Speak Now Against the Day

by John Egerton

  Brown was the beginning of that next step, the start of a cure. After a generation of preliminaries, the main event was about to begin. Everything else had been Yesterday. Brown was Tomorrow.

  In the closing chapters of Simple Justice, Richard Kluger’s masterful retracing of the five cases that flowed to confluence in the U.S. Supreme Court as Brown v. Board of Education, the author recounted two remarkable expressions of unanimity that underscored the significance of the historic decision. The first was in the U.S. Senate, where on March 1, 1954, not a single member voted against the confirmation of Earl Warren as chief justice—a role the former California governor had already stepped into five months earlier, right after President Eisenhower awarded him an interim appointment to replace the deceased Fred M. Vinson.

  The second unanimous vote was in the Supreme Court itself, where Chief Justice Warren patiently and diplomatically coaxed a wavering minority of his eight brethren to affirm without any dissenting voices their chief’s opinion “that in the field of public education the doctrine of ‘separate but equal’ has no place.” The decision, though stunning and momentous, was not unexpected—but virtually no one anticipated unanimity from the all-white, all-male court. Hugo L. Black of Alabama, Tom C. Clark of Texas, Stanley Reed of Kentucky, Sherman Minton, Harold H. Burton, Robert H. Jackson, Felix Frankfurter, William O. Douglas, and Earl Warren. So say us all.

  Following the circuitous paths of all this litigation, I find myself wishing the title case had been Briggs v. Elliott, the South Carolina suit—or better yet, something like DeLaine v. Clarendon County, in honor of the Reverend Joseph A. DeLaine of Summerton, South Carolina, the one individual above all others most responsible for bringing this first of the five cases into court. It’s not that the complaint of Oliver Brown and others against the school board of Topeka, Kansas, wasn’t representative enough, or as much in need of redress; it’s just that Kansas is a long way from the heart of Dixie, and the facts of that dispute seem less compelling, somehow, than those surrounding the Clarendon County drama, or the case from Prince Edward County, Virginia. (Two other lawsuits, one from Wilmington, Delaware, and the other from the District of Columbia, seemed to belong, with the Kansas case, closer to the periphery of the conflict—again, not because the facts weren’t indicative of the problem, but because the places weren’t as Southern or as symbolic of the central issue.)

  Clarendon County in 1950 was a flat, dusty throwback to Yesterday’s South, a sprawling rural patchwork of cottonfields and piney woods in the Carolina low country southeast of Columbia and north of Charleston. The population of 32,000 was almost three-fourths black; in the public schools, the ratio was higher still. There were only two towns of any size—Manning, the county seat, and Summerton. Most of the blacks and a good many of the whites were poor farmers who worked the land for the tiny white ruling class or served them in other capacities. Over two-thirds of the households in the county earned less than a thousand dollars in 1950.

  Two-thirds of the county school budget was allocated to the schools that served white children, even though they made up just thirteen percent of the total enrollment. The whites were clustered in a dozen school buildings that bore no resemblance to the sixty ramshackle buildings, most of them one- or two-room structures, into which scores or hundreds of black children were crowded. The whites had buses, too, about thirty in all; the blacks walked, some more than five miles each way.

  J. A. DeLaine was one of a handful of black citizens in the Summerton area who decided in the summer of 1947 that it would help a lot if the school board would provide them with a bus. They asked the board chairman, R. W. Elliott, a sawmill operator. His reply, later quoted by one of the men who went to see him, was “We ain’t got no money to buy a bus for your nigger children.” They asked the superintendent, L. B. McCord, a Presbyterian minister. His answer was a bit more polite, but just as unavailing. They wrote to the state superintendent of education and the U.S. Attorney General—and again, they got nowhere. Finally the black parents scraped up enough money to buy an old heap of a worn-out bus, but it broke down a lot, and the school board wouldn’t even agree to put gas in it.

