From Margold to Marshall
Tracing the NAACP's legal strategy before and throughout Brown v. Board of Education I & II
When Brown v. Board of Education of Topeka commenced in 1952, the National Association for the Advancement of Colored People (NAACP) was already decades into its institutional stride. The NAACP, which began in 1909 as an organization to counteract growing violence against Black Americans, had worked for decades against racism and the emergence of racial segregation by challenging relevant issues through legal action, public advocacy, and educational efforts. Though, at first, the NAACP’s legal strategy did not attempt to dismantle segregation entirely. In fact, leading voices within the organization held varying opinions on the best route to desegregation and even whether that was the right objective at all. This essay attempts to examine the legal strategy of the NAACP directly before and during both Brown v. Board of Education cases, how that strategy emerged within the organization, and how they might have benefited from different courses of action. I find that the NAACP’s legal strategy struck an innovative balance between persistent forcefulness and pragmatism in its effort to dismantle segregation in schools and initiate a prompt integration process, with some notable faults. In this assessment, I find too that the disappointingly gradualist results of Brown II did not come as a result of the NAACP’s argumentative decisions.
Although its efforts to expand Black rights were decades underway, the year 1930 provides a sufficient starting point in examining the NAACP’s developing legal strategy. That year marked the establishment of the NAACP’s relationship with the Garland Fund. Garland, according to Mark Tushnet in Making Civil Rights Law, was a left-wing organization that provided financial backing for the NAACP’s “coordinated campaign of litigation against Jim Crow laws in transportation, education, voting, and jury service.” Implementing and shaping this campaign was more complicated than determining its goals. Nathan Margold, a lawyer hired to map out the campaign, and James Weldon Johnson, the executive secretary of the NAACP, had different perspectives on ideal plans. Margold endorsed “a direct attack on segregation,” while Johnson proposed “using taxpayer suits to force Southern legislatures to spend equal amounts on both parts of the dual school systems.”
Debates surrounding legal strategy within the NAACP often returned to questions of what the proper extent for litigation plans should be. Margold’s suggestion to set sights on directly dismantling segregation was taken later down the line, once it was evident that nothing less would provide returns for Black rights. Johnson’s method was along the lines of what the NAACP chose to immediately work with. Charles Houston, head of the NAACP Legal Defense Committee, concentrated on two areas below segregation to litigate. One area involved lawsuits that sought equal teacher salaries for both Black and white teachers and the other involved the admission of Black applicants to graduate schools. Tushnet contends that teacher salary lawsuits were especially appealing since NAACP lawyers “just had to produce evidence about salaries, rather than examine in detail the many different components that made African-American schools as a whole inferior to white schools.” This would also provide an “immediate financial benefit” to Black teachers, which would in turn increase the NAACP’s favorability. Similar benefits could be drawn from proper framing of graduate education on the basis of equal education.
The NAACP’s decision to target reachable, beneficial results for Black teachers and students before attempting a full takedown of segregation made for several key benefits. This strategy gave way to both speedy help to Black citizens and a steadily expanding set of recognized assurances to Black citizens under the law. Lawyers and key figures within the NAACP, including Thurgood Marshall, foresaw wins on these sorts of cases as stepping stones to desegregation and useful precedential material—especially considering their “attachment to the Constitution,” according to Tushnet. Teacher salary lawsuits were largely successful for the NAACP. Teachers were “found everywhere in the South,” and had “reasonably strong incentives to make winning the cases their primary concern.” By contributing to the suit and putting aside “personality conflicts and political differences,” they were in many ways working to increase their own pay. There was also the added benefit of defendants showing “less resistance” since “only money, not the symbolism of segregation, was at stake.” For a number of years, these cases worked alongside graduate school admittance suits to expand Black rights on a smaller, but no less important scale.
Eventually, Marshall and the NAACP found a point of stagnation with these smaller-scale cases and set sights on dismantling school segregation as a whole. In 1950, the NAACP made clear it would shift its focus from equalization—which included teacher salary lawsuits and graduate school admittance cases—to desegregation. Although there was varying thought within the Black community and the NAACP on whether tackling segregated schools as a whole would be optimal, Marshall and his affiliates pursued cases that more directly framed equality and segregation as mutually exclusive ideals. Cases such as Sweatt v. Painter typified this approach. In Sweatt, the Court ruled that Herman Sweatt, a black man who applied to the University of Texas Law School, was within his rights to attend it despite the fact that it restricted enrollment to white students under state law. The case was led by Thurgood Marshall, one of the NAACP’s premier lawyers and strategists alongside Houston. As the Court held conference over Sweatt, Justice Felix Frankfurter connected with Marshall’s presentation of the lack of equality between the schools. Frankfurter noted the gap between the Texas Law School’s 65,000-volume library and the 20,000 volumes provided to Black students at the segregated law school. The Court unanimously favored Sweatt primarily because of how clear it was that he would not have received equal education at the law school provided to Black students due to its comparatively limited resources. The majority opinion by Justice Fred Vinson noted that even the segregation of white and Black law students would present substantial issues to Black students as they entered the field. These results furthered the establishment of Black rights and emphasized the fundamental inequality of segregation as a practice. The successes of Sweatt and the similar McLaurin v. Oklahoma State Regents university case painted the NAACP’s legal strategy to petition the cases involved in Brown in 1952. Although justices were somewhat uncomfortable with “direct challenges to segregation” so soon after the university cases, Tushnet explains, the team at the NAACP saw those successes as an indication that the logical next step was finally a direct challenge of segregation.
