Houston thought that the only worthy role for a lawyer was that of social engineer—someone who understood the Constitution and knew how to use it to better the living conditions of underprivileged citizens. That was the kind of lawyer he wanted Howard to produce.
A Disturbing Pattern
When the Civil War ended in 1865, President Andrew Johnson appointed provisional governors throughout the defeated South. In 1865 and 1866 the state legislatures there enacted “black codes” that severely limited the newfound freedom of blacks. “Freedmen” were restricted in the kind of work they could do, where they could meet, and even the gestures and remarks they could make to white people. Whites could still whip blacks with impunity.
In the late 1860s, General Carl Schurz conducted an investigation of post-Civil War conditions in the South for the White House.
The emancipation of the slave is submitted to only in so far as chattel slavery in the old form could not be kept up. But although the freedman is no longer considered the property of the individual master, he is considered the slave of society … Wherever I go—the street, the shop, the house, the hotel, or the steamboat—I hear people talk in such a way as to indicate that they are yet unable to conceive of the Negro as possessing any rights at all. Men who are honorable in their dealings with their white neighbors will cheat a Negro without feeling a single twinge of their honor. To kill a Negro, they do not deem murder; to debauch a Negro woman, they do not think fornication; to take property away from a Negro, they do not consider robbery. The people boast that when they get freedmen’s affairs in their own hands, to use their own expression. “the niggers will catch hell.”
Oliver Hill, a former student of Houston who became an NAACP lawyer, said, “He was a man you either liked intensely or you hated.”
While at Howard, Houston assisted the NAACP with many of its most important civil rights cases. With his students helping to prepare many of these cases, Houston had turned Howard’s law school into a civil rights laboratory.
During this time, Houston traveled through the South with his movie camera. The NAACP was amassing data that showed just how appallingly inadequate black schools were in the South. The film became part of the data gathered during a well-funded NAACP legal campaign. In 1922, a white Harvard undergraduate named Charles Garland decided it was morally wrong to accept a fortune he was about to inherit because he had done nothing to create it. With his $800,000 inheritance he created a foundation to support liberal and radical causes. In 1929, the Garland Fund granted $100,000 to the NAACP to launch a campaign dedicated to giving the southern Negro his “constitutional rights, his political and civil equality, and therewith a self-consciousness and self-respect which would inevitably tend to effect a revolution in the economic life of the country.” The first payment of $8,000 went toward legal research. Unfortunately, the NAACP received only one additional payment of $10,000 before the Garland Fund’s money was lost in the great stock market crash of 1929.
In 1933, Nathan Ross Margold, a white, Harvard-trained lawyer for the NAACP, published a document that outlined a legal strategy he had developed. This strategy sought an end to segregated schools in the United States. The document became known as the Margold Report; it reacted against a legal theory called the “separate-but-equal” doctrine, which lay at the very heart of institutionalized racism in America.
The separate-but-equal doctrine was established by an 1896 case, Plessy v. Ferguson, in which the Supreme Court ruled that separation of the races is within the bounds of the Constitution so long as equal accommodations are made for blacks. The plaintiff, Homer Plessy, was white in appearance but was known to have had a black great-grandmother. He bought a train ticket from New Orleans to Covington, Louisiana, a small town near the state line, and sat in the whites-only car. When he refused to move to the car where blacks sat, the police dragged him from the train, according to news accounts, and arrested him. He sued the railroad, arguing that segregation was illegal under the Fourteenth Amendment, which was ratified in 1868 to ensure equal protection for the newly freed slaves. The Supreme Court ruled against him, arguing that “separate-but-equal” was all that was required of the railroad under the Civil Rights Act of 1875. That law guaranteed all Americans the right to public accommodations, but did not outlaw segregation.
The Plessy decision gave legal validity to the system of segregation called “Jim Crow,” after a black minstrel caricature popularized in song during the 1830s. Over the years the name worked its way into the American vocabulary, coming to represent the day-to-day segregation of blacks from whites. Cities, towns, and states passed statutes and ordinances that “legitimized” the Jim Crow way of life. There were Jim Crow schools, Jim Crow restaurants, Jim Crow water fountains, and Jim Crow customs—blacks were expected to tip their hats when they walked past whites, but whites did not have to remove their hats even when they entered a black family’s home. Whites were to be called “sir” and “ma’am” by blacks, who in turn were called by their first names by whites. People with white skin were to be given a wide berth on the sidewalk; blacks were expected to step aside meekly.
But, as the Margold Report pointed out, the Plessy decision was sloppily thought out and poorly written. The justice writing the majority opinion had relied on cases and legal precedent that predated the Civil War and the Fourteenth Amendment. Margold outlined a strategy to challenge gradually the constitutionality of the decision. But the Great Depression so severely strained the nation’s social fabric that the NAACP decided to shelve the plan until times improved.
Not until 1935 did the NAACP feel ready to resume its legal campaign against segregation. At that time Walter White, the organization’s director, convinced Charles Houston to take a leave of absence from Howard University and direct the NAACP’s crusade. Houston accepted the challenge.
