NAACP_School_Desegregation_Campaign.pdf

Copyright (c) 2001 Walter F. George School of , Mercer University

Mercer Review

Winter, 2001

52 Mercer L. Rev. 631

LENGTH: 23284 words

LEAD ARTICLE: Setting the Stage for Brown: The Development and Implementation of

the NAACP’s School Desegregation Campaign, 1930-1950

NAME: by Leland B. Ware*

BIO:

* Louis L Redding Professor of & Public Policy, University of Delaware. Fisk

University (B.A., 1970); Boston College School (J.D., 1973).

SUMMARY:
… The fight was led by the National Association for the Advancement of Colored

Persons (“NAACP”), which was founded in 1909 by a group of black activists and white

progressives. … Finally, even if a black student received a scholarship, it would not have

covered the costs of attending law school in another state because the scholarship only

covered tuition differentials. … In their first major case after launching the litigation

campaign, the NAACP’s lawyers won a judgment that broke through the racial barriers

erected by Plessy. … These associations formed a vast network in which the NAACP,

Howard School, and the NBA provided the critical links. … When Redmond

recommended that the NAACP file a case on behalf of a black student in Missouri,

Houston agreed. … He was serving not only as director of the NAACP’s litigation

campaign but also as general counsel, fund-raiser, public speaker, and legal advisor to

Walter White. … After World War II, the NAACP directed its energies toward

revitalizing the graduate school litigation program. … What I am more concerned about is

the fact that the Negro shall not be content with simply demanding a share in the existing

system. … As Houston predicted in the 1930s, the NAACP’s litigation campaign

encouraged local communities to demand and to fight for their rights. …

TEXT:
[*631]

I. Introduction

The protest against segregation began early in the twentieth century, not long after the

Supreme Court’s 1896 decision in Plessy v. Ferguson. 1 The fight was led by the National

Association for the Advancement of Colored Persons (“NAACP”), which was founded in

1909 by a group of black activists and white progressives. After years of lobbying,

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[*632] organizing local chapters, and engaging in other activities, the NAACP shifted

its direction. In the early 1930s, the organization embarked on a long-range, carefully

coordinated litigation campaign that challenged the laws that enforced segregation.

During the years that followed, a legal revolution was set into motion that altered the

foundations of American jurisprudence. The NAACP’s litigation campaign is not as well

remembered as the grassroots demonstrations of the 1960s, but the culminating event of

that phase of the Civil Rights movement, Brown v. Board of Education of Topeka, 2 is

celebrated as the most significant Supreme Court decision of modern legal history. The

decision in Brown was the first of a series of decisions that struck down Jim Crow laws

and paved the way for the federal Civil Rights legislation of the 1960s.

Much of the existing literature leaves the impression that the transition from Plessy to

Brown emanated from an enlightened judiciary. Contrary to these suggestions, the judges

who occupied federal courts in the 1930s and 1940s were conservatives who would have

preferred to avoid confrontations with the complex social, political, and legal issues that

segregation raised. In reality, the NAACP’s litigation strategy compelled a reluctant

judiciary to address the many contradictions that segregation posed. The actual visionary

in this process was Charles Houston, an African-American Civil Rights lawyer, who was

the architect of the NAACP’s legal strategy. Houston foresaw a means of eliminating

formal segregation at a time when most Americans accepted it as a permanent way of

life. It was Houston’s insight, together with his ability to orchestrate a coordinated

campaign over a several-year period, that resulted in the elimination of segregation laws.

The significance of the decision in Brown is well-documented, but it cannot be fully

appreciated without an examination of the cases that led to it. This Article explores the

evolution of the legal strategy that was used in the graduate and professional school cases

that set the stage for Brown. Part II examines Charles Houston’s tenure at Howard

School. During those years Houston transformed that institution from a marginal night

school to a fully accredited, first-rate institution. Under Houston’s leadership, students at

Howard were trained to structure the test cases that challenged the laws that provided the

basis for segregation. Part III examines the significance of the Margold Report, a study

that was commissioned by the NAACP’s Board of Directors in the early 1930s. The

report contained a detailed examination of the “separate but equal doctrine” of Plessy v.

Ferguson and suggested ways in which the policy might be challenged in the courts.

