Reviews

Thurgood Marshall:
Warrior at the Bar, Rebel on the Bench
by Michael D. Davis & Hunter R. Clark, originally published in 1992.

This ebook edition is the first half of the 1992 print edition. It covers Thurgood Marshall’s youth, education, and the legal strategies he used, and the cases he argued leading up to the Brown v. Board of Education decision. The reviews below are from the print edition.

“Michael D. Davis and Hunter R. Clark offer a masterfully written tale of an American legend.” — Gannett News Service

“Filled with the same fire, passion and humor that drove Marshall’s life, Thurgood Marshall is a revealing portrait of a pioneering lawyer.” —National Black Review

“Well-written, informative and lively.” —People

“This important work, ably chronicled by Davis and Clark, is impressive.
Highly recommended.” —Library Journal

“As a guide to the legal struggles of this American leader, this book is written clearly and with obvious affection and admiration for Marshall, and the law for which he fought.” —Booklist

“Michael Davis and Hunter Clark have crafted a thoughtful, carefully researched and focused biography.” —USA Today

“I highly recommend Thurgood Marshall by Mike Davis and Hunter Clark. This impressive book captures the sweeping drama and courageous struggles that have filled Thurgood Marshall’s life and career. The story of Justice Marshall is that of one of the greatest Americans in the twentieth century. Davis and Clark provide a compelling portrait of Marshall’s immense humanity and integrity in this fine biography.” —Congressman John Lewis of Atlanta.

“Thurgood Marshall is a giant of a man at a time when giants are scarce and desperately needed. This wonderful biography takes his measure.” —(Rev.) Theodore M. Hesburgh, C.S.C., President Emeritus, University of Notre Dame

“Davis and Clark have given us an engagingly written and conscientiously researched biography of a twentieth-century icon. It should be widely read and much discussed by all who care about the large, principled issues Justice Marshalls’ life embodies.” —David Levering Lewis, author of W. E. B. Dubois: Biography of a Race

“Michael B. Davis and Hunter R. Clark have written an interesting and informative biography of Supreme Court Justice Thurgood Marshall directed toward a general audience. The current work, with its fluid, readable style, reflects the authors’ backgrounds in the popular press, where both have published extensively.”--Mississippi Quarterly

Thurgood Marshall

From His Early Years to Brown

Michael D. Davis and Hunter R. Clark

Published by Ebooks for Students, Ltd.

Copyright and Reability Level

The readability level from a sample of chapters using the Flesch-Kincaid analysis in Microsoft Word is 10.1.

Copyright 1992 by Hunter R. Clark and the estate of Michael D. Davis.

All rights reserved. No part of this book may be reproduced in any manner without the express written consent of the publisher, except for use in the case of brief excerpts in critical reviews or articles. This ebook edition is being distributed at no charge with the permission of the writer.

Published 2012 by Ebooks for Students, Ltd. in the United States of America.

ISBN: 978-0-9850345-9-7

Visit our website for more free titles at www.ebooksforstudents.org.

Dedication

This book is dedicated to the memory of Michael Demond Davis (1939-2003), my friend and co-author of Thurgood Marshall: Warrior at the Bar, Rebel on the Bench (1992, 1994), upon which this epublication is based. Scripture admonishes us, “From those to whom much is given, much is expected.” (Luke 12:48) Mike Davis sure lived up to that one in the pursuit of justice and human rights.

Contents

Reviews

Dedication

Introduction

Chapter 1: A Rumpled Bear of a Man

Chapter 2: A Cunning and Powerful Strategist

Chapter 3: Growing Up in Baltimore

Chapter 4: Howard Law School and the Social Engineers

Chapter 5: A Racist Capital

Chapter 6: Justice on a Shoestring

Chapter 7: An Ethiop Among the Aryans

Chapter 8: Thurgood Comes to Harlem

Chapter 9: Mr. Civil Rights

Chapter 10: Tan Yanks in Korea

Chapter 11: The Road to Clarendon County

Index of Principal Cases Cited

Select Bibliography

Index

Acknowledgements

About the Authors

Introduction

The Lawyer as Hero: Thurgood Marshall’s Legacy

I met Justice Thurgood Marshall (1908-1993) in the early 1970s when I was a teenager working as a page in the U.S. Supreme Court. My parents were his contemporaries, and, like millions of Americans, they knew him as “Mr. Civil Rights.” As a lawyer, Marshall had won Brown v. Board of Education in 1954, effectively outlawing racial segregation. He became the first African American Supreme Court justice in 1967. But the 1960s had radicalized my generation, and Marshall’s commitment to “working within the system” was unacceptable to me. I was “Black and Proud!” I wanted freedom now! Little did I know that Marshall, an icon to my parents but an Uncle Tom to me, was one of the most visionary and courageous leaders in our nation’s history.

His vision was a hard sell to the black leaders of his day who had grown frustrated with the lack of progress toward racial equality. To some, the American system was irredeemable, and so they embraced Soviet communism. Others called for an alliance of the fledging civil rights and labor movements, but unions refused to let blacks in. Some saw the need for a mass political movement that would rally millions into the streets, but there was fear of provoking a violent white backlash. It would be decades before the advent of the mass media, and the coercive threat of national exposure, would make Rev. Martin Luther King’s direct action campaign a viable option. With access to the political process barred—African Americans were routinely denied the right to vote—Marshall’s challenge was to convince his colleagues that a litigation strategy was the solution, even though the Supreme Court’s “separate but equal” decree in Plessy v. Ferguson in 1896 had permitted racial segregation.

Marshall’s courage and skill as a lawyer carried the day. He had attended Howard University Law School where he met his friend and mentor Charles Hamilton Houston, Howard’s law dean. Houston, an African American graduate of Harvard Law School, had turned Howard into a “laboratory” for civil rights litigation, calling his students “social engineers” whose mission was to overturn Plessy. Marshall finished at the top of his law class in 1933 and soon he took to the road, often with Houston— hero lawyers travelling through the South and elsewhere, investigating lynchings and filing anti-discrimination lawsuits. Decades later, Justice Marshall regaled colleagues and law clerks with harrowing tales of close call escapes from the Ku Klux Klan and others who threatened to kill him. Undeterred, he went on to establish the chain of legal precedents that laid the groundwork for Brown.

As a Supreme Court justice, he championed the view that government has an affirmative obligation to remedy economic, race, and gender inequalities. His conservative opponents accused him of judicial activism. As the Court moved to the right, he often found himself in dissent. Frustrated, he urged rights activists to avoid the courts and seek redress through the political process. That political process has since produced our first black president, Barack Obama.

Meanwhile, militants faulted him for not acknowledging the extent to which their radicalism made Marshall’s moderate views more palatable. No matter. By the end of his life—he died in 1991—Marshall had put it all in perspective. “I don’t know what legacy I left,” he told an interviewer. “It’s up to the people. I guess you could say, ‘He did what he could with what he had.’ I have given fifty years to it, and if that is not enough, God bless them.”

Hunter R. Clark

May 17, 2012

Des Moines, Iowa

ONE

A Rumpled Bear of a Man

Don’t worry, I am going to outlive those bastards.
Thurgood Marshall

The day after the U. S. Senate confirmed Thurgood Marshall’s lifetime appointment to the Supreme Court in 1967, he told his old friend Harvard Law School graduate John P. Davis, “The only thing I have to do now, Johnny, is stay alive.” Marshall, questioned frequently about the possibility of retirement years later, each time scoffed at the idea. “I was appointed to a life term, and I intend to serve it,” he said in a typical response. But now, on June 28, 1991, after twenty-four years as the only Afro-American ever to sit on the Supreme Court, the time had come for him to go.

He was just four days away from his eighty-third birthday, and in less than six weeks doctors at Bethesda Naval Hospital would put a pacemaker in his chest to stabilize an irregular heartbeat. The years of chain-smoking three packs of Winston cigarettes a day, his fondness for bourbon, fried chicken, and pigs’ feet, and the burden of the nation’s legal conscience he had carried since he was a fledgling lawyer in his native Baltimore had finally taken their toll. The day before, in a brief note to President George H.W. Bush, Thurgood Marshall told him and the nation he was retiring because of his “advancing age and medical condition.”

Supreme Court press secretary Toni House had prepared the Court’s ornate East Conference Room. The Washington press corps snaked its microphones to the lectern atop the red-carpeted dais. Photographers elbowed their way into advantageous positions, ready to capture on tape and film the parting words of the Supreme Court’s most liberal justice.

Marshall, whose intimate friends nicknamed him “Turkey” years ago because of his proud, head-high, defiant strut, entered the room walking slowly, with a cane, but would have none of the thronelike chair House had provided for him. Instead, he sat, facing reporters at eye level, on an antique mahogany chair under an oil portrait of John Jay, the nation’s first chief justice. His tie, loosely knotted, was pulled to one side, and his pants were hitched up over his spreading belly, displaying the white surgical socks he wore to prevent a recurrence of the blood clot that had formed in his right leg several years earlier.

His wife, Cecilia “Cissy” Marshall, was there with his law clerks and staff, his son Thurgood, who was a member of Massachusetts senator Edward M. Kennedy’s staff, and his daughter-in-law Colleen Mahoney, a lawyer at the Securities and Exchange Commission. They took turns holding their two-year-old son, Thurgood William Marshall, given his middle name in honor of Marshall’s closest personal and ideological friend on the Court, retired justice William J. Brennan Jr.

“How do you feel?” a reporter asked.

“With my hands,” Marshall replied, displaying his gnarled hands flecked with the brown liver spots of old age. It was vintage Thurgood Marshall. For the next thirty minutes this curmudgeon parried with reporters, punctuating his remarks with his cane and displaying all his legendary fieriness.

The reporter who asked the first question rephrased it, attempting to regain credibility among his smiling colleagues. “What’s wrong with you, sir?”

“What’s wrong with me?” Marshall barked incredulously in his baritone voice, implying the answer was plainly visible in his sagging shoulders and the deep wrinkles of his eighty-two-year-old face. “I’m old. I’m getting old and coming apart.”

Marshall’s health had been a subject of Capitol Hill gossip for more than a decade, as both liberals and conservatives speculated about how long the ailing justice could hold on to his seat on the nation’s highest court. Marshall had had a heart attack in 1976 and since then had been treated for recurrent bouts of pneumonia and viral bronchitis. In October 1979 he had fallen down the marble steps of the Capitol after an appointment with the Capitol’s attending physician, Dr. Freeman H. Carey, fracturing his right wrist and left elbow and sustaining a nasty laceration on his forehead. In August 1990 he had fallen in the lobby of Chicago’s Hyatt Regency Hotel, where he was attending the American Bar Association’s annual convention. He wore a hearing-aid, and for several years his vision had been clouded by glaucoma.

Even earlier, in July 1970, during Marshall’s hospitalization for bronchitis at Bethesda Naval Hospital, aides to President Richard M. Nixon quietly inquired about his prognosis. Marshall’s attending physician, Captain C. F. Lambdin, would not release the information without his patient’s permission. When Lambdin told Marshall about the White House inquiry, Marshall grabbed a red felt-tipped marker from the doctor’s pocket and scrawled on his medical folder in bold capital letters NOT YET! He was not about to give President Nixon a conservative appointment to the Court by dying.

Later, in a 1987 interview with columnist Carl Rowan, Marshall made no attempt to hide his displeasure with another president, describing Ronald W. Reagan as the “worst president in my lifetime.” He said President Reagan “has done zero for civil rights” and noted that “on the racial issue you can’t be a little bit wrong any more than you can be a little bit pregnant or a little bit dead.”

In 1988, similarly determined, he told a group of judges and lawyers who questioned him about the Supreme Court’s increasingly conservative composition, “Don’t worry, I am going to outlive those bastards.”

At the final press conference, he was asked, “Do you have any plans for your retirement?”

“Yep.”

“What are they?”

“Sit on my rear end.”

Pointing his cane at another reporter, who referred to his departure as a “resignation,” Marshall quickly corrected him. “It’s a retirement,” he said.

When a reporter asked him to comment on the status of “black people,” he said, “In the first place I am not a ‘black people,’ I am an Afro-American,” making clear his recent personal decision to use that term to describe his race. “Now, you want to talk about an Afro-American?” he asked the reporter. “No, I am not free, certainly I am not free.”

And then he began one of his characteristic reminiscences, telling the story of a Pullman porter he knew as a child, one of his father’s Baltimore friends who worked on the Baltimore & Ohio Railroad. “He had been in every city in this country, he was sure, and he had never been in any city in the United States where he had to put his hand in front of his face to find out he was a Negro. I agree with him,” Marshall said. “No, I am not free.”

On the day Marshall announced his retirement, the Supreme Court issued its final opinions for the 1990-91 term. As he had done increasingly in recent years, Marshall found himself on the dissenting side of decisions that struck at the heart of issues vital to him during more than fifty years—as chief counsel for the National Association for the Advancement of Colored People (NAACP), a U.S. appeals court judge, the nation’s solicitor general, and a Supreme Court justice.

Several reporters suggested Marshall was leaving in anger and frustration after watching the liberal Court of Chief Justice Earl Warren, which he joined in 1967, move gradually to the right as four Republican presidents—Richard M. Nixon, Gerald R. Ford, Ronald W. Reagan, and George H. W. Bush—replaced retiring liberal justices with conservatives. Marshall had found a comfortable seat on the Warren Court, which saw its role as protecting individual rights, the poor, women, minorities, criminal defendants, and political dissidents. He replaced centrist Justice Tom C. Clark, whose vote at times created a five-to-four conservative majority. Though Marshall’s votes at times swung the Court’s posture to liberal positions during his early tenure, the judicial pendulum soon began to swing again to the conservative right.

Chief Justice Warren E. Burger and Justice William H. Rehnquist, Burger’s eventual successor as Chief Justice, were appointed by Nixon. Two other Nixon appointments, one by Ford, and three by Reagan placed the Court firmly in the hands of conservatives. By the end of the 1980s the only justices with decidedly liberal records were Marshall and his aging friend Justice Brennan, appointed by President Dwight D. Eisenhower.

The solid conservative majority quickly set about the task of dismantling much of what Marshall, Brennan, and their former liberal colleagues had accomplished. As one of the last Supreme Court justices to believe that Americans could depend on the government and the Court to resolve social problems, Marshall increasingly found himself dissenting from majority opinions. By temperament and experience he was suited to the outsider’s role. In fact, many Court observers believe Marshall’s best opinions were issued in dissent.

Marshall himself said dissenting opinions were important to him and made that clear when he interviewed candidates for clerkships. “For the past four or five years, whenever I interviewed prospective law clerks I always asked them if they liked writing dissenting opinions,” he said in 1975. “If they said no, they didn’t get the job.”

“If there was a leitmotif to Marshall’s dissents,” said A. E. Dick Howard, professor of law at the University of Virginia, “it was his concern for the unempowered, the poor, minorities, those outside the mainstream.”

At the last press conference, Marshall was asked, “Your retirement has been characterized as leaving in anger or frustration, finding yourself on the dissenting side. Is that true? Is that an accurate characterization?” a reporter asked.

“Who said that?” Marshall snapped.

“It’s on the front page of the New York Times this morning.”

“The front page of the New York Times said that I was frustrated?”

“And angry at finding yourself in dissent.”

“That’s a double-barreled lie. My doctor and my wife and I have been discussing this for the past six months or more. And we all eventually agreed, all three of us, that this was it, and this is it.”

When asked what major tasks the Supreme Court faced in the years ahead, he said, “To get along without me.”

A reporter asked Marshall if the president should replace him with a black judge. “I don’t think race should be used as an excuse one way or the other.... I mean for picking the wrong Negro and saying, ‘I’m picking him because he is a Negro.’ I am opposed to that. My father told me long ago, ‘There is no difference between a white snake and a black snake. They both bite.’”

The humor Marshall displayed at his parting press conference was characteristic of the folksy style he embraced all his life. Marshall said early in his career he intended to “wear life like a loose garment.” He delighted in using subtle, often off-color humor and his penchant for earthiness to challenge those who took a more traditional approach to their existence. Marshall’s background, of course, was much different from those of his Supreme Court brethren, for, after all, he was the only Supreme Court justice who experienced segregation from the back of the bus, the only justice to be chased from rural southern towns by the Ku Klux Klan, and the only justice who had defended a black man accused of murder.

He was fond of putting Chief Justice Warren Burger ill at ease with black street-corner colloquialisms. “What’s shaking, Chiefy baby?” was his customary greeting when he encountered Burger in the court’s staid halls. Burger would return Marshall’s salutation with a puzzled glare. The two men later developed a cordial relationship.

On one occasion Marshall found great pleasure in allowing several white tourists, who mistakenly entered an automated elevator reserved for the justices, to assume he was the operator. They stepped to the rear and called their floor. Marshall, in his best Uncle Tom voice, said, “Yassah, yassah,” and pushed the button. When the car arrived at their floor he stepped back and ushered them out, glowing in triumphant delight as he watched them walk down the hallway, slowly realizing who he was.

“He was earthy and bright,” said Jack Greenberg, his successor at the Legal Defense and Educational Fund. “He related to people, not abstract theories.” During his years on the Supreme Court, Marshall turned from a quick-witted verbal combatant to a philosophical joker whose wit and humor became legendary. His working habits were a part of the legend. Clerks often commented that Marshall and Justice Potter Stewart met in the halls each day at noon—Stewart on his way to work and Marshall on his way home.

Though his body was now aged, his pants gone baggy and his face in seams, there was no doubt that on the day of his retirement he still possessed the feisty humor, combativeness, and sharpness of his younger days, when he won landmark civil rights cases before the Supreme Court and breached the wall of legal segregation in the United States.

Marshall changed with the years. A 1950 story in Afro-American newspapers pictured him as “handsome” and “the amazing type of man who is liked by other men and probably adored by women. He carries himself with an inoffensive self-confidence…He wears and looks especially well in tweed suits.” In 1955 Time magazine called him “a big, quick-footed man, with a voice that can be soft and raucous, and an emotional pattern that swings like a pendulum from the serious to the absurd.” In 1956 the New Yorker saw “a tall, vigorous man with a long face, a long, hooked nose above a black mustache and heavy-lidded, but very watchful eyes.” In 1959, Newsweek magazine, noting his tweed suits were now rumpled and dusted with cigarette ashes, described him as “a rumpled bear of a man.”

If the New York Times wrongly suggested that Marshall was leaving the court in “frustration and anger,” his dissenting opinions delivered on the day of his retirement certainly made clear his displeasure with the current Court and most of his colleagues. On that day the Court closed its 1990-91 term by overturning one of its own precedents. It reversed a decision prohibiting prosecutors in death penalty cases from giving jurors, during the sentencing phase of a trial, evidence about a victim’s character and the impact of the homicide on the victim’s family.

Marshall, who remained adamantly opposed to capital punishment, was on the dissenting side of the six-to-three decision, written by Chief Justice Rehnquist. The opinion—Payne v. Tennessee—upheld the death sentence of a Tennessee man convicted of murder. Thurgood Marshall did not like the decision issued just ninety minutes before he announced his intention to retire, and he used his final dissenting opinion to speak his mind plainly about the Court’s composition and its future. He took issue with the Court’s reversal of precedent, suggesting it was a portent of more ominous things to come, including the reversal of Roe v. Wade, the controversial and emotionally charged 1973 decision upholding women’s constitutional rights to safe abortions. Marshall wrote:

“Power, not reason, is the new currency of this court’s decision making….

“Neither the law nor the facts supporting Booth and Gathers [plaintiffs in an earlier case that halted executions] underwent any change in the last four years. Only the personnel of this court did. In dispatching Booth and Gathers to their graves, today’s majority ominously suggest that an even more extensive upheaval of this court’s precedents may be in store.

“Cast aside today are those condemned to face society’s ultimate penalty. Tomorrow’s victims may be minorities, women, or the indigent. Inevitably this campaign to resurrect yesterday’s ‘spirited dissents’ will squander the authority and the legitimacy of this court as a protector of the powerless.

“Today’s decision charts an unmistakable course. If the majority’s radical reconstruction of the rules for overturning the court’s decisions is to be taken at face value—and the majority offers us no reason why it should not—then their over-ruling of Booth and Gathers is but a preview of an even broader and more far-reaching assault upon this court’s precedents.”

Marshall’s defense of precedents in his final dissent was in ironic contrast to the many Supreme Court decisions he won as the NAACP’s civil rights lawyer, where his victories resulted from his ability to persuade the Court to reverse precedents of long standing. It was in contradistinction, too, to liberal Justice William O. Douglas, who in 1949 told the Bar of the City of New York he wanted nothing more from past decisions than “a sense of continuity.... a feel for the durability of a doctrine…Even for the experts, law is only a prediction of what judges will do under a given set of facts. We have experience that they [former Courts] never knew. Our vision may be shorter or longer. But it is ours. It is better that we make our own history than be governed by the dead.”

Thurgood Marshall began his lifelong pursuit of equal rights as an undergraduate at Pennsylvania’s Lincoln University, when, with a group of students, he sat in the whites-only orchestra section of an Oxford, Pennsylvania movie theater. As a student at Howard University Law School in Washington, D.C., he worked with lawyers from the NAACP on important early civil rights cases.

In 1933, after graduating from law school, he opened a one-man civil and criminal law practice in Baltimore, but his increasing involvement in local civil rights activities soon became the major focus of his early career. He traveled through Maryland’s Eastern Shore counties for the NAACP investigating lynchings, won salary equalization for Maryland’s black teachers, and staged boycotts forcing Baltimore’s A & P stores to hire black clerks.

His first major civil rights victory was a case of “sweet revenge.” In 1935, with his Howard professor and mentor, Charles Hamilton Houston, he won a suit to integrate the University of Maryland’s law school—the same school that had rejected his application because of his race.

In 1936 Marshall became the NAACP’s assistant special counsel in New York City. Four years later he was appointed director-counsel in charge of planning the legal strategy for the organization’s Legal Defense and Educational Fund.

In 1944 Marshall won voting rights for thousands of disfranchised black southerners when he successfully argued Smith v. Allwright, the Supreme Court suit overthrowing the South’s Democratic “white primary.” After he won that case, just ten years out of law school, the trustees of Howard University awarded Marshall a prophetic citation of recognition:

“Within the short span of the first ten years of your professional career, you have fully justified the exceptional promise of your student days.

“You are winning significant and enduring victories for a disadvantaged people. Your unceasing labors are opening the way for the achievement of an even greater measure of justice and equality under the law. Your star still rises, and though it is not yet at its zenith, the brilliance of your accomplishment and the value of your service to your fellow man already marked you as an advocate, a legal scholar and humanitarian of the first magnitude.”

As NAACP counsel Marshall implemented a legal strategy to integrate graduate schools, where there was less resistance to black and white students attending the same schools than there was at the public school level. Marshall said: “Those racial supremacy boys somehow think that little kids of six or seven are going to get funny ideas about sex and marriage just from going to school together, but for some equally funny reason, youngsters in law school aren’t supposed to feel that way. We didn’t get it, but we decided if that was what the South believed, then the best thing for the moment was to go along.”

Two years later, in 1946, the NAACP gave Marshall the Spingarn Medal, its highest award. In 1948 he argued and won Shelly v. Kraemer, a Supreme Court decision striking down the legality of racially restrictive residential housing covenants, and in 1950 he won Supreme Court victories in two graduate school cases—Sweatt v. Painter and McLaurin v. Oklahoma State Regents—laying the foundation for broader victories.

In 1951 Marshall went to Japan and South Korea for six weeks to investigate charges of mistreatment of black soldiers under the command of southern white officers. And then, in 1954, Marshall and a team of NAACP lawyers won Brown v. Board of Education of Topeka, the case that struck down segregation in public education in America. The Warren court ruled unanimously that “separate educational facilities are inherently unequal,” overturning the separate-but-equal doctrine established in Plessy v. Ferguson in 1896.

His crowning legal achievement was the celebrated victory in Brown. Brown became the wedge that Marshall and other civil rights lawyers used to dislodge most legalized segregation in America.

On September 23, 1961, eight months after taking office, President John F. Kennedy appointed Marshall to the U.S. Court of Appeals for the Second Circuit, serving New York, Vermont, and Connecticut. Though the judgeship doubled his NAACP salary, the decision to step down as the NAACP’s chief legal advisor was a difficult one. “I had to fight it out with myself,” he told a New York Times reporter. “By then I had built up a staff—a damned good staff—an excellent board, and the backing that would let them go ahead. And when one has the opportunity to serve his government, he should think twice before passing it up.” Later Marshall told the Washington Post ,“I’ve always felt the assault troops never occupy the town. I figured after the school decisions, the assault was over for me. It was time to let newer minds take over.”

During his tenure as a federal appellate judge he wrote more than 150 opinions—including opinions declaring loyalty oaths required of New York teachers unconstitutional and limiting the authority of immigration officials to deport aliens summarily—and issued decisions enforcing the Fourth and Fifth Amendments in cases of illegal search and seizure and double jeopardy. None of his ninety-eight majority decisions was reversed by the Supreme Court.

In July 1965 President Lyndon B. Johnson appointed Marshall to the office of U.S. solicitor general, the nation’s highest-ranking lawyer. Marshall, the great-grandson of a slave and the grandson of a Union soldier, was the first Afro-American to hold that post. Between 1965 and 1967 he won fourteen of the nineteen cases he argued for the United States, many of them mandating compliance with the Civil Rights Act of 1964. As solicitor general Marshall pleaded the government’s position on civil rights and privacy cases, two issues important to him.

On June 13, 1967, standing in the White House Rose Garden with Marshall at his side, President Johnson announced his nomination of Thurgood Marshall to the U.S. Supreme Court. “I believe it is the right thing to do, the right time to do it, the right man and the right place. I believe he has already earned his place in history, but I think it will be greatly enhanced by his service on the court.” The president’s nomination spread a tidal wave of joy across black and liberal America.

Marshall became the first Marylander to sit on the Court since Chief Justice Roger B. Taney, who had ruled in the Dred Scott decision, 110 years earlier, that black Americans had no rights protected by the Constitution.

President Johnson had a dream of building what he called “the Great Society” in America. His appointments of Thurgood Marshall as solicitor general and later to the U.S. Supreme Court were integral components of that dream.

Justice William J. Brennan Jr., writing in the November 1991 issue of the Harvard Law Review, spoke of Marshall, his closest friend on the Court:

Indeed, he leaves behind an enviable record of opinions supporting the rights of the less powerful and less fortunate. One can add that, for more than twenty-five years before he joined the judiciary, Thurgood Marshall was probably the most important advocate in America, one who used his formidable legal skills to end the ills of discrimination.
Thurgood Marshall is simply unsurpassed as a raconteur. On many occasions, some fact or event will remind him of an earlier episode in his richly varied life. When that moment arrives, a flicker of recollected amusement passes over his face, the magic words ‘You know...’’ signal the onset of another tale, and soon Thurgood has plunged his audience into a different world. The locales are varied—from dusty courtrooms in the Deep South, to a confrontation with General MacArthur in the Far East, to the drafting sessions for the Kenyan Constitution. They are brought to life by all the tricks of the storyteller’s art: the fluid voice, the mobile eyebrows, the sidelong glance, the pregnant pause and the wry smile.

The last day Marshall sat on the Supreme Court, retired Justice Brennan came to watch the proceedings. Brennan, now eighty-five and frail, was one of the first people Marshall told about his intention to retire. An architect of some of the Warren Court’s most liberal opinions, Brennan was described as the “intellectual leader” of its liberal majority. Until his retirement in 1990, the Court’s dwindling liberals could at times sway the vote of conservative justices Sandra Day O’Connor and Byron R. White. But after Justice David Souter replaced Brennan, the conservatives held a solid and commanding five-vote majority.

As news of Marshall’s retirement spread across the nation’s capital, official reaction came swiftly. In an obligatory White House statement, President George H. W. Bush said Marshall rendered “extraordinary and distinguished service to his country as a civil rights lawyer, a judge on the U.S. court of appeals and in his tenure on the Supreme Court. His career is an inspiring example for all Americans.” But less than an hour after the president’s comments on Marshall’s retirement, Washington radio station WTOP was broadcasting a report that President George H. W. Bush had already narrowed his Supreme Court nomination A-list to several candidates, including a black conservative U.S. appeals court judge named Clarence Thomas.

In a tribute to Marshall, Senator Orrin G. Hatch said, “I don’t know of anyone on the bench who has had a more profound effect on American jurisprudence. No other person in the court’s history has done more from a legal standpoint, or any other standpoint.” Delaware Democrat Senator Joseph D. Biden, chairman of the Senate Judiciary Committee, said, “The Supreme Court has lost an historic justice—a hero for all America and for all times.” The chairman of the Democratic party, Ronald H. Brown, characterized Marshall’s retirement as “truly a loss for all America and a tragedy for this country. His resignation leaves a tremendous void that George H. W. Bush will never understand.”

Voices chimed in from outside Washington as well. “Whether you agree with his opinions or not, he is one of the greatest Americans our legal system has ever produced. He dismantled the American apartheid,” said University of Chicago law professor Cass Sunstein, a former Marshall clerk. And in Cambridge, Massachusetts, Harvard Law School professor Lawrence H. Tribe said Marshall’s departure meant that “there is no one there who has the slightest idea of what it’s like to be seriously oppressed, segregated, the victim of relentless prejudice and who has not led a life of privilege.”

Not all the comments pouring into the city’s newsrooms that day were complimentary. Richard A. Viguerie, chairman of the United Conservatives of America, rejoiced at the news of Marshall’s retirement. “Hallelujah,” he said, adding that the vacancy created by Marshall’s departure would give President Bush the opportunity to “remake the American judiciary and change the face of the country.” Douglas R. Scott, vice-president of the Christian Action Council, a group that opposes abortion, said “Marshall is the most activist jurist of this century, and his resignation is good news for the country and the pro-life movement.”

Reactions from others did not make the front pages of the next day’s Washington Post or New York Times. Retired Washington, D.C., schoolteacher Evon Stevens sat sipping a glass of white wine at Faces, a popular Georgia Avenue tavern not far from Howard University. “I remember when colored people couldn’t try on a dress or a pair of shoes in a downtown department store unless they were going to buy them,” she said. “Thurgood had a lot to do with changing all that, and now he’s gone.”

TWO

A Cunning and Powerful Strategist

I didn’t undertake this job for money, but to help redress an evil and errors
that go back far beyond our lifetime.
—Howard Jay Graham

Marshall leaned forward on his elbows at the conference table in the Overseas Press Club and inhaled slowly on a Winston cigarette. It was the fall of 1953. The conference he had called as director-counsel of the NAACP Legal Defense and Educational Fund was drawing to a close. For five days, more than a hundred people had been gathered in New York City to answer five questions posed by the justices of the U.S. Supreme Court at the end of the first round of oral arguments in Brown v. Board of Education. The conferees included many of the nation’s leading educators, historians, legal experts, political scientists, and thinkers of every stripe: historians Howard K. Beale, C. Vann Woodward, and John Hope Franklin; professors John Frank and Walter Gellhorn of Yale and Columbia Law Schools, respectively; Robert K. Carr, a professor of law and political science at Dartmouth College who became president of Oberlin College; and civil rights expert Milton Konvitz, to name but a few.

As the lawyer for black schoolchildren and their parents in Brown, Marshall asked the Court to end, once and for all, segregation in public education. He claimed segregation was detrimental to black children, adversely affecting their hearts and minds in a way that denied them the equal educational opportunity to which they were entitled under the Fourteenth Amendment to the U.S. Constitution. Opposing lawyers for the states of Kansas, South Carolina, Virginia, and Delaware and the District of Columbia asked the Court to uphold segregation as a time-honored practice, approved by the Supreme Court in Plessy v. Ferguson in 1896 and sanctioned by the Court a number of times since.

The Court listened to both sides argue their cases over the course of three days in December 1952. After the arguments were presented, the justices decided to reserve judgment. Integration was a divisive and potentially explosive issue. The blacks demanded nothing less than that the Court compel America to live up to its creed that all men are created equal. A ruling that upheld segregation was sure to be viewed as a denial of the inalienable rights promised at that nation’s founding by Thomas Jefferson.

At the same time, the justices were aware that school desegregation would likely be resisted violently throughout the South. A number of southern leaders had already expressed their fear that integration in public education would lead to a breakdown of racial barriers in other aspects of American life. Some contended that putting blacks and whites side by side in the classroom at an early age would lead to miscegenation, interracial sex and marriage, and the disappearance of the white race.

Whichever way the justices ruled, opponents of the decision were likely to challenge whether the Court legitimately had the power even to address the issue. For this reason the justices decided they must hear each side’s answers to five basic questions concerning the Court’s power before rendering what was certain to be one of the most momentous decisions in American history. At the heart of what the Court wanted to know was this: Did the men who wrote the Fourteenth Amendment intend to abolish school segregation?

From the Court’s central question, four others followed. If the framers themselves did not intend to end segregation, did they at least intend to give Congress or the courts the power to abolish it at some future time, in light of changed social circumstances? If not, how was it now within the Supreme Court’s power to abolish segregation in the public schools? If the Court did have the power to end segregation and chose to do so, should it do so gradually or order it done all at once? And how should the Court handle the particular situations presented in the five cases that were combined into Brown—with specific, detailed decrees or with sweeping, general directions to be followed by lower courts?

