Brown v. Board of Education | The Equal Protection Clause, Pt. 1

Part One comes to an end in the thrilling story behind what is regarded as the most pivotal Supreme Court case of all time: Brown v. Board of Education

Transcript

SPEAKER_01 0:03

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

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It all started for me on a balmy day in the fall of 1950 in the quiet Kansas town of Topeka, when a mild-mannered black man took his plump seven-year-old daughter by the hand and walked briskly four blocks from their home to the all-white school and tried without success to enroll his child. Black parents in Topeka felt that the day of trying to enroll their children in the school nearest to their home was long overdue.

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The doctrine of separate but equal had persisted in the United States for 60 years. The U.S. Supreme Court had held that any state could freely segregate on the basis of race as long as each race was given equal access to things like transportation and education. Separate but equal was responsible for the entire institution of segregation. With Jim Crow laws now in full bloom all over the South, it took the life and career of one man to pin the doctrine against the ropes. Charles Hamilton Houston had chosen to work with separate but equal rather than demand its reversal. The strategy was that the court would either have to make the states pay for equal access for all African Americans, or otherwise force the states to integrate. So states that only had one law school could either open up another law school or start admitting black students. Houston's work had weakened the doctrine with repeated small victories. But to truly kill it, he would need to attack the heart of separate but equal. You could go on forever asking for budgets to fund black schools and black neighborhoods. You can demand that parks and other public places be desegregated for practical reasons. But the real core of the entire institution was in public elementary schools. If they could somehow integrate childhood education, new generations of children would grow up with a racial mix of friends who can learn from each other. Integrating public schools was the key to collapsing the entire institution. The person you just heard was a woman named Linda Brown. She was a child of the 1950s, a child who was excluded from attending a white public school in Topeka, Kansas. That didn't mean she couldn't find a good education, but she was blocked from enrolling in the public school closest to her home, solely because of her race. That's why her parents, along with several others around the country, filed suit alleging that the doctrine of separate but equal was a paradox. With Charles Hamilton Houston's recent death, there was only one man suited to argue the case on their behalf. The star student, turned apprentice, turned co-counsel, who had been preparing for this moment his entire life. It was time for Thurgood Marshall to make his legacy and prove to the U.S. Supreme Court once and for all that separate is inherently unequal.

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We are confident that desegregation will proceed to open the door to true democracy for all of the children of our nation.

