Brown v. Board of Education

  • October 2, 2012

    by Jeremy Leaming

    There really are very few Supreme Court justices worth celebrating and many more who are easily forgettable.

    But Thurgood Marshall, who joined the high court 45 years ago today, was a champion of equality before he became the first African American to join, at that time, the all-male, all-white Supreme Court.

    Marshall was named to the federal appeals court by President John F. Kennedy, and later to the Supreme Court by Lyndon B. Johnson. Both were historic appointments. As John Schachter notes in this post, much of Marshall’s life included historic achievements.

    After being denied admissions to the University of Maryland’s law school, because of racism, Marshall earned a law degree from Howard University and launched what would be a trailblazing legal career bolstering and advancing equality and liberty in the country.

    In 1940 he founded the NAACP Legal Defense and Educational Fund, which has become one of the nation’s leading civil liberties groups. Before reaching the federal bench, Marshall, as a highly successful attorney, took to the courts and started toppling Jim Crow era laws, tawdry efforts to continue the oppression of African Americans. As Juan Williams wrote in Thurgood Marshall: American Revolutionary, it was Marshall “who ended legal segregation in the United States. He won Supreme Court victories breaking down the color line in housing, transportation and voting, all of which overturned the ‘Separate-but-equal’ apartheid of American life in the first half of the century.” 

    Of course Marshall’s greatest victory before the high court came in Brown v. Board of Education, where he argued that the odious separate-but-equal principle aimed to keep African Americans “as near [slavery] as possible,” violated the Constitution.

  • August 30, 2012

    by John Schachter

    Forty-five years ago today, the U.S. Senate voted 69-11 to confirm Thurgood Marshall as the 96th Justice of the Supreme Court. That historic vote made Marshall the nation’s first African American justice and helped blaze a trail for others to follow.

    When President Lyndon Johnson nominated Marshall to the high court, he understood the historic importance, not just for the future of the court itself but for the broader issue of civil rights. Said Johnson, “I believe it's the right thing to do, the right time to do it, the right man, and the right place.”

    Times sure have changed; only one of those 11 votes against confirmation came from the Republican side of the aisle. But Johnson did get some 20 other southern senators to abstain from the vote; they faced the choice of alienating portions of their constituencies who couldn’t stomach an African American on the highest court or voting against the president and his historic choice.

    Marshall’s background is well known, from his more than two decades with the NAACP to his myriad arguments before the Supreme Court, culminating in the historic 1954 Brown v. Board of Education case that rejected the “separate but equal” doctrine in public education. President John F. Kennedy put Marshall on the U.S. Court of Appeals for the Second Circuit, and then Johnson made him solicitor general before the final promotion.

  • January 12, 2012
    Guest Post

    By Tomiko Brown-Nagin, Munford Boyd Professor of Law, Justice Thurgood Marshall Distinguished Professor of Law, and Professor of History at the University of Virginia. She is the author of Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement.

    Judge Robert L. Carter passed away last week. I had the honor of serving as a law clerk to the judge and found that experience profoundly rewarding. The judge, a brilliant man best known for his role as a chief strategist in Brown v. Board of Education, inspired me and many others. I share memories of my experience with him to shed light on his stupendous legal ability, his character, and his contributions as a mentor who taught invaluable lessons about life and the law. 

    As a NAACP Legal Defense Fund lawyer, Judge Carter litigated Briggs v. Elliott, the South Carolina case consolidated with four others as Brown. We initially bonded over my South Carolina roots: he had a hand in my life’s trajectory, and he knew it. I, in turn, saw in the judge a model of professional success and outstanding moral character. Each day, he made something extraordinary seem ordinary:  the idea that one individual could touch another’s life and radically alter its course. After spending a year in the presence of this great man — a lawyer who faced racial threats and insults merely for practicing his profession — a clerk for Judge Carter could scarcely contemplate disengagement from the world. The judge’s life and work taught social responsibility.

    Over the course of his career as a lawyer, Judge Carter earned a reputation as a man of strong convictions, unyielding principle, and great passion. Carter earned the reputation when, as Thurgood Marshall’s lieutenant, he consistently took the most “radical” view among LDF strategists, and when he resigned as General Counsel of the NAACP to support a colleague’s right to criticize the Warren Court. Yet, the judge, a Nixon appointee, taught me that success in the legal profession requires a clear head, a balanced and context-specific assessment of a problem, and a judicious temperament. He conveyed that passion for one’s work or causes can be productive, only if coupled with strategic thinking and professionalism.

