Segregation was crushing; it crushed black people's belief that what they said and did and thought counted for something. Thurgood Marshall led a team of lawyers before an all-white court and gave us one of the three or four most important constitutional decisions this country has ever seen. [This team] was led by a black man. I was 22 when that decision came down and it made me a better person. May 17, 1954 was our second Emancipation Proclamation.
Other than his historic appointment to the U.S. Supreme Court, Thurgood Marshall is best known for the landmark case he argued before the court thirteen years earlier: Brown v. Board of Education. Yet for many years, Marshall and much of the nation's black leadership were leery of taking on the tremendously volatile project of desegregating the nation's public schools. So, rather than breaking down the door to the segregated schoolhouse, Marshall and his allies pried it loose, hinge by hinge.
In the first half of the 20th century, school segregation, either by law or custom, was practiced across the United States. Buildings and programs for blacks were always inferior, especially in the South. In the late 1940s, for example, Atlanta spent $570 per white pupil on school facilities, but only $228 for blacks. In Clarendon County, South Carolina, the local school district spent about $180 for each white pupil and $43 on each African American child. Though the inequities were so obviously appalling, white Southerners opposed integration for a range of reasons. They worried that black children they considered intellectually inferior would drag down educational quality for the their own kids (Some arguably less bigoted white parents regarded black children as poorly educated, not necessarily less intelligent. Nevertheless they didn't want them in their own children's classrooms). Whites feared the specter of their children mixing socially with blacks, and frequently warned of taboo behavior such as interracial dating and sex. Above all, whites resisted the fundamental threat to their supremacy that school integration posed.
From as early as the 1920s, Marshall's mentor at Howard University law school, Charles Hamilton Houston, believed the surest way to defeat legal segregation was to attack it in state-funded schools, whatever the opposition. Houston, along with his cousin and fellow law professor William Hastie, thought that integrating schools would have more far-reaching effects than desegregating any other public facility or institution. It would eliminate the vast disparities between the quality of education available to most whites and blacks and help to diminish racism as whites, growing up in the same classrooms as blacks, would see that the races really weren't so different.
Thurgood Marshall agreed that Houston's approach would be the best long-term strategy against the system of so-called "separate-but-equal" public facilities. But until the late 1940s, he directed the NAACP's Legal Defense Fund to follow what he saw as a more prudent, interim effort: using the courts to demand that states make the separate institutions equal. The NAACP-LDF strategy assumed that, in the long run, local districts could not afford to sustain two equal and separate school systems; eventually, they would be forced to integrate. Marshall and his colleagues were in an especially difficult situation. Their lawsuits demanded that separate "colored" facilities be made genuinely equal, but the lawyers were careful never to actually endorse the 1896 Plessy v. Ferguson ruling that separate-but-equal facilities were constitutional.
In the 1930s and 40s, Marshall and the LDF challenged segregated busses, unjust treatment of blacks in local courts, noxious voting restrictions, unequal pay for teachers and segregation of state-funded graduate schools. By 1950, with an impressive string of victories to their credit, the Fund was ready to attack segregation head-on-in public elementary and secondary schools. They resolved to go for "the whole hog," as Marshall put it. They would deluge Southern states, and the District of Columbia, with lawsuits demanding school integration. This onslaught would culminate in the cluster of cases from the four states and Washington D.C., collectively known as Brown, that ended up in the Supreme Court.
According to historian James T. Patterson, the time was right. "So many larger postwar forces - including rising expectations and restlessness among blacks; slowly changing white attitudes about racial segregation; the Cold War, which left Jim Crow America vulnerable to the charge of hypocrisy when it claimed to lead the Free World - were impelling the nation toward liberalization of its racial practices."
