NAACP v. Jim Crow
The Legal Strategy That Brought Down "Separate but Equal" by Toppling School Segregation
By Robert J. Cottrol, Raymond T. Diamond, and Leland B. Ware
The National Association for the Advancement of Colored People (NAACP) was formed in 1909 to fight Jim Crow, 20th-century America's experience with petty and not so petty apartheid. Under the leadership of W.E.B. Du Bois, the NAACP would take the bully pulpit to push for the abolition of segregation and racial caste distinctions, and it would fight for open and equal access to education and employment for Negroes. It would crusade against lynching and offer legal assistance to defend black people mistreated in criminal court. Over time, the NAACP would become the nation's premier civil rights organization. It would do so in large part because the NAACP early on recognized that the courts, despite their racial conservatism, were a potentially potent weapon in the battle for racial change.
In 1931, the NAACP's first staff attorney, Nathan Margold, outlined a legal strategy to challenge school segregation. His strategy was part direct, part circumspect. Given the temper of the times, Margold recognized that it wouldn't do to attack school segregation under any and all circumstances. Such an approach would invite, in his words, "intense opposition, ill-will and strife." Instead Margold urged an attack on "the constitutional validity of southern school systems as they exist and are administered at the present time [italics added]." Plessy v. Ferguson had given "separate but equal" a constitutional imprimatur. But there was an opening to diminish its importance and pave the way to its undoing. It was clear that in the South, expenditures on black schools were significantly inferior on a per capita basis to those for white schools. State officials, according to Margold's strategy, would be forced into the Hobson's choice of having to greatly increase expenditures on black schools or to think the unthinkable, providing one set of schools for all children. It was a good strategy, but because of the depression, there would not be sufficient money to implement it during Margold's tenure at the NAACP.
In 1933, Charles Hamilton Houston succeeded Margold as the NAACP's chief attorney. Houston was a man of extraordinary brilliance. He graduated as a valedictorian from Amherst College in 1915 at age 19. For a short time afterward, he taught in the English department at Howard University. With America's entry into the First World War, Houston joined the NAACP in lobbying for a program to train black officers for the wartime National Army. He was commissioned as a first lieutenant after attending a training camp for Negro officers in Des Moines, Iowa. Houston served in France with the all-black, rigidly segregated Ninety-second Division and experienced some of the most strident racism of the Jim Crow army of that era, including almost being lynched by a mob of white troops. Those wartime experiences left an indelible impression on the young Houston, creating, as he indicated, a determination to strike back at racial oppression: "The hate and scorn showered on us Negro officers by our fellow Americans convinced me that there was no sense in my dying for a world ruled by them. I made up my mind that if I got through this war I would study law and use my time fighting for men who could not strike back."
He did get through. In the fall of 1919 he entered Harvard Law School. At Harvard he compiled a brilliant record, graduating in the top five percent of his class and serving as the first Negro editor of the Harvard Law Review. While practicing law in Washington, D.C., Houston taught law part-time at Howard University Law School. In 1929 he was named vice-dean and associate professor at the school. It was then that Houston decided to make changes—changes that would profoundly influence Howard University's law school and the course of the nation's civil rights law.
Convinced that the law could be an important tool in the fight against racial repression, Houston began to give the Howard Law School a strong civil rights orientation. He established the first course in civil rights law taught at an American law school. Houston also made the law school library a depository for files on civil rights litigation from around the nation. Howard became a clearinghouse and research center for those involved in the fight against segregation. Students were not only exposed to the theoretical possibility that law could shape social change, but also had the opportunity to actually work on cases that were changing the law and the society as well.
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When Houston became the NAACP's special counsel in 1933, he reexamined Margold's litigation strategy. He concluded that efforts to equalize facilities between black and white schools should continue, but he also recognized (as Margold did) that victories in such cases could cause problems for the long-term goal of eliminating segregation. In addition, black teachers who acted as plaintiffs in salary equalization suits ran serious risk of being fired—a particularly severe risk given the desperate scarcity of jobs in America in the 1930s.*
For these reasons, Houston decided that while the NAACP should continue its efforts to create a Hobson's Choice for school districts by bringing facility and salary equalization suits, it should also add a new, perhaps more promising, focus: desegregation in graduate and professional schools. Segregation in graduate and professional education was as common in the South as segregation in elementary and secondary schools. But there were far fewer graduate and professional programs and, therefore, fewer targets for a concentrated litigation effort. A victory against a state's single law school or medical school would reverberate across the state.
Also, it was easier to make the case that discrimination was occurring in professional schools. Boards of education that ran elementary and secondary schools had an arsenal of potential defenses for differences between white and black schools. Did the school for white children offer an academic curriculum while the school for Negroes offered a vocational program? Well, schools can't be expected to be identical; the schools were simply serving the different needs of their different constituencies. Was a new building constructed for the white school and not the black one? Perhaps, but the physical facilities were substantially equal, and besides the new building for the white school could help explain the differences in per capita expenditures for white and black students. These kinds of arguments could be challenged, of course, but they would involve the NAACP in long, often hard to prove, fact-specific litigation. The possibilities for long-term evasion of any reckoning over inequalities in primary and secondary education were clear. Professional schools offered a more tempting target: The NAACP was dealing with total exclusion; the state provided a law school or a medical school, but only for whites.
