Battle for Equality: New-Deal Discrimination, NAACP, and Brown

1. Battle for Equality:New-Deal Discrimination, NAACP, and Brown Bill of Rights Institute University of New Mexico Albuquerque, NM September 15, 2009 Artemus Ward Dept. of Political Science Northern Illinois University http://polisci.niu.edu/polisci/faculty/ward/ aeward@niu.edu

2. Early Battles for Equality: NAACP • As the inequality of segregated public facilities grew worse, the disadvantages of the black population increased. Civil rights groups fought back, none more prominent than the National Association for the Advancement of Colored People (NAACP) and its affiliate, the Legal Defense Fund (LDF). • The largest civil rights organization in the United States was founded in 1909 for the purpose of lobbying, political education, and legal action to alter the status of African-Americans. It began as a small organization, relying on volunteer attorneys to bring legal challenges to racial segregation. In its first two decades it participated in a number of Supreme Court cases that expanded the rights of African-Americans: • Guinn v. United States (1915)—submitted a legal brief which helped persuade the Court to overturn the use of the “grandfather clause” to disenfranchise black voters. Though originating in Connecticut in 1818, the grandfather clause was used during the Jim Crow era by 6 southern states as a transparently racist attempt to circumvent the 15th Amendment. Grandfather clauses released men who were eligible to vote in 1867 (when the 15th was passed), and their legal progeny, from literacy or property requirements for voting. This would ensure that older white illiterates would remain enfranchised. • Buchanan v. Warley (1917)—successfully challenged residential neighborhood segregation ordinances. • Moore v. Dempsey (1923)—the Court ratified the NAACP’s arguments that federal courts could intervene to protect the procedural rights of defendants who were tried in mob-dominated state proceedings. • Republican President Herbert Hoover’s nomination of John J. Parker to the U.S. Supreme Court (1930)—the NAACP played a pivotal role in defeating the nomination after it discovered that Parker had criticized political participation of African-Americans during the 1920 North Carolina gubernatorial campaign. Nearly two months after his nomination, the Senate rejected him 39-41.

3. Charles Hamilton Houston • The issue of racial discrimination often coalesced around education. After a debate within the African-American community of whether separate school or integrated schools were desirable, in the 1930s the NAACP began litigation to overturn the separate but equal doctrine. • Charles Hamilton Houston was a key figure in this early movement. He attended Harvard Law School and became the first African-American member of the Harvard Law Review in 1921. In 1924 he began teaching at Howard University and was Dean of the Law School from 1929 to 1935. As Dean, Houston transformed the law school from a traditional part-time operation into a full-time school with a focus on civil rights law. • Houston inspired many of his students, including Thurgood Marshall, who graduated from Howard Law School in 1933, to devote substantial parts of their careers to civil rights law. • In 1935 Houston joined the staff of the NAACP in New York as its first full-time counsel. He advocated a unified approach to resolving the disparate problems associated with discrimination, segregation, and racial violence. Charles Hamilton Houston Thurgood Marshall

4. Missouri ex rel. Gaines v. Canada (1938) • Lloyd Gaines, a Missouri resident, had graduated from the all-black Lincoln University and applied for admission to the University of Missouri’s law school. He was denied admission because of his race. Missouri did not have a law school for its black citizens, so the state offered to pay out-of-state tuition to send qualified black students to law school in neighboring states that did not have segregationist policies. • By a vote of 7-2, the Supreme Court concluded that the Missouri plan did not meet the obligations imposed by the equal protection clause. • In response, the state moved to establish a law school for blacks at Lincoln. • Though only a small victory for Charles Hamilton Houston and the NAACP, it demonstrated that the Supreme Court would look closely at racial segregation laws. Lloyd Gaines

5. Shelley v. Kraemer (1948) • The Shelleys bought a house and moved to a nearly all-white suburban neighborhood of St. Louis. Local property owners (their neighbors) brought a divestiture suit against them for violating a restrictive covenant that prohibited local property owners from selling or renting their properties to non-whites. The Missouri Supreme Court upheld the covenant and the Shelleys, with the aid of Thurgood Marshall and the NAACP LDF, appealed to the U.S. Supreme Court. • Marshall provided the Court with a massive collection of social data and argued that the states were not simply neutrally enforcing private contracts but were instead adopting policies of racial residential segregation in the supposed interest of protecting property values, suppressing crime, and promoting racial purity. • Chief Justice Fred Vinson held for a unanimous 6-0 Court that while the agreement was among private individuals, its enforcement was done by state governments. “We hold that in granting judicial enforcement of the restrictive agreements in these cases, the States have denied petitioners the equal protection of the laws…. We have noted that freedom from discrimination by the States in the enjoyment of property rights was among the basic objectives sought to be effectuated by the framers of the 14th amendment…. Whatever else the framers sought to achieve, it is clear that the mater of primary concern was the establishment of equality in the enjoyment of basic civil and political rights and the preservation of those rights from discriminatory action on the part of the States based on considerations of race or color.”

