2. Today we will reflect on the history of the legal struggles by the NAACP attorneys,
mainly Thurgood Marshall and Charles Hamilton Houston, that sought to dismantle
the Jim Crow segregation and discrimination laws. We ponder:
How was the Supreme Court Brown v Board of Education decision, which ordered
the desegregation of public schools, the culmination of decades of litigation?
What persuaded the Supreme Court to rule that the previous decided Plessy v
Ferguson decision, which stated that Separate But Equal facilities for blacks and
whites were acceptable, violated the Fourteenth Amendment?
How did the efforts to upgrade the premier black law school at Howard University
enable black attorneys to further civil rights for blacks?
3. Please, we welcome interesting questions in the
comments. Let us learn and reflect together!
At the end of our talk, we will discuss our
conclusions and the sources used for this video.
Please feel free to follow along in the PowerPoint
script we uploaded to SlideShare, which includes
illustrations. Our sister blog includes footnotes, both
include our Amazon book links.
7. Before the courts started to slowly turn away from segregation and the
Jim Crow legal system, public opinion in the South had to shift, which
happened ever so slowly. During Reconstruction, immediately after the
Civil War, many whites joined the Ku Klux Klan and other white terrorist
groups to keep the Negro down through violence and intimidation, and
often lynchings and murders of blacks went unpunished. There were
entire towns that resisted the federal Union troops sent into the South
to guarantee the civil rights and voting rights of the freed slaves. Also,
the 1619 Project features many horrid stories of the injustices blacks
suffered in the Deep South before the Civil Rights Era of the Sixties.
9. This opposition to civil rights in the South was not
monolithic. For example, the Tuskegee Institute in
Alabama, founded by the black leader Booker T
Washington in 1881, initially relied upon funds raised
from the local Alabama business community. It
helped that Tuskegee was a university town that was
more tolerant of blacks.
11. During the Reconstruction and the Jim Crow eras, lynching was
so endemic in the South that often these gruesome events
would be advertised in the newspapers, and body parts of the
blacks who were lynched were sometimes displayed as souvenirs
in store windows. It was rare for a Southern jury to ever convict a
white man of even the most heinous crimes committed against a
black man soon after Reconstruction. If blacks called the sheriff
to report a crime committed against them, often they were the
ones arrested.
13. It was also common for Southern sheriffs to pick up young black men
and charge them for vagrancy so their services could be sold to
plantations, mines, the railroads, and other businesses as convict labor,
which in many cases was even worse than slavery. Theodore Roosevelt’s
Attorney General tried to combat this scourge, with minimal success.
Afterwards, state investigations in Georgia and elsewhere eventually
started turning public opinion, until the Justice Department under FDR
during World War II started eliminating this inhuman treatment of black
convicts, as Jim Crow was a propaganda coup for the Nazis.
15. By the twentieth century, black attorneys who volunteered their
services to the NAACP started to chip away at the Jim Crow legal
system. Thurgood Marshall’s devotion to the NAACP cases forced
him to continue living at his parents’ home, as his practice had
few paying clients. His mentor, Charles Hamilton Houston,
convinced the NAACP to pay Thurgood a salary, they would be
the only paid NAACP attorneys for many years, though by mid-
century there were four other attorneys on staff, and there may
have been more by the 1950’s. This bare-bones legal staff
accomplished a great deal, winning many cases before the
Supreme Court.
17. Although the black leader WEB Du Bois was a co-
founder of the NAACP, he was not involved in the
administration but was rather the editor of the Crisis
magazine. He had little to do with the legal
department, his name is not included in the index of
the book we are reviewing, though our two NAACP
attorneys often wrote articles for his Crisis magazine.
19. Howard University-Premier Black Law School
In 1929, Justice Louis Brandeis, the first Jewish
man appointed to the US Supreme Court and an
advocate for those abused under and by the law,
ruefully told” Mordecai Johnson, “the president
of Howard University, ‘I can tell most of the time
when I am reading a brief by a Negro attorney.
You have got to get yourself a real faculty out
there or you’re always going to have a fifth-rate
law school. And it’s got to be a full-time and a
day school.’”
