Wilbur B. Brookover, a social psychologist Greenberg enlisted in Michigan, told the court that segregation made black children feel “subordinate, inferior.”
The defense attorney dismissed these arguments as frivolous. When white children don’t make the football team, aren’t they pained? he queried. When white children don’t get asked to the big dance, don’t they feel isolated? He added that some blacks who went to segregated schools seemed no worse for it—accomplished people like Langston Hughes and W. E. B. DuBois.
In his ruling, Judge Walker Huxman noted that he was impressed by the plaintiff’s expert witnesses. But he added that, under the doctrine of separate-but-equal, the Topeka School Board had maintained a school system for blacks and the spending discrepancies between the two school systems were not large. He ruled that no laws were being violated and dismissed the plaintiff’s suit.
However, in his opinion Judge Huxman wrote that “segregation of colored children in public schools has a detrimental effect upon the colored children—the impact is greater when it has the sanction of the law—for the policy of separating the races is usually interpreted as denoting the inferiority of the Negro group.” That admission, coupled with the Legal Defense Fund’s steady pressure on graduate schools, kept alive the hope of one day dismantling the separate-but-equal doctrine.
Throughout the nation, the NAACP continued to gather cases. Spottswood Robinson, one of the Howard University law students who watched Charles Houston rehearse the Gaines case there in 1938, was now a special agent for the NAACP in Virginia. Robinson had been litigating case after case against unequal school facilities for blacks. By 1948 Robinson and other NAACP lawyers had forced improvements in some black schools and won equalization of black and white teacher pay in one Virginia county. But they hadn’t yet attacked the inequities in Prince Edward County. Moton High School, in that county’s town of Farmville, held twice as many students as it was designed for and had no cafeteria or gym. The county’s only concession to the blacks’ complaints was to erect tar-paper and wooden shacks to hold the overflow of students. The highest paid teacher at Moton earned less than the lowest paid white teacher in the county.
Whites in Prince Edward County generally disdained the growing pressure from some black ministers and parents for a new school. A Saturday Evening Post writer reported from Farmville that a white city leader had said, “If the Negroes wanted a library or a swimming pool we’d … help them get it. But they’re not interested. They want pool rooms and dance halls … That’s what they’ve got—and they’re happy with it. We have a saying around here: Be a Negro on a Saturday night and you’ll never want to be a white man again.”
Robert L. Carter NAACP Legal Defense Fund, Inc.
In April 1951, a Moton High School junior named Barbara Rose Johns plotted a rebellion at the school. For months she had watched the local school board rebuff black parents’ repeated demands for educational improvements. She decided it was time for the students to take matters into their own hands. First she had an accomplice telephone the school’s principal and ask him to go to the Greyhound bus terminal under the pretext of picking up two truants. While he was gone she forged the principal’s signature on notes ordering the teachers to bring all students to the auditorium for a special assembly. Saying that the students were planning a surprise event, Johns convinced the teachers to leave the auditorium. She then told the students the truth: She wanted them to go on strike to demand a better school. The town jail could hold a few of them, she challenged, but not all 450 of them. The students burst into cheers that quickly hushed when the principal reappeared.
Although he entreated them not to strike, he didn’t order them back to class. Instead, he left the auditorium and allowed the young rebels to finish their deliberations. The schoolchildren decided to strike the following day.
Thurgood Marshall NAACP Legal Defense Fund, Inc.
Thurgood Marshall (center) and other lawyers for the Brown case entering the Supreme Court, February 4, 1953.
On the third day of the Moton strike, at Barbara Johns’ request, Spottswood Robinson went to Farmville to meet with the students. He planned to tell them that, in this part of the state, there were few moderate whites who might be receptive to their strike, and that without the support of moderate whites they had little chance of success. Instead, Robinson was won over by the fiery girl of sixteen he found leading the strike. The students were united behind her and had drawn up a list of their demands. Robinson told them that if they could get the support of their parents to attack segregation head-on and not settle for equalization, then the NAACP would represent them.
NAACP organizer Lester Banks met with the youngsters’ parents. They agreed to the Legal Defense Fund’s terms. A month after the two-week school strike began, Robinson filed Davis v. County School Board of Prince Edward County. The first name on the list of plaintiffs was that of Dorothy E. Davis, the fourteen-year-old daughter of a Prince Edward County farmer. Spottswood Robinson and his clients—117 Moton High School students—asked that the state of Virginia abolish its mandate of segregated schools.
After the strike Barbara Johns moved to Montgomery, Alabama, to live with her uncle, the Reverend Vernon Johns, lest she attract angry reprisals from whites. Pastor of the Dexter Avenue Baptist Church, Johns was fighting the ill treatment of blacks on Montgomery’s city buses. He retired soon after Barbara came to live with him, and was replaced by a young minister named Martin Luther King, Jr.
Despite the efforts of students and parents, the NAACP lost the Moton High School case. In 1953, the three-man Federal District Court unanimously ruled that separate schools resulted not from racism but from Southern “mores.” The Legal Defense Fund appealed the case to the United States Supreme Court.
