About an hour after they had settled into the fun, blue-uniformed policemen came crashing in the front and back doors. “I was scared to death,” Cunningham recalled. “People started running out, and I saw one young cop that I knew. I said to this cop, ‘You can’t arrest this man. He is very, very important, he’s with the NAACP, you’ve got to let him go.’ ”
The cop recognized Marshall and led them to a side door, where Cunningham and Marshall escaped into the night. But Marshall was reluctant to walk away. With a few drinks bolstering his ego, he looked back at the scene of policemen handcuffing the partygoers and taking them off to jail. He turned to Cunningham and in a loud voice said: “I would like to defend these guys—these cops got no right doing this.” Cunningham grabbed his coat sleeve and pulled him away, telling him it was time to go home. “I swear to God he was ready to mess up the whole deal,” she recalled with a laugh. “He was a bit high.”11
Marshall’s prominence made him a name even in white America. Collier’s, then one of the nation’s top white magazines, identified him as “Our Greatest Civil Liberties Lawyer.” In a nod to his busy social life, the magazine noted: “He’s equally at home on a dance floor or before the U.S. Supreme Court.”
The magazine featured Marshall’s successful challenges to segregation in graduate schools but went a step further by portraying him as a hero to the common black man because of his ability to break racism’s grip. As an example, Collier’s told of Marshall being called late one night while he was playing poker in a Washington, D.C., hotel. Over the phone he heard that a lynching was about to take place in the South. Marshall called the FBI and the White House but was told they could not get help to the man before the next day.
“He then performed an instantaneous, cerebral tour-de-force,” the magazine wrote. “He put through a long-distance call to an influential southern lawyer representing strong anti-Negro factions. When he had the man on the phone he said, ‘Look, just two sets of people can’t afford a lynching at this time—us Negroes and you people. You are right in the midst of a Dixiecrat political campaign and a lynching is going to make your people look awful bad.’ The man’s answer was ‘Check. Give me the details and get off the phone so I can get moving. Call you back in half an hour.’ In twenty minutes, Marshall’s telephone rang and he was told, ‘The state troopers made it in time—call this number in a few minutes and your man will be there unharmed.’ And he was, although he was still too shaken to talk.”
The article celebrated Marshall as a “tall, burly, gregarious man, light-skinned and light-hearted.… He has consciously chosen to follow a hedonistic, non-worrying philosophy.” Marshall offered his motto for life in the story: “I intend to wear life like a very loose garment, and never worry about nothin’.”
Aunt Medi was featured as the special woman in Marshall’s life, the one who told funny stories about his long nights playing cards and his inability to carry a tune. Buster was quoted just once. At the very end of the article, she said he worked constantly. “He’s aged so in the past five years,” she said. “His disposition has changed. He is nervous where he used to be calm. This work is taking its toll on him. You know, it’s a discouraging job he’s set [for] himself.”12
Despite his hectic life on the road and his troubles at home, his celebrity created new opportunities for Marshall. His private ambition had long been to become a judge, and by the early 1950s newspaper stories floated Marshall’s name again as a candidate for a federal judgeship. Collier’s magazine made public for the first time his effort to land a federal judgeship a few years earlier. The magazine’s sources said Marshall didn’t get the job because he would not join hands with politically influential blacks in Tammany Hall.
Marshall told the magazine that the anonymous source was right. He had refused even to meet with Tammany Hall’s black regulars because, he said, “in my book a federal judge is a different animal—he shouldn’t have to play patty-cake with the club house boys.”13 Marshall wanted to be a judge but only on his terms. The willful lawyer was not above using the magazine to remind people that he was qualified to be a judge and didn’t have any political dirt on his hands.
He succeeded in getting his message out. The Collier’s article stirred a new round of talk, as well as several more newspaper stories, connecting Marshall to the possibility of a federal judgeship. There were two vacant seats, in Philadelphia and New York. Marshall offered no comment to reporters about the judgeships except to say, “I’ll cross that bridge when I come to it.”14
Even with support from the press, Marshall still did not have the blessings of local black political powers in New York. The open judgeships went to white lawyers.