At the Howard School of Law, Houston had made no secret of his main goal. He wanted to make the American legal system work for blacks, and to do so he was training a cadre of top-notch black lawyers. As the chief legal counsel to the NAACP, Houston now had his pick of those well-trained legal minds. For the next five years he worked seven days a week. It was not uncommon for him to put in a sixteen- or even eighteen-hour day. He once commented that “the test of character is the amount of strain it can bear.”
Using the Margold Report as a starting point, Houston worked out his own detailed, long-range strategy. They would begin by attacking segregation in professional and graduate schools. If they could amass victory after victory, selecting the right cases to litigate and establishing precedent in a clear, ever-broadening line, they could then work their way through colleges, high schools, and finally elementary schools.
Houston chose to start at the higher educational level because there the injustice was most obvious and, to the public at large, change would be least threatening. In 1935, all Jim Crow states had white elementary schools and black elementary schools, white high schools and black high schools, even white and black colleges. But because so few blacks continued beyond college, most states did not provide them with separate law schools, medical schools, or other graduate-school programs.
Houston decided to begin with the law schools. Judges were, of course, lawyers, and as such could be expected to recognize the folly of having separate law schools. If the cases were presented properly, the courts would have only two options: admit black students to white law schools, or demand that states provide black students with adequate out-of-state scholarship monies. Houston was convinced that, under the Fourteenth Amendment, states could not legally export their obligation to provide equal facilities for blacks by offering out-of-state scholarships. He wanted to test his theory by finding the right case and working it through the system, all the way to the United States Supreme Court if necessary.
His former student, Thurgood Marshall, was by then a lawyer in Baltimore. He told Houston about Donald Gaines Murray, a young man denied admission to the University of Maryland’s all-
white law school because he was black. In June 1935, Marshall and Houston argued Murray’s case in Baltimore city court. Houston contended that, clearly, there were no black law schools in the state of Maryland and, if a black citizen of the state wanted to study law there, he should have the opportunity to do so. Houston also argued that Maryland could not shirk its responsibility by offering a suddenly announced scholarship for Murray to study in another state. Murray aspired to practice law in Maryland, and an out-of-state legal education would thus not constitute equal treatment under the separate-but-equal doctrine. Marshall then showed the municipal court that it would be ruling within constitutional precedent by allowing Murray to enter the school.
The presiding judge ordered the University of Maryland to admit Donald Gaines Murray to its school of law. Although the state of Maryland appealed the case, the lower court’s ruling was upheld.
The Murray case was an important victory for the nascent NAACP legal campaign—one of the first cracks in the wall of segregation. Houston and Marshall had forced a graduate school to integrate. In 1936, many of the southern states along the Mason-Dixon line began allocating more money to graduate and professional programs in black schools. Noting Marshall’s solid performance in his first major case, Houston convinced his former student to work for the NAACP full-time as its Maryland/Washington, D.C. representative.
The Origins of Jim Crow
The name Jim Crow was first heard by the American public in 1832 when Thomas “Daddy” Rice, one of the first whites to perform comic representations of blacks, danced across the stage of New York’s Bowery Theater and sang the lyrics of the song that would become America’s first international hit:
Weel a-bout and turn a-bout
And do just so.
Every time I weel a-bout
I jump Jim Crow.
Rice’s portrayal of the lame black man soon became a standard comic character of minstrel shows. By the middle of the nineteenth century, the name Jim Crow had evolved into a synonym for blacks and their “comic” way of life.
Much lore surrounds the actual identity and inspiration for Jim Crow. Some historians believe he was a soldier spotted by Rice in Kentucky or Ohio. Others say that he was a slave from Cincinnati, Ohio, or Charleston, South Carolina. Some scholars believe the name came from “old man Crow,” a legendary slaveholder, while others suggest that it sprang from the simile “black as a crow.”
By the early 1900s, Jim Crow described a far-reaching, institutional segregation that affected every aspect of American life. Schools, restaurants, trains and all forms of transportation, theaters, drinking fountains—virtually all public and many private facilities practiced total separation of the races. The state of Florida went so far as to require “Negro” and “white” textbooks, and in South Carolina black and white cotton-mill workers were prohibited from looking out the same window.
Marshall and Houston were a powerful combination. Marshall could disarm a room full of suspicious lawyers with a joke and temper Houston’s seriousness with a lively sense of humor. A diligent worker, Marshall extracted more information from a casual conversation than most lawyers did from a legal brief. Houston read law books with precision and an eye to the future; his skill was more than matched by Marshall’s ability to read people and their motives.
Off and on during 1936, Houston and Marshall traveled through the South. They gathered evidence, met with NAACP regional officers, and looked for cases with which they might challenge school segregation. Marshall’s car became an office on wheels. As he describes it, “Charlie would sit in my car—I had a little old beat-up ‘29 Ford—and type out the briefs. And he could type up a storm—faster than any secretary—and not just with two fingers going. I mean he used ’em all. We’d stay at friends’ homes in those days, for free.” Teacher and student spent countless hours together in the Jim Crow South, discussing legal strategy, philosophy, and life.
