which produced metropolitan areas dominated
by residential segregation, and perceptively analyzes the residential and school
segregation that came to dominate Detroit by the early 1970s and set the stage for
the Milliken litigation. Milliken’s impact should not be underestimated: in chapter
13, public policy professor Charles Clotfelter convincingly shows that most racial
and ethnic isolation in schools today is across district lines, not within districts, and
specifically examines school districts in North Carolina. Because Milliken prohibits
cross-district remedies in the absence of cross-district harm, much of the racial
isolation in schools today is beyond the reach of courts.
The Milliken case influenced school desegregation remedies across the country,
and one of those was in Kansas City, Missouri. The Supreme Court issued three
decisions in the Kansas City desegregation litigation, Missouri v. Jenkins,18 the last
of which was in 1995. Because the district court could not mandate cross-district
integration after Milliken, it tried to incentivize white students from surrounding
suburban school districts to enroll in the primarily black Kansas City schools by
creating exceptional and unique programs. In 1995, the Supreme Court rejected this
approach, which it termed “desegregative attractiveness.” In chapter 14, the attorney
who argued for the state of Missouri before the Supreme Court, John Munich, engag-
ingly shares a first-hand perspective about developing the state’s strategy in briefs
and for oral argument, and summarizes the state’s success in Jenkins. In chapter 15,
sociologist Kevin Fox Gotham provides crucial context for understanding Jenkins
by presenting a detailed history of school and housing segregation in Kansas City.
In chapter 16, I analyze the legacy of Jenkins as seen through over 100 education
rights judicial decisions issued since 1995.
After the Court decided three cases about unitary status in the 1990s, including
Jenkins, more and more school districts were declared unitary and released from
court oversight. Many of these districts returned to student assignment systems
based on neighborhood schools. Because of existing residential segregation, racial
and ethnic isolation in schools often increased. Some school districts in this situation,
and also some districts that had never been under court order, employed student
assignment plans with the goal of having individual schools reflect the diversity
xxii n Kristi L. Bowman

of their communities. Soon after the turn of the millennium, the Court issued
decisions that were increasingly skeptical of affirmative action in higher education
and race-conscious decision making in higher education admissions.19 Eventually,
the Court agreed to review two cases in which school districts employed voluntary
(not court-ordered) student assignment plans that contained race- and ethnicity-
conscious measures. These cases, Parents Involved in Community Schools v. Seattle
School District No. 1 from Seattle, Washington, and Meredith v. Jefferson County
Board of Education from Louisville, Kentucky, were consolidated for argument and
decided as one.20
In what has become known as the Parents Involved decision, the Court held that
school districts could seek to create or maintain racial and ethnic diversity in their
schools, but that they could not use means that consider individual students’ race
and ethnicity to do so. Interestingly, the disagreement between the plurality and the
dissent was not over whether Brown should be upheld or overruled; it was about who
could claim to be upholding the true legacy of Brown, those who claimed that Brown
was about anticlassification or those who said it was about antisubordination.21 In
chapter 17, Byron Leet, the trial attorney who represented Jefferson County, provides
insight into the social and legal context for the Meredith case, including the com-
munity’s perhaps unexpected reaction to the Parents Involved decision. In chapter
18, law professor and dean Erwin Chemerinsky provides a helpful overview of the
Parents Involved decision and critiques its effect in curtailing voluntary integration
policies. In chapter 19, education professor Michael Dumas argues convincingly that
although the Parents Involved plurality claims to employ a colorblind approach, in
reality it reproduces systematic white advantage in school assignment. Like many
other authors in this volume, Dumas also explores the connections between housing
and school segregation.
By examining the changes in law and society from Mendez through Parents
Involved, we come to understand where we have been, and thus develop a more
nuanced understanding of where we are today. So, how do we make our way forward?
The five chapters in the third and final section each help us to consider different
aspects of the hard work that is required to live up to the ideals of Mendez, Brown,
and the Civil Rights Act. Some of the chapters advocate for legal change, others seek
to describe or influence what Mark Graber describes as “the course of American
constitutional politics,” showing “the ways in which elected officials and political
movements adjust to the possibilities and challenges created by [a] judicial ruling.”22
Of course, at this point it is not just one judicial decision to which they are reacting,
but six decades of Supreme Court caselaw and five decades of federal statutory law.
In chapter 20, law professor and dean Danielle Holley-Walker analyzes Southern
school districts’ response to Parents Involved, identifying four types of voluntary
 Introduction n xxiii