The Supreme Court was well aware of the Legal Defense Fund’s efforts to challenge school segregation. As the cases worked their way through the appeals process, more and more information was laid at the doorstep of the country’s highest court.
Two important school segregation cases were already waiting to be heard by the Court. Brown v. Board of Education of Topeka had been there for a while, and it seemed the Court was stalling. The more diverse the cases were, the more difficult it would be to garner a broadly written opinion that might abolish segregated schooling in all of America. The Legal Defense Fund staff assumed that the Court was not yet ready to decide the constitutionality of the separate-but-equal doctrine. But in June 1952, the Court announced that it would hear Briggs v. Clarendon County together with Brown in its coming autumn term. Then, on October 8, just days before the Brown and Briggs cases were to be heard, the Court issued a postponement. They had decided to include Davis v. Prince Edward County.
On Behalf Of The South
In 1962, James Jackson Kilpatrick, then the editor of The News Leader in Richmond, Virginia, wrote The Southern Case for School Segregation. In the following excerpt, he responds to the Supreme Court’s Brown decision and addresses what he sees as the inability of northerners to understand the mind of the South. Kilpatrick, author of The American South and The Writer’s Art, is now a contributing editor of William Buckley’s National Review and a frequent commentator on national television and radio programs.
My father came from New Orleans. His father, a captain in the Confederate Army, returned from the War and established a prosperous business in ship chandlery there. And though I myself was born in Oklahoma, Father having moved there just prior to World War I, we children visited along the Delta in our nonage … Our life in Oklahoma was New Orleans once removed; it was a life our playmates accepted as matter-of-factly as children of a coast accept the tides: The Negroes were; we were. They had their lives; we had ours. There were certain things one did: A proper white child obeyed the family Negroes, ate with them, bothered them, teased them, loved them, lived with them, learned from them. And there were certain things one did not do: One did not intrude upon their lives, or ask about Negro institutions, or bring
a Negro child in the front door.
… For three hundred years, the South has lived with this subconsciousness of race. Who hears a clock tick, or the surf murmur, or the trains pass? Not those who live by the clock or the sea or the track. In the South, the acceptance of racial separation begins in the cradle. What rational man imagines this concept can be shattered overnight?
… White infants learn to feel invisible fences as they crawl, to sense unwritten boundaries as they walk. And I know this much, that Negro children are brought up to sense these boundaries, too. What is so often misunderstood, outside the South, is this delicate intimacy of human beings whose lives are so intricately bound together. I have met Northerners who believe, in all apparent seriousness, that segregation in the South means literally that: segregation, the races stiffly apart, never touching. A wayfaring stranger from the New York Herald Tribune implied as much in a piece he wrote from Virginia after the school decision. His notion was that whites and Negroes did not even say “good morning” to each other. God in heaven!
In plain fact, the relationship between white and Negro in the segregated South, in the country and in the city, has been far closer, more honest, less constrained, than such relations generally have been in the integrated North, In Charleston and New Orleans, among many other cities, residential segregation does not exist, for example, as it exists in Detroit or Chicago. In the country, whites and Negroes are farm neighbors. They share the same calamities—the mud, the hail, the weevils—and they minister, in their own unfelt, unspoken way, to one another. Is the relationship that of master and servant, superior and inferior? Down deep. doubtless it is, but I often wonder if this is more of a wrong to the Negro than the affected, hearty “equality” encountered in the North.
… Many of these [Jim Crow] practices, so deeply resented in recent years by the Negro, may have had some rational basis when they were instituted in the post-Reconstruction period. When the first trolleys came along, the few Negroes who rode them were mostly servants; others carried with them the fragrance of farm or livery stable. A Jim Crow section perhaps made sense in those days. But in my own nonage, during the 1920s, and in the years since then, few Southerners ever paused to examine the reasons for segregation on streetcars. We simply moved the little portable sign that separated white from Negro as a car filled up, and whites sat in front of the sign and Negroes sat behind it. This was the way we rode streetcars. After Brown v. Board of Education, when the abiding subconsciousness of the Negro turned overnight into an acute and immediate awareness of the Negro, some of these laws and customs ceased to be subject to reason anyhow; they became, confusingly, matters of strategy; they became occupied ground in an undeclared war, not to be yielded lest their yielding be regarded as needless surrender. Many aspects of our lives have gone that way since. The unwritten rules of generations are now being, in truth, unwritten; in their place, it is proposed by the apostles of instant integration that there be no rules at all. It seems so easy: “What difference does the color of a man’s skin make?” “Why not just treat them as equals?” “There is no such thing as race.”
Ah, but it is not so easy. The ingrained attitudes of a lifetime cannot be jerked out like a pair of infected molars, and new porcelain dentures put in their place. For this is what our Northern friends will not comprehend: The South, agreeable as it may be to confessing some of its sins and to bewailing its more manifest wickednesses, simply does not concede that at bottom its basic attitude is “infected” or wrong. On the contrary, the Southerner rebelliously clings to what seems to him the hard core of truth in this whole controversy: Here and now, in his own communities, in the mid-1960s, the Negro race, as a race, plainly is not equal to the white race, as a race; nor, for that matter, in the wider world beyond, by the accepted judgment of ten thousand years, has the Negro race, as a race, ever been the cultural or intellectual equal of the white race, as a race.
