Justice for All (61 page)

After a trial in June 1951, the three-judge panel overseeing the case unanimously upheld Topeka's segregation law and concluded that the facilities for white and black students were sufficiently equal to be constitutional under the separate-but-equal doctrine. Within the ruling against the plaintiffs, however, was a finding by the Court that would come to play an important role in the ultimate outcome. School segregation, the Court concluded,

 

The Kansas court could not bring itself to read away
Plessy;
the case was, after all, the work of the United States Supreme Court and still stood as the law. But it had come a long way from accepting that segregation bore no indignity other than what blacks read into it. In Kansas, the Court had announced it was objectively bad for blacks. A pillar of the sociological reasoning in
Plessy
fell quietly.

Delaware, although also a border state, practiced a less benign, more nakedly venal racism. There, a white woman named Sarah Bulah fumed that the bus for white boys and girls would pass her house every day without stopping, while Sarah had to drive her adopted little girl, Shirley, two miles to the Negro school. Sarah Bulah complained, was rebuffed, and sued. All of that was grindingly predictable, but the Delaware litigation was assigned to a decidedly atypical judge named Collins Seitz. He visited the white and Negro schools and examined for himself the facilities. The white school, No. 29, had lush grounds, with pines and roses, a nurse's office, and an auditorium. At Shirley Bulah's school, the urinals were broken; there was no auditorium or nurse's office, just a first-aid kit for emergencies.
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Like the Kansas court, Seitz could not rule that segregation itself was unconstitutional. He could and did find, however, that the state had failed to provide equal educational facilities to its Negroes, and he too found that segregation was itself harmful: “I conclude from the testimony that in our Delaware society, State-imposed segregation in education itself results in the Negro children, as a class, receiving educational opportunities which are substantially inferior to those available to white children otherwise similarly situated. ”
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Having registered those findings, Seitz then shockingly ordered the white schools integrated. Of the cases that came to the Supreme Court under the banner of
Brown
, only the one from Delaware was appealed by the government.

Kansas and Delaware lay on the periphery of the Old South. South Carolina and Virginia were its political and cultural center. Rural Clarendon County in South Carolina was the testing ground for the NAACP's attack on segregation in a decidedly inhospitable forum, a little sharecropper community well below what Marshall playfully but ominously called the “Smith-and-Wesson line.” Clarendon County was overwhelmingly black—approximately 70 percent of its residents—so any desegregation of that district necessarily would place white children in the minority of an integrated district, a prospect that many Southerners found all but unimaginable. Even equalizing facilities was anathema in Clarendon. Black children attended schools in shacks, often without electricity or plumbing. In a district with three times as many black children as white children, the district spent $282,000 to educate its blacks and $395,000 to educate its whites.
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Preserving that inequity was high on the list of Clarendon County's white priorities, and blacks signed the lawsuit at their peril, but did so anyway. When it was filed, Harry Briggs, a local mechanic, war veteran, and father of five children, topped the alphabetical listing of plaintiffs. Briggs promptly lost his job—the service station where he worked was owned by the mayor—and his wife lost hers at a local motel.
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Despite threats and punishments, the case moved forward under Marshall's personal direction and with the prodding of a rebellious local judge, J. Waties Waring, once a member of South Carolina's political and social establishment but by the early 1950s a renegade whose divorce had ostracized him from his former peers. So itching for a fight was Waring that when Marshall initially left the door open for Waring to rule against Clarendon's schools by finding the black and white schools unequal rather than by attacking segregation itself, Waring rejected the pleading and urged Marshall to redraft it as a direct challenge. Chastened, Marshall did, and then the case was put before a three-judge panel. Waring could deliver only his own vote, however, so when the Briggs case made its way to the Supreme Court, it did so on appeal of a lower-court rejection of the NAACP lawsuit.

Virginia's case was different from South Carolina's in at least one important respect: it was started not by parents fearful for their children but by children themselves. On the morning of April 23, 1951, black students at Robert R. Moton High School in Prince Edward County went on strike to protest overcrowding and leaky, badly heated buildings that had been erected as temporary facilities but then had been allowed to stay. The students were led by a sixteen-year-old girl, Barbara Johns, whose charismatic uncle, Vernon Johns, was an early and inspirational advocate of desegregation on moral and religious grounds. Barbara learned her uncle's lessons, and added to it a resourceful mischief of her own. Eager to rouse students but not to implicate their sympathetic principal, she or one of her friends placed a call to the principal that morning to say that two students were in trouble with the police downtown. He rushed to their aid, not realizing he'd been tricked. Then Barbara Johns had notes delivered to each classroom informing teachers and students that they were wanted at an assembly. Puzzled teachers arrived with their classes, and the adults were told to leave. When they resisted, young Barbara Johns rapped her shoe and shouted, “I want you all out of here!” They left the room.
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This was not the NAACP's way to launch a lawsuit, and the students' demands—mainly for better buildings—did not conform to the organization's newly adopted pledge to attack segregation directly rather than pressing merely for improved conditions at segregated schools. But when the students wrote to the NAACP to ask for help, the organization sent along Oliver Hill and Spottswood Robinson, two Howard graduates and veterans of the school equalization lawsuits. The lawyers told the students that they would file suit if the students would agree to press for ending segregation, if the students would end their strike, and if their parents would join in the litigation. The matter was put before the community on May 3, when students and parents gathered in church. There, Barbara Johns addressed her friends, her parents, her neighbors. After she finished, Reverend Francis Griffin spoke for all: “Anybody who would not back these children after they stepped out on a limb is not a man,” he said. The community approved the lawsuit, and it was filed on May 23, 1951.
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It took the Virginia court just one week to rule against the plaintiffs from Prince Edward County, in the heart of old Virginia, and though “frankness required admission” that at least the buildings at Moton High School required improvement, the court declined even to issue an injunction to assure that. Instead, the court accepted the school district's promise that improvements were on the way. In seventeen other counties and eight cities, it concluded, black schools were “better” than white ones. The court refused to order desegregation of any type at any school.
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The last of the cases that found their way under the popular banner of
Brown
arose in the District of Columbia.
Bolling v. Sharpe
was the only one to work its way through the trial courts without significant input from the NAACP, and it was distinguished from the others by the applicable law. Congress itself had sanctioned segregated schooling in the same period that it adopted the Fourteenth Amendment, so any analysis of its intentions for the District was complicated for the plaintiffs by the clear evidence of Congress's actions. Moreover, because the Fourteenth Amendment established “equal protection” only for residents of the states, it did not reach the District, which lay under federal jurisdiction. Different constitutional principles thus applied to the issues in the District case.