Adopted in the wake of the Civil War, the Fourteenth Amendment was designed to ensure former slaves and their descendants the equal protection of the laws. The language of the amendment did not squarely address segregation. The crux of the amendment is the equal protection clause, which states simply, “No State shall...deny to any person within its jurisdiction the equal protection of the laws.” In Plessy v. Ferguson the Supreme Court ruled that the Fourteenth Amendment did not prohibit states from separating people by race as long as blacks and whites were treated equally. This became known as the separate-but-equal doctrine.

Marshall called the conference primarily for the purpose of hearing the views of two men: Alfred H. Kelly, chairman of the History Department at Wayne State University, and Howard Jay Graham, a bibliographer at the Los Angeles County Law Library. Both were white. Each was preeminent in his field. Kelly, a lanky, blond-haired, blue-eyed midwesterner, was the coauthor of a widely acclaimed book, The American Constitution: Its Origins and Development. Graham was stone deaf, but his hearing impairment did not keep him from becoming one of the foremost published authorities on the Fourteenth Amendment. Both graciously accepted Marshall’s invitation to participate in formulating the NAACP’s response, agreeing to contribute their time and effort over the summer in return for payment of their expenses.

Kelly said the chance to work with Marshall “struck a certain point of idealism in me about the role of the Negro in American life.” He recalled, “It just seemed to me that the constitutional and statutory impediments to Negro equality were an outrage— almost as bad as slavery in their own way.”

Graham felt the same way. He told Marshall, “I didn’t undertake this job for money, but to help redress an evil and errors that go back far beyond our lifetime. It promises to be one of the most satisfying experiences of my life.”

Marshall crushed his Winston in an ashtray teeming with mashed cigarette butts. He sipped from a glass of milk that his secretary brought him. Milk was recommended by his doctor for his stomach ulcers. He preferred sipping bourbon.

He looked out over the conferees—tall, short, angular, stout, women and men, blacks and whites of all ages, together, the way it should be. He tried to focus on what the historians were trying to say. It was not what he wanted to hear. Research of the Fourteenth Amendment’s history revealed, among other things, that when the amendment took effect in 1868, twenty-four of the nation’s thirty-seven states had segregated schools. This, together with the fact that segregation was barely discussed in the debates over the amendment’s ratification, showed that state legislators of the day did not regard the amendment as having an impact on segregation in public education.

Moreover, public schools in the District of Columbia, controlled by Congress under Article I of the Constitution, had been segregated since 1864, before the end of the war that was fought to free the slaves. And Congress refused to abolish school segregation in the District after the Fourteenth Amendment was adopted, although the question was debated thoroughly during the early 1870s. If Congress had intended for the Fourteenth Amendment to outlaw segregation, then why had Congress itself not abolished school segregation in the District after the amendment was passed?

Marshall had only five lawyers on staff at the NAACP’s New York headquarters. Robert L. Carter, his top assistant, specialized in cases involving discrimination in interstate and intrastate transportation. He is now a district court judge for the Southern District of New York, as is Constance Baker Motley, who specialized in housing discrimination. Jack Greenberg, at twenty-eight the youngest staffer, went on to become the NAACP Legal Defense and Educational Fund’s director, succeeding Marshall. He handled military courts-martial, labor law, and criminal cases. David Pinsky and Elwood Chisholm were research attorneys. The six lawyers, including Marshall, were supported by seven secretaries, seven paralegals, and two bookkeepers.

It was an effective but bare-bones operation. Brown was but one of six Supreme Court appeals the office was handling. The legwork, the research, the interviews of witnesses and the reviews of court records from a number of states, were monumental undertakings. And the Supreme Court appeals were not the only business of the office. Marshall himself handled as many as fifty lower court litigations at any given time in addition to the Supreme Court work, and he also oversaw the operations of the office. He logged, on average, sixty thousand miles a year traveling from courthouse to courthouse across the country. The volume of his responsibilities was three to four times beyond that normally demanded of a lawyer.

The NAACP’s legal staff had achieved a number of impressive victories in the Supreme Court in recent years. These achievements were, of course, a positive reflection on Marshall, the boss. But he was characteristically modest about the success of his operation. He once told a reporter, “The only reason I look good is that I get expert advice and take it.”

Fortunately the New York staff was reinforced by the NAACP Legal Committee, composed of fifty-one attorneys from around the nation, appointed by the NAACP board of directors. These lawyers contributed their services free of charge in the interest of advancing what was known at that time as the “Negro cause.” Without their help Marshall would not have had the resources to undertake the rigorous and in-depth research called for by the Court’s five questions. Even with the Legal Committee’s assistance, however, he felt he needed more help in the form of an interdisciplinary assault on the Fourteenth Amendment’s history. For this reason he called together the assembled experts from diverse fields.

William Robert Ming Jr., a black law professor at the University of Chicago, wrote a brief that tried to argue around the historians’ discoveries. He took the position that, despite the specifics, the Radical Republican abolitionists who developed and sponsored the Fourteenth Amendment were motivated by humanitarian aims. Achieving an egalitarian society, Ming argued, was their underlying objective. To this extent, he contended, the specific practices of the era should be given secondary consideration. Of primary importance was achieving the overriding goal of full black equality. Compromises may have been forced by political realities or the need to bind sectional wounds that followed the Civil War. Nonetheless, Ming argued, the amendment’s broader purpose should be interpreted to include segregation’s abolishment. Kelly, who collaborated on the brief, later explained, “Ming had proceeded on the theory that it would not do to get too far involved in specific historical detail with respect to framer intent and that the [NAACP’s] case might best be cast in very generalized terms with a deliberate avoidance of the particular.”

Kelly and Ming had worked tirelessly on the brief over the course of three days, cloistered with a stenographer in a suite of offices at the NAACP’s main headquarters on West 40th Street. Kelly recalled, “The brief drafting was mostly Ming and comparatively little Kelly; in the first place, Ming knew how to draft a brief and I didn’t; moreover, I found he had very positive ideas about what he wanted to say. My role, it appeared, was to challenge him repeatedly; to fight and quarrel with him, attack his history and constitutional law as unsound, and so on.” Kelly went on, “Since being unpleasant comes naturally both to lawyers and academicians, we got on famously. Evenings, we went back to the general sessions, which invariably lasted until long after midnight. At the end of three days we had a brief which Ming said would do.”

Thurgood Marshall was disappointed. The approach was not persuasive; there was nothing concrete in it. Ming’s brief hedged; it did not confront the questions. Marshall knew he could not win with it. A week after the conference closed, he asked Kelly to return for a second attempt at composing a brief.

“In the curiously winning manner so characteristic of the man,” Kelly said, “he informed me that since I wasn’t doing anything anyhow, I might as well come down to New York for four or five days and waste my time there. My help, he said with careful flattery, was needed very badly on the brief. My vanity thus touched to the quick, I came.”

“I gotta argue these cases,” Thurgood complained to Kelly, “and if I try this approach, these fellows [on the Court] will shoot me down in flames.”

With Kelly back on board, the staff began a week-long review of the historical evidence. Marshall urged those involved in the effort to see the bigger picture rather than to focus on or emphasize the uncovering of some “objective” or “empirical” truth. The practice of law, Marshall explained, is advocacy. “I am very much afraid that...I ceased to function as an historian and instead took up the practice of law without a license,” Kelly recalled. He went on, “The problem we faced was not the historian’s discovery of the truth; the problem instead was the formulation of an adequate gloss on the fateful events...sufficient to convince the Court that we had something of a historical case…It is not that we were engaged in formulating lies; there was nothing as crude and naive as that. But we were using facts, emphasizing facts, bearing down on facts, sliding off facts in a way to do what Marshall said we had to do—’get by those boys down there.’”

Marshall drove his staff relentlessly but asked nothing of them that he did not demand of himself. “I have never seen a man work so long and so hard,” recalls historian John Hope Franklin. “It was nothing for him to say at 1:00 a.m., ‘How about a fifteen-minute break?’ I never worked for harder taskmasters.”

William Coleman was a black graduate of Harvard Law School who clerked for Justice Frankfurter. Marshall put him in charge of organizing the research efforts of the contributing historians from across the country. Coleman remembers, “There were no prima donnas in that room.”

Kelly was inspired by what he saw as Marshall’s “profoundly moving sense of identity with the Negro’s tragic role in America, and his tremendous moral commitment to the work in which he was engaged.” He wrote, “I came to understand why Thurgood Marshall was such a cunning and powerful strategist in the campaign for Negro rights in America.”

Kelly said years later that another thing he came to understand in those autumn conferences was this: “Thurgood Marshall was...an America patriot. He truly believed in the United States and the Constitution, but that the whole system was tragically flawed by the segregation laws. Wipe away those laws and the whole picture would change.” He added, “Marshall and his colleagues were no rebels. They felt the social order was fundamentally good. What they wanted was the chance to share in it like men.”

Bringing that about, Marshall’s first wife, Vivian, realized, was a daunting task. It was during this period that she really began to worry about him. She commented to friends about how her husband had changed physically during the past five years, how he had aged, that he was nervous where he used to be calm. “The work is taking its toll of him,” she once said. “You know, it’s a discouraging job he’s set himself.”

At times Marshall wondered exactly what that job was. Was it saving the Negro? Or was it saving the white man’s soul? He thought of Clarendon County, South Carolina, where Negro children ran around with bloody, bare feet from walking on the jagged shards of tin roofs blown off their ramshackle lean-tos. He was only forty-five. But how could a young man see that and not be old?

He knew that the Court was ready to end segregation. He believed in the judicial system, that it worked, and was confident that the groundwork for segregation’s demise had been laid by him and his mentor, Charles Hamilton Houston, during the years leading up to the Brown litigation. Case by case they had chipped away at Plessy’s separate-but-equal doctrine, persuading the Court—in Gaines, Sipuel, McLaurin, Sweatt, and other cases—to narrow Plessy’s holding here, limit its application there, affirming or extending black rights in certain circumstances, implying their extension to others. Two years earlier, in the Annals of the American Academy of Political and Social Science, Marshall had written:

“As a direct or indirect result of these decisions, Negroes are now attending graduate and professional state schools in Arkansas, Texas, Maryland, Delaware, Kentucky, Oklahoma, Virginia, West Virginia, and Louisiana…Thus a major modification in the pattern of American life is in the making…Although its approach has been undeniably cautious, the Court seems to be making a real effort to deal effectively with our most disturbing problem with practical wisdom and insight. If it continues along the path blazed by its recent decisions, the Constitution’s mandate of equal protection of the laws will eventually accomplish the objective its framers intended—that of prohibiting all forms of community discriminatory action based upon race or color.”

Call it a gut feeling, intangible, but throughout the three days of oral argument that past December something ineffable, an air of inevitability, had hung over events. What the Court now wanted, Marshall believed, was the chance to redeem itself for what it had done a half century earlier, when, by adopting the separate-but-equal doctrine, it had consigned African Americans to lives of indignity and second-class citizenship. That was the reason for the five questions. Marshall was sure of it. What the court was looking for was some credible, some legitimate, basis for doing what he was sure it wanted to do, anyway.

Sometimes he wondered what it was like to be a white man. He took it as a given that the average white man did not lose as much sleep worrying about the evils of the segregation systems as Marshall lost trying to correct them. He could not help resenting white apathy.

If Kelly was taken aback by Marshall’s resentment, at first he was also puzzled by Marshall’s liberal use of the word nigger, which Kelly naturally regarded as derogatory. The word made Kelly uncomfortable. Later, however, he arrived at an understanding of how Marshall used it. “That word seemed to epitomize for him the entire tragedy of the black man’s situation, but he wasn’t somber about it. He could invest the word with as much humor as sadness.”

In feigned Negro dialect, Marshall once reminded his secretary sternly “who’s the H.N. around here,” meaning “Head Nigger.” Another time, Marshall came upon a story in a newspaper of Civil War vintage about a black railroad worker who had fallen into a hole. The headline read “Nigger in a Pit!” Marshall rambled around the office yelling, “Nigger in a pit! Nigger in a pit!”

Of course, Thurgood Marshall was no racist. He knew that all white men were not alike. Some—like Kelly and Graham, for instance—were committed to the Negro cause. Others, like his young assistant Charles Black, went so far as to become Negroes.

Born in eastern Texas, Black finished near the top of his class at Yale Law School. He went on to become a professor of law at Columbia University in New York City but never really became a part of faculty life there. Instead, he indulged in his eclectic interests: studying the trumpet and frequenting Harlem nightspots; writing poetry and haunting the coffeehouses and bars in Greenwich Village. Eventually Black joined the faculty of his alma mater and became one of the nation’s foremost authorities on admiralty law.

He offered his services to Marshall that summer and fall of 1953. “There was a fair sense of social injustice gnawing at him,” recalls an associate of Black’s at Columbia. When Marshall asked him why he was interested in working for the NAACP, Black made no effort to ingratiate himself with his new boss. Instead, he drawled: “I come from deep, deep in Texas. I’d heard of this really terrible organization way up North called the N-A-A-C-P. It was an awful place with a great big office all the way up there in New York, they said. And the worst thing of all about it was that right in that big office there was this room, this special secret room….And inside that room, they said, there was nothing but hooks on the walls—hundreds and hundreds of hooks—and do you know what was hanging on each and every one of those hooks? Why, they said that on each of those hooks was a key to the bedroom of a southern white woman. And so I figured that’s an organization I wanna get involved in!”

Black’s efforts were valued greatly, for he was a superb writer. He demonstrated his skill as well as his compassion in the work he did on the five questions. His contribution to the final brief related to the fourth of the five questions: he urged the Court to act swiftly, rather than gradually, and abolish segregation all at once. He wrote:

“These infant appellants are asserting the most important secular claims that can be put forward by children, the claim to their full measure of the chance to learn and grow, and the inseparably connected but even more important claim to be treated as entire citizens of the society into which they have been born. We have discovered no case in which such rights, once established, have been postponed by a cautious calculation of conveniences. The nuisance cases, the sewage cases, the cases of the overhanging cornices, need not be distinguished. They distinguish themselves.”

After he read the passage, Marshall was moved to tell Black, paternally, “You are a Negro.”

After three days of round-the-clock effort, as if there were a force in the universe that responds to hard work and good intentions, Marshall, Kelly, and company made their hoped-for discovery. It came in the form of a speech delivered by Ohio congressman Thaddeus Stevens in 1866. Stevens, an ardent abolitionist, was the leader of the Radical Republicans and the most powerful man in the U.S. House of Representatives after the Civil War. When the Fourteenth Amendment was introduced by its author, Radical Ohio congressman John A. Bingham, Stevens rose to stamp upon Bingham’s proposal the Radicals’ interpretation of its meaning. “Where any State makes a distinction in the same law between different classes of individuals,” he declared, “Congress shall have the power to correct such discriminations and inequality.” Stevensvowed that “no distinction would be tolerated in this purified Republic but what arose from merit and conduct.” The term purified, connoting absolution from sin, meant “with slavery removed.”

Jay Graham then suggested strengthening the brief by adding remarks made by Bingham himself concerning the difference between writing statutes and writing constitutional provisions. Statutes, according to Bingham, should be drafted narrowly and with great specificity. Constitutional provisions, by contrast, should be “writ broad for ages yet unborn.” As Kelly put it, “In our minds’ eye, Bingham almost seemed to be speaking for our purposes, saying to the Court in the twentieth century that if your age, far beyond our span of time, sees in this amendment a new birth of liberty, it will be altogether legitimate for you to use it for that purpose.”

There it was: concrete support for the proposition that the original proponents of the Fourteenth Amendment intended it to be used flexibly to address discriminatory situations as they arose and to correct any distinction imposed by law that was not based exclusively on “merit and conduct.”

“Hot damn!” exclaimed Marshall. “Here’s something finally that we can use that isn’t manipulating the facts.”

Next, Thurgood applied a crafty lawyer’s inverse reasoning. After all, there were two ways to approach the Court’s questions. Either the Court was looking for something that said, “Yes, you have the power to end segregation,” or the Court was just making sure that nothing said, “No, you do not have the power to end it.”

Marshall had found nothing that specifically gave the Court the power to end segregation. But he had come across nothing that explicitly denied the Court that power, either. He decided to tell the justices that the Court had the power to end segregation unless his opponents could point to something that explicitly said the Court did not. He assured his staff, “A nothin’ to nothin’ score means we win the ball game.”

Marshall ordered a rewrite of Ming’s brief. He assigned the task to his best writer, Spottswood W. Robinson III, another protégé of Charles Houston’s, from Virginia. Robinson hammered out a masterful product, soaring in its eloquence and anchored firmly in historical fact. It attacked the half-century-old separate-but-equal doctrine:

“When the Court employed the old usages, customs and traditions as the basis for determining the reasonableness of the segregation statutes designed to resubjugate the Negro to an inferior status, it nullified the acknowledged intent of the framers of the [Fourteenth] Amendment, and made a travesty of the equal protection clause.”

In his conclusion Robinson cried out for justice:

“Segregation was designed to ensure inequality—to discriminate on account of race and color—and the separate-but-equal doctrine accommodated the Constitution to that purpose. Separate but equal is a legal fiction. There never was and never will be any separate equality. Our Constitution cannot be used to sustain ideologies and practices which we as a people abhor.”

Now Marshall was satisfied, comfortable in the knowledge that he was giving the Court what it wanted, something to which the Court could peg its redemption. Time would prove him right. In the spring of the following year, when it rendered its final decision in Brown, the Court chose to interpret the Fourteenth Amendment in light of modern-day circumstances rather than to be guided by whatever practices were in place at the time of the amendment’s ratification. Writing for a unanimous Court in Brown, Chief Justice Earl Warren concluded with regard to the amendment’s legislative history:

“This discussion and our own investigation convince us that, although these [historical] sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive. The most avid proponents of the post-(Civil) War Amendments undoubtedly intended them to remove all legal distinctions among ‘all persons born or naturalized in the United States.’ Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty.”

Years later, summarizing the historians’ role in Brown, Kelly wrote, “The historians had produced at least the ‘draw’ that Marshall and his colleagues had asked for. It was all they needed in order to win. So we historians can assure ourselves, I think, that we had something to do with the victory.” Marshall certainly agreed. Kelly recalled that Marshall thanked the historians who assisted in the research, “assuring us that enlisting the history profession on his side had been the NAACP’s smartest move in the whole complicated case.”

History, as well as the historians, had proved to be on Marshall’s side, assisted by his own cunning and perseverance. But the forces that produced the ultimate victory over segregation were set in motion long before Kelly and the other historians came on the scene. The catalyst for Marshall’s success was American society itself, particularly the injustices that steeled his determination to break down racial barriers. He had lived with them all his life.

Thurgood Marshall’s parents, Norma and William Marshall in the living room of their Baltimore home in 1947. Marshall’s father ordered him to “fight” any one who called him “nigger.” (Courtesy Moorland-Springarn Research Center, Howard University.)

THREE

Growing Up in
Baltimore

Anyone calls you “nigger” you not only got my permission to fight him—you got my orders to fight him.”
—William Canfield Marshall

Thurgood Marshall was born July 2, 1908, in Baltimore, Maryland, in the Chesapeake Bay region that proclaims itself “The Land of Pleasant Living.” It was a city where many white people remained proud of being south of the Mason-Dixon Line.

His maternal great-grandfather, a slave whose name the family never knew, was brought to America by slave traders during the 1840s and sold to a plantation owner on Maryland’s Eastern Shore. Marshall said his great-grandfather came from the Congo, known as the Republic of Zaire since 1971: “His more polite descendants like to think he came from the cultured tribes in Sierra Leone, but we all know that he really came from the toughest part of the Congo.”

In a Time magazine interview, Marshall described his great-grandfather as “one mean man.” Elsewhere he characterized him proudly as the “baddest nigger” in Maryland. “One day his owner came up to him and said, ‘Look, I brought you here so I guess I can’t very well shoot you—as you deserve. On the other hand, I can’t with a clear conscience sell anyone as vicious as you to another slaveholder, and I can’t give you away. So, I am going to set you free—on one condition. Get the hell out of this county and never come back.’

“That was the only time Massuh didn’t get an argument from the old boy,” Marshall added. Still defiant, his great-grandfather married a white woman and raised his family just a few miles from his former owner’s plantation, living there until he died.

Thurgood Marshall speaks fondly of his forebears, often using the word nigger because he understands the expression is spoken affectionately in black social circles, especially among groups of light-skinned middle-class blacks. The words colored, Negro, and black were equally respectable terms for more than half a century. Then, in the mid-1980s, black Americans sought a linguistic mechanism for identifying with their African heritage by calling themselves “Afro-Americans or African Americans.” In his formal writings and speeches, Marshall settled for a while on African American. Finally, in 1991, he declared he would no longer employ black or Negro: “I use the term Afro-American because the term is a more respectful reflection of the contributions that descendants from diverse and culturally rich African traditions have made to the mosaic of American society.”

Thurgood Marshall traced his family’s history and name to Africa. The only name many slaves had was their owner’s. Thurgood’s paternal grandfather was a freedman—a former slave—known as Marshall. During the Civil War he joined a black regiment, one of 186,000 former slaves to fight with Union troops. Soldiers were required to have first and last names, so he took the first name Thoroughgood to comply with that regulation. “I was named after him,” Marshall told an interviewer, “but by the time I was in second grade, I got tired of spelling all that and shortened it.”

At the end of the Civil War, Thoroughgood Marshall joined the U.S. Merchant Marine. When his tour ended he settled in Baltimore, the home of his merchant marine vessel, and married Annie, a mulatto from Virginia who was uncertain of her heritage. She had been raised in Virginia by family members whose complexions were much darker than hers. Most likely her father had been a white Virginia slave owner and her mother a slave.

Maryland census takers did not know whether to classify Annie Marshall as black or white. “She never knew her real name, her age, her parents, or her race,” Thurgood Marshall recalled. “All she knew was that she was raised by a Negro family in Virginia— and she never changed her story, no matter what the census takers threatened.

Thoroughgood Marshall had saved several hundred dollars while working as a merchant marine and received a military pension. He opened a grocery and produce store at the corner of Dolphin and Green streets in west Baltimore. He used a second name, Thornygood, which allowed him to receive a second pension check from his merchant marine service. Whether he did this deliberately is a matter of dispute. Thurgood Marshall speculates the duplicity of names and the double pension checks may have resulted more from Thoroughgood Marshall’s “poor penmanship” than an attempt to defraud the government.

Thoroughgood and Annie Marshall took pride in their home, their neighborhood, and their grocery store. When workmen from the Baltimore Gas and Electric Company arrived to erect a light pole in front of the store, Annie Marshall became furious. She told them the sidewalk in front of the store belonged to her and she did not want a light pole there. The utility company obtained a court order and sent a work crew to raise the pole.

The workmen arrived the next morning and found Annie Marshall sitting firmly in a cane-backed kitchen chair directly over the place where the utility company planned to raise the light pole. The men returned for three days and each day found a determined Annie Marshall sitting in her kitchen chair. The company finally gave up and found another location to erect its pole. In 1965 Marshall told an Ebony magazine writer, “Grandma Annie emerged as the victor of what may have been the first successful sitdown strike in Maryland.”

Thoroughgood and Annie raised a family at 1838 Druid Hill Avenue in west Baltimore, a racially mixed neighborhood where whites and blacks, Jews, Episcopalians, and Catholics lived side by side. It was a proud neighborhood of three-story brick and brownstone houses with arched doorways and Baltimore’s fabled white marble steps, which homeowners scrubbed religiously each Saturday. It was a good house and a good neighborhood, especially for a black family, shortly before the turn of the century, with upwardly mobile ambitions.

Many affluent black families—the Ridleys, the Murphys, the Rhettas, and the Kogers—resided side by side with white families. “If you were a black person and owned a house on Druid Hill Avenue in those days, you had arrived,” said Betty Murphy Moss, a member of the black fourth-generation Baltimore family who published the Afro-American newspapers.

In other sections of Baltimore, black families of lesser means lived in squalid, cobblestoned back alleys and ramshackle dwellings that were once slave quarters, carriage houses, or stables. Biddle Alley, a short distance from the Marshall house, was known as “lung block” because so many of the people there had tuberculosis. The death rate from tuberculosis in the area was 958 per 100,000 people, compared with 131.9 for the rest of the city. A 1907 housing survey by the Association for the Condition of the Poor found only one outdoor toilet for every two alley houses.

Elite white families who traced their heritage to the revolutionary war lived only four blocks away, in an area now called Bolton Hill. White flight to the surrounding Maryland suburbs would not begin for another forty years.

Today the Marshall family house on Druid Hill Avenue, the birthplace of Thurgood Marshall’s father, William Canfield Marshall, stands vacant, its windows and doors covered with half-inch sheets of plywood. Broken liquor bottles, empty beer cans, and spent condoms clutter a yard overgrown with weeds. Druid Hill Avenue has become a black working-class area that suffers the agony of many of America’s inner-city neighborhoods—crime, hard-core unemployment, poverty, and drugs.

Synagogues, where the neighborhood’s Jewish population worshiped in the early 1900s, have been converted to Christian churches with black congregations or convenience stores where clerks serve customers from behind thick sheets of bulletproof glass. Six-pointed Stars of David remain carved in their stone facades. Only the few remaining wrought-iron boot scrapers at the foot of the marble steps and the chipped marble carriage-mount blocks bespeak the once-proud neighborhood. Few would imagine they are passing through the neighborhood where a former Supreme Court justice spent his childhood.

Thurgood Marshall’s maternal grandfather was a sailor who loved opera. Isaiah Olive Branch Williams, like Thoroughgood Marshall, served in the merchant marine, after completing a three-year tour of duty in the Union army during the Civil War. Williams, who lived in Maryland’s Washington County, joined the Seventh Regiment U.S. Colored Troops in October 1863. He was nineteen years old. A year earlier, the Maryland General Assembly had passed a bill providing a three-hundred-dollar payment for the state’s white men who enlisted. Black men, however, received only fifty dollars on enlistment and fifty dollars on discharge. Williams’s enlistment is recorded on the Bounty Rolls of Colored Troops in the Maryland State Archives in Annapolis.

Williams received a commendation for “coolness and bravery in action” from his commanding officer, Maj. Edelman M. Lockwood. His citation said: “On October 28, 1864, he advanced beyond the skirmish line to a very conspicuous place for the purpose of ascertaining the position of the enemy’s artillery.”

Black troops of the Seventh Regiment were housed in the Birney Barracks on Holliday Street in east Baltimore. It was there, on November 1, 1864, that Williams and other black soldiers stood in review as General D. B. Birney announced that Maryland’s General Assembly, four hours earlier, had adopted a constitutional amendment abolishing slavery in the state.

Williams’s name appears on a list of black Civil War soldiers who deposited their military pay at the Baltimore branch of the Freedmen’s Savings and Trust Company. His account, number 240, had a balance of fifty dollars in December 1864 when he married Mary Eliza, settled in Baltimore, and opened a grocery store. Thurgood Marshall said Williams spoke often about one of his ports of call, Arica, Chile, where he had attended a performance of Vincenzo Bellini’s 1831 opera Norma. When the couple had a daughter—Thurgood’s mother—they named her Norma Arica. He had also become enamored with the works of William Shakespeare. They named two of their other children Avonia Delicia and Avon—a girl and a boy—after the river near the Shakespeare home. They named their other children Cyrus Mentor and Ravine. Denmedia Marketa was the name they chose for the grocery store.

After the war Williams bought a house in west Baltimore, next door to a white man who attended the integrated St. James Episcopal Church with the Williams family. He did not particularly like living next door to a black family, but when the fence between their houses needed repair, he reluctantly sought Williams’s help. “After all,” he explained, “we belong to the same church and are going to the same heaven.”

Williams told his neighbor, “I’d rather go to hell.”

Isaiah Williams was active in public protests to improve conditions for his fellow black citizens. In the 1870s he organized a mass meeting to protest the beatings of several black citizens by the Baltimore police officers. It was the first time the city’s usually passive black community demonstrated that it could unite in a common cause. During the post-Civil War era, when the Ku Klux Klan and other groups were making strident efforts to establish their racial supremacy in Maryland, an act of black defiance was unusual.

Norma Arica Marshall attended Baltimore’s segregated schools and, like her mother, became an elementary school teacher. She graduated from Maryland’s black Coppin Normal College and later earned graduate credits at Columbia University’s Teachers College in New York City. Like her father, she had a passion for music. She sang and played the piano in local opera and theater productions.

Norma and William Canfield Marshall had gone to school together, and though their families operated competing grocery stores in the same neighborhood, they became friends. They married in 1904, when she was seventeen and he was twenty-one, and had Aubrey that same year and Thurgood four years later.

In 1909 the Marshalls moved temporarily to New York City and took a small apartment in Harlem while Norma Marshall pursued graduate studies in education at Columbia. They returned to Baltimore frequently to visit family and friends and moved back there after five years, when Thurgood Marshall had turned six.

Both of Thurgood Marshall’s parents were light-skinned. This set them apart in color-conscious Baltimore, where lighter-skinned black people were treated better by white people than those with less white blood in their veins and more black pigmentation in their skin. Black color consciousness and its political ramifications would surface repeatedly throughout Thurgood Marshall’s life. But the Marshalls were strong race people, proudly aware of their black heritage as well as the limitations placed on all black Americans, even those like William Canfield Marshall, who had straight hair and blue eyes.

At the time of Thurgood’s birth, his father worked for the Baltimore & Ohio Railroad as a Pullman dining-car waiter on the Washington-to-New York run. Though a good job for a black man without a college education, it often required him to be away from home. With two infant sons who needed his love and attention, Will Marshall left the railroad and became a waiter at the whites-only Gibson Island Club, located on a peninsula that juts into the Chesapeake Bay, twenty miles southeast of Baltimore.

Thurgood Marshall’s relatives described him as a baby with big, dark eyes and curly hair, a description confirmed by his childhood pictures. His aunt Media Dodson said he was a “timid” child. She told a Time magazine writer: “One day—he must have been around five—he stopped crying and became a pretty tough guy. Now, I don’t know what caused the change. Maybe the boys slapped his head.”

His aunt Elizabeth Marshall told an interviewer, “He wasn’t any Mama-dress-me-and-send-me-to-Sunday-School sort of boy. He was always a smart, alert little fella, full of life and laughter.”

A friend of the Marshall family, Odell Payne, told Ebony magazine Thurgood was “a jolly boy who always had something to say.” But she added that he appeared to be harboring serious thoughts at an early age. “I can still see Thurgood coming down Division Street every Sunday afternoon about one o’clock. He’d be wearing knee pants with both hands dug way into his pockets and be kicking a stone in front of him as he crossed Dolphin Street to visit his grandparents at their big grocery store on the corner. He was in a deep study, that boy, and it was plain something was going on inside of him.”

Thurgood was high-spirited and rambunctious, traits that often got him into trouble. A New York Times Magazine story quotes Thurgood Marshall as saying, “We lived on a respectable street, but behind us were back alleys where roughnecks and the tough kids hung out. When it was time for dinner, my mother used to go to the front door to call my older brother. Then she’d go to the back door and call me.”

His elementary school principal would send recalcitrant students to the school’s basement with a copy of the Constitution and orders to memorize a passage before returning to the classroom. Thurgood spent many hours in the basement. “Before I left that school,” he later told a reporter, “I knew the entire Constitution by heart.”

It was in the school basement that he first became concerned about certain provisions of the Constitution, especially the Fourteenth Amendment’s guarantee of equal rights. He knew that Baltimore’s white children—his neighbors—attended newer schools, while the city’s black children went to schools like his own on Pennsylvania Avenue, which needed repair, had no playground, and used outdated, worn books passed down from the white school system.

Thurgood thought the Constitution had special meaning for black Americans, especially the Thirteenth, Fourteenth, and Fifteenth Amendments, passed by the Reconstruction Congresses to protect the rights of newly freed slaves. In 1921 thirteen-year-old Thurgood asked his father why white citizens had more rights than black ones.

William Marshall did not have a formal education, but he possessed an analytic mind and kept abreast of current events, and he, too, had read the Constitution. He studied criminal and civil court cases as a hobby, reading newspaper accounts of trials in the Baltimore Sun and spending many of his free hours, frequently accompanied by young Thurgood, as a spectator in Baltimore’s courtrooms. When he served on a grand jury—the first black man to do so in Baltimore—he became angry because jurors always asked whether the person under investigation was white or black and blacks were far more likely to be indicted than whites. On his third day of service he suggested the panel abandon the practice of determining an individual’s race before deciding whether or not to return an indictment. To Marshall’s surprise the white jury foreman agreed with him, and the race question was never again raised by that jury.

William Marshall told his thirteen-year-old son the Constitution was the Founding Fathers’ blueprint for the way things should be, not a description of the way things were. He explained that, shortly after the Civil War, Congress passed bills designed to safeguard the rights of black Americans. But the Supreme Court soon retrenched, handing down decisions sharply restricting the scope and intent of the post-Civil War legislation. These crippling decisions returned control of civil rights to the states, and black Americans lost much of what they had gained.

At its inception, he explained, the Constitution included provisions that recognized slavery in states where it existed, and when questions on the status of blacks came increasingly before the Court, slavery was upheld. He described the separate-but-equal doctrine enunciated by the Court in Plessy v. Ferguson, which reinforced emerging practices of segregation and precipitated a flood of state laws putting it firmly and legally in place. At the end of Reconstruction, white political rule in the South was restored. Slavery was no longer the nation’s prime racial issue. It had been replaced by the practices of segregation and discrimination.