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Post-World War II America was ripe for social change. US had helped liberate Europe, overcome the Great Depression, and overseen some significant technological advancements. With the Soviet Union amassing more power, fear of social progress started to take a back seat to fear of communist invasion. On top of that, the US had just spent four years fighting against the Nazis and their white supremacist ideals. So it seemed a little odd to be returning from that war to a country that still allowed white people to separate themselves from black people. If you were black in Mississippi, you drank from separate water fountains, used separate bathrooms, sat separately on buses, and attended separate schools as required by law. It seemed unimaginable that Mississippi had once sent two black senators to the nation's capital before Reconstruction came to an end. But luckily, Charles Houston's army of black lawyers was only growing. In 1944, Howard University Law School would graduate a student by the name of Polly Murray, who would have a profound influence on the story of the Equal Protection Clause. In fact, it would be while Murray was fighting against racism that Murray encountered a great deal of sexism and found that while a lot of schools were rejecting black students because of their race, some, like Harvard Law, were willing to accept black students, but not women. For Pauly Murray, the fight to end racial discrimination was only half the battle. And so in 1950, Pauly Murray wrote what Thurgood Marshall called the Bible for the Civil Rights Lawyer. Polly literally poured through every single law that mentioned race or color in every state, summarized them, and copied them verbatim in her book. If you want the most thorough understanding of the nation's laws about race in the middle of the 20th century, then look no further than Polly Murray's book, aptly called State Laws on Race and Color. All of them are there. For example, in the state of Florida, the Constitution, written in 1885, Article 12, Section 12, provided that white and colored children shall not be taught in the same school, but impartial provision shall be made for both. But despite all of the progress Charles Houston had made, and the brilliant lawyers he had helped educate, he never saw the official reversal of Plessy v. Ferguson, which had allowed for segregation in the first place. The argument being that people could still be equal even if they were separated. So from a constitutional standpoint, the idea was that white buses and black buses would be identical. White schools and black schools would have the same resources. Bathrooms would be just as well maintained. And some nothing was supposed to be better for some people and worse for others. That was the whole legal presumption of allowing for the separation of races to begin with. But this was not the reality. The truth was that black schools, neighborhoods, and way of life were significantly more underfunded than their white counterparts. Poverty continued to disproportionately affect black citizens. And there was not much they could do about it because voter disenfranchisement had also invaded the South. Any black person who wanted to vote in any of the southern states was given a massive amount of obstacles that locked them out of voting for any significant change. So the result was the caste system that Justice John Marshall Harlan had warned about. It became quite apparent that the South had not declared the races as separate but equal, but as superior and inferior. So Charles Houston had focused on promoting equality. But soon, it would be time to stop being separate. Houston's army of black lawyers, including both Thurgood Marshall and Polly Murray, were preparing for one final battle. The battle to end segregation, the battle for freedom, and the battle for America's soul. By splitting up the population into black and white, the southern states had allowed the institution of slavery to keep casting its shadow well into the 20th century. It made it very apparent that white people in the South had more civil rights than African Americans did. So that's why Linda Brown's family decided that she would most benefit from an integrated educational system. When Linda was rejected by the white public school in her area, her case became ripe for a legal challenge. Her family, along with several others, filed suit against the Board of Education of Topeka, Kansas. And incidentally, four other cases from four other states were all filed around the same time, all demanding that the Supreme Court finally revisit its decision in Plessy versus Ferguson. The clamors for change were getting louder and louder. So the court consolidated all the cases into one. Cases from South Carolina, Delaware, Virginia, and Washington, D.C. collectively became remembered as Brown versus the Board of Education. And on December 9th, 1952, a now seasoned civil rights lawyer arrived at the Supreme Court to fulfill his destiny and wield the sword that would strike at the heart of separate but equal. But how? It's generally not easy to get the Supreme Court to overturn its own precedent. Justices are supposed to defer to the wisdom of the judges who came before them. So unless you can prove that the decision was very wrong and very consequential, the default rule of Stara Decisis means that the issue has already been decided. And the truth was that Plessy vs. Ferguson had been legal precedent for six decades. To end segregation, Thurgood Marshall would have to prove that the justices from the 1800s, and really all the justices who came after them, were all wrong. But one justice, who died years before Thurgrid Marshall was ever born, had left him a very important tool. A dissent. Even though Justice Harlan was outnumbered 7 to 1, that dissent was critical. It gave Thurgrund Marshall a blueprint. He could tell the court of the 1950s that they should defer to Harlan's wisdom instead. On top of that, he had something Justice Harlan did not have. Evidence. Harlan could only speculate as to what the consequences of segregation would be. But here in 1952, Thurgrid Marshall had pictures, videos, and testimony about the caste system that Justice Harlan had prophesized. And now, after over half a century, this was his chance to make history. On the day Lincoln signed the Thirteenth Amendment, John Rock had become the first African American eligible to argue a case after Chief Justice Salmon Chase admitted him to the Supreme Court bar. Decades later, Samuel Lowry would be the first African American to actually argue a case to the court. Charlotte Ray would be the nation's first African American woman lawyer, graduating from Howard Law a century before Charles Houston became dean and Polly Murray picked up the torch. They and countless others had blazed a trail that got Thurgood Marshall to this point. It was a pretty crazy sequence of events, if you really think about it. In 1876, President Rutherford Hayes had won a hotly contested and controversial election that gave Republicans the White House in exchange for the official end to Reconstruction. Hayes nominated John Marshall Harlan as a Supreme Court Justice. Harlan wrote the Plessy dissent while Charles Houston was an infant. Houston grew up to teach that case to train Thurgrid Marshall, and now Marshall was trying to convince the Supreme Court that Harlan had it right all along. Now the question was not about morality. It was not about whether segregation was right or wrong. That was technically for the legislature to decide. But the question for the court was whether segregation was consistent with the Equal Protection Clause of the Fourteenth Amendment. Could you really be both separate and equal? Armed with the knowledge that Houston taught him, the Bible that Murray provided him, and the dissent that John Marshall Harlan had bequeathed him, Thurgood Marshall began his oral arguments. We don't have recorded audio of the original arguments, but here's a clip from a reenactment to give you an idea of what Marshall said.

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I would submit that the evidence in the lower courts, as demonstrated in the record before us, is essentially uncontroversy, that separate is indeed inherently unequal.

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Marshall's thesis statement was that separating the races creates inequality. Income inequality, educational inequality, employment inequality. And the root cause for all of it was segregation and public schools. To illustrate the extent of segregation's devastating effects, Marshall famously brought in evidence of a sociological study. The study had interviewed young black children and presented them with two dolls. One was white, one was black. They asked the children to choose the better doll. The children overwhelmingly selected the white doll as being better. The study then asked the children to choose the doll that most looked like them. Some black children chose the white doll since they had just said it was better. Others chose the black doll, many of whom burst into tears once they had realized they had admitted to looking like the worst doll.