20. Johnson agreed. Although Howard University was the
premier colored law school in the country, it was not
accredited. If the attorneys graduating from Howard
University were to have any chance in challenging the Jim
Crow legal system, they had to be just as competent as
their best white lawyers opposing them. He knew just the
person who could make this leap, one of the most brilliant
colored lawyers in the country, Charles Hamilton Houston.
22. Houston’s family was part of the Negro aristocracy of Baltimore,
Houston’s father was an attorney who worked for the federal
government before starting his own practice. They sent Houston
to the school at Amherst, he was the only black student,
graduating with honors. At Harvard Law School, he was the first
African American member of the law review, earning an
advanced law degree. Houston was appointed Assistant Dean,
but he ran the day program since the white school dean taught
at the night-school.
24. As a first step, Charles Houston pressured lackadaisical professors to
resign and replaced them with top-notch black attorneys. Then he
tightened up the admission standards, accepting only blacks graduating
from accredited colleges. Then in 1930 he made the big leap, seeking
permission to close the night school.
Coming in the depths of the Depression, this was highly controversial. All
the white professors resigned. Many of the black professors also
protested; most of the alumni had attended night school; they did not
want to “Harvardize Howard.” Johnson assigned the duties of the dean
to Houston, who added tens of thousands of volumes to the student law
library.
26. Half of the student body were not able to make the transition, many
were unable to make the financial sacrifices necessary. Houston slipped
money to some students who were struggling financially. But those who
stayed became top-notch attorneys who could advance civil rights issues
in the courts, who could be social engineers, who could “use the law to
change the law.” Most importantly, in 1931, for the first time, the
American Bar Association awarded Howard University Law School full
accreditation and approval for the very first time.
Dean Charles Houston became a mentor to the studious, hard-working
Thurgood Marshall, who was top of the class.
27.
28. Our author, Rawn James, said that “in
Houston’s presence, Marshall sparked like a
match touched to flame. He admired the
dean’s singular devotion to excellence, his
contempt for good enough, and this
admiration kindled within him these same
traits.” He enjoyed repeating Houston’s
maxim, “Lose your tempter, and you lose
your case,” which was especially good advice
for colored attorneys in those trying times.
Another maxim was “Doctors can bury their
mistakes, lawyers cannot.”
Charles Houston and Thurgood Marshall
29. Soon after graduating as valedictorian at Howard
University, Thurgood Marshall accompanied Charles
Houston on a fact-finding tour of the Deep South for
the NAACP. This was a dangerous journey; many
blacks were lynched in the Deep South.
30.
31. Rawn James notes that “contrary to popular
belief, most lynchings did not result from
allegations of black men assaulting or even
flirting with white women. Only sixteen percent
of lynching victims were accused of sex crimes,”
many “breached one of the South’s countless
rules of racial etiquette.” There were “black
women who were massacred at the rope,
women like Mary Turner, who was seized in the
Georgian night, strung up a tree by her ankles,
sliced open with a buck-knife and forced to
watch upside down as the men pulled her
unborn baby from her screaming insides and
killed it first.”
1893 lynching of black teenager Henry Smith
in Paris, Texas / 1909 lynching of Will James in
Cairo, Illinois. Thousands watched.
32. Houston later testified to Congress that “in 1933’s lynchings the
most striking feature of nearly every press photograph is the
number of women and little children present at the festivities.”
33. Charles Houston spent more and more time on NAACP legal cases, as did Thurgood
Marshall after he opened his private law practice. After several years, Houston left
Howard on a leave of absence to work on the NAACP cases, and in time both he and
Marshall Thurgood accepted a modest salary to become paid legal counsel for the
NAACP.
They worked closely together on many cases; Houston would be a mentor to
Marshall until he passed away. However, Houston often sought to give credit to his
brilliant understudy, allowing him to make public appearances, knowing that one
day he would take over the reins of the NAACP’s legal struggle against the Jim Crow
legal system. They were a resource for attorneys fighting for civil rights all over the
country, Houston and Marshall would personally litigate only a small portion of the
appeals for justice that were submitted to the NAACP.