Thurgood Marshall told a U.S. News & World Report writer that it was his father who steered him toward a legal career. “He never told me to become a lawyer, but he turned me into one. In a way, he was the most insidious of my family rebels. He taught me how to argue, challenged my logic on every point, by making me prove every statement I made, even if we were discussing the weather.” Though it would make an appealing footnote, Marshall has never claimed that reading the Constitution in the school basement was a catalyst for his legal career.

As Thurgood Marshall grew up, political developments further encroached on the rights of black citizens. Maryland, Oklahoma, and several other states began passing Jim Crow legislation designed to disfranchise black voters and mandating separate facilities for blacks and whites in public accommodations. Many southern states instituted laws providing that only citizens whose ancestors had been entitled to vote before the Civil War could cast ballots in current elections without taking literacy tests. Prospective black voters who could not satisfy the criterion had to take examinations that were designed to make them fail. The result was a severe restriction of black voting rights.

Norma Marshall hoped Thurgood would become a dentist, filling cavities instead of filing briefs. As a second-generation teacher she believed education was important. She challenged her sons intellectually and followed their progress in school closely. It was an easy task. Her brother and her colleagues were her sons’ teachers. Thurgood Marshall’s uncle “Fearless” Cyrus Williams taught mathematics at the elementary school Thurgood attended and monitored his nephew’s schoolwork closely. He gave him an A in algebra and said it was earned. Despite his rambunctious behavior, Thurgood earned good grades in his other subjects, too.

Norma Marshall also exercised other controls over the playful Thurgood. “Mama taught me a lot,” Thurgood remembered. “She used to say, ‘Boy, you may be tall, but if you get mean, 1 can always reach you with a chair.’”

Despite the high expectations his parents held for his future, Mary Eliza Williams, his maternal grandmother, adopted a practical approach guided by her realization of discrimination and segregation in America. She took her grandson into her kitchen one day and told him she was going to teach him to cook. “I am with your parents in wanting you to be a professional man,” she said, “but I want to make sure you can always earn a dollar. You can pick up all that other stuff later, but I bet you never saw a jobless Negro cook.” Though he never had to earn his living as a cook, Grandma Mary’s lessons were not lost on her grandson. Cooking—especially she-crab soup, a state delicacy made from Maryland’s famous blue-claw crabs—became a lifelong hobby.

William and Norma Marshall sheltered their sons in a home filled with love, the necessities of life, and protection from the brutality and violence spawned by racism. But there came a time when young Thurgood discovered that the world outside was much different from the protected and nurtured existence he enjoyed.

Years later he told a Time magazine reporter about the incident that brought this awakening, “I heard a kid call a Jewish boy I knew a ‘kike’ to his face,” Marshall explained. “I was about seven. I asked him why he didn’t fight the kid. He asked me what would I do if someone called me ‘nigger’—would I fight? That was a new one on me. I knew ‘kike’ was a dirty word, but I hadn’t known about ‘nigger.’ I went home and wanted to know right that minute what all this meant. That’s not easy for a parent to explain so it makes any sense to a kid, you know.”

Will Marshall indeed had difficulty defining the racial slur, but he had no problem telling young Thurgood how he should respond when anyone called him “nigger.” “Anyone calls you ‘nigger,’ you not only got my permission to fight him—you got my orders to fight him.” It was an order Thurgood Marshall would follow physically and legally for the rest of his life.

The first occasion that inspired Thurgood to carry out his father’s command took place in 1922, when Thurgood was a fourteen-year-old high school student with an after-school job delivering supplies for a Baltimore hat company. It was the first time he met racial hostility face-to-face. One Saturday, the day before Easter, he was carrying a tall stack of hatboxes and could barely see over them. While he waited for the streetcar he chatted with one of his father’s friends, a black man named Truesdale. When the streetcar arrived, Thurgood juggled the hatboxes as best he could and stepped up the platform. A white man grabbed his arm and yanked him backward. “Nigger, don’t you push in front of no white lady again,” the man said.

“I hadn’t seen any white lady,” Marshall recalled. “I tore into him.” The hatboxes fell to the pavement as Thurgood and the white man went at each other. Truesdale tried in vain to separate them.

Several minutes later, policeman Army Matthews arrived and broke up the fight. His handling of the incident was far different from what another officer’s might have been. In the early twentieth century, especially in the South, a black man striking a white man was almost certain to be arrested and might well be beaten by white onlookers or even the police. Few white policemen would have been willing to listen to a black person’s side of a racial dispute. But Matthews, a white policeman with a neighborhood reputation for racial tolerance, asked Truesdale to describe the events that precipitated the fight. He then took Marshall and the white man to the police station and released them a short time later without filing charges.

The second event that made Marshall painfully aware of segregation took place one Saturday shortly after that hatbox incident. He discovered there were no public restrooms for black people, not even in the department stores where their patronage and dollars were welcomed. He hopped aboard the trolley, hoping it would carry him quickly to his home. He made it as far as the front door. It was an indignity he would never forget.

Though he had become a defender of his rights, dignity, and self-worth, Marshall soon learned that pragmatism pays. His father helped him obtain a summer job as a waiter where he once worked, on the Baltimore & Ohio Railroad. Thurgood would use the money to help pay his college expenses. On his first day at work the dining-car steward gave him a pair of waiter’s pants. The tall, lanky teenager found the pants too short and asked for another pair. “Boy,” said the steward, “we can get a man to fit the pants a lot easier than we can get pants to fit the man. Why don’t you scrunch down a little more?” Years later Marshall, with a laugh, recalled, “I scrunched.”

One of the qualities that endeared Thurgood to his friends and colleagues over the years was a pragmatic tendency not to take himself too seriously. As a young man of twenty-one, in 1929, he worked as a waiter at the posh Gibson Island Club in the Chesapeake Bay, which is separated by a narrow causeway from the mansion-strewn Maryland mainland near Annapolis.

The club, in its grandeur, was a haven of exclusivity for the white power elite that came thirty-five miles from Washington to dine on the finest crab dishes and oysters in the world while politicking under portraits of Confederate generals. Marshall’s father had been working there for a number of years as the head steward, and he hired Thurgood that summer so he could earn money for his law school tuition. One evening a U.S. senator from a western state entered the dining room escorting two attractive young women. “Nigger, I want service at this table!” he announced, summoning young Thurgood. Throughout the evening, and on other nights that followed, Marshall served the senator and his coterie adroitly, despite the senator’s prodigious use of the word nigger while Marshall attended to him.

Disturbed by the man’s incivility, one of the club members, Senator “Cotton Ed” Smith of South Carolina, finally called Marshall aside and asked, “Thurgood, what’s that senator callin’ you?” Marshall replied that the senator was merely calling him “boy,” racially derogatory but acceptable in civilized white society.

Thurgood could not lie to his father, however, who from the doorway heard the abuse to which his son submitted sheepishly. It was too much to take for a man who taught his son early to fight anyone who called him “nigger.” The elder Marshall scolded him: “Thurgood, you are a disgrace to the colored people!”

That prompted a confession from Thurgood. Each night when the offending senator left, he tipped Thurgood twenty dollars. As Marshall confided to a friend many years later, “In a few days, I got myself almost enough money to pay off all my bills.” So he told his pal in a jocular, folksy drawl, “Anytime you wanna call me ‘nigger,’ you just put your twenty dollahs down on this table. And you can keep doing it all day. But the second you run outta them twenties, I’m gonna bust you in the nose.”

Thurgood completed high school in 1925, at the age of sixteen, and worked that summer to earn money for tuition and books at Lincoln University. At the end of the season he had not earned enough, so Norma Marshall pawned her wedding and engagement rings and gave him the money. She never redeemed them.

Thurgood’s brother, William Aubrey Marshall, had completed his undergraduate education and was now attending medical school at Howard University in Washington, D.C., on his way to becoming an eminent chest surgeon. Norma Marshall held fast to her desire for Thurgood to become a dentist, for she was convinced the medical profession would be a safe harbor for her sons and ensure their economic success.

During the 1920s the choice of black students destined for college was limited. White southern colleges did not accept them. That was the law. Very few black students attended integrated schools in other parts of the United States. Thurgood applied to Lincoln University in Chester, Pennsylvania, the nation’s oldest black college and his brother’s alma mater. It had been founded in 1854 by a Presbyterian minister and his wife. Lincoln’s charter called for “the scientific, classical and theological education of colored youth of the male sex.” Though it now accepts male and female students of all races, it was all black and all male and had an all-white faculty at the time Marshall attended. Known as the “black Princeton” because most of its faculty had been educated at that Ivy League institution, Lincoln attracted students from America’s black middle class and from African and Asian countries.

More than half of the school’s alumni went on to graduate work and professional careers. Marshall’s classmates included educators William V. Fontaine, Therman B. O’Neal, Fannin Belcher, and W. Edward Farrison. Toye Davis would become a noted physician with degrees from Harvard University. Kwame Nkrumah was a future president of Ghana, and Benjamin Nnamdi Azikiwe became the first African governor general of Nigeria. Cabell Calloway, Marshall’s childhood friend from Baltimore, attended Lincoln with him for two years before dropping out to become internationally renowned as bandleader Cab Calloway. Langston Hughes, who had already started his literary career, was another classmate and one of Marshall’s closest friends. He would become the poet laureate of Harlem’s Black Renaissance and black America’s strongest literary voice.

During his first semester at Lincoln, the seventeen-year-old Marshall, no longer under the guidance of his parents, continued his pranks. He was a founding member of the school’s Weekend Club, a group of happy-go-lucky, party-going students who proudly boasted they never opened a book or could be found studying on the Lincoln campus on weekends. He played pinochle and poker frequently and later confided to friends that he played well enough to keep himself in spending money.

In his sophomore year, Thurgood and several fellow students delighted in hazing freshmen. One night they descended upon the freshman dormitory and shaved the heads of most of the underclassmen. The school’s administration did not look kindly upon their tonsorial zeal and charged twenty-six sophomores, including Marshall and Hughes, with the deed. Hughes drafted a statement acknowledging collective guilt, which was signed by each member of the group. They were collectively fined $125, and Marshall, Hughes, and several others were suspended for two weeks. “I got the horsin’ around out of my system,” Marshall recalled.

Despite his antics and his assertion that he “never cracked a book,” Marshall obtained good grades. He maintained a B average and read prolifically. He was impressed with the writing of educator W. E. B. Du Bois, a founding member of the NAACP and author of The Souls of Black Folk, a pointed collection of essays on black life in America. Du Bois was also editor of the NAACP’s Crisis , and his searing editorials in the magazine struck right at the heart of America’s racial inequities. During his final two years in college, Marshall became interested in the emerging literature of the Harlem Renaissance, an era that produced a prolific outpouring of contemporary black writers, including Countee Cullen, Claude McKay, Jean Toomer, and Hughes. His exposure to these “race writers” stimulated his intellectual curiosity about the role of black people in America.

“Lincoln was a school of all Negroes with one or two exceptions,” Marshall told the American Bar Association Journal. “And an all-white faculty. We argued over general principles. And we were brainwashed. We discussed it [discrimination],” he recalled. “What we discussed was, why did we have to take it? Why shouldn’t we do something about it?”

One night Marshall went with a group of six fellow students to a movie theater in nearby Oxford. After they purchased their tickets, an usher reminded them that black patrons were restricted to the balcony, commonly referred to as the “nosebleed section” or “nigger heaven.” The students ignored the usher’s admonition and took seats in the theater’s whites-only orchestra. When the usher ordered them to move, they kept their seats, seemingly engrossed with the western movie. Thurgood recalled hearing a bitter voice in the theater’s darkness saying, “Nigger, why don’t you just get out of here and sit where you belong?”

Marshall told the man that he had paid for his ticket and did not intend to move from his comfortable orchestra seat. Recalling the incident in a letter to his parents, he wrote, “You can’t really tell what a person like that looks like because it’s just an ugly feeling that’s looking at you, not a real face. We found out that they only had one fat cop in the whole town and they wouldn’t have the nerve or the room in the jail to arrest all of us. But the amazing thing was that when we were leaving, we just walked out with all those other people and they didn’t do anything, didn’t say anything, didn’t even look at us—at least, not as far as I know. I’m not sure I like being invisible, but maybe it’s better than being put to shame and not able to respect yourself.”

Thurgood said the Oxford movie theater incident started his civil rights career. “The leader of that group at Lincoln was a guy named U. S. Tate. “He was the leader who said we ought to do something about it. We desegregated the theater in the little town of Oxford. I guess that’s what started the whole thing in my life.”

As a religion-based institution, Lincoln encouraged students to attend church services, and Marshall and several of his friends frequently went to Philadelphia’s Cherry Street Memorial Church. Years later Marshall provided an explanation for their becoming churchgoers: “We went there [Cherry Street Memorial Church] because we learned that’s where all the cute chicks went.”

Vivian Burey, a University of Pennsylvania undergraduate, was the “cute chick” who quickly caught Marshall’s eye. They dated on weekends, sometimes attending the Oxford movie theater he had integrated with his classmates, and they soon fell in love. “First we decided to get married five years after I graduated, then three, then one, and we finally did, just before I started my last semester,” he recalled. They were both twenty-one years old when they married on September 4, 1929. It was a childless marriage, with four miscarriages, that was to last for twenty-five years, until Vivian’s death from cancer in February 1955.

Thurgood and Vivian, who had already received her degree, moved into a small apartment in Oxford, not far from the Lincoln University campus. Vivian “Buster” Marshall, who had a reputation for being a smart and levelheaded woman, had a stabilizing influence on her husband’s life. His days of campus carousing and drinking with classmates came to an abrupt end. It was time to get down to the hard and serious business of supporting a wife and paving the financial path for his continuing education. He took part-time jobs as waiter and bellhop to meet the rent on the small apartment, pay tuition, and buy textbooks for his last semester at Lincoln. Vivian worked full-time as a secretary.

Marshall, who had honed his forensic skills in combative discussions with his father, joined the college’s debating club his sophomore year. He was the star of Lincoln’s debating team and led the squad to a long string of impressive victories against white schools, including Bates, Bowdoin, and Colby. His oratorical skills and fiery delivery earned him the nickname “the Wrathful Marshall.” “If I were taking debate for credit, I would be the biggest honor student they ever had around here,” he wrote in a 1929 letter to his father.

That year, while Lincoln’s debating club flourished, its football team suffered a series of crushing defeats. At a pep rally the night before the homecoming game, Marshall leaped to the stage and delivered an enthusiastic twenty-minute-speech. The next day Lincoln’s football team played its finest game of the season. The result was a scoreless tie, but Marshall took credit for it, saying that the team had put an end to its long string of defeats and at least had not lost the important game.

In June 1930 Marshall marched to receive his bachelor’s degree with honors as his proud parents and wife sat in the first row. He had majored in American literature and philosophy. As Norma Marshall watched her son receive his diploma, she knew he was not going to be a dentist.

William and Norma Marshall offered their son and daughter-in-law a home in their Baltimore row house. It was a graduation present, for the elder Marshalls understood the young couple would need to save every dollar they could for Thurgood’s law school expenses. Buster and Thurgood accepted. Norma Marshall liked Buster and believed she would be a settling, stabilizing influence on her son. The two women were kindred spirits with a common interest—Thurgood Marshall. Buster redecorated Thurgood’s old third-floor bedroom, and the couple settled in, ready to take on the challenge of law school.

The Man Who Killed Jim Crow. Lawyer, NAACP litigation director and former Dean of Howard University Law School Charles Hamilton Houston. He was involved in nearly every civil rights case brought to the Supreme Court between 1930-1954. Houston also trained Supreme Court Justice Marshall. Source: http://www.the root.com.

FOUR

Howard Law School and the
Social Engineers

Build a law school and train men to get the constitutional rights of [your] people. Once you train lawyers to do this, the Supreme Court will have to hand your people their civil and constitutional rights.—Louis Dembitz Brandeis

Thurgood applied to the University of Maryland’s Law School in 1930. It was a logical choice. The law school was located in downtown Baltimore, on Redwood Street, a ten-minute trolley ride from the Marshall family home. As a Maryland resident, Marshall would pay less tuition than he would at an out-of-state law school. After graduating, he would be well steeped in Maryland law and ready to begin his Baltimore law practice.

But as Baltimore Sun columnist H. L. Mencken later observed, there had never been an “Ethiop among the Aryan, larval Black-stones” at the state law school, and the University of Maryland was not about to make an exception for this black native son. Thurgood Marshall would avenge that decision later. In the meantime he applied for, and was quickly admitted to, Howard University’s law school in Washington, D.C.

Howard University was founded in 1867 in an old red-brick dance hall on a Georgia Avenue hill two miles north of the nation’s Capitol. It opened as a school for freed slaves, but its charter did not specifically mandate the race of prospective students. Federally funded, Howard produced most of the nation’s black lawyers, scientists, doctors—including Aubrey Marshall— dentists, nurses, pharmacists, educators, engineers, and architects. It was the citadel of graduate and professional education for America’s black students.

Marshall committed himself to the study of law and the twice-a-day forty-mile rides in segregated rail cars, reading law books all the way. It was a grueling schedule. During his first year in law school, Thurgood left Baltimore every weekday at 5:30 A.M., attended classes until 3:00 P.M., then returned to one of his part-time jobs as a waiter, a bellhop, and a baker at Preece’s Bakery on Pennsylvania Avenue. Then he studied until midnight. “I heard law books were to dig in,” he said, “so I dug deep. I got through simply by overwhelming the job, and I was at it twenty hours a day, seven days a week.”

Despite the rigorous routine, during which time the weight on his six-foot frame dropped from 170 to 130 pounds, law school proved a rewarding and challenging experience. Remembering his first week at Howard, he said, “This is what I wanted to do for as long as I lived.” Thurgood said that he enjoyed the forensic debates and the verbal sparring that went along with his studies and that he believed his oratorical skills would be an asset in the practice of law.

In 1929, the year before Marshall arrived at Howard, Charles Hamilton Houston was appointed the law school’s vice dean. This was one of the most significant events in Thurgood Marshall’s legal career and in the lives of hundreds of other black law students who earned their degrees at the “school on the hill.” Houston was the man who transformed Howard’s law school into a fully accredited institution and then used it as the NAACP’s “legal laboratory” to plan strategies for important civil rights cases. Houston became Marshall’s teacher, his mentor, his colleague, and his friend.

Howard’s law school opened on January 6, 1869. The part-time evening program was coeducational, interracial, and non-denominational, but it received little recognition in legal academic circles because it lacked accreditations from the American Bar Association (ABA) and the Association of American Law Schools (AALS), the professional organizations that set standards for legal education. Their approval was essential for the important professional recognition a law school’s students needed if they were to become successful lawyers. The ABA and the AALS did not look favorably upon Howard’s part-time evening program, with its understaffed faculty, its inadequate law library, and its small physical plant, at 420 Fifth Street NW. Even Washington’s black bourgeois community jokingly called it “Dummies’ Retreat.”

A 1922 Carnegie Foundation study of legal education in America concluded that the nation’s part-time afternoon and evening law schools were incapable of providing quality legal educations because they operated under lower educational standards than full-time day schools. Despite these allegations of inadequacy, Howard University Law School had already produced an impressive number of black and white graduates who had distinguished themselves professionally. Its alumni included William H. Hart, LL.B., 1887, who, while a law school professor at Howard, successfully litigated Hart v. State (of Maryland), a Jim Crow rail transportation case in which the state court held that forced separation of the races was unconstitutional in interstate travel. George W. Atkinson, a white graduate of the class of 1891, represented West Virginia in the U.S. House of Representatives while a Howard Law School student and, in 1896, became governor of his state.

Another of Howard’s white graduates, Emma M. Gillett, became a founder of the Washington College of Law, now part of the American University in Washington, D.C. Ironically, the coeducational law school that Gillett helped found did not accept blacks. In fact, most of the nation’s law schools not only did not admit blacks; they did not accept women of any race. In the 1920s other graduates included a U.S. registrar of the treasury, several municipal judges, and Charlotte Ray, a black woman who became the first American woman to graduate from a university-affiliated law school when she received her Howard degree in 1872. (The 1870 census had reported only five female lawyers in the United States.) She was also the first woman admitted to practice law in the District of Columbia.

In 1926 Dr. Mordecai W. Johnson was appointed Howard University’s first black president. A thirty-six-year-old Baptist minister, Johnson earned degrees at the Atlanta Baptist College (now Morehouse College), the University of Chicago, Harvard University, and Rochester Theological Seminary. He came from Tennessee and served briefly as pastor of a church in Charleston, West Virginia, before coming to Washington. Johnson, a light-skinned man with thin lips, a sharp nose, straight hair, and heavy, dark eyebrows, might easily have crossed the color line and passed for a white man. Instead, he fiercely reminded friends that his Caucasian features did not result from the “sexual aggressiveness” of his female slave forebears, because many slave owners had fathered mulatto children.

Only two of Howard University’s ten graduate schools—the dental and medical schools—were accredited at their inception, and in 1925, the year before Johnson arrived, the university’s federal appropriation totaled a meager $217,000. White southern professional and graduate schools did not accept black students, and only a few black high school graduates had the money and backgrounds to attend a few of the mostly white northern or western colleges. Mordecai Johnson inherited a university charged with the awesome responsibility of educating a large number of America’s black students who might not otherwise have an opportunity for advanced educations. But the university needed drastic improvements if it was to fulfill this mission.

Johnson brought a brash vigor and strict academic discipline to the task. He fired teachers he described as “deadwood,” faculty members who did not meet his high academic standards. He became a frequent visitor to Capitol Hill, where he lobbied Congress to increase the university’s appropriation. As president of a black university dependent on federal funds, he understood the importance of having access to and maintaining relationships with white people in positions of power, congressmen and senators who controlled the money he needed to build a first-rate university. Johnson did not go humbly before congressional committees seeking support for Howard. More than once he critically reminded legislators who controlled Howard’s appropriations how little they were doing to make Howard University an excellent institution.

He recruited some of the nation’s finest black scholars, among them E. Franklin Frazier in sociology, Ralph Bunche in political science, Charles R. Drew and Montague Cobb in medicine, Charles Burch and Sterling Brown in literature, Alain Locke in philosophy, E. E. Just in natural sciences, and John Hope Franklin and Rayford Logan in history. These were men who had already established themselves in distinguished academic careers. Leon A. Ransom, a black student first in his class at Ohio State University’s law school, and a young black lawyer from Texas, James Madison Nabrit Jr., a graduate of Northwestern Law School, also joined the faculty.

Amherst College graduate William Henry Hastie, who earned a degree from Harvard Law School, where he was an editor of the prestigious Harvard Law Review, also came to Howard to teach. Charles Houston’s second cousin by marriage, Hastie became the nation’s first black federal judge in 1949. Raised in a rural suburb of Knoxville, Tennessee, Hastie came to Washington, D.C., to work in the Bureau of Veterans Affairs. In 1930 he joined the law firm of Houston & Houston and began teaching at Howard. Houston and Hastie shared the compelling urgency to build a first-rate law school and to train quickly a group of superlative black lawyers.

Johnson maintained that Howard University as “an institution of learning, while it protect[s] the good and valuable in older traditions, must at the same time encourage that ‘higher individualism’ that constantly makes for new and greater values.” He knew he had to expand and increase the quality of the faculty, improve the physical plant, and broaden the curriculum. He also knew that the night law school, which still operated without ABA and AALS accreditations from the small brick row house on Fifth Street, was in serious trouble.

Johnson cultivated relationships with benevolent white friends in positions of power who contributed their time and talent toward his mission. One of Johnson’s closest friends was Supreme Court Justice Louis Dembitz Brandeis, a liberal, legal iconoclast much different from his staid brethren on the High Court. The first Jew to sit on the Supreme Court, he knew what it meant to be a member of a minority group. He took a paternal interest in Howard’s law school.

Brandeis and Johnson socialized frequently, even in segregated Washington, where white and black people did not eat in public together and seldom met as guests in private homes. They spent many evenings at each other’s homes discussing the Constitution’s unfulfilled promises to black America. One evening Justice Brandeis gave his friend some advice. “[Brandeis] told me that the one thing I should do was to build a law school and train men to get the constitutional rights of our people,” Johnson recalled, “He said, ‘Once you train lawyers to do this, the Supreme Court will have to hand your people their civil and constitutional rights.”

Brandeis said to him frankly, “I can tell you most of the time when I am reading a brief by a Negro attorney. You’ve got to get yourself a real faculty out there or you’re always going to have a fifth-rate law school. And it’s got to be full-time and a day school.”

In 1929 there were twelve million black Americans, and only eleven hundred of them were lawyers. Fewer than one hundred of them held degrees from accredited law schools. An aging white lawyer, Moorfield Story, had served as the NAACP’s appellate warrior in five civil rights cases before the Supreme Court. He died in 1929 at the age of eighty-four. Brandeis told Johnson that African Americans could no longer depend on the charity of white lawyers like Story to win important civil rights cases for them. This was a task they would have to prepare for and take on themselves.

Johnson took his friend’s advice and began making plans to upgrade the law school. He looked to Charles Hamilton Houston, a black Phi Beta Kappa graduate and class valedictorian from Amherst College, for help. Houston also held LL.B. and S.J.D. degrees from Harvard Law School and had graduated in the top 5 percent of his law school class. Since 1924 he had taught part-time at Howard Law School and worked in his father’s Washington law firm.

After Harvard, Houston spent a memorable year studying at the University of Madrid and traveling in Spain and Italy, where he saw a world much different from his native Washington, D.C. It was a world in which he could eat in any restaurant when he had the money to pay the bill, sit where he wished on public transportation, and enjoy the opera from the orchestra section at Madrid’s opera house. It was a world in which the color of a person’s skin had little to do with the rights he or she enjoyed.

Houston was the only son of a prominent Washington couple, William and Mary Houston. He was born on September 3, 1895. His father worked as a clerk in the Record and Pension Office of the War Department while earning his degree at Howard University’s night law school. He opened a small legal practice in Washington that did well, even as the nation was entering the Great Depression.

While Charles Houston labored on wills, civil suits, and property transfers for his father’s law firm, he harbored a desire not just to practice law but to teach it. He arrived at that decision during his days at Harvard Law School, even though he once confided to a friend, poet Sterling Brown, that he agreed that “those who can, do, and those who cannot do, teach.”

Like Justice Brandeis and Mordecai Johnson, Houston was concerned about the quality of legal education for African Americans. Houston studied under some of the nation’s greatest legal minds, and they convinced him it was necessary to develop a cadre of competent black lawyers to fight for the rights of black Americans. Houston’s mentors included Professors Felix Frankfurter and Joseph H. Beale and Harvard Law School dean Roscoe Pound. Houston believed teachers and legal scholars were the foundation of any law school that wanted to produce competent lawyers, especially lawyers with the commitment to win equal rights for millions of Americans.

Frankfurter had taken a special interest in Houston while he was a Harvard student, inviting him to his Cambridge home for dinners prepared by his wife, Marion. Frankfurter was born in Vienna and was the only Jew on the Harvard Law School faculty. He was a founder of the American Civil Liberties Union (ACLU) and served on the Legal Advisory committee of the NAACP. He argued with Harvard president Abbott Lawrence Lowell over the school’s quota on the number of Jewish students admitted to Harvard. He was a guiding influence in Houston’s legal education and helped Houston win the eighteen-hundred-dollar Sheldon Traveling Fellowship in 1923 that made it possible for him to study at the University of Madrid, where he met Roscoe Pound.

In December 1923 Roscoe Pound and Felix Frankfurter sent letters of recommendation to Howard dean Fenton W. Booth in support of Houston’s application for a part-time faculty position. Frankfurter wrote that Houston was one of his best doctoral students at Harvard Law School. In 1924 Houston accepted Fenton’s offer to teach at Howard.

The improvement of Howard Law School was a task that might have taken people of lesser talent, vision, and vigor years to achieve, but Johnson and Houston were impatient pragmatists and understood the importance of a first-rate legal school for black students. They wanted it quickly.

James Madison Nabrit Jr., another law school professor, who would later succeed Johnson as the university’s president, warned Houston that the task of educating black lawyers was not an easy one. Nabrit explained, “The real problem in those days was that we didn’t have the facilities to argue moot cases. We didn’t have the law books, we didn’t have the [earlier] cases…We couldn’t use the facilities or contacts of the bar associations, since they wouldn’t let us belong.”

In fact, black lawyers were not admitted to local bar associations. The District of Columbia Bar Association excluded non-whites, maintaining that it was a private, professional organization with the right to maintain a selective membership. In 1932, Felix Frankfurter petitioned it to admit black lawyers, and, while the association denied his request, it did allow black law students to use its extensive law library.

In 1925 Houston and Washington lawyers George E. C. Hayes, Louis R. Mehlinger, and J. Franklin Wilson incorporated the Washington Bar Association for the “improvement or enhancement of professional skills as well as professional and citizenship responsibilities of the members.” Black lawyers now had their own professional association.

Houston welcomed the challenge of building a first-rate law school and he brought more than a keen, analytic legal mind and the desire to produce excellent lawyers to the job. He brought his friends. Frankfurter and Pound became frequent guest lecturers at the school, and in 1931 Clarence Darrow, the eminent trial attorney of the Scopes “monkey” trial and advocate of civil rights and civil liberties, gave a series of lectures. It was an academic luxury few law schools, even those affiliated with large state universities, could provide.

Endowed with a tremendous capacity for hard work, academic honesty, and scholarship, Houston demanded nothing less from his students. Thurgood Marshall remembered Houston as “hard-crust” when he came there as a student in 1930. “First off, you thought he was a mean so-and-so,” Marshall recalled. “He used to tell us that doctors could bury their mistakes, but lawyers couldn’t. And he’d drive home to us that we would be competing not only with white lawyers but really well trained white lawyers, so there just wasn’t any point in crying in our beer about being Negroes. And I’ll tell you—the going was rough. There must have been thirty of us in that class when we started, and no more than eight or ten of us finished up. He was so tough we used to call him ‘Iron Shoes’ and ‘Cement Pants’ and a few other names that don’t bear repeating. But he was a sweet man once you saw what he was up to. He was absolutely fair, and the door to his office was always open. He made it clear to all of us that when we were done, we were expected to go out and do something with our lives.”

In a speech to Howard law students many years later, Marshall said, “[What] Charlie beat into our heads was excellence.” He said that Houston, told his students, “When you get in a courtroom, you can’t just say, ‘Please, Mr. Court, have mercy on me because I’m a Negro.’ You are in competition with a well-trained white lawyer, and you better be at least as good as he is; and if you expect to win, you better be better. If I give you five cases to read overnight, you better read eight. And when I say eight, you read ten. You go that step further, and you might make it.”

Hastie later wrote of Houston, “He had a soldier’s faith that winning the fight is all that matters, that every battle must be fought until it is won and without pause to take account of those stricken in the fray. He reflected that conviction in a slogan which he gave to his students: ‘No tea for the feeble, no crape for the dead.’”

“Harvard was training people to join big law firms,” Thurgood Marshall remembered. “Howard was teaching lawyers to go to court. The emphasis was not on theory, the emphasis in this school was on practice, on how to get it done.”

Houston taught his students how to use the law to win civil rights and how to employ existing laws to fight racial injustice, constantly reminding them that upon graduation they would be not just lawyers but “social engineers.” Houston believed the school’s immediate objective was “to make itself a more efficient training school and to produce capable and socially alert Negro lawyers.” His term “social engineer” described his philosophy that good lawyers could use the law as “tools to construct a legal machinery that provides and protects the equal rights of all Americans.”

In early June 1928 Houston’s doctor, Edward Mazique, told him the lingering cold he thought he had actually was tuberculosis. The District of Columbia’s health codes prohibited tuberculosis patients from entering schools, so Houston reluctantly took a leave of absence during the 1929 academic year. But much to the dissatisfaction of his wife, Gladys, and his physician, he took his work to bed with him. He studied the Carnegie report and wrote a paper redefining his plan to win accreditation for Howard’s law school. He worked on the NAACP’s legal strategy to integrate education, and he kept in touch with his father’s law firm. From his sickroom came a flood of memos to Howard University president Mordecai Johnson, the law school faculty, and NAACP officials in New York City.

In one memorandum, “Personal Observations on the Summary of Studies in Legal Education as Applied to the Howard University School of Law,” he wrote: “Every group must justify and interpret itself in terms of the general welfare; the only justification for the Howard University school of law, in a city having seven white law schools, is that it is doing a distinct, necessary work for the social good,...the indispensable social function of eliminating legal racial discrimination in America.”

He went on to describe the mission and the responsibility of black lawyers. “The Negro lawyer must be trained as a social engineer and group interpreter, due to the Negro’s social and political condition. The Negro lawyer must be prepared to anticipate, guide and interpret his group’s advancement…Moreover, he must act as a business adviser... for the protection of the sacred resources possessed or controlled by the group…He must provide more ways and means for holding within the group the income now flowing through it.”

By the end of the 1928 academic year, Howard Law School was operating full-time, but it still needed the important American Bar Association and Association of American Law Schools credentials. On February 4, 1930, the law school’s board of trustees gave Houston something he had wanted for a long time: It voted to move full speed ahead with Houston’s plan to secure the accreditations and to close the night law school the following June.

