Resolution
1954 Decision |
Illinois Commission on the 50th Anniversary Legal Context of Brown v. Board of Education |
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Living during this 50 th year of the Anniversary of the United States Supreme Court decision in Brown v. Board of Education of Topeka, Kansas, much has been written about the moment when Oliver Brown took the hand of his young daughter Linda, walked to the neighborhood elementary school, and asked the school official to enroll her. As our history books tell us, Linda was not allowed to attend Sumner School, but instead was required to travel to another part of town to the segregated Monroe School, which the City of Topeka had established in accordance with the laws of the State of Kansas. This celebrated event, a caring parent seeking to provide his child with an opportunity to receive the best education available in a setting that included her neighborhood friends, is followed by an equally decisive event when Oliver Brown agreed with twelve other parents to permit lawyers from the NAACP (National Association for the Advancement of Colored People) to file a lawsuit in Kansas; which would ultimately reach the halls of the United States Supreme Court. These two moments -- the private visit by a father to a principal's office and the public filing of a lawsuit -- best highlight the proper legal context for understanding the Brown decision. Brown is about real people. But, it is also about the roles that real people play. First, in a legal system, you must have "clients," who are willing to stand up for the rights of their children, despite the sacrifice. You must have lawyers laboring under difficult circumstances to represent those parents. You must have a team of lawyers, such as the NAACP attorneys working with Charles Hamilton and Thurgood Marshall to build legal precedents to support an argument to overturn longstanding laws. Finally, you must have our Nation's court system with Justices willing to unanimously overturn a legal precedent that was the Law of the Land for many years to achieve a resolution. The legal context of Brown is the struggle of people to seek justice, which is still not completely fulfilled. Yet, in this year of 2004, it is easy to forget that the Brown decision did not begin in 1950. During this 50 th Anniversary, Linda Brown Henderson and her sister Cheryl Brown Henderson have traveled across the Nation, including a wonderful visit to the campus of the University of Illinois at Champaign/Urbana, to participate in speaking engagements and seminars as well as write about their family's experience with the historic case that bears their family's name. In telling their story, they always remind the audience that they did not stand alone. Instead, hundreds of families stood with them in the five lawsuits consolidated before the U.S. Supreme Court. They also reflect on the fact the Brown decision did not begin in 1950 with Linda's walk with her father to Sumner School. Rather, the Brown decision was a culmination of over a hundred years of sacrifice, hard work, disappointment and success recorded in the timeline of legal battles. Such is the true spirit of the legal context of the Brown decision. It is a tale of tens of thousands of mothers and fathers, sons and daughters and their lawyers toiling from the very beginning of our Republic. It is "altogether fitting and proper" echoing the words of Abraham Lincoln in his Gettysburg Address, therefore, that in order to place the Brown decision in its rightful legal context that we offer illustrations of the people who participated in the legal struggles that led to the U.S. Supreme Court's pronouncement: |
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We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. |
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The Legacy of Prince Hall http://www.pbs.org/wgbh/aia/part2/2p37.html Prince Hall, one of Boston's most prominent African American citizens during the revolutionary period, was the founder of the African Lodge of the Honorable Society of Free and Accepted Masons of Boston, the world's first lodge of black Freemasonry and the first society in American history devoted to social, political, and economic improvement. In 1787, Prince Hall submitted his first petition to the Boston School Committee for equality in education.
