Thurgood Marshall (31 page)

M
ARSHALL WAS STUCK
. Since 1938, when Charles Houston had left the NAACP’s national office, Marshall had put the problem of segregated schools on the back burner. He was preoccupied with race riots, highly publicized criminal cases, and suits challenging segregation in housing and transportation. But when Houston got Marshall on the phone or came through New York, he continued to complain that his former student was not doing enough to crush the heart of racial separation.

Marshall did see schools as the key to ending segregation in the country. If children could sit in classes together not only would all children get to know people of other races at an early age but they would have the benefit of a first-rate education. Until now Marshall had been content to work through the strategy set forth in the 1930s Margold plan, which called for going to court to insist on equalizing separate black and white facilities. The plan was to get the school districts to concede that they didn’t have the money to equalize and thus force them to consolidate and integrate their students.

Houston and Marshall had started the process on the law school level. But it had proved time consuming and expensive—and it hadn’t led to widespread desegregation of law schools. To break the logjam and put some new energy into NAACP legal action, Marshall called an April 1946 meeting in Atlanta with lawyers from the South who had worked on local NAACP cases. The men, including A. P. Tureaud from New Orleans and Arthur Shores from Birmingham, all had private practices but
were loyal to Marshall. He held a similar brainstorming meeting in New York with nationally known law professors.

Marshall later told
Time
magazine that these get-togethers stirred a new sense of conviction that schools could be integrated: “Somebody at the [lawyers’] meeting said, while it was true that a lot of us might die without ever seeing the goal realized, we were going to have to change directions if our children weren’t going to die as black bastards too,” Marshall said. “So we decided to make segregation itself our target.”
¹

Marshall and the lawyers agreed to bombard eleven southern states and the District of Columbia with simultaneous lawsuits demanding equal educational facilities for existing Jim Crow schools. In addition to opening fire on several fronts, for the first time Marshall’s legal team agreed to take on cases where black students demanded integration. The new idea was to go for “the whole hog,” by arguing that segregated schools were illegal even if they were equal.

However, the basis from which Marshall’s team would challenge segregated schools remained the
Gaines
case. The Supreme Court had ruled that since Missouri did not have a law school for blacks, it could not equalize its facilities and had to admit Gaines to the all-white state law school. To make use of that precedent, Marshall planned to present similar cases and then ask for integration. Now it was only a matter of finding plaintiffs who were willing to sue and, unlike Gaines, willing to stay around and take the flak.

Lulu White, the high-energy Houston-based director of Texas NAACP branches, wrote to her top local lawyer, W. J. Durham, that she had found a plaintiff willing to challenge the University of Texas’s whites-only admission policy. In the midst of a stirring sermon, White had pleaded for someone to stand up and challenge segregation at the state-funded law school. A balding, thirty-three-year-old postman and war veteran, Heman Marion Sweatt, stood before the Houston congregation and in a trembling voice said he was willing to go through with it.

Sweatt was a graduate of Wiley College in Marshall, Texas, and he had done a year of graduate work at the University of Michigan. During his time at Michigan he had become friendly with the infamous Lloyd Gaines, who had been studying there while waiting for the Supreme Court to rule on his right to attend the University of Missouri Law School.
²

Sweatt later wrote to Walter White that, unlike Gaines, he felt no pressure from having his name on a lawsuit challenging segregation.
Sweatt proudly declared he wouldn’t break under the scrutiny and frustration that came with a major lawsuit because he did not suffer from Gaines’s “egoistic inflation” and “personality weaknesses.” The postal worker said he was also aware that the NAACP’s struggle had implications for future generations of black students: “I am seriously interested in contributing to the earliest possible ending of the system [of school segregation].”
³

Walter White was happy that this defendant seemed so mature. But White still had problems with the Texan. Sweatt had also sent him a rambling five-page letter in which he declared that he was a Communist sympathizer. Alarmed, White talked with Marshall. But they decided that despite his Communist inclinations, the NAACP needed Sweatt if the case were to go forward.
⁴