6. Sweatt v. Painter (1950) • The only law school in Texas (University of Texas Law School) denied Sweatt (a letter carrier, intent on becoming a lawyer) admission because he was black. With the help of Thurgood Marshall and the LDF, Sweatt brought suit seeking admission. The state hastily constructed a law school in Austin for blacks but Sweatt refused to attend claiming it was inferior. In the meantime, Texas State University opened a law school for Negroes in Houston which had many more resources than the hastily constructed school in Austin. The Texas courts concluded that the new law school was “substantially equivalent.” • Chief Justice Vinson wrote for the 9-0 Court that the hastily constructed law school was inferior in every way to the existing school: books, accreditation, faculty, etc. He also explained how even the school in Houston was inferior: it lacked the prestige of the original, it excluded whites (85% of the Texas population) thereby eliminating an important learning aspect to legal professionals—interactions with all members of the community, especially those who will be judges, lawyers, jurors, etc. Heman Marion Sweatt registering for classes in the University of Texas School of Law, Sept. 19, 1950.

7. McLaurin v. Oklahoma State Regents (1950) • The same day as Sweatt, the Court decided McLaurin v. Oklahoma State Regents (1950) which involved a black student who was admitted to a doctoral program in education at a white-only school but was then segregated in the cafeteria, library, and classroom. The Court ruled in his favor: “appellant is handicapped in his pursuit of effective graduate instruction. Such restrictions impair and inhibit his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession.” • Sweatt and Mclaurin were important victories because the Court suggested that the separate but equal standard was virtually unattainable in higher education. Could the same logic be applied to all education and indeed all walks of life? • In Henderson v. United States (1950) the U.S. government joined African-American plaintiffs in convincing the U.S. Supreme Court that segregation on interstate railroad dining cars was unconstitutional.

8. Brown v. Board of Education I (1954):The Facts • The Browns wanted their daughter to attend the local white-only school in Topeka, KS. The black school was far from the Brown’s home, it was what they considered a dangerous journey, and was in their view inferior. • They lost in the lower courts under the Plessy doctrine. Third-grader Linda Brown (L) and her sister Terri walk through the railroad switchyard on their one-mile journey to the black elementary school.

9. From Vinson to Warren • In 1952, Brown was first heard by the Supreme Court and the justices were split 5-4 with Vinson, Clark, Reed, and Jackson probable dissenters if the Court were to overturn Plessy. • Justice Felix Frankfurter, a former Harvard Law Professor, was so intellectually condescending to Vinson that during one of the Justices' private conferences, Vinson rose from his seat and nearly punched Frankfurter in the nose. Frankfurter later said that Vinson “found it ‘Hard to get away’ from the contemporary view by the framers that the 14th amend did not prohibit segregation—for 90 years segregated schools in the city of Washington.” • The justices knew a divisive decision in the case would be political anathema to the election campaign of 1952, so they decided to schedule the case for re-argument in 1953. But shortly before the Term began, Chief Justice Vinson unexpectedly died of a heart attack. Frankfurter declared on the train back from the funeral, "This is the first indication I have ever had that there is a God.“ • Who would be the new Chief? During the 1952 GOP presidential-nomination campaign, Gen. Dwight Eisenhower made a deal with California Governor Earl Warren (who had run as Thomas Dewey’s VP candidate and narrowly lost to Harry Truman in 1948). Warren would support Ike for President if Ike selected him for the first available seat on the Supreme Court. Ike agreed. Following Vinson’s death, Warren got the appointment. Felix Frankfurter Fred Vinson

10. Chief Justice Earl Warren delivered the opinion of the Court • Warren explained that the evidence on the intentions of the framers of the 14th Amendment was inconclusive. There were varying views of what the Amendment meant at the time and furthermore public education for former slaves in the South was disorganized if not non-existent. • Warren cited a number of social science/psychology studies for the following point: “To separate [black children] 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 to be undone.” • “In the field of public education, separate but equal has no place. Separate educational facilities are inherently unequal.” • The final paragraph of Warren’s unanimous decision asked the attorneys to brief issues regarding implementation and return for oral argument the following year.