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And can you show me the doll that looks bad? Okay. And can you give and why does that look bad? Because it's black. And why do you think that's a nice doll?

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Because she's white.

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And can you give me the doll that looks like you?

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That clip was actually not from Marshall's original testimony, but from the same experiment conducted in the 2000s, 50 years after Brown, showing that a lot of the same problems are still present today. Now we don't know how much that study played a role in the court's decision, but what we do know is who was tasked with making that decision. The justices of the Supreme Court in 1952 were Tom Clark, Sherman Minton, Robert Jackson, Harold Burton, Felix Frankfurter, Stanley Reed, William Douglas, Hugo Black, and Chief Justice Fred Vinson. In the spring of 1953, after deliberating over Thurgood Marshall's legal arguments, those justices of the Supreme Court held a vote to decide the future of race relations in the United States. Would Plessy be overruled? Would Justice Harlan, Charles Hamilton Houston, and Thurgood Marshall finally be vindicated? The vote was 5-4 in favor of the Board of Education. Justices Clark, Frankfurter, Jackson, Reed, and Chief Justice Vinson voted to uphold segregation laws, while Justices Douglas, Burton, Minton, and Black wanted to overrule Plessy. Some say Black sided with Marshall to make up for his brief stint with the KKK. But in any case, it wasn't enough. Thurgood Marshall had not convinced the court to desegregate public schools and overturn Plessy versus Ferguson. Thurgood Marshall had failed. It was a devastating blow for civil rights. Perhaps even more devastating than Plessy itself. But the vote did not sit well with Justice Frankfurter. He didn't like segregation, but the Chief Justice had convinced him that judges can't make this decision for all the states. Still, Frankfurter decided that he wanted more convincing. He persuaded Chief Justice Vinson that they should hear re-arguments in the case. The court does this rarely, but Frankfurter thought it was the right thing to do. Bring Thurgon Marshall back and let him try again. This time, let's focus on how to desegregate schools to see if that's even feasible. Chief Justice Vinson wasn't so sure, but he wanted to avoid a 5-4 decision on something so controversial. So he reluctantly agreed to push the decision back. But by the looks of things, Thurgood Marshall needed a miracle. Now, while it may sound morbid to consider anyone's death a miracle, it's hard to call it anything else when on September 8, 1953, three months before the parties would come back in for re-argument in Brown vs. Board of Education, Chief Justice Fred Vinson had a heart attack and died in his home in Washington, DC at the age of 63. It was a tragic event, but its repercussions would mean everything. Justice Felix Frankfurter couldn't believe it. Famously, after news of the Chief Justice Sutton's death, Justice Frankfurter had this response. Selecting the Chief Justice replacement would be no small task, and it fell to President Dwight D. Eisenhower, World War II general and then current Commander-in-Chief. This would be Eisenhower's first Supreme Court nomination, and would end up being perhaps the most important one in U.S. history. President Eisenhower chose California Governor Earl Warren. The two had actually been political rivals the year before. Both had sought the Republican candidacy for president, and Warren might have won. But ultimately, Eisenhower got the nod, choosing Richard Nixon as his running mate. Democrats had controlled the presidency for 20 years, thanks to an unprecedented four straight election wins for President FDR, followed by President Truman's shocking upset victory in 1948. Here's how Governor Warren saw the future of the Republican Party's platform. After losing the primary, Warren campaigned hard for General Dwight D. Eisenhower to finally get the Democrats out of power. At this point in time, though, the Democratic Party, at least in the South, was pro-segregation. And although race was only starting to become a mainstream issue again, the Republicans were still the party of Lincoln. In exchange for Warren's support, Eisenhower had promised him the first available position on the Supreme Court. Eisenhower honored this promise, but the fact that the open seat was Chief Justice was also very important. Technically, the Chief Justice does not get any special power, but as the court's leader, the Chief Justice can set a powerful tone that could heavily persuade other justices on the bench. Plus, Supreme Court eras are defined in terms of Chief Justice. The 1930s had the Hughes Court, followed by the Stone Court, followed by the Vinston Court. This would start the era of the Warren Court. Now, Eisenhower could have simply promoted an existing justice and let Warren take an associate justice seat. Or else he could have selected someone with more judicial experience and told Warren that he'd get him next time. But instead, Eisenhower chose Governor Warren, and the senator confirmed him by acclamation. Side note, that was back when the Supreme Court didn't always do fully recorded roll call votes, since everyone used to be pretty unified on Supreme Court appointments. All he had to say was all in favor? Aye, and that was enough. So Earl Warren took his seat as Chief Justice of the Supreme Court, and with it the power to declare state laws unconstitutional. And before he even got a chance to break in his chair on the nation's highest bench, he would have to decide what is consistently ranked as the number one most important landmark case in U.S. history. In December 1953, Thurgood Marshall came