But even as half of his soul was pulling him toward the federal bench, the other half of Marshall saw his most important work as the unfinished business of ending school segregation. It was the work that Charles Houston had told him from his first day in law school would revolutionize American race relations. The question now was whether Thurgood Marshall could find a winning way to lead a twentieth-century American revolution.
CHAPTER 20
Planning a Revolt
END OF JIM CROW IN SIGHT screamed the Afro-American’s banner headline announcing the Supreme Court’s June 1950 decision in Sweatt. Thurgood Marshall triumphantly predicted: “The complete destruction of all enforced segregation is now in sight.… Segregation no longer has the stamp of legality in any public education.”1
Marshall was full of excitement and anticipation when he called a conference of attorneys from across the country to meet in New York. He was looking for a way to make the leap from desegregating graduate-level schools to integrating all public schools. The meeting attracted wide attention. Black newspapers covered it, and so did The New York Times. Jimmy Hicks of the Afro-American quoted Marshall as saying that the lawyers had mapped out plans to “wipe out … all phases of segregation in education from professional school to kindergarten.” Hicks also reported a new defiant tone to the lawyers’ discussion.
The militant attitude in public statements from Marshall and the lawyers, however, was quite different from their private discussions. Marshall was still deeply concerned that a direct attack on all school segregation could be time-consuming and, even worse, ultimately lead to defeat. Integrating law schools, professional schools, and even colleges with adult students might not have been hard. But racial integration of boys and girls in grade schools, Marshall suspected, was going to provoke the strongest possible backlash.
At the New York meeting the voice most strongly pressing for the direct attack belonged to Spottswood Robinson. The Richmond lawyer, revered for his photographic memory and precise legal writing, wanted the NAACP to be more aggressive. When they sat down at the meeting, Marshall began by expressing doubts about a strategy of asking the courts to rule that segregation was unconstitutional. This eventually goaded the gentlemanly Robinson into forcefully making the case for a direct attack. It also gave Marshall a chance to listen to the best arguments Robinson and the other lawyers could make for a court to disregard the Plessy decision and declare school segregation unconstitutional.
“I did not mention this to Thurgood, the plan for a direct attack before the meeting,” Robinson said many years later in an interview, calmly smoking a pipe. “I didn’t want any roadblocks. Thurgood was always cautious in the beginning of any of these cases, no matter how good they might look. We finally recommended that the NAACP go after segregation directly. Well, that was a bombshell, and it set up all kinds of commotion.”2
Other than smoking his cigarette and sometimes smiling, Marshall kept quiet as Robinson led the discussion of the new strategy. It was typical Marshall to let the arguments rage while he soaked in all sides to the debate. He would glare at times, sometimes throw in a biting comment or shout out “bullshit.” But slowly Marshall became more animated. He began smiling and nodding along with the talk of a direct challenge.
Robinson’s argument for a st
rong attack got its most vigorous support from Marshall’s deputy, Robert Carter. Known for his attention to detail and for keeping his bow tie knotted tight even while spending late hours at the office, Carter brought up a case from California, Mendez v. Westminster School District.
It was “sort of a dry run” for the theory of challenging segregation directly. The case involved segregation of Mexican children “on the theory that they couldn’t speak the language.” Carter noted the NAACP had prepared an amicus, or friend of the court, brief in that case, which argued for the first time that segregation for any reason was wrong.3
The NAACP position won out when the federal courts ruled in 1946 that, under the equal protection clause of the Fourteenth Amendment, California schools “must be open to all children by unified school association regardless of lineage.” NAACP lawyers were particularly struck by the idea that the judges had noted they were not ruling that school facilities for the Spanish-speaking children were unequal. Instead the judges ordered school integration because segregation created “antagonisms [among] the children and sugges[ted] inferiority among them where none exist[ed].’ ”4
Carter told the lawyers at the meeting that the Mendez ruling had great significance in the aftermath of Sweatt, which had nailed down the idea that no Jim Crow school could ever equal the prestige and social status of a long-standing state school. Mendez had bolstered the argument that school segregation always increased racial tensions and problems for minorities. The NAACP lawyers now saw the outline of their argument and a strategy to challenge all school segregation.