Professional schools were also a tempting target for another reason—they carried less emotional baggage. In the atmosphere of the 1930s, and indeed for a long time after, any effort that seemed like it was directed at the integration of primary or secondary education would raise an emotional and political firestorm. Large numbers of white children attended the public schools. Racist demagogues were sure to charge that black and white children attending elementary and secondary schools together would lead to the dreaded scourge of race mixing. The political opposition would be intense, perhaps fatal.
But professional schools were another matter. Few people attended them. There would be even fewer African Americans eligible for admission. The students were mature. An attempt to get some good cases and set some decent precedents with regard to professional schools? That might work. Maryland looked like it might provide fertile ground for such an effort. The University of Maryland's law school was only open to whites. There was no state school for the education of Negro lawyers. Between 1933 and 1934, nine Afro-Americans had applied to the school in Baltimore and had been denied admission because of race. The NAACP looked around for a strong plaintiff.
Are All Law Schools Equal?
The NAACP found one in Baltimore resident Donald Murray. Like Houston, Murray was a graduate of Amherst College, and, by any standard, qualified for admission to the University of Maryland Law School. That is, he was qualified by any standard but one. His application was rejected. The rejection letter stated that the school "did not accept Negro students." His application evidently got more than routine notice and rejection. University of Maryland President Raymond Pearson informed Murray that while the University of Maryland did not accept black students, Howard University did. He indicated that Murray might attend Howard under the auspices of a scholarship for black students who could not attend state institutions.
The correspondence between Murray and University of Maryland officials allowed the NAACP to focus on the issue of segregation. Maryland was willing to provide a state-supported legal education for Murray, but not in Maryland and not at the state university. NAACP lawyers brought the case in state court. The question was simple: Was Maryland's system of providing state-sponsored scholarships to schools outside the state equal to providing an education at the state's law school?
The trial judge said no, as did Maryland's highest court on appeal. Careful selection of the right plaintiff had paid off. This is clear in the language of the appellate opinion. Murray, the court noted, had been "denied admission on the sole ground of his color." The court was forced to confront the constitutional issue. It was clear to the court that to entirely deny blacks the opportunity for a state-sponsored legal education when whites were provided one would violate the formula laid down by Plessy, but that was not the issue here. The issue was whether the state had chosen a proper method by which equal treatment would be maintained.
The court found the state's method inadequate, not in theory but in fact. There was no separate law school for blacks, and there was no authority to establish one. The state legislature had passed a statute in response to Murray's lawsuit. But the statute provided only $10,000 for scholarships: a paltry $200 each for up to 50 black students seeking a professional education out of state. By the time of the trial, only 17 days after the scholarships became available, 380 African-American students had asked for applications, 113 had returned them, and there were still 12 more days during which completed applications would be accepted. On these facts, the court found that there was inadequate funding and no guarantee that Murray would have been successful had he applied for a scholarship. Even if he had received a scholarship, the court found that Murray would still be at a significant disadvantage because of the added costs of commuting or relocating.
The appellate opinion went on to consider the question of intangible differences between a law school education at Howard and one at the University of Maryland. Here it is important to note that judges, of course, know a great deal about law schools and how to compare them. They are law school graduates and they spend their professional lives working with law school graduates. They have an expertise in the subject matter far beyond that which they have in other kinds of cases. The Murray court noted that if Murray were barred from the University of Maryland's law school, he would miss the benefits of a state law school education, specifically gaining a familiarity with the courts of the state in which he intended to practice law. Houston's skillful cross examination of the dean of the University of Maryland's law school highlighted this point.
The court held that the state had failed in its Fourteenth Amendment obligation to provide an equal education. The court did not condemn the scholarship program as a matter of law. Instead the court relied on a close examination of the facts and concluded that Murray had not been provided with an equal opportunity. The court did not hold that another scholarship program would be unconstitutional. But it did order Donald Murray admitted to the University of Maryland's law school.
Murray was noteworthy. It was the NAACP's first major victory in the campaign against segregated higher education. It got Donald Murray admitted to the University of Maryland. It established precedent within Maryland and might persuade courts in other jurisdictions. But the case was important for another reason as well. It was the first major case for a young attorney who would succeed Charles Hamilton Houston as NAACP special counsel—Thurgood Marshall. Like Donald Murray, Marshall was a Baltimore native. He too had applied to the University of Maryland's law school in 1930, and like Murray, Marshall was rejected. As a result, Marshall attended Howard's law school, just as Houston's reforms were beginning to take hold. Marshall graduated first in his class and passed the Maryland bar in 1933. He immediately began the practice of law, representing the NAACP's interests in Maryland. When Marshall sat with Houston on Murray's case, Marshall must have taken no small amount of pleasure in attacking the Maryland law school's policy of discrimination. Houston no doubt took pleasure in seeing, in Marshall's commitment and performance, graphic evidence of the success of his policies at Howard.
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American attitudes toward race had changed since Plessy in 1896, and, in key areas, NAACP attorneys were striking blows against racial discrimination and gaining valuable legal experience along the way. In its battle against blatant racism in the nation's police stations and criminal courts, the NAACP had successfully stopped many African-American defendants from being railroaded, often to their deaths; reversed convictions; and got the U.S. Supreme Court to confirm that convictions based on forced confessions were invalid and to rule that a criminal court could not exclude Negroes from juries. In the voting rights arena, the NAACP ended Oklahoma's restrictive time limit on when Negroes could register to vote and Texas's all-white primary.
