Minority Lawyers Remember: Commemorating the 50th Anniversary of Brown vs. Board of Education

Also see: Pre-Brown Timeline: A Selected History

Brown v. Board of Education,¹ the life-altering Supreme Court school desegregation decision, celebrates its 50th anniversary this May. Five decades later, its legacy reverberates as schools, universities, and businesses continue to work toward making their populations more diverse. Minorities today stand on the shoulders of this decision, and Brown stands on the shoulders of a long legal history.

But these hard-fought gains could be jeopardized both by socio-economic trends and challenges from conservatives waging legal challenges to affirmative action. To mark the legacy of this landmark case, MCCA asked leading attorneys to share their knowledge about Brown v. Board's historical origins, as well as its significance today.

Theodore Shaw, associate director-counsel of the NAACP Legal Defense and Educational Fund, Inc. (LDF), believes the Brown decision split American history into two parts. The first half is the history of America from its founding up through the Civil War, a history of slavery and Jim Crow laws.² The second half he described as a history of increased opportunity.

An Historical Perspective

By the end of Reconstruction,³ the former Confederate states had legalized discrimination against people of color. This legal color bar extended to the right to vote. Without the vote, African-Americans were powerless to protect themselves from discrimination and violence. In 1909, the NAACP was formed to protect blacks and to advocate for their rights.

The key decision establishing separate facilities for whites and non-whites was the 1896 Plessy v. Ferguson case.⁴ Homer A. Plessy's refusal to move from a white (East Louisiana) railroad car seat led to one of the most important lawsuits in the history of race and law. In Plessy v. Ferguson, the U.S. Supreme Court ruled that railroad cars could be segregated by race if the facilities were equal. The decision stated that such an "equal" practice of segregation did not violate the Fourteenth Amendment. But the facilities — particularly schools — were almost always unequal.

The NAACP was slowly drawn to the issue of education because it was a glaring example of the legacy of slavery. The range of "separate" and "unequal" in America's educational system was heartbreaking. After an investigation of southern black schools in the late 1930s, the American Council on Education found that, for example, most black students didn't attend school for more than 20 weeks every year. In addition, poorly trained teachers, old textbooks, and inferior facilities awaited those who did attend school.

In 1930 in Alabama, for example, $37 was spent on the education of a white child, compared to only $7 for a black child.⁵ The study showed that the maximum percentage of blacks who attended high school was 20 percent, and that was only in North Carolina. The report indicated that nearly 90 percent of the secondary schools for blacks in the South "are essentially elementary schools with one or more years of secondary work included at the top — often at the expense of the lower school."⁶

But blacks were not the only Americans of color who suffered under Jim Crow-ed schools.

Native Americans had similar problems, with the government either providing no formal education or education in boarding school where they were forcibly assimilated.

Before the landmark Brown v. Board of Education case, many Mexican-Americans attended separate schools in states such as Texas, California, and Arizona, according to Marisa Demeo, regional counsel for the Mexican American Legal Defense and Educational Fund. In Lemon Grove, California, "The local school board decided to build a wooden structure that looked like a barn, and they made that the Mexican school," she said. "Without informing the parents, the Mexican American students showed up to the formerly integrated elementary school one day, and the principal stood at the door and directed the Mexican American students to their new, separate school."

According to Demeo, many Mexican-Americans would just drop out of the separate schools, even in the elementary grades, because they were not learning anything. In 1946, in the Mendez v. Westminster case, a group of Mexican-American parents sued a California school district.⁷ Thurgood Marshall, who was in training for arguments that he would later make legendary in Brown, filed an amicus brief.

Asian Americans didn't fare much better under the Jim Crow education. Separate schools for Asian Americans were established in San Francisco and Mississippi, said Vincent Eng, legal director of the National Asian Pacific American Legal Consortium. According to Eng, the Japanese American Citizens League was the only non-African- American group of color to file amicus briefs in Brown.

The NAACP's original legal team (now the NAACP Legal Defense and Educational Fund, a separate organization) developed the following idea: If enough individual states were sued because they failed to provide "separate but equal" education to black students in segregated black schools, states would be forced to desegregate. Subsequently, the legal foundation of Jim Crow would crumble.

