Seduction Of The Innocent: The expert witness

>> Wednesday, August 21, 2013

Establishing the Lafargue Clinic was the second-greatest thing Fredric Wertham accomplished.  The greatest thing he ever did was to play a role in Gebhart v. Belton (32 Del. Ch. 343; 87 A.2d 862 (1952)), testifying as an expert witness on behalf of the plaintiffs. 

Gebhart is a case you know about even though I think you've probably never heard of it: when the Chancery Court of Delaware found for the plaintiffs, the Attorney General of Delaware appealed to the Supreme Court of the United States, who granted certiorari and bundled the case with several others from across the country addressing the same issues the Delaware plaintiffs raised.  Gebhart v. Belton, a similar Virginia case (Davis v. County School Board), and the related South Carolina case (Briggs v. Elliott) were all decided alongside a case out of Kansas, under which all the cases were captioned: Brown v. Board of Education of Topeka (347 U.S. 483 (1954)).

The issue before the Supreme Court, as the reader doubtlessly knows, was whether segregated schools could be maintained as "separate but equal" institutions, an expression from the Court's infamous decision in Plessy v. Ferguson (163 U.S. 537 (1896)) to uphold the Constitutionality of legally-enforced, state-mandated segregation; in Brown, the Court effectively reversed Plessy in a unanimous decision delivered by Chief Justice Earl Warren.  Chief Justice Warren wrote:

In Sweatt v. Painter, supra, in finding that a segregated law school for Negroes could not provide them equal educational opportunities, this Court relied in large part on "those qualities which are incapable of objective measurement but which make for greatness in a law school." In McLaurin v. Oklahoma State Regents, supra, the Court, in requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangible considerations: ". . . his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession."  Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs:
"Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system."
Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority.  Any language in Plessy v. Ferguson contrary to this finding is rejected. [citations and notes omitted]

One of the footnotes to this:

A similar finding was made in the Delaware case: "I conclude from the testimony that in our Delaware society, State-imposed segregation in education itself results in the Negro children, as a class, receiving educational opportunities which are substantially inferior to those available to white children otherwise similarly situated." 

The Delaware Court didn't rely on that finding, but nevertheless put a great deal of weight upon it; from the Gebhart opinion:

Plaintiffs produced many expert witnesses in the fields of education, sociology, psychology, psychiatry and anthropology. Their qualifications were fully established. No witnesses in opposition were produced. One of America's foremost psychiatrists testified that State-imposed school segregation produces in Negro children an unsolvable conflict which seriously interferes with the mental health of such children.  He conceded that the form, or combination of forms of hardship, vary in different cases and he further conceded that the results are not caused by school segregation alone. However, he pointed out that State enforced segregation is important, because it is "clear cut" and gives legal sanction to the differences, and is of continuous duration. He also pointed out other factors which viewed against the social background of the Delaware community, necessarily have the effect of causing the Negro child to feel that he is inferior because, in an indirect fashion, the State has said so. The other experts sustained the general proposition as to the harmful over-all effect of legally enforced segregation in education upon Negro children generally. It is no answer to this finding to point to numerous Negroes who apparently have not been so harmed. It leads to lack of interest, extensive absenteeism, mental disturbances, etc. Indeed, the harm may often show up in ways not connected with their "formal" educational progress. The fact is that such practice creates a mental health problem in many Negro children with a resulting impediment to their educational progress.

Care to guess who "one of America's foremost psychiatrists" was?  James E. Reibman writes:

Wertham's research and testimony in the Delaware cases became part of the legal argument used in the landmark school desegregation case, Brown v. Board of Education.  Thurgood Marshall, chief attorney for the NAACP Legal and Educational Defense Fund, wrote to Wertham on May 25, 1954, pointing out the critical nature of Wertham's work and thanking him

for the important assistance which you gave us in the school segregation cases which were recently decided by the Supreme Court of the United States. It is unfortunate that the opinion of the Supreme Court of the United States could not, in so many words, give recognition to all of those who were of assistance to us. However, I hope that you and the members of your clinic will have satisfaction in knowing that your great efforts contributed significantly to the end result. Not only was your testimony in the Delaware case before the Court in the printed record of testimony, but the Chancellor in Delaware came to his conclusions concerning the effects of segregation largely upon the basis of your testimony and the work done in your clinic. [citations omitted]

