Sweatt was a graduate of Wiley College in Marshall, Texas, and he had done a year of graduate work at the University of Michigan. During his time at Michigan he had become friendly with the infamous Lloyd Gaines, who had been studying there while waiting for the Supreme Court to rule on his right to attend the University of Missouri Law School.2
Sweatt later wrote to Walter White that, unlike Gaines, he felt no pressure from having his name on a lawsuit challenging segregation. Sweatt proudly declared he wouldn’t break under the scrutiny and frustration that came with a major lawsuit because he did not suffer from Gaines’s “egoistic inflation” and “personality weaknesses.” The postal worker said he was also aware that the NAACP’s struggle had implications for future generations of black students: “I am seriously interested in contributing to the earliest possible ending of the system [of school segregation].”3
Walter White was happy that this defendant seemed so mature. But White still had problems with the Texan. Sweatt had also sent him a rambling five-page letter in which he declared that he was a Communist sympathizer. Alarmed, White talked with Marshall. But they decided that despite his Communist inclinations, the NAACP needed Sweatt if the case were to go forward.4
To get the case going, Marshall had Sweatt apply to the University of Texas Law School. University authorities acknowledged that Sweatt was qualified to earn admission except for one thing—he was black. Sweatt immediately filed suit. Marshall, who still had strong support in Texas after his victory in the white primary case, used his relationships to develop financial and emotional support for the case. Maceo Smith, the influential head of the Texas NAACP, helped to raise money for the case and build statewide support among black Texans. Smith later said Marshall “practically made his home in Texas by that time because they had such fertile ground here and [so many] people to work with.”5
After an initial finding that the University of Texas Law School would have to be integrated because there was no law school for blacks, the courts gave Texas officials six months to begin a Jim Crow law school. Marshall had no choice but to wait things out. But in that time he went to neighboring Oklahoma and began work on a case in which the state law school had similarly refused to admit a black woman.
* * *
Marshall got involved in the Oklahoma case after another excited phone call from the NAACP board member Roscoe Dunjee, the editor of the Oklahoma Black Dispatch, who had brought Marshall into the Lyons murder case a few years earlier. This time Dunjee had directed a young woman, Ada Lois Sipuel, to apply to the all-white University of Oklahoma Law School. He wanted to force a confrontation that he hoped would generate headlines and break open the university’s doors to black students.
The NAACP hired Amos T. Hall as their local counsel and filed suit against the university. But the district court threw out the case. Under the separate-but-equal law, the judge said Sipuel would be entitled to a good law school but not admission to the all-white University of Oklahoma. Hall consulted with Marshall before filing an appeal to Oklahoma’s highest court.
In April 1947, Marshall argued Sipuel’s appeal before the Oklahoma Supreme Court. He lost. The next step was to appeal to the U.S. Supreme Court, which ruled in January 1948 in favor of Sipuel. Dunjee printed screaming headlines in his paper and published stories that said the Supreme Court’s decision was the final victory. Marshall and Dunjee expected Sipuel to be admitted to the law school in the spring of 1948.
Oklahoma state officials, however, responded with a surprise. The State Board of Regents created a new school—Langston Law School—in the state capitol building. They appointed three law professors and sent a letter instructing Sipuel to apply to the new Jim Crow school. She called Marshall, who told her, “Forget it, Ada Lois, don’t even show up in the same block of that law school.”
Marshall immediately petitioned the Supreme Court to order the University of Oklahoma to admit Sipuel. But in a 7–2 decision the high court ruled that since Oklahoma now had a separate law school there were new issues and the case had to be heard again in the lower courts. Marshall was deflated by the ruling; he told Sipuel and others that the justices had chickened out. Now the NAACP would have to sue to prove the obvious—that the newly created Langston School of Law was inferior to the state law school.
Marshall went back to Oklahoma accompanied by several black lawyers from around the country, including James Nabrit and Robert Ming, as well as his New York secretary, Alice Stovall. No hotel in Norman, Oklahoma, the site of the trial, accepted black guests. So Marshall’s gang stayed in the homes of black NAACP members in Oklahoma City, some forty miles away.
Despite working long hours preparing for the trial, Marshall found time to party. Liquor was not sold in the state, but friends pulled strings to keep him supplied. “We had a good rapport with the police department,” said Jimmy Stewart, the president of the Oklahoma City branch of the NAACP. “We’d just call up there and tell them, ‘Our NAACP lawyer is in town.’ Next thing we saw coming through the door was the guys with whole cases of liquor from the bootleggers.”6
Joining Marshall in his late-night strategy sessions were some of the top legal experts in the nation, including Erwin Griswold, the dean of Harvard Law School, as well as the deans of Pennsylvania, Columbia, and Yale law schools. They would debate the law over bottomless glasses of whiskey before taking off at dawn for the trial in Norman. Constance Baker Motley, who was on the NAACP legal staff, said Marshall was able to draw these high-powered legal minds at no charge because of his magnetic personality. “They knew they were gonna be in a relaxed atmosphere with somebody that was congenial, full of stories. It was an optimistic sort of thing,” Motley said.7
At the trial the law school deans unanimously described the new school as a fraud. Walter Gellhorn, of Columbia Law School, one of the expert witnesses supporting the NAACP, saw the argument Marshall presented in the Oklahoma case as the breakthrough in the association’s challenge to school segregation. “The first time I heard of the possibility of making an argument against separation as such … [was] in the case of Sipuel.”