But in education, Plessy's separate but equal doctrine still remained the law of the land. True, the NAACP had taken some chunks out of the doctrine with Murray and other cases. But at the end of the day, "separate but equal" remained entrenched. To be successful in eliminating segregated education throughout the United States, the NAACP realized it would have to convince the courts to take a much closer look at the equal side of the Plessy case. It had to convince the courts that segregation was inherently unequal and that that inequality could be eliminated only by outlawing segregation itself.
In arguing another law school case in the late 1940s, Marshall had attempted to use social science evidence to make the case that segregated facilities were inherently unequal. But the Supreme Court had disposed of the case without addressing Marshall's argument. Marshall searched for another plaintiff who could help advance the court's thinking on the inherent inequality of separate education. He found that plaintiff in Heman Sweatt.
Cracking the Wall: Separate Is Inherently Unequal
Sweatt was a letter carrier who lived in Texas. In 1946 he applied to the all-white law school at the University of Texas. He was immediately rejected. The rejection letter informed him that he could request that the state of Texas establish a law school for Negroes. The NAACP filed suit in state court on Sweatt's behalf. The results were familiar. The trial court opinion stated that state officials were under no obligation to admit him to the University of Texas. The opinion allowed state officials six months to establish a black law school. Just before the six months were up, the state presented the trial court with evidence that it had established the Jim Crow law school. The school was housed in two rented rooms in Houston. Administratively, the school was part of Prairie View University, a Texas state university for Negroes, some 40 miles away. The faculty consisted of two part-time instructors. There was no library.
Prairie View's new law school was a poor excuse for equal education, indeed even for good education. Nonetheless, the trial court found that the Jim Crow law school provided a legal education that was equal to that provided by the University of Texas. Still, state officials recognized that they were on shaky ground, that appellate courts would be more skeptical. The legislature moved to provide a more credible alternative. By the time an appellate court could hear the appeal, the legislature had appropriated $100,000 toward the establishment of a law school at the newly established Texas State University for Negroes in Houston. Until a new facility could be built in Houston, the new school would be housed in downtown Austin, across the street from the state capitol. It was to have three rooms, a 10,000-volume library, access to the state law library in the capital building, and three part-time faculty members. The part-time faculty members were professors from the University of Texas School of Law. Because of these changes, the case was remanded to the trial court to determine if the new school was equal to the one for whites.
Of course, the trial court found that the new school provided an education equal to that provided by the state university. The judge was the same one who had held that the vastly inferior Prairie View school was equal. What was important was not so much the trial court decision as the record that was produced in the trial. That record included evidence related to the tangible differences between the black and white law schools, the differences in physical plant, financial resources, numbers of professors, books in the library, and the like. The trial court record also contained important evidence showing the qualitative, intangible differences between the two schools. The tangible differences were damning enough. The new law school's temporary facility in Austin turned out to be an office basement; the University of Texas had a permanent facility that housed a law review and a moot courtroom. † The new law school had neither. Most of the library's books had yet to be delivered to the new law school, and there was no full-time librarian; the University of Texas had over 65,000 volumes. The entirely part-time faculty had no offices at the black school. Their offices were at the University of Texas. The white law school had 16 full-time and three part-time faculty members and a student body of 850. The Negro university had only five part-time members and a tiny student body. The alumni of the University of Texas School of Law were large in number and wielded a great deal of power and influence throughout the Lone Star State and beyond. The new school had only one alumnus. By any concrete measure, the law school at the Texas State University for Negroes was a laughable substitute for the one at the University of Texas. It was, as lead counsel Thurgood Marshall stated, "an apology to Negroes for denying them their constitutional rights to attend the University of Texas," and, it should be added, not a particularly good one at that.
And there was more. If the tangible measures of inequality revealed stark differences in resources between the two institutions, there were harder to measure, intangible factors that also marked the black schools inferiority. The small size of the Negro law school's faculty meant that its curriculum lacked both breadth and depth. The absence of a law review or moot courtroom meant that critical cocurricular components of a law school education were not provided. The small number of students might have meant a smaller teacher-student ratio, but it also meant an inferior education. As one expert witness testified at trial, "a well-rounded, representative group of students" was necessary to enrich the learning atmosphere and to maximize the value of classroom discussion.
Beyond the comparison of tangible and intangible differences, Marshall also brought before the court the University of Chicago's Robert Redfield, an expert with doctorates in both law and anthropology. Redfield testified on the general effect of segregated education. He explained his view that segregated education gave its recipients a false education. It left blacks and whites ignorant of one another, "prevent[ing] the student from the full, effective and economical ... understand[ing of] the nature and capacity of the group from which he is segregated." In effect, segregated education was bad education, for while education is meant to enlighten, segregation instead "intensifies suspicion and distrust between Negroes and whites, and suspicion and distrust are not favorable conditions for the acquisition and conduct of an education, or for the discharge of the duties of a citizen." Moreover, he continued, not only did segregated education produce negative effects, it also produced no positive effects. It had no basis in either educational or enlightened racial theory. Reflecting what had become the new thinking on race in the social sciences after the Second World War, Redfield further testified that scholars had recently become "compelled" to the conclusion that there were no "inherent differences in intellectual ability or capacity to learn between Negroes and whites," and that should any such differences be "later shown to exist, they will not prove to be significant for any educational policy or practice." Through Redfield, Marshall made a record that would support a conclusion that segregation was irrational, and under the Fourteenth Amendment, no distinction that was not rational could stand muster. His use of Redfield's testimony also showed that social science could be an important tool in the quest to vindicate the constitutional requirement of equal protection under the law.