In 1773 and 1774, both free and enslaved blacks submitted five different petitions to the Massachusetts General Court (the state House of Representatives), urging an end to slavery and the granting of certain rights. |
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Petition of Prince Hall - 1/13/1777 http://www.pbs.org/wgbh/aia/part2/2h32.html |
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To the Honorable Counsel & House of Representatives for the State of Massachusetts Bay in General Court assembled, January 13, 1777: Courtesy of Massachusetts Archives
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Resources: From the moment Prince Hall submitted his first petition to the Boston School Committee for equality in education in 1787, to the moment the Massachusetts House of Representatives integrated the Boston Public Schools in 1855, Black Bostonians fought legislatively, socially, and politically for the education of themselves, their children, and their brethren across the country. In October 1787, Prince Hall, founder of African Masonic Lodge No. 459 and early leader of nineteenth-century Black Boston, sent a petition to Boston's School Committee. The petition was signed by over 40 members of Boston's growing African American community, and was filed in response to the city's increasing anti-black, racist legislation of the late eighteenth and early nineteenth centuries. In addition to anti-miscegenation laws, Black codes, and legislative sanction of the international slave trade, Boston provided a background of constant harassment, discrimination, and racist assault that made many Black citizens fearful of participating in predominately White institutions. Thus, despite the fact that African Americans were not legally prevented from attending White schools, most Black Bostonians wanted independent Black schools for the education of their children. Although the school committee refused to establish a Black public school, Primus Hall (Prince Hall's son) established a private school in his home on the corner of George (later Hancock) and May (later Revere) Streets on the North Slope of Beacon Hill. The school, however, was not publicly funded and relied on donations by Black parents and a few White philanthropists. It was also sparsely attended, due to a yellow fever epidemic that swept through the neighborhood in the late 1790's; in addition, most Black children were valuable members of the labor force for their families and had to work during the day. Undaunted, Prince Hall and 67 other Black community leaders (including George Middleton) petitioned the school committee again in 1800, and were again denied funding for a Black public school. When the African Meeting House was built in 1806, the African School, formerly located in Primus Hall's home, moved to the church's basement; for six years, the student body fluctuated between 40 and 80 students per year. The Smith School did provide Black educators with a forum to educate their communities. John Russworm, for example, was the first African American accepted to an American college and taught at the Smith School from 1820 to 1824. However, most of the teachers and headmasters at the Smith School were White. This was a fact that worried Black parents, especially when Abner Forbes (headmaster from 1833 to 1844) was accused by some members of the Black community of cruelty and excessive discipline, dereliction of duty, and "entertaining opinions of the intellectual character of the colored race of people, that disqualify him to be a teacher of colored children." Continuing pressure from Black parents and community leaders led the Boston School Committee to move Forbes from headmaster of the Smith school to headmaster of another school in the city. This move further angered many African Americans who thought that Forbes' discriminatory treatment of Black students should be grounds for dismissal. Schneider, Mark R. Boston Confronts Jim Crow: 1890-1920. Boston: Northeaster University Press, 1997. Comments
It is a further irony that not only was Sumner's legal argument rejected by the Massachusetts Supreme Court, but that the Roberts decision was cited and relied upon by the United States Supreme Court in its most famous Jim Crow case of Plessy v. Ferguson, which established the principle of "Separate, But Equal," and which the Brown case finally overturned.
School Lawsuits of the 1800's Selected from: And few people know that black parents in a dozen states mounted legal challenges to segregated public schools during the five decades that preceded the Supreme Court’s approval in 1896 of “separate but equal” facilities in the Plessy case. The story of these nineteenth—century school cases offers an illuminating contrast to the twentieth—century legal assault on Jim Crow schools, launched by the National Association for the Advancement of Colored People and commanded by Thurgood Marshall, the best—known and most successful civil rights lawyer in American history With only one exception, none of the lawyers who argued the earlier school cases had any renown, and none of the cases had the backing of an established, influential organization. What these cases do show, however, is that black parents—with little money or public support—were willing to stand up for their children and fight for integrated schools. They faced a legal system that was virtually all white, judges who displayed no understanding of the harms imposed on black children by enforced segregation, and the hostility of most of their white neighbors and fellow citizens. The Roberts decision, which gave elected officials the power to decide that the interests