The road to Oliver Brown, et al. v. Board of Education of Topeka, Shawnee County, Kansas, et al. began in the 1930s, when the National Association for the Advancement of Colored People (NAACP) and its legal arm, the Legal Defense and Education Fund, Inc. (LDF), adopted a program that would bring suits in state and federal courts challenging "Jim Crow" laws in which states imposed racial segregation in education. It led to overruling Plessy v. Ferguson (1896), in which the U.S. Supreme Court had held by a 7-1 vote that state-imposed racial segregation in public facilities was not "unreasonable" and did not violate the Equal Protection Clause of the 14th Amendment.
The approach devised by the LDF was not to confront Plessy head on at first, but to undermine it. The chief counsel of the LDF, Thurgood Marshall, was a Howard University educated lawyer who would eventually become a U.S. Supreme Court justice. (He led the LDF from 1938-61, when President John F. Kennedy appointed him to the U.S. Court of Appeals.)
In Pearson v. Murray (1936) and Missouri ex rel. Gaines v. Canada (1938), initial cases in the LDF program, the courts required Maryland and Missouri to admit black applicants to the state's white law schools; neither state had a black law school. In the Missouri case, the plaintiff, Lloyd Gaines, disappeared after the decision. While rumors abounded as to his whereabouts, the state opened a law school for blacks so that, if the issue came up again, white schools would not have to be integrated. The spirit of Plessy was alive and well.
Litigation efforts slowed in the 1940s, due to the nation's preoccupation with World War II. Nevertheless, the war spurred desegregation. Wartime labor shortages opened new job opportunities for black men and women. President Franklin Delano Roosevelt's Fair Employment Practices Committee, created in 1941, prohibited racial discrimination by defense contractors. After the war, President Harry Truman created the Committee on Civil Rights, which issued a report calling for the end of segregation based on race, creed, or national origin in American society.
In 1948, the cause of desegregation took a leap forward when U.S. Attorney General Tom Clark signed an amicus curiae brief in Shelley v. Kraemer, a case involving racial covenants. The brief signaled the federal government's support for the goals of LDF. In Shelley, the court declared racial covenants unconstitutional. Slowly, progress was being made toward getting a case before the Supreme Court in which the justices had to consider the question of separate and unequal public schools.
In 1950, the court invalidated segregation in law schools in Sweatt v. Painter and in graduate schools in McLaurin v. Oklahoma State Board of Regents. The latter case had begun two years earlier, when G. W. McLaurin, then in his 60s, applied to the Oklahoma University School of Graduate Education. (His wife had been rejected on racial grounds 25 years earlier.) LDF lawyers brought the case before the three-judge U.S. District Court, which held that the state violated the Constitution because it could not offer Mr. McLaurin a place in graduate school. No order was issued because the governor promised to propose legislation that would allow blacks to attend white graduate schools. Before any law was passed, the university admitted Mr. McLaurin, but forbade him to sit with white students; he was assigned to an adjoining room from which he could look into the main classroom. LDF lawyers sought an order prohibiting this form of segregation, but the district court refused to issue it.
The case dragged on. When the LDF appeal went to the U.S. Supreme Court, the university allowed McLaurin into the white classroom, though he was forced to sit in a blacks-only section. The court decided the case on June 5, stating that confining Mr. McLaurin to certain seats handicapped his instruction. "Such restrictions impair and inhibit his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession," read the opinion. For the first time, the court's opinion took note of the harms caused to black men and women by racial segregation. Many experts believed the decision struck the death knell for Plessy.
Brown v. Board of Education actually was the name used for five different cases, known collectively as the School Segregation cases. Each had been working its way through the court system during the early 1950s. In addition to Brown in Kansas, the cases involved Delaware, Virginia, South Carolina, and the District of Columbia.