The Jim Crow school actually had a better library than the university’s law school; it was the law library for the state supreme court. Overall, the quality of Langston’s facilities were never in doubt. As a result, Marshall had to focus his argument on the disadvantage to black people that came from being educated apart from the others who were to be in their profession.8
For that opening day in court, Marshall had planned for every contingency except one. There was no restaurant in Norman that served lunch to black people and no time to drive anywhere during the noon recess. So Marshall had to organize a strategy for feeding his legal team. In the hall he saw a penny peanut machine. He rushed back into the courtroom and got all the hungry faces to empty the change in their pockets. A few minutes later he came back with two fists full of peanuts and began portioning out the nuts to quiet growling stomachs. When everyone had something to eat, he turned to Sipuel and gave her marching orders. “I’m going to put you in charge of baloney sandwiches; don’t you let this happen no more,” he told her. A few days later Dunjee arranged for a downtown restaurant to open a segregated section.9
The highlight of the trial came when Marshall cross-examined the dean of the Jim Crow school. The NAACP lawyer loudly dragged his chair next to the witness’s chair. Leaning forward and holding a copy of the new school’s catalog, Marshall began a series of rapid-fire questions. “What kind of bulletin does your Langston Law School publish?” The dean, looking embarrassed, said the school didn’t have a bulletin. Waving the catalog in the air, Marshall said, “The catalog says you have one. What did you do, lie?” Finally, after forty minutes of browbeating, Marshall’s cocounsel Jim Nabrit called out, “Turn him loose, Thurgood, let him go.” The tense courtroom erupted in laughter.
Before the trial ended the judge called Marshall into his chambers and made an unusual confession. He said the expert testimony and Marsha
ll’s revealing questioning had “opened [his] eyes,” to the wrong of school segregation. Then the judge went out, got back on the bench, and ruled against Sipuel and Marshall.
But before Marshall could appeal to Oklahoma’s high court, the university decided to short-circuit the legal process. They admitted Sipuel, as well as several other black graduate students who had been pressing for admission. The sympathetic university president had convinced the state attorney general to let Sipuel in, but she had to sit in the back of the classroom. Not wanting to risk having higher courts rule that the law school be completely integrated, the attorney general agreed.
Sipuel was warmly greeted by the people in the law school, although she started classes two weeks late. “I wouldn’t have made it without the white students,” she said. “The fellows in the law school came over and said, ‘Ada, we’re so glad you finally got in, we know you’re behind, but we’re going to help you. We’re going to loan you our books, we’re going to loan you our notes, we’re going to tutor you until you can catch up with us,’ and they did that and that was the only way I made it.” However, she was still not treated as an equal by school officials. She had to sit four rows behind the rest of the class, with a big sign overhead that read COLORED. But by Sipuel’s second semester all the “colored” signs in the law school were taken down. “I just moved down to the first row,” she said.
* * *
At the end of his legal work in Oklahoma, Marshall became distressed over reports from the New York office that the NAACP had emptied its treasury to litigate the desegregation cases. To refill the coffers Dunjee arranged some speeches for Marshall. Amos T. Hall, the NAACP lawyer from Tulsa, came up with another idea to raise money. Hall was more famous for being the head of the local Prince Hall Masons than for being a lawyer. The Prince Hall Masons were an all-black group founded in Boston in 1784 by a former slave named Prince Hall. Operating separately from white Masonry, the black Masons spread around the nation after the Civil War as a select fraternity for newly freed black men.
“Amos told Thurgood and me that if we joined the lodge he could get some money for us. And we dearly needed money at that time,” Oklahoma City branch president James Stewart said. “So I joined the lodge, and so did Thurgood. From then on we got a substantial contribution from the Masons.”
Marshall had enough money to turn his attention back to the University of Texas Law School case. Even after the six-month grace period given by the courts, Texas officials had not built their Jim Crow law school, and Heman Sweatt’s suit had new life.
As he had done in the Sipuel case, Marshall brought in law professors and deans from around the country to testify the Jim Crow school had not even a semblance of the quality of the University of Texas. And to show that law school integration would not cause riots, Marshall had Donald Murray come from Maryland to testify about his experiences breaking the racial barrier there. But Marshall never had much of a chance with Judge Roy Archer on the bench. “Judge Archer was not insensitive to politics,” said Joe Greenhill, the deputy attorney general who defended Texas in the case. At one point the judge told Greenhill, “Sweatt’s got two chances, slim and none.”10
The climactic moment came when Sweatt testified he would never go to a segregated law school, even at a newly proposed $3 million Jim Crow facility. Sweatt told the judge that any segregated school was inherently unequal. Under intense cross-examination from the Texas lawyers, the NAACP plaintiff was unflappable. Greenhill, who later became chief judge of Texas’s state supreme court, walked over to Marshall during a break to compliment him on his preparation of Sweatt. In his typical style Marshall had befriended the opposing counsel.