of black and white children “will best be promoted” by separate schools, became the standard for judges in other states, even after the Fourteenth Amendment—added to the Constitution in 1868—directed the states to guarantee every person “the equal protection of the laws.” Ruling in 1871, the Ohio supreme court decided a challenge to a law passed by the state legislature in 1864, permitting local school boards to provide “one or more separate schools for colored children” in districts with more than twenty school-age black children. Those districts with fewer than twenty black children could send them to black schools in an adjoining district. School officials were not required to segregate children by race, but many Ohio districts took advantage of the law that allowed them to establish Jim Crow schools. John McCann, a black parent with three children, lived in a rural township near the state capital of Columbus, in a school district with fewer than twenty black children. A neighboring district had a black school, but McCann enrolled his children in the nearby white school, where the teacher “wholly neglects and refuses to impart instruction to them,” noted the Ohio court in its opinion in State v. McCann. The district’s lawyer argued that local boards could act “with due regard to the peculiar circumstances, wants, interests, and even prejudices, if you please, of each particular locality or neighborhood.” The school board in McCann’s district could have allowed his children to attend the local school, but ordered the teacher to ignore them. Such an order, the lawyer claimed, lay within the board’s “police powers” to determine which students would be admitted to the schools. The Ohio court upheld the board’s power to withhold an education from the three McCann children. During the time McCann “insisted on having his children instructed” in the local white school, the court noted, "an equally good school was open for them in the joint district established for colored children, as provided by law where they could enjoy the full advantages and privileges of a public common school.” The judges agreed that “the real question in this case” was whether the Fourteenth Amendment barred Ohio from allowing local boards to segregate their schools. “We are not aware that this has been as yet judicially settled,” they conceded, since the amendment had been ratified just three years earlier. Rather than taking a stand on this question, they fell back on the opinion Chief Justice Shaw had written in the Roberts case, twenty years before the Fourteenth Amendment had been ratified. The Ohio judges echoed Shaw in leaving to “the wisdom and discretion of some proper authority” the power to act “in a manner to promote the best interests of all:’ Ruling that McCann’s children enjoyed “equal school advantages” with their white neighbors, the judges ignored the disadvantages of having to travel to another township to attend school, and being forced into separate schools to accommodate the admitted “prejudices, if you please’ of the whites in their township. “Equality of rights does not involve the necessity of educating white and colored persons in the same school,” the Ohio judges concluded. Three years after school segregation was upheld in Ohio, the California supreme court faced the issue of Jim Crow schools in San Francisco. The state legislature had directed in 1870 that schools in each district would “be open for the admission of all white children,” and that “the education of children of African descent, and Indian children, shall be provided for in separate schools.” On July 1, 1872, Harriet Ward took her eleven-year-old daughter, Mary Frances, to the Broadway Grammar School, the closest public school to their home. In her statement to the court, the black mother said that Noah F. Flood, the school’s principal, “at once politely, but firmly and definitively declined” to enroll Mary Frances, solely because “she was a colored person:’ Flood told Harriet Ward “that he was sorry to be compelled for that reason” to turn away her daughter. The California supreme court based its ruling in Ward v. Flood directly on Chief Justice Shaw’s holding in the Roberts case, once again brushing aside the fact that it preceded the Fourteenth Amendment by two decades. More than half of the opinion in the Ward case, in fact, consisted of lengthy quotations from Shaw’s opinion, including his statement that the interests of both races “will best be promoted by maintaining the separate primary schools for colored and for white children:’ The California judges dealt with the Equal Protection clause with the disingenuous statement that when “the races are separated in the public schools, there is certainly to be found no violation of the constitutional rights of the one race more than of the other, and we see none of either, for each, though separated from the other, is to be educated upon equal terms with the other, and both at the common public expense.” The argument that segregation affects both races equally, because white children are barred from attending black schools, could appeal only to judges who deliberately ignored the reality of racial prejudice that created the Jim Crow system. But this argument, however absurd, cropped up in legal briefs and judicial opinions during the eight decades that followed the Ward decision. The first school segregation case to come before federal judges involved the state of Louisiana, whose constitution during the Reconstruction period had prohibited separate schools. The white lawmakers who took control of the legislature in 1877 promptly rescinded this provision and required all