Legal Fictions: Brown v. Board of Education

legal padBrown v. Board of Education turned 60 last Saturday. It rang the death knell for segregation in the United States, making possible many of the things that came afterwards, like the Civil Rights Act of 1964, which has also been celebrated lately.

Looking at the history of how that ruling came about provides a short course in both how lawyers contribute to social change and why they’re an important part of the mix.

Brown v. Board didn’t happen because the Brown family of Topeka, Kansas, (or the other families in the companion cases from Virginia, South Carolina, and Delaware) wanted their children to attend integrated schools, though the courage of the named plaintiffs in this cases during the Jim Crow era cannot be overstated.

It happened because Charles Hamilton Houston built up a solid law school at Howard University, taught and mentored future civil rights lawyers like Thurgood Marshall, and came up with the legal strategy to attack “separate but equal,” a doctrine set out by the U.S. Supreme Court in 1896 in Plessy v. Ferguson.

The NAACP set up a plan for a legal campaign against segregation in 1930. Houston brought his legal mind to it, and came up with a strategy to establish legal precedent.

One of Marshall’s first cases a suit on behalf of a man seeking admission to the University of Maryland law school. They won it at the Maryland Supreme Court in 1933 — more than 20 years before Brown.

Before the Brown case went before the U.S. Supreme Court, there were other significant cases. Most involved law schools and all concluded that separate but equal required actually equal facilities. Paying to send a black student to an out-of-state school didn’t meet the test, nor did allowing a black student into the school but keeping him separate from the other students.

And in the case I’m most familiar with – because it was about my alma mater, the University of Texas School of Law – the high court said setting up a separate law school wasn’t good enough if it didn’t offer the same resources as the one available for white students. That case, Sweatt v. Painter,  also argued by Marshall, made it possible a few years later for a man named George Washington to be the first black graduate of the UT law school. After he got out, he continued Houston’s legacy by setting up a practice in Houston, Texas, and representing Freedom Riders looking to overturn the “back of the bus” laws.

That is: it took more than twenty years of hard legal work to get to the Brown ruling, and while it was very significant, it didn’t mean there wasn’t a need for lawyers to keep working in the same vein.

Look at what it took: Houston, who went to Harvard Law School, worked at Howard to make serious legal education available to other African Americans. He put together a team of lawyers for the NAACP, using the people he trained and others, white as well as black, who believed in the goal.

Those lawyers knew the law and agreed on the strategy. And that meant they traveled across the United States, representing people bringing actions in education (and handling other civil rights cases) for over twenty years. They did a lot of their work in very racist places, where their lives were at risk. And I’m sure they didn’t make much money.

Houston didn’t live to see Brown, much less later victories. Marshall, of course, ended up as Mr. Justice Marshall, the first African American on the Supreme Court. And if you google the other plaintiffs’ lawyers in Brown, you’ll find a raft of federal judges and other important figures.

Legal change may look like it just happens, but the reality is that most of the time it’s the result of a long campaign to make things different. And that long campaign requires lawyers who are both very smart about law and very willing to work hard for years without much success or financial reward.

The history surrounding Brown and the Civil Rights Movement is worth looking at if you want to write a story about a social change movement. Much as we like to focus – in both real life and in fiction – on one hero who brings about all the changes, the truth is that it’s a lot of people doing a lot of work over a lot of time.

Yes, you need the heroes, the charismatic leaders. And you also need the deep thinkers, the strategists, the planners. Martin Luther King, Jr., was integral to the Civil Rights Movement, but he could not have made the progress he did without the work done by Charles Hamilton Houston and Thurgood Marshall and a lot of other lawyers.

And all of them required the thousands of people who put their lives on the line.



Legal Fictions: Brown v. Board of Education — 4 Comments

  1. And this does show you how oppression should be managed. You silly white old men, trying to keep women from filing rape charges or black people from voting or Asians from flooding the Ivies. You missed the boat long ago. Back when it was illegal to teach a black person to read? When there were no colleges for women? When there was a race quota at every law firm, every grad school, every sports team? Tch. You had the winning strategy there, and you let it slip.
    Keep them dumb, keep them illiterate, keep them pregnant. Or your wobbly hegemony is gone.

    • That last sentence sums up the strategy of a certain US political party. Everything it does aims directly toward that goal.