MASARYK UNIVERSITY BRNO

FACULTY OF EDUCATION

Department of English Language and Literature

African American Education before Brown

Decision and After

Diploma Thesis

Brno 2006

Supervisor Written by

Michael F. George, M.A. Šárka Kovaříková

2

Prohlašuji, že jsem diplomovou práci zpracovala samostatně a použila jen prameny

uvedené v seznamu literatury.

Souhlasím, aby práce byla uložena na Masarykově univerzitě v Brně v knihovně

Pedagogické fakulty a zp� ístupněna ke studijním ú� el� m.

I proclaim that my diploma thesis is a piece of individual writing and that only the sources

cited in Bibliography list were used to compile it.

I agree with this diploma thesis being deposited in the Library of the Faculty of Education

at the Masaryk University and with its being made available for academic purposes.

Brno 17 April 2006 …………………………………..

3

Poděkování

Chtěla bych poděkovat vedoucímu mé diplomové práce Michealu Georgovi, M.A. za cenné

rady a p� ipomínky, které p� ispěly ke kone� né podobě této práce.

Acknowledgments:

I would like hereby to take this opportunity to thank the supervisor of my diploma thesis

Michael George, M.A. for his advice and comments which contributed to the final form of

this work.

4

Table of Contents:

Introduction …………………………………………………..………………… 5

Chapter 1: Separate but Equal ……………………………………..……………. 7

Education in the 19th century ……………………………………..…………….. 7

Plessy v. Fergusson …………………………………………………………….. 8

Education until the World War II ………………………………………………. 18

Chapter 2: From Plessy to Brown ………………………………………….......... 23

Missouri ex rel. Gaines v. Canada……………………………………………… 25

Sweat v Painter…………………………………………………….……………. 29

McLaurin v. Oklahoma State Regents…………………………………………… 30

Chapter 3: Brown v. Board of Education of Topeka ……………………………….. 33

Cases under Brown ………………………………………………………………. 35

Belton v. Gebhart, Belton v. Bulah ……………………………………… 36

Briggs v. Elliot …………………………………………………………… 37

Davis v. County School Board ………………………………………….. 39

Bolling v. Sharpe …………………………………………………........... 40

Brown v. Board of Education of Topeka ……………………..…………. 42

Chapter 4: The Implementation of Brown ……………………………..……………. 51

Little Rock Crisis ……………………………………………………..………… 55

Chapter 5: The Time for “All Deliberate Speed” Has Run Out …….……………… 61

Ole Miss Crisis ……………………………………………………………..…… 62

Impatience of the Court………………………………………………….……… 66

Conclusion…………………………………………………………………………….. 69

Suggestions on methodology…………........................................................................ 71

Attachment - Timeline………………………………………………….…………….. 73

Bibliography……………………………………………………………….………….. 77

Resume (Czech)….……………………………………………………………..…….. 91

Resume (English)…………………………………………………………………….. 92

5

Introduction

Most of the societies in the world are multicultural. Of course, there are differences, since

various societies face a varying number of problems. Intolerance, racism, prejudice and

segregation are among those problems, which are as old as humankind itself. What makes

some people believe that they are superior to others? Why do some people think that just

because the color of their skin is different or just because they cherish different values that

they are better than others? These are questions that should be asked, and these were some

of the questions that brought me to explore in depth the issue of segregation.

Segregation, the forced separation of people on the basis of race, has been for almost a

century a basic principle of American society. African Americans have been segregated

from Whites in restaurants, restrooms, housing and education. It was unthinkable, for

Whites probably more than for African Americans, that the races could ever live under one

roof. Racism, discrimination and prejudice were an inseparable part of American society.

Gradually, with increasing dissatisfaction, African Americans began their fight for equal

rights. They believed that they were entitled to the same undeniable rights as other citizens,

the same rights that were promised in the Declaration of Independence of 1776. America's

Declaration of Independence proclaimed that “all men are created equal, that they are

endowed by their Creator with certain unalienable Rights, that among these are Life,

Liberty and the pursuit of Happiness.”1 However, at the time when the document was

written, all men in America were not equal and certainly did not have equal rights. Many

American inhabitants, for instance African Americans, Native Americans and women,

often had no rights whatsoever. A long period of time passed before these groups gradually

fought for the rights that would secure their position within the society. Even though the

Fourteenth Amendment, ratified in 1868, secured for African Americans the Due Process of

Law and Equal Protection Clause, it took another century before the Civil rights Act of

1964 actually secured for them and other minorities the protection of the law, proclaiming

that American citizens cannot be discriminated against on the basis of race, color or sex.

The struggle, however, continues even today.

1 “Declaration of Independence.” US History.org. 20 Jan 2006. <http://www.ushistory.org/declaration/document/index.htm>.

6

A similar situation existed in the realm of American education. Under the laws of slavery,

African Americans were allowed no education; however, even after slavery ended, they

were educated primarily in segregated schools, and only recently, during the past few

decades, did American schools truly become integrated. The important turning point

changing the situation was the U.S. Supreme Court decision of Brown v. Board of

Education, which declared segregated schools to be unconstitutional. The tendency to

desegregate schools spread throughout the United States and in some regions violent

confrontations and resistance toward the Brown decision took place. In some places, de jure

segregation was replaced by de facto segregation. De jure segregation was forced by

specific court rulings, and in United States these practices were also declared

unconstitutional by the 1960’s, while de facto segregation occurred “as a matter of fact”

rather than as legal requirement. The latter type of segregation often occurs due to housing

patterns or school enrollment. As far as integration tendencies are concerned, the strongest

were in the years following the Civil Rights Act of 1964, but toward the end of the

twentieth century efforts to integrate rather weakened.

American education has become a very important starting point for children and their future

lives, and it should assist all students, regardless of race or origin, to secure equal access to

effective educational opportunities. It is often in the classroom where children meet

children of other races or origins for the first time; they talk together, learn together and

live together, which is very important as Thurgood Marshall emphasized, “…for unless our

children began to learn together, there is little hope that our people will ever learn to live

together.”2

Education has always been a major factor helping prepare future generations for success in

life and society. Education does not only take place within the classroom, but also within

the family and society as well. It is important to learn about history, to think about history

and possibly to learn from it. I am sure that this should be goal of not only American

education, but education in general.

2 School, The Story of American Public Education - Episode 3, Separate and Unequal, 1950-1980. MD: Stone

Latern Films, 2001. 46 min.

7

Chapter 1

SEPARATE BUT EQUAL

Education in the 19th century

In 1860 practically 90 percent of the black population of the United States consisted of

illiterate slaves.1 Since the law of slavery forbid any kind of education or teaching of

reading or writing, African Americans had a very difficult position, not only within the

South, but in the North as well.

Despite the obstacles that African Americans had to overcome because of slavery and racial

discrimination, education for black Americans already had a long history in America by the

end of the eighteenth century; in some places schools for African American children had

been established or these students were accepted in schools for whites. Thomas Sowell,

American economist and philosopher, writes that it was in Washington D.C. that the first

African American schools were established. In 1807 a group of African Americans, “free

persons of color,” built the first school for African American children, which was attended

by many free African American children before they were admitted to public schools, and

in 1870 the first African American public high school in the United States of America was

established. As the years passed, such schools were established for African Americans in

Baltimore in 1892, in New Orleans in 1916, and in Atlanta in 1924.2

The era after the Civil War brought hope for African Americans in the South not only in

terms of education, but also in terms of their social status. African American teachers were

trained and new African American schools were established, often by white people from

the North who came to the South to give support to the education of the children of freed

slaves. During the fifty years after the Civil War, the amount of money invested by the

North in the education of African Americans reached $57 million, with an additional

investment of $24 million from African Americans themselves.3 The Freedman’s bureau,

the main contributor to the African American education in the decade immediately after the

1 Sowell, Thomas. Ethnic America. A History. New York: Basic Books, Inc., Publishers, 1981. p.202. 2 Sowell, Thomas. pp. 204-205. 3 McPherson, James M. The Abolitionist Legacy. Princeton: Princeton University Press, 1975. p.159.

8

war, also spent $3.5 million on African American education.4 However, public schools in

the South were developing slowly, and rural areas especially remained behind in the area of

education for former slaves.

As far as the literacy of African Americans is concerned, Sowell notes that they made a

remarkable advancement during the fifty years following the Civil War, when the literacy

rate changed from almost 100 percent illiteracy to 75 percent literacy.5

In the matter of higher education, the first African American graduated from Bowdoin

College in 1828 and the first African American woman received a college degree from

Oberlin College in 1862. The first African American graduate from Harvard finished his

studies in 1870 and in 1896 W.E.B. Du Bois became the first African American man to

receive a Ph.D. at the same university. Sowell also adds, however, that throughout the

nineteenth century the number of African Americans who received college or university

degree was less than two thousand.6

Plessy v. Ferguson

The 1896 United States Supreme Court case Plessy v. Ferguson,7 the first serious challenge

to Jim Crow laws, at first did not seem to have much to do with education, but its

implications were to dominate American schools for over fifty years. The term “Jim Crow,”

derived from the minstrel shows of early nineteenth century, was often used to describe

segregation rules, laws and customs which originated after the Reconstruction in 1877.8

These statutes enacted by Southern states legalized the racial oppression and segregation of

blacks and by 1890 the term stood for the separation of blacks from whites.9

4 Sowell, Thomas. p.203. 5 Sowell, Thomas. p.203. 6 Johnson, Charles S. The Negro College Graduate. Chapel Hill: University of North Carolina Press, 1938.

p.8. 7 Filed as Plessy v. Ferguson, 163, U.S. 537 (1896). 8 Pilgrim, David. “Who Was Jim Crow?” Ferris State University. 2 Feb 2006.

<http://www.ferris.edu/jimcrow/who.htm>. 9 Schuyler, Lori. “Post Reconstruction through 1920“ in A Guide to Primary Resources for U.S. History.

Virginia Center for Digital History. 5 Feb 2006. <http://www.vcdh.virginia.edu/solguide/VUS08/essay08c.html>.

9

The plaintiff, Homer Plessy, a thirty year-old shoemaker was arrested for sitting in the

“white only” car of the East Louisiana Railroad on June 7, 1892. According to a Louisiana

statute passed in 1890 that required all rail companies carrying passengers in Louisiana to

provide separate but equal accommodations, including separate railway cars, for white and

non-white passengers, black people were required to sit in a “colored” car only. The penalty

for sitting in the wrong compartment was a fine of $25, or 20 days in jail.10 Plessy was a

light-skinned man, of only one-eighth African American descent and seven-eighths

Caucasian descent, but “the mixture of blood was not discernible in him.”11 He bought a

ticket on the East Louisiana Railway, from New Orleans to Covington, and he sat in the car

reserved for whites. When the conductor came, Plessy had to actually point out that under

the law of Louisiana he was considered black. When the conductor asked Plessy to vacate

his seat and sit instead in the one reserved for “colored” only, he refused and was

immediately arrested and charged with violating the Separate Car Act.12 According to

teacher of Social Studies in New Haven, Connecticut, Henry Rhodes, the confrontation was

prearranged and the arrest was expected. Moreover, the railway companies were not in

favor of separate train cars for different races, due to financial concerns, so the cooperation

of railroads was secured.13

The federal court Judge John Howard Ferguson found Plessy guilty and thereby lent his

name to the case upon appeal. Plessy and his attorneys, S. F. Phillips and A. W. Tourgee,

appealed to the United States Supreme Court, challenging the 1890 Separate Car Act,

arguing that it violated the Thirteenth Amendment banning slavery and the Fourteenth

Amendment equal protection guarantee.14 The first section of the Thirteenth Amendment

banned slavery, stating that “neither slavery nor involuntary servitude, except as a

10 “Plessy v. Ferguson (1896): Decision Established Doctrine of ‘Separate but Equal’.” Street Law & The

Supreme Court Historical Society. Birmingham Civil Rights Institute. 28 Jan 2006. <http://www.bcri.org/education_programs/curriculum_guide/plessy.htm>.

11 “Plessy v. Fergusson. Supreme Court of the United States 163 U.S. 537 May 18, 1896.” University of Missouri-Kansas City School of Law. 20 Jan 2006. <http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/plessy.html>.

12 Forten, Richard A. “Book review: A Different Anniversary: Separate And Unequal, Homer Plessy and the Supreme Court Decision that Legalized Racism by Harvey Fireside.” Delaware State Bar Association. July/August 2004. 21 Jan 2006. <http://www.dsba.org/AssocPubs/InRe/jul04book.htm>.

13 Rhodes, Henry A. “The Brown Decision. Fact or Myth in Connecticut?” Yale-New Haven Teachers Institute. 1 Sept 1992. 15 Jan 2006. <http://www.yale.edu/ynhti/curriculum/units/1992/1/92.01.09.x.html>.

14 “Jim Crow Supreme Court Cases: Segregation.” The History of Jim Crow.15 Nov 2005. <http://www.jimcrowhistory.org/scripts/jimcrow/courtcases.cgi?casetype=Segregation>.

10

punishment for crime whereof the party shall have been duly convicted, shall exist within

the United States, or any place subject to their jurisdiction.”15 The Fourteenth Amendment

requires that:

“All persons born or naturalized in the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the state wherein they reside. No state

shall make or enforce any law which shall abridge the privileges or immunities of

citizens of the United States; nor shall any state deprive any person of life, liberty, or

property, without due process of law; nor deny to any person within its jurisdiction the

equal protection of the laws.”16

However, in 1896 the US Supreme Court rejected Plessy’s claims, upholding the judgment

of the federal court and the Louisiana Supreme Court that segregation was not

discriminatory as long as the facilities for African Americans were equal to those of whites.

The doctrine of “separate but equal” that lasted in the United States of America for more

than half a century was legally upheld until overruled by the Brown v. Board of Education

of Topeka17 case.

In Constitutional Law and Politics, O’Brien states that the Supreme Court decision ruled

seven to one, with the abstention of Justice David Josiah Brewer and with Justice John

Marshall Harlan dissenting.18 Speaking for the seven person majority, Justice Henry

Billings Brown announced the Court’s opinion in which he claimed that the state’s action

did not violate the Thirteenth Amendment abolishing slavery.

15 “Amednment XIII.” U.S. Constitution. Legal Information Institute. 2 Feb 2006.

<http://www.law.cornell.edu/constitution/constitution.amendmentxiii.html>. 16 “Amendment XIV.” U.S. Constitution. Legal Information Institute. 2 Feb 2006.

<http://www.law.cornell.edu/constitution/constitution.amendmentxiv.html>. 17 Filed as Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). 18 O’Brien, David M. Constitutional Law and Politics: Civil Rights and Civil Liberties, vol. II. New York: W

W Norton & Company, 1997. p.1254.

11

“This case turns upon the constitutionality of an act of the general assembly of the State of

Louisiana, passed in 1890, providing for separate railway carriages for the white and

colored races.”19 The first section of the statute provided that:

“All railway companies carrying passengers in their coaches in this State, shall provide

equal but separate accommodations for the white, and colored races, by providing two

or more passenger coaches for each passenger train, or by dividing the passenger

coaches by a partition so as to secure separate accommodations.”20

The Court reasoned that the passing of the Thirteenth Amendment abolishing slavery could

not protect African Americans from the unequal state law treatment.21

As far as the Fourteenth Amendment is concerned, Justice Brown interpreted the

Fourteenth Amendment as a guarantee of political equality rather than social quality for

African Americans.22 O’Brien sees Brown’s “treatment of the Fourteenth Amendment

claim far from cogent.” Justice Brown admitted that the amendment “was undoubtedly to

enforce the absolute equality of the two races before the law.” However, he added that “in

the nature of things it could not have been intended to abolish distinctions based on

color.”23 Justice Brown wrote:

“We consider the underlying fallacy of the plaintiff’s argument to consist in the

assumption that the enforced separation of the two races stamps the colored race with a

badge of inferiority. If this be so, it is not by reason of anything found in the act, but

solely because the colored race chooses to put that construction upon it. … Legislation

is powerless to eradicate racial instincts or to abolish distinctions based upon physical

differences, and the attempt to do so can only result in accentuating the difficulties of

the present situation. If the civil and political rights of both races be equal, one cannot

19 “Plessy V. Ferguson (1896).” Office of English Language Programs U.S. Department of State. Bureau of

Educational and Cultural Affairs. 6 Feb 2006. <http://exchanges.state.gov/education/engteaching/pubs/AmLnC/br33.htm>.

20 O’Brien, David M. p.1254. 21 “Jim Crow Supreme Court Cases: Segregation.” 22 Rhodes, Henry A. 23 O’Brien, David M. p.1254.

12

be inferior to the other civilly or politically. If one race be inferior to the other socially,

the Constitution of the United States cannot put them upon the same plane.”24

In the end, Justice Brown added a few details about the distinction between a white and a

colored person, which varied from state to state, and the only concern in connection with

this case could have been whether, under the Louisiana laws, Plessy would have belonged

to the colored or white race.25 Henry Rhodes, writing in “The Brown Decision-Fact or

Myth in Connecticut?” mentions that Justice Brown supported his position by several

citations of other cases. The first ruling was the decision of the Supreme Judicial Court of

Massachusetts in Roberts v. Boston (1849), in which Chief Justice Lemuel Shaw justified

Boston’s practice of separate educational facilities for whites and African Americans

arguing that “it was good for both races.”26 Justice Brown, however, did not mention the

fact that six years after the ruling in Roberts v. Boston the school segregation was banned

by Massachusetts legislature. In words of Henry Rhodes, other rulings that Brown

mentioned in his “flawed reasoning”27 and used as precedents were the California case of

Ward v. Flood (1874) and the Kentucky case of Dawson v Lee (1884). The former dealt

with the exclusion of African American students from public schools when alternative

schools were not provided, of which the California court disapproved. The latter involved

the question of whether the tax revenues from whites could be used only for white public

schools and money from African Americans for the black schools only. The Court saw that

this would necessarily cause the inferiority of the black schools. Rhodes continues with two

other Supreme Court decisions about railway segregation acts, which were cited by Brown:

“In the first case Hall v. De Cuir (1877), the Supreme Court struck down the 1869

Louisiana statute prohibiting segregation on public carriers, because it interfered with

Congress’ right to regulate interstate commerce. In the second case cited, Louisville,

New Orleans and Texas Railway v. Mississippi (1890), the Supreme Court upheld the

Mississippi statute requiring segregated passenger cars. In neither case was reference

made to the rights and privileges guaranteed by the Fourteenth Amendment against

24 “Jim Crow Supreme Court Cases: Segregation.” 25 “Separate But Equal: The Plessy v. Ferguson Case” History Matters, The U.S. Survey on the Web. George

Mason University. 2 Feb 2006. <http://historymatters.gmu.edu/d/5485/>. 26 Rhodes, Henry A. 27 Rhodes, Henry A.