Filed in March 1951, Brown challenged the laws of Kansas as they applied to Topeka, a city of 100,000. Ironically, it was not the most egregious of the School Segregation cases. The salary, training, and workload for black and white teachers were the same. But some black children were being bussed to distant schools, while whites walked to nearby facilities. A black third-grader named Linda Brown regularly walked the one mile through a railroad switch yard to get to her black elementary school, passing a white elementary school only seven blocks away. After her father, Oliver Brown, tried unsuccessfully to enroll her in the white elementary school, he sought the help of the Topeka branch of the NAACP.
A tricky problem in the Brown litigation involved the scope of relief. In 1952, when the case was first argued, the courts - and the black community itself - were divided on how, and at what pace, to order relief. Some feared that too much too fast could cause a backlash and change the minds of judges who stood behind the merits of desegregation.
Supreme Court arguments in Brown began on December 9, 1952. Arguing for the plaintiffs in the five cases were Robert Carter '41 LL.M (Brown); Thurgood Marshall (Briggs v. Elliott); Spottswood Robinson (Dorothy E. Davis, et al. v. County School Board of Prince Edward County, Virginia, et al.); George Hayes and Jim Nabrit (Spottswood Thomas Bolling et al. v. C. Melvin Sharpes, et al); and Louis L. Redding and Jack Greenberg '48 (Francis B. Gebhart, et al. v. Ethel Louise Belston et al.).
The defendants of the five cases were chiefly represented by John W. Davis, a former U.S representative, ambassador to Great Britain, and Democratic presidential nominee in 1924, when he lost to Calvin Coolidge by a landslide. The 79-year-old Davis, a founder of the New York white shoe firm of Davis, Polk & Wardwell, had also served as a U.S. solicitor general. He was known as a brilliant orator.
The plaintiffs argued along the lines that Plessy had been disingenuously circumvented. Schools and other public facilities were separate but hardly equal. Furthermore, the plaintiffs presented social science data that showed that black children were harmed by segregated schools. Segregation imposed a distorted sense of social reality on children of both races. It perpetuated stereotypes and increased distrust and led to violent outbreaks of racial tension.
Mr. Davis' argument was based on precedent. In case after case, the court had interpreted the Constitution as handing over the authority of internal matters, such as school policy, to the states. Therefore, segregation was an issue for state legislatures, not federal courts. He attacked the social science data as unpersuasive. Finally, he noted that in some school districts defendants were already equalizing schools, though he failed to mention that local officials were taking this action only under threat of litigation.
Arguments ended on December 11, 1952. More than five months later, on June 8, 1953, the court handed down its unanimous decision: re-argument. Brown was restored to the docket, to be heard again in October.
In preparing for re-argument, the court asked the parties to consider five questions: (1) whether the 14th Amendment proscribed public school segregation; (2) whether the Congress that had adopted the 14th Amendment understood that a future Congress or the court might reconstrue the amendment and abolish segregation in light of future conditions; (3) whether it was within the power of the court to construe the amendment to abolish school segregation; (4) if the court found that segregation violated the 14th Amendment, how would desegregation be carried out - with a court decree, or more gradually; and (5) if the change were allowed to proceed gradually, who should work out the transition - the Supreme Court, federal district courts, or a special master?
Members of the LDF got back to work. While Thurgood Marshall rounded up social scientists, Constance Baker Motley '46, a tenacious lawyer who had argued discrimination cases throughout the South - often at great personal risk - was given the assignment of researching whether Congress possessed the power to outlaw segregated schools under section 5 of the 14th Amendment. In addition to preparing for re-argument, there was fund-raising to do because the LDF was low on cash. The latter activity involved stumping around the country giving talks to predominantly black audiences.
Constance Baker Motley '46
As both sides marshaled resources, Chief Justice Fred Vinson died unexpectedly of a heart attack on September 8. While Justice Vinson had authored the opinion in McLaurin, he had expressed his hesitancy at allowing desegregation on a wider basis. Records later made public show that Justices Vinson and Stanley Reed '08 stood largely opposed to Brown after the first arguments.
