by Jim Newton
At first, the education cases were aimed not at the “separate” or segregationist prong of Plessy but rather at its command that such separate facilities be “equal.” Marshall, Houston, and their colleagues accepted, for a time, the existence of segregated schools but demanded equal pay for Negro teachers, and later fought for equal educational facilities. In 1935, Marshall made the University of Maryland pay for its unwillingness to admit him when he successfully sued to force its integration. Three years later, Houston brought a similar case to the United States Supreme Court, where he argued on behalf of Lloyd Gaines, a promising student who was president of his class at Missouri’s black college, Lincoln University. Gaines wanted to go to law school, but Missouri offered no legal education for blacks. Instead, it proposed to give him a scholarship to study elsewhere or to open a new law school at Lincoln just for Gaines.8 Neither option appealed: Gaines wanted the advantages of studying law in his home state, and he well knew that a one-man law school was no law school at all.
Charles Evans Hughes wrote for the majority that rejected Missouri’s solution. “The admissibility of laws separating the races in the enjoyment of privileges afforded by the State rests wholly on the equality of the privileges which the laws give to the separated groups within the State,” Hughes wrote. “The white resident is afforded legal education within the State; the negro resident having the same qualifications is refused it there and must go outside the State to obtain it. That is a denial of the equality of legal right to the enjoyment of the privilege.”9 Hughes’s opinion for the Court breathed new commitment into equalizing educational opportunities, but it notably did not attack segregation itself. If schools were equal, they could still be separate (the bitter, aging Justice McReynolds would not have given even that much; in dissent, he noted that Missouri could opt now to close its law school for whites or could break down segregation and, in the process “damnify both races.”10).
Gaines gave Marshall and Houston a significant new tool for attacking separate-but-equal, and through the 1940s they wielded it again and again at states that were offering a façade of equal education to blacks. Those cases, which were collectively referred to as the “graduate-school cases,” were among the proudest of Chief Justice Vinson’s tenure, though they did not accomplish as much as he and some observers have suggested. In 1946, the University of Oklahoma refused to admit Ada Lois Sipuel, and she sued. Oklahoma courts upheld the university’s right to discriminate against her, but she pressed her cause. The Supreme Court heard argument on January 7 and 8 of 1948 and ruled less than a week later, brusquely reminding the Oklahoma courts of the Gaines decision and stating unequivocally that Sipuel was “entitled to secure legal education afforded by a state institution.” Oklahoma, the justices declared in their brief per curiam opinion, was obligated to provide it to her “in conformity with the equal protection clause of the Fourteenth Amendment.” 11
Two years later, the Court took up the more complicated case of Heman Sweatt, a Houston mailman who was barred from becoming a clerk because of his race and so decided to become a lawyer. At the time, Texas did not provide a law school for blacks, but it rushed to build one in the face of Sweatt’s lawsuit. By the end of 1946, it had a law school ready to accept a Negro student, but Sweatt wanted none of it, and no wonder. The University of Texas law school, open only to whites, had sixteen professors, 850 students, a library stocked with 65,000 books, “many distinguished alumni, and much tradition and prestige.”12 The hastily constructed law school for Negroes was ready to take Sweatt in early 1947, but it was to be staffed by four professors on loan from the University of Texas; it had ordered 10,000 books, but few had arrived. It had no librarian and was unaccredited. By 1950, when the case had reached the U.S. Supreme Court, the school had just five professors, twenty-three students, 16,500 books, and one alumnus who practiced law. Sweatt wanted a real legal education and the real benefits that might flow from it; he refused to accept the knockoff version offered to him by Texas. In Texas, the trial court rejected Sweatt’s lawsuit, finding that the school for blacks was “substantially equivalent” to that provided to whites, a finding upheld on appeal and allowed to stand by the Texas Supreme Court.13
Vinson wrote for his Court. Despite their quarrels, here the justices spoke as one and borrowed from their own experience as law students to say what the Texas courts would not admit. “Few students and no one who has practiced law would choose to study in an academic vacuum, removed from the interplay of ideas and the exchange of views with which the law is concerned,” the Court ruled. “The law school to which Texas is willing to admit [Sweatt] excludes from its student body members of the racial groups which number 85% of the population of the State and include most of the lawyers, witnesses, jurors, judges and other officials. . . .With such a substantial and significant segment of society excluded, we cannot conclude that the education offered [Sweatt] is substantially equal to that which he would receive if admitted to the University of Texas Law School.”14