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state abridgment, yet Justice Brown used these cases to support his position that the

issue of railway segregation had long been settled by the Supreme Court.”28

Consequently the Supreme Court decided that “racially separate facilities, so long as they

were equal, could legally be ordained by the state; segregation was not discrimination.”29

Justice John Marshall Harlan, a southern Unionist and one-time slave owner, was the lone

dissenting judge. He was born in Kentucky, and even though he came from a prominent

slaveholding family, later in his life he opposed the institution of slavery. He graduated

from Centre College and then studied law at Transylvania University in Lexington. When

he joined the Supreme Court in 1877, he was the only law-graduate among the nine

justices.30 Justice Harlan’s perception of the case was very different from Brown’s view,

and Harlan showed incredible foresight when he wrote in his dissenting opinion that the

Constitution should be “color blind.”31 It was Harlan’s position about the colorblindness of

the Constitution that NAACP32 lawyer Thurgood Marshall often cited later in the case of

Brown v Board of Education.33

Harlan claimed:

“I deny that any legislative body or judicial tribunal may have regard to the race of

citizens when the civil rights of those citizens are involved. [It] was said in argument

that the [law] does not discriminate against either race, but prescribes a rule

applicable alike to white and colored citizens. But [every one] knows that [the law]

had its origin in the purpose, not so much to exclude white persons from railroad cars

occupied by blacks, as to exclude colored people from coaches [assigned] to white

persons. [The] fundamental objection, therefore, to the statute is that it interferes with

the personal freedom of citizens.”34

28 Rhodes, Henry A. 29 Rhodes, Henry A. 30 “Harlan’s Great Dissent.” Louis de Brandeis School of Law Library. University of Louisville. 2 Feb 2006.

<http://library.louisville.edu/law/harlan/harlthom.html>. 31 “Jim Crow Supreme Court Cases: Segregation.” 32 NAACP stands for National Association for Advancement of Colored People, an organization fighting for

the civil rights of African Americans. More details available at <http://www.naacp.org/>. 33 “Harlan’s Great Dissent.” 34 Gunther, Gerald. Constitutional Law. New York, The Foundation Press, Inc., 1991. p.648.

14

He also stated that the white race seemed to dominate in terms of achievements, education

or power, but that according to law there should be no “superior, dominant, ruling class of

citizens.” He emphasized that “the Constitution is color-blind, and neither knows nor

tolerates classes among citizens.”35 He also stated that “… the judgment this day rendered

will, in time, prove to be quite as pernicious as the decision made by this tribunal in the

Dred Scott Case.”36 Justice Harlan warned that Louisiana’s law would “stimulate

aggressions, more or less brutal[ly] irritating, upon the admitted rights of colored citizens,”

as well as “encourage the belief that it is possible, by means of state enactments, to defeat

the beneficent purposes which the people of the United States had in view when they

adopted the recent amendments of the constitution.”37

He noted that:

“Sixty millions of whites are in no danger from the presence here of eight millions of

blacks. The destinies of the two races, in this country, are indissolubly linked

together, and the interests of both require that the common government of all shall

not permit the seeds of race hate to be planned under the sanction of law.”38

He further continued that it was the enactment that supported the race hatred and the feeling

of distrust between the two races and that real meaning of those legislations was to convey

that “colored citizens are so inferior and degraded that they cannot be allowed to sit in

public coaches occupied by white citizens.”39 Harlan concluded that: “I am of opinion that

the statute of Louisiana is inconsistent with the personal liberty of citizens, white and black,

35 Gunther, Gerald. p. 647. 36 Dred Scott was a black slave from Missouri who filed a suit for his freedom. He hoped to be granted his

freedom after living for seven years in a free state and a free territory. The U.S. Supreme Court issued a landmark decision declaring that Scott remain a slave due to fact that “all blacks - slaves as well as free - were not and could never become citizens of the United States”. The ruling in Dred Scott v. Sandford helped to speed up the arrival of the American Civil War. “Dred Scott case: the Supreme Court decision“ Africans in America. Public Broadcasting Service. 2 Feb 2006. <http://www.pbs.org/wgbh/aia/part4/4h2933.html>.

37 Gunther, Gerald. p.647. 38 O’Brien, David M. pp.1257-8. 39 Gunther, Gerald. p.648.

15

in the state, and hostile to both the spirit and letter of the constitution of the United

States.”40

The ruling of Plessy v. Ferguson provided the justification for the principle of “separate but

equal,” for segregation in different areas of life in the South, from transportation and

education to public accommodation for next half-century.41 It legitimized the racial

attitudes that strengthened the inferiority of African Americans who were aware from the

beginning of the fact that separate facilities were never equal. The decision had profound

and long lasting effect on American society.42

Several years after Plessy, at the turn of the twentieth century, the case involving

segregated schools Cumming v. Richmond County School Board of Education43 found its

way to the Supreme Court. This case was dealing with taxes in Richmond County in

Georgia. The School Board levied a tax by which it supported only white schools. African

American plaintiffs, Cumming, Harper and Ladeveze, objected to it, so they filed a lawsuit

against the board of education of Richmond and against Charles S. Bohler, tax collector.

The African American plaintiffs, residents and taxpayers of Richmond County, and their

attorney, George F. Edmunds, demanded that the Court prohibit the use of taxes for the

white high school until the black high school was reestablished.44

The Court summarized the action of the board of Richmond County as following:

“Although the board was not authorized by law to use any part of such funds or

property for the support and maintenance of a system of high schools in which the

colored school population were not given the same educational facilities as were

furnished for the white school population, it was using such funds and property in the

support and maintenance of its existing high-school system, the educational

advantages of which were restricted wholly to the benefit of the white school

40 O’Brien, David M. p.1258. 41 “Harlan’s Great Dissent.” 42 Rhodes, Henry A. 43 Filed as Cumming v. Board of Education of Richmond County, 175 U.S. 528 (1899). 44 Hine, Darlene Clark. “The Briggs v. Elliot Legacy.” University of Illinois Law Review. 25 Jan 2006.

<http://home.law.uiuc.edu/lrev/publications/2000s/2004/2004_5/Hine.pdf>.

16

population of Richmond county to the entire exclusion of the colored school

population.”45

The plaintiffs also asserted that the board of education by its action denied their rights

secured by the Constitution of the United States and that it was unconstitutional and unjust

“…to levy upon or for the tax collector to collect from them any tax for the educational

purposes of the county from the benefits of which the petitioners in the persons of their

children of school age were excluded and debarred.”46

After being argued before the Supreme Court of Georgia, the decision of the superior court

of Richmond County was reversed and the plaintiffs’ request was refused. The case went to

the federal Supreme Court, questioning the tax law and the equal protection law. The Court

upheld the Georgia school board’s decision to close the high school for African Americans

because the building was needed for an elementary school for African Americans. Justice

John Marshall Harlan delivered the opinion of the court stating that:

“There is no complaint in the petition that there is any discrimination made in regard

to the free common schools of the county. So far as the record discloses, both races

have the same facilities and privileges of attending them. The only complaint is that

these plaintiffs, being taxpayers, are debarred the privilege of sending their children

to a high school which is not a free school, but one where tuition is charged, and that

a portion of the school fund, raised by taxation, is appropriated to sustain white high

schools to which negroes are not admitted. … In our opinion, it is impracticable to

distribute taxes equally.”47

He continued that by analyzing different clauses of the Fourteenth Amendment of the

Constitution, the Court considered the action of the board as correct, not violating any of

provisions of the Amendment. Harlan also pointed out that the plaintiffs were denied

neither their privileges as the citizens of the United States, nor the equal protection of their

45 “Supreme Court of the United States, Cumming v. Board of Education of Richmond County 175 U.S. 528.”

Brown@50, Howard University School of Law. 15 Nov 2005. <http://www.brownat50.org/brownCases/19thCenturyCases/CummingvBdEdRichmondGA1899.html>.

46 “Supreme Court of the United States, Cumming v. Board of Education of Richmond County 175 U.S. 528.” 47 “Supreme Court of the United States, Cumming v. Board of Education of Richmond County 175 U.S. 528.”

17

laws. Moreover, he stressed the fact that public schools were a subject of state control48 and

he concluded:

“Under the circumstances disclosed, we cannot say that this action of the state court

was, within the meaning of the Fourteenth Amendment, a denial by the state to the

plaintiffs and to those associated with them of the equal protection of the laws or of

any privileges belonging to them as citizens of the United States. We may add that

while all admit that the benefits and burdens of public taxation must be shared by

citizens without discrimination against any class on account of their race, the

education of the people in schools maintained by state taxation is a matter belonging

to the respective states, and any interference on the part of Federal authority with the

management of such schools cannot be justified except in the case of a clear and

unmistakable disregard of rights secured by the supreme law of the land.”49

The Court held a unanimous opinion upholding an action of the officials of Richmond

County of closing the high school for African Americans while keeping two public white

schools; thus the decision was lost by the plaintiffs, giving legal support to the segregation

of the schools and enabling officials to discriminate.50

Henry Rhodes points out that from the dissenting opinion in Plessy one might assume that

Justice Harlan was against segregation; however, few years later, in 1899, he expressed the

opinion of the Supreme Court in the case Cummings v. Richmond County Board of

Education upholding Georgia’s right to create separate school for white and colored

students. Rhodes further expresses his amazement that “the same person who wrote the

eloquent dissent in Plessy could deliver such a decision in the Cumming case.”51

48 O’Brien, David M. p.1261. 49 “Cumming v. Bd. Education Richmond Co. (Ga.) (1899).” 50 “Significant Cases“ Digital Archive Brown v. Board of Education. 10 Jan 2006.

<http://www.lib.umich.edu/exhibits/brownarchive/cases.html#two>. 51 Rhodes, Henry A. “The Brown Decision. Fact or Myth in Connecticut?”

18

Education until the World War II

Segregation in public school education increased in the first half of the twentieth century.

According to Associate Professor of History at the University of New Hampshire, Harvard

Sitkoff, in an article in the journal of the Organization of American History, segregation

could have been due to racism of school administrators, as a consequence of residential

segregation, or a matter of law.52 Schools in rural areas remained even more behind and in

1911 there were still many areas without black schools. Julius Rosenwald established a

fund by which he began financing the establishment of new black schools in the South.

During the next twenty years more than 50,000 schools were built for more than $4 million

from the Julius Rosenwald fund, which resulted in more than one-fourth of black children

being educated in those schools.53

From 1913 to 1932, Southern states were building public schools for African Americans

with the help of the Julius Rosenwald fund, which was paying one third of the construction

costs, but alsoalong with small voluntarily help from blacks themselves. Still the amount of

money spent by Southern states on black education was only a small fraction of what was

being spent on education of white students. “The difference between expenditures per

capita on blacks and whites in the public schools was greater in 1910 than in 1900, in every

southern state.”54

During the first half of the twentieth century there were several cases dealing with the racial

segregation in public schools (Berea College v. Kentucky, Guinn and Beal v. United States,

Gong Lum v. Rice), but as O’Brien says, the Court under the chief Justice Edward Douglass

White (1910-1921) and chief Justice William Howard Taft (1921-1930) persistently

avoided the issue of segregated schools and thus it was not until 1938 that the court under

52 Sitkoff, Harvard. “Segregation, Desegregation, Resegregation: African American Education. A Guide to the

Literature.” OAH Magazine of History 15 (Winter 2001). 2 Feb 2006. <http://www.oah.org/pubs/magazine/deseg/sitkoff.html>.

53 Myrdal, Gunnar. An American Dilemma. New York, McGraw Hill, 1964. vol. 2, p.1266. 54 Sowell, Thomas. p. 204.

19

the Chief Justice Hughes made a decision in case Missouri ex rel. Gaines v. Canada,

suggesting that racially segregated schools were constitutionally suspect.55

The case Berea College v. Kentucky,56 which was decided by the Supreme Court in 1908,

dealt with a small private Berea College in Madison County, which for fifty years had been

coeducational and desegregated. In 1904 there was a Day Law passed in Kentucky, named

after Carl Day, a legislator from Breathitt County, who endeavored to outlaw the education

of white and African American students together. Part of this Day Law states that:

“It shall be unlawful for any white person to attend any school or institution where

negroes [sic] are received as pupils or receive instruction, and it shall be unlawful for

any negro or colored person to attend any school or institution where white persons

are received as pupils or receive instruction. Any person so offending shall be fined

$50 for each day he attends such institution or school.”57

This law was enacted and immediately questioned the practice of Berea College, where

white and African American students were educated in the same institution. This law was

aimed solely at the college, since it was the only integrated school in the state. The Court

was dealing with the question of whether a state legislature could force a private institution

to segregate.58 During the hearing at the state Supreme Court, attorneys for Kentucky, N.

B. Hayes, James Breathitt, Thomas B. McGregor, and Charles H. Morris, presented “racist

arguments” asserting that “if the progress, advancement and civilization of the twentieth

century is to go forward, then it must be left not only to the unadulterated blood of the

Anglo-Saxon-Caucasian race, but to the highest types and geniuses of that race.”59 The

Supreme Court ruled in favor of the state and Justice David Josiah Brewer delivered the

opinion of the Court, declaring that the state had the right to make such a prohibition

against the college. The Court’s ruling legally banned integrated education even in private

55 O’Brien, David M. p.1261. 56 Filed as Berea College v. Com. of Kentucky, 211 U.S. 45 (1908). 57 “Berea College v. Commonwealth of Kentucky.” Brown@50. Howard University School of Law. 15 Nov

2005. <http://www.brownat50.org/brownCases/PreBrownCases/BereavKty1908.html>. 58 “Jim Crow Supreme Court Cases: Kentucky.” The History of Jim Crow. 15 Nov 2005.

<http://www.jimcrowhistory.org/scripts/jimcrow/courtcases.cgi?state=Kentucky>. 59 “Jim Crow Supreme Court Cases: Kentucky.”

20

institutions by prohibiting any contact at all between the races on educational grounds.60

“It signaled approval for state and local legislatures to separate the races without heeding

the Court’s call for equal facilities as proclaimed in the Plessy case.”61 This practice

eventually changed in Kentucky in 1950, only shortly before the Brown decision, when

voluntary integration was made possible.62

The two Justices dissenting were Justice William R. Day and Justice John M. Harlan, who

proclaimed that: “I am of opinion that, in its essential parts, the statute is an arbitrary

invasion of the rights of liberty and property guaranteed by the 14th Amendment against

hostile state action, and is, therefore, void.” Harlan continued:

“The right to impart instruction, harmless in itself or beneficial to those who receive

it, is a substantial right of property - especially where the services are rendered for

compensation. But even if such right be not strictly a property right, it is, beyond

question, part of one's liberty as guaranteed against hostile state action by the

Constitution of the United States. …If pupils, of whatever race - certainly, if they be

citizens - choose, with the consent of their parents, or voluntarily, to sit together in a

private institution of learning while receiving instruction which is not in its nature

harmful or dangerous to the public, no government, whether Federal or state, can

legally forbid their coming together, or being together temporarily, for such an

innocent purpose.”63

Although Justice Harlan dissented, he did not condemn the separate schools. He finished

his dissent by concluding that:

“What I have said has no reference to regulations prescribed for public schools,

established at the pleasure of the state and maintained at the public expense. No such

question is here presented and it need not be now discussed. My observations have

reference to the case before the court, and only to the provision of the statute making

it a crime for any person to impart harmless instruction to white and colored pupils

60 “Berea College v. Kentucky.” Wikipedia: The Free Encyclopedia. 20 Jan 2006.

<http://en.wikipedia.org/wiki/Berea_College_v._Kentucky>. 61 “Jim Crow Supreme Court Cases: Kentucky.” 62 “Berea College v. Kentucky.” 63 “Berea College v. Commonwealth of Kentucky.”

21

together, at the same time, in the same private institution of learning. That provision

is, in my opinion, made an essential element in the policy of the statute, and, if regard

be had to the object and purpose of this legislation, it cannot be treated as separable

nor intended to be separated from the provisions relating to corporations. … In my

opinion the judgment should be reversed upon the grounds that the statute is in

violation of the Constitution of the United States.”64

One year after the decision, in 1909 in New York, the National Association for the

Advancement of Colored People (NAACP) was founded, when members of Niagara

Movement, a group dedicated to full political and civil rights for African Americans, was

joined by white journalist William E. Walling, social worker Mary White Ovington, and

Jewish social worker Henry Moskowitz. Initially, they called themselves the National

Negro Committee, but in May 1910 the name changed into NAACP. Other co-founders of

the NAACP included Ida Wells-Barnett, W.E.B. Du Bois and Oswald Garrison Villiard.

Being the oldest civil rights organization in the United States, the NAACP was trying to

improve the conditions under which African Americans lived at that time, and thus in the

first years the organization tried to focus on ending the practice of lynching.65 The

organization also became involved in legal battles against racial discrimination concerning

accommodations, employment, transportation and voting rights.

Furthermore, the case Guinn and Beal v. United States66 is worth mentioning because it

belongs among the NAACP’s first legal successes. Although this case did not deal with the

issue of segregated schools, it portrayed the position of African Americans, particularly in

Oklahoma. Prior to this case; in Oklahoma and several other states, there was a law that

predicated the right to vote on the basis of heritage. This law was based upon a grandfather

clause and was particularly aimed at black citizens whose grandfathers could not have

voted prior to the Civil War. The Supreme Court in a unanimous decision outlawed the

grandfather clause that violated voting rights defined in the Fifteenth Amendment as a right

that “shall not be denied or abridged by the United States or by any state on account of

64 “Berea College v. Commonwealth of Kentucky.” 65 “National Association for the Advancement of Colored People.” King Encyclopedia. Stanford University.

15 Nov 2005. <http://www.stanford.edu/group/King/about_king/encyclopedia/naacp.htm>. 66 Filed as Guinn and Beal v. United States, 238 U.S. 347 (1915).

