Thurgood Marshall (36 page)

The case opened before a three-judge panel on June 25, 1951, with Carter and Greenberg sitting with local NAACP lawyers at the plaintiffs’ table. There was no crowd in this courtroom; the case did not generate the passion of school segregation suits in the South.

Black parents gave simple, compelling testimony about how their children had to take long trips to segregated schools because they could not go to nearby all-white schools. One parent testified that Topeka’s black teachers and black schools were good but “my children are craving light.… The entire colored race is craving light and the only way to reach the light is to start our children [black and white] together in their infancy and they come up together.”
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Under Marshall’s instructions Greenberg brought in expert witnesses to testify that segregation always meant inequality. Hugh Speer, a professor of education at the University of Kansas City, said there were significant differences in the curricula at Topeka’s black and white schools, even if the facilities were comparable. The personalities of black children, their social interests, and their friends were all hurt by segregated
schools. “If the colored children are denied the experience in school of associating with white children … then the colored child’s curriculum is being greatly curtailed.”
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Lester Goodell, the school board’s attorney, responded that racial segregation in schools was within the law under separate but equal. He dismissed Speer’s testimony about the psychological impact of segregation on the young as not relevant.

The three-judge panel issued a strong opinion that at first glance seemed to support the NAACP: “Segregation of white and colored children in public schools has a detrimental effect upon the colored children,” the judges wrote. “The impact is greater when it has the sanction of the law.… Segregation has a tendency to retard the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racially integrated school system.”

But despite that position the judges somehow ruled unanimously against the NAACP. They said they had no choice since the law of the land, as set by the Supreme Court in
Plessy
, called only for equal schools for black and white children, not for integrated schools.
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After the Topeka case ended, Carter wrote an upbeat memo to Marshall saying the trial had gone well and there was a good basis for a Supreme Court appeal. The “record in this case is actually better than the one in South Carolina,” he wrote, adding that he expected the two cases to reach the high court at the same time and possibly be consolidated.
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Meanwhile, Marshall was keeping tabs on several other cases with the potential to join the South Carolina and Kansas cases before the Supreme Court. Spott Robinson and Oliver Hill, two Howard Law School graduates who formed a Richmond law firm, remained close friends with Marshall. Both men had attended the NAACP lawyers’ meetings to discuss new strategies for dealing with school segregation, and Robinson had been with Marshall at the South Carolina case. With Marshall’s encouragement Hill and Robinson were on the lookout for a good case from Virginia, capital of the Confederacy, and they traveled from one local NAACP meeting to another to discuss the fight against school segregation.

While Hill and Robinson were trying to select a county for a case that fit with Marshall’s efforts, a sixteen-year-old girl from Farmville, Virginia, called them to say she had started a black student walkout to protest segregated schools.

The two lanky black lawyers from Richmond made the short car ride
south to Prince Edward County. At the First Baptist Church, they met with Barbara Johns and a group of black students who took part in her walkout. “The students in Farmville had already gone on strike,” Robinson recalled. “They got 456 students involved in this, and they organized it, got everything ready. And didn’t tell their parents or anybody.”

The high school students made a deep impression on Hill. “The kids were so well disciplined and had such high morale and expressed themselves so well. We didn’t have the nerve to break their hearts,” he said. “We didn’t pick the Prince Edward County case, it just developed, and we just went to their rescue.”

But just as judges had ruled against the NAACP in South Carolina and Kansas, the federal judges in the Virginia case said the law allowed the state to keep separate schools for black and white children. Although the schools were unequal, the judges said in their written opinion, they found “no harm or injury to either race—This ends our inquiry.”
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While the Virginia case was being argued, Marshall was distracted and upset. June Shagaloff, a pretty twenty-three-year-old Jewish woman who had come to work as an assistant to Marshall, had been arrested and jailed. She had gone to Cairo, Illinois, at Marshall’s direction to help the local NAACP branch negotiate a voluntary plan for school integration with the all-white school board. The idea was to see if Shagaloff could help the board and the NAACP avoid a time-consuming, expensive legal fight.

Illinois, unlike its neighbors to the south, did not have state laws requiring school segregation. But schools in the southern part of Illinois were segregated as a matter of local custom, and they were as hard-line as anywhere in the South. Shagaloff quickly found Cairo a “very hostile” place. Marshall had arranged for his assistant to stay in the home of an elderly black woman and for two black men to take turns guarding her.

But constant threats led Shagaloff to fear for her safety, and her guards taught her how to shoot a gun. Just as Shagaloff began to make headway with the school board, the home of a prominent NAACP member was bombed. In a strange turn of events a few days later, seven local NAACP officials, as well as Shagaloff, were arrested on charges of conspiracy to harm children by creating a volatile situation in the schools.

The black NAACP members were set free on $1,000 bond shortly after their arrest, but Shagaloff remained in jail since she had no local
property to offer. Although the black residents of Cairo volunteered their homes as bond for her, the police chief refused. Association leaders in Cairo were hysterical with fear over what might happen to her in jail, and they made frantic long-distance phone calls to Marshall. After telephoning the FBI and demanding protection for Shagaloff, Marshall immediately flew to Cairo.