And yet while bound by different law, the black students of the nation's capital experienced conditions that were woefully familiar to those of their counterparts across the Deep and peripheral South. Overcrowding was common, and facilities were in disrepair. Like Barbara Johns and the Moton High School students, some children in the District struck to protest. In this case, it was a junior high school whose halls suddenly went quiet in the face of youthful unrest. Their parents sued the school board, which refused to budge even as the strike dragged on. That lawsuit, filed by Marshall's old mentor, Charles Houston, initially sought improved conditions. It was rejected. After the Supreme Court handed down its decisions in
Sweatt
and
McLaurin,
eleven black students attempted in the fall of 1950 to enroll in the white school. They were denied again, and this time their lawsuit sought not to equalize conditions but to gain them admittance into an integrated school. They were represented now by a new lawyer, James Nabrit, who replaced Houston. Charles Houston spent decades in the urgent struggle to achieve equality for his people. He yearned to hear the United States Supreme Court command that equality, and he trained a generation of lawyers to pursue it. But Houston would not live to see the day he imagined his whole adult life. He died in 1949.

As those five cases worked their way through their appeals, the justices of the United States Supreme Court knew that history was bearing down on them. They dithered as long as they could, uncomfortable with the notion of being backed into the corner of a direct challenge to separate-but-equal. By 1952, the time for stalling had run out. On June 9, 1952, the justices voted to hear
Brown
and
Briggs,
and then later consolidated those cases with the remaining three. Argument was set for December 1952, conveniently after the November elections.
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The arguments that day—and the briefs that set the stage for them—were divided by the individual cases, with
Brown
going first, followed by
Briggs
and then the rest. Each of the individual presentations had their moments, but the marquee lawyering matchup came in
Briggs,
the South Carolina litigation. There, for the plaintiffs, appeared Thurgood Marshall, fluent in his case and his area, disarmingly folksy, penetratingly smart. For the state of South Carolina appeared an even more familiar face to the justices. John W. Davis was arguably the most esteemed lawyer in America. No man had argued more cases before the United States Supreme Court. So wide was his fame and great his renown that the Democratic Party nominated him for president in 1924. Davis was staid and careful, a brilliant orator, a dignified relic of the antebellum South. In 1952, Davis was nearing the end of his extraordinary career, and his life and work were formed in the era of Jim Crow. Raised in that world and steeped in its customs, Davis could not fathom life apart from it. He accepted South Carolina's invitation to defend segregation in schools and ultimately worked without a fee. In one respect, Davis and his adversary had a heritage in common: Segregation was Thurgood Marshall's world, too. But far from romanticizing it, he felt its insult, the presumption that assumed his inferiority to men such as Davis. Marshall was younger and less tested than Davis. But Marshall came to Court with the strong sense that history was to be his. And he, like Davis, arrived as both advocate and symbol—of an idea, of a time, and of a place.

On December 9, 1952, Marshall and Davis waited their turns as the session began and the lawyers from the Topeka litigation started off. Then, just after 3:15 P.M., Marshall took the lectern. Exquisitely prepared by long nights of brainstorming with his colleagues in little hotel rooms with plenty of Jack Daniel's, Marshall seemed at ease as he made his case and fended off the questions of the justices, particularly the inquiring Frankfurter, famous for shredding the incomplete arguments of lawyers just as he had once done to those of his students. Nor did Marshall shrink from wit. When Justice Jackson inquired as to whether Native Americans might find comfort in Marshall's desegregation claims for blacks and suggested that Marshall might want to bring some lawsuits on their behalf as well, the lawyer drolly replied, “I have a full load now, Mr. Justice.”
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Davis was not easily outdone. The justices knew him well and respected him. They listened intently as he laid out his argument, barely interrupting him. When reminded by Justice Burton that the Constitution is “a living document” and asked whether changed circumstances did not compel new readings of its mandates, Davis responded as best he could: “ [C] ircumstances may bring new facts within the purview of the constitutional provision,” he said, “but they do not alter, expand or change the language that the framers of the Constitution have employed.”
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The framers of the Fourteenth Amendment never contemplated that it would force integrated schools, Davis argued. No change in sociology could undermine that fact, no new customs or ideas altered the written text or the intentions of those who wrote. No act by the Supreme Court could justify rewriting the text that bound their decisions. After he and the other lawyers had finished their arguments, Davis was overheard to say to a colleague that he believed, based on the presentations and the questions of the justices, that his side was likely to win, “five to four, or maybe six to three.”
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