by John Egerton
When the hearing opened, attorney Figg surprised the judges and the plaintiffs by conceding that “inequalities in the facilities, opportunities, and curricula of the schools of this district do exist.” (They were not just unequal, he would say later—“they were very embarrassingly unequal.”) The defense strategy began to unfold: concede inequality, point to the state’s new plan to bolster spending on black schools, and plead for time to equalize facilities and resources; don’t say never—say not now, and avoid saying when; and as for segregation, it had been the law for a long time (Congress itself had segregated the schools of the District of Columbia), so the lawyers saw that as a settled issue.
Thurgood Marshall had intended to use some of his time establishing proof of inequality; now he had no need to do that, and his plan of attack was diverted. Some of his witnesses were not yet present. Instead of taking the fight to his opponents, he had been thrown on the defensive by them. He finally recovered and finished strong, but the testimony was not persuasive, and the entire proceeding had an anticlimactic air.
The conclusion was probably foregone too. Timmerman was a sure vote for continuing segregation, Waring was equally as firm for ending it, and Judge Parker was not prepared to overrule the Plessy “separate but equal” standard. Three weeks later, on June 23, he issued the written opinion, Timmerman concurring: “If conditions have changed so that segregation is no longer wise, this is a matter for the legislatures and not the courts.” The defendants were ordered to equalize educational facilities in Clarendon County “promptly.”
Waties Waring’s dissent was his swan song from the bench. The only question before the court was the doctrine of segregation, he declared. The Fourteenth Amendment was intended to guarantee the black minority their “full rights as citizens,” but it was still an unkept promise. Segregation was harmful to white as well as black children. “Segregation in education can never produce equality. … Segregation is per se inequality.” The sermon he had hoped to preach didn’t soar rhetorically, but it made the key point.
The embattled judge and his wife spent much of the rest of the summer away from Charleston. Waring’s biographer, Tinsley Yarbrough, found in the couple’s correspondence and other papers clear signs of their keen disappointment with the outcome of the hearing and with Marshall’s “insufficiently militant” handling of the plaintiffs’ case. By his own admission, Waties Waring was no longer an adjudicator but an advocate. “I’ve got a cause to live for and a job to do,” he told a reporter from Ohio. “What can they do to me, at seventy-one, that would matter?” For their part, the Charlestonians who now detested him seemed only to wish he would go away.
He was only too happy to oblige them. On January 28, 1952, two days after he was eligible to retire with full salary, Judge Waring announced that he was leaving the bench. Less than a month later, he and his wife went by train to New York, there to live until the judge’s death, in 1968. He would speak from time to time nostalgically about the beauty of Charleston, but he had nothing good to say about his adversaries there, nor they about him. His one and only return to the city of his birth was to be in a coffin. Fewer than a dozen whites would join the hundreds of black mourners at his funeral.
Conservative South Carolina hadn’t been prodded to change its ways by Waring’s withering blasts from the bench, and it wouldn’t change much after he was gone. The long-suffering Reverend J. A. DeLaine took some comfort from Judge Waring’s dissent and clung to the hope of further relief in the Supreme Court, but the Summerton minister’s personal burden grew heavier in October 1951 when his home was destroyed by a fire of mysterious and suspicious origin. Later reports from Clarendon County promised that some new school facilities for black children would be in place by the fall of 1952. Judge Parker’s ruling was appealed to the Supreme Court, which sent the case back for rehearing—but this time, Judge Waring would not be there to write a dissent.
John H. McCray, the combative editor of the Lighthouse & Informer in Columbia, understood better than most South Carolinians what the fuss over Briggs was all about. Shortly before the hearing, he had written that “the burning question” in the state was “whether or not segregation of the races in education shall be continued.” The South had neither the capability nor the readiness to maintain two separate school systems, he declared. “It doesn’t have the money to operate a first-class system for whites, let alone another for Negroes.”
When blacks began to analyze their predicament in the postwar years, said McCray, they saw that their best chance was in the courts—and whatever progress they have made “has come as a direct appeal to the courts. … The political bosses of this state have never acted decently until and unless they had the club of a policeman over their head. … And the only policeman they fear is the federal courts.” The Briggs case would give both races equality of opportunity, he predicted: “In the America for which we labor, fight and die today, there are no Negro, no white, no racial children. They are all just children, and any teacher not prepared to teach all of them isn’t prepared to teach any of them.”
After Briggs, McCray wrote that he had “a very strong feeling that when the case is finally decided, Judge Waring will be—once again—the man way ahead of the rest of the South.”
Virginia’s entry in the Brown derby, Prince Edward County, presented a good example of the honeycomb of subtle differences beneath the common stereotype of “the solid South.” On the surface, this looked like just another isolated agricultural jurisdiction with a large black underclass and the usual patterns of garden-variety segregation. True enough, as far as it went—but Prince Edward was tobacco country, and that meant smaller farms and more individual landowners, black and white. The population was smaller, too, and more evenly divided, with about eight thousand whites and seven thousand blacks, and among the leading citizens of both races there were men and women of education and accomplishment, culture and refinement, manners and civility, who would have considered it positively un-Virginian to resort to violence and lawlessness over any matter of personal dispute.
