Thursday, May 17, 2012

The Day the Dam Broke—Thurgood Marshall Wins Brown v. The Board of Education

NAACP lawyers celebrate outside of the Supreme Court after winning the Brown v. Board of Education and related cases in 1954. Left to right, George G.C. Hayes, lead attorney Thurgood Marshall, and James M. Nabrit.

Note:  Adapted from a post this date in 2010.

On May 17, 1954 a unanimous decision by the United States Supreme Court over turned legal precedent and established custom to rule in the case of Brown v. Board of Education of Topeka that “separate educational facilities are inherently unequal.”  The ruling sent shock waves across the nation and it took more than a decade of turmoil and violence before this precedent was enforced across the land.  

Previous to this ruling school segregation flourished not only in the Deep South but across much of the rest of the nation under the protection of the 1896 court decision in the case of Plessy v. Ferguson which ruled that “separate but equal” public accommodations were legal.  

The Justices based the Brown decision on the post Civil War Fourteenth Amendment to the Constitution which called for “equal protection under the law.”  

Filed in 1951 by 13 parents, the suit was a result of segregation in the Topeka, Kansas school system under a 1873 state law that allowed—but did not compel—separation by race.  At the instigation of the local chapter of the National Association for the Advancement of Colored People (NAACP) the parents attempted to register their children a neighborhood schools reserved for whites.  The registrations were, of course, rejected.  

The lead plaintiff was Oliver O. Brown, a welder with the Santa Fe Railroad and the associate pastor of a local church.  The Federal District Court upheld the law citing the Plessy case.  A three judge Appeals Court acknowledged that segregated facilities could be harmful to the interests of Black student, but said it was powerless to act because the Topeka schools were equal in terms of quality of facilities, transportation, curriculum, and quality of the staff.  

At the Supreme Court level, the case was combined with four other NAACP test cases from Delaware, North Carolina, Virginia, and the District of Columbia.  In the Delaware case a lower court had supported the plaintiffs on the grounds that the segregated schools were manifestly unequal with Black schools housed in substandard building with restricted budgets that impacted education quality.  

Arguing for the NAACP was Thurgood Marshal.  Defending the Board of Education, somewhat reluctantly—and some claim less than diligently—was Kansas Assistant Attorney General Paul Wilson. 
According to notes, the Justices were split as the case moved forward.  Four members, William O. Douglas, Hugo Black, Harold Burton, and Sherman Minton were described as “predisposed” to overturn segregation.  Fred Vinton was leery to act in the absence of action by Congress to outlaw segregation.  Stanley Reed cited States’ Rights in opposition to Federal action and seemed to regard segregation as a positive benefit to Blacks.  Tom Clark wrote that, “we had led the states on to think segregation is OK and we should let them work it out.” Two of the most respected legal scholars on the Court, Felix Frankfurter and Robert H. Jackson were personally opposed to segregation but were skittish about “judicial activism.”  

The makeup and temper of the Court changed dramatically as the case moved forward when Vinton died and Earl Warren of California was appointed by President Dwight Eisenhower as the new Chief Justice.  Warren made a majority in favor of overturning the Kansas law. 

Realizing the impact of the decision, the majority members spent a great deal of time bringing around their dubious colleagues.  The felt that anything less than a unanimous decision would result in years of doubt and instability.  One by one, they won over the doubters based largely on Marshall’s arguments.  In the end, they achieved a unanimous decision that left no doubt where the Court Stood.  

Topeka schools, which had only been segregated on the elementary level anyway, easily adapted without much in the way of opposition.  But across the South, the alarm was high and the angry voices of defiance heard loudly.  

Virginia Senator Harry F. Byrd, Sr. organized the Massive Resistance Movement across his state in which public school shut down entirely rather than face integration.  In other states white fled the schools and established private “academies.”  With only Black and Whites too poor to afford the private schools left in the public system, they were starved of state and local tax funds.  

In 1957 President Eisenhower had to mobilize the 101st Airborne Division to enforce the desegregation of Little Rock, Arkansas’s Central High School when Gov. Oval Faubus tried to use the state National Guard to block Black students.  As late as 1963 Alabama Governor George Wallace “stood in the door” of the University of Alabama to defend segregation.  He was moved aside by his own National Guard, which had been federalized by Lyndon Johnson.  

Northerners who smugly assumed that all the brouhaha was isolated in the South were shocked when their own school systems were sued and desegregation orders, including “forced bussing” was applied to them.  Boston saw ugly resistance through the ‘60’s into the early ‘70’s.  

Today schools are generally desegregated, although recent decisions to limit bussing have allowed more schools in racially isolated areas to become de facto single race.  Whites still shun public schools across much of the South and flee majority Black urban school districts in the North for White exurbs. 

And a new generation of conservative judicial activists openly talks about reverting to the Plessy v. Ferguson standard.  Yet even the most hide bound conservative on the Supreme Court today would be hard pressed to overturn that unanimous 1954 decision.  

Three cheers for judicial activism when it counted!

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