I'm not sure the full import of Brown hasn't been lost upon the generations who have grown up since then with it as a fact of life.  The critical thing about Brown wasn't so much that it decided "separate but equal" wouldn't work, but that it was meaningless: the problem with segregation wasn't merely that some people might not have access to the same utilities as others solely on the basis of their skin color, but, more fundamentally, that simply causing the separation in the first place caused an injury in and by itself no matter how even you tried to make things.  Facilities could, in fact, be equal, and still cause psychological damage and impair education because they were separate.

I think you could get waylaid there if you aren't careful, attempting to spin that into a whole 'nother argument over whether attempts to correct for the evils of segregation and racism by affirmative action programs has some kind of insidious effect; I think that's terribly complicated and beside the point, which is that Brown was a threshold moment in the United States' coming to terms with the terrible moral and societal consequences of our particular form of apartheid, merely because it recognized and admitted that there were terrible moral and social consequences.

Brown is the kind of thing that makes you proud, if you're an American, to be one.  It wasn't the end of anything, but a beginning, but it was one hell of a beginning.  The first step is admitting you have a problem, and what Chief Justice Earl Warren and eight Justices of the Supreme Court of the United States took upon themselves was admitting that we had an enormous problem, and going as far as to say we had a scientifically definable problem, that segregation was inherently a failure that hurt everybody it touched (which, you know, was literally everybody in the U.S.), and here were the experts to prove it.

In all of this, Frederic Wertham was a footsoldier.  When I say his part of all this was the most important thing he did, and ought to be remembered that way instead of the way his name has gone down in history as That Guy Who Really Hated Comic Books, I don't want to steal an iota of credit from the generals who planned and fought this war, Thurgood Marshall chief amongst them.  The legal team at the NAACP coordinated a national legal strategy and local attorneys in Kansas, Virginia, South Carolina and Delaware litigated it, and Frederic Wertham wasn't the only expert witness who testified at any of these trials.  And the children and parents who actually stuck themselves out there and literally risked their lives in an era when churches were bombed, students assaulted, activists murdered, etc., were simply heroes (it would have been so easy to go home, go to those separate schools, internalize the awful lessons of segregation, to surrender and survive and make a terrible peace, and tolerate evils, accepting their children and children's children would be next).  But if you'll forgive the extended military metaphor, Frederic Wertham was a soldier with an infantry mortar, or leading a team with his colleagues at the Lafargue Clinic loading and firing a heavier artillery piece, and providing heavy support without which the war would have been lost; you don't win just with generals, not even if one of them is the great Thurgood Marshall.

All of this leaves one with a sinking feeling when you consider the reason Wertham was back in the news this year:

A couple of weeks ago, researcher Carol Tilley proved to the world what many already suspected: anti-comics crusader Frederic Wertham lacked supporting scientific evidence for his conclusions and even fabricated some of his data. 


...Tilley’s work has cast a light on Wertham, whose crusade against comics led to decades of self-censorship that nearly destroyed the industry (and certainly destroyed the livelihoods of hundreds of comics creators and publishers). While few were surprised that Wertham used faulty science to support his arguments and Wertham’s views may even seem quaint by today’s standards, they’re no less dangerous. [links omitted]

When that news hit this past March, a lot of comics fans took a certain vindictive glee in the headlines.  The fact is that Wertham's evidence didn't necessarily support his conclusions even if you took it at face value, and there's an argument to be made that, while Wertham's methodology wouldn't begin to pass muster today, they were (for better or, mostly, for worse) consistent with the work of other mid-century psychiatrists and psychologists.  Regardless, the pleasure so many of us took in Wertham's final posthumous humiliation was terribly parochial: what seems like a triumphant dance on an enemy's grave in the small world of comic books is in fact a bullet dodged by the entire United States.

What I mean is, do you have any idea what Carol Tilley's discovery would have meant in 1954?

