Thurgood Marshall

by Juan Williams

  When the trial opened, over five hundred people tried to crowd into the federal courthouse in Charleston, which could seat only seventy-five. News reports said two women fainted in the ninety-degree heat while trying to get into the court. “The plaintiffs and all the spectators in that South Carolina case were rural people,” recalled Alice Stovall, Marshall’s secretary. She had gone to South Carolina to help the lawyers prepare for court and found herself caught up in an exhibition of excitement and passion she had not expected.

  “They came in their jalopy cars and their overalls, and they had this little section of the court where they could go,” Stovall said. “All they wanted to do—if they could—just touch him, just touch him, Lawyer Marshall, as if he were a god. These were poor people who had come miles to be there.”

  Marshall and Bob Carter were awed too. “If anyone ever tells you that colored people want segregation, remind him of these people,” they wrote a few days later in a letter to the Afro-American.13

  At the start of the case, South Carolina’s lawyer, Robert McC. Figg, a tall, studious man in a white suit, gave the judges and the NAACP a surprise by conceding that schools for black children in South Carolina were not equal to those for white children. Figg said the state was prepared to upgrade the black schools. He asked the court to give South Carolina a “reasonable period of time” to make the changes before considering the NAACP’s case.

  Judge Waring immediately saw that Marshall was unprepared for Figg’s admission of guilt. Marshall had prepared a great number of witnesses and evidence to prove the state had inadequate facilities. Now that evidence was irrelevant.14

  The three judges accepted the state’s concession that schools for black children were inadequate. The chief judge was about to bring the session to a close without protest from Marshall when Waring spoke up. He said there was still a major issue in Marshall’s brief for the court to consider—the newly inserted question of whether segregation of schoolchildren was unconstitutional. Judge Waring, speaking without any hint of his private talks with Marshall, added: “This court has got to face the issue of segregation, per se.”15

  Buoyed by Waring’s remarks, Marshall began a parade of expert witnesses, including social scientists and educators—college professors from Columbia and Harvard—who testified about the effects of segregation on black children. “Legal segregation hampers the mental, emotional, physical and financial development of colored children and aggravates the very prejudices from which it arises,” said Dr. David Krech, a social psychologist from Harvard. “Damage if continued for ten or twelve years will be permanent.”16

  As Marshall and his witnesses tried to make their case, their voices were often drowned out by the sound of jackhammers. State workers were repairing a street outside the courthouse. Whenever Marshall got to his feet the jackhammers “coincidentally” began to pound into rock and concrete. Eventually Judge Waring asked Judge Parker to order the workers to halt: “The administration of justice is more important than the paving of a street.” Parker had the workers quit.17

  Marshall’s star witness was Ken Clark, the mild-mannered psychology professor. In two days of studying black schoolchildren in South Carolina, Clark told the court, he “found that the majority of black children tended to reject themselves and their color and accept whites as desirable.… ”18

  Clark testified that school segregation was distorting the minds of black youngsters to the point of making them self-hating. “The conclusion which I was forced to reach was that these children in Clarendon County, like other human beings who are subjected to an obviously inferior status in the society in which they live, have been definitely harmed in the development of their personalities; that the signs of instability in their personalities are clear, and I think that every psychologist would accept and interpret these signs as such.” Clark concluded that the damage was “likely to endure as long as the conditions of segregation exist.”19

  The state’s attorney responded to Clark’s testimony with the smug comment that schools were responsible for education, not personality development. The real issue, Figg told the judges, was that South Carolina was willing to equalize spending. If the state was forced to integrate its schools, violence was certain to break out and South Carolina would be forced to stop offering public education.

  A month after the trial, the judges ruled with Figg and against the NAACP. Chief Judge Parker and Judge Timmerman said the 1896 Plessy decision established the idea of separate but equal as a legal, constitutional concept, and the state was within its right to separate black and white children. Parker and Timmerman disregarded Clark’s testimony. In their written opinion they said judges had no “right to read their ideas of sociology into the constitution.”20

  Judge Waring, however, cast a dissenting vote. He said the concept of separate but equal violated the Constitution. “And no excuse can be made to deny [black children] these rights which are theirs under the constitution.” He stated that “beyond a doubt the evils of segregation and color prejudice come from early training.” And he added that being separated from other young Americans because of skin color had “an evil and ineradicable effect upon the mental processes of our young.”21

  Despite Waring’s dissent the court gave the state six months to equalize the black schools. In March of 1952 the panel reconvened. Judge Waring had retired, and this new court was unanimous in finding that the state had met its pledge. At the end of the proceedings, above the noise of the crowd leaving the courtroom, one of the state’s lawyers shouted at Marshall, “If you ever show your black ass in Clarendon County again you’ll be dead.”22

  Marshall, walking with Carter and his colleagues, glared at the man but did not respond. It was not his way. His mind was already set on sending an appeal to the Supreme Court. Judge Waring offered to help with the appeal, but he was also busy stabbing Marshall in the back. Waring was a close friend of Walter White, and he sent letters to White and NAACP board members in which he criticized Marshall’s legal staff as “not sufficiently equipped” to handle the appeal.

