READING TWO

THE FIGHT TO REVERSE PLESSY

By Raphael Cassimere, Ph.D.

Separate and Unequal

Justice Harlan's dissent in Plessy was as prophetic as it was lamentable. The Court's thinly veiled sophistry turned the fourteenth amendment on its head. Plessy was the beginning of the Court's misreading of congressional intent, if not the actual wording of the amendment, especially as it related to the rights of black Americans. Just three years later the Court validated a decision of the Richmond County, Georgia School Board (Cumming v. Richmond County Board of Education) to transform its only Negro high school into an elementary school as the best way to accommodate its growing black population.

The Court, this time including Justice Harlan, rejected a plea of the black petitioners to close the white high school until the school board provided a separate and equal high school for black students. Attorneys for the black petitioners failed to ask the Court to order admission of black students at the white high school, and Justice Harlan, speaking for a united Court, said he failed to see how the equal protection provisions of the fourteenth amendment would be met by closing the white high school. The Court seemingly agreed with the school board's argument that a public high school education was not a fundamental right for African American citizens.

The poet Langston Hughes would later write, "what happens to a dream deferred?" He offered several possibilities. "Does it dry up like a raisin in the sun, or fester like a sore and run?" For many African Americans in the late 19th century, the dream was not only deferred but it had, in the words of James Weldon Johnson, died unborn. Disenfranchisement was all but complete by the turn of the century. Black legislators disappeared from every Southern legislature and the last black congressman left Washington in 1901. Unfortunately for those who believed that things could not get worse, the worse was yet to come.

The Cummings decision did not go unnoticed in other parts of the country. In 1900, the year after Cummings, the Orleans Parish School Board decided to eliminate all grades beyond the fifth for its colored schools. The board's educational committee indicated that it was giving up all pretense of creating separate Negro schools identical with white schools, but instead was following the trend of the day in the South to provide Negroes the education which would "fit him and her for that sphere of labor and social position and occupation to which they are best suited and seem ordained by the proper fitness of things." Given this attitude, it is not surprising that New Orleans did not provide its black citizens with a public high school until 1918.

While Plessy initially had been limited to the area of public control, it was not long before the top Court sanctioned state intrusion into areas of private institutions, as long as it deterred, rather than promoted, intermingling of the races. In 1908, the Supreme Court approved a blatant violation of the fourteenth amendment, even as narrowly construed by the Court in the past. The Kentucky legislature passed a law aimed directly at Berea College, a small interracial Presbyterian College. The legislature stipulated that students of different races could only be taught by the same institution if classes were taught separately for each races, at least twenty-five miles apart. Berea sued, but lost.

The Court failed to see any violation because the law did not prevent Berea from teaching students of both races at the same place, as long as they were taught at different times. Nor did it require Berea to discontinue teaching students of the different races at the same time, as long as it was in different places.

A Settled Question

In 1927 a unanimous Court, speaking through Chief Justice Taft, almost totally abdicated control over public education to the states. It rejected the plea of a Chinese-American who sought to enroll his daughter in the white elementary school in Bolivar County, Mississippi. The superintendent had ruled that since his daughter was not "white," she should attend the school reserved for "colored."

In rejecting Lum's appeal, Taft found Mississippi's law beyond federal scrutiny. He stated, "were this a new question, it would call for very full argument and consideration; but we think that it is the same question that has been many times decided to be within the constitutional power of the state Legislature to settle, without intervention of the federal courts..." Taft concluded that it was clear that states had the right and the power to regulate the method of providing for the education of its youth at public expense. The nation's top jurist might have added, "the fourteenth amendment, notwithstanding," because he failed to cite the authority which vested the state with such unlimited right. Paradoxically, Taft presided over a Court which continually used the fourteenth amendment to restrain state action against big business, while refusing to use it to protect the interests of consumers, workers or minorities. In short, the Court used the fourteenth amendment to protect the powerful few from the impotent majority.

On the eve of the great depression it seemed that segregation was enshrined forever. Entrenched though it may have been, however, there already were plans in the making to topple it. Much of the effort for overturning segregation lay at the heart of the goals of the nation's first civil rights organization, the National Association for the Advancement of Colored People.

The NAACP

Founded in New York in 1909, the NAACP was organized as a biracial group determined to restore basic citizenship rights to African Americans. The organization was hardly out of its infancy when the Wilson presidency launched a new wave of racial discrimination, including segregating federal employees in restrooms, lunch rooms, the removal of black office holders and replacing them with white officials, and the re-segregation of public transit and public buildings in the District of Columbia.

And while the NAACP won an occasional symbolic victory in the Court or in the legislative galleries, by the time it celebrated its twentieth anniversary, the NAACP had accommodated Jim Crowism more than eliminate it. By 1930, as the economic down swing caused the NAACP to lose members, its officials began to reassess their goals and strategies. Gradually a consensus developed that conditions for citizens of color would not change for the better until 1) there was significant improvement in African American education, and 2) separate but equal, especially as it had developed into separate and unequal, was eradicated.