districts to segregate their schools. A black parent in New Orleans named Bertonneau—most likely a mixed-race Creole with French ancestry—sued the city’s school officials to admit his children to the white school that was closest to their home. William B. Woods, the federal judge who decided the case in 1878, tossed out the complaint without a hearing. His opinion, just three paragraphs long, suggested that the case was too simple for extended discussion. Judge Woods noted that New Orleans provided schools for children of both races, although Bertonneau’s children were forced to attend a segregated school. “Is this a deprivation of a right granted by the constitution of the United States?” Woods asked. He found no such right in the Fourteenth Amendment. “Both races are treated precisely alike,” he wrote. “White children and colored children are compelled to attend different schools. That is all.” Again echoing the words of Chief Justice Shaw in the Roberts case, Judge Woods held that Louisiana had “the right to manage its schools in the manner which, in its judgment, will best promote the interest of all.” Although it sits just north of the Mason-Dixon line and did not join the Confederacy, Indiana was distinctly hostile to blacks, before and after the Civil War. The southern part of the state, across the Ohio River from the slave state of Kentucky, harbored many nests of “Copperheads,” the Confederate sympathizers named after the poisonous snakes that found camouflage among the mottled leaves in wooded areas. The Indiana legislature revised its constitution in 1851 to prohibit “negroes and mulattoes from coming into or settling in this state,” barred those who already resided in the state from voting, and made blacks “a separate and distinct class of inferiors before the law,” as the Indiana supreme court stated. Before 1869, Indiana provided no public schools for black children; in that year, the legislature decreed that school officials in each district “shall organize the colored children into separate schools:’ In 1878, Robert Carter, the father and grandfather of four school-age black children, tried to enroll them in a white school in Marion County, the seat of the state capital, Indianapolis. When school officials refused to admit the black children, Carter filed suit against the school board president, Samuel Cory, and won a ruling from a county judge that local school officials must admit the children to the nearby white school. The majority in King v. Gallagher felt compelled to decide whether the 1850 state law had been “annulled by the paramount authority” of the Fourteenth Amendment. Their answer was no, because the “privilege” of receiving an education was “created and conferred solely by the laws of the state,” and could be “granted or refused to any individual or class at the pleasure of the state.” The majority looked to the Roberts opinion for support, and deferred to the prejudices of white voters and lawmakers. “The attempt to enforce social intimacy and intercourse between the races, by legal enactments, would probably tend only to embitter the prejudices, if any such there are, which exist between them, and produce an evil instead of a good result’ the judges wrote. The state guardian who represented Theresa King, at the court’s direction, had conceded that school officials could assign children to different schools on the basis of age, sex, and ability, but had denied that race could be a valid ground for separation. “We think the concession fatal to his argument,” the majority replied. If officials could separate children on other grounds,” how can it be argued that they have not the power, in the best interests of education, to cause different races and nationalities, whose requirements are manifestly different, to be educated in separate places:’ The New York judges cited the decisions of their colleagues in Ohio and Indiana for this dubious proposition. They concluded by advising Theresa King that institutions set aside “for the exclusive benefit of particular races and classes of citizens,” like the Jim Crow schools in Brooklyn, “are generally regarded as favors to the races designated instead of marks of inferiority.” Two judges on the court of appeals could not stomach the genteel racism of the majority. They read the Fourteenth Amendment and New York’s civil rights law which protected the right of every citizen to the “equal enjoyment” of public facilities, as barring any discrimination based on race. School segregation, they wrote, “when enforced by law against the wish of the colored race, is directly calculated to keep alive the prejudice against color from which sprung many of the evils for the suppression of which the Fourteenth Amendment and our own civil rights statute were enacted.” The dissenters cast scorn on the majority’s deference to public sentiment. If lawmakers could segregate the schools, “then with equal plausibility it might be said that the city of Brooklyn could provide parks, streets and sidewalks exclusively for persons of color,” they wrote. This was not the exaggeration it seemed to dissenting judges. Many cities and towns in the South, of course, had segregated all their public facilities, even setting aside whole neighborhoods from which blacks were excluded. State judges decided one more school segregation case in the nineteenth century This case began in Grundy County, Missouri, a rural area with few black residents. The facts cited in the court’s decision were sketchy, but in September 1887, a white parent named Lehew and four others asked a state judge to order the white teachers at the local school to stop instructing the four