Brown of the North
After the historic 1954 decision in Brown v. Board of Education started dismantling Jim Crow, leaders of the NAACP Legal Defense Fund looked for a strong case that could attack school segregation in the North.
It was a tall order. In non-Jim Crow states, separate schools were not codified in statute. So the legal case was murkier, even though discrimination was as pervasive and the results – segregated schools – as real.
Philadelphia, with a history of racism and an African American legal elite, was the perfect place to give it a try.
The resulting case, Chisholm v. the Board of Public Education, was filed in 1961 with NAACP chapter president A. Leon Higginbotham Jr. as lead attorney. Initially, it looked promising, and the national NAACP considered putting money into pursuing it.
But rather than a precedent-setter, Chisholm became a footnote. It fell victim to NAACP politics, official stonewalling, and the sheer difficulty in proving that the mostly White Board of Education deliberately discriminated against Blacks when it publicly insisted otherwise.
At best, Chisholm paved the way for the Pennsylvania Human Relations Commission’s lawsuit against the District, which continues to this day.
In the early 20th century, Philadelphia had a higher percentage of Blacks in its public schools than any other big city. And the proportion grew steadily – from 5.3 percent in 1910 to 47 percent in 1960.
In part, this was because the city has long housed two separate systems. In 1960, the heyday of urban Catholicism, 52 percent of White children went to parochial schools, but just 8 percent of Black students did.
But the public schools were also segregated, because officials simply ignored the 1881 state law outlawing discrimination in education. In 1908, School Superintendent Martin Brumbaugh created several all-Black elementary schools to employ Black teachers, who were prohibited from teaching White students. Brumbaugh, who later became governor, had also concluded that Black students were unfit to learn an academic curriculum.
"The difference between Philadelphia and the Southern states," said V.P. Franklin, a historian who wrote a book called The Education of Black Philadelphia, "is that since it was against the law . . . to segregate students, they segregated the teachers. So a form of de jure segregation was maintained."
The Black community was split. Black teachers endorsed the segregated schools because they feared losing their jobs and felt that they were better suited to teach Black children than White teachers, who generally had little confidence in the abilities of African Americans.
But others fought against segregation, most prominently Philadelphia Tribune editor E. Washington Rhodes and Floyd Logan, an IRS accountant who through his Education Equality League battled it for 50 years.
They were joined by the NAACP, which brought its first petition against segregation to the school board in 1922.
But change came slowly. It was 1935 before the Philadelphia school board assigned a Black teacher to a secondary school – just one; the next didn’t come until 1940. In the mid-1950s, a report found that 83 percent of the District’s Black teachers were in schools that were at least 80 percent Black.
But the teacher policy was only one piece of the pattern of discrimination. In the 1950s, the Board of Education built many new schools for Whites who were moving to the expanding Northeast. But when schools in Black neighborhoods started bursting at the seams with the second great migration from the South, the board put portable classrooms in the school yards, often staffing them with unqualified substitutes. Black students in crowded schools were often on part-time schedules, while White students got transfers elsewhere. And according to accounts from students and teachers of the time, predominantly Black high schools lacked sports equipment or rigorous courses, which disappeared with the White students.
The board also manipulated school attendance boundaries. In the year Brown was decided, some Black children still traveled beyond the nearest school to attend a segregated one farther away. Edward Williams remembers walking in one direction to Barratt Junior High while his White neighbors across the street went to Vare. Before that, Williams went to all-Black Smith Elementary School – one of those created to employ Black teachers. His neighbors attended all-White Childs.
“Around junior high, you started to realize that there was either some rule or policy that said you had to go one place and other people somewhere else,” said Williams, who retired in 2004 as the city school district’s chief academic officer. “It was an accepted rule. It was a matter of, this was the way things were being done.”
In the wake of Brown, the NAACP – along with the ever-vigilant Logan and community organizations – kept asking the Board of Education to articulate a policy on integration. The request went unheeded until Rhodes, in 1959, became the board’s second Black member. It adopted a “nondiscrimination” policy that Logan complained made a vague commitment to color blindness but said nothing about integration.