36. Plessy v Ferguson was an NAACP test case in 1896
where Homer Plessy, a black man, bought a first-
class railroad ticket, and was arrested when he
refused to move to the blacks-only carriage, in
violation of the state Jim Crow law. The majority
Supreme Court opinion ruled that separate facilities
for whites and blacks were permitted as long as they
were equal. Justice Marshall Harlan wrote the
famous dissenting opinion.
38. “The white race,” Harlan wrote, was
undoubtedly the dominant race” in
wealth, power, prestige, and
achievements. However, the
Constitution itself is color-blind. The thin
disguise of equal facilities was not an
innocuous separation of the races but is
rather an expression of racial dominance
rooted in slavery. The law assumed that
blacks were “so inferior and degraded
that they cannot be allowed to sit in
proximity to white persons.” “In my
opinion,” Harlan added, “the judgement
this day rendered will, in time, prove to
be as pernicious as the Dred Scott
opinion.”
39. Justice Harlan correctly predicted that the decision
would unleash a flood of statutes segregating every
realm of Southern life. In fact, segregated facilities
were almost never equal.
41. In the early part of the twentieth century, the NAACP
did not battle segregation. The issues that took
precedence were opposing lynching, improving due
process and voting rights for blacks, and improving
the economic conditions of blacks.
43. Houston and Marshall agreed to take up the case of Donald Gaines
Murray who had graduated from the mostly white Amherst College and
had applied to the University of Maryland School of Law in 1934. He was
eminently qualified but was rejected solely because they did not accept
Negro applicants, violating the Fourteenth Amendment. They said blacks
could instead apply to attend Princess Anne Academy, which had no law
school and mostly high-school level classes. Marshall argued that since a
law school for blacks did not exist in Maryland, the Plessy precedent
dictated that Murray be permitted to attend the University of Maryland
School of Law, and the local judge agreed, ordering that Murray be
allowed to attend.
45. The university appealed, and the Appellate Court
ruled in Murray’s favor, which meant that Marshall
could not appeal the case to the US Supreme Court,
which meant that this case would not create federal
precedent. Murray graduated from law school and
got along with both school officials and his fellow
white students.
46. In an article in the NAACP Crisis magazine,
Houston explained they were demanding:
• “Equality of school terms.
• Equality of pay for Negro teachers.”
• “Equality of transportation for Negro
school children at public expense.
• Equality of building and equipment.
• Equality of per capita expenditure for
education of Negroes.
• Equality in graduate and professional
training.”
47. Marshall would represent William Gibbs, serving as both teacher
and principal of Rockville Colored Elementary School in
Maryland, who was paid less than half of his fellow white
teachers. He petitioned for equal pay in 1936. A Maryland court
held in favor of Gibbs, and the county announced that it would
equalize the salaries of black and white teachers and principals
over two years, since the county had to raise revenues for these
raises. Although this did not set federal precedent, it made equal
salaries more palatable without overturning the entire Jim Crow
legal system.
49. In Missouri, Lloyd Gaines applied to the Missouri School of Law
and was at first accepted, but was then rejected when the
registrar, SW Canada, learned that Lloyd was black, advising him
to either attend the colored Lincoln University, which had no law
school, or enroll in a school in another state with Missouri
reimbursing his tuition. This was inherently unequal, in part
because an out-of-state law school would not teach Missouri law.
Houston decided to file the case seeking to have Gaines admitted
to the law school as Missouri ex rel. Gaines v. Canada,
emphasizing that he was really representing the interests of all
blacks in Missouri.
51. When the court hearing commenced, there were few blacks witnessing
the trial, since several lynchings deterred many from attending. But
unlike in Maryland, in Missouri both the local and appellate court ruled in
favor of the law school, arguing that Plessy sanctioned the separation of
the races in all circumstances.
The case was appealed to a US Supreme Court where FDR had appointed
several judges sympathetic to civil rights. The Gaines case set a valuable
precedent, stating that Missouri could not shift its responsibility to
furnish equal facilities and opportunities to its citizens to other states,
ruling that he should be admitted to the Missouri School of Law.