The trial court ruled against Heman Sweatt and the NAACP, as did the Texas Court of Civil Appeals. By now it was February 1948, and Heman Sweatt's fight to pursue a legal education at the University of Texas had gone on two years. Yet, Sweatt refused to attend the law school at the Texas State University for Negroes. Both he and the NAACP refused to disappear. It would be another two years before the U.S. Supreme Court would hear and decide Sweatt v. Painter (1950), winning for him the right to attend the University of Texas.
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In representing Sweatt before the Supreme Court, Charles Hamilton Houston and Thurgood Marshall made the same three-part argument that had been rejected by the Texas Court of Civil Appeals. The first part of that argument was based on the equal protection clause. The segregated law school that Texas reserved for African Americans was unequal. Both the tangible and the intangible factors were inferior. The second part of the argument was also based on the equal protection clause. It was an argument that segregation inherently produced inequality. In its brief and oral argument, the NAACP gave ample evidence of this. In doing so, the NAACP placed before the Court the predictable and unavoidable consequence of segregation: inequality. It did so in the hopes of dealing a fatal blow to segregation under the equal protection clause. In effect, the NAACP was making the argument it had made before the Texas court that the formula in Plessy was constitutionally malformed and that the 1896 case should be overruled.
The third prong of the NAACP's attack was based on the Fourteenth Amendment's due process clause. The Court had interpreted that clause to mean that no state action not grounded in a rational basis could stand constitutional muster. The NAACP argued that there was no "valid legislative end" that justified racial segregation, that segregation was arbitrary and irrational. This argument also concerned the equal protection clause, for a racial classification that was arbitrary and irrational could not satisfy the demands of the equal protection clause either. The NAACP also argued that racial segregation did not meet the more exacting standard that had been suggested by two cases decided by the Supreme Court during the Second World War. These cases, Hirabayashi v. United States (1943) and Korematsu v. United States (1944), involved the imposition of curfews, relocation, and confinement of Japanese Americans on the West Coast. In Korematsu, the Court stated that while "all legal restrictions which curtail the civil rights of a single racial group are immediately suspect [t]hat is not to say that all such restrictions are unconstitutional." Racial restrictions, even of the most damaging kind, might be upheld, though only under "the most rigid scrutiny." Now in Sweatt, the NAACP was arguing that segregation could not meet that high standard if it was irrational to begin with.
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The Supreme Court's decision in Sweatt was unanimous in Heman Sweatt's favor. The Court ordered his immediate admission to the law school at the University of Texas. Simply put, the Court was "unable to find substantial equality in the educational opportunities offered white and Negro law students by the State." The Court saw significant differences between the University of Texas and the Texas State University for Negroes in the number of faculty, the breadth and depth of course offerings, the size of the student body, the size and scope of the library, and the availability of cocurricular offerings. In all of these tangible factors, the Court found the University of Texas superior. If the Court had ended its analysis there, the Sweatt case would have been just another case upholding the separate but equal doctrine. But because the tangible facilities were not equal, Texas could not restrict Negroes to the Jim Crow school.
But the Court went beyond that—as had Maryland's highest court in Murray. It examined the intangible characteristics of a legal education. What was "more important" than those factors capable of measurement were "those qualities that are incapable of measurement, but which make for greatness in a law school. Such qualities, to name a few, include reputation of the faculty, experience of the administration, position and influence of the alumni, standing in the community, and prestige." With respect to these factors, the University of Texas was the superior school, and the question, the Court said, was not even close. Moreover, just as black people were excluded from the University of Texas, the Texas State University of Negroes excluded the overwhelming majority, 85 percent of the population of the state, from which would be drawn most of the lawyers, judges and other officials, witnesses, and jurors in the state. Such an exclusion meant that the education at the separate law school for blacks was not the equal of the one received by whites. No matter how much money the state might spend at the black law school, how many faculty members the state might add, how large the student body might grow, or how large the library holdings might become, the qualitative differences in the intangibles associated with the two schools meant that to deny Heman Sweatt admission to the University of Texas was unconstitutional. In effect, the Supreme Court in Sweatt was going well beyond Murray by saying that segregation in law school is inherently unequal. Once again, note that the Court was examining two different law schools and that the justices were familiar with legal education; from their own experience they could see that the two schools were clearly not equal. These facts probably helped influence the Court's decision.
