The Man Who Killed Jim Crow (Missouri ex rel. Gaines v. Canada) | The Equal Protection Clause, Pt. 1

With the segregation era in full swing all across the Southern United States, it would take the life and work of one man to engineer social change for a nation.

Charles Hamilton Houston and his apprentice, Thurgood Marshall, formulate a plan to reverse Plessy v. Ferguson and end segregation in the U.S. once and for all.

Transcript

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Hello, I'm Alex Ackerbon, and you're listening to season two of me.

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I went over to Howard in 1930 and began law school, and for the first time in my life I studied. Dean Charles H. Houston, H.O. S D-O-N, was very brilliant, very decent person, but a very hard man. He himself was a perfectionist, and he insisted that we each be. And uh if we did a slip shod job, boy, he would lay it on you.

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As of May 18, 1896, segregation was declared constitutional and consistent with the Equal Protection Clause of the Fourteenth Amendment. Seven justices of the Supreme Court had concluded that the Radical Republicans' greatest accomplishment after the Civil War had only guaranteed equal protection of the laws. It said nothing about separating the races. And so the doctrine of separate but equal officially became the law of the land. Black and white people would have equal access to things like education and transportation, but they would access these things separately. As soon as that decision came down, Jim Crow laws were free to invade the southern United States. Americans would ride segregated buses, eat at segregated restaurants, drink at segregated water fountains, and attend segregated schools. Had the court sided with Justice John Marshall Harlan, this system would have been unconstitutional, and Southern societies would have had to integrate from the beginning. But it was not to be. A new generation of white children and black children born at the end of the 19th century would grow up apart. Their school lives, social lives, and personal lives would happen in completely different worlds. And it would quickly become apparent that Southern states were not very interested in equality either, as black Americans were excluded from politics, voting, and given very limited public funding, proving what Justice John Marshall Harlan had predicted that separate was unequal. But his fate would have it. One of these children, born just a few months before Plessy vs. Ferguson was decided, would dedicate his life towards undoing the court's infamous landmark case. He would grow up to be an academic, a soldier, a lawyer, a mentor, and a social engineer. His name was Charles Hamilton Houston, and he would be responsible for a legal strategy that would take his entire life to execute. The battle would take decades, but ultimately it would prove to be worth it. Because Charles Hamilton Houston did more than simply argue against Jim Crow laws. Charles Hamilton Houston would become the man who killed Jim Crow.

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So it was Charles Houston who became the strategist and the architect for a campaign that would gradually dismantle the precedent of Plessy vs. Ferguson, the 1896 separate but equal doctrine.

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Houston was convinced that the battle for civil rights had to be won in the schools, but would have to be fought in the equals.