children of a black parent named Brummell. His were the only school—age black children in the district, and they had attended school without incident until the white parents sued Brummell and the white teachers and board members who had welcomed the black children into their school. The Missouri constitution provided that “separate free public schools shall be established for the education of children of African descent.” Ruling on Lehew’s petition, the county judge granted an injunction “restraining Brummell’s children from attending the school so established for white children,” although the closest black school to their home was in the next to wnship. The case of Lehew v. Brummell gave the Missouri supreme court no difficulty. Its unanimous decision in 1890 cited the Roberts opinion of Chief Justice Shaw and the rulings in the Ohio, California, New York, and Indiana school cases. The Missouri judges borrowed the reasoning and chunks of writing from these earlier cases, tossing aside the Fourteenth Amendment as posing a “simple question” with an easy answer. State lawmakers had found it “expedient and necessary” to establish Jim Crow schools for black children, and the judges would not question their "wisdom” in doing so. The judges conceded that the sole basis for segregating children was color, but “color carries with it natural race peculiarities which furnish the reason for the classification:’ they wrote. “There are differences in races, and between individuals of the same race, not created by human laws, some of which can never be eradicated. These differences create different social relations recognized by all well-organized governments. If we cast aside chimerical theories and look to practical results, it seems to us it must be conceded that separate schools for colored children is a regulation to their great advantage.” Cases of the 1900's Selected from: "Brown v. Board of Education - A Civil Rights Milestone and Its Troubled Legacy" Marshall and others undertook many kinds of cases between 1939, when the Fund was founded, and the early 1950s. At the end of 1951, for instance, they were involved in twenty elementary and high school segregation cases, a dozen higher education cases, five in housing, five against white-run railway and bus companies, a half dozen in recreation (mainly against segregated golf courses), one voting case, two battles over discriminatory teachers' salaries, a huge number of courts martial, and eleven major criminal cases. Jack Greenberg, a young attorney with the Fund, said later of these criminal matters, "Those with a sex factor loomed large, partly because of the death penalty for rape. Southern irrationality about interracial sex made all such charges suspect. ''34 Suits involving Public education held center stage at Fund headquarters. As early as 1931, the NAACP had decided to concentrate on such cases, with the hope of piling up precedents that would ultimately better the lot of black students in the segregating states, Several considerations prompted adoption of this key decision, which many years later meant that high profile school segregation cases were among the first to reach the level of the Supreme Court. First, it made sense to aim at discrimination in public, not private facilities, which thanks to constitutional precedents were presumed to be safer from legal attack. The Fourteenth Amendment to the Constitution, ratified in 1868 during the era of Reconstruction, stipulated that states--public bodies--should not make or enforce laws abridging the "privileges or immunities" of United States citizens. Further, a state must not deprive any person of "life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Relying heavily on the Fourteenth Amendment, the NAACP--and later the Fund--aimed first at racist practices in publicly supported graduate and professional schools. Here the discrimination was especially glaring. Other than Howard's, there was only one accredited medical school for blacks in the South--Meharry in Nashville--as opposed to twenty-nine for whites, and only one provisionally accredited law school, as opposed to forty for whites. Nowhere in the South could a black person study for a doctorate. Racially discriminatory law schools, NAACP leaders thought, were especially promising targets, mainly because white judges knew from their personal experience as students what a good law school had to have in the way of facilities and professors. Marshall especially hoped that southern states, if forced in time to set up separate-but-truly-equal black law and professional schools, might balk at the high cost of well-supported dual institutions and consolidate instead? In the 1930s and 1940s Marshall and his allies did not challenge the "separate" part of the separate-but-equal test established by Plessy in 1896. Such a strategy, of course, would have targeted segregation itself---an institutionalized system so well entrenched as to seem impregnable at that time. Instead, the NAACP tried to make segregating stares live up to the "equal" part of separate-but-equal. In quest of such equality, the NAACP concentrated its efforts between 1936 and 1938 in support of Lloyd Gaines, a graduate in 1935 of Missouri's state-supported black college, Lincoln University, who then applied for admission to the University of Missouri Law School. The university refused, rejecting him solely on the grounds of his race. It offered instead to set up a separate "law school" for him at Lincoln or to pay any tuition in excess of what he would have been charged if he had enrolled at the University of Missouri, so that he might attend a law school in an adjacent