The Last Unlikely Hero: Gerald Bard Tjoflat and the Jacksonville Desegregation Crisis â 35 Years Later
Resistance to public school desegregation in this country was often contentious, and sometimes violent. Little is more precious to parents than the education of their children, and few things evoke more loyalty than the local school. Yet separate black/white school systems had existed in many parts of the country since the Civil War, and their necessary replacement invoked intense passion among many, and physical resistance among a few. This resistance was not limited to the South, as the violence and tumult in places like Boston1 gave witness.
The 35th anniversary of the final injunctive order in the Jacksonville desegregation case, Mims v. Duval County School Board, 329 F. Supp. 123 (M.D. Fla. 1971), is a fitting time to review a positive page in this difficult chapter of our national history. The desegregation of the Jacksonville school system 35 years ago involved a 100-year-old segregated black/white school system in a city that was very much a part of the old South. It came at a time of intense crisis in our nation, both in terms of race relations and the general social upheaval now called “the 60s.” The resolution of the Jacksonville school crisis was generally peaceful and successful. The credit for this success belongs to the good citizens of Jacksonville and to the federal district judge who led them, Gerald Bard Tjoflat.
Florida’s Reaction to Brown v. Board of Education
In Florida, prior to 1954, it was illegal under both the Florida Constitution and under Florida statutes to educate children in an integrated classroom. This prohibition applied even to parochial schools. Florida statutes not only required that the children be kept separate by race, but even their books could not be stored together.2 This system of educational apartheid was obliterated, in theory at least, in 1954 by Brown v. Board of Education, 347 U.S. 483 (U.S. 1954).
The Supreme Court’s holding in Brown, of course, was that “separate but equal” education of white and black children was neither equal nor constitutional. Florida school boards and state judges generally disagreed with this logic at the time, and some outright resisted it. Florida joined the rest of the South in collectively rejecting Brown.
Historically, the graduate schools integrated first. Virgil Hawkins sought admission as the first African American at the University of Florida School of Law in 1949. He required 10 years and 11 court decisions before breaking the color barrier, with the aid of the federal courts.3 His success came four years after Brown.
Hawkins was three times denied relief by the Supreme Court of Florida. In one of Hawkins’ failed appeals, one year after Brown, Justice Glenn Terrell of the Florida Supreme Court wrote in a concurrence:
I might venture to point out. .. that segregation is not a new philosophy generated by the states that practice it. It is and always has been the unvarying law of the animal kingdom, the dove and the quail, the turkey and the turkey buzzard. .. it matters not where they are found, are segregated: place the horse, the cow, the sheep, the goat and the pig in the same pasture and they instinctively segregate…and when God created man, he allotted each race to his own continent according to color, Europe to the white man, and Asia to the yellow man, Africa to the black man, and America to the red man, but we are now advised that God’s plan was in error and must be reversed. …4
Justice Terrell’s words, which seem such a relic now, were within mainstream Florida judicial thought at the time.
The response of Florida’s state courts to Brown was avoidance and delay. As the Supreme Court of Florida held in denying one of Virgil Hawkins’ 11 attempts: “Since the Brown case reverses a trend that had been followed for generations certainly there should be a gradual adjustment from the existing segregated school system to the non-segregated school system.”5 “Gradual adjustment” actually meant no adjustment, or as little as possible.
The reception that Brown received among most Florida state courts was typical of many other states, and Florida’s reaction was mild in comparison to some. Despite this grudging reluctance, segregated school systems were slowly being dismantled across the country after Brown, largely outside of the deep South. Desegregation in some large Texas districts, for example, occurred as early as 1958.6 Yet, no action was taken to desegregate Jacksonville’s system until eight years after Brown.
The first findings that Jacksonville was operating a segregated school system occurred in 1962 and were made by U.S. District Judge Bryan Simpson, who ordered submission of a desegregation plan. In 1963, Judge Simpson approved a plan that provided integration of one grade per year.7
Swann v. Charlotte-Mecklenberg Lights the Fire
Although Judge Simpson had made adverse findings as early as 1962, the Jacksonville schools case simply bogged down. “All deliberate speed,” the famous phrase uttered by the Brown Court8 concerning the speed of integration, really meant “not much speed” when it came to school desegregation, and Jacksonville was no exception to this national rule. Eleven years after Brown, in 1965, only 60 black schoolchildren out of 30,000 were attending integrated schools in Jacksonville.9 Desegregation accelerated slightly in the 1960s, but not significantly.