The twenty-two night law school students vehemently protested the closing and took their argument to President Johnson. Critics of the decision to abolish the night school accused Johnson and Houston of attempting to “Harvardize” Howard. They argued that Houston’s father, now a successful Washington lawyer, was a night-school graduate. A night school, they said, allowed students to earn a law degree while working full-time day jobs in order to pay for their evening classes. Houston and Johnson worked out an agreement that permitted night-school students to matriculate at the new day school and work at night. By December 1931 Howard Law School had earned the crucial ABA and AALS approvals.

Marshall finished first in his class his freshman year and earned the coveted job as assistant in the school’s law library. The job lengthened his law school day to 8:00 P.M. and sometimes later, but it paid his tuition, bought his books, and meant he would no longer have to rush back to Baltimore and his part-time jobs. And the library assistant’s job brought collateral benefits. It put Marshall in closer contact with Houston, Nabrit, and other NAACP lawyers who met in the school’s library late at night preparing cases and planning strategy for the NAACP’s legal attack on segregation. Marshall looked over their shoulders, and it was not long before the second-year law student was given meaningful research assignments that were to become integral parts of important civil rights cases.

NAACP executive secretary Walter White frequently attended the library sessions and was impressed with Marshall: “There was a lanky, brash young senior law student who was always present,” White said. “I used to wonder at his presence and sometimes was amazed at his assertiveness in positions [taken] by Charlie [Houston] and the other lawyers. But I soon learned of his great value to the case in doing everything he was asked, from research on obscure legal opinions to foraging for coffee and sandwiches.

Professor William Hastie remembered the preparation of an appellate brief and a moot-court argument in class by Marshall and another student, Oliver Hill. “Their brief was better than many I’ve seen by practicing lawyers,’’ he said.”I would have been willing to say unequivocally then and there that they were going to turn out to be darned fine lawyers.”

FIVE

A Racist Capital

Wheel about, turn about, do just so. Every time I wheel about
I jump Jim Crow.
—Minstrel song

During his last year in law school Marshall continued to work late at night, long after the last class had ended, with Hastie and Houston in the library and in private homes in the middle-class black neighborhood called Brookland, plotting strategies for their current NAACP cases. Marshall’s personal association with Houston and other NAACP lawyers gained him entry into Washington’s closed society of educated black people who were trying to articulate the plight of all black Americans.

It was a world that few of Washington’s white people knew existed. Washington’s black citizens could attend performances by Duke Ellington, Lena Horne, and other black entertainers at the black Howard and Lincoln theaters, but they were not allowed at the National Theatre or in Constitution Hall. Washington’s large downtown nightclubs did not admit blacks, and most of the black-owned clubs along U Street and Florida Avenue catered to a black clientele that was socially and economically different from the city’s black professionals.

The exclusion of blacks from first-class downtown entertainment created an interesting social phenomenon. Most Brookland residents socialized among themselves in the paneled basements of their homes, and this created a close-knit group of networking black people interested in creating better lives for their children. Today many black Washington social organizations still exist, continuing their clannish tradition of restricting membership to those who have achieved professional status.

The Brookland network of black professionals in the 1940s included educators Herman Branson, Albert DeMond, and Ralph Bunche, poet Sterling Brown, and attorneys John P. Davis and Bernard Jefferson. They had an informal club they named the Brookland Rod and Gun Club but boasted that they never went hunting or fishing. They worked closely with the NAACP and other civil rights groups in lobbying key members of the Roosevelt administration such as Harold L. Ickes, to ensure that the rising tide of New Deal programs would improve the lives of black Americans, as the Age of Jackson had done for white Americans a century earlier.

It was law school student Thurgood Marshall who made an amazing discovery one night in a Brookland basement. He found that in codifying the laws of the District of Columbia, the city’s civil rights codes had been omitted. “Since it didn’t apply to anyone but us, they left it out,” Marshall remembered. “We eventually got to the court and got that straightened out.”

In 1932 Hastie asked Marshall—then a second-year law student—to help prepare an appeals brief in the North Carolina desegregation case of Thomas Hocutt, a black student who had been refused admission to the University of North Carolina’s law school. Hocutt claimed the refusal violated his constitutional right to equal-protection guarantees. Hocutt sued the university and lost. Hastie was asked to handle the appeal. Despite the argument devised by Hastie and Marshall, they lost the case in the North Carolina appeals court.

The court held that the University of North Carolina, though financed with public funds, was “not of a public character,” and lawyers for the state contended Hocutt was “a reluctant colored man, poorly prepared and disqualified,” and that he was “the instrument of outside agitators trying to force the university to admit Negroes.” The appeals court said the school could legally be considered a private institution and had no obligation to extend equal rights to all applicants. Marshall met the defeat with dejection. He knew how it felt to be denied admission to his state’s university.

Howard University’s law school was quietly becoming the major advocate for the legal rights of black people. Houston, Hastie, and Walter White used it as a clearinghouse for the nation’s civil rights litigation. Lawyers from small towns throughout the South sought counsel with the law school faculty before bringing cases to their local courts. And Houston took a special interest in selectively picking the best plaintiff for each NAACP case.

In 1933 Marshall graduated first in his class, magna cum laude. He had not only earned a law degree; he had gained early recognition as a promising, bright attorney with the potential to make important contributions in the struggle for human rights.

And Marshall had forged an alliance with a law school that was becoming the national data bank for civil rights legislation and a crucial legal resource for lawyers across the nation who were waging the civil rights war on the front lines as the NAACP came of age. It is important to understand the changes that were taking place in the American civil rights movements and in the NAACP during the years before Thurgood Marshall completed law school, because it was the NAACP that was to become the vehicle responsible for his success.

Before Marshall graduated, the NAACP leadership decided that the time had come to implement a new, comprehensive strategy for combating racial discrimination. Since the organization’s founding in 1909, and in large part due to its efforts, blacks had made undeniable progress toward entering the mainstream of American life. Some, like Marshall, were earning professional degrees at black educational institutions, and a small minority of them were attending integrated colleges and universities in the East. In many American cities—Washington, D.C., New York, Baltimore, Boston, Philadelphia, and Richmond—there was a thriving and self-contained, if small, black middle class. Well-credentialed African-American men and women of letters attested to some degree of black success at entering into and succeeding in top universities or the professions.

Moreover, blacks had acquired a sense of racial pride and self-worth, defying the stereotyping imprint of racial inferiority. For example, during the first quarter of the twentieth century, black nationalist Marcus Garvey, calling upon blacks to take pride in their skin color and ancient heritage, won over 1.5 million adherents to his Universal Negro Improvement Association’s back-to-Africa crusade. Meanwhile, black painters, sculptors, actors, musicians, and athletes gained recognition both at home and abroad—for the insights they offered into black life certainly, but also for giving expression to the many facets and complexities of human existence and experience. They deepened and enlivened American culture to the delight of millions of whites and blacks in America and around the world. For the overwhelming majority of blacks, however, life in America was cruel, short, brutal, and impoverished. Inequality in every aspect of life—from jobs to housing to education—became the defining characteristic of their existence.

The 1910s and 1920s saw a rising tide of racism in its most virulent forms. In 1917 and 1918 nearly one hundred blacks were lynched in the South. In 1917 more than three thousand Tennessee citizens turned out to witness the burning of a “live Negro” in response to an invitation from a local newspaper. In the same year East St. Louis, Illinois, experienced race riots that left at least forty blacks dead. Then, in 1919, following the end of World War I, the nation experienced “Red Summer,” a period of racial strife and violence unprecedented in American history that lasted from June until December. There were more than twenty-five major race riots during that time, from Chicago, Illinois, to Longview, Texas; Omaha, Nebraska; Elaine, Arkansas; and elsewhere. In 1921 violence broke out between blacks and whites in Tulsa, Oklahoma. The killing and destruction ended only after an angry mob of whites went on a week-long rampage, akin to the pogroms unleashed by the Cossacks against the Jews in czarist Russia at the turn of the century. The mob burned to the ground the entire black commercial and residential district located along Green Street. The once-thriving shops and commercial enterprises were eventually replaced with a huge oil refinery that refused to hire blacks. Scores of blacks were killed, and hundreds were dispersed from the city.

Duluth, Minnesota (June 15, 1920): Three African Americans who worked for a traveling circus were lynched for allegedly raping a white woman. A physician’s subsequent examination of the woman found no evidence of rape or assault. Michael Fedo’s book, The Lynchings in Duluth (2000) , documents these events.

The Lynching of George Meadows near Pratt Mines in Jefferson County, Alabama on January 15, 1889.

Not even the nation’s capital, where blacks had managed to carve an unusually secure and comfortable niche since Reconstruction, was spared the turmoil. During Red Summer, false newspaper reports of white women being attacked by black men triggered three days of rioting in Washington by angry white soldiers, sailors, and marines who marauded through the streets attempting to enter and burn black residential neighborhoods. They were finally repulsed by armed black resistance. Six years later, in 1925, a Ku Klux Klan rally in Washington, D.C., drew thirty-five thousand robed Klan members to the Washington Monument grounds.

In addition, promoting racism in its more petty and demoralizing forms became the official policy of the federal government. Under the administration of “liberal” Democrat Woodrow Wilson, federal civil servants were officially segregated by race for the first time. During the Harding administration that followed, blacks were excluded from recreational facilities in Washington. Even at the dedication of the Lincoln Memorial, on Decoration Day in 1922, blacks were rigidly segregated from whites in what was, after all, supposed to be a tribute to Abraham Lincoln, the Great Emancipator.

What inspired the NAACP’s decision to formulate a new battle plan, however, had less to do with any particular political or social development than with a change in the organization’s financial fortunes. In 1922 Charles Garland, a wealthy Bostonian and Harvard graduate, refused to accept his share of the banking and investment fortune bequeathed him by his father. Instead, Garland used the money to establish the American Fund for Public Service, Inc., often called the Garland Fund, a foundation for the support of liberal and progressive causes, one of which became the NAACP.

The NAACP received a hundred thousand dollars that year to carry out a campaign “to secure for Negroes in this country a fuller and more practical enjoyment of the rights, privileges and immunities theoretically guaranteed them by the Constitution of the United States.” For the first time in its history, the NAACP had in the bank funds sufficient to conduct a long-range, comprehensive strategy. With the Garland Fund grant in hand, NAACP leaders made their plans.

At first, the nation’s black leadership differed over how best to achieve the desired goals. Leftist organizations, including the League of Struggle for Negro Rights and the International Labor Defense (ILD, argued that unorganized black workers represented an opportunity for direct political action. Both organizations were founded with support from the Communist Party USA. The ILD’s purpose was to organize “a mass political and legal defense in...cases of...the class struggle” and to fight “legal and extralegal attacks against Negroes by KKK elements, acting either as outright lynch mobs or as lynchers clothed with the garb of legal authority.” Among other things, the ILD undertook the defense of the Scottsboro boys, nine blacks between the ages of thirteen and twenty, framed for allegedly raping two white women in a railroad boxcar in Alabama in 1931. All but one of the defendants, a thirteen-year-old, were sentenced to death. The ILD used the trial to publicize and promote its political agenda by attracting national and international attention to the case. Eventually, two of the defendants’ death sentences were commuted on appeal to the U.S. Supreme Court based on the fact that blacks had been excluded from both the grand and petit juries that heard the case.

Moderate thinkers, such as Roger Baldwin, a founder of the ACLU and one of the Garland Fund’s administrators, and Ralph Bunche, who decades later would win a Nobel Peace Prize for settling an Arab-Israeli dispute on behalf of the United Nations, shared the views that direct mass political action was the most effective means to get results.

Ultimately, those who favored a legalistic approach prevailed. Among them were Felix Frankfurter of Harvard Law School, Arthur Spingarn, the NAACP’s chief lawyer at the time, and Charles Houston, newly appointed dean of Howard Law School. The man selected in 1930 to head the NAACP’s legal effort was Nathan Ross Margold, a Romanian-born Jew and protégé of Frankfurter’s who had known Houston at Harvard.

Margold’s research convinced him that the best way to attack and begin to eliminate racial discrimination in America was by suing to end discrimination in public education. After all, education was a proven key to success and advancement in America. It was therefore crucial that the public schools be opened to blacks on a genuinely equal basis. Margold saw good prospects for success on the legal merits of his position. His research of relevant U.S. Supreme Court and lower court decisions led him to conclude that while the Court had upheld the constitutionality of segregation as practiced in particular situations, the weight of judicial precedent did not give the practice an unqualified stamp of approval.

For example, in the landmark 1896 case of Plessy, the Court established the separate-but-equal doctrine. Basically, this doctrine meant that a state could satisfy the Fourteenth Amendment’s requirement that all citizens be accorded the equal protection of the laws by providing people of different races with facilities that were substantially equal, even if separate.

The facts of the case were simple enough. In 1890, the Louisiana legislature passed a law requiring that “all railway companies carrying passengers in their coaches in the 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.” Two years after the law was passed, a light-skinned black Louisianan named Homer Adolph Plessy decided to challenge it. Plessy boarded a whites-only railway coach outside New Orleans and refused to leave his seat and move to the black coach when asked to do so. He was arrested by Detective Christopher Cain, charged with violating the separate-car law, convicted, and fined twenty-five dollars. His appeal was eventually taken up by the U.S. Supreme Court, which heard the case in 1896.

In a ruling that would stand for more than a half century, until Thurgood Marshall’s victory in Brown, the Court upheld the Louisiana law in a seven-to-one decision. One justice, David Brewer, did not take part in the case. Writing for the Court’s majority, Associate Justice Henry Billings Brown concluded:

“Laws permitting, or even requiring, [racial] separation in places where [the races] are liable to be brought into contact do not necessarily imply the inferiority of either race by the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power.”

For those who desired to share fully in the American dream, the Court’s ruling represented the root of the country’s discriminatory evils. Despite Justice Brown’s assertion that segregation did “not necessarily imply the inferiority of either race by the other,” Plessy sanctioned the practice of separating blacks from whites by consigning blacks to the backs of buses, to the rear of trains, to the partitioned-off “colored” sections of waiting rooms and government offices, to the use of separate water fountains and toilet facilities designated “colored,” and the like. The separate-but-equal doctrine became the foundation of social mores and practices whereby the lot to which people were consigned in life was determined solely on the basis of race, effectively relegating blacks to second-class citizenship.

Such policies were commonly referred to as “Jim Crow” by their black victims. The term originated with a song of that name sung by Thomas Rice in a minstrel show before the Civil War. Rice was a white actor who played the buffoon part of Jim Crow in blackface. He sang: “Wheel about, turn about, do just so. Every time I wheel about I jump Jim Crow.” Jim Crow eventually came to symbolize white dominance over blacks and the laws of segregation that legally maintained it. Throughout his career Thurgood Marshall was fond of “a jumping Jim Crow” in portrayals of slaphappy, kowtowing plantation slaves. But he did it with humor and the implied understanding that he was really poking fun at those who believed the stereotype was an accurate representation of southern rural black life.

Margold’s investigations also revealed a pattern of underfunding of black schools throughout the South. He hoped that in states where a historic, systematic pattern of underfunding black educational institutions could be demonstrated, the courts would be compelled under the equal-protection clause to outlaw segregation altogether. But in those states where less egregious disparities existed, simply applying the law as it then stood and demanding equal facilities, without challenging segregation in principle, might be enough.

The basis for this view was Margold’s conviction that the cost of maintaining dual school systems that were substantially equal, as Plessy required, would prove prohibitive. Few states would be willing to assume the financial burden of upgrading their schools for blacks to a level on a par with those for whites in the middle of the Depression. It would be more cost-effective simply to desegregate the schools. Segregation would prove economically untenable and could be made to collapse of its own weight.

Years later Marshall suggested, in a humorous moment, that he would bring one suit for one student in each state that maintained segregated school systems and then force the states to construct institutions equal to white schools for that one student. “They would quickly get the point,” he said.

With his investigations into school finance, Margold took a conservative approach to attacking segregation. At that time some in the N.A.A.C.P. were also cautious. At one end of the spectrum were those who feared that even the slightest failure would produce a legal precedent that would set the clock back decades, fortifying, not weakening, the hand of the segregationists. At the other were those who continued to press for direct, organized political action. They thought progress through the courts would be too slow.

A growing sentiment for black leadership began to cut across the entire spectrum of the NAACP’s ranks. This was the view that Brandeis and Mordecai Johnson shared—namely, that it was time for black lawyers to take this struggle for equality into their own hands. The more prominent liberal, Jewish advocates, it was felt, should now step aside in favor of committed black attorneys for whom the efforts of men such as Spingarn, Brandeis, Frankfurter, and Margold had paved the way.

Three years after his appointment, in 1933, Nathan Margold left the NAACP to become solicitor for the Department of the Interior in Franklin D. Roosevelt’s New Deal administration. Two years passed before he was replaced at the NAACP’s legal helm. His successor was Howard Law School dean Charles Hamilton Houston, who took the job for which he had recommended Margold five years earlier.

Houston proceeded carefully. He agreed that public education was probably the most crucial area in which to wage the fight, stating that “since education is a preparation for the competition of life” and “all elements of American people are in economic competition,” blacks must have equal educational opportunities if they are to be competitive. Unlike Margold, however, Houston did not believe that the time was right to attack the doctrine of segregation directly. Instead, his desire was first to win a series of judicial precedents at the lower-court level that could be relied upon later in a U.S. Supreme Court challenge.

Moreover, Houston saw his incremental approach as one that would have the additional benefit of stirring black people into political consciousness at the grass-roots level. Until that time, blacks had quite simply been afraid to assert their rights because they feared reprisals at the workplace and even physical retaliation. In a 1934 memorandum to the Joint Committee of the NAACP and the Garland Fund, Houston stated the view that “to the end of arousing and strengthening the local will to struggle, the general policy of the NAACP should be to lend a hand in contests already undertaken by the local communities themselves, rather than to precipitate a struggle on a community that does not want it.” He concluded, “the inspiration value of a struggle is always greater when it springs from the soil than when it is a foreign growth.”

Houston’s appointment was historically significant for a number of reasons. Certainly his acceptance of the post meant black lawyers would from then on play the prominent role in the desegregation battle. With Howard Law School graduating top flight lawyers each year, Houston could draw on a talented pool of young blacks to join the fight.

Carl Murphy was the publisher of the most influential African American publication in the United States, the Baltimore Afro-American, and an early supporter of Thurgood Marshall’s civil rights work in Baltimore. At the peak of its circulation the Baltimore Afro-American reached over 200,000 people, and Murphy helped the paper grow in size so that by the end of his time at the paper in 1961, it had expanded to cover Newark, Philadelphia, Washington, D.C. and Richmond. Courtesy, Maryland Historical Society.

SIX

Justice on a Shoestring

He said you was a freebie lawyer.
—An elderly black woman from South Carolina

Marshall passed the Maryland bar examination in 1933, but not as brilliantly as reported several years later in a profile in the Baltimore Afro-American newspaper. He sent a note of correction to publisher Carl Murphy shortly after the article appeared: “As I remember it, it was about one point above the passing mark of 210.” Murphy dutifully published the correction.

Marshall, at 24, had turned down a Harvard University fellowship for advanced legal study. His wife and parents had sacrificed dearly to see him through college and law school, and it was now time for him to begin paying his own way. He was anxious to set about the business of practicing law, ready to become one of Charles Houston’s social engineers.

Marshall rented a small office, suite 604, on the sixth floor of the Phoenix Building, located at 4 East Redwood Street on the fringe of downtown Baltimore, not far from the University of Maryland’s law school. He had modest stationery printed, a letterhead that for some reason did not include an office telephone number. Buster came to arrange the sparse, secondhand office furniture, and his mother, who had pawned her engagement and wedding rings to help pay her son’s law school tuition, now parted with another personal treasure. She went into her Druid Hill Avenue living room, rolled up the prized Oriental rug that her seafaring father had brought back from one of his trips abroad, and spread it on Thurgood Marshall’s office floor.

There were few black lawyers in the United States in 1933—one for every two hundred thousand citizens—and they had difficulty getting paying clients. The Baltimore courts were white-dominated, and many prospective black clients felt they would do better with white lawyers to plead their cases before white judges and predominantly white juries. Some Baltimore blacks even subscribed to the cruel and untrue assertion “If you want to die, go to a black doctor; if you want to go to jail, go to a black lawyer.”

Though some clients could not afford even his modest fees, Marshall turned no one away. The nation was deep in the depression, and blacks in Baltimore and across the nation—”last hired, first fired”—suffered economically while waiting patiently for the promises of President Franklin D. Roosevelt’s New Deal economic recovery programs to be realized.

Marshall began earning a reputation as “the little man’s” lawyer. He spent a lot of time in Baltimore courtrooms, not unfamiliar territory, because he had often been there as a child with his father. He honed his courtroom skills on everyday, mundane legal work, from traffic offenses to eviction cases and some minor criminal matters. He had very few paying clients the first year, and his expenses exceeded his income by a thousand dollars.

Years later he told a reporter, “One day I’d bring two lunches, and the next day my secretary would bring two lunches, and sometimes we’d be the only two people in that office for weeks at a time.” He paid his secretary $7.50 a week.

Marshall was fond of recalling the story of an elderly black woman who arrived at his office in May 1934, shortly after he opened his practice. She had recently moved to Baltimore from rural South Carolina, where she was accustomed to receiving free legal advice from a white county judge, a standard practice in southern rural communities where white people in positions of authority practiced a paternal benevolence over local black people who knew their place and stayed in it. When she sought the same free legal advice from a white Baltimore judge, he sent her to Thurgood Marshall. “He said you was a freebie lawyer,” she told Marshall.

He didn’t turn her away. He called his practice “justice on a shoestring.”

Marshall’s practice began to boom as word quickly spread that he was a competent attorney with a passion for indigent clients. But his income did not rise with his reputation. His pro bono work and his concern for the “little people” of Baltimore did not go unnoticed by publisher Carl Murphy and Lillie M. Jackson, a Baltimore housewife who was a fierce civil rights activist.

Carl Murphy’s father, John H. Murphy Sr., was a whitewasher who purchased a small flatbed printing press and began publishing a Sunday school newspaper in his Baltimore basement in the late 1890s. Several years later he bought the fledgling Afro -American and turned it into a weekly newspaper. Carl Murphy took over the paper after his father’s death and nurtured it into a powerful voice for black Americans.

A Harvard University graduate, Murphy studied at the University of Jena in Germany and taught German at Howard University. When he applied to Baltimore’s John Hopkins University to do further work, his application was denied because of his race. Physically, Murphy was a small man, with a penchant for tweed sport jackets and corncob pipes, but he had big ideas about how to bring about racial justice for black Americans. He once sued the Baltimore & Ohio Railroad for segregating him on a ferry crossing.

Lillie M. Jackson was a Baltimore housewife filled with righteous indignation in her fight for equal rights. She used her booming voice to carry her message to the basements of Baltimore’s churches, attempting to recruit members for the NAACP. A Maryland governor once said, “I’d rather have the devil after me than Mrs. Lillie Jackson.”

Born May 25, 1889, she grew up on Druid Hill Avenue, like Thurgood Marshall. Her father, Charles Carroll of Maryland’s Howard County, was the grandson of the Charles Carroll who signed the Declaration of Independence. Her mother, Amanda Bowen, from Montgomery County, was the granddaughter of an African tribal chief.

Jackson enlisted Carl Murphy’s financial and editorial support in strengthening the Baltimore NAACP and in her campaigns for federal antilynching laws, integration of the University of Maryland, the equalization of teachers’ pay, voter registration drives across the city, and desegregation of Baltimore’s public swimming pools.

Indeed, Murphy used his newspapers, one of the nation’s largest and most influential black newspaper chains, to champion civil rights throughout the 1930s. The Afro published weekly editions in Baltimore, Washington, D.C., Philadelphia, and North and South Carolina, as well as a national edition that was sold in most major cities. Murphy shopped at the Marshall family’s west Baltimore grocery store and was fond of the young attorney, whom he had known since Thurgood was a boy in corduroy knickers, kicking stones down Division Street.

Murphy retained Marshall to handle the Afro’s legal work and helped him acquire a major Baltimore laundry as a client. But Carl Murphy and Lillie Jackson had big plans for the young Baltimore-born attorney, and they were soon to enlist him as the legal warrior in their civil rights battle.

Elizabeth Murphy Moss, Carl Murphy’s daughter, remembers: “My father was a shrewd man, and he knew that Thurgood’s law practice was not doing very well economically. Baltimore, like the rest of the nation, was in the grip of the depression, and Dr. Carl knew that if he could give Thurgood some legal work to help meet his office expenses, he could get his help in the civil rights campaign that he was waging with Ma Jackson.” Moss said her father and Marshall were very close. “My father had five girls, and in many ways Thurgood was a surrogate for the son he never had. Thurgood was impressive and had a forceful bearing and an outgoing personality that quickly made you like and respect him.”

Carl Murphy frequently called upon Marshall for legal interpretations and advice to help him formulate the attacks he was launching against segregation and discrimination on the editorial pages of his newspapers. In 1934, the Afro was crusading for innovative federal legislation that would empower Congress to define civil rights and invoke penalties for violations of those rights. Murphy called Marshall on November 16 and asked him for an opinion on the efficacy of the proposed legislation. In a letter hand-delivered the next day, Marshall wrote:

“Pursuant to our conversation yesterday I looked up the Civil Rights Cases. In these cases the Supreme Court laid down finally that it is not within the legislative power of Congress to define what are the civil rights of life, liberty and property of individuals and affix and enforce penalties for their denial by private persons. Under the Constitution of the United States the Supreme Court has the final word concerning the constitutionality of any statute, so it seems that the Civil Rights Bill is out.

“I am enclosing a short brief of the Civil Rights Cases as they were decided.”

Marshall’s response to Murphy’s inquiry was an early indication of his belief that the fate of civil rights for black Americans rested with the judicial not the legislative, branch of government. This reflected the view also held by his mentor, Charles Houston.

In 1991, fifty-seven years later, Marshall had apparently tempered his 1934 position on the relation between the judicial and legislative branches of government in assuring civil rights. In a public statement he said: “The Fourteenth Amendment gives government the final word. It says Congress shall do everything to implement the 14th Amendment guarantees of due process and equal protection. Congress will eventually do that, but Congress never does anything soon except go to the Persian Gulf. They did that soon.”

When Lillie Jackson became president of the NAACP’s Baltimore branch, in 1934, the organization was moribund. Membership had fallen to about 100 of the faithful, and the branch had little support, especially among the city’s less affluent black working class. The NAACP’s Washington branch had also become primarily an elitist social group comprised of affluent, fair-skinned black professionals, more concerned about their social lives and fraternity and sorority ties than with the struggle for equal rights. Marshall jokingly repeated over the years that the initials NAACP at that time actually stood for the “National Association for the Advancement of Certain People.” This internal racial phenomenon was one of the problems the NAACP faced as it attempted to widen its appeal to all black Americans, for many of the NAACP’s members, especially its leaders like Walter White and Roy Wilkins, belonged to this closed social circle.

Many black people who were light enough “crossed over” or “passed,” living their lives as white people in other parts of the country. “Gone on the other side” was the expression commonly used to describe them. Washington’s segregated National Theatre employed a black doorman to expose black Washingtonians who were attempting to gain entrance to the Pennsylvania Avenue theater by passing for white.

Although it was often spoken in jest, there was some truth to the statement that frequently made the rounds of Baltimore’s and Washington’s black middle class: “If you are white, you are all right; if you are yellow, you are mellow; if you are brown, you can stick around; but if you are black, stay back!” Darker-skinned black people often felt that lighter-skinned blacks were treated better by white people, got better jobs, and lived in nicer neighborhoods.

In the early 1930s Marshall’s friend and Lincoln University classmate Langston Hughes lashed out poetically at the system of black caste and color class in Washington, where he lived briefly. His poem “Black Gal” includes the line “I hate them rinney yaller gals.” In an article published in the Urban League’s Opportunity Magazine, “Our Wonderful Society: Washington,” Hughes criticized the black middle class for not paying enough attention to promising black writers of the day, such as Jean Toomer and Rudolph Fisher, because the main characters in their novels were “too black.” Hughes’s friend Charles S. Johnson saw the article before it appeared and wrote Hughes a note: “You may be sure that you cannot live there [in Washington, D.C.] again after it is published.”

Carl Murphy and Lillie Jackson knew this internal racial division was one of the obstacles the NAACP would have to overcome on both the local and national levels to broaden its appeal and encompass all blacks. They enlisted Thurgood Marshall’s talents in their campaign to rebuild the NAACP’s Baltimore branch and to fight segregation and discrimination, retaining him as the attorney for the local chapter.

Marshall carried the NAACP’s message to Baltimore’s blackest and poorest neighborhoods, championing the civil rights organization’s cause to hundreds of complacent black citizens who accepted segregation as a way of life. It was not an easy task for a tall, good-looking, college-educated, light-skinned attorney with hair like a white man’s. But despite his light complexion and impressive credentials, he was popular among the ranks of Baltimore’s less privileged working-class black citizens. He had no aversion to playing a friendly game of poker or sharing a pint of bourbon with residents of east Baltimore’s ghettos as he tried to win their support for the NAACP. Using the same fiery rhetoric he had employed to inspire Lincoln University’s losing football team, he made significant progress in unifying Baltimore’s black community across educational, economic, social, and skin-color lines. Marshall and Jackson knew, however, it would take more than flashy speechmaking to demonstrate that the Baltimore NAACP was earnestly concerned about the plight of all black Baltimoreans. This was crucial if they were to increase membership and cast off the old impression that the NAACP was nothing more than a social organization for the privileged few.

Thurgood was ready to challenge the old order, and his west Baltimore home neighborhood was a good place to start. Marshall and Jackson organized a boycott of stores on Pennsylvania Avenue, the black commercial district two blocks from Marshall’s Druid Hill Avenue home. Though most of the stores’ customers were black, the white owners did not hire black workers. Marshall and Jackson mustered a group of unemployed black high school graduates, gave them picket signs, and had them march in front of the Pennsylvania Avenue businesses. Black customers stayed away, but instead of meeting the NAACP’s demand to employ black clerks, the stores’ angry owners sued the NAACP in federal court for interfering with their businesses.

Now, in October 1934, Marshall’s job was to defend the boycotters and the NAACP’s protest, and he called upon his former teacher Charles Houston for help. Houston had successfully defended a similar suit in Washington, D.C., when the New Negro Alliance, a local civil rights group, boycotted shop owners there, and he responded quickly. Marshall did the research and the legwork, and Houston presented the oral arguments in Baltimore’s federal court. Houston told the court that blacks had a right to withhold their patronage from merchants who would not employ them. Before a packed courtroom, the judge agreed. It was a victory for Houston, Marshall, the Baltimore NAACP, and the score of black high school graduates who were hired by some of the stores.

With that victory the Baltimore branch of the NAACP set in motion an ambitious agenda. Marshall lobbied Maryland’s congressional delegation to support a federal antilynching bill. He won a manslaughter conviction for a western Maryland client who had been charged with burglary and murder and for whom prosecutors sought the death penalty. He brought a successful suit in Baltimore’s federal court on behalf of the Monumental Golfers Association—Charles Law v. Park Board—that opened golf courses to black golfers. He instituted a series of tutorial classes to help black citizens pass civil service examinations. No case of alleged police brutality went unnoticed by the Baltimore NAACP.

Lillie Jackson and Marshall then turned their attention to the plight of Maryland’s black schoolteachers. Like black teachers in most southern states, Baltimore’s teachers received lower salaries than their white counterparts. Marshall and Jackson devised a plan to attack this inequity in court. Most black teachers, afraid they would be dismissed if they participated in the protest, did not want to be part of suits against their school boards. Marshall raised a legal defense fund and earmarked money to pay the salaries of any teachers who were fired for taking part in the suits.

It took two years, but Marshall, Jackson, and the teachers prevailed. Maryland’s black schoolteachers, who had been earning $612 annually, the same salary as janitors, received a salary increase to $1,475 as a result of the successful litigation. At one point during the proceedings Marshall suggested that if the state did not want to raise the salaries of black teachers to the level of white teachers, it should lower white teachers’ pay to that of black teachers. “They quickly got the point,” he said.

Marshall began spending more time on the NAACP’s legal affairs than on his private law practice, but a fringe benefit of the NAACP work was that it brought him some paying clients from Baltimore’s middle-class black community. Handling property transfers, wills, and estates meant better fees than those he received from minor civil and criminal cases, and it did not require as many lengthy courtroom appearances, which left more time for NAACP work. His legal practice brought in about three thousand dollars, and the NAACP was paying most of the expenses he incurred in his civil rights work.

However, the Baltimore NAACP still needed a major case, one that would attract national attention, if it were to increase its membership, and Thurgood Marshall had just the case in mind. In fact, he had thought about it for a long time, ever since he had been denied admission to the University of Maryland’s law school because of his race.

Marshall, Donald Gaines Murray and Houston. Soon after graduating from law school, Thurgood Marshall took the case of Donald Gaines Murray, an African American student seeking admission to the University of Maryland School of Law. This case went to the state Supreme Court and successfully challenged segregated education in Maryland. Shown here are Marshall, Donald Gaines Murray, and Charles Houston during the 1933 suit against the University of Maryland. Photo: Courtesy of Library of Congress via Smithsonian National Museum of American History.

