The second case involved a sixty-eight-year-old black professor who had been refused admission to the doctoral program in education at the University of Oklahoma. Several years later, Marshall told a group of black newspaper executives about the graduate school desegregation campaign. “The Dixiecrats and the others said it was horrible. The only thing Negroes were trying to do, they said, was to get social equality. As a matter of fact, there would be intermarriage, they said. The latter theory was the reason we deliberately chose Professor McLaurin. We had eight people who had applied and who were eligible to be plaintiffs, but we deliberately picked Professor McLaurin because he was sixty-eight years old and we didn’t think he was going to marry or intermarry—they could not bring that one on us, anyhow.”
The special district court that decided the case ordered the state “to provide the plaintiff with the education he seeks as soon as it does for applicants of any other group.” But when McLaurin finally matriculated at the university, he was required to sit at a desk surrounded by a railing marked “reserved for colored.” He also had to eat at a separate table in the cafeteria and was restricted to his own table at the library. Marshall appealed the case to the Supreme Court, arguing that McLaurin was not being offered an equal education. Although he attended the same classes, ate the same food, and studied from the same books as the other students, he was not getting an equal education because of the daily harassments and restrictions.
The McLaurin and Sweatt cases were heard by the Supreme Court on the same day in April, 1950. The eleven southern states joined forces and filed an amicus curiae (a “friend of the court” brief that supports one party in an argument). The states maintained that Plessy was the governing principle and that all of the precedents supported a decision against the mailman who wanted to be a lawyer. But Thurgood Marshall and the NAACP got support from an unexpected source: the Justice Department filed an amicus brief in both cases, arguing that Plessy was wrong and that the Supreme Court should overrule it. It was a radical step.
Just six weeks before the Supreme Court decided these two important cases, Charles Houston lay in a hospital in Washington, D.C. He had suffered a severe heart attack. For two-and-a-half years he had worked diligently on the Consolidated Parents Group case. With his health failing rapidly, Houston asked his client, Bishop, to see his friend and colleague James M. Nabrit, the lawyer who was then secretary of Howard University and later became its president.
Nabrit proposed a different approach to the case. Instead of asking for black schools equal to those available to whites, Nabrit suggested that they challenge the very concept of racial segregation in the school system.
“When [Charlie] was on the death bed, he sent for me and asked me to take these cases,” Nabrit remembers. “I [said], ‘I am going to decide on the legal theory myself.’ So he said, ‘What do you mean?’ I said, ‘You know, for the last three years, Charlie, I have been trying to get you all to agree that you would take these cases and fight them on the grounds that segregation itself is unconstitutional … If I take these cases I am telling you now I am going to abandon this separate-but-equal theory you have, and I am going to draft a new theory. I am going to try these cases on the theory that segregation per se is unconstitutional.’ He said, ‘I’m glad to hear you [say] that, ’cause I’ll rest better, ’cause I’ve about come to that position myself,’” Nabrit recalls.
Nabrit met with Gardner Bishop and told him that he would not pursue the equalization case the way Houston had mapped it out, but if Bishop would gather a group of plaintiffs willing to attack segregation directly, Nabrit would be glad to represent them. Bishop agreed. The case came to be known as Bolling v. Sharpe. Bolling was twelve-year-old Spottswood Bolling, Jr. C. Melvin Sharpe was the president of the Board of Education of the District of Columbia.
On April 20, 1950, Charles Houston died at the age of fifty-four. The pallbearers at his funeral were friends, colleagues and brothers in the legal struggle for racial equality—Benjamin F. Amos, Joseph Waddy, George Marion Johnson, Edward P. Lovett, Phineas Indritz, Oliver W. Hill, and Thurgood Marshall.
On June 5, 1950, the Supreme Court handed down its decisions on the Sweatt and McLaurin cases, concurring with the lawyers Charles Houston had trained twenty years earlier. However, the justices carefully wrote their decisions as narrowly as possible. The Court did not overturn Plessy; it applied its findings only to graduate schools. But it did say, in effect, that separate-but-equal education was not just a slogan. The equality had to be genuine or the separation was unconstitutional.
The Legal Defense Fund had come very close to getting the Supreme Court to overturn Plessy. Like Nabrit and Houston, many of the NAACP lawyers wondered if the time had come to launch an all-out campaign that would force the Court to decide the very constitutionality of the separate-but-equal doctrine. The rulings by the federal courts indicated to some that the existence of segregated schools, no matter how good they were, implied inferiority—that separate could never be equal.
However, if the lawyers challenged the doctrine and lost, it could be many years before the Legal Defense Fund could prepare a new case and broach the doctrine’s constitutionality once again. The Supreme Court is generally loath to reconsider one of its own decisions.
Thurgood Marshall called a series of meetings with legal scholars and members of the Legal Defense Fund. In June of 1950, the NAACP held a conference in New York City. It was attended by forty-three lawyers and fourteen branch and state conference presidents. After much discussion, they agreed that, in all their future education cases, they would seek to obtain schooling on a nonsegregated basis.
