Tuesday, April 19, 2011

Arguing Brown: A Memoir by Jack Greenberg

Arguing Brown: A Memoir by Jack Greenberg

Brown v. Board of Education, decided on May 17, 1954, is a landmark decision, certainly among the Supreme Court’s most important. It demonstrates that judicial review, particularly by the Supreme Court of the United States, has potential for effecting vast social change. Brown contributed substantially to the transformation of American race relations. Brown’s principle also has moved the country toward equality for women, handicapped persons, and older people, and it underlies all other claims to equal treatment. But when I, among a group of seven lawyers led by future Justice Thurgood Marshall, argued the case, we could not foresee how far-reaching it would be. We anticipated a victory would start a slow march toward eliminating school segregation. We had not imagined the fierce Southern resistance that would develop, the civil rights movement that arose in response, the civil rights legislation of the 1960s, and other radiating effects.

On December 9, 1952, and December 8, 1953, I stood before the Supreme Court of the United States to argue a case from Delaware, one of the five cases known as Brown v. Board of Education, or the School Segregation Cases. Our aim was to persuade the Supreme Court to overrule Plessy v. Ferguson, a case it had decided in 1896, which approved racial segregation so long as facilities offered to blacks were equal to those for whites—the so-called separate-but-equal doctrine. I argued, along with Louis L. Redding, the only African-American lawyer in the entire state of Delaware, a case that arose in that state.

Why had we gone to court? Wasn’t there a better way? In a democracy, one would think the right to vote would be enough to correct such grave injustices. But in that era, suffrage was for many African Americans an illusion. Southern legislators had achieved this result by outright refusal, trickery, illegal rule changes, and other stratagems. Elected and re-elected by all-white constituencies, they gained seniority and great influence in Congress and were positioned to stifle any possibility of legislative change.

We believed that the judicial branch offered a means of addressing this injustice. The U.S. Constitution provides for an independent judiciary, largely free of politics. It includes a Bill of Rights designed to protect the fundamental rights of all Americans from encroachment by their government, even when that government is elected by and reflects the wishes of the majority. Even so, Brown asked a lot of the judicial system. We demanded that a large part of the country put an end to racial segregation, a practice with roots that ran to the days of slavery.

We had two main lines of argument. First, separate schools rarely, if ever, were equal. Wherever black schools were inferior in tangible, measurable terms (buildings, grounds, funding, books, teachers, etc.), equal treatment required admission of the black plaintiffs into the better schools. This was a narrow argument, as it did not necessarily require ending segregation, just improving the African-American schools. But until the schools were equalized and stayed that way, blacks and whites had to go to the same schools. No court had ordered schools to be integrated on this basis.

Our second argument was that segregation was per se unconstitutional even if the separate schools really were equal.

Our case differed from the other four Brown suits in that we had prevailed in the Delaware courts, while plaintiffs in the South Carolina, Virginia, Kansas, and District of Columbia cases had lost. The Delaware courts had found that the black schools there were inferior and ordered their immediate desegregation. In light of the Plessy decision, however, they declined to rule segregation unconstitutional. The state had appealed the desegregation order to the U.S. Supreme Court. The stakes thus were enormous, and I knew it.

I was 27 years old, had practiced law only since 1949, and was the most junior of the lawyers who argued that day. I did not know it then, but Brown would be the first of more than 40 times that I would argue a civil rights case before the Supreme Court, most coming after I succeeded Thurgood Marshall as director-counsel of the NAACP Legal Defense and Educational Fund (LDF) that had been created by the National Association for the Advancement of Colored People as its tax-exempt litigation arm. Not much later, the LDF spun off to become an independent organization.

It’s almost impossible to imagine, but when I began practicing law in 1949, most African Americans lived in states where restaurants would not serve them, hotels would not admit them, trains and buses required that they sit in sections reserved for blacks only, department stores wouldn’t allow them to try on clothes, labor unions required that they belong to separate locals, employers paid them less to do the most difficult, dirtiest jobs. While in theory black citizens had the right to vote, in practice throughout most of the South they did not, even though the post-Civil War constitutional amendments had abolished slavery, required that the states afford each American equal protection of the laws, and promised that no American would be denied the right to vote “on account of race, color, or previous condition of servitude.”