22

race, color, or previous condition of servitude.”67 In fact, since the grandfather clauses in

the other states lapsed by 1910, the decision did not significantly impact the cause of

educational opportunity for African Americans.68

In the case Gong Lum v. Rice,69 a student, Martha Lum, of Chinese-American origin,

enrolled in local Rosedale Elementary School, but she was expelled due to the fact she was

not white. Gong Lum, Martha’s father, filed a lawsuit challenging her exclusion from the

school because of her ethnic origin. Lum's attorney, James N. Flowers argued that Martha

Lum was not “colored,” which at that time was a label for African Americans. The

Supreme Court of Mississippi denied the plaintiff's pleas and ruled that Martha Lum could

not be classified as “white” and therefore had to attend a “colored” school.70 The case

eventually reached the U.S. Supreme Court where the Chief Justice, former President

William Howard Taft, affirmed the decisions of lower courts, stating that “the Legislature

is not compelled to provide separate schools for each of the colored races, and unless and

until it does provide such schools, and provide for segregation of the other races, such races

are entitled to have the benefit of the colored public schools.”71 Thus Martha Lum could

only attend a “colored” private or public school.72

67 “Amendment XV.” U.S. Constitution. Legal Information Institute. 16 Feb 2006.

<http://www.law.cornell.edu/constitution/constitution.amendmentxv.html>. 68 “Guinn and Beal v. United States.” The History of the Supreme Court.16 Feb 2006.

<http://www.historyofsupremecourt.org/scripts/supremecourt/glossary.cgi?term=g&letter=yes>. 69 Filed as Gong Lum v. Rice, 275 U.S. 78 (1927). 70 “Gong Lum v. Rice”. Teachers’ Domain, Multimedia Resources for the Classroom and Professional

Development. 25 Jan 2006. < http://www.teachersdomain.org/9-12/soc/ush/civil/gonglum/>. 71 “Gong Lum v. Rice”. The History of the Supreme Court. 16 Feb 2006.

<http://www.historyofsupremecourt.org/scripts/supremecourt/glossary.cgi?term=g&letter=yes>. 72 “Gong Lum v. Rice.” Teachers’ Domain.

23

Chapter 2

From Plessy to Brown

The period between the world wars brought to America changes which also influenced the

African American population. There was the African American migration to urban areas in

the South and in the North, which was later called the Great Migration since one and a half

million Southern African Americans migrated, mainly to the North due to better race

relations in the North or due to the increasing number of job opportunities. During this time

the United States experienced a period of unusual prosperity, Prohibition, and the

development of the defense industry, along with great poverty during the Great Depression,

immigration and the New Deal.

In 1929 the Great Depression struck the United States, and Professor of American Studies

at the University of East Anglia, Adam Fairclough, contends that it affected African

Americans even more severely than whites.1 Their situation throughout the country

worsened. In the Northern cities there was massive unemployment and in the rural areas in

the South sharecroppers had to face existential problems since cotton prices plunged from

eighteen to six cents a pound. Even though there was a pause in northern migration, still

hundreds of thousands of African Americans left the South seeking better conditions in the

North. Nevertheless, it was quite common that even lowly jobs considered to be black were

desperately sought by unemployed whites.2

During the 1930’s segregation in public education at every level increased and in 1930 the

average African American child received six years of schooling while white children

averaged ten years of schooling. Differences existed even in terms of staff qualification;

African American teachers often had less training and had to teach larger classes.3

Segregation extended beyond the South, and the majority of white people favored neither

desegregation nor equal opportunities for African Americans. The situation of African

1 “The Struggle for Equality: Civil Rights in America from Reconstruction to the Depression.” British

Broadcasting Corporation. 1 April 2003. 15 Feb 2006. <http://www.bbc.co.uk/history/society_culture/protest_reform/civil_rights_reconstruction_06.shtml>.

2 Wormser, Richard. “The Great Depression.” The Rise and Fall of Jim Crow. Public Broadcasting Service. 30 Nov 2005. <http://www.pbs.org/wnet/jimcrow/stories_events_depression.html>.

3 Sowell, Thomas. Ethnic America. A History. New York, Basic Books, Inc., Publishers 1981. p.214.

24

Americans slightly changed during the World War II when many of them joined the

American troops, serving in segregated units at the beginning of the war.4 In 1941,

President Roosevelt issued Executive Order 8802, which prohibited racial discrimination in

the national defense industry, the first federal law that supported equal opportunity and

prohibited employment discrimination in the United States. This was a minor victory on the

path towards desegregation, but not unimportant.5

By the 1930’s the NAACP started to focus on complete integration of American society. In

NAACP cases between 1930 and 1950, the organization tried to force the enrollment of

African Americans into universities where they anticipated that the establishment of

separate but equal facilities would be overly expensive for the states. “The main goal of

NAACP was to attack the ‘equal’ standard so that the ‘separate’ standard would in turn

become susceptible.”6

The NAACP Legal Defense and Education Fund, the nation’s first legal organization

fighting for equal rights, was established in 1939. This institution was the independent legal

arm that fought the battle against segregation within education, as well as other forms of

discrimination.7 By 1950 the NAACP decided to challenge the separate but equal doctrine

even at the elementary school level.

The situation in the education of African Americans was slowly improving. The number of

African Americans in the age group from five to nineteen enrolled in schools increased

from 60 percent in 1930 to 68.4 percent in 1940 and to 74.8 percent in 1950. The number

still dropped below the number of white students which was 79.3 percent, but the

differences were slowly decreasing. The situation was changing even within colleges where

the number rose from about 27,000 African Americans in 1930 to more than 113,000

4 Sitkoff, Harvard. The Struggle for Black Equality (1954-1980).New York, Hill and Wang, 1981. p 11. 5 “Executive Order 8802.” Wikipedia: The FreeEncyclopedia. 20 Jan 2006.

<http://en.wikipedia.org/wiki/Executive_Order_8802>. 6 “Documents related to Brown v. Board of Education.” The National Archives. 2 Feb 2006.

<http://www.archives.gov/education/lessons/brown-v-board/>. 7 “National Association for Advancement of Colored People.” King Encyclopedia. Stanford University. 10

Jan 2006. <http://www.stanford.edu/group/King/about_king/encyclopedia/naacp.htm>.

25

students in 1950.8

The overall picture of the United States concerning segregation is illustrated in the table

published in “Race and Culture in America: Readings in Racial and Ethnic Relations” by

Carl E. Jackson and Emory J. Tolbert, which claimed that even though the segregation was

always more connected with the southern United States, the issue of segregation extended

even to some of the western states. Segregation was required in the states of Alabama,

Arkansas, Delaware, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, North

Carolina, Oklahoma, South Carolina, Tennessee, Texas, Virginia, West Virginia, as well as

in the District of Columbia. In Arizona, Wyoming, Kansas, and New Mexico, segregation

was permitted in varying degrees. The states as California, Maine, Montana Nebraska,

Nevada New Hampshire, North Dakota, Oregon, South Dakota, Utah and Vermont had no

legislation concerning segregation. States prohibiting segregation included Colorado,

Connecticut, Idaho, Illinois, Indiana, Iowa, Massachusetts, Michigan, New Jersey, New

York, Ohio, Pennsylvania, Rhode Island, Washington and Wisconsin.9

Missouri ex rel. Gaines v. Canada

Due to his race, Lloyd Gaines, an African American citizen from Missouri was not allowed

to enroll in the only tax-supported law school in Missouri, the State University of Missouri

Law School. Gaines had received his Bachelors degree of Arts at Lincoln University, an

institution of higher learning for African Americans within the State of Missouri. However,

that University did not have a Law School, so Gaines filed an application for the all-white

Law School of Missouri. When his application was turned down, he decided to take legal

action.10 At the state court, however, Gaines lost, as the judges decided six to two that the

University did not have to enroll Gaines to its all-white law school. The ruling confirmed

8 Sitkoff, Harvard. pp. 18-19. 9 Taylor, Quintard. “The History of African Americans in the West.” University of Washington. Department

of History. 1 Jan 2004. 2 Feb 2006. <http://faculty.washington.edu/qtaylor/Courses/313_AAW/313_manual_cp_09.htm>.

10 The lawsuit was filed as Missouri ex rel Gaines v. Canada, 305 U.S. 337, (1938).

26

Plessy.11 However, the court decision held that due to the fact that Missouri did not have a

separate and equal law school for African Americans, the University did have to provide

funding for Gaines to attend an African American law school outside of Missouri, or build

a facility equal to those for whites. 12 Gaines appealed the ruling.

The NAACP financially supported the case and two lawyers for the NAACP, Charles H.

Houston and S. R. Redmond, argued the case before the Supreme Court in 1938, which

struck down the decision of the lower court by seven-to-two vote.13 The Court, under the

leadership of Justice Charles Evans Hughes, ruled that Missouri would not satisfy its part

for not providing the law school for African Americans by sending them to an out-of-state

law school and paying their tuition.14 Chief Justice Hughes accented that:

“The basic consideration is not as to what sort of opportunities other States provide,

or whether they are as good as those in Missouri, but as to what opportunities

Missouri itself furnishes to white students and denies to negroes solely upon the

ground of color.”15

Justice Hughes also pointed out that the problem resides in the fact that the Missouri laws

created a privilege for white students, denying the same privilege to African Americans on

the basis of race. He further concluded that:

“The white resident is afforded legal education within the State; the negro [sic] resident

having the same qualifications is refused it there and must go outside the State to obtain

it. That is a denial of the equality of legal right to the enjoyment of the privilege which

the State has set up, and the provision for the payment of tuition fees in another State

does not remove the discrimination.”16

11 “The Supreme Court.” The Rise and Fall of Jim Crow.30 Nov 2005.

<http://www.pbs.org/wnet/jimcrow/struggle_court2.html>. 12 “Jim Crow Supreme Court Cases: Segregation.” The History of Jim Crow.15 Nov 2005.

<http://www.jimcrowhistory.org/scripts/jimcrow/courtcases.cgi?casetype=Segregation>. 13 O’Brien, David M. Constitutional Law and Politics. Civil Rights and Civil Liberties, vol II. New York: W

W Norton & Company, 1997. p. 1261. 14 O’Brien, David M. p.1261. 15 “Missouri ex rel. Gaines v. Canada.” Legal Information Institute. Cornell University Law School. 15 Nov

2005. <http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0305_0337_ZS.html>. 16 “State of Missouri ex rel. Gaines v. Canada” The University of Arizona. 20 Dec 2005.

<http://www.law.arizona.edu/brownat50/Cases/casehistory4.htm>.

27

The two Justices dissenting were Justice McReynolds and Butler. Justice McReynolds

stated that:

“Under the opinion just announced, I presume [Missouri] may abandon her law school,

and thereby disadvantage her white citizens without improving petitioner's

opportunities for legal instruction; or she may break down the settled practice

concerning separate schools and thereby, as indicated by experience, damnify both

races.”17

McReynolds assumed that by offering to provide the tuition for students to enable their

studying at nearby school, even if in another state, the state of Missouri did not ignore their

rights and therefore satisfied “any reasonable demand for specialized training.”18 He

concluded that:

“The problem presented obviously is a difficult and highly practical one. A fair effort

to solve it has been made by offering adequate opportunity for study when sought in

good faith. The State should not be unduly hampered through theorization inadequately

restrained by experience.”19

The Court ruled that Missouri had to provide equal access to higher education within the

state for all its citizens, white or African Americans. Missouri and some other states created

a segregated law school for African Americans, sometimes rather inadequate, within

already existing black state colleges. The result in Missouri was the establishment of a

separate all-black law school within Lincoln University. Other states “increased their

appropriations for tuition in other states, hoping that no black would go to court but would

accept the state’s offer.”20 Since the retention of segregation was an expensive and

complicated option to integration, Gaines was the first in a series of cases by which the

17 “McReynolds, J. Separate Opinion.” Legal Information Institute. Cornell University Law School. 15 Nov

2005. <http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0305_0337_ZX.html>. 18 “McReynolds, J. Separate Opinion.” 19 “McReynolds, J. Separate Opinion.” 20 Shannon, David A. Between the Wars: America 1919-1941. Boston: Houghton Mifflin Company, 1979. p.

231.

28

NAACP Legal Defense Fund “chipped away” at the “separate but equal” doctrine.21

O’Brien describes the strategy of the NAACP as twofold. The organization wanted to

ensure that the educational facilities provided by states were equal, but on the other hand

also tried to convince the Court that the “separate but equal” educational facilities were in

reality inherently unequal.22 Hoping “to make segregation so prohibitively expensive that

the South would dismantle its biracial system because of the financial burden, the NAACP

launched a series of suits seeking complete equality in facilities governed by the separate-

but-equal rule.”23

The person in charge of the litigation strategy of the NAACP that challenged the racial

discrimination in education, housing, or transportation, was Thurgood Marshal, an attorney

for the NAACP and the director of the NAACP Legal Defense and Education Fund.24 He

is considered to have been one of the best ever advocates for civil rights. He was born on

July 2, 1908, in Baltimore, Maryland. He attended public school in Baltimore and in 1930

sought admission to the University of Maryland Law School, but was refused, so he

enrolled in the Howard University Law School. In 1933 he received his law degree from

Howard University and began to practice law in Baltimore. He started working at the local

chapter of NAACP and in 1935 he partnered with Charles Hamilton Houston on Marshall’s

first major civil rights case Murray v. Pearson, which sued the University of Maryland to

admit young African American graduate Donald Gaines Murray; they won the case. While

working as NAACP, Thurgood Marshall won thirty-two of thirty-five cases on civil rights

argued before the Supreme Court.25

Ten years after the decision of Gaines, the first step towards desegregation was made when

the NAACP won the case Sipuel v. Board of Regents of University of Oklahoma.26 The

petitioner, African American Ada Sipuel, was refused enrollment in the University of

21 “Supreme Court and Civil Rights” The Civil Rights Coalition for the 21st Century. 25 Nov 2005. <http://www.civilrights.org/research_center/civilrights101/supremecourt.html>.

22 O’Brien, David M. p. 1261. 23 Sitkoff, Harvard. p. 19. 24 “Brown v. Board of Education.” Landmark Supreme Court Cases. 10 Oct 2005.

<http://www.landmarkcases.org/brown/marshall.html>. 25 “Thurgood Marshall, Supreme Court Justice.” Center for History and New Media. 20 Jan 2005.

<http://chnm.gmu.edu/courses/122/hill/marshall.htm>. 26 Filed as Sipuel v. Board of Regents of University of Oklahoma 332 U.S. 631 (1948).

29

Oklahoma Law School in 1946. She sought help from the NAACP and sued the school.

The main argument of Marshall was the denial to the equal opportunities by separating the

African American students from white students. The Law School admitted Sipuel and she

later became one of the first African American women to be a member of board of regents

of Oklahoma.27 The aftermath of Sipuel was quite clear. The case reaffirmed the principles

of Gaines.

In the late forties early fifties there were two graduate-school integration cases, Sweatt and

McLaurin, that reached the Supreme Court. Including higher education only, those cases

affected a relatively small number of African Americans; nevertheless, the reaction in the

South involved a big wave of political controversy and opposition.28

Sweat v. Painter

In 1946 Heman Marion Sweat tried to enroll in the state-supported University of Texas

Law School. However, his admission was denied because the University of Texas was a

segregated institution and Sweat was African American. Sweat refused to attend the state’s

separate law school for African Americans, so he took legal action.29 With the NAACP

counsels W. J. Durham and Thurgood Marshall, they sued Theophilis Shickel Painter and

the members of the board of regents of Texas University. In state court, they were not

successful, so they decided to appeal to the Supreme Court.30

They tried to persuade the Court that the law school for African Americans was inferior and

therefore unequal in terms of facilities, reputation and prestige. Attorneys contrasted the

two schools. At the white law school there were sixteen professors working full time, three

working part time, and a library containing 65,000 volumes; by contrast, the separate

African American law school had only five full time professors and a library of a mere

27 “The Power of Precedent” Separate is Not Equal – Brown v. Board of Education. Smithsonian National

Museum of American History. 20 Jan 2006. <http://americanhistory.si.edu/brown/history/3-organized/power-of-precedent.html>.

28 O’Brien, David M. p. 1262. 29 The lawsuit was filed as Sweat v. Painter, 339 U.S. 629 (1950). 30 “Jim Crow Supreme Court Cases: Segregation.”

30

16,500 volumes.31

In June 1950 The Chief Justice Vinson delivered the opinion of the Court in which he

reversed the ruling of the state court. He claimed that:

“In accordance with these cases, petitioner may claim his full constitutional right:

legal education equivalent to that offered by the State to students of other races. Such

education is not available to him in a separate law school as offered by the State. We

cannot, therefore, agree with respondents that the doctrine of Plessy v. Ferguson,

1896, requires affirmance of the judgment below. Nor need we reach petitioner's

contention that Plessy v. Ferguson should be reexamined in the light of contemporary

knowledge respecting the purposes of the Fourteenth Amendment and the effects of

racial segregation.”32

He further continued stating that:

“The law school to which Texas is willing to admit petitioner excludes from its

student body members of the racial groups which number 85% of the population of

the State and include most of the lawyers, witnesses, jurors, judges and other officials

with whom petitioner will inevitably be dealing when he becomes a member of the

Texas Bar. With such a substantial and significant segment of society excluded, we

cannot conclude that the education offered petitioner is substantially equal to that

which he would receive if admitted to the University of Texas Law School.”33

McLaurin v. Oklahoma State Regents

George W. McLaurin, African American citizen of Oklahoma, who tried to enrolled in the

all white university at Norman, Oklahoma. However, his admission was denied solely on

31 “Sweat v Painter 339 U.S. 629 (1950).” University of Denver, Sturm College of Law. 10 Jan 2006.

<http://www.law.du.edu/russell/lh/sweatt/docs/sweatt_ussc.html>. 32 “Sweat v. Painter.” Brown@50. Howard University School of Law. 15 Dec 2005.

<http://www.brownat50.org/brownCases/PreBrownCases/SweattPainter(Texas).htm>. 33 “Sweat v Painter 339 U.S. 629 (1950).”