In Brown, legal scholar Mark Tushnet says, Marshall's strategy was to compel the justices to make a choice about segregation, knowing they had no choice but to reject segregation. Loren Miller, a California attorney who collaborated with the NAACP Legal Defense Fund, told Tushnet that Marshall and the NAACP lawyers had an "acute perception" of the social and political tides favoring their cause, and knew how to "take them at their flood and translate them into constitutional concepts palatable to Supreme Court justices."
Thurgood Marshall managed the sprawling legal assault on public school segregation; the work involved an extraordinary range of leadership skills: supporting the courageous, everyday people who agreed to serve as plaintiffs in the lawsuits, shoring up hundreds of southern NAACP workers, some of whom faced harassment and death threats, working with a spectrum of lawyers in towns and cities across the country, consulting regularly with the nation's top legal experts, managing complex political relationships inside and outside the NAACP and raising money to keep it all going. By all accounts, Marshall's humor, magnetism and sheer stamina made him adept at presiding over the collection of lawsuits Brown comprised.
Marshall was especially effective, however, in a room full of legal strategists. "It's hard to be a great leader," historian Roger Wilkins says, "If you're afraid of smart people. Thurgood Marshall wasn't afraid of smart people…Marshall was brilliant in his ability to learn from other smart people." William Taylor, who joined the NAACP Legal Defense Fund just after the Brown ruling, told American RadioWorks:
Thurgood had this kitchen cabinet that he would convene on important issues or cases to pick peoples' brains, and get motions to argue cases. Those were the most disorganized meetings - to outward appearances - and they could get almost out of hand with people telling stories…Thurgood was as much a disruptive force as the others. But when the meeting was over, he had accomplished his purpose - he had gotten the three or four arguments he needed.
William Coleman, one of the chief architects of the Brown strategy and Thurgood Marshall's life-long friend, told American RadioWorks:
I'd gone to Harvard and he'd gone to Howard but the thing I found about Marshall is he'd have the most brilliant people around in a room and he'd listen and ask questions and you knew at the end of the meeting he was the most respected [lawyer there]…There were a dozen of the top legal scholars in the room, but in the final analysis, Marshall was the one that commanded the room.
Of the 11 lawsuits filed on behalf of African American children in the South and the District of Columbia, five cases - from South Carolina, Virginia, Delaware, Washington, D.C. and Kansas - finally arrived at the Supreme Court in 1952 under the heading of Brown. (Technically the District of Columbia case falls under the heading, Bolling v. Sharpe, but the five cases together are known as Brown). Marshall, along with Jack Greenberg, Spottswood Robinson, Oliver Hill and other lawyers for the five plaintiffs presented oral arguments for three straight days in December 1952, then again in December 1953.
The thrust of Thurgood Marshall's argument before the Supreme Court was that laws either requiring or allowing school segregation violated the 14th Amendment guaranteeing equal protection under the law. To Marshall, this was obvious. Mark Tushnet told American RadioWorks:
Marshall had what might seem to be an extremely simple view of the Reconstruction Amendments - the 13th, 14th and 15th Amendments - designed to secure racial equality. He thought racial equality was just plain common sense. In the briefing in Brown v. Board of Education it's quite striking that the NAACP says racial segregation doesn't make any sense. It's unreasonable. Contrary to common sense. In that sense [Marshall] was an idealist about the Constitution in that it embodied this idea of racial equality that anyone should be able to understand.
This idealism is largely what drove Thurgood Marshall in his 30-year battle to secure African Americans equal treatment under the law. Added to the Constitution after the Civil War, the three Amendments were designed not only to protect blacks from slavery, but to guarantee them equal rights. Yet within two decades of the Emancipation Proclamation, the Supreme Court began routinely issuing decisions gutting the 13th, 14th and 15th Amendments of what seemed their obvious intent. Striking at the heart of Plessy was crucial to reversing the tide of racist laws the Court condoned and upheld for nearly 80 years.