By the time Brown reached the Supreme Court we all were meticulously prepared. In the course of the state litigation, I studied carefully every aspect of the schools involved and the effects of segregation on the children who attended them. We had studied and analyzed the law and its history so many times that I could recite most of it in my sleep. At the Delaware and other trials we put on extensive evidence about buildings, grounds, equipment, books, teachers, and so forth. Our witnesses were educators, psychologists, and a psychiatrist who testified about how segregation impaired learning by black children. Then Louis Redding and I argued in the state supreme court. We wrote extensive briefs for the U.S. Supreme Court. For days before the Supreme Court arguments we rehearsed before a pretend court of lawyers and law professors. Our colleagues in the other cases engaged in similar preparation. I rehearsed for all my Supreme Court cases, and almost never did I get a question from the actual Supreme Court that had not been asked first by a role-playing justice.

A Supreme Court argument is very different from what is depicted on television or in the popular press. Before the argument, lawyers file written briefs, formal written arguments addressing the issues before the Court. As the lawyers argue the case, the Court has before it those briefs, the opinions of lower courts in the case, and the record of all the testimony and evidence that was before the trial court. Lawyers speak in conversational tones. They inform the Court about constitutional provisions, other laws and their history, precedents, the facts with which a case is concerned, consequences of a decision, and so forth. No shouting, no sound-bites, no arm-waving. It all sounds very rational, and usually it is. Occasionally some lawyers stray from this conventional, restrained format, but usually to their detriment. The justices can be counted on to ask questions—many questions—and to interrupt attorneys’ answers with still more questions.

I wasn’t nervous. I had done everything possible to prepare and thought that I knew everything there was to know as well as everything that might come up. Whether one is nervous is a function not only of the situation, but of individual personality. I don’t become nervous in difficult situations. It’s not a very good analogy, but the one that occurs to me comes out of my experience in World War II. I was on an LST (Landing Ship Tank) that took the first wave onto the beach at Iwo Jima. Perhaps I should have been nervous, but I wasn’t. I had done everything I possibly could have done to prepare.

None of the justices was hostile to our side during the arguments, but they probed relentlessly with questions. There were easily a hundred questions before arguments ended. As usual, the most persistent questioner was Justice Felix Frankfurter, a former law professor. Questions ranged from whether the meaning of equality could change over time to whether the Court should order immediate or gradual desegregation in the event it ruled with us. Since the Delaware plaintiffs had already been admitted to white schools, albeit on grounds of school inequality rather than the illegality of segregation, Louis Redding and I were asked why we sought a ruling on the segregation issue. I gave the obvious answer: segregation might return if the schools were equalized. It would make no sense to hold segregation unconstitutional in the other cases, but not Delaware. (As it turned out, the Court would hold segregation unconstitutional in all the cases, Delaware included.) When the argument ended I couldn’t think of anything I should have said or done that I had failed to do.


Our opponents were led by John W. Davis, the leading Supreme Court lawyer of his time. He had been Democratic Party candidate for president of the United States. He had argued hundreds of cases before the Court. He was head of the most powerful law firm in the United States. He made an excellent argument. Its essence was that the equal protection clause of the 14th Amendment could not have been intended to abolish school segregation. None of the debates in Congress demonstrated such intent. The Congress that adopted the 14th Amendment also appropriated funds to maintain segregated schools in the federally controlled District of Columbia. Some of the Northern states that ratified the amendment had segregated schools. As to legal precedents, Davis argued that the Court had on many occasions accepted the separate-but-equal doctrine. In the 1927 case, Gong Lum v. Rice, the Court upheld the constitutionality of segregated schools in Mississippi. But, of course, Davis had to cope with the fact that constitutional concepts evolve. As one of the justices pointed out, something deemed equal in 1865 might not be so considered in 1952. Davis’s precedents were not precisely on point, and he had a hard time distinguishing recent cases that struck down racial segregation in graduate and professional school education because of the educational value of attending classes with a diverse population.