Charles Hamilton Houston, his protégé Thurgood Marshall, Constance Baker Motley, Oliver Hill, Robert Carter, and Jack Greenberg — the latter a committed white attorney — were among the lawyers who implemented this strategy from the 1930s until 1954. According to Shaw, they displayed a courage and commitment that would have to be rare today. "Oppression — and I mean brutal oppression — either crushes people or breeds extraordinary character," he declared. "These are people of extraordinary character," said Shaw.

In the 1940s, the strategy had begun to pay off, case by case. For example, Ada Sipuel, a black woman, wanted to attend law school in her home state, but was barred from the University of Oklahoma School of Law because of her race.⁸ Marshall stepped in to argue the case. Sipuel won, and the law school had to admit her. So it did, but in a cynical fashion: Administrators created a law school just for her on the campus. She attended one-person classes in the state capital, and had her own instructors.

Separate is not equal

The NAACP's work continued into the 1950s, even after Charles Hamilton Houston's death in 1950. In 1952, the civil rights organization, representing black parents of school-age children, petitioned the U.S. Supreme Court with five cases of separate-but-equal schooling: Briggs v. Elliot,⁹ Brown v. Board of Education of Topeka,¹⁰ i,¹¹ Bolling v. Sharpe,¹² and Gebhart v. Belton.¹³ The Court would merge these cases into its Brown decision two years later. According to Theodore V. Wells, Jr. of Paul, Weiss, Rifkind, Wharton & Garrison, the Court did that because it wanted to view the problem as national, not regional.

On May 17, 1954, the Court's unanimous decision was delivered by U.S. Supreme Court Chief Justice Earl Warren.¹⁴ In the unanimous opinion, the court held that racial segregation in education was psychologically harming black children, giving them a sense of inferiority. In doing this, segregated schools were depriving African-Americans of their equal rights under the Fourteenth Amendment to the Constitution.

George Madison, executive vice president and general counsel of TIAA-CREF, opined that the Brown decision did nothing less than prevent another Civil War. He argued that the fact that America's people of color knew they could use the law to achieve civil rights prevented a national racial war. Brown, said Madison, "saved the soul of white America…. Without it, it [the social friction between whites and people of color] would have been bloody."

The next year, the Supreme Court followed up with Brown v. Board of Education II. It gave permission for federal district courts in the South to move to desegregate its school systems with "all deliberate speed."¹⁵

The Court had destroyed Plessy v. Ferguson and opened the door for federal orders to desegregate schools. Over the next 10 years, the South would be extraordinary slow to comply.

Reaction from local school districts in the South proved unambiguously deliberate, direct, and defiant. In Prince Edward County, Va., whites closed the school system from 1959 to 1964. "Many public facilities in Virginia, including schools, parks, theaters, etc, were closed rather than desegregated," said Clyde Bailey, Sr., president of the National Bar Association.

According to Bailey, the schools were not desegregated in Virginia until the 1970s and was generally accomplished by turning the traditional black high schools into middle schools throughout the state. In this desegregation model, the traditionally all white high schools retained their legacy as a high school.

The state, in defiance of Brown and to strengthen "state's rights," passed a series of laws allowing school systems to shut down rather than desegregate by court order. Whites in the county built a private academy for its 1,550 students. Meanwhile, only a small percentage of the area's 1,800 black students attended makeshift "Freedom Schools" set up by the NAACP and black ministers. The rest were home, missing out on formal education.

In 1960, a 6-year-old girl instantly became the only student in her newly desegregated New Orleans, La. school after whites boycotted a desegregation order. In Birmingham, Ala., in 1963, a federal judge ordered the city's schools to desegregate – it did, but only after extreme protest and the day after four little black girls died in a bombing at the Sixteenth Street Baptist Church. By the end of the day, rioting had begun and the home of Arthur Shores, a black attorney, was bombed.

Due to white community defiance, South Carolina took nine years to comply with the Brown decision. When, for instance, parents in Columbia and other areas of the state signed a petition requesting students to be admitted on a "non-discriminatory basis," blacks in Estill, South Carolina, were refused housing and credit.

Although there were some exceptions, like the careful, quiet desegregation of the Atlanta schools in 1961, this pattern would continue in the South throughout the 1960s. Public schools would integrate (normally after some rioting and/or boycotting by white students and/or parents) or would shut themselves down, and white-funded private schools would be created.

Like the Confederate flag, blatant, public displays of racism regained popularity as an expression of white backlash against the civil rights movement. This was a period of time in which a song like "Nigger, Nigger" could be recorded by a group called the Coon Hunters. The single's B-side is "We Don't Want Niggers in our Schools."