integration plans used by those districts. She also helpfully provides a range of
policy suggestions to help school districts create or maintain greater diversity in
their schools. In chapter 21, education professors Erica Frankenberg and Sarah
Diem examine the importance of school boards in enacting voluntary integration
and other equity-focused policies through a nuanced study of the school district in
Louisville, Kentucky, that gave rise to the Meredith litigation. In chapter 22, MALDEF
regional counsel David Hinojosa and attorney Karolina Walters explain with great
thoroughness the track record of school finance litigation in terms of creating greater
educational opportunities for students of color, and identify ways to work around
three common roadblocks so that school finance litigation is better able to help
us live up to the promise of Brown. In chapter 23, education professor Benjamin
Superfine and post-doctoral researcher Jessica Gottlieb critically analyze two aspects
of education reform sweeping statehouses across the country—teacher evaluation
and collective bargaining reforms—and, significantly, examine the potential of those
reforms to advance the goals of Brown and the Civil Rights Act. Finally, in chapter
24, the capstone of this volume, education professor and cofounder and codirector
of the Civil Rights Project/Proyecto Derechos Civiles Gary Orfield perceptively
synthesizes the desegregation efforts of the past sixty years, extracting lessons to
help us move forward in our vibrant multiracial, multiethnic present.
To be sure, our laws and our society have come a long way since Mendez, Brown,
and the Civil Rights Act, and the changes that are required to move forward are not
all changes that law can produce. But when I see that substantial racial and ethnic
achievement gaps persist, that children of color drop out of school more frequently
than white children, that our children rarely grow up in schools that reflect the true
diversity of our communities, that even very young children of color are suspended
and expelled at higher rates than white children, that funding disparities among
school districts hamstring districts also burdened by higher student poverty and
lower property values, that children are often isolated in their schools by race,
ethnicity, poverty, and language, that disadvantage far beyond children’s control
harms their educational opportunities in so many ways—when I see any of these
things and especially when I consider all of them together, I am not satisfied with
where we are.23 Are you?

Kristi L. Bowman is a Professor of Law at Michigan State University, College of Law.

xxiv n Kristi L. Bowman

NOTES

1. Brown v. Board of Education, 347 U.S. 485 (1954).

2. Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (codified as amended in scattered
sections of 2 U.S.C., 28 U.S.C., and 42 U.S.C.).
3. See, for example, Robert Post, Law and Cultural Conflict, 78 CHICAGO-KENT LAW
REVIEW 485, 490 (2003).
4. Jack M. Balkin, Plessy, Brown, and Grutter: A Play in Three Acts, 26 CARDOZO LAW
REVIEW 101, 103 (2005).
5. GERALD ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT
SOCIAL CHANGE? (University of Chicago Press 1991); Thomas B. Stoddard,
Bleeding Heart: Reflections on Using the Law to Make Social Change, 72 NEW YORK
UNIVERSITY LAW REVIEW 967, 977–78, 990 (1997); Mary Ziegler, Framing Change:
Cause Lawyering, Constitutional Decisions, and Social Change, 94 MARQUETTE LAW
REVIEW 263, 310 (2010); Scott Barclay, Lynn C. Jones & Anna-Maria Marshall, Two
Spinning Wheels: Studying Law and Social Movements, 54 STUDIES IN LAW, POLITICS,
& SOCIETY 1, 3 (2011); Mark A. Graber, Hollow Hopes and Exaggerated Fears: The
Canon/Anticanon in Context, 125 HARVARD LAW REVIEW FORUM 33, 37 (2011).
6. GARY ORFIELD & SUSAN EATON, DISMANTLING DESEGREGATION: THE QUIET
REVERSAL OF BROWN V. BOARD OF EDUCATION, 149–51 (The New Press 1996).
7. See, for example, PATRICIA WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS
3–14 and throughout (Harvard University Press 1991).
8. Mendez v. Westminster, 64 F. Supp. 544 (S.D. Cal. 1946), affirmed, 161 F.2d 774 (9th
Cir. 1947) (en banc); PHILIPPA STRUM, MENDEZ V. WESTMINSTER: SCHOOL
DESEGREGATION AND MEXICAN-AMERICAN RIGHTS (University Press of Kansas
2010).
9. Plessy v. Ferguson, 163 U.S. 537 (1896); MICHAEL KLARMAN, FROM JIM CROW TO
CIVIL RIGHTS 231 (Oxford University Press 2004).
10. KLARMAN, FROM JIM CROW, 236–52.
11. Shelley v. Kramer, 334 U.S. 1 (1948); Sweatt v. Painter, 339 U.S. 629 (1950).
12. KLARMAN, FROM JIM CROW, 288.
13. Brown, 347 U.S. 485.
14. MARTHA MINOW, IN BROWN’S WAKE: LEGACIES OF AMERICA’S EDUCATIONAL
LANDMARK (Oxford University Press 2010).
15. KLARMAN, FROM JIM CROW, 392-93.
16. Civil Rights Act of 1964; GARY ORFIELD, THE RECONSTRUCTION OF SOUTHERN
EDUCATION: THE SCHOOLS AND THE 1964 CIVIL RIGHTS ACT (John Wiley 1969).
17. Milliken v. Bradley, 418 U.S. 717 (1974); PAUL R. DIMOND, BEYOND BUSING:
REFLECTIONS ON URBAN SEGREGATION, THE COURTS, AND EQUAL
OPPORTUNITY (University of Michigan Press 2005); JOYCE BAUGH, THE DETROIT
SCHOOL BUSING CASE: MILLIKEN V. BRADLEY AND THE CONTROVERSY OVER
DESEGREGATION (University Press of Kansas 2011).
18. Missouri v. Jenkins, 491 U.S. 274 (1989); 495 U.S. 33 (1990); 515 U.S. 70 (1995).
19. Gratz v. Bollinger, 539 U.S. 244 (2003); Grutter v. Bollinger, 539 U.S. 306 (2003).
 Introduction n xxv

20. Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701
(2007).
21. Reva Siegel, Equality Talk: Antisubordination and Anticlassification Values in
Constitutional Struggles Over Brown, 117 HARVARD LAW REVIEW 1470 (2004).
22. Mark A. Graber, Hollow Hopes and Exaggerated Fears: The Canon/Anticanon in Context,
125 HARVARD LAW REVIEW FORUM 33, 37 (2011).
23. See generally PRUDENCE L. CARTER & KEVIN G. WELNER, EDS., CLOSING THE
OPPORTUNITY GAP: WHAT AMERICA MUST DO TO GIVE EVERY CHILD AN
EVEN CHANCE (Oxford University Press 2013); Gary Orfield & Erica Frankenberg,
The Civil Rights Project, Brown at 60: Great Progress, a Long Retreat, and an Uncertain
Future (2014); CHARLES T. CLOTFELTER, AFTER BROWN: THE RISE AND RETREAT
OF SCHOOL DESEGREGATION (Princeton University Press 2004); CHARLES J.
OGLETREE, JR., ALL DELIBERATE SPEED 260 (W.W. Norton & Company 2004).
 PA R T I

Mendez, Brown,
and the Civil Rights Act
Exploring the Variety of Random
Documents with Different Content
devoted all their energies to have it annulled. However, the
plenipotentiaries
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Strained Relations with France 185 sent to France in 1825

had failed to obtain either a reduction in the amount of the
indemnity or the determining of a date for the discontinuance of the
privilege of the payment of half duty on all the French products. On
the 31st of October, 1825, they signed a commercial convention 3
which the President of Haiti refused to approve. Instead of
improving, the relations between Haiti and France grew daily worse.
It was impossible for Haiti to pay the enormous sum which Charles X
had forced upon her. There were unavoidable delays in the payment
of the instalments, which gave rise to endless disputes and
misunderstandings with France. In 1828 a Haitian agent, Mr. St.
Macary, went to Paris ; he also failed in his mission, and returned in
1829 to Haiti, where the French Consul-General again took up the
negotiations. As a result of this a commercial treaty and a
convention concerning the indemnity were signed in April, 1829.
These, however, France refused to ratify; and Baron Pichon was
appointed to carry on new negotiations. He arrived at Port-au-Prince
in 1830, and failing to come to an agreement with the Haitian
plenipotentiaries, he returned to France in April. Thus relations
between the two countries became very strained; for the Haitian
Government was bent on discontinuing the advantage of the
payment of half duty which the Ordinance of 1825 had granted to
French commerce. The instalments were irregularly paid and the
French products were made to pay the same taxes levied on the
merchandise of all other nations. The ordinance of 1825, the cause
of so much trouble, was thus little by little repudiated by the
Haitians. To prevent any complaint on the part of France, Boyer, in
April, 1830. again sent St. Macary to France. The negotiations were
being carried on in Paris when the revolution of 1830 occurred. The
downfall of Charles X put an end to the parleys, which were not 8 J.
N. L£ger, Recueil de Trails et Conventions d'Haiti, p. 2.
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186 Haiti: Her History and Her Detractors resumed until the
following year; and on the 2d of April, 1831, St. Macary and Pichon
signed a commercial treaty and a convention relating to the
indemnity.4 These two documents, instead of annulling the
Ordinance of 1825, which the Haitians had firmly decided to abolish,
granted new favors to the French. Thus it was that Louis Philippe
lost no time in ratifying them, whilst President Boyer flatly refused to
sanction them. This refusal so incensed the King of Prance that his
Consul was immediately withdrawn from Portau-Prince. This time all
semblance of friendliness in the relations between the two countries
was at an end. War seemed to be unavoidable. And the people, glad
at having an opportunity to wipe out the insult placed upon them by
the Ordinance of 1825, showed the greatest enthusiasm. The
Haitians were ready to make the greatest sacrifices in order to
obtain not the concession, but the recognition of their independence
by a treaty voluntarily drawn and agreed upon. This independence
had been recognized by Great Britain, which, in May, 1826, had
appointed a ConsulGeneral at Port-au-Prince and Consuls and Vice-
Consuls in the various ports open to foreign trade. Netherlands,
Sweden, Denmark were also in official relations with the young
Republic. Negotiations were being carried on with the Holy See with
a view to the settlement of religious matters. In January, 1834, John
England, Bishop of Charleston, was sent to Port-auPrince in the
capacity of a Legate. The Pope wanted to control the church of Haiti
without any interference from the temporal Power; consequently, he
made up his mind to appoint a Vicar Apostolic for Haiti. The Haitian
Government claimed the right to appoint the Archbishops and
Bishops, reserving to the Pope the right of conferring the canonical
investiture. Unable to come to an understanding, Bishop England left
Haiti, but returned in May, 1836, and signed a Concordat, which he
took with him to Rome, hoping to have it rati4 J. N. Leger, Recueil
des Trait£s et Conventions d'Haiti, pp. 7, 11.
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Treaty Signed with France in 1838 187 fied. Pope Gregory