The schools were every bit as segregated and unequal as Clarendon County’s, and blacks didn’t have the ballot (nor did all that many whites), and of course the churches and other institutions, including two colleges, were racially exclusive. But if there was any one symbol of the intangible quality of quiet dignity and self-respect that could be found among black citizens in Prince Edward County, it was this: The First Baptist Church on Main Street in Farmville, the county seat, was the leading black church; Farmville Baptist Church, one of the county’s largest white congregations, anchored another block nearby on the same side of the downtown avenue. Never the twain did meet—but at least there was a twain, a semblance of separate equality.
And First Baptist had, in the Reverend L. Francis Griffin, a man who was in every respect the equal of Farmville’s finest. A fourth-generation minister, he had grown up there under the watchful gaze of his father and a dynamic occasional visitor and sometime resident, the Reverend Vernon Johns. (The college- and seminary-trained Johns was a man of dazzling intellectual and oratorical skills who went on to serve the Dexter Avenue Baptist Church in Montgomery, Alabama, for almost a decade after World War II before leaving in 1954 to make way for a young seminary graduate, Martin Luther King, Jr.) The younger Griffin roamed afield to test his own wings in the late thirties, fought in Europe with an all-black tank battalion, and then went to college and into the ministry. He was thirty-two years old when the congregation at First Baptist called him in 1949 to fill his late father’s shoes. Like so many black ex-GIs, he had seen enough of freedom to have an unquenchable thirst for it. As soon as he got settled, he organized a local chapter of the NAACP.
Farmville and Prince Edward County had been languishing in a sort of antebellum time warp until the postwar stirrings of social change jostled them awake. In the peculiarly elitist manner of so many Virginians, the community didn’t even build a white high school until the 1920s (the w
ealthy had their children tutored at home, or sent them away for “finishing”)—and for blacks, not until 1939. Robert R. Moton High, named for a native son who followed Booker T. Washington as the head of Tuskegee Institute, had room for 180 students when it opened; by 1950 its enrollment was almost triple that number, and youngsters were spilling out into a tacky string of poorly constructed temporary buildings—nothing more than tarpaper shacks.
It was this facility, so obviously and insultingly unequal to the high school for whites, that became the focal point in Davis v. County School Board. On a Monday morning in April 1951, a small group of students, led by Barbara Johns, staged a carefully planned assembly at which the entire student body of 450 rose up in protest and marched out on strike. The principal, M. Boyd Jones, was away from the school at the time, and no teachers prevented the walkout. Barbara Johns, a junior barely sixteen years old—and a niece of the Reverend Vernon Johns—was eloquent and persuasive in her assertion that the white authorities had never given them their fair share under the “separate but equal” formula, and never would unless forced.
It was all very orderly and dignified—and effective. Instantly, the attention of the entire community was riveted on the issue. New developments came in rapid-fire succession: The students called in L. Francis Griffin to advise them; he put them in touch with NAACP attorneys Oliver Hill and Spottswood Robinson in Richmond; hundreds of black residents met with the lawyers and student leaders, first at the high school and then at the Reverend Griffin’s church; they endorsed a lawsuit attacking segregation; the all-white county school board fired Principal Jones and announced plans to build a new Moton High School; Barbara Johns’s parents, fearing for her safety, sent her to live with her uncle Vernon in Montgomery; and the suit, Davis (first-named of the student plaintiffs) v. County School Board of Prince Edward County, was filed in federal court on May 23, 1951, five days before the Briggs trial was to begin in Charleston.
Pressure on black adults to intervene and defuse the protest was steady and intense. It surfaced briefly in Griffin’s church that summer when some of his flock tried to remove him for his spirited encouragement of rebellion. He met the challenge with a thundering sermon. “I would sacrifice my job, money, and any property for the principles of right,” he declared, “and I’m willing to die rather than let these children down. No one’s going to scare me from my convictions by threatening my job. All who want me to stay as the head of this church, raise your hands.” If there was a soul present who kept still, the record didn’t show it.
The case came before a three-judge court in Richmond on February 25, 1952. The Prince Edward defense, bolstered by the participation of Virginia Attorney General J. Lindsay Almond, Jr., a former judge and congressman (and later to be the state’s governor), took the same tack as the Clarendon lawyers: Plead no contest on the equality issue, promise to begin correcting the disparities, and defend segregation as customary, moral, and lawful. The plaintiffs, represented by NAACP attorneys Robert Carter, Oliver Hill, and Spottswood Robinson, managed to hold their own during the five days of sometimes tense and acrimonious exchanges, but they knew from the makeup of the bench that their chances of victory were slim to nonexistent.
The presiding judge was Armistead M. Dobie of the Fourth Circuit Court of Appeals, a former University of Virginia law school professor and dean. (He would also take part in the rehearing of the Clarendon case, replacing Judge Waring.) He had been a close colleague of Judge John Parker for more than a decade, and seldom voted contrary to him. The other two men hearing this case with Dobie were district judges in Virginia, and nothing in their past performances gave any hint of exceptionality.