31

basis of his race. He filed a lawsuit34 in state court and he won his litigation; the court

ordered that McLaurin be admitted to the university.35 The District Court ruled that “the

State had a constitutional duty to provide him with the education he sought as soon as it

provided that education for applicants of any other group.” However, the court refused to

“grant the injunction, retaining jurisdiction of the cause with full power to issue any

necessary and proper orders to secure McLaurin the equal protection of the laws.”36 The

result was that the state legislature mandated that as the only African American at the

University, he should be treated as an African American on a segregated basis. In the

classroom, he was forced to sit separately from white students, as well as in the library

where he was assigned a special table, and in the cafeteria where he ate at a different time

from whites, so he would not mix with the white students.37

McLaurin decided to take his case to court once again. He was convinced that the action of

the state legislature and university authorities denied him the equal protection of the law.

The case was filed before the U.S. Supreme Court and was decided in June 1950 together

with the case Sweat v Painter. Chief Justice Fred M. Vinson delivered the opinion of the

Court which decided nine to zero in favor of McLaurin.38 Justice Vinson stated that:

“It may be argued that appellant will be in no better position when these restrictions are

removed, for he may still be set apart by his fellow students. This we think irrelevant.

There is a vast difference -- a Constitutional difference -- between restrictions imposed

by the state which prohibit the intellectual commingling of students, and the refusal of

individuals to commingle where the state presents no such bar.… The removal of the

state restrictions will not necessarily abate individual and group predilections,

prejudices and choices. But at the very least, the state will not be depriving appellant of

the opportunity to secure acceptance by his fellow students on his own merits.”39

He further concluded that “the conditions under which this appellant is required to receive

34 The lawsuit was filed as McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950). 35 “McLaurin v. Oklahoma State Regents for Higher Education.” Oracle ThinkQuest, Education Foundation.

10 Jan 2006. <http://library.thinkquest.org/10718/mclaurin.htm>. 36 “McLaurin v. Oklahoma State Regents for Higher Education.” The University of Arizona. 20 Dec 2005.

<http://www.law.arizona.edu/brownat50/Cases/casehistory6.htm>. 37 O’Brien, David M. p.1262. 38 “McLaurin v. Oklahoma State Regents for Higher Education.” 39 “McLaurin v. Oklahoma State Regents for Higher Education.”

32

his education deprive him of his personal and present right to the equal protection of the

laws” and that “under these circumstances the Fourteenth Amendment precludes

differences in treatment by the state based upon race. Appellant, having been admitted to a

state-supported graduate school, must receive the same treatment at the hands of the state as

students of other races.”40

The situation in the early fifties was tense, and the NAACP knew that striking down the

practice of segregated primary and elementary schools would not be an easy task.

Overturning of an educational system in place for close to hundred years would invite

widespread opposition since it would affect millions of students.41 Still, many African

Americans saw the success of the NAACP cases against the graduate level of schooling as

a turning point. The NAACP was encouraged by support it received from many people.

However, Thurgood Marshall stated that it was time to “attack the principle of segregation

head on.”42 He proclaimed that “the complete destruction of all enforced segregation is

now in sight…We are going to insist on non-segregation in American public education

from top to bottom – from law school to kindergarten.”43

40 “McLaurin v. Oklahoma State Regents for Higher Education.” Legal Information Institute.

CornellUniversity Law School. 15 Nov 2005. <http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0339_0637_ZO.html>.

41 O’Brien, David M. p. 1262. 42 “A Turning Point in 1950” Separate Is Not Equal – Brown v. Board of Education. Smithsonian National

Museum of American History. 15 Nov 2005. <http://americanhistory.si.edu/brown/history/3-organized/turning-point.html>.

43 “A Turning Point in 1950.”

33

Chapter 3

Brown v. Board of Education of Topeka

The 1950's were turbulent times in the United States of America. In 1950 there were 17

states that segregated African Americans by Law1 and the population of African Americans

in the United States was 10 percent, or 15,042,286 persons.2 The equality of man, as

promised in the Declaration of Independence, was far from reality. African Americans, as

well as other minorities, were discriminated against. Voting rights were limited; separate

registration offices were often established in different parts of the courthouse. African

Americans resisting segregation were often evicted from their homes for registering to vote.

Rural blacks lived under constant fear of their employers.3 The year 1954 was an important

turning point for American education. Until then the official policy of “separate but equal”

educational opportunities for blacks was considered the acceptable method of assuring that

all children in America obtained an equal education. Nevertheless, most black schools were

far inferior to their white counterparts. The situation began to change when racial

segregation was ruled unconstitutional by the U.S. Supreme Court. Integration began across

the nation and affected social life as well. However, the decision was followed by massive

resistance and some state governments defied the Court, instead of desegregating as

ordered by the U.S. Supreme Court.

The NAACP made an effort to bring several cases claiming segregation, aiming to show

that the separate facilities were not at all equal, but rather inferior. Brown v. Board of

Education of Topeka, Kansas is considered to be one of the most significant decisions of

the twentieth century and arguably ranks among the Supreme Court’s most important cases.

It is considered the milestone case that has influenced the educational system of United

States of America. As much as this case was connected with education, it not only affected

education itself. It had far reaching social consequences, since it struck down the policy

1 School, The Story of American Public Education - Episode 2, As American As Public School, 1900-1950.

Stone Latern Films, 2001. 52 min. 2 “United States - Race and Hispanic Origin”. 20 Jan 2006.

<http://www.census.gov/population/documentation/twps0056/tab01.xls>. 3 “History of the United States (1945–1964).” Wikipedia: The Free Encyclopedia. 15 Jan 2006.

<http://en.wikipedia.org/wiki/History_of_the_United_States_%281945-1964%29>.

34

based on “human tendencies to prejudge, discriminate against, and stereotype other people

by their ethnic, religious, physical, or cultural characteristics.”4 The case itself influenced

the change of race relations within the United States of America and contributed to Civil

Rights Movement. The 1950’s and 1960’s brought waves of protests and agitation to

achieve immediate desegregation of schools and public facilities.

The case Brown v. Board of Education of Topeka, Kansas5, which finally launched the

desegregation of American public schools, is actually comprised of two decisions. The

decision of 1954 that is often referred to as Brown I. reversed the “separate but equal”

doctrine represented by the case Plessy v. Ferguson and officially ended segregation,

considering it unconstitutional. This decision was issued on May 17, 1954 and was

accompanied by four other cases on segregated schools in Delaware (Gebhart v. Belton),6

South Carolina (Briggs v. Elliot),7 Virginia (Davis v. County School Board)8 and

Washington, D.C. (Bolling v. Sharpe)9. In 1955 the Supreme Court issued the second

decision on Brown, often referred to as Brown II, which indicated the actual

implementation of the decision and ordered the school desegregation “with all

deliberate speed.”

While the battle raged over schools, desegregation tendencies became more visible within

society. It seemed that the decisions gave blacks the courage to make a stand against the

white supremacy and the activism of blacks fighting for equal rights increased. On

December 1, 1955 Rosa Parks refused to give up her seat on a bus in Montgomery,

Alabama. At that time blacks were forced to enter buses through the front door, pay the fare

and then walk out of the bus to the back door to find their seats in the rear of the bus. The

first ten seats were reserved for whites, even if they were not filled. Nevertheless, when the

white section was full, blacks were forced to give up their seats to whites. The African

American community responded to Rosa Parks' arrest with a bus boycott, which lasted for

4 Wineski, Martin. “Brown v. Board of Education: About The Case.” Washburn University School of Law.

.10 Nov 2005. <http://brownvboard.org/summary/>. 5 Filed as Brown v. Board of Education of Topeka 347 U.S. 483, 74 S.Ct. 686 (1954). 6 Filed as Gebhart et al. v. Belton et al.; Gebhart et al. v. Bulah et al. 33 Del. Ch. 144, 91 A.2d 137 (1952). 7 Filed as Briggs v. Elliott, 342 U.S. 350 (1952). 8 Filed as Davis et al. v. County School Board of Prince Edward County, Va., et al. Civ. A. No. 1333, 103 F.

Supp. 337 (1952). 9 Filed as 347 U.S. 497, 74 S.Ct.693 (1954).

35

more than a year, until the buses of Montgomery were desegregated.10 One of the driving

forces for racial equality was Reverend Martin Luther King, Jr., the chairman of

Montgomery Improvement Association (MIA)11 and later the president of the Southern

Christian Leadership Conference (SCLC)12 that happened to be an essential group in

organizing the civil rights movement.13 In 1957, the Civil Rights Act, primarily a voting

bill, was passed, to ensure that all blacks could exercise their right to vote.

Cases under Brown

The long struggle for equality within education began long before the year of 1952 when

the Supreme Court decided to hold hearings of the cases on desegregation from across the

country. With the help of African American parents throughout the country, the NAACP

initiated several cases in five different states of United States of America to avoid the

argument that the North was trying to administer justice aimed only at the southern

lifestyle.14 In December 1952, the cases reached the Supreme Court as a single lawsuit,

under the name of Oliver Brown’s case from Kansas, because despite the differences, each

case sought the same legal remedy. In each of the five cases, African American parents

worked with the local attorneys of the NAACP who encouraged them to enroll their

children to neighborhood schools. However, as the NAACP lawyers expected, the

10 “Montgomery Bus Boycott.” King Encyclopedia: Southern Christian Leadership Conference. Stanford

University. 15 Jan 2006. <http://www.stanford.edu/group/King/about_king/encyclopedia/bus_boycott.html>.

11 Group formed by African American leaders in Montgomery, Alabama, to organize and sponsor the Montgomery Bus Boycott. MIA attempted to negotiate modest changes in the segregated seating policies of public buses. “Montgomery Improvement Association.” Africanaonline, Black History. 20 Jan 2006. <http://www.africanaonline.com/orga_monygomery_improvement_association.htm>.

12 The organization was established in 1957 to coordinate the action of local protest groups through nonviolent resistance throughout the South. The organization used the power and independence of black churches as the strength of its activities. SCLC coordinated the activities of local organizations like the MIA. King Encyclopedia: Southern Christian Leadership Conference. Stanford University. 15 Jan 2006. <http://www.stanford.edu/group/King/about_king/encyclopedia/enc_SCLC.htm>.

13 Haney, Elissa. “Turbulent Times.” 15 Jan 2006. <http://library.thinkquest.org/C004391F/new_page_10.htm>.

14 “The Search for Equality. Brown v. Board of Education.” The Evergreen State College. 15 Jan 2006. <http://www.evergreen.edu/events/brownvboard/about-brown.html>.

36

admission was denied, so parents next sued the local boards of education. The attorneys

defending segregation and those opposing it both believed that the law favored their

arguments. Opponents’ victory would mean that the Supreme Court “officially endorsed the

ideal of equal opportunity, regardless of race.” On the other hand, the defeat would mean

that the Supreme Court “continued to sanction a system of legal segregation based on the

notion of racial inferiority.”15

Belton v. Gebhart, Belton v. Bulah

These two cases were entered as lawsuits in Delaware’s Chancery Court where they were

eventually compounded with other cases as the Brown v. Board of Education cases.

However, this one was different from previous cases because it was the only one where the

decision of a trial court was upheld by the decision of the Supreme Court. In other words,

the segregation within Belton v. Gebhart case was stated as unlawful by both courts whilst

in the earlier suits it had been found unlawful by the Supreme Court only.

The case Belton v. Gebhart was brought by African American Ethel Belton and other black

parents whose children, among them Ethel Louise Belton, were denied entry to the local

high school and therefore were forced to ride a bus to Howard High School in Wilmington.

Belton said: “We are all Americans, and when the state sets up separate schools for certain

people of a separate color, then I and others are made to feel ashamed and embarrassed.”16

Situated in an industrial area, not having satisfactory curriculum and lacking teacher

qualification, Howard High School was certainly not comparable to the white school in the

Claymont area.

Bulah v. Gebhart was linked with the pleading of Sarah Bulah from Hockessin, whose

daughter, Shirley Barbara Bulah, was denied admission to an elementary school maintained

for white pupils. Instead, she had to walk to a one-room school house and was not provided

15 “Delaware: Conflict in a Border State.” Separate is not equal, Brown v. Board of Education. Smithsonian

National Museum of American History. 15 Dec 2005. <http://americanhistory.si.edu/brown/history/4-five/delaware-2.html>.

16 “Delaware: Conflict in a Border State.”

37

transportation to the school, while white children were provided school transportation and a

better facility as well. Louis Redding,17 a local NAACP attorney, and his colleague Jack

Greenberg18 represented the African American plaintiff.19

Throughout the trial, the plaintiffs presented evidence demonstrating the inferior conditions

of Wilmington and Hockessin, some of them proving that the educational facilities were

inadequate and curricula in segregated schools were harmful to the mental health of African

American children. The court ruled in favor of the plaintiffs and ordered that children be

immediately allowed to enter Delaware schools for white students. The defendants

appealed the decision. However, the state Supreme Court held that “school facilities

provided for blacks were substantially unequal to those provided for white students, and

that plaintiffs' personal and present rights to equal protection of the law entitled them to

immediate relief from what the court held as unlawful discrimination.”20 The state school

board appealed to the U.S. Supreme court, which also ruled in favor of the black parents.

Although the decision meant victory for the plaintiffs, it did not apply broadly throughout

Delaware.21

Briggs v. Elliot

In November 1949 the parents of African American children living in Clarendon, South

Carolina, wrote a petition in which they argued that the schools for African American were

17 Louis Redding was a graduate of Howard High School in Wilmington, Delaware, and an alumnus of Brown

University and Harvard Law School. He was Delaware's first black lawyer. Redding supported efforts for civil rights during his distinguished career, and he was instrumental in the desegregation of the University of Delaware in 1949. He also argued a case on behalf of black school children in Delaware that was one of the cases leading to the Supreme Court's decision in 1954 to desegregate U.S. public schools. “Louis L. Redding honored with endowed professorship”. UD Mesenger. Volume 8, Number 2, 1999. 22 Jan 2006. <http://www.udel.edu/PR/Messenger/99/2/louis.html>.

18 Jack Greenberg was the Assistant Counsel for the NAACP Legal Defense and Educational Fund, one of the attorneys in Brown v. Board of Education. In 1961he became the Director Counsel succeeding Thurgood Marshall. “Jack Greenberg.” Brown@50, Howard University School of Law. 25 Oct 2005. <http://www.brownat50.org/brownBios/BioJackGreenberg.html>.

19 “Jim Crow Supreme Court Cases: Delaware.” The History of Jim Crow. 15 Nov 2005. <http://www.jimcrowhistory.org/scripts/jimcrow/courtcases.cgi?state=Delaware>.

20 “Jim Crow Supreme Court Cases: Delaware.” 21 Wineski Martin.

38

inferior, inadequate and unhealthy for their children. There were great differences among

those facilities. The white schools had desks, but the black schools had no desks at all. The

County was spending $395,000 for 2,375 white pupils, $282,000 for 6,531 black pupils.22

This petition led eventually to the case Briggs v. Elliot in which Harry Briggs, one of

twenty African Americans parents, supported by a High School Principal Reverend Joseph

Albert DeLaine, filed a suit in 1950 against R. W. Elliot, the president of the school board

for Clarendon County. Reverend DeLaine was very important person in terms of recruiting

the parent plaintiffs and enlisting the help of NAACP.

The case was heard in May of 1951 by a three judge federal panel: Judge Waties Waring,23

segregationist George Bell Timmerman and liberal John J. Parker.24 Thurgood Marshal and

Harold Boulware argued the case, and for the first time the NAACP would provide

psychological evidence documenting the injury suffered by black children in segregated

schools. To prove this, they used the testimonial of Dr. Kenneth Clark, who used dolls of

different colors and asked sixteen black Claredon County students questions about how

they felt about their color. Ten students preferred white doll, eleven considered the black

one “bad” and nine of them thought of the white one as the “nice” one. Experts on social

science, however, would find this test inadequate due to the size of the group and

subjectivity. It was also pointed out that the children’s feeling of inferiority could have

been evoked by other factors.25 The court ruled 2 to 1 against Briggs and ordered the

defendants to immediately equalize the facilities, refusing the question of racial integration

of the schools. Judge Waring expressed his dissenting opinion that segregation was itself

inequality. “I am of the opinion that all of the legal guideposts, expert testimony, common

sense and reason point unerringly to the conclusion that the system of segregation in

22 “The Vinson Court (1946-1953).” History of the Court. The Supreme Court Historical Society. Jan 15

2006. <http://www.supremecourthistory.org/02_history/subs_history/02_c13.html>. 23 Waties Waring was a Federal District Court Judge, “who had proven to be sympathetic to the Negro cause

by several rulings he made earlier in his District Court. One in which he ordered South Carolina to provide a law school for a Negro plaintiff or admit him to the white law school or close the white law school until a black one was established.” “Briggs v. Elliot (1954).” University of South Carolina, Aiken. 16 Jan 2006 <http://www.usca.edu/aasc/briggsvelliot.htm>.

24 John J. Parker was Chief Judge of the Fourth Circuit of the Court of Appeals. 16 Jan 2006. <http://www.usca.edu/aasc/briggsvelliot.htm>.

25 Rhodes, Henry A. The Brown Decision. Fact or Myth in Connecticut? Course website. Yale-New Haven Teachers Institute. 15 Jan 2006. <http://www.yale.edu/ynhti/curriculum/units/1992/1/92.01.09.x.html>.

39

education adopted and practiced in the state of South Carolina must go and go now.

Segregation is per se inequality.”26

The NAACP and the plaintiffs appealed to the U.S. Supreme Court. In fact, Briggs was the

first desegregation case to reach the Court. The case was to be heard in October, but the

hearing was postponed because the case from Virginia was added to Brown and Briggs, and

later the other two cases from Delaware and District of Columbia joined as well. In 1952

the Supreme Court returned the case Briggs v. Elliot to the district court for rehearing to

evaluate the report on progress in equalizing the facilities. In March, the district court again

heard the case and found that progress had been made; however, once again the case was

appealed to the Supreme Court, and in June 1952 was compounded to Brown law-suit.27

As Robert E. Botsch claims, the case Briggs v. Elliot “led to significant school integration

in many places and certainly helped set off a great civil rights movement across the nation,

it had much less effect in Clarendon County, where, … , whites did refuse to send their

children to schools where a majority of the children were and still are black.”28

Davis v. County School Board

This was the only case to be initiated by student protest. Prince Edward was a county in the

southern part of Virginia with a population of 15,000 inhabitants. Slightly more than one-

half of its inhabitants were black.29 In 1951, Barbara Rose Johns, a high school student, was

among the one hundred and seventeen African American students who decided to strike

rather than attend Robert Russa Moton High School in Farmville, Virginia. Students were

protesting against the poor condition of the all-black school, where students did not have

desks, blackboards, gymnasium, or cafeteria; the classes were overcrowded; and there were

26 “Separate is not equal, Brown v. Board of Education.” 5 Jan 2006.

