BHM 2017 Day 2: The NAACP Equalization Strategy

Hi all,

Today I’m just going focus on efforts to end segregation of public schools and colleges. Tomorrow, I’ll go over some of the other cases.

In 1909, the NAACP commenced what has become its legacy of fighting legal battles to win social justice for African-Americans and indeed, for all Americans. The most significant of these battles were fought and won under the leadership of Charles Hamilton Houston and his student and protégée, Thurgood Marshall.

A graduate of Harvard Law School, Houston trained the first generation of Civil Rights lawyers during his years as Dean of Howard University’s Law School. Houston was appointed in 1935 to be the first Special Counsel of the NAACP. Often referred to as the “Moses of the civil rights movement,” Houston was the architect and chief strategist of the NAACP’s legal campaign to end segregation. Houston amassed a consortium of Black lawyers including Thurgood Marshall and Constance Baker Motley as part of a “West Point of Negro Leadership” according to the organization’s account. These attorneys would combat racial segregation alongside Houston.

In 1896, the U.S. Supreme Court endorsed segregation in Plessy v. Ferguson, which established the “separate but equal” principle – as long as the separate facilities for the separate races were equal, segregation did not violate the Fourteenth Amendment (“no State shall … deny to any person … the equal protection of the laws”). In a study commissioned by the NAACP in the 1930s, Nathan Margold found that under segregation, the facilities provided for blacks were always separate, but never equal to those maintained for whites. This, Margold argued, violated the equality aspect of Plessy’s “separate but equal” principle. Margold proposed a series of lawsuits that would challenge the system.

After joining the NAACP, Houston refined Margold’s recommendations, developed a strategy, and implemented a battle plan. Under Houston’s “equalization strategy,” lawsuits were filed demanding that the facilities provided for black students be made equal to those available to white students, carefully stopping short of a direct challenge to Plessy. Houston predicted that the states that practiced segregation could not afford to maintain black schools that were actually equal to those reserved for whites. From 1935 to 1940, Houston successfully argued several cases using this strategy, including Murray v. Maryland, (1936) which resulted in the desegregation of the University of Maryland’s Law School and State ex rel. Gaines v. Canada, in which the U.S. Supreme Court ordered the admission of a black student to the Law School at the University of Missouri (1938).

When Thurgood Marshall succeeded Houston as NAACP’s Special Counsel, he continued the Association’s legal campaign. In 1950, Marshall won cases that struck down Texas and Oklahoma laws requiring segregated graduate schools. In Sweatt v. Painter, the court ruled against a Texas attempt to circumvent Missouri ex rel. Gaines v. Canada with a hastily established inferior law school for black students. In McLaurin v. Oklahoma, the court ruled against practices of segregation within a formerly all-white graduate school insofar as they interfered with meaningful classroom instruction and interaction with other students. In those cases, a unanimous U.S. Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment required those states to admit black students to their graduate and professional schools.

In 1953, Thurgood Marshall and a team of NAACP LDF lawyers argued Brown v. Board of Education of Topeka, in front of the US Supreme Court.  The case combined five cases: Brown itself, Briggs v. Elliot – filed in South Carolina, Davis v. County School Board of Prince Edward County – filed in Virginia, Gebhart v. Belton – filed in Delaware and Bolling v. Sharpe – filed in Washington DC. All were NAACP-sponsored cases being appealed from lower courts where Plessy v. Ferguson was upheld and in nearly all cases, discrimination was found to be lawful.

The plaintiffs in Brown asserted that this system of  racial segregation while masquerading as providing separate but equal treatment of both white and black Americans, instead perpetuated inferior accommodations, services, and treatment for black Americans. Racial segregation in education varied widely from the 17 states that required racial segregation to the 16 in which it was prohibited. The “doll test” research presented substantial arguments to the Supreme Court about how segregation affected black schoolchildren’s mental status.

In the 1940s, psychologists Kenneth and Mamie Clark designed and conducted a series of experiments known colloquially as “the doll tests” to study the psychological effects of segregation on African-American children.  Drs. Clark used four dolls, identical except for color, to test children’s racial perceptions. Their subjects, children between the ages of three to seven, were asked to identify both the race of the dolls and which color doll they prefer. A majority of the children preferred the white doll and assigned positive characteristics to it. The Clarks concluded that “prejudice, discrimination, and segregation” created a feeling of inferiority among African-American children and damaged their self-esteem. In a particularly memorable episode while Dr. Clark was conducting experiments in rural Arkansas, he asked a black child which doll was most like him. The child responded by smiling and pointing to the brown doll: “That’s a nigger. I’m a nigger.”