Hedging their bets, the lawyers decided to attack segregation on two fronts. First, they would confront Plessy v. Ferguson head on and argue that the separate-but-equal doctrine was unconstitutional under the Fourteenth Amendment. But in case that strategy failed, they would also argue that schools should be truly equal under the Plessy doctrine and that the only way to equalize the schools was to integrate them. The lawyers referred to this approach as their “bow with two strings.”
To show that separate schools could never be equal, the NAACP had to prove that the consequences of segregation—the psychological, intellectual, and financial damage—precluded equality. The Legal Defense Fund lawyers called on all the NAACP offices to gather cases from across the nation to use as ammunition for the constitutional cannon they were about to fire. They wanted cases from different states and different situations. A broad attack would make it harder for the Court to hand down a decision limited to a particular case. With 2.2 million black students in the nation’s all-black elementary schools, the search didn’t take long.
South Carolina’s Clarendon County provided the first chance to attack segregation in the elementary schools. There were nearly three times as many black students as white students in Clarendon, but the white students received more than sixty percent of the educational funds. The per capita spending for white students was $179 per year; for black students, $43. Not much had changed since Charles Houston toured that part of the state on his filming trip in the 1930s. In late 1950, the NAACP brought a suit against the school board for not putting enough money and teachers into the black schools. Twenty black parents, led by the Reverend J. A. DeLaine, signed the suit. The first name was that of thirty-four-year-old Harry Briggs, a father of five, so the case bears his name.
Whites throughout Clarendon County exerted pressure on those who had brought the suit. Bank loans were called in, people were fired, and stores refused to supply farmers with seed for planting and machines for harvesting.
Liza Briggs, the wife of Harry Briggs, recalls, “I was working at the Summerton Motel. The White Council of Summerton came down and told [my boss] if he didn’t fire the women who signed the petition that they would close the business down. They wouldn’t let the trucks come and deliver. So they called us in and asked … that we take our names off the petition in order to work … I told him ‘no,’
I didn’t want to do that because we would be hurting the children, and I’d rather give up my job and keep my name on there. So in about two weeks’ time I was fired. Not only me, the rest of them who had anything to do with the petition, they all was fired.”
Knowing that their new approach to these education cases required proof of damage caused by segregation, Robert Carter of the Legal Defense Fund contacted black psychologist Kenneth Clark, a fellow Howard University graduate who had done his doctoral work at Columbia University. For several years Clark had been studying the effects of segregation on children by using dolls in interviews with students. It was highly unorthodox evidence to present in a courtroom, but the situation called for unusual legal ammunition.
William Coleman, one of the NAACP attorneys, was extremely skeptical of using Clark’s findings. He thought that talking about dolls in a courtroom would be a joke. But Thurgood Marshall was willing to use Clark’s approach. “I told the staff that we had to try this case just like any other one in which you would try to prove damages to your client. If your car ran over my client, you’d have to pay up, and my function as an attorney would be to put experts on the stand to testify to how much damage was done. We needed exactly that kind of evidence in the school cases.”
Thurgood Marshall, Robert Carter, and Kenneth Clark rode the train from New York City to Clarendon County. Black and white dolls in hand, Clark went to Scott’s Branch, a joint elementary and high school for black children. The childrens’ parents sent two men along to protect the psychologist from harassment by whites.
Clark tested sixteen black children, aged six to nine. Ten of the children looked at the black and white dolls Clark showed them and said they liked the white doll better. Eleven of them added that the black doll looked “bad.” Nine of the youngsters said the white doll looked “nice.” While all the children stated correctly which doll was black and which was white, seven of the sixteen students said they saw themselves as the white doll.
Clark recalls, “The most disturbing question—and the one that really made me, even as a scientist, upset—was the final question: ‘Now show me the doll that’s most like you.’ Many of the children became emotionally upset when they had to identify with the doll they had rejected. These children saw themselves as inferior, and they accepted the inferiority as part of reality.” The results matched those from similar tests Clark had conducted throughout the South.
“Segregation was, is, the way in which a society tells a group of human beings that they are inferior to other groups of human beings in the society,” Clark said in a recent interview. “It really is internalized in children, learning they cannot go to the same schools as other children, that they are required to attend clearly inferior schools than others are permitted to attend. It influences the child’s view of himself.”
Clark’s data and the findings of other social scientists formed one “string” of the NAACP’s “bow.” The studies showed that the damage wrought by the mere existence of segregation causes inequality. Separate could never be equal, no matter how comparable the separate schools were. The other string of the bow was the statistical evidence showing that, within the separate-but-equal system, the black schools were grossly unequal: In Clarendon County, the net worth of the three black schools for 808 children was one-fourth the value of two schools that housed 276 white children. There was one white teacher for every twenty-eight white students; one black teacher for every forty-seven black students.
Even so, the federal district court ruled that the separate-but-equal doctrine was not violated. In a two-to-one decision, the court found Clark’s psychological data irrelevant to the case. As for the inequities in the facilities for black children, the court asked that the county correct the differences and send a report to the court.
The lone dissent came from Judge J. Waties Waring, a white man who had long opposed segregation. “There is absolutely no reasonable explanation for racial prejudice,” Waring wrote. “It is all caused by unreasoning emotional reactions and these are gained early in childhood … Segregation in education can never produce equality and … is an evil that must be eradicated.”