The Court had not explicitly overruled Plessy v. Ferguson; indeed, the Court was quite clear on that point. There was no need. The Court had reiterated its frequent admonishment that it "will decide constitutional questions only when necessary to the disposition of the case..., and that such decisions will be drawn as narrowly as possible." But the Court had implicitly accepted the NAACP's first and second arguments in Sweatt, and though it had avoided the third, the due process claim, it had set a standard that was impossible for a segregated system of legal education to meet, for there would always be intangible differences in racially segregated schools. Sweatt was an important step in the fight to end segregation, but it applied only to law schools. The NAACP was far from certain that it could win a similar ruling on elementary and secondary schools.
An additional important point should be made. In Sweatt, the NAACP was no longer alone. The new postwar racial atmosphere helped bring the civil rights organization important allies who agreed with their stand. First among these was the United States government. Solicitor General Philip Perlman filed an amicus brief supporting the NAACP's position on behalf of the Truman administration. The NAACP also benefited from supporting amicus briefs filed by the American Federation of Teachers, the Committee of Law Teachers Against Segregation in Legal Education, the American Veterans Committee, the Congress of Industrial Organizations, the Japanese American Citizens League, and the American Civil Liberties Union. Social change had helped bring new allies to the fight against segregation.
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Not more than three weeks after the decision in Sweatt, two black graduate students were admitted to the University of Texas, and Heman Sweatt became the first black person to enroll at the law school. By August 1950, the University of Delaware was ordered to admit blacks to its undergraduate campus because of the "woefully inferior" opportunities otherwise available to them. By the fall of 1950, the University of Maryland was forced by court order to open to blacks its graduate program in sociology. Louisiana State University had been ordered by a three-judge federal panel to admit black students to the law school, an order only three months later summarily affirmed by the Supreme Court. The historically white University of Tennessee also admitted black students to previously segregated programs, bringing the total of southern states doing so to six. By 1952, the number had grown to twelve.
Two things were left to the NAACP. The first was to apply the Supreme Court's new understanding of inherent inequality to elementary and secondary education. The second was to bring cases that would coax the Supreme Court into doing what it had assiduously avoided doing in Sweatt: overturning Plessy.
The Final Assault
Shortly after Sweatt, Marshall, 43 other attorneys, and 14 branch and local NAACP presidents convened to develop the next phase of the legal strategy. Marshall had traditionally been cautious. He believed that cases involving segregated public schools were cases that the NAACP could not afford to lose, as they would set devastating precedents. Nonetheless, understanding the risk, he joined with the other conference members to support a resolution declaring that all future education cases would be aimed directly at segregation, not merely at the inequalities between black and white schools. The aim was to produce, in the words of the conference report, "education on a nonsegregated basis ... that no relief other than that will be acceptable."
This was controversial. After all, after nearly half a century, the equal side of separate but equal was finally coming into prominence. States were being prodded toward making some progress in the equalization of schools, libraries, and recreational and other facilities. There were those who were pleased with the new progress and reluctant to give up what had been a successful campaign. But the new NAACP position did not require the sacrifice of the strategy that had brought victory in Sweatt and the other cases. The NAACP could continue to urge the courts to find segregation inherently unconstitutional. It could also offer the courts the alternative argument that even if the courts did not agree that segregation was inherently unconstitutional, it was nonetheless unconstitutional in actual practice. If a case that made a frontal assault on Plessy lost, it would be a blow to morale, but the NAACP could resume its current campaign to litigate equal protection under the new standards that had developed in Sweatt. Marshall and his associates knew they would have to choose their cases and their clients carefully.
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There was no shortage of potential cases with which to move the battle forward; segregated elementary and secondary schools existed throughout the South and in other regions as well. The challenge would not be undertaken in just one district. If that was done, it would be too easy for a peculiar set of facts, a shrewdly litigated defense case, or a clever and obstinate judge to thwart the NAACP's efforts. Instead different cases would be brought in several districts, in different regions of the South, and in other regions as well. Cases from across the country would be argued. Eventually, six cases would be consolidated and collectively known as Brown v. Board of Education.
The key to the cases lay in the innovative use of expert testimony to establish the psychological harm that segregation inflicted on African-American schoolchildren. The use of such experts as psychologists and social scientists accomplished a number of important goals. First, it demonstrated the psychological injuries that were caused by segregation. This made it clear that equalizing facilities would not remedy the harm that the black students were suffering. Second, it exposed the actual purpose of segregation, the perpetration of racial subordination. Third, the testimony of experts refuted widely held beliefs about the intellectual inferiority of Afro-Americans. The expert witnesses would force the judges to grapple with the realities of segregation. They could continue to engage in spurious rationalizations, or they could enforce the Fourteenth Amendment in a way that would make the constitutional provision meaningful. Jurists were placed in a moral and ethical dilemma. If they were intellectually honest, they could not, on the basis of the extensive evidence presented, rule that segregated schools were—or could ever be—equal. The disparities were too obvious. At the same time, it was difficult for judges to break with long-standing social traditions and legal precedent. The jurists would be caught in a difficult analytical box from which there could be no escape.
Several social science and education experts aided the NAACP in the school desegregation cases, but one stands out for the simple but compelling test that demonstrated the psychological effects of discrimination on young children. In 1951, Kenneth Clark, a social psychologist at the City College of New York, and his wife and fellow psychologist, Mamie Clark, developed a series of studies that examined the psychological effects of segregated and racially mixed schools on black children. In one of the tests, the Clarks used four dolls—two brown, two white. The Clarks first asked the children, aged three to seven, to identify the race of the dolls. They then made a series of commands. These included:
1. Give me the doll you like to play with.
2. Give me the doll that is the nice doll.
3. Give me the doll that looks bad.
4. Give me the doll that is a nice color.
The experiments consistently showed that the participating black children preferred the white dolls. They picked the white doll when asked which was the "nice" one or the one they preferred to play with. The black doll was selected when the children were asked which doll looked "bad."
