The Legal Intelligencer
Philadelphia, Pennsylvania
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Facts to Know, Tell On Landmark Case
By Alan L. Yatvin
Special to the Legal
The popular media are replete with articles, editorials and TV specials marking the
50th anniversary of Brown v. Board of Education and the end of the "separate but
equal" doctrine that served to foster racial segregation in public education. However, I
wanted to offer my colleagues a lawyer's take on the people and events surrounding
that watershed decision. Hence, to commemorate the occasion, here are some facts
you may not have known about Brown:
✦ Brown was the culmination of a long line of cases brought to challenge racial
segregation in public education, dating to an 1849 case brought in Boston. In Kansas,
alone, 11 such cases were brought between 1881 and 1949.
✦ Brown was the product of a campaign conceived by NAACP counsel Charles
Hamilton Houston and advocated by his protege and successor Thurgood Marshall and
Jack Greenberg, both of the NAACP Legal Defense Fund. In 1948, the NAACP board
of directors formally adopted Marshall's plan by deciding to concentrate its efforts on
an all-out attack on segregation in education. During the next three years, the NAACP
commenced or joined the five cases that were ultimately consolidated under Brown.
✦ At oral argument in Brown, John W. Davis, co-counsel for the South Carolina
appellees, quoted W.E.B. DuBois in support of the argument that it was more harmful
to black children to thrust them into an integrated environment where white children,
teachers and parents despised, resented, mocked, neglected, bulled and "literally
rendered life a living hell."
✦ DuBois, a Harvard graduate, who famously wrote, "I was in Harvard but not of it,"
was one of the founding members of the NAACP in 1909. He was the passionate
editor-in-chief of the NAACP's magazine, Crisis.
✦ Oliver Brown, the name plaintiff in Brown, was one of nearly 200 plaintiffs from
four states and the District of Columbia, challenging "separate but equal" educational
systems. The only case in which relief was granted the plaintiffs was Belton v.
Gebhart, in the Delaware Court of Chancery. The young chancellor who ordered
integration of the Delaware schools was Collins Seitz Sr., who went on to become a
judge of the 3rd U.S. Circuit Court of Appeals.
✦ Brown was first argued in December 1952. In June 1953, the U.S. Supreme Court
ordered reargument to be held in October at the start of the new term. Just before
reargument, Chief Justice Fred Vinson died unexpectedly. Vinson was believed to have
supported continuation of segregation under the "separate but equal" standard.
Remarking on Vinson's passing, Associate Justice Felix Frankfurter is reported to have
quipped, "It's the first indication I've had that there is a God."
✦ President Eisenhower nominated Earl Warren to replace Vinson on Sept. 30. The
court rescheduled argument for December. Warren, who was confirmed as chief
justice by the Senate in March 1954, delivered the unanimous opinion of the court on
May 17. Even though his Justice Department argued in support of desegregation in
Brown, Eisenhower disliked Brown and failed to publicly endorse the decision. He felt
it was a mistake to start with schools, rather than public accommodations.
✦ The original 1952 argument in the consolidated Brown cases commenced at 1:30 p.
m. on Tuesday, Dec. 9, recessed overnight, and continued shortly after noon the
following day. Marshall ended his rebuttal argument by stating: "But the rights of the
minorities ... have been protected by our Constitution, and the ultimate authority for
determining that is this court. I think that is the real difference. As to whether or not I,
as an individual, am being deprived of my right is not legislative, but judicial."
✦ The Supreme Court severed Bolling v. Sharpe, the District of Columbia case, from
the Brown cases, because the 14th Amendment was not applicable to the District of
Columbia. On the same day the Supreme Court declared in Brown that "separate but
equal" violated the Equal Protection Clause of the 14th Amendment, it handed down a
decision in Bolling, ruling that racial segregation in the District of Columbia public
schools violated the Due Process Clause of the Fifth Amendment.
✦ Sociological evidence was presented in the lower courts to demonstrate that
"separate but equal" had a devastating effect on African-American children. This
evidence included research by Dr. Kenneth Clark, who showed black dolls and white
dolls to African-American children and asked them to chose the good dolls. They chose
the white dolls. Robert L. Carter, a U.S. Senior District Court Judge, who argued the
Brown case with Marshall, was the principal advocate of including this sociological
evidence. Eastern District of Pennsylvania Senior Judge Louis H. Pollak, who was part
of the Brown team, argued against the inclusion of the sociological evidence, asserting
that it was unnecessary.
✦ The Supreme Court cited the Clark research in support of its decision in Brown. In
January of this year, Pollak, sitting with Carter on a forum at Howard University Law
School, told Carter, "You were right and I was wrong."
✦ Pollak was on all the Brown briefs, along with Philadelphian William T. Coleman
Jr., Oliver Hill and Carter, Constance Baker Motley and Jack B. Weinstein, author of
the definitive treatise on the Federal Rules of Evidence.
✦ On May 31, 1955, the Supreme Court handed down Brown II, which ordered
desegregation with "all deliberate speed." The court's use of the term "all deliberate
speed" is regarded as a catalyst for the student protests that launched the civil rights
movement, because many Southern states took advantage of the vagueness of the
order to thwart integration. Prince Edward County in Virginia, a defendant in one of
the consolidated Brown cases, chose to close its public schools for five years rather
than honor the Brown II order.
✦ One of the signatories to Brown II was Justice John Marshall Harlan II, who was
nominated to the court in the year between Brown I and Brown II, upon the sudden
death of Justice Robert Jackson. Harlan, who became known as the "Great Dissenter"
of the Warren Court, was the grandson of Justice John Marshall Harlan. The first
Justice Harlan, a Kentuckian and former slave owner, was named for John Marshall,
the first chief justice of the Supreme Court. When he joined the Supreme Court in
1877, Harlan was the only law school graduate amount the nine sitting justices. He was
also the lone dissenter in the 1896 decision in Plessy v. Ferguson. It was in Plessy that
the Supreme Court established the "separate but equal" doctrine that became the
constitutional basis for segregation.
✦ Harlan's Plessy dissent argued that forced segregation stamped blacks with a badge
of inferiority. This same line of argument became a decisive factor in Brown, where
the Supreme Court expressly overruled Plessy. In his Plessy dissent, Harlan coined the
phrase "Our Constitution is colorblind." Southern District of New York Senior Judge
Constance Baker Motley, an attorney with the NAACP legal team during Brown and
the first African-American woman appointed to the federal bench, recalls that during
the Brown fight, Thurgood Marshall picked himself up in low moments by reading
aloud from Harlan's Plessy dissent.
✦ In 1979, three young African-American attorneys in Topeka, Kan., petitioned the
district court to reopen Brown to determine whether the school board had eliminated all
vestiges of discrimination. That case, known as Brown III, resulted in the Topeka
Public Schools building three magnet schools.
✦ On Tuesday, May 11, 2004, one week before the 50th anniversary of the decision
in Brown v. Board of Education, a state district court judge sitting in Topeka issued an
order essentially closing the Kansas Public Schools for the coming school year, due to
the failure of the Legislature to provide sufficient funds to ensure constitutionally
adequate education to poor, disabled and minority children in Kansas. Brown v. Board
of Education was one of the authorities cited by the court.
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