[*633] After Houston was selected to head the NAACP’s litigation campaign in 1935,

he modified the Margold Report’s recommendations and developed what became the

“equalization strategy.” This approach involved filing cases in Southern states,

demanding that the educational resources made available for African-American students

be upgraded to make them equal to those provided for whites. Carefully remaining within

the confines of Plessy, the “equalization” cases were premised on the theory that the

states that practiced segregation could not afford the expense of maintaining separate

educational systems that were actually equal. As Part IV of this Article explains, these

early cases focused on graduate and professional schools, the area in which the Southern

states were most vulnerable. In a series of cases in Maryland, Missouri, Texas, and

Oklahoma, the NAACP’s lawyers were able to chip away the foundation of segregation.

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By the early 1950s the Plessy rationale had been completely undermined. This Article

demonstrates that, without these efforts, the decision in Brown would not have been

possible.

II. Charles Hamilton Houston: The Architect of The Legal Strategy

A. Background

Beginning in the early 1930s, Howard University School served as the West Point

for a generation of Civil Rights lawyers. During this period, the institution was

transformed from an unaccredited evening program to a laboratory for Civil Rights

litigation. Howard’s evolution occurred largely through the efforts of Charles Houston,

who also developed the legal strategy that was used to eliminate segregation.

Houston was born in Washington, D.C. on September 3, 1895. His father, William

Houston, was a lawyer who obtained his degree while working for the federal

government and attending Howard University at night. 3

Charles Houston attended the Garrison Elementary School and M Street High School in

Washington, D.C. Houston’s academic record at M Street provided the foundation for

admission to Amherst College in Massachusetts, where he enrolled in 1911. At Amherst

Houston excelled in his studies, and he was elected to Phi Beta Kappa during his senior

year. After graduating in 1915, Houston returned to Washington, D.C., but he did not

have any specific plans for a career. 4

[*634] After America’s entry into World War I, Houston decided to enter the military.

He obtained a position in the black officers’ training corps at Des Moines, Iowa. 5 In

October 1917, Houston was among the 440 African-Americans who received

commissions as officers in the United States Army. During World War I, black soldiers

were the victims of racism. In a 1940 article, Houston recalled a particularly dangerous

encounter that occurred when he and a companion stumbled on a confrontation between a

black serviceman and a group of white soldiers. One of the white soldiers became angry

after he learned that some female companions had abandoned him for a black soldier.

Houston and his friend found themselves surrounded by an angry mob. The tense episode

ended after a military police officer intervened. Houston never forgot the incident. Years

later he recalled: “”I made up my mind that I would never get caught again without

knowing something about my rights; that if luck was with me, and I got through this war,

I would study law and use my time fighting for men who could not strike back.'” 6 After

his tour of duty, Houston returned to Washington. 7

On September 18, 1919, Houston enrolled in Harvard School. During his first year,

Houston was selected to serve on the staff of the Harvard Review, an honor

accorded to students who receive the highest grades. 8 Houston’s academic record during

his second year and his performance on the law review resulted in his election to the law

review’s Editorial Board. He was the first African-American to serve in this capacity. 9 In

1922 he graduated cum laude, finishing in the top five percent of his class. In the

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following fall, Houston became a candidate for the advanced degree of Doctor of

Juridical Science (“S.J.D.”). He was awarded the degree in 1923. After receiving the

S.J.D. degree, he received a Sheldon Traveling Fellowship, which he used to study law at

the University of Madrid during 1923 and 1924. 10

B. Howard University: A Laboratory for Civil Rights Litigation

In 1924 Houston returned to Washington, D.C. and was admitted to practice before the

District of Columbia Bar. He joined his father’s law firm, which was renamed Houston &

Houston. A few months later [*635] Houston joined the faculty at Howard School.

During his time as a junior faculty member, Houston taught various subjects and was

highly regarded by his students and colleagues. In 1927 Houston prepared “A Survey of

the Status and Activities of Negro yers in the United States.” 11 To conduct the

research, he traveled to several cities and eventually completed three studies: “Negro

Schools,” “The Negro yer,” and “The Negro and His Contact With the

Administration of the .” 12 During the same period, he developed a separate study for

the law school: “Survey of Howard University Students.” 13 In May 1929, Houston

prepared another study titled “Personal Observations on the Summary of Studies in Legal

Education as applied to Howard University School of .” 14 In this twenty-page

document, Houston discussed the status of legal education at Howard, the objectives of

the school, the curriculum, the instruction methods, and proposed research goals.

Houston also outlined his vision of Howard’s role in legal education. Houston believed

that institutional racism could be effectively challenged through innovative litigation. 15

To accomplish this vision, a group of well-trained lawyers would be needed to handle the

lawsuits that would make the Constitution’s promise of Equal Protection a reality.