Two things happened in 1971 that would change that speed for the Jacksonville schools. The first was the Supreme Court’s pronouncement in Swann v. Charlotte-Mecklenberg Board of Education, 402 U.S. 1 (U.S. 1971). The second was the assignment of newly-appointed U.S. District Judge Gerald Bard Tjoflat to the Jacksonville schools case.10
Swann v. Charlotte-Mecklenberg caused the smoldering Jacksonville schools case to burst into the full flame of crisis. In Swann, which addressed a desegregation plan in North Carolina, a unanimous Supreme Court said, in very plain terms, “do it now.” Frustrated by foot dragging, the Swann Court stated that “very little progress had been made” since earlier pronouncements, and the “burden on a school board today is to come forward with a plan that promises to realistically work now. .., the remedy must be implemented forthwith.”11 Using strong language, the Court stated that authorities must take all steps necessary “to convert to a unitary system in which racial discrimination would be eliminated root and branch.”12 The Supreme Court stressed in Swann that if school boards failed to fix the problem now, the federal courts would. Swann also made clear that the high court viewed busing to achieve integration a permissible, and often necessary, step.
After Swann, all parties in Jacksonville, especially the newly-assigned Judge Tjoflat, had marching orders. The judge took the task at hand and, borrowing positive elements from the plan submitted by the school board, issued his operative order two months after Swann. This was no small task given that Jacksonville had the 13th largest school district in the country.13
Many desegregation orders throughout the country resulted in civil disturbances, and some in widespread rioting. Jacksonville’s experience in this regard was brief and fairly mild. Several days prior to the order, however, severe unrest involving the police shooting a youth erupted on the east side of the city, which added to the air of crisis.
One school, Ribault High School, was the site of rioting and had to be closed on several occasions. After a state judge declined an injunction, both the school authorities and sheriff petitioned Judge Tjoflat to enjoin the troublemakers. He conducted prompt hearings into the matter, finding that organized acts of disruption had occurred. As one commentator noted:
Judge Tjoflat responded swiftly. … In response to a courtroom charge by an attorney representing various black groups that he was attempting to “restrain the world,” Judge Tjoflat reportedly leaned across the bench and retorted, “that’s exactly what I’m trying to do. Nobody is going to interfere with the schools and that means nobody.”14
The judge’s injunction concerning Ribault High School, which listed some people individually, was read to every Ribault student, and was personally served on every student who had been suspended or expelled.15 U.S. marshals were posted to enforce the order at Ribault. Several persons were convicted of criminal contempt and jailed.16 Order returned to Ribault High.
Besides local pressure, outside politicians sought to capitalize on the social distress brought by desegregation in Jacksonville and elsewhere. Alabama Governor George Wallace won the Florida Democratic primary in 1972 on a platform that made little attempt to hide its race-baiting. Not to be outdone, Wallace’s opponent Henry “Scoop” Jackson took to visiting children at bus stops to commiserate with them.17
In the face of these national and local pressures, the Jacksonville school board asked Judge Tjoflat to delay or modify the second phase of integration.18 Tjoflat would have none of it. He denied all attempts to delay or temporize, no matter how well-meaning or sincere they were. He knew that the unpleasant medicine of reordering a school system was best taken once without hesitation rather than piecemeal. The time for “gradual adjustment” or “deliberate speed” was well past.
Although he spurred hesitant school board members, and jailed those committing physical disruption, Tjoflat’s leadership could not be described as bullying. He had a court of appeal looking over his shoulder, but more importantly he knew that losing public opinion would cause failure. He convinced Jacksonville’s main newspaper, the Florida Times-Union, to publish the final operative order in its entirety in its daily edition. This order, in plain language, devoid of legalese, has been labeled a “masterpiece of judicial diplomacy”19 in its ability to respond to the various concerned parties: white parents, black parents, the appellate court, the school board, and the teachers. The Fifth Circuit affirmed Tjoflat in short order. In affirming the order, the court of appeals found a “solid basis” for Judge Tjoflat’s conclusions.20
Judge Tjoflat was careful with public opinion because he knew that persons of good will would enlist in the difficult task. And indeed they did. Citizens from all walks of life worked together to make the social upheaval as negligible as possible. For example, one group of 40 to 50 black parents offered to host coffee hours for white parent groups, an offer that set a positive tone and was eventually reciprocated.21
Judge Tjoflat’s task was made easier by an able school superintendent, Dr. Cecil Hardesty. Jacksonville’s civic spirit was also invigorated by the merger between the city and county that occurred in the late 1960s.22 That merger spawned a “good government” movement that exists there still. This atmosphere avoided much of the sulfurous local influence that was seen earlier in places like Little Rock and New Orleans. Most important for the schools’ case, the Jacksonville/Duval County merger caused a new, nonpartisan school board to come into existence in 1969, without prior involvement in the earlier illegal system.