SEVEN

An Ethiop Among the Aryans

Compliance with the Constitution cannot be deferred at the will of the State. Whatever system it adopts for legal education now must furnish equality of treatment now.—Donald G. Murray v. University of Maryland (1935)

Thurgood Marshall and Donald Gaines Murray had several things in common. They were both native Marylanders, born and raised in west Baltimore by parents who were a little better off than most other black Baltimoreans. Each man had earned honor grades in undergraduate school—Marshall at Lincoln University, Murray at Amherst College. And both men had been rejected for admission to the University of Maryland’s law school because they were black. In fact, nine African-American students had been refused admission to the law school, although neither state laws, the university’s charter, nor its rules mandated segregation. Racial discrimination was in effect nothing more than a custom, a personal bias practiced by those who administered the university. Marshall had held preliminary discussions with Houston about a University of Maryland School of Law desegregation case in the fall of 1933, and they had discussed a tentative strategy based on Houston’s refinement of the Margold paper.

In January 1934 Marshall once again called on Charles Hamilton Houston for help:

Dear Charlie,
Trust you had a good Christmas etc. I hate to worry you so much about this University of Maryland case. When are we to get together on it? Things are very slow just now and I would like very much to get started as soon as possible.

Marshall’s letter went unanswered, but it was not because Charles Houston was uninterested. Rather, he was preoccupied with getting ready to move to New York City and his new position as the NAACP’s chief counsel. Only after several meetings with NAACP secretary Walter White had he decided to leave Howard’s law school and his father’s law practice and head north. Following the advice he gave his students, he was going to become a social engineer and employ his legal talents full-time toward the task of civil rights.

As Marshall impatiently waited for Houston’s answer, Belford V. Lawson Jr. turned his attention to the University of Maryland. A black Washington attorney and an organizer of the New Negro Alliance, a group of black Washingtonians that lobbied for the employment of blacks in government, Lawson served as counsel to Alpha Phi Alpha fraternity. Many of the national fraternity’s members, like members of the Washington and Baltimore branches of the NAACP, were light-skinned and held coveted government jobs or were professionals who came from privileged families. The fraternity had a reputation for using the “paper bag test” for admitting members, an unwritten rule that a prospective member whose skin shade was darker than a paper bag would not be allowed to pledge. The fraternity also had a reputation for holding some of the most popular and best-attended social affairs in black Washington.

But color-consciousness among light-skinned black people—their reluctance to have much social contact with darker members of their race and their indifference to the plight and problems of those less fortunate—did not start in the 1930s. It began in the 1880s when abolitionist Frederick Douglass’s son founded a summer resort at Maryland’s Highland Beach, where the “high-yellow elites,” commonly referred to as the “black bourgeoisie,” from Washington and Baltimore maintained vacation cottages on the bay.

The lines of exclusivity within the high-yellow societies of Baltimore and Washington were as sharply drawn as those that existed between black and white society. Admittance to the black middle class of Washington and Baltimore required more than a good income. Light skin, family background, education, and a professional position were the requirements for entry into this clique. Parents encouraged their children to socialize and marry within this select group; when birthday parties were held, nearly all of the children who attended were fair-skinned.

In 1934 the Alphas’ Washington, D.C. chapter, aware of its image as an elitist group concerned more about their social lives than their civic responsibilities, earmarked several hundred dollars to bring an integration suit against the University of Maryland. Though the University of Maryland’s law school was in Baltimore, its liberal arts colleges were on the College Park, Maryland, campus, just across the line from Washington’s Brookland neighborhood, where the majority of the city’s educated and professional black people lived. The Alphas persuaded Lawson to begin preparing the suit. He enlisted the help of the New Negro Alliance and the Washington branch of the NAACP and then wrote to Thurgood Marshall and asked if he wanted to join in the legal battle.

Lawson’s letter distressed Marshall for two reasons: First, Marshall felt Lawson was about to take a case that Marshall himself wanted very badly to try. After all, Marshall was a native Marylander, and his rejection by the University of Maryland School of Law in 1930 still rankled. Second, Lawson’s letter indicated he was going to sue the university’s undergraduate school at the College Park campus, not the university’s law school, and that decision was counter to the NAACP’s secret plan to attack “the soft underbelly” of segregated education.

Marshall and Houston planned to concentrate the NAACP’s energies on graduate schools. They believed it was easier to demonstrate systematic discrimination in graduate schools, where there were fewer students than in public or undergraduate schools. And Marshall believed the NAACP should present a united front and not let it be publicly known that there was dissension within the ranks on the legal strategy for attacking segregation at the University of Maryland. The Margold strategy was not to attack the constitutionality of segregation itself but to challenge its legality as practiced by showing that no remotely equal educational opportunities were offered black students in segregated states, which was unconstitutional. Marshall and Houston reasoned that judges, who were themselves lawyers and products of graduate schools, would be apt to understand their argument that “separate” law schools were not “equal” law schools, and they believed that a small number of victories at the graduate and professional school levels would establish a foundation of precedents upon which they could build a case against the separate-but-equal doctrine for all other educational opportunities.

Nine months later, in October 1934, Marshall wrote another, more urgent “Dear Charlie” letter: “What about the University of Maryland case? B. V. Lawson has been writing me and seems to think the fraternity is going to try the case along with the local branches of the NAACP. I am up a tree as to just what is going to be done.”

Again, Marshall’s letter went unanswered. Meanwhile, Belford Lawson moved ahead with his plans. He invited Marshall and another black Baltimore attorney, William I. Gosnell, to a planning meeting in Washington. Houston was defending a NAACP case in Augusta, Georgia, when Marshall received Lawson’s invitation to the Washington conference. Marshall sent Houston a telegram telling him about the meeting and asking for advice. This time, Houston telegraphed a response: “Attend Lawson’s meeting. Get facts but be careful about commitments.”

Marshall did not attend Lawson’s meeting but sent Gosnell in his place with instructions to “take good notes.” Gosnell told those assembled that the Baltimore branch of the NAACP was anxious to take the case and explained the intricacies of the Margold strategy of first launching desegregation suits against graduate and professional schools. Gosnell also insisted it was logical for the Baltimore branch of the NAACP to bring the suit because the school was in Maryland.

Despite Gosnell’s arguments, Lawson decided to move forward with the case against the university’s undergraduate school. When Houston heard of Lawson’s decision, he told Marshall to commence the case against the law school immediately. He added he would be there soon.

Marshall and Houston began with the assumption that any desegregation suit against the University of Maryland’s law school would eventually be decided by the Supreme Court. But they first had to exhaust all available local remedies by bringing a suit at the state level. The Supreme Court had set no precedent that would lead them to believe that this tack would not be successful. But the Court’s composition at the time was not encouraging.

Marshall and Gosnell’s search for the ideal plaintiff produced Donald Gaines Murray, who had graduated with honors from Amherst College that June. The twenty-year-old Baltimorean came from a prominent family. His grandfather was a well-known African Methodist Episcopal (AME) bishop.

Murray wrote to University of Maryland president Raymond A. Pearson requesting information about the procedures for applying to the law school. He received a form letter in reply:

Under the general rules of the State the University maintains the Princess Anne Academy as a separate institution of higher learning for the education of Negroes. In order to ensure equality of opportunity the 1933 Legislature passed Chapter 234, creating partial scholarships at Morgan College or institutions outside the State for Negro students who may desire to take professional courses or other work not given at the Princess Anne Academy.
Should you desire to make application for such scholarship, notify me, and I will see that such application is duly filed.

Murray, however, did not want a state scholarship to an out-of-state law school. He wanted to attend the law school at the University of Maryland. In early January he filed a formal application for admission, including the required two-dollar fee. On February 9 he received a letter from the school’s registrar: “President Pearson has instructed me today to return to you the application form and the money order, as the University does not accept Negro students, except at the Princess Anne Academy.”

Marshall, Houston, and Murray drafted a response and sent it by registered mail on March 5 to each member of the university’s board of regents, enclosing copies of Murray’s application and money order:

I am a citizen of the State of Maryland and fully qualified to become a student at the University of Maryland Law School. No other State institution affords a legal education. The arbitrary action of the officials of the University of Maryland in returning my application was unjust and unreasonable and contrary to the Constitution and laws of the United States and the Constitution and laws of the State. I, therefore, appeal to you as the governing body of the University to accept the enclosed application and money order and to have my qualifications investigated within a reasonable time. I am ready, willing, and able to meet all requirements as a student, to pay whatever dues are required of residents of the State, and to apply myself diligently to my work.

The application and money order were again returned by Pearson, but this time with a letter that must have struck a chord of secret pride in Charles Houston’s heart. After again referring Murray to the Princess Anne Academy, Pearson told him of “the exceptional facilities open to you for the study of law at Howard University in Washington,” noting that Howard Law School was accredited by the American Bar Association and the Association of American Law Schools and that its tuition was less than that at the University of Maryland’s law school.

Now Marshall and Houston were ready to take the university to court. The case, styled initially Murray v. Pearson and later Murray v. the University of Maryland, was heard on June 18, 1935, in Baltimore City before Judge Eugene O’Dunne. Will and Norma Marshall and Thurgood’s wife, Buster, came to hear Thurgood’s first major case.

In opening arguments, Houston said Murray had been wrongfully refused admission to the state law school. He introduced into evidence documents verifying that Murray was a Maryland resident. He also introduced Murray’s Amherst College transcript, which showed he had made the dean’s list. He argued that the university’s decision to reject Murray’s application was capricious and arbitrary on the part of the school’s administration since there was no state law requiring segregation at the university.

The university was represented by Maryland assistant attorney general Charles T. LeViness III. Judge O’Dunne asked him pointedly if Murray’s race was the only reason his application was denied. LeViness responded yes, that it was public policy not to accept black students. Under further questioning LeVinnes testified that Maryland’s General Assembly had appropriated ten thousand dollars to provide fifty two-hundred-dollar out-of-state scholarships for black students and that these funds had been allocated only after Murray applied to the law school. He said the state currently had 380 applications for those scholarships.

Marshall argued that the state of Maryland could not “export its obligation” by paying the tuition at out-of-state schools for Maryland residents who had been denied admission to Maryland’s white professional and graduate schools because of their color. This was a clear violation of the state’s obligation to provide equal protection under the Constitution’s Fourteenth Amendment. As for Charter 234, Marshall contended that it was nothing more than an empty promise. The Maryland General Assembly had put that statute in place but had not allocated the funds to execute it at the time Murray applied to the law school, and it also allowed Maryland to escape its responsibility to provide educational facilities for black students in the state.

Houston called University of Maryland president Raymond A. Pearson to the stand. Pearson conceded quickly that Princess Anne Academy did not have the faculty, physical plant, or resources of the University of Maryland’s law school and that Murray met all of the requirements for University of Maryland School of Law admission. Pearson testified that the two-year course at the Princess Anne Academy was comparable to that at the University of Maryland “in some instances.” But when Houston asked Pearson if it was true that only one member of the Princess Anne Academy had a master’s degree and that there were no faculty members with doctorates, Pearson admitted that he didn’t know. He said he was unaware that the title “doctor” used by the president of the Princess Anne Academy was an honorary, not an academically earned, title.

Pearson was asked if the university would admit Mexican, Indian, and Filipino students if they were Maryland residents. Pearson responded yes. Then Houston asked Pearson why the university did not admit black Marylanders. The university president said he held no personal bias against black students attending the state’s university, that he was only following a long-standing public policy. Pearson further testified that even if Murray had applied for a stipend to attend an out-of-state law school, the funds were not available at the time of his request for admission to the University of Maryland.

Houston called University of Maryland law dean Roger Howell to the stand. Howell told the court that the university’s course of study was structured around Maryland’s law and state codes. He said twelve of the school’s eighteen faculty members were either Maryland judges or private attorneys. Then Marshall forced him to admit that any student who wanted to practice law in Maryland and could not go to the University of Maryland’s law school was being deprived of valuable educational opportunities. When asked why Maryland’s university system had not constructed and staffed a law school for black students equal in every respect to the one at the University of Maryland, Howell said there was not a sufficient demand to justify the construction and staffing of a separate law school for African Americans.

Judge O’Dunne asked Dean Howell if states with segregated railroad cars were obligated to provide cars of equal quality for black travelers even if only a few people traveled. “How would you let them ride, in an oxcart?” he asked.

Dean Howell’s answer brought laughter throughout the courtroom. “Well, if the oxcarts were about as good as the cars, I think I would.”

Years later Marshall said that during the first hours of the Murray case he sensed that Judge O’Dunne “had a good grasp of the issues.” This feeling, encouraged by the kinds of questions O’Dunne asked witnesses, fortified Marshall’s belief in the correctness of the decision he and Houston had made to bring the attack on segregation in education at the graduate school level.

The state superintendent of black schools, a white man, was called. After testifying that Maryland’s educational opportunities were “substantially the same” for students of all races, he revealed that Maryland’s school year for black students was shorter than for white students, that the state had more one-room schoolhouses for black students than for white students, and that black teachers did not receive salaries equal to those of their white counterparts with the same qualifications. When Marshall asked him about the disparities in teachers’ pay, he testified that it was a “known fact” that the cost of living for black teachers was less than that for white ones.

In his closing argument, Thurgood Marshall attempted to assure Judge O’Dunne that he would be on solid legal ground if he ordered Murray admitted to the university. There had never been a court-ordered desegregation of a public school, so Marshall could offer no strong precedent to support his position. “But it had to start someplace, and this was as good a place as any,” he later said.

Several years earlier, in Gong hum v. Rice, the U.S. Supreme Court had upheld Mississippi’s sending a Chinese-American student to a “colored” school. This seemed to affirm, at least in part, the separate-but-equal doctrine. What Marshall argued in Murray v. the University of Maryland, however, was that while the “separate” portion of the separate-but-equal doctrine had been sanctioned by the Court on several occasions, instances in which educational facilities available to black students were definitely not equal—as in Murray, because there was no state law school for black students—had never come before the Court. Marshall was convinced that Chief Justice William Howard Taft’s majority opinion in Gong Lum left a door open. Taft had written, “Had the petitioner alleged specifically that there was no colored school in Martha Lum’s neighborhood, a different question would have been presented.”

Marshall’s argument intrigued Judge O’Dunne, and LeViness was poorly prepared to respond to it. LeViness cited Cummings v. Richmond County Board of Education, an 1899 U.S. Supreme Court case in which blacks lost a suit to close a white high school until a black one in their district was reopened. Marshall quickly countered that Murray was not asking the court to close the University of Maryland’s law school until the state provided an equal facility for black students. He wanted to be admitted to the existing law school.

LeViness cited Plessy v. Ferguson in his defense of Maryland’s segregated schools. Marshall told Judge O’Dunne that Murray was not challenging Maryland’s right to operate separate black and white school systems. Instead, Murray’s challenge was to the inequalities and inadequacies of a system that did not provide equal educational opportunities for all Marylanders. Marshall contended that even in the Plessy decision the Supreme Court had stressed the state’s obligation to provide equal facilities in a dual school system.

Marshall’s final arguments showed the depth of his understanding of constitutional law. He argued that the “separate” part of the separate-but-equal doctrine had been upheld as constitutional by the Supreme Court but that the “equal” requirement provision had never been challenged or come under review. Since Pearson had already conceded that the separate facilities offered Murray at the Princess Anne Academy were unequal, Marshall insisted, the court had no choice but to order Murray’s admission to the state’s law school. “What’s at stake is more than just the rights of my client,” he concluded. “It is the moral commitment stated in our country’s creed.”

Shortly before 5:00 p.m. on June 25, 1935, Judge O’Dunne issued a writ of mandamus ordering President Raymond Pearson to admit Donald Gaines Murray to the University of Maryland’s law school immediately. A few minutes later Charles LeViness spoke: “I wish to be quoted as saying that I hope Mr. Murray leads the class in the law school.”

Carl Murphy, publisher of the Afro-American newspapers, invited Marshall and his family, Houston, Murray, and officers of the Baltimore NAACP to a party in the inner sanctum of his private office on Eutaw Street. They sat around his large horseshoe-shaped desk celebrating the victory as Murphy’s reporters and editors prepared a banner-headline edition. “We celebrated until early in the morning, until the first editions of the Afro hit the streets,” recalled Juanita Jackson Mitchell, a Baltimore NAACP official and civil rights attorney.

Mitchell said Thurgood’s victory in the Murray case “set the colored people in Baltimore on fire. They were euphoric with victory.... We didn’t know about the Constitution. He brought us the Constitution as a document like Moses brought the people the Ten Commandments.”

Despite the gracious statement of concession from the state’s attorney, Maryland appealed the decision to the Maryland Court of Appeals and asked that the case be heard in a special session before the court’s normal return from recess in October, when Murray would already be enrolled and attending law school. A special session was denied, and Murray began classes at the law school in the fall.

The Baltimore Sun’s vitriolic columnist H. L. Mencken wrote: “There will be an Ethiop among the Aryans when the larval Blackstones assemble Wednesday.” He also commented that the students and faculty should not object to “the presence among them of a self-respecting and ambitious young Afro-American, well prepared for his studies by four years of hard work in a class A college.”

Mencken concluded it would be “brutal and absurd” for the appeals court to reverse Judge O’Dunne’s decision. As for the suggestion that Murray attend Howard University, he wrote, “The regents might just as well advise him to go to Addis Ababa or Timbuctoo. He wants to get his training, not in Washington, but here in Baltimore where the laws and procedures of Maryland are at the bottom of the teaching and where he plans to practice.”

Mencken believed that university officials feared admittance of a black student to the law school would open the doors of the undergraduate schools at the College Park campus. He backhandedly dismissed this concern. “The so-called college of arts,” he wrote, “is a fifth-rate pedagogical dump patronized largely by the children of Washingtonians, and it would be easy to bring the Princess Anne Academy, which is for colored students, up to equality with it.”

In January 1936 the Maryland Court of Appeals upheld O’Dunne’s decision: “Compliance with the Constitution cannot be deferred at the will of the State. Whatever system it adopts for legal education now must furnish equality of treatment now.” The State of Maryland did not appeal the decision to the Supreme Court.

Shortly after the victory, Marshall’s Lincoln University classmate Langston Hughes described him as a man “who has moved a judge to search his conscience and come up with decisions he probably did not know he had in him.”

Marshall viewed the Murray victory as an important case in which there were “sharply defined issues” supported by “demonstrable evidence.” He believed this case would be the springboard for attacking segregated school systems on a larger front.

Charles Houston was less optimistic. Since the Murray case, qualified black students had been denied admission to graduate schools in Virginia, Tennessee, and Missouri. In an article in the NAACP’s December 1935 Crisis, “Don’t Shout Too Soon,” he cautioned:

“Lawsuits mean little unless supported by public opinion. Nobody needs to explain to a Negro the difference between law in books and the law in action. In theory the cases are simple; the state cannot tax the entire population for the exclusive benefit of a single class. The really baffling problem is how to create the proper kind of public opinion. The truth is there are millions of white people who have no real knowledge of the Negro’s problems who never give the Negro a serious thought. They take him for granted and spend their time and energy on their own affairs.”

After the Murray decision, the Maryland General Assembly sharply increased funding for the education of black students at out-of-state institutions and appropriated additional funds for teachers’ salaries and construction at Morgan and Bowie state colleges, in an effort to stop the walls of segregated education from crumbling any further. The neighboring state of Virginia, which had sent lawyers to monitor the Murray case, moved quickly to establish out-of-state scholarships for Virginia’s black students.

The Murray case was the invigorating catalyst the NAACP’s Baltimore branch needed. By 1936 its “faithful few” had increased to fifteen hundred.

Though historically Marshall has been viewed as the David who killed his personal Goliath, he was first to give credit where he believed it was due. “I worked the case out on the ground, and I drew the pleadings since there was some intricate old Maryland common law involved, but outside the legwork, I did very little. The court presentation was his [Houston’s] doing. The fact is, I never was chief counsel in any case that Charlie took part in.”

The battle for equal education opportunities did not end with the Murray victory. That case was only the opening shot. Still, it was a very meaningful victory for Marshall. During the 1991 press conference at which Marshall announced his retirement from the Supreme Court, a reporter asked him about the University of Maryland case. “It was sweet revenge, and I enjoyed it no end,” he said.

Results were mixed on other fronts, however. In fact, while awaiting the Maryland Court of Appeals ruling on Judge O’Dunne’s decision in Murray, Marshall suffered his first defeat in a civil rights litigation.

In late 1935, Marshall and the Baltimore branch of the NAACP turned their attention to the plight of black grade-school and secondary students in surrounding Baltimore County. The county had ten high schools for white students but none for blacks, although blacks comprised nearly 10 percent of the county’s population. County officials contended that the black population was too widely dispersed geographically to open a centrally located high school for blacks. The county’s black students who wanted to continue their education beyond the seventh grade were given an examination to determine if they were qualified for admittance to the black Frederick Douglass High School in Baltimore.

Only 50 percent of the blacks who took the entrance exams passed and were allowed to go to Frederick Douglass High. Moreover, while the county paid a stipend to the City of Baltimore for each black student who went to Douglass, it did not provide transportation despite the fact that most blacks enrolled at Douglass lived at least fifteen miles away. White students attended high schools near their homes and did not have to pass entrance exams.

At the primary level, Baltimore County’s grade schools for blacks were nothing more than two-room schoolhouses on unpaved back roads that flooded in foul weather. Their roofs leaked. They were cold in the winter. They had no playgrounds, and they were understaffed.

Marshall chose as his plaintiff a black Baltimore County girl who had just completed the seventh grade. He carried a petition on her behalf to a meeting of Baltimore County’s board of education in Towson, Maryland. It was rejected. He then appealed to the state board of education. There, too, he was turned down.

Marshall contemplated what he viewed as his legal options. He could sue the county in an attempt to make it equalize educational facilities for all students. Or he could sue to have the county close its white high schools until it constructed equal schools for blacks. Or he could sue to have his plaintiff admitted to the white school nearest her home.

He decided on the third option, and the case was heard in September 1936, in the state circuit court. The presiding judge ruled that the county’s board of education had sole authority to determine the guidelines for admitting seventh-grade students to high school. Marshall immediately appealed the ruling to the Maryland Court of Appeals, confident that the courts would see the similarity between the Murray case and the plight of the young seventh-grader. In Marshall’s mind the latter situation was even more urgent. Murray involved a gifted graduate student who in all probability would go on to be a successful lawyer even if denied admission to the state’s law school. But the current case involved thousands of African-American children just starting to climb the academic ladder; their futures seemed to lie in the balance.

After reviewing the case for several months, the Maryland Court of Appeals ruled in June 1937 that Marshall had blundered by seeking the wrong legal remedy. He should have sued to have his client admitted to Frederick Douglass High School in Baltimore without having to take the entrance test, the court stated. Instead, he mistakenly sued to have her admitted to one of the white high schools in Baltimore County. The court did not even address the question of whether or not Baltimore County had an obligation to provide separate high schools for black students.

It was a daunting setback for Marshall. But it did not take Charles Houston long to capitalize on the ultimate victory in Murray once the case was won. Or, that is to say, it did not take him long to try to make Murray into the kind of victory that he and Marshall wanted. Actually, it was defeat, not victory, that they were after. Murray was, after all, an unconditional triumph at the appellate level; the enemy conceded without escalating the struggle to the higher ground that Marshall and Houston sought to command. What Marshall and Houston had wanted to do in Murray was to lose in order to have a case they could appeal to the U.S. Supreme Court and thereby win a ruling that would change the law of the land. By its capitulation the State of Maryland denied them their ultimate objective. But what Marshall and Houston could not get from Maryland, Houston found in Columbia, Missouri.

The University of Missouri was founded in 1839, the first state university west of the Mississippi River. Its law school was established in 1872. Today the law school’s colorful admissions brochure that is sent to prospective applicants from across the country boasts the school’s commitment to affirmative action and to increasing the representation of minority groups in the legal profession. Its modern catalog of courses includes a required course in race, gender, and the law for first-year students and an elective course in employment discrimination for upperclassmen. Glossy photos capture black faculty members of both sexes addressing comfortably integrated lecture halls or mock courtrooms.

But in 1935 the University of Missouri’s law school did not admit African Americans, and when Lloyd Lionel Gaines, a twenty-five-year-old St. Louis resident, applied there, his application was rejected because of his color. Attorneys for the St. Louis branch of the NAACP engaged Houston’s help in bringing suit against the university registrar and curators to compel Gaines’s admission. At the trial level, the case was heard by the Circuit Court of Boone County in Columbia, home of the university, situated midway between St. Louis and Kansas City.

Houston argued that Gaines’s rejection constituted a violation of the equal-protection clause of the Fourteenth Amendment to the U.S. Constitution. Gaines was a graduate of the state-supported Lincoln University for blacks in Jefferson City, the state capital. Lincoln did not, however, have a law school, and the practice of Missouri officials was to pay the out-of-state tuition for Missouri blacks who wished to attend law schools of neighboring states such as Kansas, Nebraska, Iowa, or Illinois, which were not segregated. Houston contended that the offer to pay out-of-state tuition did not satisfy the state’s obligation under the Fourteenth Amendment to provide Gaines with a legal education that was substantially equal to that provided the state’s white residents. Houston asked the court to order the state either to admit Gaines to the University of Missouri law school or open a separate law school for Gaines with facilities, faculty, and staff substantially equal to what he would have received at the university’s law school in Columbia.

The Maryland appellate court’s decision in Murray was not, of course, controlling precedent for another state’s courts. Besides, as lawyers for University of Missouri pointed out, the facts in Gaines’s case differed from those in Murray in several significant and fundamental ways. First, Missouri’s offer to pay out-of-state tuition for blacks to attend law school elsewhere was real. State funds were earmarked for that purpose, and a number of blacks had in fact received the scholarships. In Murray, by contrast, the State of Maryland’s offer to do the same rang hollow, and funds were not even appropriated for the purpose at the time Murray filed his law school application.

Second, Gaines could not claim, as could Murray, that the curriculum and faculty at Missouri’s law school would offer him unique and special preparation for practicing law in his home state. The Missouri law school’s curriculum was broader based than the University of Maryland’s, which was centered around Maryland state practice and codes.

Last, and perhaps most significant, Missouri was so committed to maintaining separate education systems for blacks and whites that the state was in fact willing to open a separate law school at Lincoln University that would educate only blacks, perhaps would do so just for Gaines, and ensure that its facilities and faculty were substantially equal to those at the white law school.

The Missouri trial court weighed the evidence and dealt Houston the defeat he wanted. The trial court’s ruling was upheld subsequently by Missouri’s supreme court, also as Houston hoped, thereby setting up the long-sought-after confrontation at the U.S. Supreme Court level. Marshall, now NAACP assistant special counsel, assisted Houston in the preparation of the brief. Two and a half years passed. Finally, on November 9, 1938, the Court heard opening arguments in the case that was eventually styled Missouri ex rel. Gaines v. Canada.

In their briefs and at oral argument, Marshall and Houston applied the original Margold strategy for the first time in a school desegregation case heard by the high Court. No effort was made to attack or overturn Plessy v. Ferguson. To the contrary, Marshall and Houston urged the Court to enforce Plessy’s mandate. Lloyd Gaines, they argued, was denied his right to an equal, if separate, education. The State of Missouri, they contended, could not circumvent its obligation to Gaines by shipping him away to law school out of state. Nor could Missouri suspend or delay living up to its duty to Gaines until the unforeseen time when the state would build, staff, equip, and open a separate, accredited law school for blacks. Gaines’s right could only be satisfied by his immediate admission to the University of Missouri’s all-white law school.

The U.S. Supreme Court agreed. In a six-to-two ruling, with Chief Justice Charles Evans Hughes writing for the majority, the Court emphasized the “equal” requirement that was contained in the separate-but-equal doctrine:

The admissibility of laws separating the race in the enjoyment of privileges afforded by the State rests wholly upon the equality of the privileges which the laws give to the separated groups within the State. The question here is not of a duty of the State to supply legal training, or of the quality of the training which it does supply, but of its duty when it provides such training to furnish it to the residents of the State upon the basis of an equality of right.

Hughes then turned to the particular facts of the case:

By the operation of the laws of Missouri a privilege has been created for white law students which is denied to negroes by reason of their race. The white resident is afforded legal education within the State; the negro 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.

As for Missouri’s plans to open a separate law school for blacks at some future date, the Court concluded simply, “We cannot regard the discrimination as excused by what is called its temporary character.” The Supreme Court ordered Gaines to be admitted to the University of Missouri Law School.

African American schools were underfunded and clearly inferior to white schools before Brown. Courtesy: Virginia Department of Education Records, School Building Services Photographs, Library of Virginia.

EIGHT

Thurgood Comes to Harlem

I never hesitated to pick other people’s brains—
brains I didn’t have.—Thurgood Marshall

The NAACP was organized not by the black working class but by a small group of black and white liberal intellectuals. Its initial leadership was predominantly white, though several black humanists, including Ida B. Wells, Francis Grimke, Bishop Alexander Walters, James Weldon Johnson, and W. E. B. Du Bois, played pivotal roles. The NAACP’s white benefactors supported the association with their money, political influence, and legal talent for many years.

During its first quarter century the NAACP focused attention on mob violence and lynching by appealing to the American conscience. In 1914 Arthur B. Spingarn, a white liberal, became the NAACP’s chief lawyer and enlisted the help of several other prominent white attorneys. Moorfield Story from Boston, Louis Marshall from New York City, and Clarence Darrow from Chicago volunteered their services, and these men won some significant victories for the rights of black Americans.

Now, in 1935, NAACP executive secretary Walter White knew it was time for black lawyers to lead this fight as segregation and discrimination escalated. The ranks of black lawyers were increasing, and fewer white lawyers were volunteering their services to the NAACP. Howard University president Mordecai Johnson’s old friend Supreme Court Justice Louis Brandeis had been correct. The time had come for black lawyers to take command of the struggle.

Nathan Margold, the white lawyer directing the association’s legal efforts, resigned in 1933. Two years later, Walter White convinced Charles Houston to come to New York City and take charge of the association’s legal campaign. Houston had accomplished his goal of turning Howard University’s law school into a full-time, fully accredited institution and was now ready to work for the NAACP full-time. That summer, Houston, who had separated from his wife, took a room at the YMCA on 135th Street in Harlem and went to work at the NAACP’s national headquarters at 69 Fifth Avenue as chief counsel, with responsibility for organizing the NAACP’s new and massive campaign against legalized racial discrimination. It was an awesome job for a man with an untreated hernia who was recovering from tuberculosis. The demands placed on Houston’s fragile health by the NAACP’s increasing civil rights drive were great.

As chief counsel to the Baltimore branch of the NAACP, Thurgood Marshall called for help in times of crisis to his former law school professor Charles Houston. When Baltimore’s white merchants sued the branch for boycotting their businesses, Houston rushed to Baltimore and planned a successful defense. When Marshall brought an integration suit against the University of Maryland’s law school, Houston was there. It was now Houston’s turn to call for help, and in 1935 he summoned Marshall:

“I went to New York to do the special job of the educational campaign. By the time I was there a week I was doing all the legal work of the Association. The Association needs another full-time lawyer in the national office. I am not only lawyer but evangelist and stump speaker. I think this work necessary in order to back up our legal efforts with the required public supports and social force. But it takes me out of the office for long stretches at a time, and slows down the legal work in New York...I will be glad to recommend to Walter [White] and Roy [Wilkins] that just as soon as possible they give you an opportunity to come to the national office at $200 per month for six months if that interests you. I don’t know of anybody I would rather have in the office than you or anybody who can do a better job of research and preparation of cases... Two lawyers would always put one in the office, except in rare instances when both might be away for several days in actual trial.

“You have been more than faithful in giving of your time to the Association and I know this has meant a sacrifice of private practice, so you can be assured I will do everything in my power to try to make some provisions for you.”

Thurgood Marshall answered Houston’s call after deciding he would devote his efforts full time to the pursuit of equality. Marshall explained years later that he was already spending more of his professional time on NAACP activities than on his Baltimore law practice, traveling through Maryland winning salary equalization for black teachers, investigating lynchings on Maryland’s Eastern Shore, and representing criminal defendants who had not received fair trials. But he was seldom paid more than expenses for his civil rights work, and because of that work his law practice failed to bring in much money. Marshall desperately needed the “provision” mentioned in Charles Houston’s letter. He had written to Houston several months earlier saying that “things are getting worse and worse” and asking Houston to petition White to see if he “could be assured of enough to tide me over. Then, in return, I could do more on these cases.” He was asking for more money to continue his civil rights work in Baltimore.

The offer to come to New York as a full-time NAACP attorney fit well with Marshall’s precarious financial situation and his career plan of plunging himself, unencumbered, into civil rights work. He accepted the job at an annual salary of twenty-four hundred dollars, even though Houston warned him the work would be “hard, difficult and at times dangerous.” Remembering his first years as assistant counsel at the NAACP’s New York City headquarters, Marshall said: “Between 1936 and 1938, I commuted practically between Baltimore and New York, and there was considerable practice in that period...I was based in New York, but I maintained an office in my mother’s home in Baltimore, and I would come back to take care of the clients that really needed me until they adjusted over to new lawyers.”

Before Thurgood Marshall went to New York as assistant general counsel, the NAACP had taken ten cases to the Supreme Court and only lost one of them, a decision upholding the legality of restrictive covenants. These cases involved voting rights, residential segregation, restrictive covenants, and the denial of due process and equal protection of black criminal defendants. None of them challenged the nation’s segregated school system.

Writing about the NAACP’s earlier legal work, Marshall said:

“These decisions served as guide posts in a sustained fight for full citizenship for Negroes. They have broadened the scope of protection guaranteed by the Thirteenth, Fourteenth and Fifteenth Amendments...in the fields of the right to register to vote, equal justice before the law, Negroes on juries, [and] segregation...

