The Story Of The Chinese Family That First Fought To Desegregate Southern Schools

Racial politics in the Jim Crow South were more complicated than you think.

 11/04/2016 04:12 am ET

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Rebecca Klein Education Editor, The Huffington Post

Decades before Brown v. Board of Education ― the landmark 1954 Supreme Court case that found “separate educational facilities are inherently unequal” ― a Chinese family from rural Mississippi brought its own legal challenge to Southern school segregation before the Supreme Court.

In 1924, grade school students Martha and Berda Lum were barred from attending their local, all-white school because of their status as people of color. The family sued the school in an unprecedented but little-known lawsuit that made its way to the nation’s highest court.  

A new book, Water Tossing Boulders: How a Family of Chinese Immigrants Led the First Fight to Desegregate Schools in the Jim Crow South, documents the family’s struggle for educational equality. 

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Thurgood Marshall, seen here in 1958, argued Brown v. Board of Education, the case that ended state-sanctioned school segregation. Marshall went on to become the Supreme Court’s first black justice.

Although the Lums sought to fight racism against Asian-Americans and provide their daughters with access to a quality education, their lawsuit was itself rooted in pronounced anti-black racism. The Lum family brought the challenge because they didn’t want society to see their daughters as being in the same category as black students, or force them to attend the same institutions as black children.

The girls’ mother, Katherine, “knew that such a classification would have instantly disenfranchised her family,” the book says. “For Katherine to send her children to the colored school would be to yield to the trustees, to agree with them that her daughters were not worthy of the privileges afforded to whites.” 

The case could have changed the course of history. Instead, the Supreme Court unanimously ruled against the Lum family. They ended up leaving the state. 

The Huffington Post spoke with author Adrienne Berard about how she unearthed this family’s unique history.

This case isn’t very well-known. How did you come across it? 

I wasn’t looking for it at all. It was a lucky accident that I came across it. My family is from the Mississippi Delta and I was there doing research ― I was interested in writing about my own family. I went to the archives of Delta State University. When I was there, the archivist had just come out of a meeting with a group interested in preserving the Chinese heritage of the Mississippi Delta. After talking with her and learning more about it, I wanted to change [the] focus of the book I thought I was writing. I wanted to move away from my family but still tell the story of a family. Generations had passed since the case, but people still talk about the horror of it.

You spoke to members of the Lum family. Were they interested in telling this story? 

They were excited to meet me and excited to learn more about their history. They were also pretty guarded, and rightly so. It wasn’t a victory. They lost the case, and because they lost that case, it created a precedent that was detrimental to the Chinese-American South as a whole. It’s not like they were pariahs by any means, but there is that stain of losing the case. 

Why do you think this case has been so overlooked by history?

I think part of it is because it conflicts [with] what we think we know about the South. We have a very strict narrative of what the South is, and to add a third race into what has been described as a binary racial society really complicates the history. I’m not surprised I didn’t know anything about it and that most people don’t know anything about it. In order to explain those dynamics, you have to grapple with a lot of history and talk about the layers that go into the racial discrimination of the South.

Had the ruling in this case gone differently, how could that have affected the history of school desegregation in the South?

It is interesting because so much of this case is so wholly racist. There were racists on both sides ― the plaintiffs and the defense, the school board and the state of Mississippi and the U.S. Supreme Court. Even the appeal, everything along the way has all these layers of racism. 

Had the court favored the Lum family, it would have been a dent in the hard wall of racism throughout the South. Instead, they made that wall stronger. Had they said “We’re willing to blur this line for this ethnic group,” then maybe another ethnic group would have come along and said “Maybe you should blur this line for us.” Maybe African-Americans would have come along and said “If all these groups can attend these schools, why shouldn’t we?”

Hindsight is 20/20, so I have no idea. But had it not been unanimous and only one justice written a dissent, that could have been huge. Had one person in the justice system somehow ruled in favor of this family, it could have set a precedent. They didn’t necessarily have to win to make a difference. 

This interview has been condensed and edited for clarity. 

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Rebecca Klein covers the challenges faced in school discipline, school segregation and the achievement gap in K-12 education. In particular, she is drilling down into the programs and innovations that are trying to solve these problems. Tips? Email: Rebecca.Klein@huffingtonpost.com.

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Supranational Courts: Are they the New Legal Titans?

By Harold Young, PH.D.

The Hague, Netherlands – August 2, 2016: The International Court of Justice is the primary judicial branch of the United Nations. Seated in the Peace Palace in The Hague, Netherlands.