Marshall's argument before the Supreme Court also featured an unusual element: social science data. Psychologist Kenneth Clark had carried out experiments in Massachusetts, Pennsylvania and Arkansas using dolls to show that racial segregation made black children feel inferior to whites. Thurgood Marshall and his second-in-command at the NAACP Legal Defense Fund, Robert Carter, read Clark's work and drafted him into their courtroom army. In a recorded interview, Kenneth Clark recalls:
Bob [Carter] read the report and about two weeks later, he called, rather enthusiastic. He said, 'My God, this couldn't have been better if it were prepared for us!' Next thing I knew, he and Thurgood…had dragooned me. I mean, they just took for granted that I was going to be with them from that point on. And that, by the way, was true. I just was brought in, as a functioning member of their staff.
Not everyone on the LDF team thought Clark's doll studies should be part of the strategy. They worried that including interpretations of children's psyches rather than just interpretations of legal precedents was risky. But Marshall sensed the Court would respond well to scientific evidence of segregation's social harms. Legal scholar, Mark Tushnet:
Marshall understood he was dealing with judges who were part of what we now think of as the legal realist tradition. They thought of law as social policy and that Carter's material, the doll studies and the like, would make some of the justices more comfortable with the claims that were being made…that segregation could never be equal.
Marshall told an interviewer in 1977:
I went to the basic principle that if you had an automobile accident and you are 'injured,' you have to prove your injuries - you had to put on [the stand] a doctor, and the doctor will explain what your injuries are and how you are damaged. So I said that these Negro kids are damaged, we will have to prove it. Everybody said, 'You're crazy.' I said, 'How can you prove it?'
On May 17, 1954 the Supreme Court finally upheld the promise of the 14th Amendment. The nine Justices ruled - unanimously - that segregating schools on the basis of race was unconstitutional. Chief Justice wrote the opinion, which suggested that the doll studies had some effect in persuading the Court that segregation was psychologically harmful to black children. Justice Warren wrote: "To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." Plessy had contended that black people chose to feel inferior when segregated from whites; Brown said the feeling was inevitable.
Thurgood Marshall called the Supreme Court's ruling the "greatest victory" in the NAACP's history. And it was. He also predicted that schools would be fully integrated within five years. He was wrong. While legal experts and civil rights historians describe Brown as one of the most influential court cases of the 20th century, the actual dismantling of legal segregation would take far longer than Marshall predicted.
When the Supreme Court issued its ruling in 1954, it did not say when or how the South should desegregate its schools. The Justices put off that decision for a year. Richard Kluger, author of Simple Justice: the History of Brown v. Education and Black America's Struggle for Equality (2004), says the Court faced a dilemma:
It was one thing to reach a judgment on principle…But there was concern at the same time as to how are we going to do this? If we do it in a way that's too abrupt, too harsh, too confrontational, the South will rise up and really oppose us. There could be violence for we don't know how long. It could work out so badly that we (the Court) would be reduced in stature and the country could be thrown into chaos.
Marshall and his legal team understood the Court's concerns, but urged the Justices to set a firm deadline for desegregation. Richard Kluger:
They felt - if we have a constitutional right to equal schools - and of course what flowed from that, meaning the end of all Jim Crow laws - we have that right now. It's an immediate right; it's an individual right, and you can't stall us on this. You've kept us waiting for three centuries; you've gotta move ahead.
On May 31, 1955, the U.S. Supreme Court ordered schools to desegregate with "good faith" and "all deliberate speed." But the ruling set no firm date for segregation to end. Thurgood Marshall was disappointed with the Court's decision, but remained hopeful about reaching the ultimate goal. In a telephone conversation with an old friend and supporter, Carl Murphy, president of the Afro-American newspaper in Baltimore, two days after the Court's "Brown II" decree, Marshall is upbeat:
Marshall: What do you think of Tuesday's decision?
It turned out that the white "crackers" would take a long time to tire. Indeed, they were just getting started.
To read more about the Brown v. Board of Education decision, read this essay by Leon Friedman.