But the damage to Jim Crow had been done. Blacks and other people of color thought the law could be on their side. The modern civil rights movement had officially begun; blacks and other people of color would use the United States Constitution to back up their demands for equal rights. The shackles from slavery, said Madison, were "not officially or legally removed until Brown v. Board of Education."

Mixed Legacy

The Brown decision may have shattered America's racial history in two. But the current landscape is even more fractured. Issues such as using race as a factor for admission to colleges and law schools are dividing Americans. And the schools where the majority of African-Americans attend — urban, public schools — are separate, unequal, and grossly lacking resources compared to their suburban counterparts.

Many lawyers interviewed talked about a de-facto racial re-segregation of public schools via residential living patterns. The Civil Rights Project of Harvard University released a report earlier this year, "Brown At 50: King's Dream or Plessy's Nightmare?", which stated America's public schools are "increasingly segregated" in 2004.

The National Education Association reports that the majority of whites who attended public schools in the 2001- 2002 school year attended schools that were 80 percent or more white.¹⁶ The overwhelming majority of public school educated white children do not attend racially diverse schools. However, the Harvard study states that the percentage of whites in American public schools totals 60 percent.¹⁷

Wade Henderson, executive director of the Leadership Conference on Civil Rights, stated that people of color always viewed integration as a "metaphor for equality of opportunity." That opportunity is harder to find for many in urban public schools.

The notion of racial integration — what civil rights movement activists fought and died for — is at risk. "I think what people are not talking about in 2004 is the core of what Brown v. Board is about — segregation and desegregation," Shaw argued. "The notion of integration has largely been abandoned, even by many African-Americans, as outdated 1960s stuff," said Shaw.

Shaw believes whites have almost given up on the reality, if not the idea, while many blacks today almost perceive integration as insulting, a waste of social energy could be better used to build African-American institutions. "I think it [integration] is a mixed legacy. It's been a failure [with the continuance of black and brown poverty] and it's been a success [with people of color in successful positions]. Not only in public school but in society in general…As Dickens said, 'It's been the best of times and the worst of times,'" said Shaw.

The Charles Dickens quote from A Tale of Two Cities that Shaw referenced could easily apply to last year's two Michigan cases, Gratz v. Bollinger¹⁸ and Grutter v. Bollinger.¹⁹ The Supreme Court's decision upheld affirmative action in college admissions, but suggested a 25-year timeline in which affirmative action should end.

The impact of the decision is still being felt while Brown is being commemorated. Kenneth Frazier, general counsel of Merck & Co., led his company's decision to be included on the corporate amicus brief for the Michigan cases, said Brown not only "prohibited a moral wrong from continuing to be done to black children," but it also banished from public discourse the notion that any group should be stigmatized as inferior. Frazier views the Michigan case as recognition of the broad societal value of diversity.

Shaw had wondered if the Supreme Court was going to continue Brown's legacy or turn it around. "The Court walked up to the precipice, looked over, and said, 'We don't need to go there.'"

Madison, meanwhile, thought that it was the right decision for its time. "There are over-arching principles right for all time versus right for its time…. I don't know if 25 years is the right time, but she [Supreme Court Justice Sandra Day O'Connor] has the principle right." Affirmative action, he said, is a "tool to move beyond the spectrum, to change the complexion of corporate America. And the question is this: Should it last forever and all time?"

Michele Coleman Mayes, senior vice president and general counsel for Pitney Bowes Inc., agreed with Madison. "There should come a time when one is able to look beyond just race and therefore, affirmative action will not be a permanent policy," she said. "It is very difficult to forecast with any accuracy when that time will come… Its [Brown's] legacy is that in the end, we size up individuals taking stock of various factors, such as culture, geography, and values, to name a few."

According to Demeo, the Brown decision was one of the cases cited by the Supreme Court to retain educational opportunity in the Michigan cases. She indicated that Justice O'Connor mentioned Brown in her Michigan opinion. "The Michigan case had to come out the way it did because we're not providing equal opportunities for students in the elementary and secondary public schools," she said. "No matter how smart you are, if you're not given the tools that allow you to obtain the education and experience, you won't succeed," she emphasized.

Bailey warns that special interest groups will continue to oppose diversity and will pursue ways to circumvent the results of the Michigan cases. "We must remain vigilant and be prepared to defend the next wave of attacks on diversity and affirmative action," Bailey explained.