The first problem involving inadequate education was addressed in a study headed by Nathan Margold. Margold researched the history of public education for black citizens in the Southern states. He found that most states which required separation of the races in the public schools did not require equal distribution of funds for the races. Even in those states which by state law were required to operate "separate but equal" schools for both races, there was not even a pretense of equality. Not only were black schools under-funded, under-staffed and over-crowded, but black teachers and administrators were paid considerably less than their white counterparts. Sometimes black teachers received less money than white janitors. Margold recommended that the NAACP push for equal funding, not simply to secure for blacks an education equal to whites, but to also force the government to duplicate services, and eventually make "separate but equal" so expensive that whites would have to discard it.

Preparing the Groundwork

The campaign against "separate but equal" would find its architects at Howard University. Charles Houston was the first black dean of Howard University's law school. A Harvard graduate and son of a prominent D.C. attorney, Houston had transformed the Law School, quickly upgrading the faculty, reorganizing the curriculum, and improving the library. He soon developed a cadre of young socially-conscious lawyers, including Thurgood Marshall, his closest protege. Houston continually pointed out the handicap created by the Plessy precedent. Until Plessy was overturned, there could be no equality, Houston hammered away at his students. It was that simple. But how to overturn Plessy was not.

The difficulty of overturning Plessy was documented by Charles H. Thompson, Houston's Howard colleague, who edited the Howard-based, Journal of Negro Education. In 1935, Thompson reported that the question of separate Negro education had been litigated 113 times in 29 states plus the nation's capital. Forty-four times the question of the constitutionality of segregated education had been raised, and in every case the answer was "yes." Thompson noted that some states segregated their public school students without specific statutory authorization. He concluded that the very concept of segregated education was offensive and harmful to African American children, because forced separation from children of other races created a sense of inferiority that often proved permanent.

Houston assembled a legal team comprised of his cousin, William Hastie, Thurgood Marshall and top NAACP staff. The team decided not to immediately attack "separate but equal" per se, but instead focus on the inequality produced by separation produced. In short, rather than a frontal assault on the principle of "separate but equal," Houston would chip away at it gradually. He believed it would eventually become obvious that separate could never be equal; and since the Constitution required equality, not separation, one would have to be eliminated in order to assure the other.

In 1938 the association won the precedent-setting Gaines case when the Supreme Court ordered the admission of a black student to the all-white law school of the University of Missouri. The Court rejected Missouri's offer to help defray the petitioner's expenses to attend law school outside of Missouri. It agreed with the NAACP that Missouri's offer did not meet the "equal protection" clause of the fourteenth amendment.

Gaines signaled a victory for the NAACP strategy and a new direction for the Court. The decision established the "Gaines principle" which mandated that a student had the right to attend the state's only existing facility if there was no separate and equal facilities available. The Gaines victory was followed by a series of similar legal achievements by the NAACP, including successful attacks on salary discrimination against black teachers; the end of segregation on interstate transit and in the armed forces; and the abolition of the white primary.

None of the victories came easily. School boards almost always fired black plaintiffs in teacher-salary equalization cases. White mobs attacked and lynched new black workers in defense plants, black attorneys were threatened with physical violence, dozens of African Americans were beaten and killed in war-time riots. Despite this opposition, the NAACP established an enviable record of success in the courts.

After the Second World War, NAACP strategists began to reassess their goals and eventually decided if there was going to be any meaningful benefit to its success in desegregating education, it had to be at the elementary and secondary school levels. After all, only a tiny fraction of the black population attended college. Indeed, only a minority of black students attended high school, and even fewer graduated.

Just an Ordinary People

Like so many movements, ordinary people began the effort to desegregate elementary and secondary schools. In 1947 the Clarendon County School Board, in South Carolina, rejected a petition by black citizens for a school bus to replace the old bus they had purchased. Unbeknownst to the school board, their request was part of a new NAACP "equalization" drive. The quiet revolution that the NAACP had conducted largely through the courts thus far was about to accelerate and become more visible.

Even by the standards of that time, the NAACP's demands were not radical. But given their passivity of the last half-century, it was out of character and unexpected. Few black leaders in the late forties, publicly, or even privately, espoused integrated schools. Indeed, many did not even demand absolute equality with whites, but simply better facilities. However, African American leaders would learn that, like their ancestors before the Civil War, they could not simply demand more rights as a lower-status people; they must have the same rights as were enjoyed by others.