In October 2016, South Africa followed Burundi in withdrawing from the International Criminal Court (ICC) asserting bias by the United Nation’s Security Council in its case referrals (Duggard, 2013; Strydom, 2015; The East African, 2016). They point out that the United Nations Security Council has referred cases from Sudan and Libya with only black Africans brought before the court (BBC, 2015). South Africa and other African states charge that the ICC has “lost its direction” (Strydom, 2015). Established in 1959, the European Court of Human Rights (ECtHR) is another exemplary supranational court. The United Kingdom’s (UK) Conservative Party pledges to sever ties with the ECtHR (Travis, 2015) as it impinges on British sovereignty (Watt, 2015). The previous Labour Party government was supportive of the ECtHR and continues to support it while in opposition (Hansard, April 26, 2016). During the last half century, there has been a marked increase in the number of supranational courts and the number of acceding states. Having acceded, however, why do states sever ties with supranational courts?

In acceding, states delegate legal decision-making authority to supranational courts (Helfer and Slaughter, 1997).  As the highest court in the judicial system, the final appellate court is the last judicial forum reviewing legal challenges. A central issue for all states, therefore, is the organization of the judiciary and its role in furthering “peace, order and good government” (POGG) as a feature of constitutional rule (Yusuf, 2014).  The final court lends legitimacy to the policies of the governing coalition, which Dahl (1957) describes as the congressional “lawmaking majority” (284). This legitimizing role makes the judiciary an important participant in the national decision-making process (Dahl, 1957) as governing coalitions pursue their visions of POGG. It is itself, therefore, a “national policy maker” (Dahl, 1957). Shapiro (1964) refers to this notion as “political jurisprudence” (16). As challenges to policies percolate up the judicial hierarchy, legitimization of those policies by the judiciary is an important issue (Dahl, 1957). Reliance upon a supranational court as the final appellate court is seemly incompatible with the modern notion of sovereignty (Swinfen, 1987). I suggest, therefore, that the governing coalitions will seek to remove the supranational court if it perceives a disconnection with the court. This perception is influenced by changes in the political environment that make the state more sensitive to a court over which it has no direct control. If the governing coalition perceives a disconnection with the court, the remedy is to replace it with a national court. I suggest that states sever ties when they perceive the court as incompatible with the policies goals of the governing coalition. This potential juncture is a function of a change in the political environment that increases the disconnection between the governing coalition and the supranational court.  At that juncture, it is more likely that the governing coalition will abandon the court. The importance of the political will to effect change was summarized by the former President of the New Zealand Court of Appeal, Sir Thaddeus McCarthy. He stated in 1976 that he had no doubt that the questions surrounding severing ties with the JCPC “are ultimately political questions” (Richardson, 1997).

The Hague, Netherlands – July 5, 2016: The International Criminal Court forecourt, entrance and sign at the new 2016 opened ICC building.

I assert that the political environment can be captured in three categories – drastic change, subtle change, and no change. I define the categories as follows: (1) no change – the state does not experience any change in the political environment when a new governing coalition comes to power with a commitment to the constitution and the continued good governance of the state. This does not preclude law reform, but does not fundamentally change the relationship between the state and its citizens. While there may be a new governing coalition after an election cycle, the basic tenets of a free political environment continue. The new coalition basically pursues the same broad policies but pledges to do a better job; (2) subtle change – the election of a governing coalition with a new vision that underpins new domestic and international policies (Elordi, 2000). These are pursued without fundamental systemic changes to the governing institutions or the rights and liberties of the citizens of the state. While this may also involve constitutional changes, the changes do not fundamentally change the governance landscape (Grace, 2015); and (3) drastic change – includes the promulgation and adoption of a new constitution that fundamentally changes the governing institutions, as well as the rights and liberties of the citizens of the state. In other words, these changes generally alter the relationship between the citizens and the state, or they expand or reduce the range of fundamental constitutional rights (Grace, 2015; Thoburn v Suderland City Council, 2003). Though the process may differ, drastic and subtle changes increases the likelihood that ties with the supranational court will be severed but no change maintains the status quo.

There is evidence that supranational courts will continue emerge in the world community (Specht, 2015). As supranational courts such as the ICC, the ECtHR, the International Court of Justice, the Caribbean Court of Justice, the Inter-American Court of Human Rights and the African Court on Human and People’s Rights continue to adjudicate and other courts emerge around the proliferation of international law, understanding the dynamic relationship with states is crucial. Ultimately, ties with supranational courts depends much less on the performance of the court. It is the governing coalition’s emergent political will in a changed political environment that drives the relationship with the court. The future of supranational courts, therefore, depends on the domestic political environment that influences governing coalition commitment to development and vibrancy of supranational courts.

About the author: Harold Young is an Assistant Professor at Austin Peay State University in Clarksville, Tennessee. His research area is Public Law and examines an American and comparative perspective on judicial institutional changes and decision making. In his previous lives, he was a social worker, a health communications project manager and an attorney-at-law. He can be reached via email at youngh@apsu.edu.