52. Supreme
Court, 1937
Front Row:
George
Sutherland,
James Clark
McReynolds,
Chief Justice
Charles Evans
Hughes, Louis
Brandeis,
Pierce Butler.
Back Row:
Benjamin N.
Cardozo,
Harlan Fiske
Stone, Owen
Josephus
Roberts, Hugo
Black.
53. Our author Rawn James notes that “Gaines
weakened the holding of Plessy v Ferguson
in two crucial respects:
• First, Gaines demonstrated that the
Court no longer would defer to southern
states’ dubious claims of providing an
equal education for their black and
white citizens; the chief justice’s opinion
made clear that the judiciary henceforth
would closely examine whether a
defendant-state provided equal
education to its residents regardless of
race.”
54. • “Second, by declaring that
Gaines’ educational right to
be a ‘personal one,’ the
justices preempted any
state’s claim that it need
not establish a substantially
equal school for one or two
black students.”
55. Sadly, Lloyd Gaines was having a difficult
time supporting himself and was
receiving death threats. While he was
preparing to attend Missouri School of
Law, he disappeared in New York City. His
body has never been found. But his
portrait now hangs on the wall of the
Missouri School of Law.
57. When a white man who had been threatening black women about town was killed
in Paducah, Kentucky, in 1938, the police arrested a nineteen-year-old black youth
named Joe Hale, who vigorously protested his innocence. His lawyers filed to quash
his indictment because the county had excluded blacks from jury duty for fifty
years. The account suggests the evidence tying him to the crime was scanty.
When both the local court and the appeals court ruled against Joe Hale, Houston
appealed the decision in Hale v Kentucky to the US Supreme Court. As Rawn James
notes, “Joe Hale’s murder conviction was overturned, and the Supreme Court’s
unequivocal language left no room for obfuscation: The Constitution did not allow
courts to exclude eligible citizens from jury service on account of race.”
58. In another 1938 case in Montgomery, Alabama, two white sisters were beaten
horribly while picking flowers, and one of them later died. The police immediately
swept through the adjoining black neighborhood searching for suspects, they
arrested Dave Canty based on the testimony of a fortune-teller seeking the reward
offered by the governor. When he protested his innocence, they whipped and
starved him in an isolated cell in prison for a week, until he confessed.
The author notes that this was progress, in prior decades he would have simply
been lynched. At trial, he protested his innocence, saying he never met these white
women, and that he confessed only because he had been beaten and starved for a
week. He was convicted and sentenced to death; this sentence was upheld by the
Alabama Supreme Court. Thurgood Marshall appealed to the Supreme Court, which
ruled that confessions extracted by beatings were inadmissible evidence and
ordered that the case be retried. This time he was found guilty and sentenced to life
in prison, where he died many years later..
59. “The problem
we all live with”,
by Norman
Rockwell, 1960,
Ruby Bridges
entered first
grade under
court-ordered
desegregation
of New Orleans
public schools
60. In a prior ruling, the Supreme Court had ruled in Grovey v
Townsend that a whites-only Democratic primary in Texas
did not violate Texan’s right to vote because the
Democratic Party preventing Negroes to vote in the
primary was not an act of the state. The Supreme Court
proclaimed this was wrongly decided in an appeal filed by
Marshall in the Smith v Allwright case that excluding
Negroes from voting in the primary elections was an act of
the state, especially since there was not meaningful
competition in the general election.
62. By the mid-1940’s, our author Rawn James
notes that “Thurgood Marshall was engaged in a
subtle dialogue with the Supreme Court. The
justices knew him, his astute deference and
easy insistence, and he had come to understand
them.” “By their questions, asked and unasked,
they told him their concerns and advised him
where and how they were willing to step next.”
Although Houston still worked on NAACP cases,
and although Marshall often asked his advice,
he had returned to private practice a few years
before, he would pass away in 1950, before the
Supreme Court issued its Brown decision.
Thurgood Marshall, by Yoichi Okamoto, 1967
64. Spotwood Robinson, a student attending Howard Law School, wrote a
thesis arguing that racist restrictive deed covenants, which forbade
selling homes or real estate to Jews or blacks that neighbors found
objectionable, should become unenforceable. His study included “data
on the actual effects of racist covenants: how they skewed
neighborhoods and cities.”