Into this scene came Chisholm.
As it had done elsewhere, the board put portable classrooms in the yard of the Emlen School in Mount Airy rather than transfer some of its Black students to mostly White schools nearby. When the A.B. Day School was built in 1953 just a few blocks away, the District drew boundary lines in a way that created two segregated schools instead of two integrated ones; in 1961, while Emlen was almost all Black, Day had never had a Black student.
Higginbotham was able to show that predominantly White schools generally had “grossly superior” facilities and resources. Nevertheless, he said in a 1991 interview with Anne Phillips, fighting segregation in Philadelphia was torturous.
Without a “smoking gun,” Higginbotham told Phillips, now a professor at Rowan University who did her dissertation on school segregation here, it was virtually impossible “to demonstrate . . . that the way in which boundaries are chosen [is] not a matter of pure coincidence. If the task in the Northern cases was to establish a long-standing pattern of policies “designed to preclude . . . normal integration,” not even in Philadelphia could he make an airtight legal case.
Chisholm didn’t get to court until January 1963. By that time, President John F. Kennedy had appointed Higginbotham to the Federal Trade Commission, and he withdrew as co-counsel. And while an impressive legal team including William T. Coleman worked on the case, it couldn’t get the information it needed. When Cecil B. Moore won control of the Philadelphia NAACP chapter after an internal battle, all the original lawyers withdrew.
Chisholm was taken over by Moore ally Isaiah Crippens, who according to Phillips’ account was inclined to compromise. Whether because of disagreements with Moore or for other reasons, the national NAACP ultimately chose not to get involved.
Crippens pursued Chisholm until 1965. When he asked the court to require the School District to enforce its “nondiscrimination” policy, the judge declined to find that the school board was acting in bad faith. The NAACP turned in new directions under Moore, most notably the successful crusade to desegregate Girard College, which had been founded by financier Stephen Girard for the education of orphaned White boys.
In 1968, the legal effort to desegregate Philadelphia public schools was taken up by the Pennsylvania Human Relations Commission, which had unusually broad powers to fight discrimination in public accommodations, including schools.
At the time, PHRC said, 70 percent of the District’s 269 schools had student bodies that were 90 percent or more of one race. It asked for a desegregation plan, and when none came, it filed suit in state court in 1970.
For more than 25 years, the PHRC sought to compel the District to bus students around the city for racial balance, which a succession of superintendents resisted and a succession of judges refused to order. PHRC’s most significant victory in Philadelphia was a 1978 agreement requiring that each school faculty be racially balanced. That agreement is still in force, but it hasn’t solved the District’s most vexing issue: the dearth of qualified teachers in the schools with the neediest students.
In 1994, after White and middle-class flight had taken its toll, Commonwealth Court Judge Doris Smith-Ribner ruled that the District, by then more than 80 percent minority, had failed to provide equal opportunity for impoverished Black and Hispanic students. She rejected busing while ordering expensive reforms in the city’s poorest, most racially isolated schools.
But when Smith-Ribner subsequently ordered Harrisburg to help pay for those improvements, the state Supreme Court removed much of her authority. After declining to provide significant new money to the District, the state in 2001 declared it distressed and took it over.
The PHRC case is still active. In March, 2004, Smith-Ribner stepped back from oversight for three years to see whether district chief executive officer Paul Vallas’ plans for turning around low test scores, high dropout rates, and crumbling discipline in the ever-more segregated district would work.
While test scores improved under Vallas, the achievement gaps between Black and Latino and White and Asian students did not significantly narrow.
But Smith-Ribner has taken no further action. A group of advocacy groups that she enjoined in the case still has the option to re-open it, but at the moment has no plans to do so.
Now it is Arlene Ackerman’s turn.
A version of this story first appeared in a special section on the NAACP in The Philadelphia Inquirer on July 11, 2004 to commemorate the organization’s 95th anniversary and annual meeting in Center City.