The Clarks concluded that these studies indicated self-rejection, one of the negative effects of racism on children at the early stages of their development. The Clarks' findings were corroborated by separate studies performed by other psychologists. Kenneth Clark was hired to provide expert testimony based on the doll studies. This testimony, and the studies on which it was based, became a key element of the NAACP's evidence in the desegregation cases.
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No two of these cases were argued by the exact same legal team. The facts were somewhat different in each case, but the cases were all part of a coordinated strategy directed from the NAACP's headquarters in New York. They all had a common aim: the elimination of Plessy v. Ferguson's "separate but equal" doctrine.
The first case originated in Clarendon County, S.C. That county maintained a system of grossly unequal segregated schools. In the 1949–1950 academic year, there were 6,531 black students attending 61 schools. The annual expenditures for these schools were $194,575. There were 2,375 white students attending 12 schools. The annual expenditures for these schools were $673,850. Per pupil expenditures of public funds came to $43 per capita for black children and $179 per capita for white children. The average white schoolteacher earned two-thirds more than the average black one; and in contrast to its treatment of white children, the school board could not be troubled to provide a single bus for the transportation of black children. Thurgood Marshall took the case on behalf of 20 plaintiffs.
The case bearing the name by which the school desegregation cases are remembered began in 1948 when the Topeka, Kan., branch of the NAACP petitioned the local school board to desegregate the public schools. After two years of inaction, the branch contacted the organization's headquarters in New York and requested assistance in filing a lawsuit. The lead plaintiff, Oliver Brown, was not a prominent figure in the local NAACP. He was an ordinary citizen who was angered that his daughter had to travel each day past a modern, fully equipped white school to a black school housed in a deteriorated building. There were several plaintiffs, but Oliver Brown's name came first alphabetically, and as a result, when the case was filed in the federal court on February 14, 1951, the case bore his name. Robert Carter and Jack Greenberg were the NAACP's point men for Brown.
When Oliver Brown became the lead plaintiff in Brown v. Board of Education, Topeka and the state of Kansas had a schizophrenic attitude about its Negro population. There was segregation, but it was not universal. Black people were only 7.5 percent of the state's population, and though they were, in general, relegated to the lowest rung of the economic ladder, they were allowed in some of the same civic organizations as whites. Restaurants and hotels were segregated, but bus and train station waiting rooms were not. Five of the seven movie theaters were relegated to whites only, and a sixth was for blacks; the seventh allowed both races, but blacks were consigned to the balcony. The state put no barriers in the way of higher education, for the University of Kansas had long been open to black people and so had Washburn University. And the state did not mandate segregation in elementary schools, but for localities above 15,000 in population, the state specifically allowed school segregation as an option.
Thus, Topeka had a limited option to have desegregated schools, and the city took it. Elementary schools were segregated, as the junior high school had been until 1941 litigation ended the practice. Senior high schools were integrated, but they had separate teams in basketball, swimming, wrestling, golf, and tennis, as well as separate pep clubs, separate cheerleaders, and a separate assembly at which black students were urged to keep to their place. Though the facilities for black elementary children were older, they were the rough equivalent of their white counterparts' facilities.
The South Carolina and Kansas cases would also be joined by two separate cases that were filed in Delaware: Gebbart et al. v. Belton et al. (1952) and Gebbart v. Bulah (1952). Belton arose in Claymont, a suburb a few miles north of Wilmington. The combination grade school-high school in Claymont served about 400 white students. It occupied a 14-acre site. The school was well equipped, and the grounds were beautifully landscaped. Black children, in contrast, were required to travel by bus to Howard High in Wilmington, the only black high school in the entire state. It was surrounded by factories and warehouses. The student-to-faculty ratio was three times higher at Howard than at Claymont. Sixty percent of Claymont's faculty held master's degrees, compared with 40 percent at Howard. Claymont offered several extracurricular activities that were not available at Howard.
The second Delaware case was filed by Sarah Bulah, from Hockessin, Del., who was annoyed when she was required to drive her child past the well-equipped white school to reach the dilapidated one-room schoolhouse that served black students. Louis Redding, a black civil rights lawyer, represented the plaintiffs in the Delaware cases. Redding was a graduate of Brown University and Harvard Law School and was admitted to practice in Delaware in 1929. He was still the only black attorney in Delaware when the desegregation cases were filed more than 20 years later.
In April 1951, a group of students at Moton High School, a black school in Prince Edward County, Va., organized a strike to protest their high school's shoddy conditions. The students intended to remain on strike until the local school board agreed to construct a new school. Eventually, the students sent a letter to the NAACP's special counsel for the Southeast region. Two Richmond lawyers, Oliver Hill and Spottswood Robinson, served in that capacity. Both were trained at Howard Law School during the years that Charles Houston was dean. They were Thurgood Marshall's contemporaries and personal friends. Hill and Robinson met with the striking students and were impressed by their resolve. The attorneys agreed to represent the students not in a case to equalize the facilities, but in a case to desegregate the schools.