Shaw said the next round of legal battles will be fought to ensure that educational opportunity for black students includes remedial internship and scholarship programs.

And these battles need lawyers, including corporate counsel, to volunteer their talents to preserve the gains of the civil rights movement, said Henderson. "The jobs held by many of these attorneys would not have been possible without Brown, and its progeny. We all have an obligation to give back to those coming behind," Henderson continued.

This year is not just the 50th anniversary of Brown, but also the 95th anniversary of the NAACP and the 75th birthday of Martin Luther King, Jr., Henderson stated. "It's a time of sober reflection. It's not a time for superficial celebration [because] we've only put in a down payment on that goal of Brown," Henderson explained.

All of the attorneys interviewed indicated that there have been fundamental changes in corporate America and the larger society due to Brown. As stated by Madison, African-Americans in 2004 are in all levels of corporate America to the point that it's no longer unusual. "We're now doing things we never dreamed of in 1954," said Madison, calling the situation "good for everybody, good for America, [and] good for every individual shareholder. Think of the shareholder value these people have brought to those corporations," said Madison.

However, Wells described the progress made by people of color in corporate America as "moving at a glacial pace." As we are reminded by Shaw, although Plessy v. Ferguson is never to return, the legacy of Brown could easily be undone without vigilance by those interested in preserving those hard-won opportunities. "You don't improve for 30 years or 50 years and then say that it's done," Shaw concluded. If you don't choose to be a part of the solution, then you are just a part of the problem.

Todd Steven Burroughs, Ph.D. is an independent writer, researcher and scholar based in Hyattsville, Md. and one of four primary authors of the book Civil Rights Chronicle. He is currently writing a biography of death row journalist Mumia Abu-Jamal.

NOTES

1. See Brown v. Board of Education, 347 U.S. 483 (1954).
2. Jim Crow refers to the series of laws that the former Confederate states passed after Reconstruction. These laws segregated Americans on the basis of race.
3. Reconstruction refers to the period in American history immediately following the Civil War. During this time, the Union rebuilt the South and enslaved Africans were freed and got the right to vote, and began to create their own social structures. In reaction, the Ku Klux Klan was formed to terrorize blacks and to embolden whites to stop the Northern-imposed societal changes.
4. See Plessy v. Ferguson, 163 U.S. 537 (1896).
5. See Peter Irons, Jim Crow's Children: The Broken Promise of the Brown Decision, New York: Viking, 33-36.
6. Id.
7. See Mendez v. Westminster School District, 64F Supp. 544 (S.D. Cal. 1946).
8. See Sipuel v. Board of Regents of University of Oklahoma, 332 U.S. 631 (1948).
9. See Briggs v. Elliott, 103 F. Supp. 920 (U.S. Dist. Court, Eastern Dist. of South Carolina, Civ. No. 2657, 1952).
10. See Brown v. Board of Education of Topeka, 98 F. Supp. 797 (Shawnee County, Kansas, U.S. Dist. Court D. Kansas, Civ. No. T-316 1951).
11. See Davis v. County School Board of Prince Edward County, Va., 103 F. Supp. 337 (U.S. Dist. Court E.D. Va. at Richmond, Civ. No. 1333, 1952).
12. See Bolling v. Sharpe, 347 U.S. 497 (1954).
13. See Gebhart v. Belton, Supreme Court of Delaware, 144, 91 A.2d 137 (1952).
14. Excerpts of the opinion: "In approaching this problem, we cannot turn the clock back to 1868 when the amendment was adopted, or even 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…Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact 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 [N]egro group. A sense of inferiority affects the motivation of a child to learn. Segregation within the sanction of law, therefore, has a tendency to [retard] the educational and mental development of [N]egro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system….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."
15. See Brown v. Board of Education II, 349 U.S. 294 (1955). In another unanimous opinion, Supreme Court Justice Earl Warren remanded all segregated school cases "to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases."
16. For more statistics, go to the website for the National Education Association, at http://www.nea.org/brownvboard.
17. For the full study, go to the website for the Civil Rights Project, at http://www.civilrightsproject.harvard.edu.
18. See Gratz et al. v. Bollinger et. al., 539 U.S. 244.
19. See Grutter v. Bollinger et al., 539 U.S. 306.

---

From the May/June 2004 issue of Diversity & The Bar^®