The case took a toll on the judge. Although the community responded well as a whole, a vocal minority villified Judge Tjoflat. U.S. marshals guarded the Tjoflat family, day and night, after credible threats were made.23 An “Impeach Tojo” billboard was erected.
Judge Tjoflat was blamed for “forced busing,” but if one compares his order to Swann, it is clear he used Swann as a template without expanding the intrusiveness of Swann’s very blunt command. His mandate was to eliminate immediately, “root and branch,” all vestiges of racial discrimination that had existed as official governmental policy for a century. The crisis was caused by this 100-year history and the 17-year delay since Brown.
Decisive judicial leadership, and a generally cooperative community response, solved the Jacksonville crisis in 1971 in an experience much more mild, and a manner much more successful, than many other cities. The progress made in 1971 did not end the Jacksonville schools’ case, of course. This type of litigation is ongoing, and the system operated under Judge Tjoflat’s order for 19 years. Judge William Terrell Hodges finally dismissed the case in 1999 after a three-week trial and an exhaustive order, finding the Duval County school system to be fully unitary.24
In a well-received book, author and professor Jack Bass described the role of Fifth Circuit Judges Rives, Wisdom, Tuttle, and Brown, as well as district court Judges Skelly Wright and Frank Johnson, in the civil rights struggle in the old South. Bass titled the book after these men, whom he called “Unlikely Heroes.”25 Judge Tjoflat was younger than these men, and did not take part in their larger civil rights struggles in the 1950s and 1960s that predated his judgeship. He was a personal friend of all these men, although once he was elevated to the appellate bench, Judge Tjoflat took a less broad view than they of judicial review, especially in criminal cases. His unflinching application of Brown and its progeny, and his courage under fire and decisiveness in the Jacksonville schools case, puts him very much in their class. Gerald Bard Tjoflat, approaching his fourth decade in federal judicial service, is the last unlikely hero.
1 See generally, School Desegregation Records, available at www.cityofboston.gov/archivesandrecords/desegregation.
2 Mims v. Duval County School Board, 329 F. Supp. at 125 (M.D. Fla. 1971).
3 Hawkins v. Board of Control, 162 F. Supp. 851 (N.D. Fla. 1958). In a twist of cruel irony, Hawkins achieved relief as a class representative but not for himself personally. Id. at 853.
4 State v. Board of Control, 83 So. 2d 20, 27 (Fla. 1955)(Terrell, J., concurring).
5 Id. at 24.
6 Frank T. Read & Lucy S. McGough, Let Them Be Judged: The Judicial Integration of the Deep South 97 (1976)(hereafter “Read & McGough ”). Read & McGough is a masterful chronology of the entire subject, relied upon heavily by this author.
7 Read & McGough, supra note 6 at 510; Mims, 329 F. Supp. at 126.
8 Brown v. Board of Education, 349 U.S. 294, 301, (1955) (“Brown II”).
9 Read & McGough, supra note 6 at 510.
10 Prior to Judge Tjoflat’s assignment, district Judge William A. McCrae, Jr., was briefly assigned the case and had made progress. Much of the faculty had already been integrated pursuant to an earlier order. Read & McGough, supra note 6 at 514.
11 Swann, 402 U.S. at 14-15.
12 Id. at 15, citing Green v. County School Board, 391 U.S. 430, 437-438 (U.S. 1968).
13 Mims, 329 F. Supp. at 129.
14 Read & McGough, supra note 6 at 519.
15 Mims v. Duval County School Board, 338 F. Supp. 1208 (M.D. Fla. 1971); Read & McGough, supra note 6 at 520.
16 E.g., United States v. Hall, 472 F.2d 261 (5th Cir. 1972).
17 Read & McGough, supra note 6 at 518.
18 Id. at 520.
19 Id. at 516.
20 Mims v. Duval County School Board, 447 F. 2d 1330, 1333 (5th Cir. 1971).
21 Read & McGough, supra note 9 at 512.
22 Id. at 511.
23 See Gerald Bard Tjoflat, Frank Minis Johnson, Jr., As a Colleague, available at www.law.us.edu/lawreview/tjoflat.html.
24 The 11th Circuit affirmed Judge Hodges at NAACP v. Duval County School Board, 273 F.3d 960 (11th Cir. 2001).
25 Jack Bass, Unlikely Heroes. (1982).
William F. Jung received his Bachelor of Arts degree, magna cum laude, from Vanderbilt University in 1980. He received his Juris Doctor degree in 1983 from the University of Illinois College of Law. From 1983 to 1985 he served as law clerk to Chief Judge Gerald Bard Tjoflat, U.S. Court of Appeals for the 11th Circuit, and as law clerk to Chief Justice William H. Rehnquist of the U.S. Supreme Court.