The Varieties of Travel Experience   /   Summer 2024   /    Essays

In Search of the Broad Highway

The Limits of Law and the Rise of Critical Race Theory

Dave Tell

Derrick Bell, James Meredith, and Constance Baker Motley; THR illustration, Alamy Stock Photos, and Legal Defense Fund.

A man should be able to find an education by taking the broad highway. He should not have to take by-roads through the woods and follow winding trails through sharp thickets.

—Judge John Minor Wisdom, Fifth Circuit Court of Appeals, in Meredith v. Fair (1962)

James Meredith had been nothing but forthcoming. In his application letter of January 31, 1961, he requested admission to the University of Mississippi as a “Negro citizen.” University administrators rejected him, but they never acknowledged his race. They moved the application deadline to make him ineligible and revised their admission policies to disqualify him, but they never once addressed the question of whether a black man could attend a white university.

This exchange is the perfect example of what Robert Carter called the “indirect” power of Brown v. Board of Education (1954). A veteran of the legal team that represented the plaintiffs and a careful guardian of Brown’s legacy, Carter argued that in addition to integrating schools and overturning the Supreme Court’s “separate but equal” ruling in Plessy v. Ferguson (1896), Brown also “completely altered the style, the spirit, and the stance of race relations.”11xRobert Carter, “The Warren Court and Desegregation,” Michigan Law Review 67, no. 2 (1968), 247. See also Plessy v. Ferguson, 163 U.S. 537 (1896), and Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).  Segregationists could no longer openly enforce segregation. In order to maintain America’s racial caste system, they were forced to resort to bad-faith admission policies and retroactive deadline adjustments.

Constance Baker Motley, an attorney for the National Association for the Advancement of Colored People (NAACP) who would go on to become the first black woman appointed to the federal bench, first noticed the shift in strategy in Georgia.22xTomiko Brown-Nagin, Civil Rights Queen: Constance Baker Motley and the Struggle for Equality (New York, NY: Vintage Books, 2023), 117.  Two years before she filed suit on behalf of James Meredith, she represented Hamilton Holmes and Charlayne Hunter, both of whom had been denied admission to the University of Georgia because they were black. When the case went to trial, university president Omer Clyde Aderhold testified that the applicants were rejected because the university was crowded and the dorms were full.33xHolmes v. Danner, 191 F.Supp. 385 (M.D. Ga. 1960), https://law.justia.com/cases/federal/district-courts/FSupp/191/394/1450807/.  It was his only option. Aderhold worked for Governor Ernest Vandiver, who promised that not one black student would be admitted to segregated schools on his watch. But five years before Vandiver was elected, the US Supreme Court had found that state-sanctioned segregation of public schools violated the Fourteenth Amendment. Trapped between Vandiver and Brown, Aderhold lied about the size of his dorms.

Five months later, on May 31, 1961, Motley filed Meredith v. Fair (so called after Charles Dickson Fair, president of the University of Mississippi board of trustees) to compel Ole Miss to admit James Meredith. Citing the Fourteenth Amendment, she alleged that the university deprived Meredith and “other members of his class” of the right to attend institutions of higher learning “upon the same terms and conditions applicable to white citizens.”44x“Complaint,” Meredith v. Fair, 199 F. Supp. 754 (S.D. Miss. 1961), https://law.justia.com/cases/federal/district-courts/FSupp/199/754/2391390/.  The university refused to engage the substance of her allegations. Rather than respond to charges of racial discrimination, administrators insisted that their campus was full.

Brown thus introduced an asymmetry into arguments over race and education. Motley and her clients were openly pursuing integration, but their opposition refused to engage. Straightforward argument was met with misdirection; appeals to justice were met by protestations of insufficient space. In the metaphor of John Minor Wisdom, the judge who wrote the Fifth Circuit Court of Appeals’ finding in favor of the plaintiff, the open argument of the “broad highway” was met with the obstructionism of “sharp thickets.” The defendants didn’t deny the constitutional validity of Brown; they simply argued that institutions were ill prepared, that applications were incomplete, or that applicants themselves were unqualified. Ostensibly colorblind policies, such as those preventing crowded dorms, replaced race as the principle of selective admissions without altering the purpose of selective admissions—the preservation of an all-white university. While these policies originated in racial animus and tended toward racial segregation, the men who devised them denied their origins and dismissed any racial impacts as incidental.

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