Davis made one grand rhetorical error. He recalled Aesop’s fable of the dog that, in crossing a stream, dropped a piece of meat in a greedy attempt to seize another, only to learn it was a mere reflection of the now-lost original. Davis admonished us to be content with the equality that existed or soon would exist between black and white schools and not throw it away simply to achieve “prestige.” Thurgood Marshall seized on the allegory and argued forcefully that “prestige” was precisely the issue at stake. Segregation stigmatized and marginalized blacks. Equality required that the state afford them the same prestige it did other citizens.

After the argument we all thought we had won, but weren’t sure that the Court’s decision would be unanimous. As records of the Court’s deliberations now show, all of the justices believed that segregation was unconstitutional. But several were reluctant to make such a ruling because they feared resistance by the South. They did not want to risk the Court’s credibility by issuing a decision that it could not enforce. To deal with this problem, the Court decided to separate the decision on constitutionality of segregation from the question of how to implement such a decision. In 1954 it held segregation unconstitutional. In 1955 it laid down standards by which schools should be desegregated.


Thurgood Marshall got a tip—maybe from the clerk’s office, but no one will ever know—that the cases would be decided on May 17, 1954. Possibly, since it was near the end of the Court’s term, he merely took a chance and went to court that day. Indeed, that was decision day. He called me in the office and I informed other staff members. Usually, whenever we won a big case there would be an office celebration. But Brown was so awesome, we just stood or sat around and said and did little or nothing. Of course, there were many press conferences on that day and those that followed.

The Court had indeed unanimously ruled school segregation unconstitutional. In his written opinion, Chief Justice Earl Warren held that the historical arguments were inconclusive but accepted our view of recent legal precedents requiring the admission of African-American applicants to graduate and professional schools. The Court also emphasized the harmful effects of segregation:

Separation 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 racially integrated school system.
But Brown reached far beyond the public schools. As soon became evident in cases involving other aspects of life, the Court intended to prohibit all state-imposed segregation.

One sub-theme of the oral arguments was whether the South would comply with a court order to desegregate. Some predicted outright resistance and even violence. Indeed, it had been possible that one or more justices would dissent for fear that such an outcome might risk the Court’s institutional standing and credibility. To separate the question of implementation, the Court scheduled a separate argument on the question of how to desegregate. That was decided in 1955 in an opinion often called Brown II. In Brown II, the Court held that hostility to desegregation would not justify delay, but that school districts could take some time to make administrative changes, such as reassigning teachers and students. In a phrase that signaled recognition of these difficulties, the Brown II Court ruled that desegregation must proceed with “all deliberate speed.”

There has been much debate over whether those words allowed opponents to slow the pace of desegregation. I think not. No language in the implementation decision could have overcome the fierce reaction against Brown by those states where laws had required racial segregation. Enforcement resources were meager. All Southern congressmen and senators but three (Lyndon Johnson, Albert Gore Sr., and Estes Kefauver) signed the Congressional Southern Manifesto that denounced the Supreme Court. Eleven Southern states adopted Resolutions of Interposition and Nullification (similar to resolutions they adopted at the beginning of the Civil War). A number of Southern states created State Sovereignty Commissions, government agencies dedicated to fighting desegregation. Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Virginia passed laws requiring that schools be closed should they admit black children. Arkansas repealed its compulsory school attendance law.

Some states commenced legal action against the National Association for the Advancement of Colored People and the NAACP Legal Defense Fund to limit their activities or to prevent them from functioning—a tactic blocked by two important Supreme Court decisions. State bar officials commenced disbarment proceedings against civil rights lawyers in Virginia, Mississippi, Florida, and elsewhere—efforts that were frustrated by vigorous defense. States trying to block desegregation passed Pupil Placement or Pupil Assignment laws requiring that black children go through complex administrative procedures in order to change schools. Some black families who had the courage to seek desegregation were attacked physically, fired from jobs, or denied credit for their farms and businesses, strategies designed to intimidate others.

