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.
I completed part of my doctoral thesis in August 1941, qualifying for an LLM degree, which was awarded in February 1942. By that time I had been drafted and had completed roughly six months of service in the Army Air Corps. My armed forces career was marred by a series of confrontations and encounters with military personnel generated by racial bias and antipathy. I came out of the armed services disillusioned, angry and determined to use whatever talents I possessed to try to outlaw racial segregation and discrimination. Judge William Hastie, then dean of Howard University Law School and a heroic figure to me, recommended my employment on the legal staff of the NAACP.
Because I had scholarly credentials, my charge as assistant NAACP counsel was to expand the law’s reach on issues of racial equality, and particularly to devise the legal strategy that would invalidate government-mandated segregation in education and subsequently in all other areas of American life.
After trying a few pending voting-rights cases and a teachers’ salary case in Mississippi, in which I supervised and assisted Constance Baker Motley, who had just become a full-time member of the staff in her first trial, I began concentrating on education. By 1950, after the Supreme Court’s decisions in Sweatt v. Painter, Sipuel v. Board of Regents of the University of Oklahoma and McLaurin v. Oklahoma State Regents (my first argument before the High Court), qualified blacks were entitled to admission to state university colleges and graduate and professional schools on a basis that left the separate-but-equal doctrine moribund but still alive.
Public school segregation was our next and final target. In approaching this issue it was clear that the Court’s rationale for determining whether the facility set aside for blacks at the university level met the requirements of the Plessy doctrine (for example, the black facility would be found lacking on the basis of comparing its alumni against the long line of distinguished alumni of the main institution; the public would perceive the black facility as an inferior academy; and there was a need for free intellectual intercourse) would not be persuasive in seeking to outlaw segregation in primary and secondary schools, where the physical facilities, curriculums, courses of instruction and teaching personnel were supposed to mirror one another. We could prove there were disparities in the physical facilities, but eliminating these deficiencies, though it could result in improvements at the segregated schools, would leave the Plessy doctrine alive and well. We were eager to have “separate but equal” explicitly overruled.
I thought I had found what was needed in a study by Otto Klineberg, a professor in the social science department at Columbia University. He showed that the longer black children migrating from the South to Philadelphia remained in the city’s integrated schools, the higher they scored on IQ and intelligence tests administered by school officials. I interpreted this data as evidence that segregation had a deleterious effect on black children’s ability to learn.
I went to see Professor Klineberg and told him that we were preparing for a trial in Clarendon County, South Carolina, attacking segregation in its public schools and that his study supported our contention that segregation adversely affected the ability of black children to learn. I asked him to testify as one of our experts. Klineberg said no, but told me about the work of Drs. Kenneth and Mamie Clark, both products of Columbia University graduate school, who used dolls to show the impact of discrimination on black children.
The Clarks had founded the Northside Center for Child Development in Harlem, a not-for-profit agency for disturbed children and their families. It was the only such agency of its kind in New York, and probably the nation. Mamie ran the center, while Kenneth held professorial rank at City University, teaching courses in psychology.
Their doll test is as follows: African-American children are shown a black and a white doll and asked to indicate which is the good doll and which is the bad doll. African-American children invariably attributed all negative traits to the black doll, all positive ones to the white doll and bonded with the white doll as being most like them. We had Kenneth use the dolls to test the children in the South Carolina case (Briggs v. Elliott) and relate the results as one of our expert witnesses. The Clarks also sat at the counsel table with me in the two other cases I tried, helping me prepare the cross-examination of the state’s psychologist and psychiatrist in those cases. I took Jack Greenberg, who had joined the legal staff circa 1948, with me to Topeka to supervise and assist him in trying his first case.
Brown v. Board of Education is the rubric under which the four state cases brought under the Fourteenth Amendment were combined and litigated. I tried Briggs v. Elliott from South Carolina, Brown v. Board of Education from Topeka and Davis v. County School Board of Prince Edward County from Virginia. Jack Greenberg and Louis Redding handled Gebhart v. Belton from Delaware, following the legal strategy formulated by me and utilized in all the NAACP-sponsored cases. In addition, there was a case from the District of Columbia (Bolling v. Sharpe), which was not part of the NAACP litigation, that sought to have segregated educational facilities struck down under the Fifth Amendment.
We were able to secure a number of social scientists, educators, historians, psychologists, etc., to testify as expert witnesses, once they understood that we did not want them to go beyond what their research could support. Otto Klineberg initially declined to be one of our expert witnesses, I suspect because he thought I would ask him to go out on a limb for the cause. I never wanted our witnesses to do that, since their credibility could be destroyed or made suspect under informed cross-examination. An expert witness whose credibility crumbled under cross-examination could have compromised our effort to persuade the Court to adopt our contentions. Once we made clear to the experts we recruited that we wanted them to testify only about what they could firmly defend, we had little trouble securing experts in history, psychology, education, social science and so forth to become our witnesses.
In the trial of the Topeka, Kansas, case (Brown), Louisa Holt, a psychologist who testified about the adverse effects of segregation on black children’s ability to learn, said there was an adverse effect on white children as well. She said she had children in the Topeka public schools and that segregation was going to leave her children unprepared to deal with the diverse people and cultures they would face as adults.
In all these cases, our basic thesis was that even if school facilities for black children were made substantially equal to those for whites, segregation nonetheless impaired the ability of the black child to learn and therefore violated the Constitution. The Supreme Court adopted this argument in its May 17, 1954, holding on the merits.
Charles Houston was the father of Brown. He initiated the legal strategy that ultimately culminated in the May 17, 1954, decision. He secured the admission of the first African-American to the University of Maryland and subsequently won the Gaines case requiring equality of physical facilities in fact before segregation could win Court approval. Given the limited number of blacks qualified at the time for entry at the state university graduate and professional school levels, segregation at the highest levels of the state educational system was doomed. It was not feasible on economic grounds, when the few qualified black applicants could be readily absorbed into the main institution. Social science data, moreover, showed that segregation was a restriction on the learning reach of the black child and was at war with the Fourteenth Amendment’s equal educational opportunity mandate. Brown is, thus, the product of black legal skill and strategy. I have been telling friends jokingly that Brown v. Board of Education has an African-American cultural copyright with an acknowledgment of appreciation to the NAACP, but there is truth and reality to that statement. Brown was conceived and won through NAACP-sponsored litigation, by lawyers employed by that organization.
The 1954 Brown decision is now regarded as the most important Supreme Court decision of the twentieth century. This majestic ruling, however, was compromised by the “all deliberate speed” or “over time” relief formula the Court adopted in 1955, the first time it has ever deferred immediate vindication of a successful litigant’s entitlement to a constitutional right. The over-time provision corrupts Brown with racist delimitations, scored with a white supremacist brush.
Moreover, taking stock of the current state of public education, it is clear that Brown has not achieved its primary purpose of guaranteeing equal educational opportunity for children of color. Yet, in making equality for all people a fundamental tenet in our society, Brown provides the foundation for activists and scholars committed to fulfilling its promise to pursue that goal. I am optimistic or fatuous enough to believe that at some future point in time, America will give credence to that unfulfilled promise.
Robert L. Carter, a senior United States district judge, Southern District of New York, was chief assistant to Thurgood Marshall from 1945 to 1956 and NAACP general counsel from 1956 to 1968. His memoir will be published by the New Press this fall.