Thurgood Marshall was impressed and commissioned him to expand the
argument for use in litigation in 1944. Marshall was coordinating as best
he could the efforts of three dozen attorneys filing cases attacking these
restrictive covenants across the country; he convened a meeting in
Chicago of anti-covenant lawyers in 1945.
65. New Kids in the
Neighborhood,
by Norman
Rockwell, 1967
66. Two cases where neighbors sued to block the sale of
homes to blacks, and where the state courts ruled for the
restrictive covenants, were appealed to and consolidated
by the Supreme Court, one of them was Houston’s case,
Hurd v Hodge. Three of the justices recused themselves
from the case because their houses were subject to these
racially restrictive covenants. The Truman Administration
filed a brief supporting the NAACP’s position.
67. Charles Houston (left)
delivers oral argument
in court, Courtesy of
the Charles Hamilton
Houston Institute for
Race and Justice.
68. These covenants were not mere
private transactions immune from
public scrutiny. Rawn James notes
that “Marshall contended that state
action commenced when buyers
and sellers entered into a contract
because the force of their
agreement depended on judicial
enforcement of the contract.”
Thurgood Marshall in 1957 as NAACP attorney.
69. The Supreme Court ruled unanimously
“that in granting judicial enforcement of
the restrictive covenants,” “the states
have denied petitioners the equal
protection of the law.” These petitioners
“had been denied rights of ownership or
occupancy enjoyed” “by other citizens
of different race or color.” This violated
the Fourteenth Amendment.
Thurgood Marshall, by Betsy Graves
Reyneau, 1956
71. Quite often when the Supreme Court ruled in favor of civil rights for
blacks, many states ignored the rulings, which led to appeals on issues
that were already settled, which tried the patience of the justices. In
some cases, cities simply closed pools and parks rather than integrate
them. When a lawsuit was filed in Missouri by a black seeking entry to
the white college School of Journalism, the state legislature shut down
both the white and black Schools of Journalism. Many state legislatures
in the Deep South belatedly sought to appropriate more funds for black
schools, pools, libraries, and parks, but the facilities were far too unequal,
so these efforts were often far too little, far too late.
72. The case that likely paved the way for overturning the Separate But Equal
Plessy doctrine was the Oklahoma case, McLaurin v Oklahoma State
Regents for Higher Education. George McLaurin had sought a doctorate
degree in Education but was not only denied admission because he was
black, they also did not offer comparable in-state education for blacks.
When a federal judge ruled in his favor, the state reluctantly admitted
George into its program, but insisted on humiliating him. The school
officials forced him to sit in the hallway so segregation of the races was
maintained in the classroom, he had his own grim area in the cafeteria,
and could only work at a desk hidden away from everyone else when he
used the library.
74. The NAACP appealed his case to the Supreme Court. The
lawyers in Texas stated that Marshall’s brief did not cite
any case contesting the Plessy Separate But Equal doctrine,
because there were no opposing cases. The Supreme
Court unanimously ruled that the University of Oklahoma
should not only admit George McLaurin, but they should
also cease humiliating him. But the Chief Justice refused to
overturn Plessy.
76. Now was the time to end segregation once and for
all, Thurgood Marshall announced to a key meeting
of the members and attorneys of the NAACP in 1950.
In future cases involving public schools, he planned
to use a psychological study compiled by Kenneth
Clark. In this study, foot-tall dolls, two brown, two
white, were presented to black children aged three
to seven.
77. Kenneth and
Mamie Clark
with their
children, and
their guest in
foreground,
Minnijean
Brown, who was
one of the Little
Rock Nine, 1958
78. Rawn James recollects that “the
Clarks instructed each black boy or
girl: ‘Give me the doll you like to
play with;” then the nice doll, and
then the dolls that are a nice color.
Black children across the country
displayed an “unmistakable
preference for the white doll and a
rejection of the black doll.” When he
asked one black boy which doll he
didn’t like, “he pointed at the brown
doll,” “and he blurted, ‘That’s a
nigger, I’m a nigger.’”
