Guest Essayist: Dan Morenoff

You can count on one hand the number of Supreme Court decisions that normal people can identify by name and subject. Brown is one of them (and, arguably, both the widest and most accurately known). Ask any lawyer what the most important judicial decision in American history is, and they will almost certainly tell you, with no hesitation, Brown v. Board of Education. It’s the case that, for decades, Senators have asked every nominee to become a judge to explain why is right.

It’s place in the public mind is well-deserved, even if it should be adjusted to reflect more accurately its place in modern American history.

Backstory: From Reconstruction’s Promise to Enshrinement of Jim Crow in Plessy

Remember the pair of course reversals that followed the Civil War.

Between 1865 and 1876, Congress sought to make good the Union’s promises to the freedmen emancipated during the war. In the face of stiff, violent resistance by those who refused to accept the war’s verdict, America amended the Constitution three (3) times, with: (a) the Thirteenth Amendment banning slavery; (b) the Fourteenth Amendment: (i) affirmatively acting to create and bestow American citizenship on all those born here, (ii) barring states from “abridg[ing] the privileges or immunities of citizens of the United States[,]” and (iii) guaranteeing the equal protection of the laws; and (c) the Fifteenth Amendment barring states from denying American citizens the right to vote “on account of race, color, or previous condition of servitude.” Toward the same end, Congress passed the Civil Rights Acts of 1866 and 1875, the Enforcement Acts of 1870 and 1871, and the Ku Klux Klan Act. They created the Department of Justice to enforce these laws and supported President Grant in his usage of the military to prevent states from reconstituting slavery under another name.

Until 1876. To solve the constitutional crisis of a Presidential election with no clear winner, Congress (and President Hayes) effectively, if silently, agreed to effectively and abruptly end all that. The federal government removed troops from former Confederate states and stopped trying to enforce federal law. And the states “redeemed” by the violent forces of retaliation amended their state constitutions and passed the myriad of laws creating the “Jim Crow” regime of American apartheid.  Under Jim Crow, races were separated, the public services available to an American came to radically differ depending on that American’s race, and the rights of disfavored races became severely curtailed. Most African Americans were disenfranchised, then disarmed, and then subjected to mob-violence to incentivize compliance with the “redeemer” community’s wishes.

One could point to a number of crystallizing moments as the key point when the federal government made official that it and national law would do nothing to stop any of this. But the most commonly cited is the Plessy v. Ferguson decision of the Supreme Court, issued in 1896. It was a case arising out of New Orleans and its even-then-long-multi-hued business community. There, predictably, there were companies and entrepreneurs that hated these laws interfering with their businesses and their ability to provide services to willing buyers on the (racially integrated) basis they preferred. A particularly hated law passed by the State of Louisiana compelled railroads (far and away the largest industry of the day) to separate customers into different cars on the basis of race. With admirable truth in advertising, the Citizens Committee to Test the Constitutionality of the Separate Car Law formed and went to work to rid New Orleans of this government micromanagement. Forgotten in the long sweep of history, the Committee (acting through the Pullman Company, one of America’s largest manufacturers at the time) actually won their first case at the Louisiana Supreme Court, which ruled that any state law requiring separate accommodations in interstate travel violated the U.S. Constitution (specifically, Article I’s grant of power to Congress alone to regulate interstate travel). They then sought to invalidate application of the same law to train travel within Louisiana as a violation of the Fourteenth Amendment. With coordination between the various actors involved, Homer Plessy (a man with 7 “white” and 1 “black” great-grandparent(s) purchased and used a seat in the state-law required “white” section of a train that the train company wanted to sell him; they then assured a state official knew he was there, was informed of his racial composition, and would willingly arrest Mr. Plessy to create the test case the Committee wanted. It is known to us as Plessy v. Ferguson.[1] This time, though, things didn’t go as planned: the trial court ruled the statute enforceable and the Louisiana Supreme Court upheld its application to Mr. Plessy. The Supreme Court of the United States accepted the case, bringing the national spotlight onto this specific challenge to the constitutionality of the states’ racial-caste-enforcing laws. In 1896, over the noteworthy, highly-praised, sole dissent of Justice John Marshall Harlan, the Supreme Court agreed that, due to its language requiring “equal, but separate” accommodations for the races (and without ever really considering whether the accommodations provided actually were “equal”), the separate car statute was consistent with the U.S. Constitution; they added that the Fourteenth Amendment was not intended “to abolish distinctions based upon color, or to enforce social … equality … of the two races.”

