65 years ago the Supreme Court of the United States issued the decision in Brown v. Board of Education, a historic decision on desegregation in public education, outlawing so-called separate but equal discrimination in public education.
One might think that the issue was well-settled, but Brown is once again in the news. As a Washington Post op-ed noted yesterday: \”More than two dozen of President Trump’s judicial nominees have declined to answer whether Brown v. Board of Education was properly decided.\”
On the 50th anniversary of the Brown decision, I wrote an essay for Philadelphia\’s newspaper serving the legal community, The Legal Intelligencer. On the occasion of the 65th anniversary, I am republishing that essay.1 At the time of her death in March 2018, I also wrote of Linda Brown, whose father joined the eponymous law suit on her behalf.
Facts to Know, Tell On Landmark Case
By Alan L. Yatvin
Special to the Legal Intelligencer
The popular media are replete with articles, editorials and TV specials marking the 50th anniversary of Brown v. Board of Education and the end of the \”separate but equal\” doctrine that served to foster racial segregation in public education. However, I wanted to offer my colleagues a lawyer\’s take on the people and events surrounding that watershed decision. Hence, to commemorate the occasion, here are some facts you may not have known about Brown:
✦ Brown was the culmination of a long line of cases brought to challenge racial segregation in public education, dating to an 1849 case brought in Boston. In Kansas, alone, 11 such cases were brought between 1881 and 1949.
✦ Brown was the product of a campaign conceived by NAACP counsel Charles Hamilton Houston and advocated by his protege and successor Thurgood Marshall and Jack Greenberg, both of the NAACP Legal Defense Fund. In 1948, the NAACP board of directors formally adopted Marshall\’s plan by deciding to concentrate its efforts on an all-out attack on segregation in education. During the next three years, the NAACP commenced or joined the five cases that were ultimately consolidated under Brown.
✦ At oral argument in Brown, John W. Davis, co-counsel for the South Carolina appellees, quoted W.E.B. DuBois in support of the argument that it was more harmful to black children to thrust them into an integrated environment where white children, teachers and parents despised, resented, mocked, neglected, bulled and literally
rendered life a living hell.\”
✦ DuBois, a Harvard graduate, who famously wrote, \”I was in Harvard but not of it,\” was one of the founding members of the NAACP in 1909. He was the passionate editor-in-chief of the NAACP\’s magazine, Crisis.
✦ Oliver Brown, the name plaintiff in Brown, was one of nearly 200 plaintiffs from four states and the District of Columbia, challenging \”separate but equal\” educational systems. The only case in which relief was granted the plaintiffs was Belton v. Gebhart, in the Delaware Court of Chancery. The young chancellor who ordered integration of the Delaware schools was Collins Seitz Sr., who went on to become a judge of the 3rd U.S. Circuit Court of Appeals.
✦ Brown was first argued in December 1952. In June 1953, the U.S. Supreme Court ordered reargument to be held in October at the start of the new term. Just before reargument, Chief Justice Fred Vinson died unexpectedly. Vinson was believed to have supported continuation of segregation under the \”separate but equal\” standard. Remarking on Vinson\’s passing, Associate Justice Felix Frankfurter is reported to have quipped, \”It\’s the first indication I\’ve had that there is a God.\”
✦ President Eisenhower nominated Earl Warren to replace Vinson on Sept. 30. The court rescheduled argument for December. Warren, who was confirmed as chief justice by the Senate in March 1954, delivered the unanimous opinion of the court on May 17. Even though his Justice Department argued in support of desegregation in Brown, Eisenhower disliked Brown and failed to publicly endorse the decision. He felt it was a mistake to start with schools, rather than public accommodations.