back to the Supreme Court to deliver the knockout punch to segregation and the separate but equal doctrine. The court would need another five months to deliberate. It was obvious that the momentum had shifted. All the forces that led to Plessy vs. Ferguson, Jim Crow, and Separate But Equal had significantly lost steam. The addition of Earl Warren to the court was the nail in the coffin. Now you might think that Warren was important because he changed the vote from 5'4 in favor of segregation to 5'4 against. But Chief Justice Warren did a lot more than that. Like Domino's, the justices leading against the Browns toppled to the other side. Felix Frankfurter didn't need much convincing. He'd seen the light of God. He was in. That would make it 6-3. Reed followed suit, making it seven to two. But Warren didn't stop there. He made it a priority to not only vote in favor of integrating public schools, but to do so unanimously. Because Warren knew the power of a dissent. And he understood the emotions involved and the resistance that would meet the court's decision. For decades, white families in the South had grown up separated from black families, reinforcing stereotypes and bigotry. The Supreme Court had never interjected itself to this extent. The court had struck down some laws in its time. But this was truly unprecedented. And Warren knew that even if he won 8-1, the Southern states would latch on to the one for dear life. This decision would inevitably spark chaos and violence. But to help mitigate the extent of that chaos and violence, Warren knew he needed to present a unified front. So that's what he pitched to Justice Jackson, the final holdout. Warren asked him point blank if he wanted his legacy to be the sole voice defending a system that would fail the test of time. Justice Jackson gave in and signed on to Warren's opinion. On May 17, 1954, newly minted Chief Justice Earl Warren delivered the opinion of the court in Brown versus the Board of Education. By a vote of 9 to 0, the decision ruled in favor of Linda Brown and the other plaintiffs. The Board of Education of Topeka, Kansas was ordered to integrate all public schools with all deliberate speed. Their policy that separated school children on the basis of race was unconstitutional, in violation of the Equal Protection Clause of the Fourteenth Amendment. But wait, what about separate but equal? What if the southern states do a better job at funding black schools and really ensuring that things are really equal? Couldn't we still have segregation if we just improved black facilities? But Chief Justice Warren said no. He said that separation itself was inherently unequal. It didn't matter how good the schools were. It didn't matter if there was a school for black students and one for whites. Equal protection of the laws means that the law will treat everyone equally, which means that they will not separate on the basis of race. It took the Supreme Court until 1954 to realize what Justice Harlan had said in 1896. As such, public schools in the United States could no longer separate students by race. Today, Brown v. Board of Education rightly holds its place firmly as a defining moment in the advancement for civil rights. Now technically, it didn't do much more than apply to public schools. Segregation was still rampant in many other ways, including notably the fact that private businesses wouldn't allow African Americans in their establishments. It would take another decade before significant legislative changes were made to truly integrate the races. But progress was already underway, and Thurgood Marshall wasted no time in getting to work to actually implement the court's decision in Brown. Minutes after the court announced its decision, Marshall gave an interview on the courthouse steps, outlining the work that lay ahead. Brown was the catalyst. Once the doctrine of separate but equal was overturned, segregation began to unravel. Charles Hamilton Houston's strategy to chip away at Plessy vs Ferguson came through. Separate but equal was now history. Now, of course, progress doesn't happen overnight, not even with a unanimous Supreme Court decision. As predicted, scores of protests emerged in the South. Governors feuded with the president, police physically barred black students from entering schools, and violence erupted all over. Thurgood Marshall would have to come back again and again to the Supreme Court to feud over how to desegregate schools. Cases called Brown II and Brown III would come up, addressing a school district's failure or outright refusal to integrate. Even today, many communities remain segregated, perhaps not by overt law, but certainly as a consequence of the separate but equal doctrine. But as of May 17, 1954, segregation in public schools was unconstitutional. From a legal standpoint, the significance of Brown vs. Board of Education meant the reversal of Plessy v. Ferguson, and with it, the end of an era for the Fourteenth Amendment. But while it was the end of the line for separate but equal, it was not the end for the Equal Protection Clause. While World War II had been responsible for a radical shift in the nation's mindset, it had also witnessed the birth of a new line of cases that still determines how the Supreme Court analyzes issues involving race today. And it would also not be the end of Thurgern Marshall's story. After making history for the case, he argued to the Supreme Court, Marshall would soon get the opportunity to see what it's like on the other side of the bench. The next decade would see massive social, legal, and political change. African Americans would not only have a voice again in the legislature, but soon they would have a voice on the Supreme Court itself. And that concludes part one of season two of May It Please the Court. Join us next time as we discuss Thurgood Marshall Center on the Supreme Court.