I have no idea whether the problems that have been discovered with Wertham's anti-comics represent problems with his work on the consequences of segregation.  I'm afraid I suspect that Wertham's work, much like the research done by Sigmund Freud (who Wikipedia cites as a powerful influence on young Wertham), much like the work done by Freud's protégé , Carl Jung, much like the works of so many early psychiatrists, in fact, was probably often anecdotal in nature, with anecdotes massaged for general consumption by the public when it seemed sinless to do so.  Wertham came up in an era when psychiatry didn't appear to have much use for the scientific method or any of its usual accoutrements such as control groups and double-blind studies.  But even if my gut is wrong about that, can you imagine what the racists would have done with Professor Tilley's revelations?  (I'm not accusing her of anything, by the way: if Professor Tilley has an agenda, it's an earnest passion for comics.  But if the Devil can quote scripture, I'm sure a segregationist could abuse the good professor's work just as easily.)

I have to admit, whatever gratitude I feel towards Professor Tilley for letting a little more truth and light into the world is actually overwhelmed by my gratitude that she didn't let it in until more than half a century had passed since it really would have been a bombshell in the nation's culture wars.  Her discoveries would have been great for all those artists and writers and editors and publishers whose lives Wertham made difficult or impossible, would have been great for comics as an evolving artform, would have meant that maybe comics would be a whole helluva lot better now.  But gods only know, would that be worth the price we would have paid for everything else?

True, Wertham, again, wasn't the only one fighting the long, hard war against racism and segregation.  But undermining him in '54 would have gone some way in undermining his colleagues, would have tainted the whole project with guilt by association.  The Warren Court was likely ready to do something about Plessy, which had been a long and deep stain on the nation, and much of the country was primed for progress--desegregation had been a pet issue of Eleanor Roosevelt, who had her husband's ear on so many things, and FDR's successor, Harry Truman, ordered the desegregation of the armed forces in 1948; maybe toxic revelations re: Wertham wouldn't have mattered.  Or maybe these revelations would have left a bad enough taste in everyone's mouth for the Court to spit it out for a time.  If nothing else, it all would have been an embarrassment, undermining a watershed moment in American civil rights history.

No, we don't know, and maybe it all would have gone down the right way, anyway: but I'm glad it's far too late to find out.

As it is, it leaves a tremor, a ghost of a queasy feeling: was one of the most moral and just decisions in the history of American law predicated, even a little, on lies?  Does it matter?  Should the joy we take from the Supreme Court's burial of Plessy be tainted in any way by the well-intentioned mistakes (or even malfeasance) of a minor player in the great drama?  It's troubling enough just to feel obligated to ask.

It's a regret to contemplate it at all.  You almost wish it had stayed buried.


mattw Thursday, August 22, 2013 at 11:03:00 AM EDT  

Eric, you have painted Wertham in a whole new light, that I don't know I would have ever taken the time to learn about, much less scratch the surface of.

Considering his many contributions to society in general, it is a shame that his legacy is going to be associated with Batman sticking it to Robin and the CCA.

Thank you for taking the time to not only indulge your curiosities, but to share this information as well.

Eric Thursday, August 22, 2013 at 1:37:00 PM EDT  

My pleasure. I'm not quite done: I've written something for tomorrow, and I might have one more thing to say (or several, though I'd like to wrap this up). It's a rich and interesting subject.

This was all originally, in my mind, one post. Something along the lines of "(Number) Things About Fredric Wertham", something listicle-ish. But then I kept coming up with things I wanted to say--what was supposed to be an introductory paragraph about my relationship with comics and getting around to reading Seduction Of The Innocent turned into a whole post of its own, etc.. And maybe I would have stifled myself, but I haven't been writing much lately, and it's nice to have words following one another nicely again instead of piled up like a just-lost game of Jenga.

I am really glad someone is enjoying the result. Thank you, Matt.

Tom Friday, August 23, 2013 at 12:43:00 PM EDT  

Bravo, Eric. I've been reading this alternatly with tears in my eyes and great joy at the accomplishments of a court in the time of my birth. To think these things were started around the same time I was is inspiring, but to realize that there is so much we still need to do, even after 60-some years, can be disheartening.

I haven't yet read your most recent post, indeed it wasn't even up when I started reading your blog today, but I'm looking forward to seeing where you go from here.

Again, thanks for the inspiration.

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