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The Oxford Companion to the Supreme Court of the United States, 2nd Edition edited by Hall, Kermit L (23rd June 2005)

C, Cooper v. Aaron,

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 10 July 2020

Cooper v. Aaron,

358 U.S. 1 (1958), argued 28 Aug. and 11 Sept. 1958, decided 12 Sept. 1958 by vote of 9 to 0; Warren for the Court. In Brown v. Board of Education (1954) the Court decided unanimously to invalidate racial segregation in the public schools and discard the *separate but equal doctrine articulated in *Plessy v. Ferguson (1896). In holding that in the field of public education “separate” could never be “equal,” the Court gave new meaning to the Equal Protection Clause of the *Fourteenth Amendment. Yet the ambiguous enforcement standard formulated in Brown II (1955) encouraged unanticipated defiance throughout the South.

In accordance with the first Brown decision, the school board of the city of Little Rock, Arkansas, established a plan for desegregation starting in September 1957 at Central High School. The day before desegregation was to begin, Governor Orval Faubus, claiming that public disturbances were imminent, ordered the Arkansas National Guard to prevent the entrance of nine black students. For three weeks, Faubus, President Dwight Eisenhower, the Little Rock school board, the city’s black community, the *NAACP, rabid segregationists, and the local federal district court were embroiled in intractable confrontation. After the federal district court found the governor’s assertions concerning impending disorder groundless, Faubus withdrew the guard, but when the “Little Rock nine” entered Central a few rabble-rousers galvanized the crowd outside, forcing the students’ withdrawal. The next day President Eisenhower dispatched combat-ready paratroopers, who enforced the federal court’s original desegregation order.

At the end of the school year, in order to end the tension, Little Rock school officials asked for and received from the federal district court a two-and-a-half year delay in implementing desegregation. The NAACP appealed the case, Cooper v. Aaron, to the Supreme Court.

The Cooper case was the first significant legal test of the enforcement of Brown. The issues were: whether a good faith postponement of a desegregation program due to anticipated racial (p. 227) unrest would violate the constitutional rights of black students, and whether the governor and legislature of a state were bound by decisions of the U.S. Supreme Court. In an unprecedented action all nine members of the Court signed the opinion. They held, first, that even postponing plans for desegregation in good faith and the interest of preserving public peace would violate black students’ rights under the Equal Protection Clause. Thus no delay was allowed. Second, governors and state legislatures were bound under the Supremacy Clause of the Constitution to uphold decisions of the Supreme Court just as they were bound by oath to uphold the Constitution itself. “No state legislative, executive, or judicial officer,” the Court said, “can War against the Constitution without violating his undertaking to support it” (p. 18). No governor has the right to annul judgments of the federal courts.

The Cooper decision, however, initially fostered rather than discouraged southern resistance. Even during the dramatic dispatch of paratroopers, Eisenhower did not defend the Brown decision, which he personally opposed, creating the distinct impression that he would implement desegregation only under extreme circumstances. Yet neither the American public nor the Court knew the complete truth. In the September trial of Faubus involving his use of the national guard to prevent desegregation, the Justice Department declined to introduce evidence that demonstrated conclusively that prior to and during the crisis the Justice Department, school officials, a federal judge, and Faubus himself engaged in surreptitious contacts to negotiate an end to the confrontation in a manner that ultimately proved to be politically advantageous to the governor. The Justice Department even attempted, clandestinely and unsuccessfully, to persuade the NAACP to withdraw its suit on behalf of the nine black students.

Thus, notwithstanding the strong language of the Cooper decision, the federal judiciary faced massive southern resistance virtually alone until the sit-in cases and the nonviolent *civil rights movement of Martin Luther King, Jr., coupled with the support of Presidents Kennedy and Johnson, stimulated passage of the *Civil Rights Act of 1964. That act endorsed Brown by name and authorized the attorney general to intervene directly in school desegregation suits. Most important, Title VI, which cut off federal funds to institutions practicing racial discrimination, was used by the Department of Health, Education, and Welfare to compel compliance by threatening to withhold federal school funds.

See also desegregation remedies; equal protection; interposition; race and racism.

Tony Freyer