Thinking back on racial justice in Delaware

Where race is in the mix, real justice is more often assumed rather than attained. This explains why the battle to overcome the vestiges of slavery persists. As we approach the 70th anniversary of Brown v. Board of Education on May 17, Delawareans (whose cases were a part of that landmark ruling) have yet another opportunity to recommit themselves to the principle of equality.  

To comprehend the present, one must remember the past. From Delaware’s pre-colonial times to the 21st century, that means knowing about subjugation and discrimination, from slavery and involuntary indenture to a long chain of dehumanizing Jim Crow laws to a criminal justice system sorely in need of reform. As Robert L. Hayman Jr. put it in “Choosing Equality” (2009, co-edited with Leland Ware): “Delaware has been among the most racist states in the nation, and the vestiges of that racism haunt it today.” Then again, Delaware’s history is chock-full of stories of devoted struggles for racial justice fought by political activists, faith groups and civil rights advocates.  

Up until 1776, Delaware’s English colonists willingly imported and greatly benefitted from compelled unfree labor from people brought over from Africa. Yet, while the U.S. Constitution of 1788 remained silent (apart from the appalling three-fifths clause) on the slavery question, the Delaware Constitution of 1776 proclaimed: “No person hereafter imported into this state from Africa ought to be held in slavery under any pretense whatever, and no negro, Indian or Mulatto slave ought to be brought into this state for sale from any part of the world.” It was, however, silent about slaves brought to Delaware before 1776. Additionally, the Delaware Declaration of Rights proclaimed that only “every freeman ... hath a right of suffrage.”  

Admirable as it was for its time, Delaware’s anti-slavery constitutional provision did not outlaw slavery’s cousin: indentured servitude. Thus, under the banner of such servitude, racial injustice was perpetuated under the authority of many civil and criminal laws. For example, an 1849 law decreed that free Blacks who left the state for more than 60 days and then returned could be heavily fined since “their labor is most necessary to the white population ...” Moreover, that same law made it a crime for free Blacks to be unemployed. The penalty: sale into servitude for a prescribed time. The result of such laws was that the line between slavery and servitude was a distinction without much difference.

Then in 1897 – the year following the ill-famed Plessy v. Ferguson separate but equal ruling – Delaware amended its constitution to require separate schools for “white and colored children.”  

Incredibly, not until 1901, long after the ratification of the federal Civil War Amendments, did the General Assembly symbolically pass a joint resolution ratifying those constitutional amendments (outlawing slavery, guaranteeing equal protection and the right to vote).  

What reforms occurred over time were often owing to efforts of societies formed by Quakers and Methodists, particularly those in Castle and Kent counties. When it came to opposing Jim Crow laws, especially those relating to segregated schools, such faith-based groups were later joined by Catholics. Delaware’s Wilmington NAACP branch valiantly worked in tandem with these and other groups to combat racism. And then there was Delaware’s judicial branch which, thanks largely to the lead of Chancery Judge Collins J. Seitz, gave legal life to the equality principles championed by reformists. And let us not forget the brave schoolchildren who were the plaintiffs in the school-segregation cases of the early 1950s. (See also Ellen Driscoll, “From segregated classrooms to civic leaders,” Cape Gazette, Feb. 29, 2024).

When it comes to race, honest history is too important to wipe from the minds of those dedicated to the public good. To be sure, more could be said. In that regard, the Lewes Public Library will host a program on race in Delaware, before and after Brown v. Board.  The event, set for Friday, May 17, will consist of a public exchange between Leland Ware, the Louis Redding chair for the Study of Law and Public Policy at the University of Delaware, and U.S. Circuit Judge Thomas Ambro.