Charles Houston arguing in court.
In 1936 Houston journeyed to Missouri to argue another law school case similar to Murray. Lloyd Lionel Gaines, a black man of 25, was seeking admission to the all-white law school at the University of Missouri. The state claimed it would build a law school on the campus of all-black Lincoln University if Gaines would agree to apply there. No funds were yet allocated for such a law school and establishing it might take years, but the state said it would commence with the procedure as soon as Gaines filed his application. If he did not want to wait, they were prepared to pay his tuition at an out-of-state law school. Gaines lost his case in the Circuit Court of Boone County, as he had anticipated, and Houston appealed on his behalf to the United States Supreme Court. It took nearly two-and-a-half years, however, for the Court to hear the Gaines case.
The hearing was finally scheduled for November 9, 1938. On November 8 of that year, Houston rehearsed his argument for the Gaines case at Howard University before scholars and students. It was the first of many such Supreme Court rehearsals at Howard. Over the next fourteen years, NAACP attorneys would often present their major cases to the students and faculty before setting foot in the courtroom. It was a useful exercise for the attorneys and invaluable experience for the students who sat in. During the Gaines rehearsal Robert Carter and Spottswood Robinson, both students at the time, were in the audience. In years to come, both men would remember the valuable lessons Charles Houston taught them.
The next day, Houston stood before the Supreme Court and delivered a demand for true equality. He argued that it wouldn’t be enough simply to set up a school and call it a law school; for the separate-but-equal doctrine to stand, the black and white schools had to be truly equal.
The Supreme Court ruled in Gaines’ favor. He was entitled to attend the University of Missouri School of Law. The Supreme Court opinion made it clear that states had an obligation to provide an equal education for their citizens, black and white; that they could not send black students out of the state instead of providing in-state facilities to educate them; and that they could not ask students to wait while they built those schools within the state.
The ruling had far-reaching implications. If the state had to furnish an equal legal education to its black citizens, then did the state also have to supply equal undergraduate colleges, high schools, and elementary schools? What of other public facilities—parks, hospitals, libraries?
In 1940, after working full time for five years as the NAACP’s chief legal counsel, Charles Houston decided to return to his father’s law firm. In a letter to his father, he wrote, “I have had the feeling all along that I am much more of an outside man than an inside man…I usually break down under too much routine. Certainly, for the present, I will grow much faster and be of much more service if I keep free to hit and fight wherever the circumstances call for action.” In Washington, Houston resumed his part-time position as a member of the NAACP’s National Legal Committee. At only thirty years of age, Thurgood Marshall was named as Houston’s replacement at the association’s national headquarters.
Free from the organizational constraints of the NAACP, Houston took on more controversial causes. In 1944, President Franklin Roosevelt appointed him to the President’s Committee on Fair Employment Practices. Houston quit twenty months later, charging that the administration, now led by Harry Truman, was not truly committed to job equality. He also pursued scores of court cases dealing with such issues as segregation within the military, discrimination by taxicab operators, and racial prejudice in labor unions.
Perhaps more than any other desegregation lawyer in the 1940s, Houston realized the importance of speaking to people. “Lawsuits mean little unless supported by public opinion,” he once said. “The really baffling problem is how to create the proper kind of public opinion. The truth is there are millions of white people who have no real knowledge of the Negro’s problems and who never give the Negro a serious thought.” In February, 1948, while giving one of his many lectures for the NAACP in Washington, he met Gardner Bishop, a bla
ck barber with a fourteen-year-old daughter named Judine.
Bishop represented a Washington, D.C., organization that came to be known as the Consolidated Parents Group. Two months before Bishop introduced himself to Houston, the group had launched a strike, keeping all their children home from the Browne Junior High School. Built to accommodate 800 students, the school was packed with 1,800, while the nearby white junior high school had hundreds of empty seats. Browne had so many students that they attended in two shifts.
The Consolidated Parents Group was made up mostly of poor blacks. They were skeptical of the “upper-class Negroes” of the NAACP, but held Charles Houston in high esteem. The group sent Gardner Bishop to ask if Houston would represent them in a lawsuit. Houston accepted without hesitation and without a fee.
Meanwhile, Thurgood Marshall, the NAACP’s new special counsel, set up an organization to serve as the association’s legal arm. In 1946, the newly formed Legal Defense Fund picked up where the Houston-Marshall team had left off—challenging segregated graduate schools. The association still planned to demand equal schools under the separate-but-equal Plessy doctrine. But two crucial postwar cases emboldened them to attack the doctrine itself.
The first involved a black mailman named Herman Sweatt, who in 1946 applied to the law school at the University of Texas in Austin. The school offered to set up a legal education program in three small basement rooms downtown, where Sweatt would be taught by part-time faculty members. The NAACP contended that Sweatt was not being offered a legal education equal to that which Texas provided for its white students. Before the trial began, 2,000 whites from the university rallied in support of Sweatt and cheered when the president of the student body said the institution should practice the democracy it preached. But the lower court ruled against Sweatt, and the long appeal process began.
Eyes on the Prize Page 3