XII refused to approve this treaty, and in May, 1837, Bishop England
arrived at Port-auPrince with the title of ''Vicar Apostolic,
Administrator of the Church of Haiti. " On the refusal of President
Boyer to receive the Pope's agent in such a capacity, Bishop England
returned to Charleston, where he died soon after.5 Although Haiti
had been greatly displeased with the ordinance of Charles X, she
had nevertheless benefited by it in obtaining the recognition of her
independence by Great Britain and some other European Powers.
The rupture with France, caused by President Boyer ys refusal to
ratify the treaties of 1831, was very detrimental to the interests of
both countries, which were therefore eager to come to an
understanding. After seven years of untiring efforts Haiti succeeded
in reaching an agreement satisfactory to all concerned. Baron E. de
Las Cases and C. Baudin, a captain in the French Navy, arrived at
Port-au-Prince on the 28th of January, 1838; they were
commissioned by Louis Philippe to settle the disagreements existing
between France and Haiti. On the 31st of January the parleys with
the Haitian plenipotentiaries were begun, and on the 12th of
February, 1838, the following treaty,6 which 5 In 1842 the
negotiations were renewed with the Holy See. Joseph Rosati, Bishop
of Saint Louis (Mo.), arrived at Port-au-Prince in January as Papal
Legate. On the 17th of February, 1842, he signed with the Haitian
plenipotentiaries a Concordat which contained the following principal
stipulations: "The right to appoint the Archbishops and "Bishops was
vested in the President of Haiti with the reservation of "the right of
the Pope to grant the canonical investiture; before entering upon the
duties of their offices they were to take, before the President, the
oath of fidelity and obedience to the Government of the "Republic
and of doing nothing injurious to its rights or interests. The "Bishops
were empowered to appoint their Vicars-General, the rectors "and
parish Vicars, with the reservation of the right of the President "of
Haiti to approve or reject these appointments, etc." The events
which occurred in Haiti in 1843 prevented this agreement from being
taken into consideration. But in 1860 negotiations began again, and
on the 28th of March the Concordat which still governs the relations
of Haiti with the Vatican was signed in Rome. (J. N. Leger, Recueil
des Traites et Conventions de la Rgpublique d'Haiti, p. 59.) 0 J. N.
L£ger, Recueil des Traites et Conventions de la Rgpublique d'Haiti, p.
23.
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188 Haiti: Her History and Her Detractors was entirely

satisfactory to the national amour-propre of Haiti, was signed : "In
the name of the Holy and indivisible Trinity. "His Majesty the King of
the French and the President of Haiti, desiring to establish on a solid
and lasting basis the friendly relations which ought to exist "between
France and Haiti, have decided to settle them "by a Treaty and for
that purpose have appointed the "following plenipotentiaries: "His
Majesty the King of the French: Emmanuel "Pons-Dieudonne Baron
Las Cases, officer of the Royal "order of the Legion of Honor, and
Charles Baudin, ' ' officer of the same Royal order of the Legion of
Honor, "Captain in the Royal Navy. The President of Haiti: "Brigadier-
General Joseph Balthazar Inginac, Secre"tary-General; Colonel Marie
Elisabeth Eustache Fre"mont, his aide-de-camp; Senators
Dominique, Fran"cois Labbe and Alexis Beaubrun Ardouin; and Louis
"Mesmin Seguy Villevalaix, Chief Clerk of the Secretary-General;
"Who after having communicated to each other their "respective full
powers, found in good and due form, "have agreed on the following
articles: "Art. I. His Majesty the King of the French, in his "name and
in the name of his heirs and successors, 1 ' recognizes the Republic
of Haiti as a free, sovereign, "and independent State. "Art. II. There
shall be inviolable peace and per"petual friendship between France
and the Republic i i of Haiti, and between the citizens of both States,
with"out distinction of persons and places. "Art. III. His Majesty the
King of the French and "the President of the Republic of Haiti intend
to sign, "as soon as possible and in case of need, a special "treaty
destined to govern the relations of commerce "and navigation
between France and Haiti. In the "mean time, it is agreed that the
Consuls, the citizens "and the merchandise or products from one
country "will in every respect enjoy in the other the treatment
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Abolition of the Slave Trade 189 "granted or which may be

granted to the most favored " nation; and this, gratuitously if the
concession be "gratuitous, or in return for an equivalent
compensation if the concession be conditional. "Art. IV. The present
treaty shall be ratified, aoid "the ratifications shall be exchanged in
Paris within "three months, or sooner if possible. "In faith whereof
we, the undersigned plenipoten"tiaries, have signed the present
treaty and have here"unto affixed our seals. "Done in Port-au-Prince
this 12th day of February "in the year of grace 1838. "(Signed)
Emmanuel Baron de Las Cases, Charles "Baudin, B. Inginac,
Fremont, Labbe, B. Ardouin, "Seguy Villevalaix." In a convention
signed on the same day, the indemnity to be paid by the Republic of
Haiti was reduced to sixty millions of francs. Having taken the
initiative of abolishing slavery > the new State could not be
indifferent to the measures adopted with a view to put an end to the
inhuman slavetrade. In consequence, in August, 1840, Haiti signed
with France a treaty 7 in which she gave her adhesion to the
Conventions of November, 1831, and March, 1833, between Great
Britain and France, which was destined to secure the abolition of the
slave-trade. And, in order to complete her philanthropic mission, the
Republic had previously agreed to pay the crews of the English
menof-war for the slaves who, after being rescued from the hands of
the traders in human flesh, would be landed on her territory.8 Haiti
had spent the first thirty-four years of her independence in the
anxious expectation of an aggression from France. After thirty-four
years of sacrifices and perseverance she at last succeeded in freeing
herself of this anxiety. In the mean time, the greatest part of her
resources had been devoted to armament, the 7 J. N. Le"ger, Recueil
des Traite"s et Conventions d'Haiti, p. 26. 8 B. Ardouin, Etudes sur
THistoire d'Haiti, p. 127.
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190 Haiti: Her History and Her Detractors building of