✦ The original 1952 argument in the consolidated Brown cases commenced at 1:30 p. m. on Tuesday, Dec. 9, recessed overnight, and continued shortly after noon the following day. Marshall ended his rebuttal argument by stating: \”But the rights of the minorities … have been protected by our Constitution, and the ultimate authority for determining that is this court. I think that is the real difference. As to whether or not I, as an individual, am being deprived of my right is not legislative, but judicial.\”
✦ The Supreme Court severed Bolling v. Sharpe, the District of Columbia case, from the Brown cases, because the 14th Amendment was not applicable to the District of Columbia. On the same day the Supreme Court declared in Brown that \”separate but equal\” violated the Equal Protection Clause of the 14th Amendment, it handed down a decision in Bolling, ruling that racial segregation in the District of Columbia public schools violated the Due Process Clause of the Fifth Amendment.
✦ Sociological evidence was presented in the lower courts to demonstrate that \”separate but equal\” had a devastating effect on African-American children. This evidence included research by Dr. Kenneth Clark, who showed black dolls and white dolls to African-American children and asked them to chose the good dolls. They chose the white dolls. Robert L. Carter, a U.S. Senior District Court Judge, who argued the Brown case with Marshall, was the principal advocate of including this sociological evidence. Eastern District of Pennsylvania Senior Judge Louis H. Pollak, who was part of the Brown team, argued against the inclusion of the sociological evidence, asserting that it was unnecessary.
✦ The Supreme Court cited the Clark research in support of its decision in Brown. In January of this year, Pollak, sitting with Carter on a forum at Howard University Law School, told Carter, \”You were right and I was wrong.\”
✦ Pollak was on all the Brown briefs, along with Philadelphian William T. Coleman Jr., Oliver Hill and Carter, Constance Baker Motley and Jack B. Weinstein, author of the definitive treatise on the Federal Rules of Evidence.
✦ On May 31, 1955, the Supreme Court handed down Brown II, which ordered desegregation with \”all deliberate speed.\” The court\’s use of the term \”all deliberate speed\” is regarded as a catalyst for the student protests that launched the civil rights movement, because many Southern states took advantage of the vagueness of the order to thwart integration. Prince Edward County in Virginia, a defendant in one of the consolidated Brown cases, chose to close its public schools for five years rather than honor the Brown II order.
✦ One of the signatories to Brown II was Justice John Marshall Harlan II, who was nominated to the court in the year between Brown I and Brown II, upon the sudden death of Justice Robert Jackson. Harlan, who became known as the \”Great Dissenter\” of the Warren Court, was the grandson of Justice John Marshall Harlan. The first Justice Harlan, a Kentuckian and former slave owner, was named for John Marshall, the first chief justice of the Supreme Court. When he joined the Supreme Court in 1877, Harlan was the only law school graduate among the nine sitting justices. He was also the lone dissenter in the 1896 decision in Plessy v. Ferguson. It was in Plessy that the Supreme Court established the \”separate but equal\” doctrine that became the constitutional basis for segregation.
✦ Harlan\’s Plessy dissent argued that forced segregation stamped blacks with a badge of inferiority. This same line of argument became a decisive factor in Brown, where the Supreme Court expressly overruled Plessy. In his Plessy dissent, Harlan coined the phrase \”Our Constitution is colorblind.\” Southern District of New York Senior Judge Constance Baker Motley, an attorney with the NAACP legal team during Brown and the first African-American woman appointed to the federal bench, recalls that during the Brown fight, Thurgood Marshall picked himself up in low moments by reading aloud from Harlan\’s Plessy dissent.
✦ In 1979, three young African-American attorneys in Topeka, Kan., petitioned the district court to reopen Brown to determine whether the school board had eliminated all vestiges of discrimination. That case, known as Brown III, resulted in the Topeka Public Schools building three magnet schools. [Linda Brown joined that suit as a plaintiff.]
✦ On Tuesday, May 11, 2004, one week before the 50th anniversary of the decision in Brown v. Board of Education, a state district court judge sitting in Topeka issued an order essentially closing the Kansas Public Schools for the coming school year, due to the failure of the Legislature to provide sufficient funds to ensure constitutionally adequate education to poor, disabled and minority children in Kansas. Brown v. Board of Education was one of the authorities cited by the court.