  All of this deeply troubled J. A. DeLaine, a college-educated minister in the African Methodist Episcopal Church who served as pastor of two congregations and taught school during the week. He was almost fifty years old, and not at all eager to risk his teaching job or his health in a confrontation with the white authorities. But in Columbia that summer, he heard a speech by the Reverend James M. Hinton, president of the South Carolina NAACP, that seemed almost like a call from on high. Hinton was talking about racial discrimination in the public schools, and he specifically cited the lack of buses for black children. The NAACP needed some brave plaintiffs to attack these problems with them, he said. DeLaine took it upon himself to find such a person. He got Levi Pearson, a farmer in one of his churches, to sign a formal request for a bus. The white school officials ignored it. Then, in March 1948, the NAACP attorney in Columbia, Harold Boulware, filed a complaint in federal court in Pearson’s name. The case was dismissed on a technicality. Soon thereafter, Pearson found that the white moneylenders and storekeepers in Clarendon County had cut off his credit.

  A year went by. In the spring of 1949, DeLaine and Pearson met again with NAACP officials in Columbia, and this time Thurgood Marshall was there. He told them they had a good case, but they needed several plaintiffs, not just one, and they would have to stick together and stay the course. Back home, about three hundred frustrated but determined blacks had a meeting. They promised Joseph DeLaine that if he would lead them, they would follow. Putting aside his reluctance and hesitation, he finally accepted their call.

  It cost him his teaching job quickly, but he knew that was coming. Then the school officials tried to lure him back and stop the legal wheels from turning, but it was too late for that. By November, DeLaine had secured the names of twenty people willing to sign on as plaintiffs in a new lawsuit. First among them, alphabetically, was Harry Briggs, a thirty-four-year-old navy veteran and father of four who worked at a filling station in Summerton. His name and that of the school board chairman would be paired in the title. The suit was filed later that month in the federal district court in Charleston—Judge J. Waties Waring’s court. A year later, on November 17, 1950, Thurgood Marshall went before Judge Waring for a pretrial hearing. Three and a half years after R. W. Elliott first denied them a bus, the black petitioners of Clarendon County were about to get their day in court. It would be another three and a half years before justice was done in Briggs v. Elliott.

  As the South Carolina case was moving by fits and starts toward the courtroom, Marshall and the NAACP Legal Defense Fund were struggling for consensus on matters of policy and strategy that would profoundly affect Briggs and all the other school cases. Throughout his twelve years as the association’s legal director, Marshall had never faltered in his personal commitment to the long-term goal that his Howard University mentor, Charles H. Houston, had spelled out in 1935: “the abolition of all forms of segregation” in American law. But Marshall had grave doubts that the Supreme Court under Chief Justice Fred M. Vinson was ready to overturn Plessy v. Ferguson’s “separate but equal” principle and declare that segregation itself was a violation of the equal rights provisions of the U.S. Constitution.

  Marshall didn’t want to gamble on that point and risk losing everything. The old strategy had been to compel the transgressors to pay the price of making separate equal, or else desegregate. The lawyers had pried open the graduate and professional schools of almost a dozen states with that approach, and those were gains they didn’t want to jeopardize by trying to make segregation unlawful—and risk losing both the battle and the war in the process.

  But others, led by Howard University law professor James M. Nabrit, Jr., an old friend and colleague of Marshall’s, were ready for a frontal attack on segregation—the Charles Houston vision—in part because the old approach was simply not wor
king well enough or fast enough. Higher education was Exhibit A for that argument too: Only token desegregation was taking place in most graduate and professional schools; undergraduate programs generally weren’t affected at all; and in five states—Mississippi, Alabama, Georgia, South Carolina, and Florida—higher education was still totally segregated. (In Florida, forty-three-year-old Virgil D. Hawkins’s 1949 application to the state’s only public law school was then in court—and would stay bottled up there for eight years.) Nabrit’s position was to force the Supreme Court either to declare that segregation was unconstitutional or “take the blame if it dares to say to the entire world, ‘Yes, democracy rests on a legalized caste system; segregation of races is legal.’ ”

  When these issues were thrashed out at an NAACP conference in June of 1950 (two months after Houston died of heart disease), Marshall came around to the conviction that they could attack segregation head-on without surrendering the minimum gain of separate-but-equal funding. At his urging, the NAACP board of directors approved a resolution making “education on a non-segregated basis” the primary goal to be sought by its attorneys. Thereafter, the Legal Defense Fund focused the lion’s share of its resources on overturning the laws and practices governing racial segregation in public elementary and secondary schools.