Brown, then, was that well-timed direct challenge. Beginning in 1952 as a class-action suit related to race-based segregation in schools, its title comes from one of the appellants who filed the suit against the Topeka Board of Education. The suit came as a result of Oliver Brown’s daughter, Linda Carol Brown, being denied admittance to all-white schools in Topeka and forced to attend separate schools. The other plaintiffs’ cases followed similar grounds. The constitutional justification for segregated schools—and the precedent of Plessy v. Ferguson, which effectively legalized segregation—was questioned in Brown. The side representing the Topeka Board of Education argued that school segregation did not, per se, violate the Fourteenth Amendment, according to the case’s Brief For Appellees. This was argued since lower courts judged the segregated schools in question to be “substantially equal to those furnished to white children.” The plaintiffs—with lawyers from the NAACP at the helm—argued that the segregation of schools was unconstitutional under the Fourteenth Amendment, which “precludes a state from imposing distinctions or classifications based upon race and color alone,” according to the case’s Brief for Appellants.
The NAACP’s legal strategy hinged on forcefully arguing for hasty integration and used a variety of innovative tactics to best dress their argument. A primary and innovative strategy in framing its arguments in Brown involved sociological research. The Effects of Segregation and the Consequences of Desegregation is the most prominent collection of such research, outlining feelings of “inferiority” and “personal humiliation” that arise in Black children as they perceive segregation at different societal levels. It also made points to refute the arguments of those who might oppose the integration of schools. Such refutations included the question of whether the integration of Black students would mean the messy mixing of intellectually “inferior” students with more advanced students, as well as whether “segregation prevents or stimulates interracial tension and conflict.” On the first point, the report dismantles the idea that the integration of Black students would mean an integration of intellectually inferior students. It contends that the “observable differences” between groups come from “environmental differences,” according to research, and that “fears based on the assumption of innate racial differences in intelligence” are baseless. The second point on whether segregation would promote conflict between Black and white students and peers is less clearly addressed. The NAACP took great care to frame the report in a way that did not underplay the real possibility of violence in the wake of integration. The report does note that “there is less likelihood of unfriendly relations” when integration is “simultaneously introduced” across whole institutions and districts. This point lands well with Marshall’s continuing strategy to endorse fast-paced integration across the country.
Despite these extensive sociological reports detailing the relevant effects of segregation on the minds of Black students, the justices mostly dismissed them in private conferences. This marked a miss for the NAACP’s legal strategy and somewhat harmed the perception of Marshall to the justices. Justice Hugo Black noted that he “do[es] not need books to say” that segregation stems from “the belief that Negroes are inferior.” Justice Frankfurter noted that the justices could not “treat these cases as sociological questions.” The reluctance of the justices to treat the sociological studies as any form of workable evidence led to a growing perception that Marshall was more in tune and concerned with the social aspects of segregation than the legal terms. In conference, Jackson noted that “Marshall’s brief starts and ends with sociology, not legal issues.” The justices spent the majority of their time discussing the implications of reversing precedent and the ramifications of implementing Brown. The social questions addressed in the NAACP’s brief were seemingly treated as unnecessary evidence to already clear truths.
But even as the sociological evidence presented by the NAACP did not compel the justices to much discussion in conference, its influence is undeniable in Justice Earl Warren’s majority opinion from Brown. The prominent inclusion of sociological research in the NAACP’s presentation of evidence is at least justified for its role in Warren’s reasoning in the opinion. Directly after Warren’s introduction of the question at hand—whether racial segregation in schools prevent segregated students from an equal education—he proceeded to call evidence similar to the sociological research presented by the NAACP:
“[Justifications for integration in schools] apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”
The most pertinent of Warren’s comments involve the “feeling of inferiority” that is compounded with school segregation. Despite the justices’ continual argumentation in conference regarding the constitutional questions behind Brown and their dismissal of segregation’s social effects as a relevant issue, Warren details those effects as part of the reasoning for the overall decision. Warren also cites a Kansas case presenting similar findings on the detrimental cognitive effects of segregation in schools:
“Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system.”
The significance of this inclusion to the Brown opinion should not be overlooked. Warren suggests in these sections that segregated schools were in all likelihood legally causing a great number of psychological damages to children. These social effects were used as evidence by Warren for why segregated education as a whole ran against the Equal Protection Clause of the Fourteenth Amendment. Had the NAACP not introduced these effects to the case, it may not have translated into the majority opinion and the decision would not read as forcefully against the practice’s effects as it does now.