Justice Vinson's replacement was Earl Warren, a former Republican attorney general of California who had played a role in the relocation of Japanese-Americans from the West Coast during World War II. However, after his three terms as the state's governor, he had shifted politically from an orthodox Republican to the party's more progressive wing. His achievements includedmodernization of the state hospital system, improvement of prisons, and better old-age and unemployment benefits.
Re-argument began on December 7, 1953. LDF lawyers focused on the history of the 14th Amendment and reinforced evidence on the harms caused to children by segregation. The justices honed in on questions about whether the segregation cases were even relevant: By this time, the state of Delaware had begun integration, Topeka was no longer resisting it, and a majority of school board members in Washington, D.C., opposed it. The justices also focused on questions involving implementation.
The case went to the justices; there was more optimism among the plaintiff lawyers than those of the defendants.
In discussions of the case after the first arguments, Justice Vinson had stressed the failure of state legislatures to change the laws, which were in their jurisdiction. For Justice Warren, such legislative inaction - in addition to the notion that the Congress had nothing before it that would lead people to believe the problem would be corrected in the near future - made it necessary for the court to decide in favor of Brown. It was the role of the court to uphold the Constitution, which was being violated by discriminatory practices.
Though not considered a great legal scholar, Justice Warren made good use of his skills as a statesman in conference. He worked hard to build a unanimous decision. It was important to him to communicate to the citizens of America that the court felt strongly on the issue. Dissension among the justices would only encourage divisiveness in society.
The last holdout was Justice Reed. Appointed to the court by President Roosevelt in 1938, he regarded desegregation as a problem the states should work out for themselves. The basis for his dissent is encapsulated in a story involving his clerk, who did not want to draft a dissenting opinion because he believed the opposing side had reached the right decision. Justice Reed asked him whether he favored a "kritarchy." The clerk did not know what the word meant, so Justice Reed pointed to the Oxford English Dictionary. The word meant "government by judges."
However, the clerk never wrote an opinion. Justice Warren approached his colleague and said, "Stan, you're all by yourself in this now. You've got to decide whether it's really the best thing for the country." Justice Reed gave his vote, though he reportedly never agreed with the decision handed down on May 17, 1954.
Reactions to the decision varied widely. In a Washington Post editorial titled "A Healing Decision," the paper said the decision would serve "to close an ancient wound toolong allowed to fester. It will bring to an end a painful disparity between American principles and American practices."
On the other side of the fence was the Daily News of Jackson, Miss. Under the title "Bloodstains on White Marble Steps," editors wrote: "White and Negro children in the same schools will lead to miscegenation. Miscegenation leads to mixed marriages, and mixed marriages lead to mongrelization of the human race."
Treading the middle ground was the Atlanta Constitution in an editorial called "The Supreme Court Has Given Us Time." Editors wrote: "The court decision does not mean that Negro and white children will go to school together this fall. The court itself provides for a ‘cooling off' period. Not until next autumn will it even begin to hear arguments...on how to implement the ruling....Meanwhile, it is no time for hasty or ill considered actions....It is time for Georgia to think clearly."
While the plaintiffs and defendants prepared their briefs on how to implement the Brown decision, some Southern states were already attempting to evade the court's decision. Florida enacted a scheme that required black students to apply for transfer to white schools and consistently turned them down. Louisiana enacted scores of laws designed to continue school segregation. In Milford, Del., following riots, the superintendent simply closed the schools.
Arguments for implementation were heard on April 11, 1955. The LDF urged desegregation to proceed immediately, or at the very least within firm deadlines. The defendants claimed these actions were impossible.
A decision was handed down six weeks later on May 31. In a unanimous but self-contradictory opinion, the court sent the School Segregation cases back to federal district courts. How quickly should Brown be implemented in public schools? The justices didn't specifically say. School districts had to make a "prompt and reasonable start" with the ruling, but the court also stated that implementation might take enough time to modify administrative procedures, refurbish schools, rework transportation systems, and the like. But they would not be permitted to take time because of hostility to the decision. The court's decision had to be implemented "with all deliberate speed." The clause left a huge loophole that allowed school districts that did not want to desegregate to drag their feet.