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Charles Houston was born in Washington, D.C. in the fall of 1895. His grandfather had been a slave, while his father had become an attorney in the nation's capital. His mother, meanwhile, was a local seamstress. Charles grew up attending local segregated schools. And seeing the value of a good education, he pursued a college degree and enrolled at Amherst College in 1911. He was the only black student in his class, and four years later would graduate as valedictorian. Upon graduating, he came home to DC and started teaching at Howard University. But his career plans were put on hold with the outbreak of World War I, which would put him on a path towards destiny. Charles was called up to serve the nation, and by then President Woodrow Wilson had issued an order segregating the United States military. Twenty years after the Supreme Court had given the green light to segregation, the President of the United States would make it a national policy. As a result, Houston would only serve with members of his own race. Even as first lieutenant, Houston encountered a lot of racial hostility from his fellow countrymen. White and black soldiers may indeed have been united in fighting the Germans, but they were bitterly divided within their own ranks. On one occasion, Houston and a fellow African American soldier were accosted by white members on their own side after they were seen speaking with white Frenchwomen. The threat of death was not limited to the battlefield, but to the barracks as well. The war was a very eye-opening experience for Houston, and here's a reading of his own thoughts on the matter. At that moment, Houston, who was only a baby when the court declared segregation constitutional, became a man of law. Once World War I ended, Charles Houston enrolled at Harvard Law School, where he continued to break ground, becoming the first black student ever elected to the editorial board of the Harvard Law Review. He would end up graduating with honors and begin his legacy as a counselor of law. Houston had spent his entire life in a segregated country. After going to separate schools, serving in a separate military, and constantly being kept away from the white race, Houston knew that segregation had to end. But perhaps the only thing larger than his brilliance was his pragmatism. He knew that segregation would not go away overnight. By the time he graduated law school, new generations of white children would grow up separated from black children and send their kids to segregated schools, each time reinforcing the cycle of bigotry. It's hard enough to get the Supreme Court to overturn a landmark case, even when it's not politically charged. But by the 1920s, Americans in the South were convinced that races should be kept separate. To make matters worse, one of the first motion pictures ever made would take the country by storm. D.W. Griffith's infamous film called Birth of a Nation would glorify the Ku Klux Klan, which had been extinct for almost 50 years. But after everyone watched the film, and President Wilson praised it for its accuracy, the KKK would be re-established in 1915 in Stone Mountain, Georgia. Within a decade, the organization controlled political life all over the South. So Houston was in a really tough spot. He was an African-American attorney in the 1920s who taken on the personal goal of reversing the case that allowed for the separation of races. All the Supreme Court justices were white. All the politicians were white. In fact, he was one of the very few black lawyers in the country. So where could he possibly start? Well, Houston started with the law books. After Mordecai Johnson became Howard University's president, he asked Houston to return to the school where he once taught. This time as dean of the law school. Houston took the opportunity, knowing full well that he could not undertake this immense task alone. To end segregation, he would need an army. An army of lawyers. Trained black attorneys who would understand the law as well or better than their white counterparts. Because once you learn what the law is and why, you're in a much better position to make social change. But ever the pragmatist, Houston had a feeling that he would not see the end of segregation in his own lifetime. Which meant two things. One, that he would have to chip away at the separate but equal doctrine as much as he could while he was alive. And two, train the right attorney to follow in his footsteps and keep the fight going after he died. And it was during his time as dean of Howard Law School that Houston would meet his protege, a bright, energetic young student who would one day break more barriers than anyone in the 1930s could have imagined. His name was Thorgood Marshall. Born in Baltimore on July 2nd, 1908, he would shorten his name to Thurgood and end up with more middle and high schools named after him than any lawyer could ever hope for. The name Thurgood Marshall is in all the American history textbooks. But what the textbooks don't talk about nearly enough is the man who trained him. Thurgood Marshall would leave behind one of the most impressive legacies the legal world has ever seen, and yet his mentor was the one who helped blaze the trail. In other words, if Thurgood Marshall is Luke Skywalker in this story, then Charles Hamilton Houston is without a doubt Obi-Wan Kenobi. At Howard, Dean Houston would run a tight ship. Many students who enrolled didn't make it through the full program. He would overhaul the law school, overseeing its