Kenneth and Mamie Clark, 1958
79. Dr Wikipedia discusses the doll test in detail in its page on Kenneth and Mamie
Clark.
The NAACP was appealing several cases, including blatant inequalities in South
Carolina and Virginia public schools. But Marshall also chose to appeal a case in
Topeka, Kansas, Brown v Board of Education, because Topeka had arguably equal
school facilities for blacks and whites. Marshall would instead argue that black
segregation itself harmed the black schoolchildren. These cases were consolidated
by the Supreme Court.
Chief Justice Fred Vinson scheduled oral arguments for December 1952, but the
justices were hopelessly fractured, Vinson did not want to abandon Plessy. A second
round of oral arguments were scheduled for December 1953, but Chief Justice Fred
Vinson died of a heart attack in September.
81. After attending his funeral,
Justice Felix Frankfurter
quipped to a friend, “This is
the first indication I have
ever had that there is a
god.”
President Eisenhower
appointed long-time
Republican Earl Warren as
Chief Justice, he later said
this was his life’s “biggest
damn fool mistake.”
82. Earl Warren convinced his fellow justices that this
needed to be a unanimous decision.
83. Warren Supreme
Court in 1953.
Bottom from left:
Felix Frankfurter;
Hugo Black; Earl
Warren; Stanley
Reed; William
Douglas. Back
from left: Tom
Clark; Robert H.
Jackson; Harold
Burton; Sherman
Minton
84. Warren said this, summarizing the
court’s opinion, “Does segregation
of children in public schools solely
on the basis of race, even though
the physical facilities and other
tangible factors may be equal,
deprive the children of the minority
group of equal educational
opportunities? We believe that it
does.”
George Hayes, Thurgood Marshall, and James
Nabrit celebrate the Supreme Court's
decision in Brown v. Board of Education, 1954
85. John F Kennedy nominated Thurgood Marshall to be
a judge on the US Court of Appeals for the Second
Circuit in 1961. His successor, Lyndon Baines
Johnson, appointed him to be the Solicitor General in
1965, and then appointed Marshall to the Supreme
Court in 1967, where he would serve until 1991. He
was familiar to the justices since he presented oral
arguments before the Supreme Court on many prior
occasions.
86. Charles Houston (left)
delivers oral argument
in court, Courtesy of
the Charles Hamilton
Houston Institute for
Race and Justice.
87. Justices of the
Supreme Court
of the United
States, 1976.
Thurgood
Marshall is on
the bottom
right.
88. Even though many Northern and Border States complied with the
Brown decision, resistance was widespread in the South, in Little
Rock the public schools were closed for a year. Eisenhower had
federalized the state National Guard to protect the black students
selected by the NAACP to desegregate Central High School in
Little Rock. On the day of the Brown decision, black teachers
warned their students to go home as soon as possible. This was a
warning worth heeding, as an angry white man was prevented
from raping one of these future Little Rock students that day.
89. Nine students leave Central High, Little Rock,
Arkansas, under U.S. Army escort, 1957
91. In the Brown decision, the Supreme Court had
signaled that it sought to promote civil rights and
dismantle the remaining remnants of the Jim Crow
segregation laws. This decision enabled the protest
movements publicized by Martin Luther King.
94. Martin Luther King conferred often with President
Lyndon Baines Johnson, and they coordinated their
activities to enable the passing of the Great Society
legislation that furthered civil rights, voting rights for
blacks, and enacted programs to fight poverty.
97. Rawn James’ Root and Branch is an excellent history of the decades-long legal
struggle against Jim Crow segregation and discrimination. He includes interesting
short biographies of Charles Houston and Thurgood Marshall. There were several
instances where his life was in some danger, though they do not have any personal
experience with attempted lynchings.
What struck me was how stubborn many in the Deep South clung to the Jim Crow
segregation system, many of the lawsuits I described had to be fought multiple
times when many politicians and policemen in the Deep South simply ignored the
Supreme Court decisions. Also included were discussions about NAACP’s battles
against lynching. In the closing pages we learn that when more conservative judges
were appointed to the Supreme Court, Justice Thurgood Marshall wrote many
dissenting opinions for cases that rolled back some of the civil rights reforms.