<http://americanhistory.si.edu/Brown/history/4-five/clarendon-county-4.html>. 27 Botsch, Robert E. “Briggs v. Elliot (1954).” The University of South Carolina-Aiken. 15 Jan 2006.

<http://www.usca.edu/aasc/briggsvelliot.htm>. 28 Botsch, Robert E. 29 “Davis et al. v. County School Board of Prince Edward County, Va., et al.” Brown@50, Howard University

School of Law. 15 Jan 2006. <http://www.brownat50.org/brownCases/LowerCourtDecisions/DasvisvPrEdEDctVa.html>.

40

not enough rooms, so students were sometimes even housed in a discarded school bus and

three buildings covered in tar paper. The students demanded a new building to replace the

old one. They were sure that these miserable conditions were depriving them of equal

educational opportunities. The strike lasted ten days. Barbara Rose Johns and her classmate

Carrie Stokes requested assistance from the legal counsel of the NAACP in Richmond and

Oliver Hill; the NAACP attorney agreed to meet with them. Hill promised to initiate an

action on their behalf, which satisfied the students who returned to school on May 7, 1951.

Oliver Hill and Spottswood Robinson from the local NAACP filed a lawsuit on behalf of

those one hundred and seventeen students from Moton High School. The plaintiffs called

for the end of segregated schools in Virginia. The NAACP lawyers were convinced that the

only way to help Mouton students was to sue for the end of segregation itself. After

gathering the support of their parents, the students agreed. On May 23, 1951 a law-suit was

filed at the federal district court in Richmond on behalf of Moton students and their parents.

The case was named after the first plaintiff that was listed in the law suit, Dorothy E. Davis,

a 14-year old ninth grader. A three-judge panel at the U.S. District Court unanimously

decided in favor of the school board, rejecting the students’ request due to the lack of

evidence of any negative effects on either race from the segregation. The case was appealed

to the Supreme Court of the United States and was compounded with the other school

segregation cases under the Brown law-suit. When the Supreme Court overturned the ruling

of the District Court and ordered desegregation, the Board of Supervisors for Prince

Edward County resisted the Supreme Court’s decision, launched a campaign of massive

resistance and decided to shut down the public schools from 1959 to 1964 rather than

desegregate the schools.30

Bolling v. Sharpe

This case struck down segregated schools in the District of Columbia. It involved the black

students of junior high school who were denied entrance to an all-white school based solely

30 “Frontiers in Civil Rights: Dorothy E. Davis, et al. versus County School Board of Prince Edward County,

Virginia.” 2 Feb 2006. < http://www.archives.gov/education/lessons/davis-case/>.

41

on race. In 1949 a group of parents from the Anacostia neighborhood in Washington, D.C.,

sent a petition to the Board of Education of the District of Columbia demanding it open the

newly build John Philip Sousa Junior High School as an integrated school. The petition was

turned down, so the black students were compelled to continue being segregated in

overcrowded, poorly equipped facilities. The school was obviously unequal in terms of

physical conditions, location or the teaching materials.

On September 11, 1950 Gardner Bishop, a minister, community leader and father of a

student at Browne Junior High School, led eleven African Americans to the new John

Philip Sousa Junior High School for white students only, demanding admission. Even

though the school had several empty classrooms and it could bear a higher enrollment, they

were refused entry. Bishop called upon parents to boycott the school. Gardner Bishop and

other African American parents formed the Consolidated Parent Group to present their

complaints to the school board and they approached the civil rights lawyer Charles

Hamilton Houston. A lawsuit was filed against the members of the Board of Education of

the District of Columbia, the Superintendent of Schools and the Principal of Sousa Junior

High School on behalf of five African American children, one of them being Spotwood

Thomas Bolling.31 However, at first the strategy was to demand the equalization of black

facilities because, as in the rest of the country, the doctrine “separate but equal” often

turned out to be “separate but unequal,” the situation changed when Charles Houston

suffered a heart attack in 1950, while preparing the case. He asked his friend James M.

Nabrit, Jr., a professor of law at Howard University, to take over the Consolidated Parents

Group and together with his colleague George E. C. Hayes they decided to challenge the

sole issue of segregation itself.

This case differed from the rest of the cases consolidated under Brown. First, the case was

not led by the lawyers from NAACP, but by lawyers from Washington, D.C. Second, the

case could not address the violation of equal protection clause of the Fourteenth

Amendment. The other cases, originating in states, argued that the state laws authorizing

racial segregation in schools violated the equal protection of the laws guaranteed by the

31 “Washington D.C. Bolling v. Sharpe.” Brown v. Board Case Summaries. 10 Nov 2005.

<http://brownvboard.org/media/dc.php>.

42

Fourteenth Amendment that no state could “deny to any person within its jurisdiction the

equal protection of the laws.”32 Due to the fact that Fourteenth Amendment to the U.S.

Constitution was not applicable in the District of Columbia, the attorneys of the plaintiffs

could not argue this case on the basis of a violation of their citizenship rights to equal

protection and due process. They could use only the Fifth Amendment's guarantee of

liberty, which is not limited to the states.33

Bolling et al. v. Sharpe et al. was filed in U.S. District Court. The case was dismissed and

in 1952 was added to other four school segregation cases that were to be argued together

with Brown. The U.S. Supreme Court gave a separate decision on Bolling, which was

argued as a Fifth Amendment case.

The verdict of Bolling v. Sharpe was handed down by the Supreme Court on the same day

as Brown v. Board of Education claiming that:

“The Fifth Amendment [does] not contain an equal protection clause. [But] the

concepts of equal protection and due process, both stemming from our American ideal

of fairness, are not mutually exclusive. The ‘equal protection of the laws’ is a more

explicit safeguard of prohibited unfairness than ‘due process of law,’ and therefore, we

do not imply that the two are always interchangeable phrases. … Segregation in public

education is not reasonably related to any proper governmental objective, and thus it

imposes on Negro children of District of Columbia a burden that constitutes an

arbitrary deprivation of their liberty in violation of [due process].”34

Brown v. Board of Education of Topeka

Already in the 1930s the National Association for the Advancement of Colored People had

questioned segregation in the federal courts. The NAACP was trying to demonstrate that

32 “Amendment XIV.” US Constitution. 20 Dec 2006.

<http://www.law.cornell.edu/constitution/constitution.amendmentxiv.html>. 33 “Amendment V.” US Constitution. 20 Dec 2006.

<http://www.law.cornell.edu/constitution/constitution.billofrights.html#amendmentv>. 34 Gerald Gunther. Constitutional Law. New York. The Foundation Press, Inc., 1991. p. 652.

43

the facilities for African Americans were inferior to the facilities for white pupils. The

attorneys of the NAACP, Thurgood Marshall and Charles H. Houston, argued that the

opportunity for equal education was one of the essential constitutional rights of African

Americans. With several victories within higher education preceding the Brown suit, the

NAACP lawyers decided to attack the Plessy doctrine within elementary public schools.

In Kansas at that time, there was a law enabling the cities with a population over 15,000 to

segregate elementary or middle schools according to race. High schools were integrated

even though this was true only about the curricular activities, since other activities

remained segregated. Previously, in 1941, there was a successful attempt to integrate the

junior high school by order of the Kansas Supreme Court in case Graham v. Board of

Education of Topeka.35

In the Kansas case Oliver Brown, a local minister, was one of thirteen African American

plaintiffs enlisted by the NAACP. His daughter Linda Brown, a third-grader in Topeka, had

to walk through railroad track to catch a bus that would take her 20 blocks to all-black

Monroe Elementary in East Topeka, even though the white Sumner Elementary school was

much nearer. In the fall of 1950 Oliver Brown and other African American parents tried to

get their children admittance to the white school, but they were turned down. They were

told their children must attend one of the four black schools. Oliver Brown was the first

parent listed in the lawsuit, so the case was named after him. Oliver Brown sought help

from McKinley Burnett, the head of Topeka's branch of National Association for the

Advancement of Colored People (NAACP).36 The lawsuit against the Board of Education

in Topeka was filed on February 28, 1951, and Bob Carter and Jack Greenberg argued the

case before a three judge panel at the District Court in Kansas. They were assisted by local

NAACP attorneys Charles Bledsoe and brothers John and Charles Scott. The presiding

judge was Walter August Huxman. During the trial Carter tried to present evidence

supporting the claim that segregation causes harm to black children.

35 “The Stories of Brown v. Board of Education.” .American Bar Association. 15 Dec 2005.

<http://www.abanet.org/publiced/lawday/storiesofbrown.pdf>. 36 Cozzens, Lisa. “Brown v. Board of Education.” African American History. 17 Dec 2005.

<http://fledge.watson.org/~lisa/blackhistory/early-civilrights/brown.html>.

44

The U.S. District Court of Kansas ruled that even though segregation may have had a

negative effect on children, it did not violate the Fourteenth Amendment since the teachers,

facilities or transportation were equal.

The plaintiffs appealed to the Supreme Court and the case was filed at the Supreme Court’s

docket. The case was eventually combined with other four cases Gebhart (Delaware),

Davis (Virginia), Briggs (South Carolina), and Bolling (District of Columbia) that

challenged the federal government’s segregated schools. At the Supreme Court, the oral

arguments on the case were argued for the first time in December 1952. The chief justice

was Frederick Moore Vinson, and other justices included Hugo Lafayette Black, Harold

Hitz Burton, Thomas Campbell Clark, William Orville Douglas, Felix Frankfurter, Robert

Houghwout Jackson, Sherman Minton and Stanley Forman Reed.37 Henry Rhodes, writing

in “The Brown Decision-Fact or Myth in Connecticut?” claims that there was very little

chance for a unanimous decision as long as Vinson was the Chief Justice. “According to

Justices Burton and Jackson’s notes, Vinson was not ready to support the abolition of

school segregation.”38 O’Brien, Professor of Government and Foreign Affairs at the

University of Virginia, mentions Jackson’s notes from conference discussions that

indicated that if the vote was decided the first time it arrived; the vote would have probably

been six to three or even five to four. Vinson was still chief Justice and Justice Reed would

support segregation as constitutional, as Vinson might have. Justices Clark and Jackson

also inclined to support segregation.39

Klarman, James Monroe Professor of Law and professor of history at the University of

Virginia, mentions a memorandum where Justice William O. Douglass observed a vote at

the time the case was first argued and he wrote that it would have been “five to four in

favor of constitutionality of segregation in public schools.”40 Justice Felix Frankfurter had a

slightly different opinion, saying it would have been five to four to abolish segregation. As

37 “Members of the Supreme Court of the United States.” 10 Feb 2006.

<http://www.supremecourtus.gov/about/members.pdf>. 38 Rhodes, Henry A. 39 O’Brien, David M. Constitutional Law and Politics. Civil Rights and Civil Liberties , vol II . New York, W

W Norton & Company, 1997. p. 1273. 40 Klarman, Michael J. “It Could Have Gone the Other Way.” Nation. May 3, 2004 issue, posted April 15,

2004. 10 Jan 2006.

45

Klarman continues, several judges were not sure whether the Court was the right institution

to forbid segregation and they thought that it would be better if Congress would act.

Jackson saw the situation as failure of the representative government if the Court had to

decide the question.41

The judges knew that with such a sensitive case as the school segregation case was, a

unanimous decision was very important. Still some of the judges viewed the case and the

issues differently. Justice Thomas Clark, originally from Texas, according to Rhodes, voted

90 percent of the time with Chief Justice Vinson. Justice Sherman Minton, the former

Indiana senator, felt that the classification of American citizens on the basis of race was

unreasonable and so the segregation he considered to be unconstitutional. Stanley Reed,

according to Burrton’s notes, tended to uphold segregation. Justice Felix Frankfurter

thought that the issue of school segregation was not so much a judicial matter as a state

matter. He also wanted the court to give the South enough time to cope with a change so

drastic for South. Justices Douglas, Burton and Jackson tended to vote against the school

segregation, while Jackson would agree only if enough time was given to South.42

However, the Court did not make the decision as expected the next spring, deciding to

continue to the next term. O’Brien says that this was due to the fact that the Court was

afraid to make any decision that might upset white southern opposition, especially during

the election year of 1952. Justice Felix Frankfurter supposed that for a decision like this the

Court needed to consider the timing and public reactions.43 The re-arguments were

scheduled for November 1953, but they were postponed until December. The reason for the

additional postponement was the death of Chief Justice Fred Vinson of a heart attack during

the summer. Dwight Eisenhower, upon his death, appointed Earl Warren as the fourteenth

Chief Justice of the United States Supreme Court. Warren was born in Los Angeles and

attended the law school at the University of California at Berkeley. He worked for the

Alameda County district attorney's office and a survey taken in 1931 claimed that he was

the best district attorney in the United States. He worked as the attorney general of

California from 1938 to 1942, before becoming the governor of California, where he served

41 Klarman, Michael J. 42 Rhodes, Henry A. 43 O’Brien, David M. p. 1273.

46

three terms. He had been involved in Eisenhower’s Presidential nomination in 1952.44

O’Brien claims that Earl Warren had impressed Eisenhower as having “unimpeachable

integrity,” “middle of the road views,” and a “splendid record during his years of active law

work” as a state attorney general.45

Chief Justice Warren expressed his opinion about the segregation of public schools,

considering segregation as a denial of the rights of African American children under the

Fourteenth Amendment. And even though, by then, most of the justices seemed to agree

with his conviction, he suggested that they not vote until the case was fully discussed. The

result was that the judges did not vote until mid-February.46

The decision of Brown was difficult for most of the judges, since there was a conflict

between their personal values and the legal values they had as judges. Frankfurter was

undoubtedly against racial segregation, which was quite clear from his previous actions of

hiring the first black clerk William Coleman. Still in the memorandum he was convinced

that his personal values had limited relevance in terms of deciding the constitutional

question. He wrote:

“However passionately any of us may hold egalitarian views, however fiercely any of

us may believe that such a policy of segregation as undoubtedly expresses the

tenacious conviction of Southern States is both unjust and shortsighted, he travels

outside his judicial authority if for this private reason alone he declares

unconstitutional the policy of segregation.”47

Harvard Sitkoff, black historian and sociologist, claims that the clear majority of judges did

not support segregation and wanted to reverse Plessy. Warren kept postponing the decision

because he wanted the court to reach to a unanimous decision. He was aware of the fact that

if the court was not unanimous on a social issue like this, it would ruin the chance for full

compliance by Southern whites. Finally in early May, the last Justice hesitating about the

decision, Reed, gave the Chief Justice his approval, being aware of the fact that the South

44 “Landmark Case Biography Earl Warren (1891–1974).” Landmark Supreme Court Cases. 25 Nov 2006. <http://www.landmarkcases.org/brown/warren.html>.

45 O’Brien, David M. p. 1274. 46 O’Brien, David M. p. 1274 47 Klarman, Michael J.

47

would use his holdout to justify their resistance to a desegregation order.48

So finally, Warren had won his longed-for unanimity.49 Rhodes says that “though Warren

had no judicial experience, he possessed the qualities necessary for a Chief Justice to unify

the divided court hearing the Brown case.” During the re-arguments, no one was actually

able to provide evidence that those who ratified the Fourteenth Amendment planned to

prohibit segregation in public schools. Marshall often emphasized that if the Court really

allowed segregation that would mean they considered blacks to be inferior.50

Earl Warren worked to formulate a short brief that would be printable in newspapers, so the

public could read it for themselves; at the same time he desired an opinion that would give

the South enough time to cooperate with a desegregation order and give individual states

the opportunity to present their own desegregation plans. On Monday, May 17, 1954, Earl

Warren presented the unanimous opinion of the Court, which was short and to the point.

This unanimous decision is commonly called Brown I and is the decision that overturned

the “separate but equal” doctrine, effectively ending the segregation of public schools.

During his speech, Warren reviewed the history of the Fourteenth Amendment, describing

it as inconclusive in connection with school segregation, since at that time, in the 1860s,

public school education, mainly in South, was far from being well developed.51 Education

of white children at that time was in hands of private groups and in terms of black

education, the African Americans were almost illiterate since education itself did not exist

for black children in most places; in fact, the education was forbidden by law in some

states. Chief Justice Warren contrasted this with the situation of the 1950s when many

African Americans had achieved success in various fields, such as business, arts or science.

Warren emphasized the idea of viewing public education as it was at that time as the only

way to decide whether “segregation in public schools deprives the plaintiffs of the equal

protection of the laws.”52 Living in the 1950s, he considered the education to be the most

important function of state and local governments and to be the basis of good citizenship.

48 Rhodes, Henry A. 49 Sitkoff, Harvard. The Struggle For Black Equality. p. 21. 50 Rhodes, Henry A. 51 Sitkoff, Harvard. p. 22. 52 O’Brien, David M. p. 1276.

48

He added that

“Today it is a principal instrument in awakening the child to cultural values, in

preparing him for later professional training, and in helping him to adjust normally to

his environment. In these days, it is doubtful that any child may reasonably be

expected to succeed in life if he is denied the opportunity of an education. Such an

opportunity, where the state has undertaken to provide it, is a right which must be

made available to all on equal terms.”53

By stating this, he quickly came to the main point:

“Does segregation of children solely on the basis of race, even though the physical

facilities and other ‘tangible’ factors may be equal, deprive the children of the

minority group of equal educational opportunities? We believe that it does. …

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 negro [sic] group. A sense of inferiority affects the motivation of a child to

learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the

educational and mental development of negro [sic] children and to deprive them of

some of the benefits they would receive in a racial[ly] integrated school system.”54

Warren’s conclusion was upheld by several footnotes, quoting contemporary psychological

studies on the effects of segregation that showed the evidence of the feeling of inferiority

caused by separation solely on the basis of race. In the end Warren concluded 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. This disposition makes unnecessary any

discussion whether such segregation also violates the Due Process Clause of the

53 O’Brien, David M. p. 1276. 54 “Brown v. Board of Education, 347 U.S. 483 (1954)” Supreme Court of the United States. 10 Nov 2005.