(Although Dr. Kenneth Clark is most famous for the “Doll Tests,” his personal achievements are equally as prestigious. He was the first African American to earn a PhD in psychology at Columbia; to hold a permanent professorship at the City College of New York; to join the New York State Board of Regents; and to serve as president of the American Psychological Association. His wife Mamie Clark was the first African-American woman and the second African-American, after Kenneth Clark, to receive a doctorate in psychology at Columbia.)

The United States and the Soviet Union were both at the height of the Cold War during this time, and U.S. officials, including Supreme Court Justices, were highly aware of the harm that segregation and racism played on America’s international image. When Justice William O. Douglas traveled to India  in 1950, the first question he was asked was, “Why does America tolerate the lynching of Negroes?” Douglas later wrote that he had learned from his travels that “the attitude of the United States toward its colored minorities is a powerful factor in our relations with India.” In December 1952, the Justice Department filed a friend of the court brief in the case. The brief was unusual in its heavy emphasis on foreign policy considerations of the Truman administration in a case ostensibly about domestic issues. Of the seven pages covering “the interest of the United States,” five focused on the way school segregation hurt the United States in the Cold War competition for the friendship and allegiance of non-white peoples in countries then gaining independence from colonial rule.  Attorney General James P. McGranery noted that

The existence of discrimination against minority groups in the United States has an adverse effect upon our relations with other countries. Racial discrimination furnishes grist for the Communist propaganda mills.

The brief also quoted a letter by Secretary of State Dean Acheson lamenting that:

The United States is under constant attack in the foreign press, over the foreign radio, and in such international bodies as the United Nations because of various practices of discrimination in this country.

In spring 1953, the Court heard the case but was unable to decide the issue and asked to rehear the case in fall 1953, with special attention to whether the Fourteenth Amendment’s Equal Protection Clause prohibited the operation of separate public schools for whites and blacks. The Court reargued the case at the behest of Associate Justice Felix Frankfurter, who used reargument as a stalling tactic, to allow the Court to gather a consensus around a Brown opinion that would outlaw segregation. The justices in support of desegregation spent much effort convincing those who initially intended to dissent to join a unanimous opinion. Although the legal effect would be same for a majority rather than unanimous decision, it was felt that dissent could be used by segregation supporters as a legitimizing counter-argument. .Chief Justice Vinson was a key stumbling block. After Vinson died in September 1953, President Eisenhower appointed Earl Warren as Chief Justice. Warren had supported the integration of Mexican-American students in California school systems. Warren convened a meeting of the justices, and presented to them the simple argument that the only reason to sustain segregation was an honest belief in the inferiority of Negroes. Warren further submitted that the Court must overrule Plessy to maintain its legitimacy as an institution of liberty, and it must do so unanimously to avoid massive Southern resistance. He began to build a unanimous opinion.

The key holding of the Court was that, even if segregated black and white schools were of equal quality in facilities and teachers, segregation by itself was harmful to black students and unconstitutional. They found that a significant psychological and social disadvantage was given to black children from the nature of segregation itself, drawing on research conducted by City College of NY psychologist Kenneth Clark assisted by NAACP staffer June Shagaloff.  This aspect was vital because the question was not whether the schools were “equal”, which under Plessy they nominally should have been, but whether the doctrine of separate was constitutional. The justices answered with a strong “no”:

[D]oes segregation of children in public schools solely on the basis of race, even though the physical facilities and other “tangible” factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does. …

“Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The effect is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system.” …

“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 to ever be undone”

We conclude that, in the field of public education, the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.

The 17 Southern states requiring segregation of schools were not convinced of the legitimacy of the Court’s decision. Some states’ lower courts found it acceptable to dismiss the decision altogether. The reality was that unless the ruling was enforced, it was not sufficient.  And so the actual integration of schools became a cornerstone of the Civil Rights Movement for the next 15 years.

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