In the early 1930s the NAACP took on as its primary mission the elimination of segregation in public education, from primary school to the highest reaches of the state university system, including the graduate and professional schools. Charles Houston was hired as NAACP counsel to undertake this assignment.
Houston viewed the Fourteenth Amendment to the US Constitution as the black Magna Carta. He was convinced that the strategic use of test cases to challenge the constitutional validity of racial discrimination in the various areas of American life would eventually put that detriment to blacks beyond the pale.
In 1929 Houston became dean of Howard University Law School and transformed his idea into school policy. For at least the next decade the law school trained its students in the use of the Fourteenth Amendment to fight racial discrimination and urged its graduates to return home and put various local discriminatory policies and practices to the constitutional test. Thus civil rights law was conceived; it would become a course of study in every mainstream law school in the country.
Houston succeeded in securing the admission of Donald Murray to the University of Maryland Law School in 1936. In a subsequent suit he opened the University of Missouri Law School to black applicants. This landmark case, Missouri ex rel. Gaines v. Canada, was decided by the US Supreme Court in 1938.
Segregation had been given the Supreme Court’s stamp of approval in 1896 in Plessy v. Ferguson under the separate-but-equal doctrine, which held that blacks could be kept apart from whites as long as the facilities to which blacks were confined were substantially equal to those for whites. While segregation was firmly enforced, the segregating states were lax about providing equal facilities. In the Gaines case the Supreme Court ruled that Missouri had to admit black resident applicants to the university law school because it had not provided them with separate equal facilities as required by the Plessy v. Ferguson doctrine.
The case had a personal resonance for me. I was a law student at Howard at the time, and it was the first Supreme Court argument I had heard. At the hearing, when Houston rose to begin his argument Justice James McReynolds turned in his chair and kept his back to Houston throughout his presentation. In retrospect, it seems remarkable that no one witnessing this petty discourtesy from an official supposedly representing all Americans, whatever their race, color or ethnicity, reacted with disapproval. Nor do I myself recall feeling any outrage at the time. In 1938 the second-class status of blacks was accepted by both blacks and whites as a fact of life. We have moved on from that era, and I am now filled with anger whenever I recall Justice McReynolds’s unseemly behavior. Of course, any Supreme Court Justice guilty of such demeaning action today would become the center of a national firestorm.
Shortly after the Gaines victory, Houston left the NAACP and turned the job over to his assistant and former student, Thurgood Marshall. I became Marshall’s assistant in 1945. The drive to end discrimination in education had been put on the back burner during World War II. At the time, Marshall had no staff and was chiefly involved in opening the Democratic Party primary in the South to give meaningful effect to the black electorate’s constitutionally protected right to vote. I joined the legal staff of the NAACP with the credentials of a scholar. I had graduated from Lincoln University and Howard University Law School with high honors and was awarded a Rosenwald fellowship, which enabled me to enroll in Columbia University seeking a doctorate in juridical science based on a doctoral thesis that would probe the extent to which the preservation of the First Amendment was essential for the maintenance of a democratic society.