The courts must bear a heavy share of the burden of American racism. An outpouring of historical scholarship on racism and the American law reveals the outrageous and humiliating extent to which American lawyers, judges, and legislators created, perpetuated, and defended racist American institutions. The law is not autonomous, however, particularly in areas of explicit public policy making. Lawyers did not invent racism. Rather they created racist institutions because society was racist and racism was implicit in its values. The trend in scholarship on the legal history of American racism, however, has been to place most of the blame for racism entirely on the lawmakers. C. Vann Woodward began the trend a half century ago by identifying the rise of the 'Strange Career of Jim Crow' with the passage of statutes that mandated segregation in the American South. Woodward studied both antebellum and post-Civil War America to about 1890 and argued that popular custom favored integration as a general rule, with segregation as the exception. He suggested that only after southern self-determination was restored at the end of Reconstruction did whites assert their hostility toward Afro-Americans.
This article disputes this view. It examines the relationship between law and the social sciences during the period in which many of America's segregationist legal institutions and practices came into effect. Before the turn of the century, a large number of scientific studies warned against the dangers of racial mixing. Elite scientists just as much as laypersons believed that Afro-Americans were intellectually inferior, that they learned much more slowly than white persons, and that their close association with whites could contaminate and weaken the white race. After the Civil War, the possibility of substantial racial mixing became real; the prospect most feared was that of interracial marriage. Nearly everyone assumed that the way to prevent interracial sexual contact was to keep the races separated, particularly in those institutions where young people's values and attractions were developed, such as the schools.
The development of a ruling environmentalist paradigm to explain racial differences in test performance, physical integrity, criminal behavior, and economic status took more than half a century from the rise of the Jim Crow era. Scientific racism did not begin to disappear from American universities until the 1940's, until the publication of such consensus-creating documents as Gunnar Myrdal's An American Dilemma in 1944.
Hovenkamp, Herbert J., "Social Science and Segregation Before Brown" (1985). Faculty Scholarship at Penn Law. 1928.