The U.S. Supreme Court recently heard oral argument in two cases involving the issue of the right of privately-owned schools to discriminate against blacks. The cases were brought to the Supreme Court by two northern Virginia schools, the Bobbes School, a private nursery school with 155 students in kindergarten through second grade, and Fairfax-Brewster School, a private elementary school with 77 students.
In 1973, a U.S. District Court judge held that the refusal of Fairfax-Brewster and Bobbes School to admit otherwise qualified black students solely because of their race violated a Reconstruction-era statute that gave newly-freed slaves the same right "to make and enforce contracts…as is enjoyed by white citizens." In a 4-3 decision, the U.S. Court of Appeals for the Fourth Circuit, in an opinion by Chief Judge Haynsworth, upheld the District Court's ruling that the Civil Rights Act of 1866 prohibited racial discrimination by private schools.
The 1866 Civil Rights Act was a vaguely-worded measure passed by the Reconstruction Congress to counteract "Black Codes," statutes passed in Southern states to deprive freed slaves of the right to own property and to form contracts after the Thirteenth Amendment abolished slavery in 1865. The 1866 Act was dormant until 1968, when it was revived by the U.S. Supreme Court in a case ruling that the 1866 Act should be broadly interpreted to prohibit private racial discrimination in the sale or rental of property. In so holding, the Supreme Court, in effect, overruled the well-established rule of the 1883 Civil Rights Cases that the Federal Government could not prohibit private racial discrimination unless it is in some manner supported by "State action."
How do libertarians approach the problem of segregated schools? As individualists, we fundamentally believe that persons should be judged on their own merits, and not on the basis of arbitrary characteristics such as race. We consider the "State action" rule to be sound insofar as it is used to ban arbitrary, racist action by the State. But the question whether privately-owned and privately-financed schools should be allowed to discriminate on racial grounds is distinct from the issue whether racial discrimination is desirable.
From a libertarian perspective, it is axiomatic that individuals should be free to conduct themselves as they see fit, so long as they do not infringe on the rights of others. It is important to recognize that, in a free society, the right of an individual to enter into a contract to obtain a service or product does not carry with it the power to compel another to furnish any particular service or product. What is essential to the structure of a free society is the recognition of the basic right of a person to refuse to deal with another for any reason. The rights of free association and of privacy go hand in hand with property rights, and they are meaningless if they are recognized only for those whose private moral conduct meets our approval. In other words, a free society must recognize the rights of individuals (but not the State) to act capriciously or arbitrarily—including the right of racists to discriminate.
The evil of governmental approaches to dealing with school segregation is that the government typically requires either compulsory segregation or compulsory integration, rather than allowing parents to voluntarily send their children to an integrated or segregated school of their preference. Whether the governmental policy selected is enforced segregation or enforced integration depends upon who is able to grab the reins of power at any given moment. The enforced segregation approach was widespread for many years in American schools, imposed by State legislatures in the form of "Jim Crow" laws and by State and Federal courts which upheld such laws as constitutional, primarily on the basis of the "separate but equal" doctrine. First formulated by the Massachusetts Supreme Court in a school segregation case in 1850, and adopted by the U.S. Supreme Court in 1896 in the infamous Plessy v. Ferguson case, the "separate but equal" doctrine upheld racial segregation if "equal" facilities were provided to both blacks and whites.
The vicious use of government power to enforce segregation in private spheres of conduct was upheld in many areas of the U.S., in conduct ranging from dining (many States forbade integrated restaurants) to the choice of marriage partners (miscegenation statutes banned intermarriage between blacks and whites). In the area of education, the record of government in the U.S. has been particularly dismal. In 1896, as of Plessy v. Ferguson, nearly 30 States (including New York and California) had enacted "separate but equal" laws applying to tax-financed public schools. In 1899, the Supreme Court held that the Federal Constitution did not forbid a local school board in Georgia from closing the black high school and refused to stop the collection of tax funds to maintain a segregated high school for white children. In 1908, the Supreme Court upheld a Kentucky statute forbidding the teaching of white and black children in the same institution and affirmed a Kentucky court's judgment imposing a fine of $1,000 on Berea College for violating the statute. Not until 1954 did the United States Supreme Court overturn the "separate but equal" rule of Plessy v. Ferguson and prohibit racial segregation in tax-financed public schools. Even after 1954, the "neighborhood school" system has perpetuated segregation in public schools in many cities, and has since led to a traumatic effort to forcibly integrate by the use of compulsory busing in some communities.