There were almost no resources to fight these attacks and to seek school desegregation too. During part of the school desegregation struggle, Delaware, Alabama, and Louisiana each had only a single black lawyer, and other Southern states had no more than a handful—the consequence of a near-total ban on blacks obtaining graduate or professional degrees from an accredited institution anywhere in the South until 1950. (Even after Brown, as late as the 1960s, litigation was required to admit blacks to universities in Mississippi, Georgia, Alabama, and South Carolina. The U.S. Department of Justice did not have authority to seek school desegregation until 1964.)


Even so, in time Brown accomplished its ambitious goals. These were not only to end school segregation but also, in the words of Nathan Margold, a former U.S. Attorney who in 1931 advised the NAACP to challenge the underfunding of black schools as a violation of the 14th Amendment’s equal protection clause, to “stir the spirit of revolt” among African Americans. Brown helped inspire the civil rights movement: sit-ins (blacks sitting at whites-only lunch counters, refusing to move until served), Freedom Rides (blacks and whites sitting in forbidden sections of trains and buses with blacks in the front seats reserved for whites), a series of marches led by Martin Luther King Jr.

The courts protected the demonstrators almost uniformly. Public protest worked intimately with legal action to bring about the Civil Rights Act of 1964 and similar laws of the mid-1960s. While Brown did not solve the nation’s racial problems, it was in most respects a great success. Many beneficial social changes can be traced at least in part to Brown. As a result of the Voting Rights Act of 1965, there are 43 (more or less, year to year) black members of Congress. The mayors of many, if not most, large cities are or have been black. Public accommodations throughout the country are equally open to blacks and whites and patronized freely by all. A few years ago I sat in a restaurant in Memphis, Tennessee, and observed an interracial couple holding hands at a nearby table. Before the 1964 Civil Rights Act transformed public accommodations, there was a good chance that this young black man would have been harassed or assaulted.

Equal employment has increasingly become a reality. There no longer exist racially segregated union locals. Fair housing laws are somewhat effective and would be more so if blacks were not limited by lower incomes. There are black CEOs at major American corporations like Time Warner, Xerox, Citibank, Merrill Lynch, and American Express. When I began my legal practice in 1949, there were states with only a single black lawyer, and the black bar was infinitesimally small. In those days nowhere in the South could a black get a graduate or professional degree from an accredited school in the South, with the exception of Howard University in Washington, D.C., and Meharry Medical School in Nashville, Tennessee. In the North, while there was no formal prohibition, opportunities for blacks were limited. There was no American black student in my Columbia Law School class of 1948 and only one in my college class of 1945. Now there are more than 10,000 black law students. Some 17 percent of African Americans hold a college degree.

None of this is to imply that full equality has been achieved. Data on income, wealth, health, and incarceration, to name a few indicators, confirm that in many ways the lives of blacks are not as good as that of whites. Nevertheless, Brown continues to stand for Americans’ determination to live up to the ideals of their Constitution and for the proposition that our Supreme Court can be a catalyst for fundamental change. And, of course, that enormous change has occurred.

Charlie Rose: May 17, 1994 (58:55)

First, a discussion about the Supreme Court's 1954 Brown v. Board of Education decision on its 40th anniversary and that case's impact and what still needs to change with Jack Greenberg, one of the architects of that case, James Traub of the "New York Times", author and journalist Paul Robeson, Jr., and Melba Beals, one of nine students to integrate Little Rock's Central High School. Then, Pennsylvania Governor Robert P. Casey reflects on the heart and liver transplant that saved his life and improvements in the world of medicine. Finally, author V.S. Naipaul talks about his drive to be a writer, cultural identity confusion, and his novel, "A Way in the World".

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