    The judge taught this lesson in chambers on many occasions. In a long-running class action employment discrimination suit he once counseled that it would be counterproductive to coerce compliance with his orders, despite the defendant’s continued resistance to opening job opportunities to the plaintiffs. Sanctions might have been ordered in that case. But the judge had presided over the action for years. Knowing the parties and issues very well, he concluded that it made no sense to force this defendant into submission at that particular moment in time. Judges should neither look for, nor create, confrontations where they can be avoided. A judge might effectively invoke the full force of his powers on some occasions, but on others a thoughtful judge might choose not make a big show of his full powers. Good judging required knowing when to do which. 

    The judge also taught judiciousness through his writings about Brown. Not content to bask in the afterglow of his great achievement, the judge critiqued the legal strategy in Brown. He found a paradox. Brown served the U.S.’s geopolitical interests, and in many ways, propelled race relations forward in this country. But, ironically, in the public schools context, Brown proved a tremendous disappointment. The federal judges charged with articulating rights, and local officials charged with implementing legal remedies, ultimately bear the blame for Brown’s mixed legacy in the schools. However, Judge Carter also found fault with himself and his colleagues. The lawyers, he said, fixated on the constitutional dimensions of Brown, when the case also touched upon critically important matters of educational philosophy and pedagogy. The attorneys did not seriously contemplate, much less adequately define, quality education. That limitation left generations of black students adrift in schools, subject to social experimentation, or worse, educational malpractice.

  • November 16, 2011
    Guest Post

    By David H. Gans, Director of the Human Rights, Civil Rights & Citizenship Program, Constitutional Accountability Center; this analysis is cross posted at CAC’s Text & History blog.

    There are few areas of the law as deeply polarizing and emotionally heated as the application of the Constitution’s guarantee to all persons of the equal protection of the laws.  What is lost – all too often – in this heated and polarized discussion is the text and history of the Constitution’s Equal Protection Clause itself, along with the full sweep of our constitutional history: the principle of equality first stated in the Declaration of Independence, perfected in the Equal Protection Clause of the Fourteenth Amendment, and further illuminated in the Nineteenth Amendment and other Amendments.

    That’s what makes a new study by Constitutional Accountability Center entitled Perfecting the Declaration: The Text and History of the Equal Protection Clause of the Fourteenth Amendment required reading.   Perfecting the Declaration, the fourth in CAC’s Text and Narrative Series, tells the story of how the American people redeemed the Constitution from the sin of slavery and rewrote the Constitution to guarantee equality to all persons, bringing the Constitution back in line with the principle of equality laid out in the Declaration.  In the Equal Protection Clause, “We the People” perfected the Declaration by writing into the Constitution’s text that all “person[s]” are equal, not just that “all men are created equal.”  The story of this constitutional transformation is essential to the Supreme Court’s many landmark rulings honoring the Constitution’s promise of equality for all persons, including Brown v. Board of Education, Reed v. Reed, whose 40th anniversary is being celebrated this week at a star-studded panel in Washington, D.C., and Romer v. Evans.  As important, this story is critical to on-going efforts to persuade courts and, ultimately, if necessary, the Supreme Court, to take the next step and strike down state laws that deny gay men and lesbians the right to marry the person of their choice.  

  • November 3, 2011
    Elbert Parr Tuttle
    Chief Jurist of the Civil Rights Revolution
    Anne Emanuel

    By Anne Emanuel, a law professor at Georgia State University College of Law.

    Elbert Parr Tuttle. In his time his name was synonymous with integrity. That unassailable reputation -- hard earned as an Atlanta lawyer in the first half of the twentieth century and as the commander of an artillery battalion in the Pacific Theater in World War II -- served him well when he took over as Chief Judge of the Fifth Circuit in December of 1960. The next month, sitting alone, he lifted a stay only hours after it had issued. Because of his swift, decisive action, Hamilton Holmes and Charlayne Hunter registered at the University of Georgia that very day.

    The importance of that historic order can hardly be exaggerated. Six long years had passed since the Supreme Court’s decision in Brown v. Board of Education and nothing had happened. In five southern states – Alabama, Georgia, Louisiana, Mississippi and South Carolina – public elementary and high schools remained totally segregated. In others there had been token integration; in North Carolina, for instance, 60 black students attended school with white students, leaving the remaining 319,000 in segregated schools. Even less had happened on the voting rights front; black voters remained almost completely disenfranchised across the south.

    As Chief Judge of the Fifth Circuit -- then covering Alabama, Florida, Georgia, Louisiana, Mississippi and Texas – Tuttle led the way in enforcing the constitutional rights of black Americans, in dismantling the American apartheid known as Jim Crow. The task was dangerous and difficult. Tuttle dealt not only with the massive resistance of  demagogues in high and low office, but also with the obstructionism of federal judges committed to protecting the southern way of life, to prohibiting “race mixing,” in the parlance of those troubled times.