“In addition, they broaden the interpretation of constitutional rights for all citizens and extend civil liberties for whites, as well as Negroes.

“The activity of lawyers acting for the NAACP has added to the body of law on civil rights for all Americans. The Association, by pressing these cases, has brought nearer to realization the ideal embodied in the quotation engraved over the Supreme Court building in Washington, D.C., ‘Equal Justice Under Law.’”

But not all black Americans in the battle for equality were as impressed as Thurgood Marshall with the NAACP’s track record. The NAACP had detractors in its own ranks. In 1932 W. E. B. Du Bois, then the NAACP’s director of publicity, published an article in the Crisis charging that the NAACP had had little impact on tearing down the walls of segregation and discrimination.

NAACP executive secretary Walter White, fair-skinned with blue eyes and blond hair, was often at odds with the darker-complexioned Du Bois. Du Bois, whose politics were socialist, thought White’s administration of the NAACP was too conservative and too conciliatory to the white power structure. White had friends in the white political establishment, and this added to Du Bois’s distrust of him. In an article critical of White, who served the NAACP for twenty-three years, Du Bois characterized him as “absolutely self-centered and egotistical...one of the most selfish men I ever knew...often absolutely unscrupulous.

“There are clear and incontrovertible facts” that segregation and discrimination still prevailed, Du Bois wrote. Walter White was disturbed by Du Bois’s charges and personal attack and defended the NAACP’s record, citing the string of court cases it had won. Ultimately White won the struggle over the tactics the NAACP would use, and Du Bois resigned a short time later and returned to his former teaching position at black Atlanta University.

But Du Bois’s charges were not ignored by the NAACP. As segregation and discrimination became more pervasive, White realized it was time for black Americans to carry more of the organization’s weight on their own shoulders. In 1936 Thurgood Marshall, twenty-eight, and Charles Houston, forty-one, now firmly in control of the NAACP’s legal apparatus, were ready to launch a full-scale assault on all segregation and discrimination and silence the critics who claimed the NAACP was not doing enough.

Thurgood and Vivian Marshall found a comfortable one-bedroom flat at 409 Edgecombe Avenue, a large, popular Harlem apartment building not far from the YMCA where Charles Houston had taken a room. Harlem, America’s largest black ghetto, was known as the “Capital of Black America” in the 1930s and 1940s. A major part of the borough of Manhattan, Harlem is bounded by Central Park, Washington Heights, and the Harlem and Hudson Rivers. About 470,000 of New York’s blacks called Harlem home when the Marshalls moved there. It was a throbbing and vital community of churches, streetcorner orators, nightclubs, theaters, and numbers runners and pimps driving Cadillacs. Thousands of southern blacks trekked north to Harlem in the 1930s and 1940s seeking better jobs and fewer restrictions on their personal freedom than they found in their native South.

Harlem was the birthplace of the Harlem Renaissance, a cultural awakening in black literature, music, and the arts. Langston Hughes was writing about Harlem’s “Sugar Hill” in poems and short stories, and poet Countee Cullen lived not far from the Marshalls’ apartment in a flat on Seventh Avenue. Novelist Richard Wright was there, too, putting the finishing touches on what was soon to be his widely acclaimed novel Native Son. And performers such as Duke Ellington, Katherine Dunham, Willie Bryant, Roy Minton, and Dinah Washington made Harlem the heart of the black entertainment world.

The Marshalls enjoyed Harlem’s nightlife, with its supper clubs and cabarets. On weekends the Marshalls frequently joined Walter White, Roy Wilkins, and other NAACP officials at Arthur “Happy” Rhone’s club, on the corner of 143rd Street and Lenox Avenue. Rhone’s, the NAACP’s unofficial “after-hours headquarters,” was a popular nightclub with white linen tablecloths and fine English bone china. Winthrop Rockefeller, Wall Street banker Robert Lehman and his wife, Kitty, and other wealthy white liberals “tipped uptown” in gowns, tuxedos, and limousines to get a taste of black culture and ample helpings of Rhone’s well-known chitterlings, spare ribs, and pigs’ feet, served with champagne.

Among Rhone’s patrons was white novelist Carl Van Vechten. In fact, his 1926 book, Nigger Heaven, a portrayal of Harlem nightlife, had been largely responsible for the influx of wealthy white visitors to Harlem. He took a personal interest in black writers and artists and was instrumental in helping many of them gain recognition among whites.

The Marshalls went to after-hours jazz clubs along 125th Street, where they heard singers Florence Mills and Alberta Hunter belt out risque songs like “Meet Me With Your Black Drawers On” after they finished working in white nightclubs downtown. They watched Bill “Bojangles” Robinson dance to the music of Fletcher Henderson’s band, and Peg Leg Bates dance better on one leg than most people could on two. They ate the famous after-hours breakfasts of fried chicken and waffles at Dickey Wells’s Seventh Avenue nightclub as the sun came up over the East River and Harlem went to sleep. Other spots visited by Thurgood, Buster, and their friends included Mom Frazier’s, Jennie Lou’s, Creole Pete’s, and Frank’s Restaurant, a 125th Street gathering place for the social elite, professionals, and show business people where beef stew was about as “down home” as the cooking got.

Thurgood and Vivian found social life in Harlem very different from what they were used to. Class and caste lines drawn by skin color and hair grade, family, education, and occupation, which separated the black bourgeoisie from the less fortunate in Baltimore and Washington, were less sharply defined. Coming from a family that had lived in the Washington area for generations was a valuable social credential there, but Harlem was a much more transient community, with many recent arrivals from the South.

Howard University, as well as the possibility of government jobs, drew established and aspiring middle-class blacks to Washington; in Harlem there was no entrenched black middle class, and New York was a magnet for working-class blacks from the South who needed only a strong back to find a job on the waterfront. In Baltimore and Washington, members of the black middle class socialized with their peers in the cloistered environs of their own homes. Blacks in Harlem, regardless of social standing, could meet and enjoy each other’s company in nightclubs and other public places, reserving the intimate surroundings of their homes for gatherings with close friends. And emerging black pride had become a dominant social force in Harlem, with dark- and light-skinned alike seeking a common identity in “Mother Africa.”

Vivian Marshall was well liked by New Yorkers. Friends remember a sharp-featured woman whose complexion was as light as Thurgood’s, a popular member of New York’s black “smart set.” She was a founding member of what was to become a national women’s social club, the Girl Friends. Ersa Poston and Anna Murphy approached Thurgood Marshall in 1938 and asked him to write the club’s charter. “He gladly agreed,” remembered Murphy, a former Girl Friends president, “and he didn’t charge us anything.”

The Marshalls’ Harlem social life was not without pain. Constance Baker Motley, who worked with Thurgood from 1945 to 1961, was also close to Buster. “Buster couldn’t have children,” she recalled. “During the Harlem years Buster was pregnant three times and miscarried three times.” The Marshalls sought help from physicians, including Thurgood’s brother Aubrey, but Buster still could not successfully complete a pregnancy.

New York life for Thurgood was also hard work. The association had won some minor victories protesting Jim Crow in public accommodations and the lack of employment of black workers on government projects, such as the Hoover Dam and the Mississippi Valley and Tennessee Valley Authority projects. But it had not yet developed a strategy to attack inequality on all fronts nationwide, and it still did not have broad-based support among blacks. Houston and Marshall began laying the foundation for a series of legal cases that would call on the Supreme Court to overrule the separate-but-equal doctrine, and they devised a plan to broaden the NAACP’s base by carrying its message to the Deep South. The messenger was Thurgood Marshall.

Marshall traveled through the South building a network of black and white attorneys across the Black Belt who were willing to take on civil rights cases. Equally important to this plan was finding the “proper plaintiffs” to bring these cases. In 1936, driving his 1929 Model T Ford through Virginia, Georgia, Alabama, Mississippi, and the Carolinas, Thurgood visited Howard Law School graduates and convinced them they had an obligation to help by taking NAACP cases in their towns.

“You have to understand that we had absolutely no money in those days,” Marshall recalled. When Marshall and Houston traveled together filing suits, the old Ford was turned into a legal office on wheels. “Charlie would sit in my car—I had a little old beat-up ‘29 Ford—and type out the briefs. And he could type up a storm—faster than any secretary—and not just with two fingers going. I mean he used ‘em all. We’d stay at friends’ homes in those days—for free, you understand. I think the whole budget for the legal office then was maybe $8,000—that was for two lawyers and a secretary.”

As a team the younger Marshall and the older Houston complemented each other. Houston was low-key, well organized, formal in his demeanor, and a stickler for the most minute detail. Thurgood was the gregarious extrovert, a backslapper who quickly won friends. Houston was smart. Marshall was shrewd. Houston was the better writer, Marshall the better speaker, lacing his conversations with humor, logic, salty and streetwise language, and black dialect that appealed to less educated black people.

In October 1937 Marshall, then twenty-nine, traveled alone through Virginia and North Carolina, seeking plaintiffs for teacher salary equalization cases, assessing voting rights for blacks, and reporting on the status of public education. He was attempting to strengthen local NAACP branches, basically small, church-member-based units, and to find the most opportune places to bring civil rights suits.

He wrote to Charles Houston from Petersburg, Virginia: “There is no franchise question in the immediate vicinity. Negroes just do not vote.”

From the Virginia tobacco region he reported: “The school situation is terrible. The principal of the elementary school is a gardener and janitor for the county superintendent of schools and is a typical Uncle Tom. The addition to the high school at Halifax is not equipped. The elementary school is terrible. The question of voting has not arisen because so few register.”

In Winston-Salem, North Carolina, he found a promising NAACP branch. “Only those Negroes are permitted to register who are ‘alright’ Negroes,” he wrote Houston. “Others are refused. No one will bring a case on the question. The president of the branch stressed the point to his executive committee that they should start a program to break this down. We will have to keep behind this branch. Winston-Salem Negroes have money. They all work in factories and make good money. They have a bus company on the street owned and operated by Negroes. The branch should be strong. Winston-Salem should be one of the main spots for the franchise fight.”

Often, while Marshall traveled alone through the South as the NAACP’s “backroads ambassador,” Houston was in New York fighting a personal battle. He had detractors from the Left and the Right. From the Left came charges he was too conservative, too concerned with winning a string of limited and narrow victories that left many broader issues unresolved. Others thought he was too radical and questioned his representation of some Communist defendants in civil rights cases. Despite his detractors, Houston continued his methodical approach of assembling a string of smaller precedent-setting victories, such as Gaines in Missouri, that would become the building blocks for the NAACP’s biggest Supreme Court triumph, Brown v. Board of Education.

Houston’s case of arrested tuberculosis was now complicated by cardiac problems, and in 1938 he decided to leave the NAACP’s New York office.

NINE

Mr. Civil Rights

Hi, you black son of a bitch.
—Dallas police chief

When thirty-year-old Thurgood Marshall replaced Charles Houston in 1938 as chief counsel of the NAACP, he found himself in charge of black America’s legal battle for equality and a New York office much too formal to suit his casual, jocular manner. “It operated with the formality of an embassy,” he told the New York Times “It was just too formal and tush tush. It was Dr. Whoois and Mr. Whatis and all kinds of nonsense like that, bowing and scraping like an embassy scene. Well, I took a long look, and I figured I’d have to bust that stuff up pretty quick. Believe me, I had them talking first names in nothing time, and no more of that formality business.” Marshall was fulfilling his pledge to “wear life like a loose garment,” and that would now be the attire of the people who worked for him.

Soon after replacing Houston, Marshall went to Dallas to investigate a racial incident that brought the city to the verge of violence. The sixty-five-year-old president of a local junior college was called to jury duty, but when he arrived at the courthouse and clerks discovered he was black, they told him to go home because the jury summons had been sent in error. He refused to leave after telling a bailiff he was a citizen of Texas and intended to serve on the jury. Two white court employees dragged the frail man from the courtroom and threw him down the courthouse steps.

Relations between blacks and whites in Dallas were already strained, and this event prompted the local NAACP branch to call Thurgood Marshall. He flew to Dallas and immediately observed the flaring racial tensions, but this time there would be no long legal cases and Supreme Court appeals to win the rights of black Texans to serve on juries. Marshall made a telephone call to the office of Texas governor James Allred in Austin. Allred, considered moderate on racial issues, was interested in this handsome, Texas-tall NAACP lawyer who had come all the way from New York City to see about the black college president flung down the courthouse steps. He agreed to meet Marshall the next day.

After spending an hour in the governor’s office—their conversation was never reported—Marshall left, telling waiting state-house reporters “no comment.” But he must have had a convincing argument, because several hours later the Dallas courthouse was ringed with Texas Rangers and the FBI began an investigation of the incident involving the college president. Governor Allred issued a statement that prospective black jurors would no longer be harassed and from that day forward would serve in Texas courtrooms. He said his proclamation and their safety would be enforced by the powerful Texas Rangers. Thurgood Marshall had won a major victory without writing a brief or appearing in a courtroom.

But the trip to Dallas was not without a threat to Thurgood’s safety. Later he recalled the incident. Shortly before his arrival, he said, “The chief of police told his men a nigger lawyer named Marshall was coming from New York City to cause trouble in the town. He told his men he would ‘personally kick the shit’ out of me. I sort of considered the idea of having a bad cold or something and not going down there.” Marshall said the state police provided a trooper to protect him. When he left the courthouse, he came face-to-face with the police chief. “And when he saw me he said, ‘Hi, you black son of a bitch. I’ve got you.’ And I ran. The state trooper pulled out his gun and said to the chief, ‘You stay right there.’”

Marshall continued traveling through the South during the 1940s, investigating lynchings and filing suits challenging denial of voting rights, jury service, and fair trials to black Americans. Vivian remained in New York.

But not all of Marshall’s travels took him to oppressed blacks in the Deep South. There were racial problems just a few miles from the NAACP’s Fifth Avenue doorstep. From Freeport, Long Island, came complaints that blacks were being harassed by police officers who were members of the Ku Klux Klan.

Marshall asked his friend Ted Poston, a reporter on the New York Amsterdam News, a black newspaper, to accompany him to Freeport to investigate. “Ted went with Thurgood to Freeport to interview people who had been threatened by the Klan,” said his widow, Ersa Poston, “and as they drove around Freeport taking affidavits from victims, they were followed by Klan members. There was a big Klan organization in Long Island in those days, and when Ted got home he was shaken. Ted said Thurgood was ‘laughing and joking’ about what might happen to them as the Klan followed them and that Thurgood was not a bit frightened.” Marshall filed complaints with the state’s attorney, and the harassment stopped.

But there were other attempts at intimidation on Marshall’s travels, and he did not respond to all of them with the same jocularity he applied to the trip with Poston. Houston’s warning that the work would be “dangerous” was true. His arrival was considered a threat by white southerners who believed the NAACP attorney was arousing a new militancy in southern blacks who had complacently accepted conditions as they were. In many towns he was protected by armed black citizens. He would stay in a different house each night, and the local black residents would swap automobiles with him, making it more difficult for him to be followed. When the call “Men are needed to sit up all night with a sick friend” went out, blacks knew armed guards were being called to protect the house where Marshall would spend the night.

In 1949 one of Marshall’s staff lawyers, Constance Baker Motley, went with him to Alabama for a hearing in a case against the board of trustees of the University of Alabama. She recalled, “During the course of that hearing we stayed in the Birmingham home of local attorney Arthur Shores. His home had been bombed on at least fifteen occasions. At night we were guarded by African-American men with machine guns, and during the day others carrying handguns escorted us to and from court.”

Sometimes his color alone provoked harassment. In 1943 Marshall was waiting for a train in a small Mississippi town where he had investigated a lynching. “I got hungry and I saw a restaurant, so I decided that I’d go over there and put my civil rights in my back pocket and go to the back door of the kitchen and see if I could buy a sandwich,” he recalled. “And while I was kibitzing myself to do that, this white man came up beside me in plain clothes with a great big pistol on his hip. And he said, ‘Nigger boy, what are you doing here?’ And I said, ‘Well, I’m waiting for the train to Shreveport.’ And he said, ‘There’s only one more train that comes through here, and that’s the four o’clock, and you’d better be on it because the sun is never going down on a live nigger in this town.’ I wasn’t hungry anymore.”

In October 1939 Walter White created a new organization to handle the association’s legal work, the Legal Defense and Educational Fund, Inc. The name was too long—especially for its folksy director, who had even shortened his own birth name—so it became known as the Legal Defense Fund, then the Inc. Fund, and finally the Fund. The Fund was established separately from the NAACP to take advantage of new federal laws granting tax-exempt status to nonprofit organizations that did not have lobbying as their principal function.

Its charter stated its purpose clearly:

To render free legal aid to Negroes who suffer legal injustice because of their race or color and cannot afford to employ legal assistance. To seek and promote educational opportunities denied to Negroes because of their color. To conduct research and publish information on educational facilities and inequalities furnished for Negroes out of public funds and on the status of the Negro in American life.

But it was to achieve much more under the guidance of Thurgood Marshall, who Walter White asked to become the Fund’s director-counsel. Marshall served in that capacity for twenty-one years, and during that time he and the other Fund lawyers handled most of the civil rights cases in America. United States Reports, the official publication of Supreme Court decisions, noted that Marshall argued thirty-two cases and assisted in eleven others during that period. But Marshall, who argued only six of those cases alone, always gave credit to the Fund’s staff. “I never hesitated to pick other people’s brains—brains I didn’t have,” he said. “After a while you got to know who was best at what kind of thing.”

White’s creation of the Fund and his appointment of Marshall to direct it appeared an act of self-preservation. Marshall’s southern trips brought him popularity among rank-and-file NAACP members and bold front-page headlines in black newspapers across the nation. His ability to identify and relate to blacks in all walks of life won him respect and confidence from the “little people” that the more formal Walter White and Roy Wilkins did not have.

To NAACP branch members and thousands of other blacks in the South, Thurgood Marshall was their knight in shining armor who came to town to fight their legal battles. To them he was the NAACP. “Thurgood is coming” was whispered among people anxiously awaiting his arrival to hear their complaints and file civil rights cases. When he returned to his New York office from a 1939 trip to Memphis, Tennessee, there was a letter on his desk: “We want you to know that the Memphis Branch is 100 percent for you, and we welcome your return anytime it may be convenient for you to do so at our expense.”

Because of his broad popularity and high visibility, some thought Marshall would eventually challenge Walter White’s position as the NAACP’s executive secretary, but Marshall was not threatening White. He did not want to direct the NAACP. He wanted to continue to use his legal talents to champion its causes.

The Fund, in effect, was the NAACP’s law firm, and Marshall soon built a staff of formidable legal talent. He called on old friends from Howard University’s School of Law, among them Leon Ranson, William H. Hastie, S. D. McGill, Carter Wesley, and W. Robert Ming Jr., and enlisted a cadre of emerging bright, young Howard Law School graduates to help as the Fund’s caseload burgeoned. He had a staff of six full-time lawyers and four lawyers on retainer in the District of Columbia, Dallas, Richmond, and Los Angeles. Donald Gaines Murray, the man admitted to the University of Maryland’s law school after Marshall successfully sued the school in 1934, volunteered his services to the Fund.

Describing the Fund’s operation, Marshall wrote:

“We get either a letter or a telephone call or telegram from either a person or a lawyer saying that they have got a problem involving discrimination on the part of race or color and it appears to be a legal problem. Then the question is as to whether or not we will help. If it is a worthwhile problem, we look into it. If the investigation conducted either from the New York office or through one of our local lawyers reveals that there is discrimination because of race or color and legal assistance is needed, we furnish that legal assistance in the form of either helping in payment of the costs or helping in the payment of lawyers’ fees, and mostly it is legal research in the preparation of briefs and materials.”

Marshall exercised great care in the selection of cases he took to the Supreme Court. Marshall confided to a colleague that he and other Fund lawyers “carefully selected the cases to appeal to the courts and the Supreme Court in those areas where the likelihood of success would appear the greatest.”

One of Marshall’s first cases as Fund director, in 1940, involved a long-standing interest—equality and fair trials in the courtroom. He sought to overturn the convictions of three black men accused of murdering a white man in Florida. The men had confessed to the murder after five days of nonstop questioning by Florida police, during which they were not allowed to see lawyers, friends, or family members. In an earlier decision the Supreme Court had ruled confessions extracted by force inadmissible, but Florida courts held that force had not been used in the current case and that therefore the confessions were admissible.

Marshall argued that “sunrise confessions” from isolated and terrified suspects constituted “force” and violated the Fourteenth Amendment’s guarantee of due process. The Supreme Court agreed and reversed the convictions. The case, Chambers v. Florida, was an important victory in Marshall’s quest to win fair trials for murder defendants.

In 1941 Marshall took another case involving involuntary confessions. In the small town of Hugo, Oklahoma, the bodies of a white man, Elmer Rogers, his wife, and two children were discovered in their burning home. A black handyman named Lyons was arrested and held in jail for eleven days with little sleep or food. During questioning police took a pan of the victims’ charred bones and tossed them in Lyons’s lap. He confessed twelve hours later and subsequently signed a written confession.

Several people in Hugo believed Lyons had been framed, and they called the NAACP. Once again Marshall found a town ready to explode in racial violence. The local NAACP branch provided bodyguards for him, and each night he slept in a different house. But one night a white man discovered where Marshall was staying and came to visit him. The visitor had no intention of harming Marshall or running him out of town. He identified himself as the dead woman’s father and said he had important information for Marshall. He said he did not know if Lyons was guilty or innocent, but he did know Lyons had been treated unfairly and beaten by the police. The man said one of his friends, a local policeman, had showed him a “nigger beater,” an iron pipe used to pummel a confession out of Lyons. The man volunteered to testify at Lyons’s trial. Speaking about his late-night visitor, Marshall later said, “Even in the most prejudiced communities, the majority of the people have some respect for truth and some sense of justice, no matter how deeply hidden it is at times.”

The judge threw out Lyons’s first confession but allowed prosecutors to refer to it during the trial. Marshall got police witnesses to admit to their “bone tactic.” A clerk at a downtown hotel testified he had heard policemen talking about the “nigger beater” and Lyons’s treatment at the hands of police. Marshall produced a photograph of a smiling police officer standing over the battered Lyons, but the officer would not admit to the beating. He testified he could identify himself, but not Lyons, because to him all blacks looked alike.

Marshall then tried to win dismissal of Lyons’s second confession, arguing it, too, had been coerced by force and intimidation. The Oklahoma court found Lyons guilty of murder and sentenced him to life in prison. Marshall considered it a victory of sorts, because he was convinced he had saved Lyons from the death penalty.

He appealed Lyons’s conviction to the Supreme Court, and Lyons v. Oklahoma was heard two years later, in 1944. Marshall again argued that the conviction had resulted from inadmissible evidence and that therefore his client had been denied due process. By a six-to-three vote the Court ruled against Marshall, saying Lyons’s second confession was not “brought about by the earlier mistreatments.” Justices Hugo Black, Wiley Rutledge, and Frank Murphy dissented. It was Marshall’s first defeat in a major case involving the civil rights of a black defendant, but he would go on to win twenty-seven cases before the Supreme Court and lose only five.

Marshall strongly believed that protecting constitutional rights of criminal defendants was important, but he also knew that without the right to vote thousands of black Americans were powerless to change the oppressive conditions under which they lived. He knew the ballot could be a forceful weapon in challenging a system that denied black people even the essentials of a decent life. Without the right to vote, black communities were denied their fair share of public services, health care, employment, police protection, and adequate schools.

The ratification of the Fifteenth Amendment, in 1870, gave black men voting rights. Neither black nor white women could vote until 1920. Despite the Fifteenth Amendment, and several laws passed to strengthen it, few southern blacks went to the polls because of threats of violence and legal devices put in place to discourage them. Fewer than 2.5 percent of eligible southern blacks voted during the 1930s, and by 1940 even that slim percentage had decreased.

Ralph Bunche, who as a UN undersecretary would win the 1950 Nobel Peace Prize for negotiating a Middle East peace agreement, was a Howard University government professor in 1940. During that year he produced a startling document on black voting rights. He reported only two and a half percent of eligible blacks voted in the Carolinas, Georgia, Alabama, Florida, Mississippi, Louisiana, Arkansas, and Texas in the 1940 presidential election.

The lack of black southerners’ participation in the election process did not stem from their lack of interest in political affairs but from the legal barriers their states had contrived to prohibit blacks from voting. One of these was the poll tax, which few southern blacks could afford to pay. Another was the literacy test, with different versions for blacks and whites. Whereas whites might be asked only to spell their names, blacks in Alabama, for instance, were required to “understand and explain any article of the Constitution of the United States to the satisfaction of the registrars.” The few blacks who could pass the tests and pay the poll taxes were often intimidated with threats of violence when they attempted to vote.

Even the few blacks who satisfied state requirements could not count on voting. In 1940, Marshall presented the Justice Department with affidavits from twenty black southerners who had been denied that right after paying poll taxes. At the city level, Columbia, South Carolina, in 1939 passed a law effectively requiring blacks to be at least eighty-seven years old in order to vote. Outside the law there was always the threat of violence. In June 1940 blacks in Brownsville, Texas, attempted to organize a voter registration drive; after the body of one of the organizers, Elbert Williams, was found in a river, the president of the local NAACP branch and seven others left town because they believed they would also be killed.

In 1932, to strengthen the restrictive nature of the Texas primary after a court challenge raised questions about its legality, the Texas Democratic Convention adopted a resolution. “Be it resolved that all white citizens of the State of Texas who are qualified to vote under the constitution and laws of the state shall be eligible to membership in the Democratic party and as such are entitled to participate in its deliberations.” The resolution was passed.

The white primary was perhaps the most effective device states used to deny black voting rights. The Democratic party’s candidates were selected in primary elections months before the general election, and since Deep South states were solidly Democratic, the primary winner was sure to win the general election. Primary voters were required to be members of a political party, but the Democratic party did not accept black members, effectively excluding them from the election process.

In 1941 Marshall challenged the white primary on behalf of black Texan Lonnie E. Smith. Election judge S. C. Allwright and his deputy James E. Liuzza had told Smith he could not vote in the 1940 Texas Democratic primary because he was not a member of the Democratic party. Smith sued the party, but his case was dismissed after the court ruled that the Democratic party was a “private institution” with the right to include or exclude anyone it wanted and that, furthermore, the party’s status as a private institution had been upheld in a 1935 Supreme Court challenge, Grovey v. Townsend.

But in a later Supreme Court case, United States v. Classic in 1941, Marshall saw a glimmer of hope. In 1941 a group of white Louisiana Democrats complained to the Justice Department that their ballots had not been counted by party officials in a 1940 federal election. The Justice Department quickly filed suit. Federal lawyers argued that “election officials who willfully alter or falsely count and certify ballots in a primary election” were acting under the authority of state law. The court agreed with U.S. assistant attorney general Herbert Wechsler and ruled: “The times, places and manner of holding elections for Senators and Representatives shall be prescribed in each state by the legislature thereof; but the Congress may at any time make or alter such regulations where the primary is by law made an integral part of the election machinery.”

The Texas and Louisiana Democratic primary procedures were similar, and Marshall believed he had the legal precedent he needed to successfully challenge white primaries. But he wanted a few more.

Marshall asked the Justice Department to join in the case as an amicus curiae, friend of the court, knowing it would strengthen his position to have well-known and successful government lawyers standing by his side. He made the request specifically of Assistant Attorney General Wechsler, the victor in Classic.

Wechsler turned down Marshall’s request that the Justice Department join the NAACP in the case. Writing in the 1959 Harvard Law Review, Wechsler later said he understood and sympathized with Marshall’s desire to extend the Classic decision to Smith v. Allwright, but his decision was, in part, a political one. “We were a government agency and had to get along with the Senate Judiciary Committee, which was dominated by Southerners, and this seemed an unnecessary fight.” He said he also believed at the time that the Classic decision was “a narrow one” because it addressed complaints of white plaintiffs who were already qualified members of the Democratic party, not black citizens who could not vote because they were not party members. This fact, he said, raised questions of the applicability of the Classic decision to the Texas primary case.

Marshall and the Fund lawyers would have to go it alone, but there were political events taking place that would soon help Marshall plead the case. The nation’s political climate was changing, and so was the Supreme Court, as President Franklin D. Roosevelt replaced retiring justices with men more attuned to his progressive New Deal policies.

Roosevelt picked the liberal Harlan Stone to replace the conservative Charles Evans Hughes as chief justice in 1941 and then named Robert Houghwout Jackson, a former U.S. attorney general and FDR’s Chesapeake Bay fishing buddy, to take Stone’s associate seat on the bench. James Clark McReynolds had retired. He had been appointed by President Woodrow Wilson and served on the court since 1911. McReynolds never attempted to shroud his racist and anti-Semitic feelings. He was replaced by liberal midwestern Wiley Rutledge, the Kentucky-born son of a Baptist preacher, who was a former dean of Washington University’s and Iowa State University’s law schools.

Hugo Black was a former U.S. senator; although he had once been a member of Alabama’s Ku Klux Klan, his liberal decisions in civil rights cases marked him as one of black America’s best friends on the court. Black had written the unanimous opinion in the 1939 case of Pierce v. Louisiana, the latest in a growing number of decisions reversing convictions by all-white juries in cities where blacks were systematically excluded from jury duty.

Frank Murphy had been governor of Michigan and, as Roosevelt’s attorney general, had established the first civil rights section in the Justice Department. Murphy was the Court’s only Roman Catholic. William O. Douglas, who chewed gum and struck matches on the seat of his pants while on the bench, was one of the strongest advocates of civil rights ever to sit on the Court.

William Hastie, who had taught at Howard University School of Law and worked with Marshall and Charles Houston, was now a civilian aide to the Department of War in 1941 as the nation prepared to enter World War II. A. Philip Randolph, head of the Brotherhood of Sleeping Car Porters and Maids, petitioned President Roosevelt for equal employment opportunities for blacks in steel mills, aviation plants, and munitions factories, where they were being hired only for low-paying, menial jobs. The president responded with Executive Order 8022: “There shall be no discrimination in the employment of workers in defense industries and in government because of race, creed, color or national origin...And it is the duty of employers and labor organizations... to provide for full and equitable participation of all workers.”

Roosevelt gave black Americans access to the White House and established an unofficial “black cabinet” of Afro-American leaders to meet with him frequently at the White House. So, on the eve of Smith v. Allwright, Marshall had good reason to believe that decisions of the Supreme Court might now reflect the liberal attitudes of President Roosevelt, who appeared concerned about and responsive to the problems of black Americans.

Louisiana’s Democratic party, much to the surprise and delight of Marshall and Hastie, and perhaps even some of the justices, did not send anyone to Washington to defend its actions with oral arguments in Smith v. Allwright. Marshall methodically outlined the precedents of the Classic case and then skillfully wrapped them around Smith. He explained the similarities in the Louisiana and Texas primaries that buttressed his case, gingerly skirting the legally sensitive issue of race. Texas officials, like officials in Louisiana, acting with the sanction and authority of the state, had denied citizens the right to vote, which was protected by the Constitution, Marshall argued. He told the Court that the Texas primary “effectively controls the choice” of candidates in Texas elections and that S. E. Allwright, who as an election judge was a state official, had violated the Fifteenth Amendment.

On April 3, 1944, the Supreme Court issued its decision. Justice Stanley Reed, speaking for the eight-to-one majority, said:

When primaries become a part of the machinery for choosing officials, state and national, as they have here, the same test to determine the character of discrimination or abridgement should be applied to the primary as are applied to the general election. If the state requires a certain electoral procedure, prescribes a general election ballot made up of party nominees so chosen, and limits the choice of the electorate in general elections for state offices, practically speaking, to those whose names appear on such a ballot, it endorses, adopts and enforces the discrimination against Negroes, practiced by a party entrusted by Texas law with the determination of the qualification of participants in the primary. This is state action within the meaning of the Fifteenth Amendment.

Marshall was in his New York office when he received the telephone call telling him about the Court’s verdict. It was the last call he took that day. Secretaries held messages for Marshall and the other Fund lawyers as they celebrated the victory with an office party. As a result, Marshall missed a congratulatory call from Associate Justice Frank Murphy, who wanted to invite him to lunch. Marshall said later, “I apologized profusely, and Murphy agreed that a guy had a right to get drunk at a time like that.”

Thurgood Marshall appeared triumphantly at the NAACP’s 1944 convention in Chicago before eight hundred NAACP branch secretaries and members. He told them that blacks were registering to vote for that spring’s election all over the South and that the Justice Department was aggressively investigating incidents where blacks were not allowed to register. In a speech that brought the audience to its feet, he said:

“We must not be delayed by people who say ‘the time is not ripe,’ nor should we proceed with caution for fear of destroying the status quo. Persons who deny to us our civil rights should be brought to justice now. Many people believe the time is always ‘ripe’ to discriminate against Negroes. All right then—the time is always ‘ripe’ to bring them to justice. The responsibility for the enforcement of these statutes rests with every American citizen regardless of race or color. However, the real job has to be done by the Negro population with whatever friends of the other race are willing to join in.”