fortresses, and the establishment of storehouses for arms and
ammunition in the inaccessible parts of the island. The heavy
indemnity requested by France had increased the embarrassment
caused by these comparatively high expenses. The aggravation of
the bad financial circumstances in which the country found itself was
not the only result of the ordinance of Charles X. The discontent
provoked by this inconsiderate document was taken advantage of by
President Boyer 's opponents. The opposition in the House of
Representatives grew more and more bitter. The Constitution had
conferred on the President alone the right to introduce laws. And it
was thought that the Chief of the Executive Power was abusing his
privilege of initiative by refraining from submitting to the legislative
body the measures which were required by circumstances. The
opposition, of which Herard Dumesle, the Representative from
Cayes, was the leader, was resorting to every available means in
order to bring about the revision of the Constitution with a view to
invest in the House the right of introducing laws and to curtail the
President's prerogatives, which, it was claimed, were excessive. On
the other hand, a new generation had sprung up. From the schools
created since the independence had come many young men imbued
with ideas of liberty and progress, and desirous of participating in
the affairs of State in order to give the country the benefit of their
knowledge. Finding the offices in possession of the old collaborators
who, for 25 years, had been working with Boyer, these young men
were loud in their complaints about what they termed the
President's exclusiveness. The situation had become so tense that a
catastrophe was imminent. Boyer might have prevented this
occurring by taking the proper measures necessitated by the new
state of things, after the Treaty of 1838, which gave full security to
the country's future. Unfortunately, he refrained from acting at the
right moment. And as a final stroke to a situation already very much
strained, an earthquake, which occurred on the 7th of May, 1842,
destroyed Cap 
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Boyer Leaves Haiti 191 Haitien, Port-de-Paix, Mole Saint-

Nicolas, Fort-Liberte and several less important places. This
catastrophe was turned to account by the opponents of Boyer, who
contended that he had not hastened to give assistance to the
sufferers. The opposition succeeded in imputing to Boyer the
reputation of being averse to progress and of systematically
preventing the improvements which the institutions of the country7
needed. Men's minds were agitated by the bitter and animated
dispute which ensued. Such was the state of things when Major
Charles Herard aine, surnamed Riviere, took up arms on the 27th of
January, 1843, on the Praslin plantation in the vicinity of Cayes. The
whole Southern Department at once sided with him. Boyer, owing to
the strong public opinion which declared itself against him, was
unable to repress the insurrection. Realizing the futility of his efforts
in enforcing his authority, he sent his resignation to the Senate on
the 13th of March, 1843, and in the afternoon of the same day he
embarked on the English sloop of war Scylla which the Consul, Mr.
Thomas Usher, had graciously placed at his disposal.9 Boyer died in
Paris on the 9th of July, J850.
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CHAPTER XIII The revolutionists of 1343 — Their reforms;

the Constitution of 1843 — Charles He"rard aine, surnamed Riviere
(December 30, 1843-May 3, 1844 — Loss of the Spanish portion of
the island — Claims of the peasants of the Southern Department —
Jean-Jacques Acaau — The period of transition — Guerrier (May 3,
1844-April 15, 1845) — Pierrot (April 16, 1845-March 1, 1846)—
Riche" (March 1, 1846-February 27, 1847). The departure of Boyer
had the effect of throwing the country into a state of political
convulsions all the more acute, as the various elements which had
contributed to the success of the revolution of 1843 were far from
having the same tendencies or the same object. Those who had
taken up arms with the impetuosity of youth in the name of liberty,
craved for the termination of the military regime and for the
establishment of a civil form of government. The man whom
circumstances had placed in the foremost rank was unfortunately
devoid of the qualities which go to the making up of a capable
leader of a great liberal movement. Charles Herard aine, surnamed
Riviere, was but a soldier, and as such was not a sincere partisan of
the civil regime. On the other hand, great hopes were being
entertained by the peasants, who had been promised a decided
betterment of their condition. The new and conflicting ideas which
were agitating each class of people could not fail to cause friction. In
the mean time, a provisional government had been organized at
Port-au-Prince (April 4, 1843). Popular elections were ordered, and
the meeting of the Constitu192
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The Constitution of 1843 193 ent Assembly was fixed for

the 15th of September. Municipalities were created and the mayors
began to exercise powers which hitherto had belonged to the
military authorities. The Constitution, enacted on the 30th of
December, 1843, contained many important innovations. The judges
were to be elected by the people, instead of being appointed by the
President; all offenses, either criminal, political, or by the press,
were to be submitted to trials by jury. Presidency for life was
abolished; the term of the Chief of the Executive Power was limited
to four years ; and no measure could be adopted by the President
without the countersign of the proper Minister. The right to introduce
laws was conferred on the House of Representatives and on the
Senate as well as on the President. Matters concerning the
communes and the arrondis semen ts were in charge of the
municipalities and the arrondis sement councils. An estimate of the
revenues and expenses was to be voted annually; a Court of
Accounts was instituted. The Army was declared a law-abiding body
; and strict measures were enacted in view of guaranteeing personal
freedom and respect of property. The Haitians are still governed by
most of the stipulations of the Constitution of 1843. Had it been
earnestly carried out from the time it was adopted, it might have
proved the beginning of a new era for Haiti. Charles Herard aine,
who was elected President on the 30th of December, 1843, was
unfortunately deficient in the competency necessary to facilitate the
transition from a military to a civil government. "When a member of
the Provisional Government he had provoked discontent among the
inhabitants of the Northern and Eastern Departments. He had shown
no regard for the susceptibility of his fellow-citizens of the former
Spanish territory. Besides, the Provisional Government had
committed the error of decreeing, on the 27th of September, 1843,
the closing to foreign commerce of all the ports of this portion of the
island. This measure so excited the people that they rose in revolt
on the 16th
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194 Haiti: Her History and Her Detractors of January, 1844,