  Coming before Judge Waring in the pretrial hearing on the Briggs case that November, Marshall was playing his new policy close to the vest. If he were still suing for equalization of programs and funding, this would be the case and the court for it; the facts clearly supported his argument, and Judge Waring had certainly shown his belief in the principle of equity. But the rules of judicial procedure required a three-judge panel for cases questioning the constitutionality of state laws, and that could mean that Marshall would end up on the short end of a two-to-one decision. If he had to take that on appeal to the Supreme Court—and if they ruled against him on the constitutionality of segregation—he and his Clarendon County plaintiffs could come away with nothing, not even equalized funding.

  While Marshall was pondering all this and trying to figure out how he could attack the legality of segregation itself and still keep the case in Waring’s court, the judge surprised him by suggesting that he refile his complaint with an explicit claim that the Clarendon schools were unconstitutionally segregated. Apparently, Waring was eager to see the larger question raised in his court, even if two other judges less sympathetic to it than he were hearing it with him; Marshall, on the other hand, was just as eager to avoid a three-judge panel. Waring got it his way: The first suit was withdrawn, and a new one was filed a month later. The case was set for trial in May 1951.

  By this time, Waties Waring and his wife were so estranged from their former friends and associates in Charleston that their contacts away from the courtroom were largely confined to their black friends in the city and those of both races who reached out to them from afar. Such was the hostility that flowed between the Warings and their enemies that neither side could any longer find a trace of virtue in the other. From both came such expressions of self-righteous certitude and hypersensitivity that it was hard to sort out fact from fiction. Would white Charlestonians have acted more charitably toward Waties Waring if he had ruled against segregation but never divorced his first wife? Would they have ostracized him if he had divorced but not ruled? Would Waring have changed his mind about white supremacy if he hadn’t married Elizabeth Avery? The questions are intriguing, but unanswerable.

  One thing was crystal clear, though: J. Waties Waring and his wife were outspokenly and unequivocally committed to the principle of racial equality, and their adversaries in the South Carolina power structure, from Governor Byrnes and former Governor Strom Thurmond to the judge’s nephew Tom Waring at the Charleston News & Courier, were just as devoted to the cause of white supremacy. Having passed his seventieth birthday, the judge was looking beyond the Briggs case to the prospect of his retirement, and escape from his smothering isolation under a magnolia blanket. But first he hoped to “preach a sermon” in what was to be his last major ruling.

  Riding south on the Atlantic Coast Line’s overnight run from New York to Charleston, Thurgood Marshall was heading for the courtroom battle in Briggs v. Elliott in a mood of relaxed good humor that cloaked his nervous concern. This was the start, he knew, of another phase in the long struggle for racial equality. The odds were long, the stakes were enormous—and the first skirmish was going to take place in the historic city where Rebel gunners had fired the first shot of the Civil War.

  “We joked a lot on that ride,” psychologist Kenneth B. Clark would recall later. He was to be an expert witness, testifying to the psychological effects of segregation on black children. Robert L. Carter, the Legal Defense Fund’s number-two lawyer, was also in the traveling party, and when the train pulled into Richmond early that evening, a fourth man joined them: thirty-four-year-old Spottswood W. Robinson III, a quiet, scholarly attorney who, with his partner, Oliver W. Hill, represented the NAACP in Virginia. One of the pleasures of this journey for the four men was the knowledge that their table in the dining car and their Pullman accommodations were rights and privileges the Legal Defense Fund had won for all Americans of color.

  Just hours before Spottswood Robinson came to the train station on that May evening in 1951, he had been to the federal courthouse in Richmond to file suit in another case that would become a link in the Brown chain: Davis v. County School Board of Prince Edward County. Unlike the others, Davis originated not with adults but with students—the entire student body, in fact, of a black high school where painfully obvious inequities had been ignored for so long that it took a strike to get anybody’s attention. The cool-headed organizer of the walkout, sixteen-year-old Barbara Rose Johns, was an inspiration to Robinson. So was the Reverend L. Francis Griffin, a Baptist minister and Prince Edward’s answer to J. A. DeLaine down in Clarendon County. As the train rolled on across North Carolina, the Richmond attorney told his companions the essence of the story, and they talked about how the case might tie in with Briggs.