The Supreme Court victory did not bring attempts to stop blacks from voting to an abrupt halt, and Marshall realized getting the law enforced was just as important as getting the law in place. Texas and several other southern states quickly attempted to circumvent the Smith decision. In 1945, a year after the Texas primary case, the South Carolina legislature repealed its voting statutes to give local registrars, who did not operate under state authority, control of the voter registration process. In a case argued in a South Carolina federal district court, Marshall won a decision prohibiting local registrars from refusing to register black voters for Democratic primaries.

In many small southern towns, registrars still turned black citizens away. The Justice Department received affidavits in 1946 from blacks who said they still could not register to vote, and Marshall petitioned the attorney general to enforce the law. “There is no reason why a hundred clear cases of this sort should not be placed before the United States attorneys and the attorney general every year until the election officials discover that it is both wiser and safer to follow the United States laws than to violate them,” Marshall said during a New York City press conference.

But as late as 1953, fourteen years after the Smith decision, Marshall and the Fund were still fighting to ensure compliance with the ruling. That year, in Terry v. Adams, the Court struck down the “private club” status of the Jaybird Democratic Association, which refused to register black voters in Democratic primaries in Fort Bend County, Texas.

In speeches across the nation to NAACP branches in 1944 and 1945, Marshall continued to assert his belief that the American court system was the most effective tool for protecting and expanding the rights of black Americans. He said the Fund would continue to seek enactment of new civil rights legislation as well as the vigorous enforcement of existing laws. “In its broadest sense,” he declared, “the term ‘civil rights’ includes those rights which are the outgrowth of civilization, the existence and exercise of which necessarily follow from the rights that repose in the subjects of a country exercising self-government.”

However, in his speeches at this time, Marshall seldom mentioned plans for launching a legal assault on segregated education. It was clear that Marshall, the NAACP, and the Fund had not yet agreed on a definitive plan for attacking educational segregation, as they had for securing voting rights and constitutional protection of criminal defendants. Marshall and his colleagues were still wrestling with the difficult problem of whether to challenge the “equal” provision in the separate-but-equal doctrine or to launch a broader assault on all segregated public education. Marshall’s public silence on the issue did not mean it was not on his mind. A decision would be made very soon.

U.S. Army soldiers assigned to the 24th Infantry Regiment move up to the firing line in Korea, July 18, 1950. Courtesy: U.S. Army via www.defense.gov.

TEN

Tan Yanks in Korea

Now, General, just between you and me,
goddammit, don’t you tell me there’s no Negro
that can play a horn!
—Thurgood Marshall

Thurgood Marshall was in New York City when he received news that his teacher, colleague, and friend Charles Hamilton Houston had died of a heart attack at Howard University’s Freedmen’s Hospital on April 22, 1950, at the age of fifty-four. Marshall rushed to Washington to share the Houston family’s grief and seek consolation among old friends for his own.

Marshall’s friend Gardner Bishop said Thurgood was greatly affected by Houston’s death: “Turkey grieved for Charlie as if he were a brother, and I think his grief was compounded by the fact that sitting there in Rankin Chapel, staring at Charlie’s casket, Thurgood suddenly realized he had lost a man who had been as important in his life as his father had been.”

Charles Houston’s death came at a time when Marshall and the NAACP were moving toward the final assault on what they saw as their biggest and most important challenge, segregated education. In the days before he died, Houston spent his time in his hospital room drafting handwritten memorandums on yellow legal pads outlining school desegregation strategy for Thurgood Marshall, receiving visitors who were plaintiffs in civil rights cases, and writing what would be a final letter to his son, Bo. His physician, Dr. Edward Mazique, had attempted to discourage him from being so active during what was presumed to have been a successful convalescence. But the flurry of activity in Charles Houston’s hospital room was the product, perhaps, of something Houston knew and Mazique did not. Thurgood Marshall would now have to direct the NAACP’s legal work without the advice of his old friend, but Charles Houston’s legacy would be a powerful weapon.

At the funeral Houston’s cousin William Henry Hastie, by then a U.S. appeals court judge, spoke eloquently of Houston’s “unremitting struggle to win for the Negro full status without discrimination.” He described Houston’s civil rights work, which “stopped only when his body could no longer keep pace with his will and his spirit.” Marshall helped carry Houston’s casket from Howard University’s ivy-walled Andrew Rankin Memorial Chapel, where Justices Hugo Black and Tom Clark, Interior Secretary Oscar Chapman, and civil rights leaders Roy Wilkins, Walter White, Lester Granger, Clarence Mitchell II, and John P. Davis had come to pay their respects to their friend.

“As we grieve we cannot forget that he believed, perhaps above all else, in strength; strength to do and to bear what lesser men would regard as impossible or unbearable. He counted nothing, no physical weakness and not even death itself, as an obstacle to the onward sweep of strong men and women in the accomplishment of worthwhile deeds...I know he would wish all of us to carry on in that spirit.”

Marshall, who had shortened his first name from Thoroughgood, now had a new name, one that appeared in the headlines of black newspapers and magazines such as the Amsterdam News, the Chicago Defender, the Pittsburgh Courier, the Afro-American, and Our World Magazine. They called him “Mr. Civil Rights.”

His hometown paper, the Baltimore Afro-American, characterized Marshall as “the nation’s biggest race man,” noting wryly that he had added about thirty pounds to his lanky six-foot-two-inch frame since the last time his picture had appeared on its pages. The Afro’s observation was accurate. Thurgood’s Arrow Collar Man good looks were slowly giving way to a slight middle-age spread, and he was paying less attention to the maintenance of his double-breasted suits and highly polished Florsheim shoes. Despite his title and national recognition, his NAACP salary was just $8,748 annually.

By 1951 the NAACP had made notable progress in the struggle to obtain for all Americans equal rights under the Constitution. Ten years earlier no school south of the Potomac and Ohio rivers had a biracial student body, but in 1951 black students were attending state universities in Virginia, Kentucky, Oklahoma, Texas, and Arkansas, and their admission had been ordered in Tennessee and Louisiana. Speaking about the early victories in the fight to desegregate education, Marshall said, “The complete destruction of all enforced segregation looms into sight. Segregation no longer has the stamp of legality in any public education.”

There was progress on other fronts, too. Black baseball players—among them Jackie Robinson, Roy Campanella, Larry Doby, Don Newcombe, and Luke Easter—were playing on formerly all-white major-league teams. For the first time Hollywood was portraying a more honest version of black life in America in movies such as Home of the Brave, Lost Boundaries, Pinky, Intruder in the Dust, and No Way Out. Politically, President Harry S. Truman was throwing the federal government’s weight and the power of the presidency behind black America’s drive for equality. It was an expedient move for the man who became president when Franklin D. Roosevelt died in office and was now seeking a full term at a time when many blacks would be casting their first ballots.

In 1947 Truman had appointed a biracial group of citizens to study America’s racial problems. That October the President’s Committee on Civil Rights delivered its report, To Secure These Rights, to the White House. The report called for an end to segregation and other limitations of opportunity and fairness imposed on black Americans. After reading the panel’s findings, Truman asked Congress to make lynching a federal crime, to outlaw the poll tax, to eliminate segregated interstate transportation, and to establish a Fair Employment Practices Commission to stop discrimination in hiring.

A year later, Truman ordered an end to all discrimination in federal employment and all segregation in the nation’s armed services. Executive Order 9981 “declared to be the policy of the President that there shall be equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion or national origin” and that promotions would be made “solely on merit and fitness.” It sent shock waves through the Defense Department and rankled southern legislators and a few northern ones on Capitol Hill. The order established the President’s Committee on Equality of Treatment and Opportunity, chaired by Charles H. Fahey, to work with the secretary of defense and the armed services’ branch secretaries on plans and procedures for integrating the armed forces.

The date Truman, a Democrat, signed Executive Order 9981—July 26, 1948—was politically significant. It was two weeks before a sharply divided Democratic party would convene to select its presidential candidate. Southern Democrats on one side and western and northern Democrats on the other were pitched in a bitter struggle that was dividing the party on racial issues. Thurgood Marshall’s fight against poll taxes and literacy tests had made it easier for some southern blacks to register and vote, and their political voice was beginning to gain strength and recognition for the first time since Reconstruction. Truman had met earlier in an unpublicized White House session with several black leaders—Roy Wilkins, Lester Granger, A. Philip Randolph, John P. Davis, and Ralph Bunche—and was convinced his political future rested in the hands of voters in the big industrial cities and southern black voters.

Recognizing the emerging strength of the black vote, Democratic party leaders asked a black minister to open the convention, but when he rose to pray, Senator “Cotton Ed” Smith of South Carolina walked out. In a speech on the convention floor, Truman promised to call Congress into special session to pass bold civil rights legislation and said he would move vigorously on all fronts to strike down barriers of segregation and discrimination.

Education opened the doors to jobs for returning veterans, but the doors of state universities remained shut to most black students. Blacks without college educations still obtained only menial jobs in government and industry, and some labor unions would not take black workers into their ranks. The nation’s 800,000 black veterans of World War II, many with medals for valor and heroism, wanted not only jobs and decent housing but also quality educations. The GI bill would pay for books and tuition, but the black veterans found educational opportunities scarce. In southern states there was one black medical school and forty white ones; one black school of pharmacy and twenty white ones; no black engineering schools but thirty-six for white students.

Thurgood Marshall was convinced education was the cornerstone for the full realization of the American dream and that education was ultimately more important than where people sat on a bus or train, what restroom they used, or what water fountain they used to quench their thirst. Marshall often reminded friends that the battle to open restaurants and hotels to blacks was futile unless they had the money to use the facilities.

Many black soldiers elected to remain in the Army after World War II. Even though there was segregation and discrimination in the armed forces, there were still more opportunities for blacks in the service than in civilian life. Black recruits were also enlisting in large numbers, and by the middle of 1950 one of every four Army recruits was black. Their sheer numbers created a “forced integration” of service units; black training and combat units could no longer absorb all of the incoming soldiers, so white units were integrated.

However, a disproportionately high number of southern white officers commanded black troops. General Dwight David Eisenhower had testified before the Senate Armed Services Committee in 1948 that he believed racial segregation in the military should not be continued at the platoon level and below. General Douglas MacArthur, the Far East commander, had spoken often about the valor of black troops under fire but had done little to integrate fighting forces. Other military commanders, like MacArthur, were also slow or reluctant to follow the president’s order to treat and promote black soldiers equally. But as America became increasingly involved in the Korean conflict, black soldiers once again went to war.

Troops from the communist People’s Republic of Korea in the north crossed the 38th parallel into South Korea on June 25, 1950. The battlefield reports were grim; Republic of South Korea troops retreated from one strategic position to another, suffering heavy combat losses. On July 12 the 24th Infantry Regiment, an all-black unit that had been part of the U.S. Army for eighty-one years, landed in Korea from their base in Japan. The New York Times reported the recapture of Yech’on, a major railhead, on July 22, 1950, after a bloody fifteen-hour battle won by the 24th: “Communist propaganda took it on the chin today at Yech’on when the Korea reds were blasted by American Negro troops who believed not only in the United States as it is, but in the better nation it will become when intolerance is also defeated.”

On September 11, 1950, Lieutenant Colonel J. T. Corley became commanding officer of the 24th Regiment at Haman, Korea, and issued this memorandum to “The Fighting 24th Infantry Regimental Combat Team”:

Upon assumption of command, I cannot help but express my opinion of the Fighting 24th United States Infantry. In the sixty days of continuous combat, you have withstood a “toughness of battle” which I have not seen in five campaigns in Africa, Sicily and Europe with the First Infantry Division. You have held ground against superior forces. You have lived up to the regimental motto “Semper Paratus.” The first United States victory in Korea was your action at Yech’on. It has been noted in Congress. The people back home cover in detail your efforts on “Battle Hill” west of Haman, Korea. Other units have been unable to accomplish what depleted companies of the Fighting 24th have done. I am proud of the “Blockhousers.”

Despite this glowing comment from a commanding officer, during the early months of the Korean War, Thurgood Marshall and the NAACP received letters from black enlisted men complaining about the treatment they received from white southern officers.

They wrote about the high rate of courts-martial, improper convictions, and disproportionately severe sentences on charges ranging from being lost from their units—”melting into the night”—to “disobedience” and “misbehavior” under fire.

“What has happened in Korea is an old, old story—as old as Jim Crow in the armed services,” Marshall told NAACP board members in 1951. “It is a story of the sacrifice of Negro troops upon the altar of segregation.”

Marshall went on: “The pattern is little varied from war to war. First come reports from the front of some heroic deed done by Negro soldiers, an achievement to indicate the courage with which these men are facing the enemy and their ability to take the toughest kind of fighting. And then suddenly the reports change as if in a concerted effort to discredit the record of Negro fighting men. The tales we are beginning to hear are of incompetency, failure and cowardice—accounts which would make it appear that Negroes are not capable of combat duty and should be restricted to labor battalions.”

Marshall continued: “This pattern was glaringly apparent in World War I. Negro regiments and Negro troops received wide publicity for bravery and strategic victories in the early days of the war. Later came the stories that they couldn’t take it, that they were cowards, that they ran under fire and had to be court-martialed for violation of the Seventy-fifth Article of War, misbehavior in front of the enemy.

“Again in Italy, during World War II, this series of events was repeated. The all-Negro 92nd Division was accused of being unable to stand up under fire. Once more there were courts-martial of men unjustly accused of running from the enemy.”

Marshall noted that the 24th Infantry’s black Third Battalion was winning battles while other American forces were losing them. “It began to look as if, of all the American troops overseas, only the 24th was fighting and winning.” He added, “And then it happened again. Such popular applause could not be tolerated.

“Soon,” Marshall said, “there began to appear reports of a large number of court-martial cases involving Negroes—cases in which Negroes were tried and convicted of cowardice, of misbehavior in the presence of the enemy, of failure to perform their assigned duties. Thirty-six of these convicted men had appealed to the NAACP for assistance, and on hearing their cases in Washington it was clear something was wrong. The heroes of yesterday were now cowards; the same men, the same outfits—brave one day and frightened the next.” Marshall said the NAACP had assumed the responsibility of protecting the rights of all black Americans and believed it had a special obligation to defend those who were fighting for their country.

Toward the end of World War II, Marshall had gone to California to investigate the so-called Port Chicago mutiny at what became the Concord Naval Weapons Station near Oakland. In July 1944, in the biggest domestic military disaster of the war, 320 sailors, of whom 202 were black, were killed when ammunition they were loading for shipment to the South Pacific exploded. Subsequently, 258 black survivors of the blast refused to return to the unsafe working conditions and were charged with mutiny and cowardice. Threatened with death by firing squad, most went back to work. But fifty who held out were sentenced to prison for between eight and fifteen years after courts-martial that lasted only eighty minutes. Marshall managed to win the men’s release in July 1946, but all were given “less than honorable” discharges and denied veterans’ benefits.

Now Marshall was concerned about the high number of charges against black soldiers in Korea and the unusually severe sentences they were given on conviction. In September 1951 he received a complaint concerning the arrest and conviction by court-martial of Lieutenant Leon A. Gilbert, one of the few Negro officers of the 24th Infantry. He was charged with leaving his assigned post in a combat zone, a violation of the Seventy-fifth Article of War, “misbehavior in the presence of the enemy.” Gilbert was found guilty and sentenced to death. After the NAACP intervened on his behalf at a hearing before the Judicial Council of the Judge Advocate General in Washington, President Truman commuted his sentence to twenty years’ imprisonment.

The NAACP sent Marshall to investigate the courts-martial of black soldiers in Korea. Douglas MacArthur, General of the Army, rejected Marshall’s initial request for permission to travel to Japan and Korea. Walter White appealed the rejection to MacArthur and President Truman. Marshall recalled: “The general rescinded his former action and granted permission for me to go to the Far East on what became the most important mission thus far of my career. I lost no time in taking off, departing as soon as transportation could be arranged. I left New York by air on January 11 [1951] and arrived in Tokyo on the fourteenth.”

Marshall met with General MacArthur, General Doyle O. Hickey, chief of staff, General Edwin A. Zundell, the inspector general of the Far East Command, and Colonel Hickman, the judge advocate. “In this initial conference I told them frankly that I thought there was a good possibility that the men had been victims of racial bias and unfair trials based on conditions inherent in the Army’s segregation policies,” Marshall said.

“General MacArthur insisted that I be given the fullest cooperation from everyone under his command,” Marshall wrote in a report to the NAACP’s board of directors. But in private comments to close friends many years later, he said he believed MacArthur’s decision to receive him in Japan resulted from a direct order President Truman sent the general.

Marshall said he was surprised to find, on his arrival in Japan, that MacArthur had no black officers on his command staff; there was not even a black musician playing in a military band he heard several days after he arrived in Tokyo.

Marshall questioned MacArthur about the absence of blacks on his staff and in other positions of responsibility. He told MacArthur, “Well, I just talked to a Negro yesterday who has killed more people with a rifle than any person in history, and he’s not qualified?” MacArthur’s answer was no.

Marshall continued, “I said, ‘Well now, General, remember yesterday you had that big band playing at the ceremony over there?’

“MacArthur said, ‘Yes, wasn’t that wonderful?’

“I said, ‘Yes, it’s beautiful. Now, General, just between you and me, goddammit, don’t you tell me there’s no Negro that can play a horn!’

“That’s when he said for me to go,” Marshall concluded.

In later years Marshall said he was convinced MacArthur was a racist. “What else can you say?” he asked. “Every branch of the service was desegregated, but he wouldn’t budge. And when he left, the Army desegregated, too. Right away.”

Marshall explained the method he used for investigating the servicemen’s grievances. “First on my list of tasks was to interview the imprisoned men personally,” Marshall recalled. “I spent three weeks making daily trips to the stockade in which they were confined—just outside of Tokyo—and interviewed thirty-four of the thirty-six accused men who had written for our assistance prior to my leaving New York. The other two were hospitalized at the time. I also talked to many others who requested assistance while I was there.”

Marshall said he also interviewed witnesses who belonged to the same units as the accused men. “In all I spoke with eighty men and discovered the facts that were missing from the records,” he said. “Checking and rechecking these facts, I sifted hearsay from their statements, and a half-dozen or more talks with Lieutenant Leon A. Gilbert secured for me his full and complete story.”

He continued, “In the course of my investigation, one unbelievable story after another came to my attention. Take the case of one young GI convicted of cowardice. Enlisting at the age of fifteen, he was stationed in Japan and sent to Korea when the fighting broke out. Because he knew he would have been returned to the United States as a youthful hero rather than permitted to get into the thick of the fighting, he did not reveal his true age. This lad stuck at the front until he was yanked out on a trumped-up court-martial charge. It was not until I talked to him that his real age became known. He did not reach his eighteenth birthday until eleven days after he had been convicted by court-martial.”

From Japan, where he began his preliminary investigation, Marshall flew to Korea. Wearing military fatigues and a combat helmet, the forty-three-year-old lawyer visited black troops in front-line trenches. Marshall’s investigation led him to conclude defendants had not received fair trials under the strict Uniform Code of Military Justice. In four cases in which black soldiers had received life sentences, Marshall found, the trials had lasted less than fifty minutes. “Even in Mississippi a Negro gets a trial longer than that if he is brought to trial,” Marshall said.

One soldier charged with “misbehavior in front of the enemy” was sentenced to fifty years, even though he testified he had sprained his ankle and could not keep up with his combat unit.

One of the cases Marshall found “unbelievable” was that of Private J. P. Morgan, a member of the 24th Regiment who was court-martialed for alleged misbehavior in the presence of the enemy and sentenced to ten years at hard labor. Marshall reported, “Although he was able to prove he was in an Army hospital during the period he was charged with not being on duty, his conviction was upheld by headquarters of the 25th Division, of which the 24th is a constituent unit. When his case was taken to Washington by the NAACP, the conviction was reversed, and Private Morgan was returned to duty with his outfit.

“In another instance four men were convicted of misbehavior in the presence of the enemy, although they were stationed miles behind the battle line and assigned to mess duty. Given time off one evening, they took a jeep and started to town, and they were arrested, charged with violation of the Seventy-fifth Article of War, convicted and sentenced to ten years each. Again, these convictions were upheld by the 25th Division, only to be reversed on appeal by the NAACP to Washington. The men are now back in the Army fighting.”

In his report to the NAACP, Marshall said, he discovered thirty-two black soldiers convicted under the Seventy-fifth Article of War from August through October 1950. During the same period, only two white GIs were convicted. One of those white soldiers, assigned to a first-aid tent near the front lines, became drunk while on duty and left his post. He was discovered at a rear position several days later and arrested. After being tried and convicted of dereliction of duty, he was given a five-year sentence, which was later reduced to one year. The other convicted white GI was given three years for disobedience in front of the enemy. Marshall noted that another white soldier, court-martialed for falling asleep at his sentry post, was acquitted even though his commanding officer testified he had seen the soldier sleeping.

“Justice in Korea may have been blind, but not color-blind,” Marshall said.

During interviews with black soldiers on the front lines, Marshall was told that white officers “sneered” at black troops. One white officer reportedly told his soldiers, “I despise nigger troops, and I don’t want to command you, and the regiment is no good, and you are lousy. You don’t know how to fight.” Marshall reported that while this was not true of all white officers, it was a prevalent attitude and created lack of confidence between the men and their assigned leaders.

“As long as we have racial segregation in the Army, we will have the type of injustice of which these courts-martial are typical.” Marshall said. “Men who are daily exposing themselves to injury and death at the hands of the enemy should not be subjected to injustice, additional hardships, and unnecessary danger solely because of race.”

Marshall noted that in several cases accused soldiers had “airtight excuses and perfect alibis” but did not present this information in their defense. He said he asked several soldiers, “Why didn’t you tell your lawyer that? Why didn’t you speak up in court?”

Marshall said the answer was always the same. As one soldier told him: “It wasn’t worth it. We knew when we went to trial that we would be convicted—and we were hoping and praying that we would only get life. They gave the officer [Gilbert] death solely because he was a Negro. What could we expect? We know the score.”

Marshall said he was especially disturbed by the case of a soldier he identified as “Sergeant X”:

“A typical instance was the case of Sergeant X, one of the finest men I ever met, a soldier with an outstanding record. He had kept his company together during the administration of three successive commanding officers, all of whom were killed within a two-day period. In more than ninety days at the front, he had never lost a single wounded man. He always brought the wounded out, sometimes on his own back. With his buddies being killed one after another, he kept fighting day after day, many times in command because there was no officer around. This soldier was charged with refusing to obey an order. He went through his trial without mentioning either to his lawyer or to the court that at that moment he had in his pocket a statement from a medical doctor in charge, saying the sergeant was on the verge of battle fatigue and should be returned to the rear.

“Not until I saw him in the stockade did he mention it to anyone. I immediately called the captain of the guard to check his story. His impounded uniform was searched, and there, in his wallet, the guard found the unsubmitted evidence. ‘Why didn’t you tell them?’ I asked. ‘It wasn’t worth it,’ he answered. ‘It wouldn’t have helped me.’”

Marshall reported that black troops in Korea ignored propaganda attempts by the Communists to exploit the condition of black Americans. “Despite the difficulties they have encountered,” he declared, “our Negro troops have remained staunchly loyal, turning a deaf ear to Communist propaganda. Our Negro troops in Korea have not been lured by the song the Communists sing.”

Marshall returned to New York and sent copies of his report in October 1951 to President Truman and General MacArthur. At a New York City press conference, Marshall said racism was still highly prevalent in the Army. A short time later the Army reduced the sentences of twenty of the thirty-two convicted black soldiers whose cases Marshall had reviewed.

By the time an armistice brought an end to fighting in Korea, in June 1953, more than 90 percent of all blacks in the Army were assigned to integrated units. The Air Force and the Marines had eliminated their segregated units. Younger recruits soon found it difficult to believe that an all-black combat unit like the Fighting 24th had ever existed.

NAACP executive secretary Walter White said Marshall’s trip to Japan and Korea “underscores the need for immediate elimination of segregation from the United States Army and for the full implementation of the President’s Executive Order.” He remarked, “All of us are deeply indebted to Mr. Marshall for his exposure of these conditions, which cry to high heaven for immediate correction if the prestige of our country is to be maintained and the lives of our fighting men to be saved.”

After Marshall returned from Korea he was a frequent visitor to Washington, D.C., where he found a southern city still sharply segregated. The city’s black population had doubled to 280,000 between 1930 and 1950 and the Washington area boasted the nation’s largest percentage of black professionals: 300 physicians, 150 lawyers and judges, 2,000 teachers and faculty members. For Thurgood Marshall the hope for black America’s progress rested in the nation’s capital. That was where the important judicial, legislative, and executive decisions were made and where the growing political power of minorities was being brought to bear on those who made and enforced the nation’s laws.

Southern congressmen fought with determination to impose their segregationist ideas on the nation’s capital and the country’s laws. A December 1950 article in Harper’s magazine, “Washington: Blight on Democracy,” reported: “Negroes who have lived in many parts of the country say that nowhere else in America is there such bitter mutual race hatred.”

Under President Roosevelt’s New Deal the federal government had expanded, but blacks were only given jobs as clerks, messengers, janitors, and chauffeurs on the lowest rung of the government’s employment ladder. Segregated accommodations were still the rule, and black government workers who could not eat in government cafeterias would either have to travel uptown to U Street to eat at black restaurants, such as the Florida Avenue Grill or Harrison’s, or bring lunch in a bag. Even Congressman William Dawson from Chicago, Illinois, could not eat in the Capitol’s congressional dining room or drink from one of its “white” water fountains.

Segregation was so entrenched in the nation’s capital that the District of Columbia’s white-dominated board of recreation refused to accept ownership of the city’s federally controlled golf courses and swimming pools because of a stipulation requiring they be opened to all citizens.

Marshall visited Washington frequently to see old friends at Howard University and NAACP officials, like lobbyist Clarence Mitchell II, to plan the association’s civil rights strategies. He was very much at home in the city where he attended law school and he socialized with friends at the nightclubs along U Street and at the Howard Theatre.

On these trips he mixed NAACP business with pleasure, playing poker with professors Martin Jenkins, Herman Branson, attorney Wiley Branton, Ralph Bunche, and other friends he made during his student years in Washington. “Thurgood was a good poker player who had refined the art of the bluff,” Branson said. “He had complete control of his face, and his heavy eyelids and the glare from his glasses made it difficult to tell if he was holding aces or if his hand was a total bust.”

Gardner Bishop, “the U Street Barber,” cut Marshall’s hair at his popular U Street barbershop, which was a social crossroads for black men from all walks of Washington life. In addition to Marshall, his clientele had included Charles Houston and other members of the Howard University faculty.

Bishop was an activist and joined with Marshall and Houston in developing early cases that were crucial building blocks in the school desegregation suit. A proud black man with little formal education, he had come to Washington from his Rocky Mount, North Carolina, home to work in a white barbershop in the 1930s. A short time later he opened his own shop on U Street, the black business district. He became active in civil rights when his daughter, Judine, was chased off a whites-only playground by a police officer.

Gardner Bishop lived in northwest Washington, D.C., in a Presbyterian nursing home. He spoke often to visitors about his association with Thurgood Marshall. “Thurgood had hair like a white man,” he recalled, “and he was full of jokes from the minute he got in my chair until he left the shop.” Bishop remembered Marshall’s self-effacing humor “that kept him in touch with the black folks on the street corners who didn’t have all the college smarts he had.”

Bishop said, “After he got out of the chair he would hang around the shop to read the colored papers—I used to get all of them—and talk with my other customers. He would order a slab of ribs from the Florida Avenue Grill and share them with me and my other barber, and after the shop closed we would discuss civil rights cases, Washington politics, drink bourbon, and run a few hands of poker.”

But the barbershop was not the only place Marshall used his humor. On visits to the clerk’s office while filing motions in Supreme Court cases, Marshall joked with the white personnel. “Well, gotta go down to South Carolina from here. Last time I was there, they told me they were going to run me out of town on a rail. Better get my running shoes on,” he once said.

Marshall loved to laugh. He once joked about the possibility of bringing a lawsuit against a white prostitute if she refused her services to a black man because of his race. “I wonder if a colored man could claim a violation of the Constitution’s equal protection guarantees if he’s turned down by a prostitute,” he said.

Marshall dropped the letter g from the ends of words; he said “ax” instead of “asked” and used “dese, dat, and dose.” Henry Moon, the NAACP’s publicity director and Marshall’s close friend, told interviewers: “It was all part of his strategy. He never wanted them to think, ‘Now, this here nigger thinks he’s smarter than I am.’”

Gunnar Myrdal’s study of black life lends credence to Moon’s theory about Marshall’s use of black dialect: “Negroes do it [use dialect] to avoid appearing ‘uppity’ in the eyes of whites. Negroes seem to be proud of their dialect, and frequently speak it even when they know how to speak perfect English. Some upper-class Negroes do this to retain prestige and a following among lower-class Negroes.”

“He could sit in the barbershop and talk like he was one of the U Street boys,” Bishop said, “but everybody in the shop, even my shoeshine boy, knew Thurgood could speak perfect English, and did when he took a case to court.”

Bishop recalled one of Marshall’s favorite barbershop jokes. A slave had stolen a turkey from his master and eaten it. When the master came to beat the slave for eating his turkey, the slave pleaded, “You shouldn’t beat me, massuh. You got less turkey, but you sure got more nigger.”

Heman Marion Sweatt registering for class in the University of Texas Law School, September 19, 1950. Sweatt, (1912-1982) an African-American postal worker from Houston, was denied admission to the University of Texas Law School in 1946. The NAACP’s legal team, led by Thurgood Marshall, took the case to the United States Supreme Court, which struck down the system of “separate but equal” graduate school education and provided a precedent for the landmark decision of Brown vs. Board of Education in 1954. Courtesy: The Dolph Briscoe Center for American History, The University of Texas at Austin.

ELEVEN

The Road to Clarendon County

There is no such thing as “separate but equal.”
Segregation itself imports inequality.—Charles Hamilton Houston

The onset of World War II brought the United States into violent confrontation with a racist ideology that tested America’s commitment to its creed and rallied Americans around those principles valued dearly in theory, if not in practice. Adolf Hitler’s declarations of Aryan supremacy, and the atrocities his regime committed against those of “lesser” genetic value, culminated in the consummate evil of the Holocaust. During its course and in its aftermath, Americans were compelled to look inside themselves. At the very least, this great soul-searching reminded Americans that this country’s commitment to social justice and equality under the rule of law was worth fighting for.

For blacks, the war spawned a new resolve. Hundreds of thousands of black soldiers, sailors, and airmen volunteered or were drafted to serve in America’s segregated armed forces, and they saw duty at home or abroad in North Africa, Europe, or the Pacific. Having sacrificed to defend freedom, they were no longer willing to suffer passively the patent abuse of their rights or the denial of their entitlements when they returned home to the United States. They had fought and died for this country. Their claim to the freedom that it offered was steeped in blood. African Americans were prepared to demand their rights as never before.

The nation’s postwar prosperity whetted the appetite for freedom. The GI Bill bestowed upon returning veterans unprecedented opportunities to obtain federal assistance toward completing their educations, purchasing a first home, securing a job, and obtaining medical care. America’s largess was its gratitude for faithful military service. Naturally, blacks wanted their fair share. As a result, the system of racial separation began to break down. There simply were not enough good houses in segregated neighborhoods for black families with the money to buy them. Similarly, there were not enough black colleges and graduate schools for those qualified and able to pay for a higher education. The African-American population increased greatly, too, which exacerbated the problem.

Equally significant were the changes that occurred in academic circles. Sociology—the study of human behavior, origins, organizations, and institutions—gained prominence in political and economic discussion. This came as a consequence of, and perhaps a reaction to, Hitler’s emphasis on race and the Stalinist preoccupation with economic class, which respectively claimed that race or class predetermined history.

In the early 1940s, Swedish economist Gunnar Myrdal, who was to win the Nobel Prize in Economic Science some thirty years later, published a massive two-volume work that analyzed race relations in America. Its impact, breadth, and scope were unprecedented. Myrdal’s An American Dilemma: The Negro Problem and Modern Democracy not only profiled the country’s race problems from a historical and moral perspective; it critiqued in seemingly infinite detail the social and economic costs of maintaining a society that denied itself the full use of its human creative and scientific resources by denying blacks entry into the economic and social mainstream.

White racism, together with its economic and psychological impact on both whites and blacks, was examined by Myrdal in acute, clinical detail. Writing in a tone that was simultaneously daring and dispassionate, Myrdal challenged the very notion of race as it was applied in America. “The definition of the ‘Negro race’ is... a social and conventional, not a biological, concept,” he declared.

He supported his assertions with those of like-minded thinkers such as Sir Henry H. Johnston, who observed, “The farcical side of the color question in the States is that at least a considerable proportion of the ‘colored people’ are almost white-skinned, and belong in the preponderance of their descent and in their mental associations to the white race.” Had Johnston been writing specifically of Thurgood Marshall—tan-complexioned, straight-haired, and the son of a blue-eyed father—the observation would have been apt. Myrdal concluded, “The fundamental unity and similarity of mankind—above minor individual and group differentials—is becoming scientifically established.”

Marshall and Houston decided to attack the separate-but-equal doctrine by establishing in a court of law, by a preponderance of scientific, biological, and sociological evidence, that there was no rational basis for race-based distinctions. After all, the law, like most fields, was interdisciplinary. The considerations that shaped judicial opinions were economic, social, and moral, as well as legal.