This we take to be a plain statement of fact, and if we are not amazed that our Northern antagonists do not accept it as such, we are resentful that they will not even look at the proposition, or hear of it, or inquire into it.
At Marshall’s office in New York, the NAACP’s legal staff hurriedly reworked their briefs. They now had three cases to be heard together and only until December 8 to prepare for the hearing. Then, with only a few weeks left until the trial began, the Court added two more cases. Fittingly, one was the District of Columbia case begun by Charles Houston. After Houston’s death, Nabrit had redesigned the Consolidated Parents’ Group legal fight and filed a case that challenged separate-but-equal directly: Bolling v. Sharpe. The other case was added just two-and-a-half weeks before the trial was to begin: Gebhart v. Belton, from the state of Delaware.
The cases were consolidated under the name of the first case the Court had decided to hear—Brown v. Board of Education of Topeka. But it was no accident that Brown was chosen to head the list. “We felt it was much better to have representative cases from different parts of the country,” Justice Tom Clark explained, “so we consolidated them and made Brown the first so that the whole question would not smack of being a purely Southern one.”
Ten days before the oral arguments began, Thurgood Marshall arrived in Washington. His suite at the Statler Hotel became the NAACP command post. People came in and out, argued into the night, refined their ideas, and tried to anticipate what the opposition would do. Marshall had participated in fifteen Supreme Court cases, more than any other member of the Legal Defense Fund. He’d won thirteen. This was by far the most important case he’d ever argued.
The preparations included a dry-run at Howard Law School. It was only fitting that they should meet at Howard on the eve of their greatest battle. Howard was where many of them had learned the law and where Charlie Houston had trained so many in this cadre. The dry-run was set up just like a court. Half a dozen or so mock judges were selected, and the attorneys took turns presenting their oral arguments and answering the toughest questions the mock judges could throw at them. Afterwards, the assembled group of students, lawyers, and faculty evaluated the answers of the attorneys and tried to strengthen their cases.
On December 9, 1952, spectators filled every seat in the Supreme Court and four hundred more people lined the corridors seeking admission.
The Court now had an array of arguments, locales, and attorneys with which to decide the critical question of the constitutionality of segregated public schools. The five cases would allow the gradations of attitudes among blacks to be aired, as each of the lawyers chose his own approach to the essential target—better schools for black children.
In the first case, Robert Carter argued the unconstitutionality of unequal educational opportunities for blacks. The Sweatt and McLaurin cases had established that educational opportunities are defined not by physical factors alone but by intangible ones as well, including racial segregation that might place a student at a disadvantage in the classroom.
Marshall took the same approach when arguing Briggs. His brief, however, contained an important appendix. Because many of the NAACP lawyers found Kenneth Clark’s psychological experiments on the effects of segregation too controversial and his method suspect, Marshall, who valued the importance of the data, decided to present only a written summary of Dr. Clark’s findings, along with an amicus brief filed by some of the most eminent social scientists in the country.
The opposing attorney, John W. Davis, saw little to fear in the Briggs brief. During the trial, he wrote to a fellow attorney in South Carolina, “I have read the brief and appendix submitted by our opponents and there seems to be nothing in them which requires special comment. I think it perfectly clear from interior evidences that the witness [Kenneth] Clark drafted the appendix which is signed by the worthy social scientists. I can only say that if that sort of ‘guff’ can move any court, ‘God save the state!’”
John W. Davis had argued more than 250 cases before the Supreme Court—more than any attorney in the twentieth cent
ury. At age seventy-nine, the sharp-witted Davis typically put in twelve-hour days preparing for trial and was considered one of the most accomplished attorneys in America. He contended that the state of South Carolina had no reason to “reverse the findings of ninety years.” He also cited W. E. B. DuBois’ writings as evidence that not all blacks believed school desegregation would help their race.
Marshall responded that Davis failed to explain why blacks were “taken out of the mainstream of American life.” Later, he added, “It seems to me that in a case like this the only way that South Carolina, under the test set forth in this case, can sustain that statute is to show that Negroes as Negroes—all Negroes—are different from everybody else.”
The arguments continued for three days. No clear victor emerged. Records of private discussions between the justices indicate that Chief Justice Fred M. Vinson was at first inclined to rule against ending segregation. A decision siding with the civil rights lawyers would mean the Court must repudiate its fifty-year adherence to the separate-but-equal doctrine originated in the Plessy case. The Fourteenth Amendment to the Constitution guaranteed equal protection of the rights of all citizens. The plaintiffs argued that separate schools violated the rights of black children, but the defense countered that Congress intended the separation of the races to continue under the equal protection clause.
On December 11, six days after the hearings began, the Court convened to consider the evidence. Their deliberations dragged on. The justices delivered a list of questions about the cases and questions about the Fourteenth Amendment to both sides. Nine months passed without a decision.
Eyes on the Prize Page 5