For decades, the Plessy ruling was treated as the federal government’s seal of approval for the continuation of Jim Crow.

Killing Jim Crow

Throughout those decades, African Americans (and conscientious whites) continued to object to American law treating races differently as profoundly unjust. And they had ample opportunities to note the intensity of the injustice. A sampling (neither comprehensive, nor fully indicative of the scope) would include: Woodrow Wilson’s segregation of the federal work force, the resurgence of lynchings following the 1915 rebirth of the Ku Klux Klan (itself an outgrowth of the popularity of Birth of a Nation, the intensely racist film that Woodrow Wilson made the first ever screened at the White House), and the spate of anti-black race riots surrounding America’s participation in World War I.

For the flavor of those riots, consider the fate of the African American community living in the Greenwood section of Tulsa, Oklahoma. In the spring of 1921, Greenwood’s professional class had done so well that it became known as “Negro Wall Street” or “Black Wall Street.” On the evening of May 31, 1921, a mob gathered at the Tulsa jail and demanded that an African American man accused of attempting to assault a white woman be handed over to them. When African Americans, including World War I veterans, came to the jail in order to prevent a lynching, shots were fired and a riot began. Over the next 12 hours, at least three hundred African Americans were killed. In addition, 21 churches, 21 restaurants, 30 grocery stores, two movie theaters, a hospital, a bank, a post office, libraries, schools, law offices, a half dozen private airplanes, and a bus system were utterly destroyed. The Tulsa race riot (perhaps better styled a pogrom, given the active participation of the national guard in these events) has been called “the single worst incident of racial violence in American history.”[2]

But that is far from the whole story of these years. What are today described as Historically Black Colleges and Universities graduated generations of students, who went on to live productive lives and better their communities (whether racially defined or not). They saw the rise of the Harlem Renaissance, where African American luminaries like Duke Ellington, Langston Hughes, and Zora Neale Hurston acquired followings across the larger population and, indeed, the world. The Negro Leagues demonstrated through the national pastime that the athletic (and business) skills of African Americans were equal to those of any others;[3] the leagues developed into some of the largest black-owned businesses in the country and developed fan-followings across America. Eventually, these years saw Jackie Robinson, one of the Negro Leagues’ brightest stars, sign a contract with the Brooklyn Dodgers in 1945 and “break the color barrier” in 1947 as the first black Major Leaguer since Cap Anson successfully pushed for their exclusion in the 1880s.[4] He would be: (a) named Major League Baseball’s Rookie of the Year in 1947; (b) voted the National League MVP in 1949; and (c) voted by fans as an All Star six (6) times (spanning each of the years from 1949-1954). Robinson also led the Dodgers to the World Series in four (4) of those six (6) years.

For the main plot of our story, though, the most important reaction to the violence of Tulsa (and elsewhere)[5] was the “newfound sense of determination” that “emerged” to confront it.[6] Setting aside the philosophical debate that raged across the African American community over the broader period on the best way to advance the prospects of those most impacted by these laws,[7] the National Association for the Advancement of Colored People (the “NAACP”) began to plan new strategies to defeat Jim Crow.”[8]  The initial architect of this challenge was Charles Hamilton Houston, who joined the NAACP and developed and implemented the framework of its legal strategy after graduating from Harvard Law School in 1922, the year following the Tulsa race riot.[9]

Between its founding in 1940, under the leadership of Houston-disciple Thurgood Marshall,[10] and 1955, the NAACP Legal Defense and Education Fund brought a series of cases designed to undermine Plessy.  Houston had believed from the outset that unequal education was the Achilles heel of Jim Crow and the LDF targeted that weak spot.

The culmination of these cases came with a challenge to the segregated public schools operated by Topeka, Kansas. While schools were racially segregated many places, the LDF specifically chose to bring its signature case against the Topeka Board of Education, precisely because Kansas was not Southern, had no history of slavery, and institutionally praised John Brown;[11] the case highlighted that its issues were national, not regional, in scope.[12]

LDF, through Marshall and Greenberg, convinced the Supreme Court to reverse Plessy and declare Topeka’s school system unconstitutional. On May 17, 1954, Chief Justice Earl Warren handed down the unanimous opinion of the Court. Due to months of wrangling and negotiation of the final opinion, there were no dissents and no concurrences. With a single voice the Supreme Court proclaimed 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.