The Fourteenth Amendment, for example, mandates that all citizens be accorded “equal protection of the laws.” Yet the U.S. Supreme Court recognized and accepted circumstances under which individuals or groups could be treated differently. As a general rule, treating some groups differently was permitted whenever there was a “rational basis” for the distinction. Whether there was a rational, or reasonable, basis for a government-imposed distinction became the focus of the Court’s inquiry in any given case.

Child labor laws provided an example. These laws, which prohibited children from working as long and hard as adult men, had been challenged when they were first enacted. But the Court eventually found a rational basis for treating children and men differently, given children’s relative physical and intellectual vulnerability.

At the turn of the twentieth century, an Oregon law that banned women from working as many hours as men was deemed to present a more difficult case. As the lawyer for the state of Oregon, Louis Brandeis used a plethora of sociological data to support Oregon’s contention that there was a reasonable basis for distinguishing between women and men under the circumstances. Brandeis did not ask the Court to agree necessarily with the assumptions of the sociologists that he cited. Instead, he won his case, Muller v. Oregon, by convincing the Court that, rightly or wrongly, there was enough sociological evidence to reasonably conclude that women should not be compelled or permitted to work as hard as men.

If the Court would accept sociology at the turn of the century, perhaps it would respond to it at mid-century, especially after Hitler. There being no rational basis for racial distinctions, the separate-but-equal doctrine would have to fall. Or would it?

In 1948 Marshall argued a case before the U.S. Supreme Court, Sipuel v. Oklahoma State Board of Regents that challenged the exclusion of an African-American woman, Ada Sipuel, from the University of Oklahoma’s law school—not because she was a woman but because of her color. The Court found Sipuel’s exclusion a violation of its ruling in Gaines. In Gaines the Court held that a state offering legal education to whites must offer it to blacks as well. Oklahoma was ordered, therefore, to make a legal education available to Sipuel immediately or close its whites-only law school until such time as it would create a law school for blacks. The Court’s order was per curiam, meaning unsigned and without so much as a discussion of legal issues that the Court regarded settled by Gaines.

Marshall was confident that the Court’s decision would force the desegregation of the university’s law school. Oklahoma’s board of regents proved stubborn, however, and refused to comply with the spirit, if not the letter, of the Court’s order. Instead, they established a separate law school just for Sipuel, in a roped-off section of the state capitol in Oklahoma City, and assigned three instructors to teach her law.

Marshall was furious. Claiming that the regents’ actions denigrated the Court’s intent, he went back before the justices to argue that the separate treatment accorded Sipuel did not amount to an equal educational opportunity. The brief that Marshall prepared cited Myrdal and a number of other sociologists to support what was, in effect, the contention that adherence to the separate-but-equal doctrine resulted in inequality of treatment. But the underlying premises of the assertion had not been put forward and proven at the trial level.

The Court dealt Marshall a seven-to-two setback, ruling simply that Sipuel’s original suit “did not present the issue of whether a state might satisfy the equal protection clause...by establishing a law school for Negroes.” Ada Sipuel was left to languish alone amid her law books.

The American legal system evolved from the English common-law tradition, which placed great emphasis on the weight of precedent—that is, applying law to current situations as it has been applied in the past. The Latin term for the practice is stare decisis, or let the decision stand. What is remarkable about the American system, however—some would say what has enabled it to survive—is a marvelous flexibility that permits judges to break with the past and rewrite the law in a way that reflects the modern world and its values.

The U.S. Supreme Court is in many ways a monastery of the intellect. To an extent, the framers of the Constitution intended it to be that way. Justices are appointed for life; they are not subject to popular recall or election; they are beholden for their jobs to no one and need not be swayed or intimidated by the passing moods, fears, fancies, or prejudices of a fickle electorate. This isolation enables the Court to protect the rights of the minority from the majority’s tyranny with an impunity the system grants to neither Congress nor the president.

For the first century and a half of its existence, however, the men who sat on the Supreme Court viewed the protection of individual property rights as the Court’s primary mission. Consequently, the maintenance of the status quo, meaning the system by and through which a certain minority of individuals acquired wealth, became the Court’s focus. In other words, the Court was a reluctant vehicle for social change because the men who sat on the Court were, for the most part, opposed to almost any change.

Franklin Delano Roosevelt changed all that. With the nation threatened by the worst economic depression in its history, Roosevelt put forward a legislative agenda designed to change fundamentally the relationship between the federal government, on the one hand, and state governments and private individuals and corporations on the other. At first the Court resisted. For example, administrative actions that provided for shorter working hours, a minimum pay scale, and the regulation of unfair trade practices and price-cutting were declared unconstitutional. But, through his appointments to the Supreme Court, Roosevelt began to liberalize the Court’s perspective.

In the process, the appointments of Hugo Black, William O. Douglas, and Felix Frankfurter, among others, shifted the Court’s thinking on the race question. Black, an Alabaman who once belonged to the Ku Klux Klan, would prove, ironically, to be one of the staunchest advocates of civil rights in the Court’s history. Douglas, ultraliberal, brilliant, and idiosyncratic, over the course of thirty-five years would likewise prove to be an impassioned and visionary defender of blacks.

Frankfurter, ever the Harvard law professor, judicious and often exasperatingly pedantic, had been a mentor to Houston and to others who now found themselves on Houston and Marshall’s legal team. He had himself been a member of the NAACP, serving on its national Legal Committee and helping to develop the organization’s litigation strategies. Obviously he was predisposed favorably to civil rights.

Roosevelt appointed others to the Supreme Court who might or might not have been as sympathetic to the cause of black equality as these men. They came and went. What was important was that the Court’s evolution demonstrated that the Court’s, as well as the nation’s, political center was shifting.

This convinced Marshall and his colleagues in the Fund leadership following World War II that the time was propitious to move beyond the Margold strategy and challenge the separate-but-equal doctrine directly. Houston agreed. In 1947 Houston announced the policy shift in his regular Afro-American column, “The Highway”:

The NAACP lawyers in order to get the campaign underway accepted the doctrine that the state could segregate...provided equal accommodations were afforded…Now the NAACP is making a direct, open, all-out fight against segregation There is no such thing as “separate but equal.” Segregation itself imports inequality.

Later he told the Judiciary Committee of the U.S. Senate, “Segregation has to go the way chattel slavery went, and go soon.”

Marshall drew a line in the dirt in Texas. Yet another Negro wanted to go to law school, a Texas mailman named Heman Sweatt. Texas law forbade his admission to the law school at the University of Texas because of his color. Instead, a state judge ordered the state to establish a law school for Sweatt at Texas Southern University, which today is named, ironically, the Thurgood Marshall School of Law. Sweatt sued. This time Marshall built the sociological argument in at the trial level. On a hot, sweaty summer afternoon in Austin, he called Robert Redfield to the stand. Redfield was the chairman of the anthropology department at the University of Chicago and held doctorates in both anthropology and law.

Over the objections of opposing counsel, Redfield dismissed the idea that blacks are somehow inferior to whites intellectually. He went on to state that segregation intensifies distrust between the races and inhibits the learning process for blacks. Marshall told the court:

“We have a right to put in evidence to show that segregation statutes in the state of Texas and in any other state, actually when examined—and they have never been examined in any lawsuit that I know of yet—have no line of reasonableness. There is no understandable factual basis for classification by race, and under a long line of decisions by the Supreme Court, not on the question of Negroes, but on the Fourteenth Amendment, all courts agree that if there is no rational basis for the classification, it is flat in the teeth of the Fourteenth Amendment.”

As expected, the Texas state courts ruled against Thurgood Marshall and his client Heman Sweatt, setting the stage for a U.S. Supreme Court confrontation that would take three years to come about.

Meanwhile, Marshall pursued the same strategy in an Oklahoma case involving the University of Oklahoma’s refusal to admit George W. McLaurin to its doctoral program in education. Sixty-eight years old, McLaurin had earned a master’s degree in education many years before. In 1948 Marshall took the case to a three-judge U.S. district court. A decision by such a court could be taken directly to the U.S. Supreme Court, bypassing the circuit court of appeals and thereby speeding the appellate process. The district court applied the holding in Sipuel and ordered Oklahoma to provide McLaurin with the opportunity to earn a doctorate in education “as soon as it does for applicants of any other group.”

Oklahoma, as in Sipuel, complied in its own dispirited way. McLaurin was indeed admitted to the university’s graduate school of education. But he was made to receive instruction on a purely segregated basis. Sipuel was consigned to a roped-off section of the state capitol. McLaurin was allowed in the same classroom as his white peers, but his seat was in an otherwise empty row separated by a railing. He was permitted to take his meals in the cafeteria but was forced to eat at different hours than the white students.

Marshall was bitterly frustrated. But he seized upon McLaurin’s predicament as an opportunity for a unique challenge to the separate-but-equal doctrine. Clearly McLaurin was being offered “equal” facilities and the same academic instruction as whites. But the intangible burdens imposed on him by university officials represented a “badge of inferiority” that, it could be argued, inhibited his ability to learn, participate, and compete effectively. And there was no rational basis for treating this man differently from any other student. Even McLaurin’s white classmates were affronted by the treatment he was accorded. They ripped the sign proclaiming “Reserved for Coloreds” from the railing that separated the row where McLaurin was assigned to sit.

After losing at the three-judge district court level, Marshall returned to New York, where the Fund lawyers prepared their briefs for the U.S. Supreme Court. In its Sweatt brief, the NAACP for the first time called upon the Court to reverse Plessy outright and outlaw separate-but-equal. Marshall realized, however, that Sweatt presented the justices with a way to sidestep the ultimate question. By ruling simply that the black facilities offered Sweatt were unequal to those provided whites, the Court could give Sweatt a victory merely by finding that Texas violated the “equal” prong of the Plessy doctrine. In this way, the “separate” prong could be left intact.

McLaurin left less room for waffling and maneuver. Undeniably, McLaurin’s treatment was equal in the sense that he was offered the same instructors, and access to the same facilities, as whites. Therefore, the letter of the “equal” requirement was satisfied. The question was whether by its nature the “separate” treatment accorded McLaurin rendered equality unattainable. Marshall was betting that the facts of the case would require the Court to face Plessy squarely.

Then came what was potentially a big break. Harry S. Truman’s Department of Justice filed an amicus curiae brief in support of the NAACP position, calling for the Court to overturn Plessy. For the Fund lawyers, this was a welcome, if not altogether unexpected, development. After all, Truman was the first president in American history elected on a platform that called for civil rights. As a veteran returning home to Independence, Missouri, after World War I, Truman witnessed the Ku Klux Klan in its heyday. The behavior and attitudes of the Klan convinced the future president that it was a threat to democratic institutions.

Not only did Truman become an advocate of civil rights; he practiced what he preached. Although many of his civil rights initiatives, including antilynching legislation that black leaders had sought for generations, were hamstrung by influential southerners in Congress, Truman used the powers of the presidency to advance a civil rights agenda to the extent that it was possible to do so. As commander in chief, he integrated American’s armed forces. He also made the first appointment of an African American to a seat on a U.S. Circuit Court of Appeals, naming William H. Hastie, a former dean of Howard Law School and an intimate friend and associate of Thurgood Marshall’s, to the Third Circuit.

Truman’s appointments to the U.S. Supreme Court, however, were worrisome, at least in the beginning. Two liberal judicial activists appointed by Franklin Roosevelt—Frank Murphy and Wiley Rutledge—were replaced by Truman with Tom C. Clark, a Texan and former attorney general, and Sherman “Shay” Minton, a former Indiana senator. Clark’s civil rights leanings were somewhat suspect. Minton, however, soon proved to be an activist liberal in the New Deal tradition. Also, Fred Vinson, the man Truman appointed chief justice, demonstrated some open-mindedness on the race question. In 1948 Vinson wrote the opinion of the Court in Shelley v. Kraemer, argued by Thurgood Marshall, holding it to be a violation of the equal-protection clause for state court or judicial officers to enforce racially restrictive housing covenants.

The Court heard oral arguments in Sweatt and McLaurin over two days, April 3 and 4, 1950. It decided both cases on the same day two months later, June 5. In the interim, Charles Hamilton Houston had died.

Over a quarter-century later, U.S. Supreme Court Justice Thurgood Marshall paid tribute to his mentor, saying, “We wouldn’t have been anyplace if Charlie hadn’t laid the groundwork for it.” William O. Douglas, who sat on the Supreme Court longer than any other justice, called Houston a “veritable dynamo of energy guided by a mind that had as sharp a cutting edge as any I have known.”

There were few, if any, men Thurgood Marshall knew better or loved more than Charles Houston. But events left him little time to grieve. Houston presaged his own death with what was one of his favorite admonitions to students who would dare enlist in his life-or-death crusade for black equality: “No tea for the feeble; no crape for the dead.” He provided his own eulogy in the form of a handwritten note to his only son, left in a copy of Joshua Liebman’s Piece of Mind by his bedside: “Tell Bo I did not run out on him but went down fighting that he might have better and broader opportunities than I had without prejudice or bias operating against him, and in any fight, some fall.”

From Marshall’s and the Fund’s standpoint, the results of the Court’s rulings in Sweatt and McLaurin were mixed. On the one hand, the holdings in both cases were groundbreaking. In Sweatt the Court for the first time ordered an African American admitted to a previously all-white school because the black counterpart school provided by the state was not equal to it. Based on its facilities and the caliber of its faculty and alumni, the University of Texas law school “may properly be considered one of the nation’s ranking law schools,” the Court stated. Therefore, the justices concluded, consigning Sweatt to a lesser law school such as Prairie View would deny him his constitutional right to “legal education equivalent to that offered by the State to students of other races.”

In McLaurin the Court held that the different treatment accorded McLaurin—segregating him within the University of Oklahoma’s graduate school of education—because of his race “handicapped [him] in his pursuit of effective graduate instruction.” The Court concluded, “Such restrictions impair and inhibit his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession.” In other words, once admission was obtained, there could be no discrimination within the school based on race.

Taken together, the rulings meant that Marshall and the Fund had made the best of what could be made of Plessy: That which was separate had to be truly equal.

On the other hand, the rulings were, at the same time, disheartening. The Court did not consider the ultimate issue of whether Plessy should be overturned. The particular cases could be decided on the basis of standing precedent; there was no need to overrule Plessy in order to do justice for Sweatt and McLaurin.

In conference with the other justices, Clark conceded the possibility that “at a later date our judicial discretion will lead us to hear such a case,” meaning a case in which Plessy would have to be squarely reexamined in order to arrive at a just result. But for the time being, he argued that the “horribles” of segregation were “highly exaggerated,” and he stood by the separate-but-equal doctrine. So did Reed.

Frankfurter, for his part, urged caution. He wrote to Chief Justice Vinson, “It seems to me desirable now not to go a jot beyond the Gaines test. The shorter the opinion, the more there is an appearance of unexcitement and inevitability about it, the better.”

Black felt that unanimity was needed to “add force” to any desegregation ruling. Without unanimity the time was just not right to overrule Plessy. If all nine could agree only to go so far as to arrive at narrow holdings in Sweatt and McLaurin, then so be it for now.

Vinson wrote both opinions, which were unanimous. From the outset of Sweatt, he made plain that the Court’s decisions would be limited to the particular facts of the cases at hand. “Broader issues have been urged for our consideration,” he wrote, “but we adhere to the principle of deciding constitutional questions only in the context of the particular case before the Court.” He went on, “We have frequently reiterated that this Court will decide constitutional questions only when necessary to the disposition of the case at hand, and that such decisions will be drawn as narrowly as possible.”

By not overruling Plessy, the Court left Marshall in the dark as to the persuasive weight the Court would accord the kind of sociological data submitted on behalf of Sweatt and McLaurin to demonstrate that segregation was inherently unjust. As Vinson stated simply in Sweatt, the Court did not feel the “need” to “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.”

Ironically, then, Marshall’s and the Fund’s most noteworthy successes only deepened their dilemma and frustration. Marshall was gloomy. What was he supposed to do? Go around to every graduate school in the country to examine whether equal treatment was in fact being provided to each Negro enrolled there and then spend two or three years bringing to the Supreme Court every instance in which it was not?

Besides, the rulings applied only to the graduate school level. Marshall was aware of studies done by at least one noted psychologist, Dr. Kenneth Clark of Columbia University, that indicated that segregation inflicted psychological and emotional damage on blacks beginning in childhood.

He redoubled his resolve. Several weeks after the Sweatt and McLaurin decisions were handed down, he asked an NAACP conference to adopt a resolution condemning segregation in public education outright. The resolution declared that thenceforth all NAACP litigation would “be aimed at obtaining education on a nonsegregated basis and that no relief other than that will be acceptable.” The NAACP board gave Marshall’s position its approval. Thus strengthened and renewed, he headed for Clarendon County, South Carolina where he would work with Harry Briggs Sr. and his wife Liza Briggs to challenge segregated schools in U. S district court on behalf of their son, Harry Jr. This case, Briggs v. Elliot, became one of the five cases consolidated into Brown v. Board of Education.

Index of Principal Cases Cited

U.S. SUPREME COURT DECISIONS

Bolling v. Sharpe, 347 U.S. 497 (1954)

Brown v. Board of Education, 345 U.S. 972 (1953)

Brown v. Board of Education, 347 U.S. 483 (1954)

Brown v. Board of Education, 349 U.S. 294 (1955)

Chambers v. Florida, 309 U.S. 227 (1940)

Dred Scott v. Sandford, 60 U.S. 393 (1857)

Gong Lum v. Rice, 275 U.S. 78 (1927)

McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950)
Mississippi University for Women v. Hogan, 458 U.S. 718 (1982)
Missouri ex rel. Gaines v. Canada, 337 (1938)

Olmstead v. United States, 111 U.S. 438 (1928)

Plessy v. Ferguson, 163 U.S. 537 (1896)

Shelley v. Kraemer, 334 U.S. 1 (1948)

Sipes v. McGhee, 334 U.S. 1 (1948)

Sipuel v. Board of Regents of the University of Oklahoma, 332 U.S. 631 (1948)

Sweatt v. Painter, 339 U.S. 629 (1950)

Terry v. Adams, 345 U.S. 461 (1953)

United States v. Classic, 313 U.S. 299 (1941)

Yick Wo v. Hopkins, 118 U.S. 356 (1886)

MISCELLANEOUS

Murray v. Maryland, 182 A.2d 590 (1936), 169 Md. 478 (1937)

Select Bibliography

BOOKS

Allen, Ivan, Jr., with Paul Hemphill. Mayor: Notes on the Sixties. New York: Simon and Schuster, 1971.

Ambrose, Stephen E. Eisenhower: Soldier and President. New York: Touchstone, 1990.

Ansbro, John J. Martin Luther King, Jr.: The Making of a Mind. Maryknoll, N.Y.: Orbis Books, 1982.

Ashmore, Harry S. Hearts and Minds: The Anatomy of Racism from Roosevelt to Reagan. New York: McGraw-Hill, 1982.

-----. The Negro and the Schools. Chapel Hill, N.C.: 1954.

Ball, Howard, and Cooper, Phillip J. Of Power and Right: Hugo Black, William O. Douglas, and America’s Constitutional Revolution. New York: Oxford University Press, 1992.

Birmingham, Stephen. Certain People: America’s Black Elite. Boston: Little Brown, 1977.

Bland, Randall. Private Pressure on Public Law: The Legal Career of Justice Thurgood Marshall. Port Washington, NY: Kennikat Press, 1973.

Blasi, Vincent, ed. The Burger Court: The Counter-Revolution That Wasn’t. New.Haven: Yale University Press, 1983.

Blaustein, Albert P., and Ferguson, Clarence C. Desegregation and the Law: The Meaning and Effect of the School Desegregation Cases. Littleton, Colo.: Rothman, 1985.

Califano, Joseph A., Jr. The Triumph and Tragedy of Lyndon Johnson: The White House Years. New York: Simon & Schuster, 1992.

Carmichael, Stokely, and Hamilton, Charles V. Black Power: The Politics of Liberation in America. New York: Vintage.

Carson, Clayborne. In Struggle: SNCC and the Black Awakening of the 1960s. Cambridge, Mass.: Harvard University Press, 1981.

Crouch, Stanley. Notes of a Hanging Judge: Essays and Reviews, 1979-1989. New York: Oxford University Press, 1990.

Davis, John P., ed. The American Negro Reference Book. Englewood Cliffs, N.J.: Prentice Hall, 1966.

Douglas, William O. The Court Years, 1939-1975: The Autobiography of William O. Douglas. New York: Random House, 1980.

-----. Points of Rebellion. New York: Vintage, 1970.

Fitzpatrick, Sandra, and Goodwin, Maria R. The Guide to Black Washington: Places and Events of Historical and Cultural Significance in the Nation’s Capital. New York: Hippocrene, 1990.

Franklin, John Hope. From Slavery to Freedom, a History of American Negroes, 4th ed. New York: Knopf, 1974.

Friedman, Leon, ed. The Justices of the United States Supreme Court: Their Lives and Major Opinions. New York: Chelsea House, 1978.

Friedman, Leon, ed. Argument: The Oral Argument Before the Supreme Court in Brown v. Board of Education of Topeka, 1952-1955. New York: Chelsea House, 1983.

Goodwin, Doris Kearns. Lyndon Johnson and the American Dream. New York: St. Martin’s, 1976.

Harbaugh, William H. Lawyer’s Lawyer: The Life of John W. Davis. New York: Oxford, 1973.

Isaacson, Walter, and Thomas, Evan. The Wise Men: Six Friends and the World They Made. New York: Simon & Schuster, 1986.

Kirby, John B. Black Americans in the Roosevelt Era. Knoxville, Tenn.: University of Tennessee Press, 1980.

Kluger, Richard. Simple Justice. New York: Vintage, 1977.

McCarthy, Abigail. Private Faces/Public Places. San Leandro, Calif.: Curtis, 1972.

McNeil, Genna Rae. Groundwork: Charles Hamilton Houston and the Struggles for Civil Rights. Philadelphia: University of Pennsylvania Press, 1983.

Myrdal, Gunnar. An American Dilemma: The Negro Problem and Modern American Democracy. New York: Pantheon, 1944.

Rampersad, Arnold. The Life of Langston Hughes, Volume 1: 1902—1941 I. Too Sing America. New York: Oxford University Press, 1986.

Rosenblatt, Roger. Life Itself: Abortion in the American Mind. New York: Random House, 1992.

Savage, David G. Turning Right: The Making of the Rehnquist Supreme Court. New York: Wiley, 1992.

Schlesinger, Arthur M., Jr. A Thousand Days: John F. Kennedy in the White House. New York: Fawcett, 1965.

-----.Robert Kennedy and His Times. New York: Ballantine, 1978.

Schwartz, Bernard, with Lesher, Steven. Inside the Warren Court. New York: Doubleday, 1983.

Schwartz, Herman, ed. The Burger Years: Rights and Wrongs in the Supreme Court, 1969-1986. New York: Penquin, 1987.

Sherrill, Herman. Gothic Politics of the Deep South: Stars of the New Confederacy. New York: Grossman, 1968

Thomas, William R. The Burger Court and Civil Liberties. Brunswick, Ohio: King’s Court, 1976.

Williams, Juan. Eyes on the Prize: America’s Civil Rights Years, 1954-1965. New York: Penguin, 1987.

Woodward, Bob, and Armstrong, Scott. The Brethren. New York: Avon, 1981.

COLLECTIONS

Archives of the Afro-American Newspapers, Coppin State University

Archives of the Atlanta University Center’s Woodruff Library

Archives of the United States Supreme Court

Ralph J. Bunche, unpublished letters and memorandums.

John P. Davis, unpublished papers and memorandums.

Moorland-Spingarn Research Center, Howard University, Washington, D.C.

Schomberg Center for Black Culture, New York Public Library.

Lincoln University (Pa.) Library

The New York Historical Society

Library of Congress, Manuscript Division

The White Law Library, Catholic University of America.

Lincoln University (Pa.) Library

The National Archives

New York Historical Society

The Vivian Harsh Collection at the Carter G. Woodson Regional Center of the Chicago Public Library

The National Association for the Advancement of Colored People, Baltimore,Maryland.

The Southern Christian Leadership Conference, Atlanta, Georgia.

Index

“Black”

as descriptive term

24th Infantry Regiment

abortion

Afro-American

Afro-American newspapers

Afro-Americans

as descriptive term

as lawyers

color-conscious

demographics

Allred, James

Alpha Phi Alpha

American Bar Association (ABA)

American Bar Association Journal

American Civil Liberties Union

American Constitution: Its Origins and Development The (Kelly)

American Dilemma

The Negro Problem and Modern Democracy An (Mydral)

American Fund for Public Service

Annals of the American Academy of Political and Social Science

Armed forces race relations in

Association of American Law Schools

Atkinson, George W.

Azikiwe, Benjamin Nnamdi

Baldwin, Roger

Baltimore & Ohio Railroad

Beale, Howard K.

Belcher, Fannin

Biden, Joseph D.

Bingham, John A.

Bishop, Gardner

Black, Charles

Black, Hugo

Bowen, Amanda

Bowie State College

Boycott of Baltimore stores

Brandeis, Louis Dembritz

Branson, Herman

Brennan, William J. Jr.

Brookland network

Brown v. Board of Education of Topeka,

arguing of –

decision in

preparation for –

Brown, Henry Billings

Brown, Ronald H.

Brown, Sterling

Bunche, Ralph

Burch, Charles

Burger, Warren E.

Bush, President George H. W.

Cain, Christopher

Calloway, Cab

Campanella, Roy

Capital punishment –

Carey, Dr. Freeman H.

Carnegie Foundation

Carr,Robert K.

Carroll, Charles

Carter, Robert L

Chambers v. Florida

Cherry Street Memorial Church

Child labor law

Chisholm, Elwood

Christian Action Council

Civil Rights Act of 1964

Clark, Kenneth

Clark, Tom C.

Cobb, Montague

Coleman, William

Communists

Court of Appeals U.S.

Crisis

Cullen, Countee

Cummings v. Richmond County Board of Education

Darrow, Clarence

Davis, John P.

Dawson, William

DeMond, Albert

District of Columbia Bar Association

Dodson, Media

Douglas, William O.

Douglass, Frederick

Dred Scott decision

Drew, Charles R.

Du Bois, W. E. B.

Ebony

Eisenhower, President Dwight D.

Ellington, Duke

Fahey, Charles H.

Fair Employment Practices Commission

Farrison, W. Edward

Fifteenth Amendment

Fifth Amendment

Fisher, Rudolph

Fontaine, William V.

Frank, John

Frankfurter, Felix

Franklin, John Hope

Frazier, E. Franklin

Fund the

Gaines, Lloyd Lionel

Garland, Charles

Garvey, Marcus

Gellhorn, Walter

General Assembly Maryland

Gilbert, Leon A.

Gillett, Emma M.

Graham, Howard Jay

Granger,Lester

Great Depression

Great Society

Greenberg, Jack

Grimke, Francis

Grovey v. Townsend

Harding administration

Harlem Renaissance

Hart v. State (of Maryland)

Harvard Law Review

Hastie, William Henry

Hatch, Orrin G.

Hickey, Doyle O.

Hill, Oliver

Hocutt, Thomas

House,Toni

Houston, Charles Hamilton

Houston, Mary

Howell Roger

Hughes, Charles Evans

Ickes, Harold L.

International Labor Defense (ILD)

Jackson, Lillie

Jackson, Robert Houghwout

Jaybird Democratic Association

Jefferson, Bernard

Jenkins, Martin

Jews

Jim Crow laws

Johnson, Charles S.

Johnson, James Weldon

Johnson, Mordecai W.

Just, E. E.

Justice Department

Kelly, Alfred H.

Kennedy, Edward M.

Konvitz, Milton

Korean War

League of Struggle for Negro Rights

Lillie, Jackson

Liuzza, James E.

Locke, Alain

Lockwood, Edelman M.

Logan, Rayford

Lyons v. Oklahoma

MacArthur, Douglas

Mahoney, Colleen

Margold, Nathan Ross

Marshall, Aubrey

Marshall, Elizabeth

Marshall, Norma Arica

Marshall, Thoroughgood

Marshall, Thurgood

and Brown v. Board of Education –

and courts-martial in Korean War

and denial of admission to University of Maryland Law School

and forebears

and NAACP in Baltimore

and university desegregation

as an undergraduate

as chief counsel of NAACP

boycott of stores in Baltimore

childhood of

civil rights philosophy

family background of

in law school

Marshall, Thurgood William

Marshall Vivian

Marshall William Canfield

Maryland Court of Appeals

McKay, Claude

McLaurin, George W.

McReynolds, James Clark

Mehlinger, Louis R.

Mencken, H. L.

Ming, William Robert

Mississippi

Missouri ex rel. Gaines v. Canada

Mitchell, Clarence

Mitchell, Juanita Jackson

Moon, Henry

Morehouse College

Moss, Elizabeth Murphy

Motley, Constance Baker

Muller v. Oregon

Murphy, Anna

Murphy, Carl

Murphy, Frank

Murray v. the University of Maryland

Murray, Donald G.

Myrdal, Gunnar

National Association for the Advancement of Colored People (NAACP)

and Baltimore

and Brown v. Board of Education

and Houston’s death

and military in Korea

and University of Maryland case

and W.E.B. Du Bois

strategy shift of

New Deal

New Negro Alliance

New York Times

New Yorker

Newsweek

Nixon, Richard M.

Nkrumah, Kwame

O’Connor, Sandra Day

O’Dunne Eugene

Opportunity

Payne, Odell

Pearson, Raymond A.

Pinsky, David

Pittsburgh Courier

Plessy v. Ferguson

Poston, Ersa

Poston, Ted

Pound, Roscoe

Princess Anne Academy

Race and racism

as selecting criterion

psychological impact of

Radical Republicans

Randolph, A. Philip

Ranson, Leon

Ray, Charlotte

Redfield, Robert

Reed, Stanley

Rehnquist, William H.

Rice, Thomas

Robinson, Jackie

Robinson, Spottswood W.

Rockefeller, Winthrop

Roe v. Wade

Rogers, Elmer

Roosevelt Franklin D. and Roosevelt administration

Rowan, Carl

Rutledge, Wiley

Scott, Douglas R.

Segregation and racial discrimination

and Baltimore County Schools

and colleges

and confessions

and Red Summer

psychological impact of

Separate-but-equal doctrine

and University of Missouri

assault on

Shelly v. Kraemer

Shores, Arthur

Sipuel v. Oklahoma State Board of Regents

Smith v. Allwright

Spingarn, Arthur

Stevens, Evon

Stevens, Thaddeus

Stewart, Potter

Stone, Harlan

Story, Moorfield

Sunstein, Cass

Sweatt v. Painter

Taft, William Howard

Taney, Roger B.

Terry v. Adams

Thomas, Clarence

Time

To Secure These Rights

Toomer, Jean

Tribe, Lawrence H.

U.S. News & World Report

United Nations

United States Reports

United States v. Classic

University of Alabama

University of Maryland Law School

University of Missouri

University of North Carolina

University of Oklahoma

University of Texas

Van Vechten, Carl

Viguerie, Richard A.

Vinson, Fred

Walters, Bishop Alexander

Warren, Earl

Washington Bar Association

Wechsler, Herbert

Wells, Ida B.

Wesley, Carter

White, Byron R.

White, Walter

Williams, Cyrus

Williams, Isaiah Olive Branch

Williams, Mary Eliza

Wilson administration

Wilson, J. Franklin

Woodward, C. Vann

Wright, Richard

Acknowledgements

As author of the ebook version of this book, I have enjoyed working with Ebooks for Students, a non-profit publisher with a stated mission to provide free copies of ebooks to students. The goal of this publisher is to make it easier for teachers to assemble collections of ebooks at reading levels appropriate for their students, rather than relying on a single, one-size-fits-all history textbook in each class. 

I would like to thank a few people who made the production of this ebook possible:

Jonathan P. Silberman, for patiently answering so many questions about InDesign, the software package used in the formatting of this ebook;

Erin E. Nixon, for her many revisions of the cover;

Natalie J. Pappas, for final proof-reading and review prior to publishing; and

Jim McCabe, for suggesting this project, and for his work in seeing it through to completion.

About the Authors

Hunter R. Clark  (b. 1955) is a tenured professor of law at Drake University in Des Moines, Iowa, where he teaches Constitutional Law, a seminar on the U.S. Supreme Court, and directs the International and Comparative Law and Human Rights program. A graduate of Harvard College and Harvard Law School, Clark met Justice Thurgood Marshall in high school while serving as chief page for the U.S. Supreme Court. Marshall wrote Clark’s recommendation for admission to Harvard Law School. From 1981 to 1986, Clark wrote weekly articles for  Time magazine on subjects ranging from law and politics to science, diplomacy, religion, and the arts. He is the author of Justice: The Great Conciliator (1995), a biography of the late U.S. Supreme Court justice.

Michael D. Davis (1939-2003) was a pioneering African American journalist and civil rights activist, and a leader of the Atlanta sit-ins in the 1960s. His father, John P. Davis (1905-1973), founded the National Negro Congress in 1935, and worked with Thurgood Marshall during the early years of the civil rights movement. A graduate of Morehouse College, Mike Davis became the first black reporter on the Atlanta Constitution in 1964. He served as a war correspondent in Vietnam, winning an NAACP award for his coverage of black troops in Southeast Asia. Later he worked as a reporter for the Baltimore Sun Papers, and as a metropolitan editor for WRC-TV NBC in Washington, D.C. He was the author of Black American Women in Olympic Track and Field (1992). He died in 2003.