<http://www.nationalcenter.org/brown.html>.

49

Fourteenth Amendment.”55

What is known as Brown II was decided one year later, in 1955, when the Court was

dealing with the question of how to end segregation. The Court was aware of the

difficulties that the communities would have during this time of social change; the Justices

realized that many political, institutional and social inequities had to be worked out. The

Court struggled with the form of the ordinance, its phrasing, as well as its timing. During

arguments, Chief Justice Warren faced the southern resistance. The South Carolina attorney

S. Emory Rogers demanded an open-ended ordinance, while Thurgood Marshall and the

NAACP wanted instant and total school desegregation.56

As O’Brien describes, Justices Black and Minton thought that the Court should present a

simple decree without opinion and the others seemed to agree; however, they insisted that

the school boards should have flexibility in ending segregation. Justice Burton thought that

“neither this court nor district courts should act as a school board or formulate the

program.”57 The short and simple opinion seemed acceptable to all justices. Warren in his

memorandum summarized the main points of agreement and he accented that the opinion

should simply state that Brown I declared the unconstitutionality of segregated public

schools and Brown II was to declare that “the local school authorities have the primary

responsibility for assessing and solving these problems; [and] the courts will have to

consider these problems in determining whether the efforts of local school authorities are in

good faith compliance.”58

And so on May 31, 1955 Justice Warren delivered the opinion of the Court. First he

summed up the situation from the year 1954 when the cases were decided and the opinion

held was declaring the racial discrimination on public schools as unconstitutional.

However, since these cases came from different local conditions, there needed to be further

discussion in terms of relief. Warren noted:

“While giving weight to these public and private considerations, the courts will

55 O’Brien, David M. p. 1277. 56 Sitkoff, Harvard. p. 24. 57 O’Brien, David M. p. 1285. 58 O’Brien, David M. p. 1285.

50

require that the defendants make a prompt and reasonable start toward full compliance

with our May 17, 1954, ruling. Once such a start has been made, the courts may find

that additional time is necessary to carry out the ruling in an effective manner. The

burden rests upon the defendants to establish that such time is necessary in the public

interest and is consistent with good faith compliance at the earliest practicable date.”59

Harvard Sitkoff commented on the situation 40 years later: “Acknowledging the potential

for difficulties, moreover, the Supreme Court refused to set a deadline and authorized

delays when necessary. For the First time, the Supreme Court had vindicated a

constitutional right and then deferred its exercise.”60

Warren further accented that there was great responsibility placed upon local school

authorities and he hoped that both sides would try to effectuate a transition to a racially

nondiscriminatory system. He concluded that:

“The judgments below, except that, in the Delaware case, are accordingly reversed,

and the cases are remanded 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.”61

The Warren court issued a decree for states and local school boards to proceed with all

deliberate speed in the process of desegregating public schools. This opinion, however, was

very unpopular among white southerners and led to violent confrontations, mainly in the

South.

59 O’Brien, David M. p. 1287. 60 Sitkoff, Harvard. p. 24. 61 “Brown v. Board of Education, 349 U.S. 294 (1955).”

51

Chapter 4

The Implementation of Brown

The Brown decision of 1954 caused mixed reactions. African Americans praised Marshall

who “had used the white man’s laws before an all white Supreme Court to win a verdict

voiding segregation.”1 Many African Americans perceived the Brown ruling as the second

important proclamation after the Emancipation proclamation and believed it would

definitely end the period of Jim Crow. Sitkoff notes that Brown was considered an

important precedent; it promised equal education in integrated classrooms for African

American children and to many enthusiastic African Americans it seemed to be the

beginning of a real multiracial democratic society. He further continued, “Brown

heightened the aspirations and expectations of African Americans as nothing ever had

before.”2

On the other hand, the Brown ruling had the biggest impact on segregation laws in southern

states and the reactions often led to opposition and resistance.3 According to public-

opinion polls, the situation in the South showed that 80 percent of whites were against

desegregation. Still, the Supreme Court hoped that by giving the South the time to

cooperate it would prevent resistance from the South.4 The decision itself was considered to

be most momentous and far-reaching,5 also due to the fact that “this was the first time the

federal government intervened in public schools, an area traditionally overseen by state

governments. While the Supreme Court had the power to interpret the law and declare

segregation unconstitutional, the power to enforce the decision fell to state and local

authorities.”6

The situation after Brown may be portrayed by several reactions from the South. Reverend

William Carter from Hobbs, New Mexico, viewed desegregation as being against the Bible.

1 Sitkoff, Harvard. The Struggle for Black Equality 1954-1980. New York, Hill and Wang, 1981. p. 23. 2 Sitkoff, Harvard. p. 23. 3 “Brown Reactions: Judge Brady.” Teachers’ Domain. 25 Feb 2006. <http://www.teachersdomain.org/9-

12/soc/ush/civil/brady1/>. 4 Sitkoff, Harvard. p. 24. 5 Woodward, C. Vann. The Strange Career of Jim Crow. New York, Oxford University Press, 1974. p. 147. 6 “Brown Reactions: Judge Brady.”

52

Senator James Eastland from Mississippi proclaimed: “All the people of the South are in

favor of segregation and Supreme Court or no Supreme Court; we are going to maintain

segregated schools down in Dixie.”7 Governor of South Carolina James Byrnes proclaimed

that the decision “was the end of civilization in the South as we have known it.” Georgia

Governor Herman Talmadge said that “Georgia had no intention of allowing ‘mixed race’

schools as long as he was governor.” He also claimed that “the Supreme Court's ruling was

not law in his state” and that it was “the first step toward national suicide.”8

The very strong southern opposition resulted in a Southern Manifesto, a document signed in

March 1956, in which southern senators and members of House of Representatives

expressed their opposition to the ruling, pronouncing Brown as unconstitutional and

proclaiming that “ the Supreme Court possessed no power to demand an end to

segregation, and that only a state, not the federal government, can decide whether a school

should be segregated or not, and that the states would be in the right in opposing the

Court’s order.”9 The administration of President Dwight D. Eisenhower did not do

anything to support or enforce the compliance10 and the President “…was reluctant to take

any specific action in support of black Americans. … He strongly believed that race

relations would only be improved when whites wanted to accept blacks.”11

One of the first challenges to the desegregation of schools and the Brown decision came

immediately after the ruling when the first African American, twenty-six-year-old

Autherine Lucy, after a district court order, preceded by long courtroom battles, was

officially admitted to the all white University of Alabama on February 3, 1956. However,

the night after she attended school for the first time, the students and town’s people staged

riots. The next day, Lucy had to be escorted to and from the campus by police, and on

February 6, 1956, the University of Alabama suspended her, arguing that the campus was

7 Eyes on the Prize, American Civil Rights Years. Fighting Back 1957-1962. Public Broadcasting

Service,1998. 2 min. 8 Williams, Juan. “The Ruling That Changed America.” National School Boards Association. 25 Nov 2005.

<http://www.nsba.org/site/doc.asp?TRACKID=&VID=2&CID=1234&DID=33650>. 9 Sitkoff, Harvard. p. 30. 10 O’Brien, David M. Constitutional Law and Politics. Civil Rights and Civil Liberties, vol II. New York W

W Norton & Company, 1997. p. 1263. 11 Tafari, Tsahai. “The National Struggle.” The Rise and Fall of Jim Crow. Public Broadcasting Service. 20

Jan 2006. <http://www.pbs.org/wnet/jimcrow/struggle_president2.html>.

53

not safe for her.12 However, Lucy and NAACP lawyers opposed this suspension, deciding

to file a lawsuit against the University challenging the action of University as supportive of

the white rioters. Unable to provide sufficient evidence supporting these charges, the action

was withdrawn and Autherine Lucy was expelled from the University. Roy Wilkins,

executive director of the NAACP, demanded that U.S. Attorney General take legal action

against those who had prevented Lucy from attending the University of Alabama, but the

federal government did not intervene13 and the University of Alabama remained segregated

for another seven years.14 The expulsion was overturned many years later, when in 1988

she managed to enroll at the University and the following year she received her master’s

degree in elementary education.15

Soon all Americans realized that the desegregation of public schools would not be easy and

probably not even smooth, at least in certain parts of the United States. And so the hope of

Thurgood Marshall that one case would end segregation simply because the rest of the

country would follow the decision was unlikely.16 Constance Baker Motley, member of the

NAACP Legal Defense Fund, admitted that:

“We were not really quite prepared for the extent to which the South would resist the

implementation of the Brown decision. In fact, the shutting down of NAACP in

Alabama, resistance evidence in places like Virginia, Arkansas and legislative

investigation committees in Florida and other states really frightened us.”17

In a deliberate campaign that became known as massive resistance, the southern states tried

to enact many laws and policies to delay implementation of school desegregation or evade

the decree entirely. Senator Harry Byrd, who coined the phrase massive resistance,

proclaimed: “If we can organize the Southern States for massive resistance to this order

12 “The Aftermath.” With an Even Hand Brown v. Board at Fifty. 20 Jan 2006.

<http://www.loc.gov/exhibits/brown/brown-aftermath.html>. 13 “The Aftermath.” 14 Woodward, C. Vann. p. 163. 15 “Foster, Autherine, Juanita Lucy (1929- ).” The Papers of Martin Luther King, Jr. 2 Feb 2006.

<http://www.stanford.edu/group/King/chronology/details/560206.htm>. 16 “Autherine Lucy and the University of Alabama.” America’s story from American Library. The Library of

Congress in Washington, D.C. 10 Feb 2006. <http://www.americaslibrary.gov/cgi-bin/page.cgi/aa/leaders/marshallthrgd/lucy_1>.

17 Eyes on the Prize, American Civil Rights Years. Fighting Back 1957-1962. 3 min.

54

[Brown], I think that in time the rest of the country will realize that racial integration is not

going to be accepted in the South.”18

Sitkoff claims that the Southern states tried various legislative tactics to defy the Court’s

ruling and the most successful one was probably the pupil placement law that enabled local

school authorities to reject transfer applications.19 The Virginia Center for Digital History

comments on the competence of the authorities of the school board:

“The school board was authorized to make decisions based on several conditions that

might be used to mask decisions based on race: including the effect of enrollment on

all children in the school, the health of the child, the effect of educational disparity, the

availability of facilities, the aptitude of the child, and ‘sociological, psychological, and

like intangible social scientific factors’. The purpose of the act was to prevent

desegregation of any school in Virginia.”20

Nevertheless, there were also other elements that contributed to the era of massive

resistance, among others the vagueness of the term “with all deliberate speed.” Furthermore

there was Eisenhower’s silence and measures passed in order to “hound and harass the

NAACP,” including public membership lists, which often were used as a reason for

dismissal from work, making it “a crime to attack local segregation ordinances” or charging

the association with “barratry.”21

As far as desegregation is concerned, Sitkoff claims that it was the Supreme Court’s

decision of 1955 about the implementation of Brown that set back the situation, especially

in the South,22 because the tactic to slow down integration enabled many states to “stall the

Court’s order to desegregate their schools”23 and therefore do nothing in terms of

integration. “As Richard Kluger writes in Simple Justice (2004), the South interpreted ‘all

18 Robinson, Gerard. “On This Side of the Floodgate.” Cato Institute. 11 May 2004. 26 Feb 2006.

<http://www.cato.org/pub_display.php?pub_id=2648>. 19 Sitkoff, Harvard. p. 28. 20 “Pupil Placement Law.” University of Virginia. 15 Feb 2006.

<http://www.vcdh.virginia.edu/civilrightstv/glossary/topic-018.html>. 21 Sitkoff, Harvard. pp. 26-28. 22 Sitkoff, Harvard. pp. 23-24. 23 “The Aftermath.”

55

deliberate speed’ to mean ‘any conceivable delay’.”24

Arkansas agreed, immediately after the decision, to integrate. Its law school had been

integrated since 1949, and by 1957 all universities in the state except one were also

desegregated. Yet in 1954, several districts, including Franklin County and Washington

County, integrated their public schools and in 1955 the public schools of Lawrence County

joined them. Throughout the year 1955 public schools in these districts, including

Fayetteville, Bentonville, Charleston, Hot Springs, Fort Smith and Hoxie, continued with

integration,25 some due to financial considerations since integration was cheaper than

maintaining segregated schools.26

During the school year 1956-57, 723 school districts desegregated their classrooms in the

seventeen Southern and Border states.27 Several schools in Arkansas, Tennessee and

several districts in western Texas, as well as the District of Columbia, integrated their

schools. However, in the seven states of Alabama, Florida, Georgia, Louisiana, Mississippi,

North Carolina, South Carolina and Virginia, the schools remained segregated.28

Major problems were really not expected in Arkansas. However, eventually Little Rock,

Arkansas, a moderate southern city in a moderate southern state, did become a battlefield of

school desegregation.29

Little Rock Crisis

Arkansas communities agreed to desegregate slowly, and the School Board of Little Rock

initially created a plan for integration. However, the NAACP was not satisfied with the

speed of integration, so it asked the U.S. District Court to force immediate desegregation.

24 “Crisis in Little Rock.” American RadioWorks. 15 Nov 2005.

<http://americanradioworks.publicradio.org/features/marshall/littlerock1.html>. 25 “The 1957 Central High Crisis as Governor Faubus saw it.” Little Rock 1957. 20 Jan 2006.

<http://www.ardemgaz.com/prev/central/faubtxt26.html>. 26 “Great Things Happen In Small Places.” Little Rock Central High School National Historic Site. 26 Feb

2006. <http://www.nps.gov/chsc/grassrootsactivismeducation.pdf>. 27 Woodward, C. Vann. pp. 160-161. 28 Woodward, C. Vann. pp. 160-161. 29 Eyes on the Prize, American Civil Rights Years. Fighting Back 1957-1962. 6 min.

56

The court ruled that an integration plan must be implemented by the fall of 1957. The

situation grew tense after public opinion within the white community gradually began to

oppose integration and several statutes against racial integration were passed.30 Governor of

Arkansas Orval Eugene Faubus supported the anti-integration tendencies, claiming, “I will

not force my people to integrate against their will.”31

In September 1957 the integration of Central High School began by enrolling nine African

American students together with two thousand white students.32 These students were

carefully chosen by the school board due to their excellent grades.33 Those students, who

became known as the Little Rock Nine, included Ernest Green, Elizabeth Eckford,

Jefferson Thomas, Terrance Roberts, Carlotta Walls, Minnijean Brown, Gloria Ray,

Thelma Mothershed, and Melba Pattillo. Ernest Green was the oldest of all of them; he was

also the first African American student graduated from Central High in May 1958.

These nine students experienced dramatic events in the fall of 1957. On September 2, the

evening before the opening of school, Arkansas Governor Orval Eugene Faubus announced

on television that it “would not be possible to restore or maintain order if forcible

integration is carried out tomorrow”.34 He further continued that “Units of National Guards

have been and are now being mobilized with mission to maintain the peace and good order

of our country. Advanced units are already on duty on the ground of Central High

School.”35

Faubus defied the Brown ruling of 1954, and “by mobilizing the National Guard in

violation of federal law, the Governor instigated a major constitutional crisis, which

escalated Little Rock's desegregation debate into a standoff between federal and state

authorities.”36 The National Guard was supposed to prevent violence around the high

30 Campos, Robert, Brandon Fuentes, Camerin Poulson. “Desegregation of Little Rock's Central High

School.” San Diego State University. 20 Jan 2006. <http://www-rohan.sdsu.edu/~bfuentes/highbackground.html>.

31 School, The Story of American Public Education - Episode 3, Separate and Unequal, 1950-1980. MD: Stone Latern Films, 2001. 12 min.

32 Campos, Robert, Brandon Fuentes, Camerin Poulson. 33 Eyes on the Prize, American Civil Rights Years. Fighting Back 1957-1962. 8 min 34 Sitkoff, Harvard. p. 30. 35 Eyes on the Prize, American Civil Rights Years. Fighting Back 1957-1962. 8 min 36 Campos, Robert, Brandon Fuentes, Camerin Poulson.

57

school. Nevertheless, on September 3, when the African American students tried to enter

the High School, the guards blocked their way and did not allow these students to enter the

school. The National Guard spokesman announced: “Governor Faubus has placed this

school off limits to Negroes.”37 One African American student, Elizabeth Eckword, went to

school by herself, but soon was chased away by a white mob. The following day the Little

Rock Nine stayed home and waited for a court order that would enable them to enter the

school. However, the governor did not withdraw the guards at the bidding of another

federal district court order, so attention was focused on President Eisenhower. According to

Sitkoff, Eisenhower had never wanted to deal with racial matters, not only because he did

not agree with Brown, but also because he did not want to lose the vote of Southern states.

His intention not to intervene, however, changed after governor Faubus ignored the federal

court and used state troops to prevent enforcement of federal law.38

President Eisenhower met with the Governor Faubus at his vacation home in New Port,

Rhode Island, on September 14, to discuss the tense situation in Little Rock. President

Eisenhower thought that Faubus agreed to enroll the Little Rock Nine. However, on

September 20, the federal district court had to repeat its order for Governor Faubus not to

interfere with integration and withdraw the National Guard. A few days later, on September

23, the National Guard was withdrawn, leaving only city police in action.39 The African

American students managed to get to school; however, a white mob surrounded the high

school. It was not possible to calm down the crowd. A few hours later, the African

American students were driven home in police cars. The mayor of Little Rock called

President Eisenhower for assistance and the President had to act. When he appeared on

television that evening, he claimed that “an extreme situation has been created in Little

Rock. This challenge must be met. … Mob rule cannot be allowed to override a decision of

our court.”40 He immediately sent 1000 paratroopers from the 101st Airborne Division to

restore order in Little Rock.41 The following morning the students were taken to school by

37 Sitkoff, Harvard. p. 30. 38 Sitkoff, Harvard. p. 31. 39 Eyes on the Prize, American Civil Rights Years. Fighting Back 1957-1962. 14 min. 40 Eyes on the Prize, American Civil Rights Years. Fighting Back 1957-1962. 17 min. 41 “Eisenhower and the Little Rock Crisis.” America’s Story from American Library. Library of Congress in

Washington, D.C. 19 Nov 2005. <http://www.americaslibrary.gov/cgi-bin/page.cgi/aa/presidents/eisenhower/littlerock_3>.