By the middle of the century, there were lawsuits filed in nearly a dozen states either seeking "equalization" or implementation of the "Gaines Principle." There was a spirit of optimism that had not been seen since the early days of Reconstruction. True, the "Gaines Principle" had forced the admission of only a handful of black students to post graduate or professional schools, limited for the most part to the upper South. Now, however, the revolution began to march toward the Deep South.

In 1951 the Supreme Court ruled on attempts by the states of Oklahoma and Texas to "have their cake and eat it too." The "Gaines Principle" required the University of Oklahoma to admit George McLaurin to its graduate program. McLaurin was admitted, but the university said it was required to segregate him within the school. Thus he was barred from actually sitting inside the classroom. Instead he was placed in the doorway and had his own tables in the library and cafeteria, with signs indicating, "reserved for colored." Twice a day the "white" sign on the door of the men's restroom was replaced with a "colored" sign.

The Supreme Court ruled against the degrading practices in the McLaurin case. The Court ruled that once a student was admitted to an institution, he could not be treated separately from any other student. The black student, the Court ordered, must not be subjected to any different treatment.

On the same day that the NAACP won the McLaurin case, it won another victory which pointed the way toward Brown. Texas decided to meet the command of Gaines, not by admitting Heman Sweatt to the University of Texas Law School, but by building a new school for black students. Sweatt refused to attend and appealed to the Supreme Court to order his admission to the older school because the new school was obviously not equal to the older one. Without passing on the right of the state to create a separate law school, the Court ruled that Sweatt could not be arbitrarily barred from the older law school, but must be given a choice."

The NAACP top officials now had to decide to challenge Plessy directly or continue the "piece-meal attack." Ultimately, Thurgood Marshall, although not completely sure, decided to "go for the jugular."

Go For Broke

By 1952 several school desegregation cases which had been lost in lower courts were now headed for Supreme Court review. Of special interest to the NAACP was the decision of the state Court in the Kansas case, Brown v. Board of Education. The state Court based its refusal to order desegregation on the Supreme Court's most recent rulings, Sweatt and McLaurin, which had refused to reexamine Plessy.

The judges did, however, attached nine "Findings of Fact." Among them was a finding that "segregation of white and colored children in public schools has a detrimental effect upon the colored children" and "the impact is greater when it has the sanction of law" because it creates a "sense of inferiority" which "affects the motivation of a child to learn." Although technically a defeat, the Kansas court accepted the argument that the high Court had originally rejected in the Plessy case more than a half-century earlier: laws requiring separation of the races imply the inferiority of one race to the other.

The Supreme Court eventually reviewed the Brown case in combination with several other cases. Just as the Plessy decision had reflected prevailing widespread racial attitudes, so too did the Warren Court reflect changing attitudes. The United States had just fought a war against Nazism, the quintessential racist doctrine, and racist social theories were being subjected to widespread criticism. Additionally, America's Cold War with communism placed pressure on the United States to fulfill its promise of universal democracy and freedom. Segregation was becoming an international embarrassment. Moreover, African Americans were becoming more impatient with the snail's pace of change, and returning black war veterans infused the integration movement with a new militancy.

In 1954 the new Chief Justice, Earl Warren, quickly simplified the case for those who expressed concern about the complexity of the issue. If there was any justification for separation of the races in public schools, argued Warren, it was premised on the inferiority of one race to the other. And if the Court believed that blacks were inferior, it should openly declare its position--otherwise there was no longer a place in American life for Plessy. Warren was confident that no matter what individual justices believed personally, none would publicly endorsed a doctrine racial superiority.

Victory

The historic decision was revealed on May 17, 1954. The Court announced in Brown v. Board of Education that it had unanimously reversed Plessy as it related to segregated public education. The Court based its decision partly on the negative impact that segregation had on Negro children. Warren said that to separate children of the minority "from others of similar age and qualifications, solely because of their race...may affect their hearts and minds in a way unlikely ever to be undone...Separate but equal has no place in the field of education."

The high Court, however, greatly concerned about implementation of Brown, did not order immediate admission of any of the plaintiffs, but instead scheduled the cases for a third reargument, this time with suggestions from both sides as to implementation, including timetables and the extent of coverage.

The justices, probably doubting their ability to enforce immediate desegregation, ordered desegregation to precede "with all deliberate speed." They sent the cases back to the lower courts, which were given great latitude in determining when, and under what circumstances desegregation would begin. Their lack of resolve placed the burden of desegregation on the backs of African Americans.

Indeed, Linda Brown, the seventh grade student in Topeka, Kansas, for whom the case was named, was not ordered admitted to the white elementary school, and was in high school by the time the decision was reached in 1954. None of the original plaintiffs ever attended desegregated classes at the schools for which they applied. Actually, few African Americans would attend schools with children of other races for the next fifteen years to come. For the most part, Southern whites resisted school desegregation. While Plessy was no longer the law of the land, it remained alive long after its presumed death.