a few days after the new President had taken the oath of office. The
inhabitants of the former Spanish portion seceded from the Haitian
Government and, on the 27th of February, 1844, established an
independent State which they called the Dominican Republic.1
Whilst the territorial unity was being destroyed, grave complications
were threatening the Republic of Haiti. In August, 1843,
disturbances had already taken place in the South. The
revolutionists, elated by their success, had completely forgotten the
promises made to the peasants. The latter therefore gathered
together in the plain of Cayes, with a view of obtaining what was
due to them. But they were speedily dispersed, and their leaders,
the Salomons, were sent in exile to Azua, an the former Spanish
territory. Haiti had still many great difficulties to overcome; •but
these were not insuperable. With earnest efforts and good will it was
still possible to restore security by obtaining the confidence of the
people. Unfortunately, Charles Herard aine deemed his sword all-
sufficient in settling the delicate questions which were "agitating the
country. By openly avowing his antipathy to the Constitution, which
had put a check on his 'authority, he had incurred the distrust of the
liberals, ?to whom he owed his high dignity, and disturbed the
peaceful security of those who believed that henceforth the laws
would be faithfully obeyed by all. The President had also lost the
sympathy of the peasants of the Southern Department by not
keeping the promises made to them. In consequence, both classes
of inhabitants, those of the country as well as those of the towns,
were equally displeased. This situation, already fraught with danger,
was still more aggravated by continual conflict between the civil and
military authorities. 1 In the United States people are in the habit of
calling the whole Dominican Republic San Domingo. This is incorrect.
San Domingo is the name of the Capital. The Dominican Republic is
the correct designation of the country, whose inhabitants are known
as Dominicans, and not as San Domingans as is often to be seen in
American newspapers.
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Discontent Against Charles Herard 195 The prerogatives of

the mayors and the municipalities had to some extent restrained the
powers hitherto vested solely in the military commandants of the
arrondissements and communes, who therefore strove to regain
their former importance ; hence there started a struggle with the
new civil functionaries created by institutions of too recent a date to
command the respect of all, more especially as the Executive Power
was giving his hearty support to the military party. The President set
the bad example of not submitting to the civil power ; consequently
there existed between him and the Constituent Assembly, which but
recently elected him President, a state of open warfare. The
popularity of Charles Herard aine was already on the wane when, at
the head of the Haitian army, he undertook to subdue the insurgents
of the Spanish portion of the island. The soldiers bravely performed
their duty, so that the President entered Azua in the first days of
April. There was nothing seriously to impede the advance of his
army upon Santo Domingo. The days of the Dominican Republic
were numbered, had it not been for the events which occurred at
that moment at Cap-Haitien, Port-au-Prince, and Cayes, and which
saved its existence. The discontent provoked by the acts attributable
to the inexperience of Charles Herard aine broke out simultaneously
in various places. In a proclamation of April 25 the inhabitants of
Cap-Haitien seceded from his government; and a council of state
appointed General Guerrier President of the Northern Department.
On the 3d of May, 1844, Port-au-Prince, following Cap-Haitien 's
example, acclaimed Guerrier President of the Republic. The Southern
Department was also in a much agitated condition. The peasants of
Cayes were bent upon obtaining the fulfillment of the promises
made to them. On the 27th of March, 1844, they assembled at
CampPerrin and assumed the name of "L'Armee Souffrante" (the
army of the sufferers). They chose a leader of their own, Jean-
Jacques Acaau, who adopted the title of "General, Chief of the
claims of his fellow 
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196 Haiti: Her History and Her Detractors citizens. " This
was an absolutely illiterate man, but one possessed of that daring
and gallantry which fascinate and arouse the masses. He soon
became the prime mover of this popular outbreak, and on the 5th of
April he took possession of the town of Cayes. The grievances of the
country people, which had long been held in check, broke forth at
last with a violence that terrified the inhabitants of the town. The
peasants had one aim in view: the holding of the land; the means
used in attaining this end were of minor importance to them. Like an
impetuous torrent, Acaau's followers bore down, wreaking
destruction on all who stood in their way. They committed many
very regrettable excesses. Whilst Acaau was enjoying his dictatorship
at Cayes, the peasants in the Grand 'Anse took up arms with the
cries of * l Down with the process-servers ! ' ' 2 They succeeded in
occupying Jeremie and in becoming masters of the whole
arrondissement of Nippes. Ridiculous as the cries of "Down with the
process-servers ! " may seem, they were nevertheless an evidence
of the fixed idea of the peasants to remain in possession of their
fields. Taking advantage of the hard circumstances in which they at
that time found themselves, certain of the city merchants lent them
money at usurious rates and, through the redemption proviso or by
means of mortgage deeds, easily dispossessed them of their
properties. By serving the judiciary acts the process-server foretold
the approaching dispossession; hence the hatred he incurred.
Though political in the North and agrarian in the South, the agitation
which was disturbing the entire country had the same object in
view: the dismissal of Charles Herard aine, whose blunders were
accountable for all this turmoil. The President was still at Azua 2 It is
noteworthy that the Haitian peasants, who knew nothing about the
history of England, were manifesting the same aversion against the
practitioners of law as was shown by the English serfs during the
riots which took place in 1381 during the reign of Richard II. The
serfs destroyed every judiciary document they could lay hands on
and killed many lawyers in London.
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Death of Guerrier 197 when he heard that the people