58

soldiers from the Airborne Division and the Little Rock Nine were admitted to high school,

spending their whole school day at Central High. Each student was assigned an individual

guard to escort the student around the school.42

After Christmas, an incident occurred at school, an incident in which Minnijean Brown

avenged herself upon a tormentor, which resulted in her expulsion from the high school.

After this incident some white students brought cards to the school proclaiming “One

down, eight to go.”43

On May 29, 1958 at graduation, 601 white students and Ernest Green, the lone African

American, received their high school diplomas. Ernest Green depicted the scene: “When

they called my name, it was nothing, just a name, there was this pure silence; nobody

clapped, but I figured they didn’t have to, because after I got the diploma that was it. I have

accomplished what I’ve come there for.”44

In August 1958, the case Aaron v. Cooper45 was argued, dealing with the question whether

Arkansas officials were bound by federal court orders enacting desegregation. It was the

first case concerning desegregation following the Brown II decision of the Supreme Court,

resulting from the Arkansas riot. The attorney representing the state of Arkansas, Richard

C. Butler argued that the state of Arkansas was not bound by the Brown ruling, not being a

part of the original case, and that the governor had the same authority as the Supreme Court

in terms of interpreting the Constitution. The Supreme Court upheld the unconstitutionality

of segregation in an opinion, which was signed by all nine justices to underscore their

unanimity, and declared the Supreme Court’s ultimate authority to interpret the

Constitution. The opinion claimed that:

“The constitutional rights of respondents are not to be sacrificed or yielded to the

violence and disorder which have followed upon the actions of the Governor and

Legislature. … The controlling legal principles are plain. The command of the

Fourteenth Amendment is that no ‘State’ shall deny to any person within its

42 Eyes on the Prize, American Civil Rights Years. Fighting Back 1957-1962. 19 min. 43 Eyes on the Prize, American Civil Rights Years. Fighting Back 1957-1962. 27 min 44 Eyes on the Prize, American Civil Rights Years. Fighting Back 1957-1962. 28 min. 45 Filed as Aaron v. Cooper 358 U.S. 1, 78 S. Ct. 1401.

59

jurisdiction the equal protection of the laws. ‘A State acts by its legislative, its

executive, or its judicial authorities.”46

The significance of the Aaron case is that it ended the period during which the court waited

for the South to comply with the ruling by starting to desegregate schools, and the Court

ordered the start of integration gradually through several cases following Aaron v.

Cooper.47

In September 1958, Governor Faubus closed down all the Little Rock high schools in order

to stall integration, leaving 3,698 students without any educational opportunities, after

which 750 whites enrolled in newly established private T.J. Raney High School.48

A similar situation occurred in Virginia where gradually school after school was closed by

the Governor Lindsay Almond, Jr., to prevent them from integrating. He proclaimed:

“There will be no enforced integration in Virginia.”49 The Robert R. Moton High School,

an African American school, was also closed as were all other public high schools. In the

fall of 1959, Prince Edward County closed its doors to avoid desegregation. Only private

all-white schools were opened, admitting 1,475 white children; more than 1,700 African

American children were left without any school education.50 Some African Americans were

sent to their relatives to attend school in different areas or states. Some of them were sent to

the high school division of Kitrell College, a Methodist institution for African Americans in

North Carolina. The situation in following years in Virginia found white children being

educated in private schools, which were supported by state funds and grants, while African

American children were left with no public education.51

A long legal battle was waged in the courts while schools remained closed until the fall of

46 “Cooper v. Aaron.” International Information Programs: USINFO.STATE.GOV. 20 Jan 2006.

<http://usinfo.state.gov/usa/infousa/facts/democrac/37.htm>. 47 “Introduction to the Court Opinion on the Cooper v. Aaron case.” International Information Programs:

USINFO.STATE.GOV. 20 Jan 2006. <http://usinfo.state.gov/usa/infousa/facts/democrac/37.htm>. 48 “History of Little Rock Public Schools Desegregation” Little Rock Central High 40th Anniversary.

10 Dec 2005. <http://www.centralhigh57.org/1957-58.htm>. 49 Eyes on the Prize, American Civil Rights Years. Fighting Back 1957-1962. 30 min. 50 Morland, Kenneth J. “The Tragedy of Public Schools: Prince Edward County, Virginia.” p. 12.

5 Feb 2006. <http://www.library.vcu.edu/jbc/speccoll/report1964.pdf>. 51 Morland, Kenneth J. p. 12.

60

1963. African American children were those most harmed by the situation. Ten years after

Brown, Justice Black described the problem of closing schools in Virginia, in part of his

opinion in Griffin, as follows:

“Prince Edward children must go to a private school or none at all; all other Virginia

children can go to public schools. Closing Prince Edward's schools bears more heavily

on Negro children in Prince Edward County since white children there have accredited

private schools which they can attend, while colored children until very recently have

had no available private schools. … Prince Edward's public schools were closed and

private schools operated in their place with state and county assistance, for one reason,

and one reason only: to ensure, through measures taken by the county and the State,

that white and colored children in Prince Edward County would not, under any

circumstances, go to the same school.”52

The school desegregation crisis continued and the situation had not improved substantially

even six years after Brown ruling, for in 1960, when four African American girls tried to

enroll in the first grade in a white school in New Orleans, the reaction of the public was

once again a white riot.53

52 “Griffin v.County School Board of Prince Edward County (Va.), 377 U.S. 218.”Brown@50. Howard

University School of Law. 15 Feb 2006. <http://www.brownat50.org/brownCases/PostBrownCases/GriffinvPrEdCoVA1964.html>.

53 Eyes on the Prize, American Civil Rights Years. Fighting Back 1957-1962.32 min.

61

Chapter 5

The time for “all deliberate speed” has run out

The era of the 1960’s was a time of youth, protests, and social changes that influenced not

only society and culture, but also education and politics as well. It was the time of

President John F. Kennedy who supported the African American civil rights leaders more

than his predecessors. It was in 1963 that President Kennedy “addressed the nation on

television to confront the issue of racial discrimination and emphasized the commitment of

all three branches of the federal government in supporting civil rights, the strongest

statement made by a President in several administrations.”1 Unfortunately President

Kennedy was assassinated in Dallas, Texas, on November 22, 1963, during a political trip

through Texas. His successor, President Lyndon B. Johnson, was most effective in the fight

for civil rights of African Americans. In 1963, a march on Washington was organized in

which people demanded equality for African Americans. In 1964, Martin Luther King

received the Nobel Peace Prize and the same year the Civil Rights Act of 1964, which

banned discrimination in voting, public accommodation, education and employment, was

adopted and followed by the Voting Rights Act of 1965. President Johnson “worked

tirelessly to ensure the passage” of both bills “rendering all Jim Crow statutes illegal.

Nearly a hundred years after 14th and 15th Amendments were passed, all citizens,

regardless of race, could reap the benefits.”2 In 1967, former NAACP attorney Thurgood

Marshall became the first African American appointed to the U.S. Supreme Court, thanks

to President Lyndon B. Johnson. In 1968 Martin Luther King, Jr., and Presidential

candidate Robert F. Kennedy were assassinated; both had been leading advocates of

equality for African Americans.3

There were several events that influenced educational efforts to resolve the problem of

desegregation. Within higher education there was the desegregation crisis at the University

of Mississippi, when African American student James Meredith sought admission to the

1 Tafari, Tsahai. “The National Struggle.” The Rise and Fall of Jim Crow. Public Broadcasting Service. 20

Jan 2006. <http://www.pbs.org/wnet/jimcrow/struggle_president2.html>. 2 Tafari, Tsahai. 3 Quintard Taylor, Jr. “African American History: Timeline: 1900 – 2000.” University of Washington. 20 Oct

2005. <http://faculty.washington.edu/qtaylor/aa_history_public/aatimeline_1900-2000.htm>.

62

previously all-white university. Within public education there was the Elementary and

Secondary Education Act (ESEA), approved by the Congress and several Supreme Court

Cases that finally expressed the impatience of the Court with the South, such as Griffin v

County School Board of Prince Edward County (1964)4 and Alexander v. Holmes County

Board of Education (1969).5

Ole Miss Crisis

At the beginning of the decade of the sixties, while the legal battle concerning schools in

Virginia continued, the state of Mississippi dealt with the question of admittance of African

American James Meredith to the University of Mississippi in Oxford. Van Woodward,

Sterling Professor of History Emeritus at Yale University, writes that Mississippi was a

“state with the largest Negro minority and the last state to have a black majority of

population. It was also the poorest state in the Union, and the most profoundly isolated

from national life and opinion.”6

The whole struggle started on January 21, 1961, one day after the inauguration of President

Kennedy, when James Meredith sought admission to “Ole Miss.” The registrar of the

University of Mississippi sent him an application and information that the University was

pleased to learn of his interest. However, when James Meredith, on January 31, applied,

stating that he was African American, “…the registrar sent Meredith a telegram stating that

the Ole Miss ‘found [it] necessary to discontinue consideration of all applications for

registration … received after January 25, 1961’.”7 Meredith asked the NAACP for

assistance since he anticipated problems and possible legal action. The NAACP was

interested in Meredith’s case and lawyers Constance Baker Motley and Jack Greenberg

counseled his case. C.B. Motley recommended to Meredith that he file an application for

the summer term and carefully check over all documents sent to the university to avoid the

4 Filed as Griffin v. County School Board of Prince Edward County (Va.). No. 592, 377 U.S. 218. 5 Filed as Beatrice Alexander, et al. v. Holmes County Board of Education, et al 396 U.S. 1218. 6 Woodward, C. Vann. The Strange Career of Jim Crow. New York: Oxford University Press, 1974. p.173. 7 “Integration of Ole Miss.” University of Illinois at Urbana-Champaign. 10 Jan 2006.

<http://www.eotu.uiuc.edu/pedagogy/grogers/GRP/Meredith_1.htm>.

63

possible reasoning of the Board that Meredith’s documentation was in any way

unsatisfactory.8

On May 9, 1961, the University registrar informed Meredith that only half of his credits

could be accepted. Meredith, however, was determined to attend Ole Miss, so the battle

continued. Throughout this time school officials tried to enact several measures to make it

impossible for African American students to enroll. When Meredith received formal written

rejection on May 31, 1961, a lawsuit was filed at the federal district court. Meredith

believed that the court would help him to solve the problem quickly. Several hearings and

postponements however made it impossible for Meredith to register for the summer term.

Judge Sidney J. Maze, a firm supporter of southern customs and tradition, did not rule until

December, even though the hearings ended in August. His decision was not unexpected, in

favor of the university, stating that there was no policy of segregation at the university.9

Meredith and his lawyers immediately decided to appeal to the U.S. Court of Appeals,

convinced that it was obvious that the University of Mississippi discriminated on the basis

of race. Three judges of the Fifth Circuit, Elbert Turtle, Richard T. Rives and John Minor

Wisdom, reversed the decision of the federal district court and ordered that a full trial

challenging the direct admission should take place, beginning on January 24, 1962. Judge

Wisdom wrote in his appellate opinion that “the panel was taking ‘judicial notice’ that

Mississippi ‘maintains a policy of segregation’.”10 He commented on the ruling of the

federal court claiming that:

“That was so unreal for Mississippi to argue and for judges to hold that there was no

policy of segregation at the University of Mississippi. Everyone in Mississippi, and I

am sure, everyone in the entire country knew that there was segregation in the state of

Mississippi. And for University to say that there was no segregation and for the court

to find that there was no segregation was just like a land of fantasia.”11

So the case returned again to the federal district court and on February 5, 1962, Justice

8 Donovan, Kelley Anne. “James Meredith and the Integration of Ole Miss.” p.31. 15 Jan 2006. <http://www.cofc.edu/chrestomathy/vol1/donovan.pdf>.

9 Donovan, Kelley Anne. pp.32-34. 10 Donovan, Kelley Anne. p.35. 11 Eyes on the Prize, American Civil Rights Years. Fighting Back 1957-1962. 36 min.

64

Mize delivered the decision that the University of Mississippi had not denied Meredith’s

admission on the basis of his race. The NAACP and Meredith appealed once again to the

U.S. Court of Appeals, which ordered that Ole Miss must accept Meredith. Justice Wisdom

gave reasons for the ruling, stating that “…from the moment the defendants discovered that

Meredith was a Negro they engaged in a carefully calculated campaign of delay,

harassment, and masterful inactivity … a defense designed to discourage and defeat by

evasive tactics.”12 However, as in Little Rock, the question was who would enforce the

admission ordered by court.

Governor of Mississippi Ross Barnett, a militant segregationist, made his “position crystal

clear,” stating that “No school in our state will be integrated while I am your Governor.”13

A few months passed before the Supreme Court in September ordered the University of

Mississippi to accept Meredith. This time white Mississippians were totally unprepared,

having been “…assured repeatedly by the state legislature, and Governor Ross Barnett that

the sovereign state would prevent it and that integration was unconstitutional.”14 However,

when Federal District Judge Mize issued a decree not to interfere with Meredith’s

admission, it became clear that the court system was on Meredith’s side. There was still one

more obstacle to overcome – Governor Ross Barnett. In mid-September, the Governor met

with the board of trustees who did not agree with the Meredith’s admission, but even

though the majority sided with Barnett, they were not willing to defy the court.15

One day before Meredith’s planned registration, President Kennedy decided to intervene;

he sent a telegram to the officials at Ole Miss, recommending accepting Meredith’s

registration the next day. Governor Barnett decided to act. On September 20, he flew to Ole

Miss to personally block Meredith’s admission. Five days later, on September 25, Meredith

tried once again to register, this time at Jackson’s office, accompanied by John Doar,

attorney from the U.S. Justice Department and federal official James McBain, but Governor

Barnett again denied Meredith admission. Kennedy, concerned about losing southern

12 Donovan, Kelley Anne. p.37. 13 Eyes on the Prize, American Civil Rights Years. Fighting Back 1957-1962. 37min. 14 Woodward, C. Vann. p.174. 15 Donovan, Kelley Anne. p.38.

65

voters, decided to negotiate with the governor over the phone before intervening publicly.16

On September 30, Kennedy sent several U.S. marshals to Oxford, Mississippi. Meredith

was secretly hiding on the campus when Ole Miss turned into a battlefield, just as President

Kennedy was making his speech on television. He said:

“Americans are free to disagree with the law, but not to disobey it. For in a

government of laws and not of men, no man, however prominent or powerful, and no

mob however unruly or boisterous, is entitled to defy a court of law. If this country

should ever reach the point where any man or group of men by force or threat of force

could long defy the commands of our court and our Constitution, then no law would

stand free from doubt, no judge would be sure of his writ, and no citizen would be safe

from his neighbors.”17

The riot resulted in two deaths and several people injured, mainly marshals who were

ordered not to use guns against “the rioters who were shooting and throwing Molotov

cocktails, attacking the reporters and smashing cameras.”18 By dawn the troops managed to

restore order at Ole Miss. On Monday, October 1, Meredith successfully registered at the

University of Mississippi, almost two years after registering for the first time; he had

succeeded in being the first African American to attend the University of Mississippi.19

Meredith graduated from the University on August 18, 1963.20

“It was a lonely victory for Meredith, but it was a victory for him and the country. The

Constitution had been held and had been reaffirmed. … Thousands of black people

felt the victory and saw Meredith as example to follow a symbol, like the Little Rock

Nine, of their own power to move the Nation.”21

16 Eyes on the Prize, American Civil Rights Years. Fighting Back 1957-1962. 42 min. 17 Kennedy, John F. “Radio and Television Report to the Nation on the Situation at the University of

Mississippi.” John F. Kennedy Library and Museum. 22 Feb 2006. <http://www.jfklibrary.net/j093062.htm>.

18 Eyes on the Prize, American Civil Rights Years. Fighting Back 1957-1962. 50 min. 19 Donovan, Kelley Anne. p.40. 20 “James Meredith.” Wikipedia, The Free Encyclopedia. 17 Nov 2005.

<http://en.wikipedia.org/wiki/James_Meredith>. 21 Eyes on the Prize, American Civil Rights Years. Fighting Back 1957-1962. 54 min.

66

Impatience of the Court

One year later, in 1963, after the assassination of President Kennedy, Vice- President

Lyndon B. Johnson succeeded him. Johnson, a former teacher, “believed that equal chances

at education meant equal chances at life.”22 In 1964, ten years after the Brown decision, the

Court became increasingly impatient. “Justice Black complained that in terms of

compliance with Brown “there has been entirely too much deliberation and not enough

speed. The time for mere ‘deliberate speed’ has run out.” 23

This fact was also supported by the decision in the case Griffin v County School Board of

Prince Edward County that was fought for years by African American parents who

challenged the reopening of the integrated schools. The Supreme Court stated that “…the

phrase [with all deliberate speed] can no longer justify denying these Prince Edward

County school children their constitutional rights to an education equal to that afforded by

the public schools in the other parts of Virginia.”24 Justice Black added that “whatever

nonracial grounds might support a State’s allowing a county to abandon public schools, the

object must be a constitutional one, and grounds of race and opposition to desegregation do

not qualify as constitutional.”25

The Court ruled that local authorities had the duty to fund public education and reopen the

schools. Desegregation was slow and the funding was inadequate for several years.

Nevertheless, at long last “the Prince Edward County has been viewed by some as being

successful in their desegregation of its public schools.”26

At the beginning of the school year in 1964 President Lyndon B. Johnson received the

following facts about the slow progress in several states in terms of desegregation: In

Arkansas, there was an increase in the number of desegregated districts, as well as the

22 School, The Story of American Public Education - Episode 3, Separate and Unequal, 1950-1980. Chevy Chase, MD: Stone Latern Films, 2001. 16 min.

23 O’Brien, David M. Constitutional Law and Politics. Civil Rights and Civil Liberties, vol II. New York, W W Norton & Company, 1997. p. 1263.

24 “Griffin v Prince Edward County, 377 U.S. 218 (1964).” Cheverus High School. 17 Feb 2006. <http://www.cheverus.org/upload/Griffin%20v.%20Prince%20Edward%20County.doc>.