  Waring proposed that the NAACP hire a special counsel to present the case before the Supreme Court. In a letter to Judge Hubert Delaney, a leader of the NAACP board, Waring criticized Marshall as too cautious. The South Carolina case, Waring wrote, “has got to be won by a determined fight by determined lawyers calling for a reversal [of Plessy] and not apologizing for appealing.”23 All the while, Marshall was unaware that Waring had little respect for his legal ability.

  Criticisms of Marshall weren’t just coming from those who wanted a more forceful attack on segregation.

  Marjorie McKenzie, a Pittsburgh Courier columnist, wrote after the South Carolina decision that Marshall was leading the NAACP over the edge of a high cliff with his strategy. She said the association’s victories in Sipuel and Sweatt had put black Americans on a sure path to getting better schools by forcing states to equalize facilities. By abandoning that approach, Marshall was risking what had been won in those fights.24

  McKenzie’s criticism opened the door for others who wanted to take shots at the NAACP’s special counsel. No one went public, but she got calls and letters from people who supported her, especially black lawyers. “He was not eager for the little lawyers around the country who brought these cases in to follow through in front of the Supreme Court,” she later told an interviewer. “A lot of black lawyers around the country came to feel that Thurgood Marshall was stealing the show.”25

  Marshall did keep a tight grip on other lawyers working on NAACP cases. He wanted to coordinate any legal arguments made under the NAACP name. His goal was to avoid segregationist victories that could be cited in later cases to upset NAACP attempts to uproot the separate-but-equal doctrine.

  * * *

  As Waring and McKenzie were sparring with Marshall, the NAACP legal fight against segregated schools continued. Just two days after the federal appeals court in South Carolina had ruled against the NAACP, a second major s
chool segregation case began in Topeka, Kansas. Marshall sent the scholarly Bob Carter and an eager young white assistant, Jack Greenberg, to try the case. The local attorneys were Elisha Scott and his two sons, John and Charles, longtime lawyers for the Topeka NAACP.

  The Topeka case fit with Marshall’s grand design. He picked it out of the several potential school segregation cases which NAACP branches had sent to his New York office. Topeka was a uniquely good fit. “The schools in Topeka are physically substantially equal and in some cases the Negro schools are even better than the white schools,” an NAACP official wrote in a memo to NAACP headquarters.26 Unlike in other states, where the inferior facilities in the black schools might become the main issue and allow the court to order equalization, the case in Kansas would force the court to confront the state’s policy of segregating black students.

  The case opened before a three-judge panel on June 25, 1951, with Carter and Greenberg sitting with local NAACP lawyers at the plaintiffs’ table. There was no crowd in this courtroom; the case did not generate the passion of school segregation suits in the South.

  Black parents gave simple, compelling testimony about how their children had to take long trips to segregated schools because they could not go to nearby all-white schools. One parent testified that Topeka’s black teachers and black schools were good but “my children are craving light.… The entire colored race is craving light and the only way to reach the light is to start our children [black and white] together in their infancy and they come up together.”27

  Under Marshall’s instructions Greenberg brought in expert witnesses to testify that segregation always meant inequality. Hugh Speer, a professor of education at the University of Kansas City, said there were significant differences in the curricula at Topeka’s black and white schools, even if the facilities were comparable. The personalities of black children, their social interests, and their friends were all hurt by segregated schools. “If the colored children are denied the experience in school of associating with white children … then the colored child’s curriculum is being greatly curtailed.”28

  Lester Goodell, the school board’s attorney, responded that racial segregation in schools was within the law under separate but equal. He dismissed Speer’s testimony about the psychological impact of segregation on the young as not relevant.

  The three-judge panel issued a strong opinion that at first glance seemed to support the NAACP: “Segregation of white and colored children in public schools has a detrimental effect upon the colored children,” the judges wrote. “The impact is greater when it has the sanction of the law.… Segregation has a tendency to retard the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racially integrated school system.”

  But despite that position the judges somehow ruled unanimously against the NAACP. They said they had no choice since the law of the land, as set by the Supreme Court in Plessy, called only for equal schools for black and white children, not for integrated schools.29

  After the Topeka case ended, Carter wrote an upbeat memo to Marshall saying the trial had gone well and there was a good basis for a Supreme Court appeal. The “record in this case is actually better than the one in South Carolina,” he wrote, adding that he expected the two cases to reach the high court at the same time and possibly be consolidated.30

  Meanwhile, Marshall was keeping tabs on several other cases with the potential to join the South Carolina and Kansas cases before the Supreme Court. Spott Robinson and Oliver Hill, two Howard Law School graduates who formed a Richmond law firm, remained close friends with Marshall. Both men had attended the NAACP lawyers’ meetings to discuss new strategies for dealing with school segregation, and Robinson had been with Marshall at the South Carolina case. With Marshall’s encouragement Hill and Robinson were on the lookout for a good case from Virginia, capital of the Confederacy, and they traveled from one local NAACP meeting to another to discuss the fight against school segregation.