Shortly before Houston joined the law faculty, the university’s administration became

concerned about the law school’s academic standing. In 1920 the Board of Trustees voted

“that steps be taken to so advance the School of that it may become eligible for

membership in the American Association of Schools.” 16 A bout with tuberculosis

forced Houston to take a leave of absence during the 1928-29 academic year. When

Houston returned, the dean was appointed Chief Judge of the United States Court of

Claims. Not long afterward, “the Board appointed Charles Hamilton Houston Resident

Vice-Dean in charge of the three-year Day School along with general supervision of the

School Library, beginning July 1, 1929.” 17 Although Booth retained the title of

Acting Dean until 1930, Houston immediately assumed responsibility for the day-to-day

operations of the school. After his appointment he began almost immediately to upgrade

the quality of [*636] instruction. 18 Admission standards were raised; personnel changes

were undertaken; and significant improvements were made to the law library. By October

1930, the law school employed four full-time professors and one full-time librarian. It

had a library of 10,000 volumes and an adequate facility on Fifth Street.

The accrediting authorities reacted favorably to these accomplishments. Following a

1930 inspection, the law school was accredited by the American Bar Association, and on

December 28, 1931, it was elected to the American Association of Schools “without

qualification.” 19 Several years later, William H. Hastie, a federal judge who served as

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Dean of the law school in the 1940s, stated that from 1929-1935 Houston “carried the

institution from the status of an unaccredited and little known – though undoubtedly

useful – institution to a fully accredited nationally known and respected law school taking

its place with the ranking schools of the nation.” 20

Houston’s goal involved more than upgrading Howard’s academic standing. He intended

to train a generation of African-American lawyers who would lead the fight against

discrimination. 21 Years later Judge Robert Carter explained:

The overriding theory of legal education at Howard during those years was that the

United States Constitution – in particular, the Civil War Amendments – was a powerful

force heretofore virtually untapped, that should be used for social engineering in race

relations … . A principal objective of the faculty at Howard was to produce lawyers

capable of structuring and litigating test cases that would provide effective

implementation of these guarantees on behalf of the black community. 22

The legal campaign was developed and implemented almost entirely by African-

American lawyers. This was no accident. In a 1935 article, 23 Houston explained that

African-Americans could not rely on white lawyers to protect their rights. White lawyers,

he explained, were the beneficiaries of the discriminatory practices that Houston intended

[*637] to eliminate. 24 Houston also stated his views about the role of black lawyers and

described the legal training that these lawyers would need. Houston wrote: “The social

justification for the Negro lawyer as such in the United States today is the service he can

render the race as an interpreter and proponent of its rights and aspirations.” 25 After

describing the dearth of African-American lawyers who were active in the 1930s,

Houston illuminated his statistics with the following observation:

The census reports [four] Negro lawyers to the 944,834 Negroes in Alabama; [one]

Negro lawyer to every 236,208 Alabama Negroes. The State of Alabama has an area of

51,998 square miles. If the [four] Negro lawyers were given cars and told to patrol the

state like policemen, each lawyer would have a beat of 12,999 square miles. 26

Houston also described the hostile environments that existed in the Southern states and

explained the financial sacrifices that black lawyers could expect. Despite these obstacles

he went on to urge that “it is where the pressure is greatest and racial antagonisms most

acute that the services of the Negro lawyer as a social engineer are needed.” 27 Finally, he

explained:

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If a Negro law school is to make its full contribution to the social system it must train its

students and send them into just such situations. This does not necessarily mean a

different course of instruction from that in other standard law schools. But it does mean a

difference in emphasis … . 28

In their published recollections, Houston’s students remembered him as an exacting

taskmaster who did not tolerate mediocre performance. 29 During the early weeks of each

school term he admonished first-year students with the now familiar warning: “Look to

your left and look to your right … next year one of you won’t be here.” 30 As William

Hastie explained, “In serious pursuits he was tough, combative and unsentimental,

demanding excellence of himself and of his students and professional [*638] colleagues,

though in social relations he was warm, always approachable and held in great affection.”
31 Houston’s dedication to unremitting hard work was made clear in his favorite

expression, “no tea for the feeble no crepe for the dead.” 32 Thurgood Marshall recalled

that “Houston’s drive earned for him the “affectionate’ nickname “Iron Shoes.'” 33

Houston’s demands on his students were based on more than a desire to train competent

professionals. He was preparing a generation of lawyers to engage in a legal revolution.