While the Prince Edward County case was pending, a separate case was filed in the District of Columbia. Compared with most other cities, Washington's black community was well educated and relatively well off. A third of the city's Afro-American population was employed by the federal government. In 1950 there were 300 Negro physicians, 150 African-American lawyers and judges, 150 black college professors, and 2,500 African-American schoolteachers residing in the District of Columbia. Despite the relative affluence of its black community, Washington was as segregated as any city in the Deep South. Public facilities, public transportation, housing, and public schools were all rigidly segregated. Furthermore, because of the rapid growth in the city's black population during World War II, housing conditions in poor communities were deplorable, and black schools were inferior to white schools.
The District of Columbia's desegregation case began when a local barber, Bishop Gardner, organized the Consolidated Parents Group. Gardner's group initiated a boycott of a black high school that was overcrowded and in a state of severe disrepair. As a result of class divisions within the African-American community, Gardner's group formed separately from the school's PTA, which was dominated by middle-class blacks. The boycott was not supported by the local NAACP branch. In February of 1948, Gardner visited a NAACP meeting at a Methodist church were Charles Houston was delivering an address. After the meeting, Gardner introduced himself and met with Houston later that night. After Gardner explained the problems with the high school, Houston agreed to represent Gardner's group.
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The decision in the school desegregation cases was announced on May 17, 1954, to an overflowing courtroom. Chief Justice Earl Warren read the opinion for a unanimous Court. Given the events that led up to Brown—trials lasting several days in Kansas, South Carolina, Virginia, Delaware, and the District of Columbia; testimony presented by dozens of witnesses; and several days of intense arguments in the Supreme Court over a two-year period—the opinion in Brown is remarkable in its brevity and simplicity. It was written in a straightforward style that could be understood by the most unsophisticated reader.
The opinion commenced with a recitation of the history of the cases from the trials to the arguments in the Supreme Court. The Court found, as a threshold matter, that the original intent of the framers of the Fourteenth Amendment on the question of segregated schools was not clear. The Court then traced the evolution of the separate but equal doctrine from Plessy through McLaurin (a case decided shortly before Sweatt in which the Court ruled that segregation within a desegregated institution, such as having blacks relegated to the back of a classroom, interfered with the educational process). After describing the importance of education to a democratic society, the Court framed the issue as whether "segregation of children in public schools solely on the basis of race ... deprives the children of the minority group of equal educational opportunities." The Court found that it did, concluding that "to separate [black] children from others of similar age and qualifications generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in ways unlikely ever to be undone." Relying heavily on the foundation developed in cases such as McLaurin and Sweatt, as well as the social science evidence presented by Dr. Clark and others, the Court held that "separate educational facilities are inherently unequal" (italics added). With this pronouncement, America stood at the dawn of a new era in race relations.
The End of Caste in American Law
The Brown decision was momentous, but with respect to the issues of race and racial discrimination, even with respect to the issue of school segregation, the decision was hardly definitive. In many ways it fit Winston Churchill's observation during the Second World War immediately after the allied victory in North Africa. The British prime minister observed: "This is not the end, no it is not even the beginning of the end, but it is perhaps the end of the beginning." In a sense, Brown was the end of the beginning, the end of the idea as old as the Republic itself, that the law could formally discriminate—indeed totally exclude—on the basis of race and that the Constitution would support such discrimination.
But if Brown proclaimed that that idea was unconstitutional, the decision hardly ended racial discrimination, even state-sponsored discrimination. What Brown did do was to catalyze a whole new phase of the civil rights movement. It would be a phase in which the champions of civil rights would continue the struggle for equal rights in the courts and in other venues. Members of the civil rights movement would find themselves confronting recalcitrant clerks at voter registration offices and gun-toting drivers enforcing segregation on municipal buses. They would challenge segregation at small-town lunch counters and risk their lives on the often dangerous back roads of the rural South. They would bring the movement to Washington D.C.'s Lincoln Memorial and ultimately, to the halls of Congress. Along the way, the civil rights movement would encounter every conceivable kind of resistance from unofficial and official quarters, but it would succeed in winning over new supporters.
Moreover, the liberalization of racial attitudes that started becoming part of American culture before the Second World War, a liberalization that provided an important, perhaps critical backdrop to the Brown decision, has continued. Indeed that liberalization has spread and intensified. Today, the raw racism that prevailed in daily life, popular culture, and academic treatise at the beginning of the last century has become an embarrassing relic, defended by only a marginalized few in public life. Few in the modern behavioral or biological sciences support the kind of scientific racism that was heartily championed at the best universities a century ago. Affirmative action programs exist to try to increase the number of minority students admitted to universities or minority employees hired by firms. And while those programs are under heavy criticism and face an uncertain future, even the critics of such programs couch their criticism in the rhetoric of the civil rights movement of the 1960s, claiming that they are seeking "color-blind" methods to increase the inclusion of those previously excluded.