state that would take him. At the time, law schools in Kansas, Nebraska, Iowa, and Illinois accepted Out-of-state black graduates. Refusing to tolerate such an arrangement, Gaines sued to compel the University of Missouri to admit him? The Gaines case, like many that the NAACP handled, was expensive, time-consuming, and frustrating. Lower courts supported Missouri's discriminatory actions. In December 1938, however, the Supreme Court decided, six to two, in Gaines's favor. Writing for the majority, Chief Justice Charles Evans Hughes said that "a privilege has been created for white students which is denied to Negroes by reason of their race." Gaines, he added, "was entitled to the equal protection of the laws, and the State Was bound to furnish him within its borders facilities for legal education" that were equal to those offered to whites. This was an encouraging victory for the principle of separate-but-truly-equal--one that foes of discrimination frequently cited in later lawsuits. But Missouri then began to set up what was plainly an ill-funded, inferior law school for blacks, thereby forcing the NAACP to resume the fight. At this point, early in 1939, Gaines simply disappeared from view, never to surface again. No one knew then--or later--what happened to him. Some thought that he had been murdered, others that he had become miffed at the NAACP and accepted a bribe to disappear. Whatever the truth, the NAACP no longer had a plaintiff and had to drop its efforts. This was a sad ending to several years of expensive litigation. It was also testimony to the formidable difficulties that stood in the way of legal strategies against Jim Crow. Marshall and his colleagues nonetheless kept trying, and they were finally rewarded in June I950--twelve years after Gaines--when the Supreme Court again ruled in their favor in two more higher education cases. 37 The first backed the efforts of Heman Sweatt, a Houston mail carrier who had been rejected on racial grounds in 1946 when he sought admission to the state's all-white law school. Instead, the state set up a poorly supported "law school" for blacks in a basement. Sweatt fought back, not only against the state of Texas but also, over time, against briefs filed in support of Texas by eleven southern and border states. After litigation in four different courts, Marshall pleaded Sweatt's case before a packed Supreme Court chamber in April 1950. In June the Supreme Court held unanimously that it could not "find substantial equality in the educational facilities offered white and Negro law students by the state." Because Sweatt had no chance of an equal legal education in the state's pathetically inadequate law school for blacks, he was ordered admitted to the University of Texas Law School. This was the first time that the Court had told a state to admit a black person to an all-white educational institution.On the same day the Court also supported the quest of George McLaurin, a sixty-eight-year-old black teacher who had applied in 1948 to get a doctorate in education at the all-white University of Oklahoma. The state reluctantly admitted him in 1949 but forced him to remain in an anteroom off the regular classrooms where course work was given. In the library he was made to sit at a segregated desk behind a pile of newspapers in the mezzanine. In the cafeteria he had to eat in a dingy alcove by himself and at a different hour from the whites. McLaurin testified that it was "quite strange and humiliating to be placed out in that position, and it handicaps me in doing effective work." The Court agreed. It decided unanimously that Oklahoma's actions "impair and inhibit [McLaurin's] ability to study, to engage in discussion and exchange views with other students, and, in general, to learn his profession." 38 For the Fund these were heartening decisions, the more so because the Court also ruled on that day, in the Henderson case, against segregated dining on interstate trains. Moreover, the Truman administration's solicitor general, Philip Pearlman, had backed the Fund by filing a brief as a "friend of the court" in these cases. The way now seemed clear for the Fund to fight against racial discrimination not only in graduate and professional schools but also across the board. Even more encouraging to Marshall was the Court's reasoning, especially in Sweatt. In defending their exclusion of Sweatt from the white law school, Texas officials maintained that its new black law school had equal facilities. It had comparable floor space, and it gave blacks access to the state law library. The Court, however, rejected this narrow approach to "facilities" and "equality" and listed a number of other assets, some of them intangible, that the black school lacked. Black students, for instance, were denied contact with white law students and professors; they had no well-established alumni to turn to for placement; they would earn a law degree far less prestigious than whites received at their school. With reasoning such as this the Court was all but saying that racially separate law schools within a state could nor be equal. Recognizing this thrust, Marshall wrote a friend, "All three of the decisions are replete with road markings telling us where to go next. ''39 But Marshall moved cautiously. After all, the cases had taken years--since 1943 in the Henderson case. During Sweatt's four-year battle for admission to the UT Law School he had no choice but to continue working as a mailman. McLaurin, a dignified, experienced educator, had been humiliated. More important, Chief Justice Fred Vinson, a Kentucky moderate, and his colleagues on the Court were well aware