Our history lesson last week on the Arkansas Democrat-Gazette's misstatement of the facts of the 1957 school crisis seems to have had no positive effect.
Democrat-Gazette, May 15, 2007
On Sept. 20, Faubus removed the guardsmen on the order of a federal judge.
The transcript of a hearing Sept. 20, 1957 before federal Judge Ronald Davies includes the following from Carl Eardley, special litigation counsel for the Civil Division, Department of Justice. He said, in arguing that the National Guard should be enjoined from preventing the desegregation of Central:
"The issue today is not whether the governor had the right to use the guard, National Guard. We concede that. The issue is not whether he had the right to use the National Guard for the preservation of peace and order. The only issue, I repeat, is whether he used the National Guard unlawfully and in violation of the constitutional rights of these children."
Judge Davies adopted that reasoning in his ruling from the bench and in his written order the next day. In enjoining defendants, including the Guard, from blocking desegregation, he wrote:
Provided that this Order shall not be deemed to prevent Orval E. Faubus, as governor of the state of Arkansas, from taking any and all action he may deem necessary or desirable for the preservation of peace and order, by means of the Arkansas National Guard, or otherwise, which does not hinder or interfere with the right of eligible Negro students to attend the Little Rock Central High School.
Judge Davies was affirmed April 28, 1958, by the Eighth U.S. Circuit Court of Appeals, which noted:
The only claim made was that the Governor was using military force in violation of the law and of the plaintiffs' rights under the Constitution of the United States and the orders of the court. No claim was made that he could not use the Arkansas National Guard to preserve law and order. His right to do so was expressly recognized by the district court.
(Side note: The reporting of that 8th Circuit case happens to fall in the federal reports immediately before an unsuccessful school crisis appeal brought by a segregationist represented by Little Rock lawyer Griffin Smith. He's the late father of the Democrat-Gazette's current executive editor, Griffin Smith jr., who's responsible for the erroneous boilerplate that has been inserted in D-G articles about the school crisis since his arrival as editor.)
UPDATE: I've just been sent a photocopy of a page from President Dwight D. Eisenhower's diary, dictated following his Sept. 14, 1957 meeting with Faubus at Newport, R.I.
Governor Faubus protested again and again he was a law abiding citizen, that he was a veteran, fought in the war and that everybody recognized that the federal law is supreme to state law. So I suggested to him that he go home and not necessarily withdraw his National Guard troops, but just change their orders to say that having been assured that there was no attempt to do anything except to obey the courts and that the federal government was not to trying to do anything that had not been already agreed to by the School Board and directed by the Courts that he should tell the Guard to continue to preserve order but to allow the Negro children to attend Central High School.
Good advice, Ike.
UPDATE II: Still more research pours in. From Wiley A. Branton, “Little Rock Revisited: Desegregation to Resegregation,” Journal of Negro Education, 52:3 (1983), 250-269.
“It is significant to note that Judge Davies did not order Governor Faubus to remove the Arkansas National Guard, but only to enjoin him from using the armed forces for the purpose of obstructing or interfering with the right of the Negro children to attend Central High School. The Order made it clear that it “… shall not be deemed to prevent…” the Governor “… from taking any and all action he may deem necessary or desirable for the preservation of peace and order….” Nevertheless, the Governor made a prompt decision to withdraw the National Guard from Central High School. I am not aware of any steps that he may have taken thereafter to try to preserve the peace and order. . . .”
Enough documentation yet, Editor Smith?