The changes in racial attitudes among white Americans are perhaps even more profound than has generally been acknowledged. Social science surveys, as well as day-to-day practice indicate an acceptance of interracial relations in family life, marriage, and adoption that clearly would have been unthinkable in 1954 when the Brown decision was handed down. Even if one suspects that a significant portion of the responses to social surveys should be discounted as people telling the pollsters the "right" or "socially acceptable" answer, the fact that tolerance for interracial marriage or transracial adoption has become the "right" answer in the last half century itself reflects a profound cultural change. This rejection of outright racial bigotry even occurs in some quite unexpected precincts in modern America. Private schools in southern communities that originally started out as "Seg Academies," institutions founded to allow white students to avoid integrated public schools, now routinely enroll black students. Southern white fundamentalist Protestant churches often have black parishioners. Rural white southern voters vote for African-American representatives—former congressmen J. C. Watts of Oklahoma and Mike Espy of Mississippi are perhaps the most prominent examples of this. Surprisingly, even the occasional right-wing antigovernment militia will sometimes have a black member or two. Multiracialism and a rejection of the kind of racism that prevailed in the first half and indeed beyond the first half of the 20th century has taken strong root in modern America.
But that is only part of the story. Racism still exists. It is not hard to find. But it lacks the kind of official support that it had in generations past. It is not as overwhelming a part of American culture as it was throughout most of the 20th century, but still, reports of its total demise are woefully premature. Segregation continues. It has lessened to be sure, but African Americans remain the most segregated of the racial and ethnic groups in the United States, with the exception of Indians on reservations. At the dawn of the 21st century, nearly half of the black population still lives in communities that are 90 percent or more black. The legacy of slavery, caste, and racism is a poverty rate for black families that is roughly three times that for whites. The percentage of African-American children raised in female-headed, fatherless households has risen dramatically since the Brown decision: More than 50 percent of all African-American children are raised in such families. The percentage of black children born out of wedlock approaches 70 percent.
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The importance of Brown lay in its setting the nation's law on the path of rejecting the kind of racial exclusion that had made African Americans a people apart since before the nation's founding. The 1954 decision provided a foundation for later court decisions and legislative enactments that established a new set of norms concerning law and race. Before Brown, the Fourteenth Amendment notwithstanding, American law gave its sanction to a patent system of racial inequality. Brown began the process of withdrawing the law's sanction from the system of caste and caste-like distinctions that had been a part of American life from the beginning. Brown did not do it alone. The decision would become a catalyst for profound changes in legal norms. It was able to do so in large part because of the remarkable courage of ordinary men and women. That courage started with parents like Harry Briggs of South Carolina, Sarah Bulah of Delaware, and Oliver Brown of Kansas, who stood up for better lives for their children by challenging, through the Brown cases, the entrenched system of school segregation in their communities.
But Brown was not self-executing. Without the willingness of Negro parents after Brown to risk their children's lives by sending them to the white schools of the South, the Warren opinion would have been a dead letter. Anyone who has seen the newsreels from that era with snarling and vicious mobs poised to attack children attempting to enter schools knows of the incredible bravery of the parents and students who helped turn the Warren opinion into living law. Brown was also enacted by the courageous Americans of all races who struggled in the civil rights movement to make it the foundation of a modern body of civil rights law. The civil rights struggles of the 1960s, which led to among other things the critical Civil Rights Act of 1964 and the Voting Rights Act of 1965, played a crucial role in dismantling legal support for the American system of race as caste.
Brown's importance in the history of American race relations is assured. But if Brown should be seen as having a central importance in the fight against caste and racism, Brown also provides an important lesson in the law's limitations. Brown played an important role in challenging the system of caste and exclusion that had developed in American society. But the law has found the system of structural inequality a more vexing problem. The often profound socioeconomic inequalities between blacks and whites can be traced to slavery, segregation, and long-term patterns of exclusion. These were sanctioned, indeed often mandated, by law. Yet it is not clear the extent to which the law will or can provide remedies in the future for the legacy of exclusion in the past. What is clear is that the terrain would have been much bumpier and the playing field an awful lot less level without the efforts of those men and women who developed the strategy, argued the case, and changed history in Brown v. Board of Education.
Robert J. Cottrol is Harold Paul Green Research Professor of Law and professor of history and sociology at George Washington University. Raymond T. Diamond is C.J. Morrow Research Professor of Law and adjunct professor of African Diaspora studies at Tulane University. Leland B. Ware is Louis L. Redding Chair for the Study of Law and Public Policy at the University of Delaware. These articles were especially adapted for American Educator by Robert J. Cottrol from Brown v. Board of Education: Caste, Culture, and the Constitution, by Robert J. Cottrol, Raymond T. Diamond, and Leland B. Ware (Lawrence: University Press of Kansas, 2003) by permission of the publisher.
*Still, the NAACP received support from courageous Afro-American educators who allowed their names to be used to press complaints of discrimination in teachers' salaries. Between 1936 and 1940, the NAACP had notable success in Maryland with lowsuits and negotiated settlements designed to equalize the pay of Negro and white teachers. It also won a case challenging unequal pay in Virginia. That case, Alston v. School Board of City of Norfolk (1940), was decided in the United States Court of Appeals for the Fourth Circuit. (back to article)
†A law review is a student-edited journal that publishes articles by law professors, practicing lawyers, and students; a moot courtroom is a space for practicing oral arguments and holding mock trials. (back to article)