of the political implications of what they were doing. Vinson couched the opinions in careful language chosen so as to call for truly equal education The Sweatt and McLaurin decisions, moreover, did nor have a large impact. Texas Law School admitted Sweatt, who had to deal with intimidation from whites. A cross was burned next to his car, and his tires were slashed. He became ill and flunked out. The school took in only a handful of black students later in the 1950s. ,find the decisions did not change much else, for the segregating states maintained their barriers. Undergraduate education was unaffected. While several southern states, notably South Carolina, embarked on crash programs to improve black public schools, none even considered plans for gradual desegregation. If Marshall expected to ensure full equality under such segregated circumstances, he faced the task of arguing case after case in state after state. This could take forever and bankrupt the Fund. Considering this gloomy prospect, Marshall and others understandably considered sailing off on a different tack: litigating to overturn segregation itself. In many ways, of course, this was an alluring course, especially because true equality within a Jim Crow system was impossible. But targeting segregation continued to be frightening as well, especially for the black principals, teachers, coaches, and other school employees who might lose their jobs if Jim Crow in education were to be abolished. (Contending with blacks of this persuasion, Marshall observed, "the easy part of the job is fighting the white folks.") It also seemed likely that a challenge against segregation would take years before being heard or decided by the High Court. And what if the challenge were to fail? The Court, badly divided on many issues in 1950, might reject his arguments, thereby reaffirming Plessy and further solidifying the constitutionality of segregated facilities. For Marshall and his fellow advocates in 1950, a fateful choice lay ahead? Marshall did not in fact wait long after Sweatt and McLaurin to make up his mind to fight segregation. Following debates with lawyers and NAACP state branch presidents in June 1950, he took the fateful step: to challenge the constitutionality of racially segregated public schools. In October the board of the NAACP dropped its emphasis on achieving equality within segregated education and supported Marshall. Henceforth, "pleading in all education cases.., should be aimed at obtaining education on a non-segregated basis and.., no relief other than that will be acceptable." The die had been cast that led to Brown in May 1954. 1 What else besides the determination of Marshall and his board accounts for such a historic shift in strategy? We cannot look to pressure from the majority of white people for an answer. Many in the North, to be sure, opposed Jim Crow in the South. But most white Americans in 1950, as in the past, did not much bestir themselves to better the plight of blacks. Liberal politicians, too, had other priorities. At the very time that Marshall was meeting with the branch presidents, North Korean soldiers were pouring across the thirty-eighth parallel and threatening to overrun South Korea. Soon the Truman administration committed American soldiers to desperate fighting on that far-off peninsula. At the same time, Truman struggled to combat ever-escalating charges by Senator Joseph McCarthy and others that he was sheltering communists in government. Korea and "McCarthyism" pushed the Cold War into an ever more frigid stage and dominated domestic politics for many years. Civil rights could not easily compete with the Cold War. We can look instead to the evolution by 1950 of lawsuits concerning schools that Marshall and his colleagues had earlier initiated. Most of the black plaintiffs in these suits were badly educated and desperately poor. Scattered, they were some years away from mobilizing into anything like a movement. What most of them wanted in the late 1940s was not integration, but equality of opportunity. 2 Here and there they had been agitating openly to get better schools for their children. "Without the schools," one parent said, "there was no way to break out." Having encouraged such efforts, Marshall was in a position by 1950 to transform litigation against inequality into suits attacking segregation. 3
Conclusion As the authors and historians, above, aptly demonstrate, the proper legal context for understanding the legal decision of Brown is found by appreciating the history of the human struggle throughout the Nation for over one hundred years. Simply put it is about people; courageous people acting within the Nation's court system. In this year of the 50 th Anniversary, it is proper to celebrate those two moments, which I mentioned in the Introduction -- the private visit by a father to a principal's office and the public filing of a lawsuit -- in order to orient ourselves to the proper legal context for understanding the Brown decision. But, Brown is about so much more. It is not just a written legal decision or the words in it. The legal context of Brown is unquestionably about real people; about clients willing to stand up for the rights of their children, despite the sacrifice; about lawyers laboring under difficult circumstances to represent those parents; and about building legal precedents to support an argument to overturn longstanding laws; and about using our Nation's court system to achieve a resolution.
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Illinois Commission on the 50th Anniversary of Brown v. Board of Education Contact: Executive Director Ollie McLemore |