  The South that passed by them in the darkness of that warm spring night was teetering like a blind man on a tightrope, unsure of the right steps to safety. Jimmy Byrnes, newly installed as South Carolina’s governor, had already warned that his state would “abandon the public school system” before it would give up segregation, and that sentiment was echoed by his recently reelected Georgia neighbor, Governor Herman Talmadge. Congress had been stirred to a frenzy by Joe McCarthy’s anti-red screed in the Senate and General MacArthur’s sacking in Korea. Claude Pepper and Frank Graham were goners, Harry Truman was on a slippery slope, W. E. B. Du Bois was on trial in New York—and now these outsiders, these “colored lawyers from up North,” were about to get up on the firing range in Charleston, South Carolina, and draw a bead on school segregation. When they stepped off the train into that venerable anteroom of the Old South, the NAACP team was as wary and circumspect as a diplomatic delegation to the camp of the enemy.

  Though nothing especially dramatic would happen during the two-day trial, the cast of characters gave the event an air of drama and portent that raised it to the level of a morality play. There were, first of all, the lawyers: Marshall’s Legal Defense Fund on one side, and on the other, a clever and skillful Charleston attorney named Robert McCormick Figg, Jr., a former prosecutor with political connections in high places (he had raised funds for Strom Thurmond’s Dixiecrat adventure) and a long list of prominent clients in government. Assisting him was the leading attorney in Clarendon County, aristocratic S. Emory Rogers, a man with impressive credentials as both a student and a teacher of law in several top universities, North and South.

  A number of expert witnesses had been sought by each side, but the ones who testified were less revealing of the South’s state of mind regarding race than the ones who didn’t appear. Robert Carter’s search for a white social scientist from a Southern university turned up no one who would dare to criticize segregation
from the stand; the closest he could get was a young Ohioan in the lower ranks of the University of Louisville’s political science department, and he was an ineffective witness. Figg and Rogers went to Chapel Hill to plead with Howard Odum and Guy Johnson to appear for the defense, but neither would do it, though Figg did quote Odum in court, and the attorney later claimed that both of the University of North Carolina sociologists “felt very strongly that at the present time … it would be disastrous to force mixed schools” in the South.

  The sitting judges were a study in themselves: J. Waties Waring, the “host” jurist—intense and determined, a besieged liberal prophet without honor in his own town; George Bell Timmerman, another South Carolina district judge—a segregationist without reservation or apology, and a certain vote for the defense; and the senior jurist, John J. Parker, chief judge of the Fourth Circuit Court of Appeals—a North Carolina Republican with more than twenty-five years on the bench. Back in 1930, the U.S. Senate had failed by just two votes to confirm Parker’s nomination to the Supreme Court—partly because he was the nominee of an unpopular president, Herbert Hoover, and partly because of a skillful lobbying effort by Walter White, a rising young political activist on the staff of the NAACP. Ironically, Parker went on to compile an enviable record of fairness and moderation on the circuit court—consistently better than the man who got the Supreme Court seat he was denied.

  The ubiquitous Johnny Popham of the New York Times was also in the Charleston courtroom, reporting for his paper, and so was Ted Poston of the New York Post. But of all the characters on this stage, none stood out more impressively than the throng of black citizens who came to listen and watch. J. A. DeLaine and Harry Briggs had left Summerton at dawn, leading a convoy of battered automobiles on the two-hour drive to Charleston. Other spectators joined them there to form a double line that began at the courtroom doors on the second floor of the Federal Building and wound along the hallway, down the stairs, out the front door, and around the corner of Broad and Meeting Streets in the heart of the old city. When the courtroom doors were opened, those at the head of the line filed through in orderly fashion, and the two hundred or so unsegregated spectator seats were quickly filled. Few whites other than participants and reporters were present in the small room; that privilege fell to the envoys of the aggrieved, and their silent witness was eloquent. It was as if, said Judge Waring later, “they had come there on a pilgrimage.”