The decision in Sweatt was announced the same day as a second challenge to a segregated graduate school. In Oklahoma, George McLaurin, who already had a master’s degree, hoped to continue with his studies and secure a doctorate in education. He applied to the University of Oklahoma and was rejected because of his race. An Oklahoma judge, citing the Gaines and Sipuel rulings, ordered McLaurin admitted. Before Oklahoma would make a place for him, however, its legislature attached humiliating conditions to his schooling. McLaurin was given a desk in an anteroom off the main classroom, behind a sign reading, “Reserved for Colored.” He had a designated library area and was prohibited from the regular reading room. He was segregated as well in the cafeteria, where he ate at a different time from the white students. While he sued to correct those demeaning impositions on his schooling, the school altered some of them, but when he came to the Court in 1950, McLaurin still was the subject of practices intended to emphasize his remove from his fellow students: He sat alone in a row of classroom desks, he had his own place in the library, and though he now was permitted to eat at the same time as the white students, he sat alone there as well. 15 The Court recognized that even if it removed the barriers to his integration, McLaurin’s fellow students might shun him; still, the Court could not help but find that isolating McLaurin by law was depriving him of a fully meaningful education. “There is a vast difference—a Constitutional difference,” Vinson wrote for the Court, “between restrictions imposed by the state which prohibit the intellectual commingling of students, and the refusal of individuals to commingle where the state presents no such bar.”16
McLaurin represented a particularly important advance for the Court, though it took that step reluctantly and almost invisibly. George McLaurin had access to the same classrooms and library as his white counterparts; only the obnoxious conditions of that access differentiated him. It was his separation from his fellow students that caused the inequality of his education, the Court realized. The restrictions that set McLaurin apart from his fellow, white students “impair and inhibit his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession,” Vinson said for the unanimous Court.17 With that recognition, the Court was tantalizingly close to saying that segregation was inequality. It had admitted, after all, that separation within a school denied a black student equal protection. How, then, could it help but conclude that the exclusion from a school itself would also constitute a constitutional offense? And yet the Vinson Court could not quite bring itself to say that.
Thus, while the decisions in McLaurin and Sweatt opened educational opportunities for the plaintiffs, they did not, as some have written, represent a “chipping away” at Plessy. In fact, the Court specifically refused to accept Marshall’s attempt to coax it into using the cases to strike down separate-but-equal. “Broader issues have been urged for our consideration,” Vinson wrote. But, he added, “we adhere to the principle of deciding constitutional quest
ions only in the context of the particular case before the Court.”18 The justices were prepared to enforce Plessy and demand equal facilities for black students; they were not ready, under Vinson, to accept the notion that separate facilities were by definition unequal.
As the Court waded cautiously through the school segregation debate, blacks were challenging a range of other Jim Crow laws and traditions. The white primary—Southern Democratic primaries in which only whites were permitted to vote—was under assault, as was segregation in public accommodations and transportation. Enlightened public opinion was moving, however haltingly, against those who separated black and white. The fight against Hitler inevitably cast questions back upon the United States: If racism was so invidious in Nazi Germany, how could it be easily tolerated at home? The rise of Communist Russia also gave poignancy to Jim Crow. Again, the question for segregationists was a hard one when posed against the nation’s international objectives: How could America denounce sham elections in Communist countries when it denied the vote and education to its own black citizens?
Those doubts were reinforced by the 1944 publication of An American Dilemma, Gunnar Myrdal’s epic work of sociology, a two-volume study of American race relations as pathology. Myrdal’s candid exploration of sexuality and the fear of miscegenation recast racism not just in moral but also in psychological terms, and humiliating ones at that. Moreover, his accumulation of anecdotal and statistical information made his findings difficult to ignore. Myrdal instantly became a villain to much of America’s white South, which pounced on his socialist leanings and cast him as an outside interloper interfering in long-established customs and mores. But America’s liberal intelligentsia now had its antisegregation text, seemingly refutable only by ad hominem attacks on the author.
Blacks and whites were integrating in other aspects of American life as well, though not without difficulty. The most notable of those breakthroughs came in 1947, when Jackie Robinson joined the Brooklyn Dodgers. Robinson endured cat-calls, death threats, and the sustained attack on his health and humanity, but he played with breathtaking skill and spirit, and even the tumult around him could not keep him from winning the Rookie of the Year Award. With time, Robinson’s grace and talent won over many of those initially hostile to the integration of the national pastime and cleared the way for many other blacks to follow. Earl Warren—while governor of California and, as always, an inveterate baseball fan—was among those who cheered Robinson’s arrival. For Warren, Robinson appealed to two sources of pride, his love of baseball and of California. Robinson was raised in Southern California—the “Pride of Pasadena,” as his hometown liked to call him—and educated in the same university system as Warren.