official accreditation and the training of a new generation of lawyers. But his relationship with Thurgood Marshall would soon go from mentor student to counsel and co-counsel. In 1935, Houston left Howard to become a full-time lawyer at the NAACP. And it was there that he revealed his plan to end segregation once and for all. Ideally, the goal would be to convince the Supreme Court to overturn Plessy v. Ferguson and integrate all facets of American life. But given that by then the court's precedent was over 40 years old, decided by an overwhelming majority of justices, and the fact that the new justices weren't exactly a beacon for racial equality, this option would not be easy. And so, Houston decided to find another way. He read Plessy vs. Ferguson, perhaps closer than most lawyers did. The reasoning had been separate but equal. It was clear to Houston and to Marshall that separate was not, in fact, equal. But legally, it was supposed to be. So rather than attacking Plessy versus Ferguson, Houston decided to enforce it. He wouldn't directly argue for integration. He would argue that things could be separated only if they were equal. So that should mean equal facilities, equal education, equal quality of life. The majority in Plessy had promised, after all, that separation was okay only as long as there was equality. Which clearly there wasn't. By approaching the issue this way, Houston gave state governments two options either spend double the money building facilities for black citizens equal to those for white citizens, or integrate. He knew that in the long run, the first choice would be too costly, so states would have to opt for desegregation. But perhaps most important of all was Houston's conviction that change would have to come from the classroom. Racism and bigotry had to be addressed from the source. When black children go to school with white children, stereotypes break down, and gradually, racial prejudice will subside. Finally, in 1935, Houston got his chance to set his plan in motion. In January of that year, a young man named Donald Murray had applied to the University of Maryland School of Law and received a letter back that literally said, The University of Maryland does not admit Negro students, and your application is accordingly rejected. Now, had the University of Maryland been a private school, Houston would not have been able to make a constitutional claim, because that would involve a private party. And the civil rights legislation we have today, which stops private schools from discriminating, wouldn't be passed until decades later. But as it happened, the state of Maryland had funded a public law school that had an open policy against admitting black students. And what was pivotal in this situation was that Maryland did not have a separate public black law school. So here was a prime example of inequality. Maryland wasn't separating black legal education, it was denying it. Houston took the case with Thurgood Marshall at his side all the way up to the Maryland Court of Appeals. They argued that Maryland could either build a black law school or integrate their current law school. Plessy versus Ferguson had allowed for separation, but had mandated equality. Well, the Court of Appeals agreed. They unanimously ruled in Murray's favor and demanded that the University of Maryland Law School admit him. Thurgood Marshall was from Maryland. He himself had not applied to the state's law school because he knew their policy. So ironically, the university's policy against admitting black students would push Thurgood Marshall directly into the hands of Howard University and its law school dean Charles Houston. And as a result of that partnership, the policy itself would be declared unconstitutional. It was a major moment for Charles Houston's legacy, but it still wasn't enough. Maryland opted not to appeal the case to the Supreme Court, which meant that there would be no federal ruling on the issue. Houston and Marshall's victory was limited to Maryland only. But patience and persistence would one day pay off. Just two years after his success in Maryland, Houston would hear of a similar case in Missouri, and this time, he would be able to make the same argument to the U.S. Supreme Court. The reason was his frustration that the court kept striking down his economic reforms. The justices had been divided into four conservatives that the press called the four horsemen, three liberals that were called the three musketeers, and two swing voters, which included Chief Justice Charles Evans Hughes and Associate Justice Owen Roberts. Roberts would be responsible for the switch in time that saved nine by siding with FDR and preserving the number of justices at nine. And right after all of that happened, two of the four horsemen retired. George Sutherland was replaced by Justice Stanley Reed, and Willis Van Devanter was replaced by Justice Hugo Black. Justice Black was an important character in season one, but now that the subject is equal protection, it's time to reveal a dark fact about his past. As I mentioned, the KKK had made a massive comeback in the late 1910s. And by the time Hugo Black ran for office in Alabama in the 1920s, the KKK had penetrated politics so deeply that he felt he had no choice but to become a member. So when it came time for his nomination to the Supreme Court, many Americans were outraged to hear about this affiliation. Justice Black outspokenly disassociated himself from the organization very quickly and even went on the radio to defend himself to the American people.