The Department of Justice, which had participated in all of the Brown arguments, had no statutory power to sue for school desegregation. President Dwight Eisenhower did not seek the authorityto do so. He urged everyone only "to obey the law of the land."
By the 10th anniversary of the decision in 1965, less than 2 percent of formerly segregated school districts had experienced any desegregation. Local resistance was fierce. It wasn't until 1968 that the court put some bite behind Brown with a focused and specific remedy in Green v. County School Board of New Kent County. In the years after Brown, the state of Virginia found ways to impede integration. Under the threat of losing federal money because of its non-compliance in desegregating its schools, the New Kent County, Va., school board, in 1965, adopted a "freedom of choice" plan, which allowed black and white students to choose which school - the all-black Watkins or the all-white New Kent - they wanted to attend. After three years, no white children attended Watkins, while only 15 percent of blacks attended New Kent. The plaintiffs argued that the freedom of choice plan perpetuated a segregated, dual-school system.
Writing the unanimous decision, Justice William Brennan stated that while the freedom of choice plan was not in itself unconstitutional, desegregating a dual system with the freedom of choice plan "was not an end to itself." An appropriate plan was one that would covert the current system to one "without a ‘white' and a ‘Negro' school, but just schools." The rationale behind the decision was that freedom of choice was unlikely to work. For example, blacks might decide not to attend a white school for fear of retaliation.
After Green, further decisions were required to push implementation along and to decide what constituted effective desegregation. In Swann v. Charlotte-Mecklenburg County Board of Education (1971), the court unanimously approved of busing as a way to achieve desegregation. A case argued by Prof. Greenberg, Davis v. Board of School Commissioners of Mobile County (1971), was decided along similar grounds.
Swann was unique in that, unlike previous school desegregation cases, which involved tiny rural districts, Swann focused on the 84,000 pupils and more than 100 schools of Charlotte, N.C., and the county of Mecklenburg. Seventy percent (60,000) of students were white, while 30 percent (24,000) were black. In the city proper of Charlotte, which had 21,000 blackstudents, two-thirds attended schools that were for blacks only.
The Swann opinion, written by Chief Justice Warren Burger, however, ignored the long-term attention that might be required to keep schools integrated. The justice wrote, "Neither school authorities nor district courts are required to make year-by-year adjustments of the racial composition of school bodies once the affirmative duty to desegregate has been accomplished...." This phrase shows its effects today, as many formerly desegregated districts have become resegregated due to shifting demographics. Nevertheless, for the time being, Swann led to widespread desegregation around the country.
Brown marked the end of a phase in the struggle for civil rights in which victories came through the courts. In 1957, Martin Luther King led a prayer pilgrimage to mark the third anniversary of Brown. Things were stirring in the black community. There were lunch counter sit-ins; people refused to sit in the back of the bus; and workers demanded jobs that they had previously been denied. The black community became increasingly vocal about its rights, and it was joined by more and more whites.
Despite the struggles in integrating schools, Brown was a powerful catalyst for social change. It prompted Congress to pass the Civil Rights Act of 1964 and the Voting Rights Act of 1965, among others. Brown inspired lawyers and judges to look anew at the Due Process Clause and Equal Protection Clause of the 14th Amendment. The court itself was emboldened in part by Brown to expand federal protection for state defendants in criminal proceedings and to strengthen the protections of the First Amendment.
The effects of Brown - positive or negative - continue to be debated today, a half century after the case. America continues to grapple with issues of race and how best to address them. In his February address to Columbia University to commemorate Brown v. Board, President Bill Clinton cautioned the audience "not to waste a moment's breath on criticizing Brown because it couldn't solve every social and economic problem in America 50 years later." He added, "But if we remind ourselves of how Brown has changed the inner life of America, we can find the wisdom and strength to do what has to be done."
The authors would like to express their debt in writing this overview to Jack Greenberg's Crusaders in the Courts and the Oxford Companion to the Supreme Court of the United States.