If white and black baseball players could coexist, then why not white and black soldiers? On July 26, 1948, President Truman signed Executive Order 9981. In it, he declared that there “shall be equality of treatment and opportunity” throughout the military. Truman did not order desegregation overnight, and his language reflected the strong sense that integration was best handled slowly. The new policy, according to the order, “shall be put into effect as rapidly as possible, having due regard to the time required to effectuate any necessary changes without impairing efficiency or morale.”19
At the end of the decade, the cause of black equality received yet another advance. In 1950, the same year that the Court decided Sweatt and McLaurin, Ralph Bunche became the first black American to win the Nobel Peace Prize, awarded for his diplomatic work in pursuit of peace in the Middle East; in that light, it was difficult for any but hardened racists to claim intellectual inferiority for blacks.
And yet those signs of progress were sometimes hard to spot on the landscape of American racism in the early 1950s. Lynchings were rare but still occurred. In eight states, most public facilities were segregated; eleven required Negroes to ride in the backs of buses; fourteen states segregated mental patients; six prohibited black and white prisoners from being chained together. And in the area of education, seventeen states required school segregation, while another four allowed it. The District of Columbia, home of the federal government, practiced segregation. 20 And though much of intellectual America had moved away from it, the practice was not yet consigned to ignominy. As late as 1956, William Faulkner, himself a winner of the Nobel Prize and the great sage of the South, counseled American blacks not to claim their freedom too quickly. Faulkner’s rejoinder to the NAACP: “Go slow now.”21
It was against that backdrop that Marshall and the NAACP took a brave step as the 1950s opened. One week after the Court decided Sweatt and McLaurin, Marshall convened a meeting of lawyers and professors to plot a strategy for ending segregation “once and for all.”22 Later that month, an NAACP conference approved a resolution adopting the policy that all pleadings in all education cases going forward would be “aimed at obtaining education on a non-segregated basis and that no relief other than that will be acceptable.”23 That was a daring departure, highly controversial within the NAACP itself. Despite the victories that the organization had won for individual plaintiffs, no one could be sure whether the Supreme Court was willing to reconsider separate-but-equal schools. The Court had, after all, upheld the notion time and again, even in rulings favoring Negro plaintiffs. Just as troubling was the possible reaction of the NAACP’s own base. The school equalization cases had scored substantial victories, and even some of the most stubbornly segregated states in America were moving to improve Negro schools in order to head off litigation. To drop such a successful strategy just as its results were beginning to show was, for Marshall and his colleagues, to risk the support of their clients. Still, staying the course was perilous as well. It meant a nearly endless series of lawsuits aimed at equalizing schools one state or community at a time. That road was long and expensive. And its pursuit would always be halfhearted, as it forced Marshall to swallow the principle of segregation in order to help those victimized by it. However cautious he was as a litigator—and Marshall was a decidedly careful lawyer—he also was a black man tired of the indignities that his nation permitted to be served upon him.
And so as the 1950s began, Marshall and the NAACP traversed the American South, identifying school districts and plaintiffs that might give them their landmark case. Eventually, five lawsuits—one each from Kansas, South Carolina, Virginia, Delaware, and the District of Columbia—would be consolidated into a single action. Collectively, they would become known as Brown v. Board of Education (actually, the D.C. case would be decided separately, but in the popular imagination, all five cases were lumped together). Individually, they began in the modest and personal struggles of families resolved to secure the best life possible for their young children.
The man for whom it was named was Oliver Brown. Brown was a welder and a pastor, a union member but not, interestingly, a member of the NAACP. He was a quiet man, a veteran, married to a beauty queen. One of his main complaints about his daughter’s school was not that it was inferior to the local white school but that his little girl, Linda, was forced to cross a rail yard to get there when the closer, whites-only school would not have subjected her to that danger. Brown was not the first to file his lawsuit—that honor went to the South Carolina parents—but he was chosen as the lead plaintiff in part because he was a man (NAACP lawyers saw that as potentially an advantage), in part because his union membership protected him to some degree from reprisals, and in part because his solid personal résumé rebutted the stereotype of NAACP members as radicals. In addition, placing the challenge to Topeka’s school board at the top of the litigation highlighted the fundamental issue—that of segregation, not of unequal facilities. Of the school district defendants, Topeka stood out in that it offered a remarkably sound education to its black children. It was, however, a segregated education, and on February 28, 1951, the NAACP filed suit on behalf of Oliver Brown to end it.24
After a trial in June 1951, the three-judge panel overseeing the case unanimously upheld Topeka’s seg
regation law and concluded that the facilities for white and black students were sufficiently equal to be constitutional under the separate-but-equal doctrine. Within the ruling against the plaintiffs, however, was a finding by the Court that would come to play an important role in the ultimate outcome. School segregation, the Court concluded,
has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of the law, therefore, 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 racial[ly] integrated school system.25