To get the case going, Marshall had Sweatt apply to the University of Texas Law School. University authorities acknowledged that Sweatt was qualified to earn admission except for one thing—he was black. Sweatt immediately filed suit. Marshall, who still had strong support in Texas after his victory in the white primary case, used his relationships to develop financial and emotional support for the case. Maceo Smith, the influential head of the Texas NAACP, helped to raise money for the case and build statewide support among black Texans. Smith later said Marshall “practically made his home in Texas by that time because they had such fertile ground here and [so many] people to work with.”
⁵

After an initial finding that the University of Texas Law School would have to be integrated because there was no law school for blacks, the courts gave Texas officials six months to begin a Jim Crow law school. Marshall had no choice but to wait things out. But in that time he went to neighboring Oklahoma and began work on a case in which the state law school had similarly refused to admit a black woman.

* * *

Marshall got involved in the Oklahoma case after another excited phone call from the NAACP board member Roscoe Dunjee, the editor of the
Oklahoma Black Dispatch
, who had brought Marshall into the
Lyons
murder case a few years earlier. This time Dunjee had directed a young woman, Ada Lois Sipuel, to apply to the all-white University of Oklahoma Law School. He wanted to force a confrontation that he hoped would generate headlines and break open the university’s doors to black students.

The NAACP hired Amos T. Hall as their local counsel and filed suit against the university. But the district court threw out the case. Under the separate-but-equal law, the judge said Sipuel would be entitled to a good law school but not admission to the all-white University of Oklahoma. Hall consulted with Marshall before filing an appeal to Oklahoma’s highest court.

In April 1947, Marshall argued Sipuel’s appeal before the Oklahoma Supreme Court. He lost. The next step was to appeal to the U.S. Supreme Court, which ruled in January 1948 in favor of Sipuel. Dunjee printed screaming headlines in his paper and published stories that said the Supreme Court’s decision was the final victory. Marshall and Dunjee expected Sipuel to be admitted to the law school in the spring of 1948.

Oklahoma state officials, however, responded with a surprise. The State Board of Regents created a new school—Langston Law School—in the state capitol building. They appointed three law professors and sent a letter instructing Sipuel to apply to the new Jim Crow school. She called Marshall, who told her, “Forget it, Ada Lois, don’t even show up in the same block of that law school.”

Marshall immediately petitioned the Supreme Court to order the University of Oklahoma to admit Sipuel. But in a 7–2 decision the high court ruled that since Oklahoma now had a separate law school there were new issues and the case had to be heard again in the lower courts. Marshall was deflated by the ruling; he told Sipuel and others that the justices had chickened out. Now the NAACP would have to sue to prove the obvious—that the newly created Langston School of Law was inferior to the state law school.

Marshall went back to Oklahoma accompanied by several black lawyers from around the country, including James Nabrit and Robert Ming, as well as his New York secretary, Alice Stovall. No hotel in Norman, Oklahoma, the site of the trial, accepted black guests. So Marshall’s gang stayed in the homes of black NAACP members in Oklahoma City, some forty miles away.

Despite working long hours preparing for the trial, Marshall found time to party. Liquor was not sold in the state, but friends pulled strings to keep him supplied. “We had a good rapport with the police department,” said Jimmy Stewart, the president of the Oklahoma City branch of the NAACP. “We’d just call up there and tell them, ‘Our NAACP lawyer is in town.’ Next thing we saw coming through the door was the guys with whole cases of liquor from the bootleggers.”
⁶

Joining Marshall in his late-night strategy sessions were some of the top legal experts in the nation, including Erwin Griswold, the dean of Harvard Law School, as well as the deans of Pennsylvania, Columbia, and Yale law schools. They would debate the law over bottomless glasses of whiskey before taking off at dawn for the trial in Norman. Constance Baker Motley, who was on the NAACP legal staff, said Marshall was able to draw these high-powered legal minds at no charge because of his magnetic personality. “They knew they were gonna be in a relaxed atmosphere with somebody that was congenial, full of stories. It was an optimistic sort of thing,” Motley said.
⁷

At the trial the law school deans unanimously described the new school as a fraud. Walter Gellhorn, of Columbia Law School, one of the expert witnesses supporting the NAACP, saw the argument Marshall presented in the Oklahoma case as the breakthrough in the association’s challenge to school segregation. “The first time I heard of the possibility of making an argument against separation as such … [was] in the case of
Sipuel.”