In his summation, Attorney General Almond declared that Virginia would not follow a course of deliberate defiance if the courts eventually outlawed segregation—but, presuming to speak for “our people,” he said segregation was “morally and legally defensible,” and they would close down the public schools rather than be forced to integrate them. (Eight years later, it would be Governor Almond who did exactly that, ordering school closings in three Virginia cities before bowing to a federal judge’s threatened contempt-of-court ruling against him; Prince Edward officials, meanwhile, would go on to close their school system and keep it closed for five years.)
It took Judge Dobie and his colleagues only a week to issue a unanimous ruling to the effect that segregation in Virginia schools rested on the mores and traditions of the people, and was legal and harmless—but it ought to be equal, according to the law, so Prince Edward County should work to make it so “with diligence and dispatch.” No timetable was suggested.
The Briggs case was reheard in March, and this time all three judges sided with the defendants. Now Marshall and his Legal Defense Fund forces had stinging and unequivocal defeats from South Carolina and Virginia to take on appeal to the Supreme Court, along with three other more complex and ambiguous rulings from Kansas, Delaware, and the District of Columbia. As it neared adjournment in June 1952, the high court announced that it would hear arguments in two of the cases in the fall; then, in October, the pieces began to fall into place for a full-scale hearing and oral arguments on all five appeals beginning December 9. The five were bracketed as a single entry, arbitrarily given the name of the Kansas case, Brown v. Board of Education of Topeka.
As the showdown approached, intense pressure was building on all sides. South Carolina retained former Democratic presidential nominee John W. Davis—“the most accomplished and admired appellate lawyer in America,” according to Richard Kluger—to join Robert Figg in the Clarendon defense. The lame-duck Truman administration, waiting for the January inauguration of Dwight Eisenhower, weighed in with a friend-of-the-court brief from the Attorney General’s office; written by a veteran solicitor, Philip Elman, the document argued that the court should overturn the Plessy doctrine as a violation of the equal-rights provisions of the Constitution, and should give school districts “a reasonable period of time” to make “progressive adjustment to a non-segregated system.” At the NAACP, Thurgood Marshall and the Legal Defense Fund staff worked frantically to hone their arguments for the coming drama before the Supreme Court.
Among those in the hushed audience that packed the courtroom for the three days of debate in December was the Reverend Joseph A. DeLaine—still waiting quietly, faithfully, for the complex and seemingly endless process to yield a wise answer, one worthy of a Solomon or a Moses. Fortunately, the South Carolina minister’s patience was not exhausted.
After the hearing, the justices wrestled with the cases behind closed doors through the first six months of 1953; then, just before adjournment for the summer, they announced yet another postponement and the scheduling of more oral arguments in the fall, at which time Eisenhower’s Attorney General, Herbert Brownell, would be asked to file a brief. (This he subsequently did, agreeing with his predecessor that segregation was inconsistent with the Constitution, but equivocating on the question of what the court should do about it.) In a stunning and disruptive turn of events, all sides in the vitally important school cases had yet another adjustment to make when Chief Justice Fred M. Vinson died suddenly of a heart attack in September. President Eisenhower, returning a campaign favor, named California’s third-term governor, Earl Warren, to the top seat on the court.
Fresh troops would be recruited to help prepare for this last round of arguments. The NAACP’s budget was seriously strained, but the association got a number of attorneys and scholars to assist voluntarily in the intensive effort. Among them were at least four Southern expatriates: Charles L. Black, a Texan turned Ivy League law professor; President Horace Mann Bond of Lincoln University in Pennsylvania, whose roots were in Kentucky and Tennessee; and two historians of national stature—Howard University’s John Hope Franklin, an Oklahoma native and Fisk University alumnus, and C. Vann Woodward of Johns Hopkins University, an Arkansan with degrees from Emory and North Carolina. Black’s strength was his expertise in legal theory; the other
three drew upon their knowledge of educational and social history to draft background papers putting the school desegregation issue into historical context. No resident Southern scholars risked involvement with either side in the great debate.
And then, finally, the last three days of questions and answers and arguments rose to an oratorical cry and fell to a histrionic whisper in the marble mausoleum that housed the United States Supreme Court. When every man had had his say and Chief Justice Warren gaveled the last session to adjournment on December 9, 1953, both sides had some reason to hope that a five-to-four or six-to-three ruling would favor them. The combatants and the adjudicators—indeed, the South and the nation—would have five more months to ponder the question: Was the promise of equal justice under law, chiseled into the very stone above the Supreme Court’s entrance, meant to be taken literally—or did it mean separate but equal justice under law?
For at least two years before the court’s ruling in Brown, anyone who was paying the slightest attention to the daily news in the United States knew that a momentous decision was coming on the question of school segregation. Newspapers and magazines reported at length on the five cases as they made their way through the murky channels of judicial review. The Saturday Evening Post ran a major piece by Virginius Dabney (“Southern Crisis: The Segregation Decision”) in one of its November 1952 editions. Hodding Carter’s articles explaining the South (some critics would say he was defending it, others that he was attacking it) appeared frequently in the Post, Look, Colliers, and the Sunday magazine of the New York Times, and Ralph McGill’s byline was likewise familiar in most of the same publications.