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The insinuations of racial and religious intolerance made concerning me are based on the fact that I joined the Ku Klux Klan about 15 years ago. And I did join the Klan. I later resigned. I never rejoined. I completely discontinued any association with the organization. I have never resumed it and never expect to do so.

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But despite Justice Black's dubious past, another Supreme Court justice would turn out to be by far the most racist one. Justice James Clark McReynolds was one of the two remaining horsemen on the court, and he was as bigoted as they come. When Justice Louis Brandeis and Justice Benjamin Cardozo, two of the Musketeers, joined the court, McReynolds deliberately ignored them because of their Jewish heritage. He refused to join an opinion written by a Jewish justice and famously would refuse to sit for a photo alongside them, which he eventually did very reluctantly. When it came to racial equality, it was pretty clear that Justice McReynolds was never going to see things Charles Houston's way. But he was only one justice. So when Houston arrived to argue the landmark case of Missouri X-Rail Gaines vs. Canada, Houston would focus on trying to convince the other justices why they had to rule in his favor. The facts of Missouri X-Rail Gaines were very similar to Murray v. Maryland. A young man named Lloyd Gaines had been refused admission to the University of Missouri Law School, again because he was black. The state offered to pay his tuition at another state's law school, but he turned it down, determined to study law in the state where he lived with his family. During oral arguments, Houston emphasized the inequality that black Missourians face. But as soon as he said the words, may it please the court, Justice McReynolds turned his chair to face the other way. He would not look a black lawyer in the eye and kept his gaze on the wall for the full 30 minutes of Houston's argument. So Houston addressed the remaining eight justices and pointed out that Missouri Law School prepared its students for the practice of law in. Missouri. There was no similar opportunity for black students to learn in Missouri. Plessy versus Ferguson had allowed separation based on the promise of equality. So Missouri would have to choose, like Maryland did, will they build a public black law school or will they integrate the one they already have? This would be Charles Houston's biggest moment. It was more than one student going to law school. This case could establish that if states were going to invest in white education, they would have to equally invest in black education. So all students would have equal facilities, or all students would attend the same school. Either scenario was an improvement. On December 12th, 1938, the Supreme Court issued its opinion. All three Musketeers, Justice Louis Brandeis, Justice Benjamin Cardozo, and Justice Harlan Stone would join Justice Roberts, Chief Justice Hughes, and brand new Justices Hugo Black and Stanley Reed to hold seven to two that states must integrate their schools if there was no black equivalent. Chief Justice Hughes wrote the opinion, and here is a reading of what he said.

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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. The equal protection of the laws is a pledge of the protection of equal laws.

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Meanwhile, in dissent were the only two remnants of the notorious four horsemen. Justice Pierce Butler and Justice McReynolds would be the only ones who disagreed. McReynolds wrote the dissenting opinion, and here's what he had to say.

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For a long time, Missouri has acted upon the view that the best interests of her people demand separation of whites and Negroes in schools. Under the opinion just announced, I presume she may abandon her law school and thereby disadvantage her white citizens without improving petitioners' opportunities for legal instruction. Or she may break down the settled practice concerning separate schools and thereby, as indicated by experience, damnify both races. Whether by some other course it may be possible for her to avoid condemnation is a matter for conjecture.

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The case of Missouri XREL Gaines has been buried in the chapters of history. And maybe that's a positive thing. No one needs to remember the day the court mandated a separate school for black students, because they would one day mandate integration for every school in the entire country. Although the court hadn't overruled Pussy versus Ferguson outright, Houston had turned that case on its head. Either have separation and equality or don't separate in the first place. Against all odds, through unrelenting pressure and the highest stakes one can imagine, Charles Houston had ensured that students like Lloyd Gaines would be able to study law in their home state. But tragically, Lloyd Gaines himself would not be able to take advantage of the ruling he helped bring on. Within weeks of the court demanding that Missouri admit him, Lloyd Gaines disappeared. Many speculate that he was killed or perhaps went into hiding. No one knows exactly what happened to him. Charles Houston and Thurgen Marshall had to give up on finding their star student. But although Lloyd Gaines never graduated from the University of Missouri, today thousands of African American lawyers are Mizzou law alumni. And in 2018, students at the School of Law started a petition to find out exactly what happened to Lloyd Gaines. That investigation is still ongoing. And whether or not we find out what happened to him, his victory before the US Supreme Court would become the biggest judicial civil rights advancement in American history. Until 1954. Charles Hamilton Houston would spend his entire life devoted to chipping away at Plessy v. Ferguson and the doctrine of separate but equal. With his victory in the Gaines case, he knew that the path to integration was underway. What was less certain was whether he would live to see a world without segregation. By the turn of the 1950s, his health was in rapid decline. Charles Houston was born just a few months before Plessy vs. Ferguson was decided. And he died just a few months before a landmark case was argued on behalf of the Brown family against the Board of Education of Topeka, Kansas. Without his mentor to guide him, it would be time for the apprentice Thurgood Marshall to go in alone. Charles Hamilton Houston had built an army of black lawyers and successfully argued a landmark case to the Supreme Court himself. But just before he died, he passed the baton to a student, a young Thurgood Marshall. It would be on him to deal the final blow to segregation. Next time, we'll discuss the thrilling story behind the landmark case of Brown versus the Board of Education.