“I thought it was a masterful job,” Greenhill told him. “Well, you know we woodshed our witnesses pretty well,” Marshall responded. “Matter of fact, I expected him to do well. We went out early this morning and filled him full of gin.”
The courtroom also became a theater of race relations as white law students from the University of Texas crowded in to hear the arguments. Black Texans, many of them from the local NAACP, were in court, too. When bailiffs told one Texas law student not to sit in the black seating section, the student refused to move unless a black person told him to get out. Soon blacks and whites were seated together all over the courtroom. The drama took another turn when white students began booing as their own dean testified that segregation was necessary to ensure a quality education for white students.
Despite the NAACP rooting section, Archer again ruled against Sweatt. Marshall had expected to lose, but to hear Archer’s ruling nonetheless hurt. He always held hope that judges, even southern judges, would rise above the pressure and the racism and rule fairly. Just after the decision, Marshall confided to his fellow lawyer Jim Nabrit that he was going to curse out the judge. “I told him to take it easy,” Nabrit later said. Marshall said nothing.
As the NAACP legal team walked out of the court, their faces looking long with disappointment, Nabrit saw Marshall lingering behind, standing over in a corner and mumbling. Out of concern he called to him and Marshall slowly walked over. Nabrit asked him if he was okay. “I told you I was gonna tell that judge what I thought of him, and I just did,” said Marshall.11
The NAACP appealed Judge Archer’s ruling in February 1948 and again lost. The state court said that the separate-but-equal standard was satisfied by the Jim Crow law school for black students.
Marshall’s battles in the Lone Star State, however, were not limited to the courts. Carter Wesley, publisher of the Houston Informer, the leading black newspaper in Houston, began regularly attacking the New York lawyer in his columns. In his frenzy for integration, Wesley said, Marshall was undermining black schools and especially black colleges.
Wesley’s argument reflected a major divide among black Americans over whether school integration or equal funding for black schools should be the NAACP’s priority. Marshall and Charles Houston had pushed a pro-integration resolution through the 1947 NAACP convention in Washington in an attempt to shut off people like Wesley. The landmark resolution mandated that NAACP lawyers bring only suits that asked for full integration: “The NAACP cannot take part in any legal proceeding which condones segregation in public schools or which admits the validity of segregation statutes.”12
But several local black leaders, including Wesley, objected. These NAACP members feared that demands for integration might anger white state officials and lead them to cut back already meager funding for existing black schools. If that happened black students would be hurt by the NAACP’s risky strategy.13
“Is it the NAACP’s position that it will take no action to better the educational lot of Texas Negroes except [to] fight for admission of Negroes to non-segregated schools?” Wesley asked in one heated column. He also suggested that there were “communists” in the NAACP and called the civil rights group “cuckoo” for its lack of interest in getting more financial support for segregated, all-black schools.
Marshall responded with increasingly personal anger. In a speech at the Texas state conference of NAACP branches in 1947, he publicly belittled Wesley. Marshall said one Informer column “obviously written by editor Carter Wesley” supported a “return to the days of Booker T. Washington” and separate, all-black schools.
“It no longer takes courage to fight for mere equality in a separate school system,” Marshall told the large crowd gathered on a humid Friday night in Denison, Texas. “I think everyone knew that when the state legislature in Texas agreed to advance more than $3 million for a Jim Crow University there would be Negroes who would be willing to sell the race down the river in order to either get jobs in the school, or to determine who should build the school, or to determine where the school should be built, or any other method whereby the individual could get personal gain.”
A sweat-drenched Marshall told the crowd the NAACP was not going to stop demanding integration because of Carter Wesley. “When you realize that Negroes have been fighting fo
r equality in separate schools for more than eighty years and have not obtained a semblance of equality,” he said, it made no sense to ask for more segregation. He concluded that Wesley was just looking for “the easy way out” by asking whites for “Jim Crow Deluxe.”
Marshall ended the speech with a fist-pounding statement: “We are convinced that it is impossible to have equality in a segregated system, no matter how elaborate we build the Jim Crow citadel and no matter whether we label it the ‘Black University of Texas,’ ‘The Negro University of Texas,’ ‘Prairie View Institute,’ or a more fitting title, ‘An Apology to Negroes for Denying Them Their Constitutional Rights to Attend the University of Texas.’ ”14
Marshall returned to New York, where his legal team got busy preparing to argue the Sweatt case before the Supreme Court. Charles Houston gave his advice and even sent a catalog from the new Jim Crow law school. Houston wrote, “This may be introduced as evidence of equality of opportunity.… It would appear as if we had a new Columbia University in Houston, but my Atlanta friend tells me that this is all a paper set up of fairy tales in place of actual offering.”15
Houston also pulled strings to get the Justice Department to file a brief with the Supreme Court supporting Sweatt. The administration’s brief said Sweatt’s case was significant because it tested “the vitality and strength of the democratic ideals to which the United States is dedicated.” Most important, the brief also argued that segregated state law schools were part of a pattern that harmed black citizens and asked that the separate-but-equal doctrine be overturned.16
Thurgood Marshall Page 23