  While Hill and Robinson were trying to select a county for a case that fit with Marshall’s efforts, a sixteen-year-old girl from Farmville, Virginia, called them to say she had started a black student walkout to protest segregated schools.

  The two lanky black lawyers from Richmond made the short car ride south to Prince Edward County. At the First Baptist Church, they met with Barbara Johns and a group of black students who took part in her walkout. “The students in Farmville had already gone on strike,” Robinson recalled. “They got 456 students involved in this, and they organized it, got everything ready. And didn’t tell their parents or anybody.”

  The high school students made a deep impression on Hill. “The kids were so well disciplined and had such high morale and expressed themselves so well. We didn’t have the nerve to break their hearts,” he said. “We didn’t pick the Prince Edward County case, it just developed, and we just went to their rescue.”

  But just as judges had ruled against the NAACP in South Carolina and Kansas, the federal judges in the Virginia case said the law allowed the state to keep separate schools for black and white children. Although the schools were unequal, the judges said in their written opinion, they found “no harm or injury to either race—This ends our inquiry.”31

  * * *

  While the Virginia case was being argued, Marshall was distracted and upset. June Shagaloff, a pretty twenty-three-year-old Jewish woman who had come to work as an assistant to Marshall, had been arrested and jailed. She had gone to Cairo, Illinois, at Marshall’s direction to help the local NAACP branch negotiate a voluntary plan for school integration with the all-white school board. The idea was to see if Shagaloff could help the board and the NAACP avoid a time-consuming, expensive legal fight.

  Illinois, unlike its neighbors to the south, did not have state laws requiring school segregation. But schools in the southern part of Illinois were segregated as a matter of local custom, and they were as hard-line as anywhere in the South. Shagaloff quickly found Cairo a “very hostile” place. Marshall had arranged for his assistant to stay in the home of an elderly black woman and for two black men to take turns guarding her.

  But constant threats led Shagaloff to fear for her safety, and her guards taught her how to shoot a gun. Just as Shagaloff began to make headway with the school board, the home of a prominent NAACP member was bombed. In a strange turn of events a few days later, seven local NAACP officials, as well as Shagaloff, were arrested on charges of conspiracy to harm children by creating a volatile situation in the schools.

  The black NAACP members were set free on $1,000 bond shortly after their arrest, but Shagaloff remained in jail since she had no local property to offer. Although the black residents of Cairo volunteered their homes as bond for her, the police chief refused. Association leaders in Cairo were hysterical with fear over what might happen to her in jail, and they made frantic long-distance phone calls to Marshall. After telephoning the FBI and demanding protection for Shagaloff, Marshall immediately flew to Cairo.

  A day and one terrifying night after her arrest, a downcast and scared Shagaloff brightened when she saw Marshall stride into the jail. “The police chief had his feet up on the desk,” she recalled. “He had a triple belly over his belt—a fat, slobby, uneducated man with this big, stubby cigar. He looked like a caricature from a Grade C movie. Mr. Marshall took a straight chair and straddled it, had his arms wrapped around the back, and just chewed the fat with this police chief. You would think they were old buddies. And that went on for half an hour, forty-five minutes. And finally Mr. Marshall said, ‘How about that man’s bond that he put up for her, pretty good isn’t it?’ And the police chief said, ‘I guess so.’ ” A few minutes later the chief got up and unlocked the cell door, releasing Shagaloff. The charges were later dropped.

  Shagaloff’s efforts eventually paid off. “We got the schools desegregated in Cairo, in Carbondale—a radius of about thirty miles.” She recalled.32

  Even
as Marshall had to put out fires around the country, his strategy for school desegregation was beginning to bear fruit. The Supreme Court agreed to review Marshall’s appeals in the South Carolina and Kansas cases. When the court opened its new session in the fall of 1952, the appeal of the Virginia case was added to its docket. Marshall was thrilled; they would be heard together, and the constitutionality of segregation would have to be addressed directly. With cases coming from different parts of the country, and with a variety of scenarios—some where schools for black and white children were already equal and some where they were grossly unequal—the court’s ruling would apply nationwide.

  The addition of the Virginia case, however, led the high court to delay the arguments, until December 1952, which caused another surprise development. The court asked for two more cases—one from Washington, D.C., and another from Delaware—to be presented at the same time.

  The District of Columbia case was atypical. The nation’s capital was not a state, and the Fourteenth Amendment requiring the states to grant equal rights to all citizens did not apply. Washington’s school board had to be challenged to integrate schools under the Fifth Amendment’s due process clause. The D.C. case had started back in 1948 under Charles Houston, but when he fell ill, the Howard law professor James Nabrit agreed to pick it up. The case was waiting to be heard by an appellate court when the Supreme Court asked that it be added to its docket.

  The high court soon became interested in a fifth case from Wilmington, Delaware. It was being handled by a local NAACP lawyer, Louis Redding, with the assistance of Jack Greenberg. What was odd about the Delaware case was that the NAACP had not appealed it to the Supreme Court. The state of Delaware was appealing a lower court order that black students be integrated into previously all-white schools.