Then Carter made a more radical suggestion. He recommended that the lawyers begin to use a controversial sociological method to show the damage segregation did to black Americans. “Bob gets all the credit for it,” Marshall later told an oral history interviewer about the proposal to use Kenneth Clark, a black psychologist from City College of New York, as an expert.5 Clark and his wife, Mamie, had conducted tests on black children using black and white dolls. The results were powerfully emotional. When black children were presented with black and white dolls, they almost always said the white dolls were prettier, smarter, and better at everything they did.
“I remember one young man,” Clark recounted. “I’ve never forgotten him, in Arkansas, when I asked [which doll he liked], he pointed to the white doll. And I asked him which one don’t you like, and he pointed to the brown-skinned doll. He was brown-skinned. And he said, ‘That’s a nigger, I’m a nigger,’ and he laughed. I don’t know what the laughter meant.”
In the northern states Clark similarly found that black children had negative views of themselves. “I remember one young girl, about six or seven, who cried,” he recalled. When the girl realized that she preferred white dolls, “she sort of walked out of the testing room because she did not like the fact that she was rejecting herself.”6
When Carter presented the idea of using Clark’s research to the lawyers at the NAACP, there was little support. Spott Robinson, for example, thought it was crazy and insulting to try to persuade a court of law with examples of crying children and their dolls. But Marshall, in a surprise to his colleagues, sided with Carter. He stood up and said if the time was coming for a direct challenge to segregation, then there was no reason not to use sociology, psychology, or anything else if it might help to win the case.
* * *
The first hurdle for the NAACP remained finding a plaintiff. Black parents nationwide, but especially in the Deep South, were understandably reluctant to get involved in segregation suits. They expected a white backlash would get everyone involved fired from their jobs. Their children might be attacked by white bullies on the streets. A. P. Tureaud, the NAACP’s lawyer in New Orleans, explained in a 1950 letter that his efforts to get a suit started against all-white public schools in Louisiana failed because he could not find one parent willing to challenge local segregation laws.7
While most black parents were fearful, a few in Kansas contacted the national NAACP office in the late forties to say they would be willing to put their names on a suit challenging the constitutionality of Jim Crow schools. Isabel Lurie, of the Topeka NAACP, told the New York office that black schools in Topeka were just about equal to the white schools. But she wanted black children to be able to attend the nearest school on an integrated basis.8 Similar requests were coming in from other Kansas towns, such as Wichita and Merriam. And in Virginia and the Carolinas there had been NAACP chapters willing to begin work on desegregation suits.
Before the Sweatt decision Marshall had considered it a waste of time and money to attack segregation in elementary and secondary schools. But now, after the Supreme Court ruling in Sweatt and with the NAACP lawyers anxious to test a direct-attack strategy, he was aggressively looking for the right place to take the big gamble. As luck would have it, he found a school segregation case in South Carolina, where he personally had a long history with the federal judges and good support from the local NAACP.
Marshall first came to the state in the early 1940s. He had won an equal pay case for black teachers in the state in 1944. He had also come there in 1947, in the aftermath of his victory ending the Texas white primary system, to argue successfully for an end to a similar all-white primary system in South Carolina. And in 1949 Marshall had visited the state capital to discuss with local NAACP officials a possible suit to integrate South Carolina’s elementary schools.