A day and one terrifying night after her arrest, a downcast and scared Shagaloff brightened when she saw Marshall stride into the jail. “The police chief had his feet up on the desk,” she recalled. “He had a triple belly over his belt—a fat, slobby, uneducated man with this big, stubby cigar. He looked like a caricature from a Grade C movie. Mr. Marshall took a straight chair and straddled it, had his arms wrapped around the back, and just chewed the fat with this police chief. You would think they were old buddies. And that went on for half an hour, forty-five minutes. And finally Mr. Marshall said, ‘How about that man’s bond that he put up for her, pretty good isn’t it?’ And the police chief said, ‘I guess so.’ ” A few minutes later the chief got up and unlocked the cell door, releasing Shagaloff. The charges were later dropped.

Shagaloff’s efforts eventually paid off. “We got the schools desegregated in Cairo, in Carbondale—a radius of about thirty miles.” She recalled.
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Even as Marshall had to put out fires around the country, his strategy for school desegregation was beginning to bear fruit. The Supreme Court agreed to review Marshall’s appeals in the South Carolina and Kansas cases. When the court opened its new session in the fall of 1952, the appeal of the Virginia case was added to its docket. Marshall was thrilled; they would be heard together, and the constitutionality of segregation would have to be addressed directly. With cases coming from different parts of the country, and with a variety of scenarios—some where schools for black and white children were already equal and some where they were grossly unequal—the court’s ruling would apply nationwide.

The addition of the Virginia case, however, led the high court to delay the arguments, until December 1952, which caused another surprise development. The court asked for two more cases—one from Washington, D.C., and another from Delaware—to be presented at the same time.

The District of Columbia case was atypical. The nation’s capital was not a state, and the Fourteenth Amendment requiring the states to grant equal rights to all citizens did not apply. Washington’s school board had
to be challenged to integrate schools under the Fifth Amendment’s due process clause. The D.C. case had started back in 1948 under Charles Houston, but when he fell ill, the Howard law professor James Nabrit agreed to pick it up. The case was waiting to be heard by an appellate court when the Supreme Court asked that it be added to its docket.

The high court soon became interested in a fifth case from Wilmington, Delaware. It was being handled by a local NAACP lawyer, Louis Redding, with the assistance of Jack Greenberg. What was odd about the Delaware case was that the NAACP had not appealed it to the Supreme Court. The state of Delaware was appealing a lower court order that black students be integrated into previously all-white schools.

Associate Justice Tom Clark later said the decision to bring together all five cases—and to seek out the Delaware and District of Columbia cases—was done out of concern for the court’s image. “We felt it was much better to have representative cases from different parts of the country,” he said in an interview after leaving the Court. “If we got a number of states involved, especially some of them that were historically more liberal towards blacks, it would help [in not making it an antisouthern case].… It would give us broader coverage.”
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The cases were ready. The Court was ready to hear the argument. After more than a hundred years of protests and meetings and plans, the NAACP had the pieces in place. Now Thurgood Marshall had to prepare his legal team to argue the biggest case of their lives, one that could revolutionize the heart of twentieth-century race relations.

Case of the Century

T
HE YEAR LEADING UP TO
the oral arguments before the Supreme Court on school segregation took a heavy toll on forty-four-year-old Thurgood Marshall. His eyes became puffy from lack of sleep and too many cigarettes. He put on weight. And he was grumpier than ever—now snapping at secretaries who were used to his good humor. Marshall fixated on the school segregation case, and everything else, including his wife, took a backseat.

No one had to tell him this was the biggest case of his career. This case could change the face of American society. Marshall began calling conferences of the brightest minds from around the nation to discuss every angle of the case. Lawyers, law professors, sociologists, anthropologists, and even psychologists, notably Ken Clark, all came to Marshall’s office to discuss how to convince the Court that separate but equal was a devastating burden to black people, nothing more than racism.

Although everyone was united on the idea of directly challenging segregation, the NAACP team split over whether to use social science data to make the case before the high court. Spott Robinson and a young, Harvard-educated Philadelphia lawyer, Bill Coleman, led the fight against anything but a serious, strictly legal approach. “We’ll absolutely lose. It’s weak, it’s a weak legal decision, the justices won’t buy it, they won’t go for it,” said one of the lawyers, pounding the wooden table in the conference room.

Marshall had to act as a peacemaker when the lawyers and the social
scientists began sniping. But even as he tried to smooth out the tensions, some of the lawyers got mad at Marshall for giving any credence to the work of the social theorists. Finally, Marshall had to lay down the law. He had become a fan of Ken Clark’s studies—the psychologists, the historians, and the political scientists were going to stay.

Charles Black, then a Columbia law professor and adviser to the NAACP, described Marshall’s manner as direct but never heavy-handed: “You had to be impressed most by the firmness with which he was in charge. He could be the next thing to autocratic, but he did it always in a nice way.”
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Marshall’s resolve to use sociological studies in the schools cases was rooted in his life experience—as the son of a bright man who never got an education and never became more than a waiter. Marshall saw the same trap still catching many young black people. They were defeated at a young age by limits they accepted about their talents and their right to an education.

When Marshall spoke to NAACP youth groups and asked the youngsters what they were going to do when they grew up, the kids answered: “I’m going to be a good butler” or “I hope I might be able to get in the post office.” He thought to himself, That was it for them. He understood he was watching their lives get shut down before they were even grown up. He wanted to unravel this rope that was choking so many.
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