These sweeping tones are why the decision holds the place it does in our collective imagination. They are why Brown is remembered as the end of legal segregation. They are why Brown is the most revered precedent in American jurisprudence.

One might have thought that they would mean an immediate end to all race-based public educational systems (and, indeed, to all segregation by law in American life). Indeed, as Justice Marshall told his biographer Dennis Hutchison in 1979, he thought just that: “the biggest mistake [I] made was assuming that once Jim Crow was deconstitutionalized, the whole structure would collapse – ‘like pounding a stake in Dracula’s heart[.]’”

But that was not to be. For the Court to get to unanimity, the Justices needed to avoid ruling on the remedy for the violation they could jointly agree to identify. So they asked the parties to return and reargue the question of what to do about it the following year. When they again addressed the Brown case, the Supreme Court reiterated its ruling on the merits from 1954, but as to what to do about it, ordered nothing more than that the states “make a prompt and reasonable start toward full compliance” and get around to “admit[ting children] to public schools on a racially nondiscriminatory basis with all deliberate speed.”

So the true place of Brown in the story of desegregation is best reflected in Justice Marshall’s words (again, to Dennis Hutchison in 1979): “…[i]n the twelve months between Brown I and Brown II, [I] realized that [I] had yet to win anything….  ‘In 1954, I was delirious. What a victory!  I thought I was the smartest lawyer in the entire world. In 1955, I was shattered.  They gave us nothing and then told us to work for it. I thought I was the dumbest Negro in the United States.’”

Of course, Justice Marshall was far from dumb, however he felt in 1955.  But actual integration didn’t come from Brown. That would have to wait for action by Congress, cajoling by a President, and the slow development of the cultural facts-on-the-ground arising from generations of white American children growing up wanting to be like, rooting for, and seeing the equal worth in men like Duke Ellington, Langston Hughes, Jackie Robinson, and Larry Doby.

Dan Morenoff is Executive Director of The Equal Voting Rights Institute.

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[1] In the terminology of the day, Mr. Ferguson was a “Carpetbagger.”  A native of Massachusetts who had married into a prominent abolitionist family, Mr. Ferguson studied law in Boston before moving to New Orleans in 1865.  He was the same judge who, at the trial court level, had ruled that Louisiana’s separate cars act could not be constitutionally applied to interstate travel.  Since Plessy’s prosecution also was initially conducted in Mr. Ferguson’s courtroom, he became the named defendant, despite his own apparent feelings about the propriety of the law.

[2] All Deliberate Speed: Reflections on the First Half-Century of Brown v. Board of Education, by Charles J. Ogletree, Jr. W.W. Norton & Company (2004).

[3] In 1936, Jesse Owens did the same on an amateur basis at the Berlin Olympics.

[4] Larry Doby became the first black American League player ever weeks later (the AL had not existed in the 1880s).

[5] There were parallel riots in Omaha and Chicago in 1919.

[6] See, All Deliberate Speed, in Fn. 2, above.

[7] The author recommends delving into this debate.  Worthy samples of contributions to it the reader might consider include: (a) Booker T. Washington’s 1895 Address to Atlanta’s Cotton States and International Exposition (http://historymatters.gmu.edu/d/39/); and (b) W.E.B. Du Bois’s The Souls of Black Folk.

[8]  See, All Deliberate Speed, in Fn. 2, above.

[9] Houston was the first African American elected to the Harvard Law Review and has been called “the man who killed Jim Crow.”

[10] Later a Justice of U.S. Supreme Court himself, Justice Marshall was instrumental in the NAACP’s choice of legal strategies.  But LDF was not a one-man shop.  Houston had personally recruited Marshall and Oliver Hill, the first- and second-ranked students in the Law School Class of 1933 at Howard University – itself, a historically black institution founded during Reconstruction – to fight these legal battles.  Later, Jack Greenberg was Marshall’s Assistant Counsel was and hand-chosen successor to lead the LDF

[11] The Kansas State Capitol, in Topeka, has featured John Brown as a founding hero since the 1930s (https://www.kshs.org/places/capitol/graphics/tragic_prelude.jpg).

[12] This was all the more true when the case was argued before the Supreme Court, because the Supreme Court had consolidated Brown for argument with other cases from across the nation.  Those cases were Briggs v. Elliot (from South Carolina), Davis v. County School Board of Prince Edward County (from Virginia), Belton (Bulah) v. Gebhart (from Delaware), and Bolling v. Sharpe (District of Columbia).

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