This was the “difference in emphasis” to which Houston referred. 34

III. The Margold Report

Not long after it was organized, the NAACP established a steering committee that

supported legal actions on behalf of African-Americans who were victimized by

discrimination. Over the years, several cases were brought on behalf of various plaintiffs,

but litigation was not the focus of the organization’s efforts. An event that would alter the

NAACP’s direction occurred in 1922 when Charles Garland, the son of a Boston

millionaire, donated $ 800,000 to establish a fund to support radical causes. The Garland

Fund was administered by a group of liberal activists that included James Weldon

Johnson, the Executive Secretary of the NAACP; Roger Baldwin, the founder of the

American Civil Liberties Union; Morris Ernst; Lewis Gannett; and Norman Thomas. As

Johnson explained in his autobiography,

the American Fund for Public Service was organized and chartered, mainly through the

efforts of Roger N. Baldwin, who was a friend of Mr. Garland, for the express purpose of

taking over and administering this money … . [Garland] turned his inheritance over

merely with the request that it be given away as quickly as possible, and to “unpopular”

causes, without regard to race, creed or color. 35

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In 1929, Johnson, Gannett, and Ernst established a Committee on Negro Work to focus

on the problems of black Americans. The committee [*639] drafted a proposal

recommending that the Fund award a grant to the NAACP to carry out large-scale legal

campaigns to enforce the Constitutional rights of African-Americans in the South.

After the Fund approved the grant, a special committee was established to administer the

appropriation. The grant was announced with an explanation that it was intended to assist

in areas such as unequal apportionment of school funds, barring negroes from juries,

residential segregation, disenfranchisement, and civil liberties defense. 36 The NAACP

stated that it would find a “very able lawyer” to review the relevant legal authorities,

develop an overall strategy, and supervise the cases that would be filed. 37 After the grant

was approved, Walter White, who became the NAACP’s Executive Secretary after

Johnson’s retirement, began to search for a candidate to fill the position. After reviewing

several candidates, White narrowed the search to William Hastie, a recent graduate of

Harvard School, and Nathan Margold, another Harvard graduate who had served on

the Harvard Review with Charles Houston. Because of Hastie’s relative youth and

inexperience, White settled on Margold, who was hired on October 4, 1930.

Nathan Margold prepared a comprehensive report that analyzed the Constitutional

foundations of Plessy’s separate-but-equal doctrine and recommended a strategy to attack

segregation. Margold’s report was submitted in three separate installments. The Margold

Report, 38 which consisted of 218 typed pages, would have a profound effect on the

NAACP’s activities for the next several years. It contained a comprehensive analysis of

laws and applicable legal precedents beginning with Plessy. After analyzing the turn-of-

the-century decisions, the report worked its way through the laws governing segregation

up to 1931. Despite the weight of legal authority supporting segregation, Margold

suggested a means by which the legal obstacles might be overcome.

His analysis included a number of significant conclusions that would eventually become

critical to the NAACP’s legal strategy. As the NAACP had determined in earlier surveys,

Margold confirmed that the separate-but-equal doctrine as practiced was always separate

but never equal. In public schools, there were obvious inequities in the resources

allocated to white schools as compared to those provided to schools that served black

students. Yet, there were cases that found that absolute equality in funding was not

required as long as some provision was [*640] made for both races. 39 There was also a

long-standing judicial policy of deferring to local authorities in matters involving the

administration of educational systems. Margold also found that numerous defenses were

available to the local school boards.

The NAACP’s original proposal suggested the simultaneous filing of several suits in

various districts across the South. Rejecting this approach, Margold believed “it would be

a great mistake to fritter away our limited funds on sporadic attempts to force the making

of equal divisions of school funds in the few instances where such attempts might be

expected to succeed.” 40 Margold’s main conclusion was that segregation as practiced was

unconstitutional even if the Plessy rationale were accepted. The system was, in reality,

“segregation coupled with discrimination.” 41 Margold recommended that a series of

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lawsuits seeking declaratory judgments would be preferable to actions seeking to require

the school authorities to pursue a specific course of action. Margold argued that “if we

boldly challenge the constitutional validity of segregation if and when accompanied

irremediably by discrimination, we can strike directly at the most prolific sources of

discrimination.” 42 Finally, in what was the key conclusion of his report, Margold argued

that “segregation coupled with discrimination resulting from administrative action … is

just as much a denial of equal protection of the laws as is segregation coupled with

discrimination required by express statutory enactment.” 43

…