whose rights he had disregarded, had, so to speak, dismissed him.
He did not try to resist their will, but he went to Arcahaie, from
whence he sailed for Jamaica on the 2d of June, 1844.3 General
Guerrier, who, on the 3d of May, 1844, became President of Haiti,
was already 87 years old. After taking the oath of office on the 9th
he devoted his efforts to the restoring of peace in the Southern
province. As a veteran of the war for independence his deficiency in
knowledge was counterbalanced by his great love for his country. He
showed great moderation in exercising the dictatorship which
circumstances had conferred upon him. At a word from him the
peasants of the Southern Department laid down their arms. After
restoring peace the government of President Guerrier undertook the
problem of diffusing public instruction; a "Lycee" was created at
Cap-Haitien and one at Cayes. A Council of State took the place of
the House of Representatives and of the Senate. President Guerrier,
owing to his very advanced age, was unable to stand the fatigue of
his high office; he died at Saint-Marc on the 15th of April, 1845. The
next day the Council of State elected General Pierrot President of the
Republic. The new Chief of the Executive Power was not much
younger than his predecessor, being 84 years old. His most pressing
duty was to check the incursions of the Dominicans, who were
harassing the Haitian troops along the borders. There they had
elected General Santana President, and seized every opportunity to
attack and annoy our soldiers. Their crafts also were making
depredations on our coasts. President Pierrot decided to open a
campaign against the Dominicans, whom he considered merely as
insurgents. The Haitians, however, not being anxious to engage
upon war with their neighbors, were unwilling to support the
President's views. Furthermore, he had displeased the army by
conferring military rank 1 Charles He"rard aine" died in Jamaica.
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198 Haiti: Her History and Her Detractors on the leaders of

the peasants of the Southern Department and on many of their
followers. And there existed also among the inhabitants of the towns
of this department a feeling of uneasiness regarding the tendencies
of Pierrot, who had appointed Acaau, the former terrorist of Cayes,
Commandant of the arrondissement of PAnse-a-Veau. Fearing a new
Jacquerie the townsmen made up their minds to divest Pierrot of his
office. In consequence, on the 1st of March, 1846, General Jean-
Baptiste Riche was proclaimed President of the Republic at Port-au-
Prince. On the 24th of March Pierrot resigned and, leaving Cap-
Haitien, which he had made the capital of the country, retired to his
plantation "Camp-Louise," where he led a quiet and peaceful life.4
His affability and good nature had secured for him the sympathy of
the peasants of the Southern Department. They therefore resented
his enforced retirement. They had little confidence in the newly
elected President, who had fought against them in 1844. Acaau, who
was in command of the arrondissement of Nippes, gave the signal
for resistance. He openly defied Riche 's authority and entrenched
himself at Fort Saint-Laurent at 1 ' Anse-a-Veau. He was defeated
and took shelter on the Joly plantation, where, to avoid being
captured, lie blew out his brains with a pistol. As soon as the South
had been pacified, Riche put an end to the dictatorship which had
been established since 1844. The Council of State created by
Guerrier was transformed into a Senate, which, on the 14th of
November, 1846, enacted the Constitution of 1816 with most of the
modifications introduced in 1843. Unfortunately, presidency for life
was restored. But Riche did not long enjoy the power intrusted to
him. His health was not very robust, and was completely
undermined by the fatigues of a journey he had undertaken into the
North of the country. He returned to Port-au* Pierrot died on the
18th of February, 1857.
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Faustin Soulouque 199 Prince on the 23d of February, 1847,

and died on the 27th of the same month. The Council of the
Secretaries of State immediately assumed the authority; and the
Senate met on the 1st of March to elect a new President of the
Republic. The struggle for the Presidency was between two
candidates, Generals Souffrant and Paul. After eight ballots neither
one was able to obtain a majority of votes. Both parties remaining
obdurate, the Assembly decided to choose a man who was not
aspiring to the dignity. In this way General Faustin Soulouque, who
was far from expecting such an honor, was elected President of
Haiti.
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CHAPTER XIV Faustin Soulouque (March 1, 1847- January

15, 1859) — Campaigns against the Dominicans — The Empire —
Intervention of France, Great Britain, and the United States on
behalf of the Dominicans — Navassa — Gonaives in rebellion —
Faustin Soulouque leaves Haiti. From 1844 to 1847 Haiti had passed
through one of the most critical epochs of her existence. After
organizing an independent State in February, 1844, the inhabitants
of the former Spsinish portion of the island were committing
unceasing acts of hostility on the borders, where an army had to be
maintained in order to keep them in check. The expenses necessary
for the maintenance of the soldiers were comparatively high;
moreover, owing to the insecurity resulting from these disturbances,
industry had been suspended in that part of the country. It was
therefore urgent to put an end to this state of things, either by
subduing our former fellow-citizens or by comii-g to an
understanding with them. The unsettled condition in which Haiti
herself was at that time made the Dominican problem still more
intricate in dealing with. The hopes which Boyer's retirement had
given rise to all came to naught. The disappointment whi^h this
occasioned the peasants of the Southern Department had decided
them to resort to violence; they wanted to free themselves from the
incumbrance of the Rural Code; they demanded the establishment of
schools and their share in the possession of the land. Hav/ng been
successively deceived by all, even by their own chosen leaders, they
had 200
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Faustin Soulouque 201 unable to receive satisfaction. Their