The Jim Crow school actually had a better library than the university’s law school; it was the law library for the state supreme court. Overall, the quality of Langston’s facilities were never in doubt. As a result, Marshall had to focus his argument on the disadvantage to black people that came from being educated apart from the others who were to be in their profession.
⁸

For that opening day in court, Marshall had planned for every contingency except one. There was no restaurant in Norman that served lunch to black people and no time to drive anywhere during the noon recess. So Marshall had to organize a strategy for feeding his legal team. In the hall he saw a penny peanut machine. He rushed back into the courtroom and got all the hungry faces to empty the change in their pockets. A few minutes later he came back with two fists full of peanuts and began portioning out the nuts to quiet growling stomachs. When everyone had something to eat, he turned to Sipuel and gave her marching orders. “I’m going to put you in charge of baloney sandwiches; don’t you let this happen no more,” he told her. A few days later Dunjee arranged for a downtown restaurant to open a segregated section.
⁹

The highlight of the trial came when Marshall cross-examined the dean of the Jim Crow school. The NAACP lawyer loudly dragged his chair next to the witness’s chair. Leaning forward and holding a copy of the new school’s catalog, Marshall began a series of rapid-fire questions.
“What kind of bulletin does your Langston Law School publish?” The dean, looking embarrassed, said the school didn’t have a bulletin. Waving the catalog in the air, Marshall said, “The catalog says you have one. What did you do, lie?” Finally, after forty minutes of browbeating, Marshall’s cocounsel Jim Nabrit called out, “Turn him loose, Thurgood, let him go.” The tense courtroom erupted in laughter.

Before the trial ended the judge called Marshall into his chambers and made an unusual confession. He said the expert testimony and Marshall’s revealing questioning had “opened [his] eyes,” to the wrong of school segregation. Then the judge went out, got back on the bench, and ruled against Sipuel and Marshall.

But before Marshall could appeal to Oklahoma’s high court, the university decided to short-circuit the legal process. They admitted Sipuel, as well as several other black graduate students who had been pressing for admission. The sympathetic university president had convinced the state attorney general to let Sipuel in, but she had to sit in the back of the classroom. Not wanting to risk having higher courts rule that the law school be completely integrated, the attorney general agreed.

Sipuel was warmly greeted by the people in the law school, although she started classes two weeks late. “I wouldn’t have made it without the white students,” she said. “The fellows in the law school came over and said, ‘Ada, we’re so glad you finally got in, we know you’re behind, but we’re going to help you. We’re going to loan you our books, we’re going to loan you our notes, we’re going to tutor you until you can catch up with us,’ and they did that and that was the only way I made it.” However, she was still not treated as an equal by school officials. She had to sit four rows behind the rest of the class, with a big sign overhead that read COLORED. But by Sipuel’s second semester all the “colored” signs in the law school were taken down. “I just moved down to the first row,” she said.

* * *

At the end of his legal work in Oklahoma, Marshall became distressed over reports from the New York office that the NAACP had emptied its treasury to litigate the desegregation cases. To refill the coffers Dunjee arranged some speeches for Marshall. Amos T. Hall, the NAACP lawyer from Tulsa, came up with another idea to raise money. Hall was more famous for being the head of the local Prince Hall Masons than for being a lawyer. The Prince Hall Masons were an all-black group founded in
Boston in 1784 by a former slave named Prince Hall. Operating separately from white Masonry, the black Masons spread around the nation after the Civil War as a select fraternity for newly freed black men.