Given the historical treatment of minorities by Federal and State governments in the United States, one might expect contemporary liberals to be skeptical of expanding government power in the area of race relations. Moreover, restraint as to governmental power on the part of liberals should seemingly stem from the recognition of many liberals that, at least in certain areas, the government should not impose upon all citizens the moral views of some of them. For example, most liberals demand that the government not intrude in the area of consensual adult conduct involving religion, drugs, pornography, gambling and sex. We doubt that many liberals would object to the right of a Catholic school to discriminate against non-Catholics, or a Black Muslim school to discriminate against non-adherents. However, at the same time that many liberals call for a sound laissez faire policy in selected areas, they inconsistently demand that the government impose their own moral views in the area of racial discrimination. Surely, liberals should recognize that the argument for government to intrude itself into the area of private racial discrimination is based upon the same premise that would justify government censorship of pornography, or criminalization of the possession or sale of marijuana.
On the other hand, although conservatives generally articulate a belief in personal liberty, the fact is that the expansion of government power in the United States has been given great impetus by the demand of conservatives to impose criminal sanctions for private, consensual conduct involving gambling, drug use, pornography and adult sexual activity. In looking at the effect conservatives have had on the growth of government power, it is instructive to look at a 1974 U.S. Supreme Court decision, Village of Belle Terre v. Boraas, which upheld the constitutionality of a local ordinance restricting the right of the owner of a house to rent it to several students who attended the nearby State University at Stony Brook. Under the ordinance, three unrelated people were prevented from occupying a dwelling, while no limitation was imposed on the number of occupants related by blood or marriage. In a seven-to-two decision (joined by all of Nixon's "strict constructionists"), the Supreme Court rejected the argument that the ordinance was invalid because it infringed the tenant's constitutionally guaranteed freedom of association and right to privacy. Although the Boraas case upheld a blatant restriction on property rights, many conservatives lauded the decision because the ordinance was aimed at young "counter-culture"-type students.
The issues raised by the Boraas case are closely analagous to the questions posed by the segregated private school cases. An interesting aspect of Boraas is that it was supported by the American Civil Liberties Union and that the only substantive dissent was written by Justice Marshall, who argued that the ordinance discriminated against individuals on the basis of their choice of lifestyle as to housing companions, and thereby impinged upon fundamental personal rights. Notwithstanding their profreedom views in the Boraas case, both the ACLU and Justice Marshall would not hesitate to prohibit private schools from discriminating against blacks.
Obviously, neither liberals nor conservatives adhere to consistent, principled positions in defense of individual liberty. Only libertarians consistently oppose attempts to use the State to restrict people from voluntarily handling their own wants and needs.
The problem at hand is not merely that of racial discrimination, but extends to the broader issue of State-provided schooling. It is shocking that many students do not learn how to read and write in tax-financed public schools. The hardship falls most heavily on the poor, whose children attend the worst quality State schools. After paying their taxes to support the public school, the poor simply do not have the option to finance their children's education in a private school.
Our program calls for radical surgery. We believe that the problem of segregated schools—and the problem of inferior quality—can be solved by eliminating the government from operating the schools, and allowing parents to select the type of school they want their children to attend.
The current attack on segregated private schools is misguided. The attack should instead, be aimed at government-controlled school systems. If Americans are unwilling to allow government to control the press, why should it be given the vastly greater power of controlling the schools?
Only approximately one percent of the nation's school children attend racially segregated private schools. To relentlessly pursue those few parents who prefer to finance their children's education in a segregated private school helps lead to racial antagonism, and is harmful to all races. Racial tolerance cannot be achieved by legislation. If the Supreme Court had not followed previous State court decisions in adopting the "separate but equal" rule in 1896, there would have been a halt to State-imposed segregation, and racially integrated schools could have come as a natural, voluntary development. In this Bicentennial year, it is timely for the nation to recognize and preserve the important principle of liberty that is involved, and to limit, rather than expand, governmental power over the nation's schools.
This article originally appeared in print under the headline "The Attack on Segregated Private Schools".