apparent submission was therefore more assumed than real. On the
other hand, the liberal ideas of 1843 not having been successful in
practical application, the military system seemed to many to be the
only one able to insure peace and order; which idea was naturally
much contested by the partisans of the civil regime. When on the
1st of March, 1847, Faustin Soulouque was elected President of the
Republic, three most pressing duties demanded his attention : He
had to conduct the guerrilla warfare which was still continuing on
the Dominican boundary, to appease the Southern peasants, and to
check the growing discontent among the townspeople, who were
demanding greater freedom. No one expected Soulouque to display
the tact of a statesman ; but, as a soldier, he had strong ideas as to
order and discipline. Highly flattered at the honor conferred upon
him he was sincerely desirous of devoting his best efforts to the
proper management of affairs of State. He tried his utmost to
comply with the exigencies of the Constitution ; he even went so far
as to choose his Ministers from the ranks of the opposition. His
opponents conducted themselves with little regard for the
President's susceptibility and did not hesitate to reproach him with
his ignorance. The anger this caused Soulouque, whose lack of
knowledge was well known to those who had elected him, made him
distrustful. He was in one of these cheerless moods when, on the
16th of April, 1848, a riot occurred at Port-au-Prince. The
disturbance was quickly subdued, and Soulouque made use of this
opportunity to crush all revolutionary tendencies. He wielded
authority with an iron hand; peasants and townspeople were made
to understand that armed manifestations would be most severely
dealt with, which had the effect of producing quiet in the land. This
duty accomplished, Soulouque 's next care was to see to the
hostilities still in progress with the former Spanish territory. In order
to stop the incursions of the Dominicans he determined to bring
them back to
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202 Haiti: Her History and Her Detractors the authority of

the Haitian Government. He opened a campaign against them on the
5th of March, 1849. The army under his command at first met with
success. Azua was stormed; once more the way to Santo Domingo
was clear. But the news of discontent existing at Port-au-Prince,
which reached Soulouque, arrested his further progress and caused
him to return with the army to his capital. He was made to believe
that the powers vested in him were not sufficient to allow him to
maintain peace and order whilst engaged in bringing the former
Spanish portion of the island into submission. And the officers of the
army were of the opinion that the only way to put an end to the
existing discord and agitation was by conferring absolute power on
their chief. In consequence they drew up a petition, and on the 29th
of August, 1849, Soulouque was proclaimed Emperor of Haiti; and
on the 18th of April, 1852, he was crowned, together with his wife,
in the Cathedral of Port-au-Prince. Under the name of Faustin I he
was henceforth free to rule the country according to his will. Quiet
prevailed as the result of this change and agriculture became
flourishing. Emboldened by the sudden retreat of the Haitian army,
the Dominicans had resumed their depredations. Their flotilla went
as far as Dame-Marie, which they plundered and set on fire. Faustin
I decided to start a new campaign against them. In 1855 he invaded
the territory of the Dominican Eepublic. But, owing to insufficient
preparation, the army was soon in want of victuals and ammunition.
In spite of the bravery of the soldiers the Emperor had once more to
give up the idea of restoring unity of government in the island. After
this campaign Great Britain and France interfered and obtained an
armistice on behalf of the Dominicans. Later on these two Powers
did their utmost to prevent Haiti from availing herself of the
opportunity of subduing her former citizens. In this they had the
hearty support of the United States. At that time the Americans did
not object to enter into an agreement with Europe in order to help
to terrify Haiti. In the
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Webster Intervenes in Favor of the Dominicans 203

following instructions to his agent at Port-au-Prince, Mr. Webster,
then Secretary of State, did not try to conceal his intention of
provoking an armed intervention : 1 " The material interests of the
three countries "( France, Great Britain and the United States)," he
wrote, "are largely involved in the restoration and "preservation of
peace between the contending parties "in Santo Domingo. France is
a creditor of the Gov1 ' eminent of the Emperor Soulouque to a large
amount. ' i She cannot hope for a discharge of her debt when the
"resources of his country, instead of being developed "by pacific
pursuits and in part, at least, applied to "that purpose, are checked
in their growth and wasted "in a war with a conterminous state.
Great Britain "and France are both interested in securing that great
"additional demand for their productions which must "result from the
impulse to be expected for industry ' i in Haiti and the Dominican
Republic from a termination of the war; and the United States have
a similar "interest. * * * If the Emperor Soulouque shall "insist upon
maintaining a belligerent attitude until "all his demands shall have
been satisfied by the oppo"site party, you will unite with your
colleagues in re"monstrating against this course on his part. If the
"remonstrance shall prove to be unavailing, you will ' ' signify to the
Emperor that you shall s^ve immediate "notice to your Government,
that the President, with "the concurrence of Congress, may adopt
such meas"ures, in cooperation with the governments of England
"and France, as may cause the intervention of the "three Powers to
be respected." 2 1 Santo Domingo and the United States, by John
Bassett Moore, Review of Reviews, March, 1905, p. 298. 2 "When
Mr. Webster wrote these instructions," says Mr. Moore, "Great Britain
and France had agreed, if the advice of the Powers was "not taken
immediately, to institute a hostile blockade of the Haitian "ports. In
this act of war the President of the United States was "unable to
take part without the authority of Congress, and it was to "this fact
that Mr. Webster referred when he stated that, in case the "Haitian
Government should refuse to yield to remonstrance, the President
would lay the matter before Congress, in order that the United
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