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Debating the Rule of Law

Thurgood Marshall and the Case Called Brown

Adapted and reprinted from American Bar Association, Law Day Stories (Chicago: ABA, 1995), 64-67.

At one time "separate but equal" ruled many of the nation's school systems. This policy forced African-American students to attend schools separate from white children. Such segregation had been upheld by a Supreme Court decision in 1896 called Plessy v. Ferguson . This is the story of how in 1954 the Supreme Court justices and African-American lawyers led by Thurgood Marshall, who would one day sit on the High Court himself, overturned this unfair and hurtful practice.

Thurgood Marshall was no stranger to the Supreme Court when he stood before the Justices in the autumn of 1952. Since the 1930s, Marshall and the legal staff of the National Association for the Advancement of Colored People (NAACP) had appeared before the Court in Washington, D.C., as well as countless southern courts, arguing case after case in their effort to chip away at segregation.

When Marshall had joined the NAACP as a young lawyer in 1936, the association was divided over how to legally attack the separate-but-equal doctrine. One strategy was to show that the separate facilities were not equal and thereby force states to spend more money on black schools and teachers. This legal campaign had produced a string of victories.

Yet Marshall and other NAACP lawyers saw this line of reasoning as merely laying the groundwork for a more direct attack on segregation—one that would demonstrate that separate schools could never be equal. And because separate schools were inherently unequal, they were unconstitutional.

During 1951, attorneys from the NAACP Legal Defense Fund represented African-American parents in Delaware, Virginia, South Carolina, Kansas, and the District of Columbia who were seeking to have their children admitted to white schools. The attorneys were directly challenging the constitutionality of "separate but equal" by using the second, more direct argument—that segregated schools could not be equal. To support their argument, they pointed to social science research that showed segregation had a devastating effect on black children; it destroyed their self-esteem and desire to learn.

In 1952, the Supreme Court agreed to hear appeals in these cases. The four state cases were grouped under the title of the Kansas case, Brown v. Board of Education of Topeka. Brown was Oliver Brown, the father of a young schoolgirl named Linda who was forced to attend a distant all-black school, even though a white school was only four blocks from her home. By grouping all the state cases into one, the Justices provided the opportunity for the ultimate debate over segregated education. On one side of the debate were the states, arguing that segregation was indeed constitutional. On the other side were the African-American students and parents, whose main attorney, Thurgood Marshall, led the attack on its constitutionality.

This debate over segregation made some Supreme Court Justices extremely anxious. Even though all the Justices except Stanley Reed, from Kentucky, found segregation offensive, they hesitated to declare it unconstitutional. They feared that many white southerners would bitterly and even violently fight to keep their schools segregated. And if the Court's order to desegregate was not enforced by President Dwight Eisenhower and the Congress, the Court's standing in the eyes of the public would be severely damaged.

Even more important, several of the Justices worried that they would be exceeding the limits of judicial power if they reversed the earlier Plessy decision. This was especially true of Justices Felix Frankfurter and Robert Jackson. They believed that judges should overturn a law only when it clearly violated the Constitution. Frankfurter and Jackson worried that if they struck down segregation, they would be making their personal preference the law.

The case dragged into 1953. During the spring of that year, members of the Court remained uncertain as they considered the arguments that had been presented by Marshall and his colleagues on one side and lawyers for the states on the other. Justice Reed supported segregation, Chief Justice Vinson leaned toward that opinion, and several other members of the Court were undecided.

Then in early September, Chief Justice Vinson died. President Dwight D. Eisenhower appointed a new Chief Justice, Earl Warren, the governor of California. While Vinson had leaned in the direction of segregation, Warren firmly opposed it. It would be Warren who would write the majority opinion explaining the Court's decision in Brown. That decision was announced on May 17, 1954.

That day began as many other days at the Supreme Court. But just before one o'clock, Chief Justice Warren picked up a paper and said, "I have for announcement the judgment and opinion of the Court in Oliver Brown v. Board of Education of Topeka." The news reporters erupted into action. The Associated Press sent out a flash. Loudly and firmly, Warren read the decision of the Court: "In approaching this problem, we cannot turn the clock back to . . . 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. . . .

"Does segregation of children in public schools solely on the base of race . . . deprive the children of the minority group of equal educational opportunities? We believe that it does."

Chief Justice Warren then pointed to the social science research cited by Marshall and the NAACP lawyers to argue that segregation denied African-American children the full benefit of education: "To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority . . . that may affect their hearts and minds in a way unlikely ever to be undone."

Therefore, the Chief Justice announced, "We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal."

The Supreme Court's decision was certainly not the end of segregation. Desegregating schools would take years. But Brown was a most significant step—for both the nation and for Thurgood Marshall. From this case, Marshall would go on to be appointed to the U.S. Court of Appeals in 1961 and then to the position of solicitor general of the United States in 1965. Two years later, President Lyndon Johnson would appoint him associate justice of the Supreme Court—the first African American to sit on the Court, the same Court he persuaded to outlaw segregated education.

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