The Legal Defense Fund lawyers had not expected to win the case at this level. But they had presented evidence that showed the consequences of segregation and that would later help them through the appeals process. Waring’s dissent offered them hope. Marshall appealed the Briggs decision to the Supreme Court, but he had to wait nearly two years for the appeal to be heard.
A week after the trial ended, some of the lawyers from the Briggs case packed their suitcases and headed for Topeka, Kansas, to take on the next case.
Seven-year-old Linda Brown, who lived in Topeka, had to cross railroad tracks in a nearby switching yard and wait for a rickety bus to take her to a black school. It wasn’t the worst that black children had to endure, but soft-spoken Oliver Brown was fed up with his child having to go to the other side of town when there was a good school much closer to home—a white school.
“The issue came up and it was decided that Rev. Brown’s daughter would be the goat, so to speak,” remembers Arthur Fletcher, then a member of the Topeka NAACP and later an assistant secretary of labor in the Nixon administration. “He put forth his daughter to test the validity of the [law], and we had to raise the money.”
The children of the Brown case: (top row) Harry Briggs, Jr., Ethel Belton, (bottom row) Dorothy Davis, Linda Brown, and Spottswood Bolling.
The Dolls Test: An Interview with Kenneth Clark
In 1939 and 1940, psychologist Kenneth Clark and his wife, Mamie Phipps, tested black children in Washington, D.C., and New York City to determine how the children perceived themselves. The test revealed that the Washington students, who attended segregated schools, had lower self-esteem than the black children in New York. The researchers published their study in the Spring, 1940 issue of the Journal of Experimental Education, unaware that fourteen years later the Dolls Test would become important evidence against segregation in Brown vs. Board of Education.
We did the Dolls study before we had any idea that it would be relevant to public policy. In fact, we conducted the study fourteen years before Brown. The NAACP lawyers learned about it and asked us if we thought it was relevant to what they were planning to do in terms of the Brown cases. We said it was up to them to make that decision—that we hadn’t done the testing for litigation, but to communicate to our colleagues in psychology the influence of race, color, and status on the self-esteem of children.
The Clarendon County testing was requested by the lawyers who had read the material we had published. The lawyers wanted to know if their plaintiffs, the black children in Clarendon County, would show the same results as those we had tested earlier. I wasn’t all that happy about going to Clarendon County, because of the violence and threats of violence. My wife didn’t want me to go. She was from the South and she was more aware of the potential for violence than I. But we had to test those children. The head of the NAACP in South Carolina went with me. I used the same methods as in the earlier studies, and the results were the same.
I remember one child in Arkansas, a little boy, from the earlier study. When I asked him the key question [“Which doll is most like you?”], he looked up and smiled, laughed, and pointed to the brown doll, and said, “That’s a nigger. I’m a nigger.” I found that as disturbing, if not more disturbing, than the children in Massachusetts who would refuse to answer that question, or would cry and run out of the room. The children in the South did not reject the feelings of inferiority that the question implied [by having to identify with the doll they had deemed inferior]. In fact, they sort of accepted it as part of the reality of their lives. The children in the North more overtly and emotionally rejected their feelings of inferiority.
Some of the lawyers felt the case should not be “contaminated” by psychological evidence. Other lawyers, particularly Robert Carter, argued that you couldn’t overthrow [Plessy]* by just sticking to the law
. To show damage and a violation of equal protection under the Fourteenth Amendment, you had to show that being segregated actually damaged the children. Carter felt that the test results were evidence of the damaging effect of segregation on children. I couldn’t play any part in their discussion, but [Thurgood] Marshall made the decision and accepted the test results as part of the evidence. I was very, very happy when Thurgood called me at the college on May 17, 1954, and told me not only that the decision [to eliminate segregation] had come down but that Justice Warren had specifically mentioned the psychological testimony as key.
Arguing Brown v. Board of Education of Topeka would be Robert Carter, Thurgood Marshall’s top assistant, and Jack Greenberg, a young white lawyer from the Bensonhurst section of Brooklyn. Greenberg sought out experts to testify to the detrimental effects of segregation on black children. The first was a white professor at the University of Kansas City, Hugh W. Speer. Despite criticism from his colleagues for cooperating with “outside agitators” like the NAACP, Speer agreed to testify. He told the court that, in Topeka, the school budgets and facilities provided for black students and for white students were inequitable. But these differences were not great in themselves, he added. The scarring injury of school segregation was inflicted by the racial isolation itself: “If colored children are denied the experience in school of association with white children, who represent ninety percent of our national society in which colored children must live, then the colored children’s curriculum is being greatly curtailed. The Topeka school curriculum … cannot be equal under segregation.”
Speer’s testimony was supported by that of Horace B. English, a professor of psychology at Ohio State University. English testified that blacks were not necessarily slower learners than whites. The problem facing black students, he said, was that “if we din it into a person that it is unnatural for him to learn certain things, if we din it into a person that he is incapable of learning, then he is less likely to learn.”
Eyes on the Prize Page 4