The South Carolina NAACP had recently lost a case in which they asked for new buses for black students. That setback prompted Harold Boulware, the local attorney working on the case, to call Marshall. Boulware promised that if the national office would lend its support, the local NAACP would find Marshall plaintiffs willing to stand up for complete school integration.
It took eight months, but the South Carolina NAACP produced twenty parents willing to have their childrens’ names attached to a suit. “I was dispatched to go to South Carolina, and I met with all the plaintiffs,” said Robert Carter. “I went down to be certain that the people in Clarendon County understood precisely what we were talking about. Because at that point people were being threatened. They had to realize that there was a possibility of them losing jobs, even threats of physical violence.” But only one parent decided to back away after Carter’s presentation.9
The NAACP filed suit, and the trial was set to begin in May 1951 in Charleston, South Carolina. Marshall and Carter arrived by train from New York with Ken Clark. On the train Clark and Marshall had their first long conversation about school segregation. Marshall was initially his usual glib self, telling Clark vivid stories filled with colorful characters about his trips to southern courtrooms. However, as they traveled deeper into the South and day turned to night, Clark remembered watching Marshall become quieter, spending most of his time staring out the window. “What’s the matter?” Clark asked him. Looking up, Marshall said, “I’m tired, tired of trying to save the white man’s soul.”10
Once they arrived in South Carolina, Marshall showed no sign of the burden he had displayed to Clark. A determined Marshall began preparing the NAACP brief with Carter, Boulware, Spot Robinson, and a Birmingham lawyer, Arthur Shores. Clark meanwhile started conducting psychological testing with his dolls on black children attending Clarendon County’s segregated schools. Marshall had little time to pay attention to Clark’s work, but he had grown fond of the man. The lawyer was worried that Clark might be attacked by white thugs who didn’t like seeing a black university professor in a suit. However, Marshall was not willing to have one of his lawyers stop working on the case to accompany the young psychologist. To ease his mind, Marshall gave Clark a fifty-dollar bill. He told Clark that if any white men bothered him, to hold out the money.11 He also got the local NAACP to assign some men to accompany Clark.
Clark never had to use the fifty-dollar bill, but a white local school superintendent tried to stop his testing. When he first saw the psychologist, the white superintendent told the local NAACP official with Clark, “You f
uck, I told you I didn’t want you to come back here to create trouble. I don’t want to have to harm you.”
The threats did not stop Clark, however. He tested sixteen black children between the ages of five and nine and, by using black and white dolls, asked them to give their views of black and white people. The only difference between the dolls was their skin color. Ten of the sixteen children said they preferred the white doll. Eleven of the children referred to the black doll as “bad,” while nine said the white doll was “nice.” Seven of the children pointed to the white doll when they were asked to choose the doll most like themselves.
Marshall and the lawyers, meanwhile, were busy collecting information on the disparities between the state’s white schools and its threadbare black schools. Their initial brief was based solely on the existing inequality between the schools.
In both the teachers’ salary case and the white primary case it was Judge J. Waties Waring who had ruled in Marshall’s favor. In fact, Waring had for years been privately urging Marshall to directly challenge the constitutionality of school segregation. “The NAACP legal staff apparently was quite hesitant about bringing a formal attack on legal segregation in schools,” Waring recalled later. The judge had no such fears. While Marshall was working on the brief, Waring invited Marshall to dinner at his house—at a time when “decent” white people never invited Negroes into their homes as social equals—and told him it was time to make law by making history.
But Marshall was still hesitant. The judge insisted that Marshall rewrite his suit, bringing an even stronger, more direct challenge to school segregation. “He looked rather astonished, but said, ‘Yes,’ ” Waring recounted later.12
Marshall had to rewrite the brief twice before Waring was satisfied that the NAACP was truly challenging the constitutionality of segregation. The trial began on May 28, 1951, before a three-judge federal panel. Waring was joined on the bench by George Timmerman and Federal Circuit Court Judge John Parker, the senior judge for the Fourth Circuit, who presided.
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