To close, I will discuss the legal strategies the NAACP could have taken to avoid the decision in Brown II, and explore the assertion that no substantial change in strategy by the NAACP would have led to a different determination from the justices. Since 1950, Marshall and the NAACP were rigid in the stance that fast-paced integration was the only acceptable ideal to argue for, at least legally and publicly. This formal strategy had been in place since the outcomes of Sweatt and McLaurin. In McLaurin, Marshall set out to “attack gross inequalities in elementary and secondary education,” but did so “cautiously” and “without demanding an immediate end to segregation,” according to Del Dickson in The Supreme Court in Conference. Once the Court ruled in favor of Black students’ admittance on the grounds that the segregated graduate schools could not be inherently equal, the NAACP saw a welcome moment to ramp up their goals to a full dismantling of segregation. Marshall himself articulated that he was “for the gradual approach” to segregation, but that “93 years since the Emancipation Proclamation has been gradual enough.”
Although the NAACP publicly moved forward with goals of immediate integration, there were alternative plans discussed internally that embraced more gradual integration, along with resistance to the NAACP’s legal strategy within the Black community. Despite these counterpoints, the NAACP was prudent in its decision to continue shooting for immediate integration. Jack Greenberg and David Pinsky of the NAACP introduced a memo regarding a “balancing” legal strategy, according to Tushnet. This amounted to a blend of gradual integration—in the sense that school districts and lower courts would have reasonable time to accomplish restructuring—and immediate assurance of the individual rights for Black students achieved through Brown. Greenberg expressed that it was “untenable to say that desegregation must occur immediately.” Externally, the Black community expressed significant doubts surrounding the NAACP’s all or nothing strategy for immediate integration. This was especially true in Atlanta, as described in Courage To Dissent by Tomiko Brown-Nagin. Several days after the verdict of Brown, the NAACP hosted a two-day conference for “regional NAACP officials and lawyers” in Atlanta. Leaders directed NAACP branches in "every affected area to petition their local school boards to abolish segregation without delay,” which the Atlanta branch “heartily endorsed” unanimously in an internal committee. However, Brown-Nagin expresses that Atlanta’s local Baptist ministers association only endorsed Brown after a “‘heated discussion’ held two months after the Court announced its decision.” The “greatest skeptics” were “elementary and secondary level educators” in the community, who seemed to express doubt mainly because “they feared losing their jobs.” The resistance to Brown by citizens and officials who relied on segregation was palpable. The backing of the Court and new word of law striking down segregation in Brown could not be expected to immediately dissolve a “sociopolitical milieu” that structured itself and its established mindset around segregation.
Despite these valid reservations, any alternative legal strategy from the NAACP endorsing a more gradual approach would have done little to improve integration as a whole. Concessions of this sort would likely have only harmed the NAACP’s efforts to attain the closest endpoint to speedy integration, due in large part to the Court’s reluctance to catalyze integration and refusal to set any timetable for integration’s completion through conference in Brown II. In this way, the NAACP’s arguments went as far as they could to convince the justices to bring urgency to integration through a decision in Brown II. By the time the justices had called for a third argument from the NAACP’s team on Brown II, NAACP lawyers had already twice “laid out the only position they reasonably could take.” But the nature of the last two arguments “made it clear that many justices wanted a more gradual remedy than the NAACP offered.” For Marshall, the resistance to integration was to be ignored by the justices and the only valid reason for delay, of up to one year, was the restructuring process. In conference, Warren asserted that Brown II should not “fix a date for completion of the program of desegregation,” and should instead leave the speed with which Brown is implemented to district courts. The justices argued on the point of gradualism and arrived at their decree for integration to proceed “with all deliberate speed” in “large measure because most justices had a vague idea that they could avoid difficulty by allowing desegregation to occur gradually,” according to Tushnet. Justices Black and William Douglas expressed a desire for quicker integration, but possessed an equally weighty cynicism for how the South would react to Brown II. They believed that the only reasonable expectation for the Court “was a clear statement of fundamental principle” and that there was “no reason to appease Southern sentiment through a gradualist decree.” In terms of achieving an optimal outcome for the NAACP, though, the Court’s refusal to set any timetable and overall fear of a violent Southern reaction colored just such a gradualist decree. In their continued strategy to convince the Court to accelerate integration without complacent pause, Marshall and the NAACP achieved what is likely the most rapid call for integration that the Court would have given at the time.
On the whole, the NAACP’s legal strategy mainly struck an effective balance between persistent forcefulness and pragmatism. Its progression from equalization suits and graduate school admittance cases to its tactics in Brown acknowledged the unlikelihood of the justices to strike down segregation earlier than Sweatt and McLaurin. Barring perhaps a slight overemphasis on sociological research, Marshall and the NAACP’s legal strategy delivered results in Brown and Brown II that are almost certainly as close as they could have reasonably been to their desired result. The gradualist outcome of Brown II—which set off a decadeslong process of integration that arguably continues today—cannot be reasonably blamed on the NAACP’s approach in arguing against segregation and in favor of an expeditious integration process. In fact, without the NAACP’s innovative strategies, the gradualism of integration would likely have been replaced with judicially reinforced segregation for years to come.
 | A guest post by
|