25 “Griffin v Prince Edward County (Va).” Brown@50. Howard University School of Law. 15 Feb 2006. <http://www.brownat50.org/brownCases/PostBrownCases/GriffinvPrEdCoVA1964.html>.

26 “What Happened in Prince Edward County?” Longwood University. 27 Jan 2006. <http://www.longwood.edu/news/bvb/princeedward.htm>.

67

number African American students attending previously all white schools. In 1964, 21

districts desegregated, in comparison with 13 districts previous year. The number of

African American students had increased from 390 in 1963 to 870 students in 1964. In

Florida, there were a number of African American students attending all white schools,

estimated at nearly 8,000. In Mississippi, some districts finally integrated after a period of

resistance. In Virginia, there were 25 desegregated districts in 1964, together with Prince

Edward County, which reopened its schools. From the total of 128 districts, 80 were

desegregated, and the number of African Americans attending previously all white schools

was estimated at 6000.27

O’Brien claims that “the implementation of Brown was deliberately slow and uneven” due

to the fact that there was lack of federal leadership. In the decade after Brown, two percent

of African American children were attending southern schools with white students.28

The situation improved somewhat after the adoption of the Civil Rights Act of 1964, which

“banned discrimination on basis of race or ethnicity in all federally funded programs, most

notably public schools.”29 One year later, the Elementary and Secondary Education Act of

1965, which provided four billion dollars to support disadvantaged students, was approved

and signed by President Johnson.30

“The ESEA is the first and largest comprehensive federal education law that provides

substantial monetary funds for kindergarten through twelfth grade education. As

mandated in the act, the funds are authorized for educator's professional development,

instructional materials, resources to support educational programs, and parental

involvement promotion.”31

This was finally a tool that the government could use against schools which refused to

integrate. Some called it a stick-and-carrot policy. The threat of possible withdrawal of

federal funding unless integrating represented the stick and the significant rise in federal

27 O’Brien, David M. p.1264. 28 O’Brien, David M. p.1264. 29 School, The Story of American Public Education - Episode 3, Separate and Unequal, 1950-1980. 16 min. 30 School, The Story of American Public Education - Episode 3, Separate and Unequal, 1950-1980. 18 min. 31 “The Elementary and Secondary Education Act of 1965.” Albuquerque Public Schools and University of

New Mexico. 3 March 2006. <http://si.unm.edu/si2002/SUSAN_A/TIMELINE/TIM_0015.HTM>.

68

funding aimed at helping disadvantaged students represented the carrot. Finally, as the

federal government gained the power possessed the funding to control local schools, the

situation changed. The South was pressed by the President, the Civil Right’s Movement,

and new federal laws; as a result the South finally started to give way.32

Just before the turn of the decade, “a brief per curiam opinion” was delivered by the

Supreme Court in Alexander v. Holmes County Board of Education, ordering the Fifth

Circuit Court of Appeals to “...deny further requests for delay from southern school districts

in ending dual systems of public education.” The Court also emphasized that the

“…standard allowing ‘all deliberate speed’ for desegregation is no longer permissible.”33

Nevertheless, O’Brien describes the message of Alexander, like that of Brown, as

“ambiguous.” Thurgood Marshall, this time as Justice, did not manage to win “…the

unanimity on finally setting a cut off date for school desegregation.” The result was that

still after two decades of implementation and effort for compliance with Brown, some

schools still remained segregated and the judicial branch realized that unless all three

branches cooperated on the implementation, full desegregation was impossible to achieve.34

32School, The Story of American Public Education - Episode 3, Separate and Unequal, 1950-1980. 17 min. 33 O’Brien, David M. p.1265. 34 O’Brien, David M. pp.1265-1266.

69

Conclusion

Throughout the 1970’s the desegregation of American educational institutions continued.

O’Brien claims that over the years “...Brown’s mandate was transformed from one of

ending racially separated dual school systems into a mandate for integrated public schools -

a mandate that some members of the Warren Court would never have agreed to in Brown.”1

There were two cases that should have provided guidance for federal district courts. These

were rulings in Swann v. Charlotte-Mecklenberg Board of Education in 1971, and Miliken

v. Bradley in 1974, both dealing with busing as a tool for school integration. The NAACP

filed the former case on behalf of James Swann and other families challenging the

effectiveness of desegregation in North Carolina. Fifteen years after the Brown decision

African Americans were still attending schools that were either totally or nearly all black.

When the case reached the Supreme Court, the Justices ruled in a unanimous decision that

desegregation has to be achieved in each school of a district, pointing out that busing could

be used in order to establish racially balanced schools.

The first case dealing with segregation in northern schools was Keyes v. School District No.

1, Denver, Colorado in 1973. The Court ruled that the districts were responsible for the

measures that led to segregation, such as purposely building schools in racially segregated

areas. One year after this ruling, Miliken v. Bradley was argued before the Supreme Court

by NAACP lawyers on behalf of African American students from Detroit. The case

contended that white students were concentrated in the suburbs, leaving the inner city

school districts black. The school districts had begun busing among districts to achieve

desegregation. However, the Supreme Court ruled, in a bare majority, that unless there is

clear evidence of a school board’s intention for “de facto” segregation, the desegregation

remedies, such as busing, may not be ordered by lower courts. Four justices, Brennan,

Douglas, Marshal and White, dissented. Justice Marshall wrote his dissent in which he

showed amazing foresight claiming that:

1 O’Brien, David M. Constitutional Law and Politics. p. 1266.

70

“In a short run, it may seem to be the easier course to allow our great metropolitan

areas to be divided up each into two cities - one white and the other black - but it is a

course, I predict, our people will ultimately regret. For unless our children began to

learn together there is little hope that our people will learn to live together.”2

In the period of the 1970’s and 1980’s, there were several cases challenging court-ordered

busing and the Reagan Administration showed quite strong resistance to busing as a tool for

achieving school integration. Over the next few years there were many desegregation cases

decided in the lower federal courts. Gary Orfield, Professor of Education and Social Policy

at Harvard University, writes in “Consequences of a Decade of Resegregation” that

segregation was decreasing until the late 1980’s, but that throughout the 1990’s segregation

gradually increased and therefore “…most of the progress of the previous two decades in

increasing integration was lost.”3

Today, the Brown decision is probably viewed differently by both sides in the

desegregation debate. Some may criticize the ruling, while others may praise it. The truth is

that it really was a beginning of another era in American education, and it did encourage

the movement toward achieving greater equality in Civil rights in the United States. Leon

Friedman, a professor of constitutional law at the Hofstra Law School, commented on

Brown: “It could not solve all the problems created by a hundred years of legal restriction

and societal separation. Indeed, it could not even solve the problem of segregation in

schools. But it is there as a first step, the necessary step.”4

Even though the American educational system attempted to equalize educational

opportunities, the desegregation of schools in the United States is not over yet. Education

has become an essential part of life for all children, regardless of race. Still, even today, the

country has to face the problems connected with racism and prejudice which result from the

coexistence of various ethnic and racial groups in the United States.

2 School, The Story of American Public Education - Episode 3, Separate and Unequal, 1950-1980. MD: Stone

Latern Films, 2001. 46 min. 3 Orfield, Gary. “Consequences of a Decade of Resegregation.” Rethinking Schools Online. 25 Feb 2006.

<http://www.rethinkingschools.org/archive/16_01/Seg161.shtml>. 4 Friedman, Leon. “Brown v. Board of Education.” American RadioWorks. 20 Feb 2006.

<http://americanradioworks.publicradio.org/features/marshall/friedman.html>.

71

Suggestions on methodology

We live in a society that has become multicultural. Even in the Czech Republic it is quite

usual to meet people of various racial and ethnic origins. Even in Czech classroom we can

see from time to time ethnic minorities (e.g. the Roma people, Ukrainian, Vietnamese or

Arabs) that were not here in such numbers before 1989. And gradually we are getting used

to this mixture off all kinds of people from different countries. Therefore I see as very

important to support tolerance towards other cultures in classrooms. Since teaching of

foreign language is not only about the actual grammar and vocabulary, but also about the

socio-cultural background, habits and traditions, it is important that students learn about

other nations and their history in the widest range possible in order to understand them

better.

Teachers can prepare a project for students, in which students can work in pairs, groups or

individually and they can research the issue of segregation in USA from various points of

view. They can view segregation as white southerners, as African Americans or as

foreigners. Then in a lesson, they can present their point of views to the rest of the class.

Another possible approach could be the “Newspaper project.” The groups of students

would be assigned a particular period from history of United States, for instance 1920’s,

1955 and 1970’s. Their task would be to research as much information as possible about the

social conditions, the main events at that time, also how the American society looked like

and whether it was segregated or not. This project would be longer time wise, since it will

take some time for students to do a research and afterwards when they have the needed

information, they would try to create newspapers. They could try to work on the style of the

papers, the design etc. which would leave space for inter-subject relations. While writing

the newspapers, they could learn many things, among others to cooperate and negotiate

what to put in and what leave out, but also from the language point of view, they would

practice writing, grammar and their vocabulary.

The use of video is quite frequently seen in the classrooms. The reason may be that it gives

the students the exact vivid idea and therefore enables them to imagine what it could have

72

been like to live in certain period, to be segregated or discriminated against. There are

several very good documents depicting the fight for equal education, describing the

NAACP effort to desegregate American schools.

One very good document, that I would like to recommend here, is dealing with the issue of

discrimination. This document is called “Class divided,”1 and it shows the experiment made

by Jane Elliot on her classroom in 1968. The teacher gave the opportunity to find out what

it was like to be discriminated against giving the students a chance to try both sides of the

barricade. Even though this experience seems frightening and the students probably did not

enjoy being discriminated against, I am sure that it gave the students the perfect insight and

it was due to this experience they might have changed their point of view. I would say that

even by watching it and not being the part of it in reality make the students think about it

and maybe influence their future actions. For this reason I would recommend it as perfect

study material.

1 A Class Divided. Public Broadcasting Service. 5 Apr 2006. <http://www.pbs.org/wgbh/pages/frontline/shows/divided/etc/friday.html>.

73

Attachment

Timeline (1890-1979)

1890 U.S. population: 62,947,714

Black population: 7,488,676 (11.9%) 1

1896 Plessy v. Ferguson, 163 U.S. 537 New Orleans, Louisiana. The Supreme Court

ruled that “separate but equal” facilities for white and black do not violate the

Fourteenth Amendment. This means that the government officially recognizes

segregation as legal. One of the results is that there is a law passed in Southern

states about racial segregation in schools.

1899 Cumming v. Board of Education of Richmond County, State of Georgia. The

Supreme Court favors the decision of the school board not to keep public black

schools due to financial problems while keeping two public white schools.

1900 U.S. population: 75,994,575

Black population: 8,833,994 (11.6%) 2

1909 The National Association for the Advancement of Colored People (NAACP) is

founded.

1938 Missouri ex rel. Gaines. The Court rules that Missouri has not provided equal

education for African Americans by paying the tuition for schooling in another

state. The state has created a privilege for white students that the Court considered

denial of equal opportunities.

1940 Alston v. School Board of City of Norfolk holds out the order about the salary of

African-American teachers that should be equivalent to those of white teachers.

1 Taylor, Quintard, Jr. “African American History: Timeline.1900-2000.” 20 Oct 2005.

<http://faculty.washington.edu/qtaylor/aa_history_public/aatimeline_1900-2000.htm>. 2 Taylor, Quintard, Jr.

74

1949 Briggs v. Elliott. First of the five cases that was later compounded into Brown v.

Board of Education.

November 1949 Briggs case is dismissed; the NAACP and the plaintiffs give notice of

an appeal, endeavoring to abolish “separate but equal” schools.

1950 Black Population in U S 15,042, 286 (10%) 3

1950 Bolling v. Sharpe, groups of parents tried to sign up black students in the white

school (John Philip Sousa Junior High School, in Washington, D.C). Lawsuit that

was later compounded into Brown v. Board of Education (due to the inapplicability

of the Fourteenth Amendment in district of Columbia, the U.S. Supreme Court filed

a separate verdict on Bolling the same day Brown decision was stated).

The decision in cases Sweat v. Painter and McLaurin v. Oklahoma is delivered.

Both cases concerned higher education. The Court ordered integration of the

facilities because the separate facilities were not equal, therefore denied petitioners’

constitutional right.

February 1951 Brown v. Board of Education is filed in federal district court in Kansas.

Oliver Brown called for equal education for his daughter who had to go to school

two miles away from her house even though there was a white school, Sumner

Elementary, only five blocks away.

May 1951 Davis v. Prince Edward County is filed after a student strike at Robert

R. Moton High School in Farmville, Virginia. This lawsuit was later compounded

into Brown v. Board of Education.

Briggs v. Elliott goes to court in South Carolina.

August 1951 Gebhart v. Belton and Gebhart v. Bulah are two lawsuits entered in

Delaware. African Americans were seeking the admittance to public school for

white pupils only.

3 Taylor, Quintard, Jr.

75

In Kansas there is a decision delivered about the Topeka’s schools. The court takes

decision that the black and white facilities are comparable.

March 1952 Davis v. Prince Edward County. The Case was initiated by students’

protest against segregation in a county in Virginia. The outcome was similar to

South Carolina case, which was the effort to make the black schools equal to white

ones, rather than the desegregation.

April 1952 The decision of the cases Gebhart v. Belton and Gebhart v. Bulah. The

Supreme Court of Delaware decided that African-Americans children involved in

these cases should be accepted to white public school.

October 1952 The hearings of two cases are postponed and they are compounded

together with lawsuits from Delaware, District of Columbia and Virginia.

Significant turning point that changed the school segregation into a national issue.

December 1952 First arguments are taking place in those five cases.

December 1953 Second round of hearings takes place.

May 17, 1954 Brown v. Board of Education of Topeka, the Supreme Court outlaws

segregation in public schools by unanimous agreement that segregated schools

violate 14th Amendment and that the racial segregation is “inherently unequal” and

must be abolished.

1954-1955 After the Brown decision the District o Columbia begins to desegregate

schools. State legislatures in Alabama, Georgia, Mississippi, South Carolina and

Virginia take action rejecting the Supreme Court decision. A number of lawmakers,

mostly from the South, adopt arrangements that sanction school districts

implementing desegregation plans.

May 1955 The Supreme Court issues its second decision on Brown v. Board of

Education that orders school desegregation “with all deliberate speed” without

setting any precise schedule.

76

1957 Little Rock High School incident in Arkansas brings a lot of attention to the civil

right cause. Nine black students are physically prevented from enrolling at the all

white Central White High School by the National guards. President Eisenhower

sends in federal troops to escort those students to make clear that the state

governor, Governor Orval Faubus, cannot use military power to stand out against

the U.S. federal government.

1959 Prince Edward County closes all public schools. The schools remain closed for five

years rather to be open and desegregate. The closing is part of an action called

massive resistance throughout the South.

1962 James Meredith is the first black student to enlist at the University of Mississippi;

he is escorted by U.S. marshals.

1964 The Civil Rights Act is passed in Congress and it suppresses the discrimination in

voting, accommodations, schools and employment.

1965 The Elementary and Secondary Education Act (ESEA) and the Voting Right Act are

ratified.

1967 Thurgood Marshall is appointed to the U.S. Supreme Court as the first African

American by President Lyndon B. Johnson.

1969 The Supreme Court decided that racial segregation in schools should end and that

there is a need for unitary school system.

1971 The Supreme Court rules in case Swann v. Charlotte-Mecklenberg Board of

Education that busing is an acceptable means of desegregation of public schools.

October 1979 Department of Education Organization Act is passed and it finally

ends the period of struggle to establish Cabinet-level Department of Education.4

4 Stallings, D.T. “A Brief History of the United States Department of Education.” Duke University. 10 Nov.

2005. <http://www.pubpol.duke.edu/centers/child/briefs/Brief%20History%20of%20US%20DOE.pdf>.

77

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91

Resume

Ve své diplomové práci jsem se pokusila zachytit vývoj vzdělávání � ernoch� od roku 1890

do roku 1970, ve spojitosti s d� ležitými soudními p� ípady Nejvyššího soudu. Témě� celé

jedno století byla velkým problémem v americkém spole� nosti právě segregace. Já jsem

se zabývala segregací zejména ve vzdělávání, kdy vedle sebe existovaly dva systémy –

„bílý“ a „ � erný“ – p� i � emž oba měly být rovnocenné, ale opak byl pravdou. Kromě mnoha

jiných, zahrnuje p� ípad Plessy v Fergusson, který uzákonil segregaci. Situace se za� ala

měnit právě po rozhodnutí Nejvyššího soudu v p� ípadu Brown v. Board of Education, který

uzákonil, že segregace ve vzdělávání není p� ípustná a je nutno integrovat. Spole� nost tedy

za� ala vytvá� et opat� ení, která měla smě� ovat ke zrušení segregace.

Celá práce je rozdělena do pěti kapitol, které zahrnují období od roku 1890 do roku 1970.

První dvě kapitoly zachycují období segregovaných, ale rovnocenných škol a p� ípady,

které vedly k p� ípadu Brown. T� etí kapitola rozebírá všech pět p� ípad� , které byly později

spojeny do jednoho p� ípadu. Poslední dvě kapitoly se věnují skute� né realizaci integrace a

některých problém� , které nastaly právě v období šedesátých a sedmdesátých let.

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Resume

In this diploma thesis I have attempted to trace the development of the education of African

Americans from 1890 to 1970 in the United States in connection with important decisions

of the U.S. Supreme Court. For almost a century, one of the major issues of American

society has been segregation. I dealt with segregation within education, the actual existence

of two types of schools – “black” and “white” – which were supposed to be equal but never

were. Among many other decisions, the diploma thesis explores the Plessy v Fergusson

decision that confirmed segregation. The situation initiated change after the Supreme Court

decided the major desegregation case of Brown v. Board of Education of Topeka, which

finally overruled Plessy, stating that the doctrine of “separate but equal” is not acceptable in

education. Gradually, America began to consider desegregation methods.

The diploma thesis is divided into five chapters covering the development of African

American education in the United States of America from 1890 to1970. The first two

chapters deal with the period of “separate but equal” doctrine and cases that led to Brown.

Third chapter analyzes all five cases that were later compounded into Brown. The last two

chapters deal with the era of the 1960’s and 1970’s, the actual implementation of Brown

and the problems that occurred.