11. Brown v. Board of Education II (1955) • The NAACP argued that the Court put an immediate end to racial segregation while attorneys for the southern states argued for gradual implementation. The Court also needed to determine who would be responsible for overseeing implementation. • Warren explained that local school authorities will face various problems with implementation. The federal district courts that first heard these cases will be the best place, based on their proximity, for appraising the local school board’s good faith at implementation. • These courts should exercise traditional “equity power”—balancing both public and private needs. Mere disagreement with integration in not valid. • “To that end the courts may consider problems related to administration, arising from physical conditions of the school plant, the school transportation system, personnel, revision of school districts and attendance areas…on a nonracial basis” and revision of local laws necessary toward these ends. • This is a “transition period.” Public schools should admit children of a racially nondiscriminatory basis “with all deliberate speed.”

12. “All Deliberate Speed” • When Warren announced the remedy in Brown II in 1955, he utilized an equitable conception that originated years earlier with Oliver Wendell Holmes, Jr.: "with all deliberate speed.“ Where did this controversial phrase come from? • In a draft of the decree prepared by Justice Frankfurter on 8 April 1955, which Warren subsequently adopted, Frankfurter used the phrase "with all deliberate speed" to replace "forthwith," the word proposed by National Association for the Advancement of Colored People (NAACP) lawyers to achieve an accelerated desegregation timetable. Frankfurter wanted to anchor the decree in an established doctrine associated with the revered Holmes, but his endorsement of "all deliberate speed" sought to advance a consensus held by the entire Court. Each justice thought that the decree should provide for flexible enforcement, should appeal to established principles, and should suggest some basic ground rules for judges of the lower courts, who would implement the Brown decision. • Shortly after he retired from the Court, Warren acknowledged that "all deliberate speed" was chosen as a benchmark because "there were so many blocks preventing an immediate solution of the thing in reality that the best we could look for would be a progression of action." • When it became clear, however, that critics of desegregation were using the doctrine to delay and avoid compliance with Brown, the Court began to express reservations about the phrase. In 1964, less than a decade after "all deliberate speed" was prescribed, Justice Hugo Black declared in a desegregation opinion that "[t]he time for mere 'deliberate speed' has run out."

13. Civil Rights Movement • Building on Sweatt and McLaurin, Warren’s opinion in Brown was the culmination of a major shift in the way that the Court determined equality. Rather than focusing on physical facilities and tangible items such as books and faculty, the Court looked at intangible and psychological factors. • Did the Court overturn Plessy? Not explicitly. But it did effectively gut it by outlawing segregation in the field of public education. • It is important, however, to understand that Brown is an example of how the Supreme Court cannot affect social change on its own. Instead, Brown should be understood as merely one step in the larger civil rights movement that involved protests, marches, legislation, and litigation. • The Civil Rights Act of 1957 was the first civil rights law passed by Congress since Reconstruction. It was designed to secure the right to vote for blacks. • The Civil Rights Act of 1964 was designed to abolish racial discrimination throughout American life, including in public accommodations. • Why the shift on the Court and in federal policy more generally? There may be a foreign policy-based explanation. During the height of the Cold War, U.S. government officials believed that official racism at home was damaging the image of the U.S. abroad and giving the Soviet Union ammunition in the worldwide struggle for dominance. Indeed, this was one argument the federal government made in its legal brief to the Court in Brown. • Still, for all the gains achieved by the civil rights movement, racial inequality persisted throughout the 20th century. Why?

14. Legacy: New Deal • According to a recent major study, at the end of the 20th Century, “black families [possessed]…only 10 cents for every dollar of wealth held by white families.” • How can whites be ten times wealthier than blacks after 140 years since the abolition of slavery and 50 years since the end of legalized segregation? • The racially discriminatory policies of the New Deal political regime directly caused the racial inequality that persists in America. • Seventy years of public welfare policy in the form of the New Deal, WWII-era reforms, the Fair Deal, and the Great Society—widely thought to benefit blacks—was deliberately discriminatory in the way it was written and implemented. • White southerners headed powerful committees in Congress and were able to influence social welfare legislation that reinforced rather than challenged segregations. • Social Security Act of 1935—excluded farm laborers and domestic workers. Nationally, about 40% of whites and fully 65% of blacks fell outside the reach of the program; the figures for blacks in the south ranged from 70-80%, depending on the region. The NAACP called the Social Security Act “a sieve with holes just big enough for the majority of Negroes to fall through.” • Fair Labor Standards Act of 1938—set minimum wage and maximum hours, excluding farm laborers and domestic workers. • Local administration of federal programs—federal programs like the Works Progress Administration and the Federal Emergency Relief Administration were administered in the south by local whites deeply hostile to blacks. The result was that black southerners received little of the $2 billion in federal money injected into this most needy section of the country. Alabama Senator Hugo Black wrote agricultural and domestic workers out of 1935’s National Labor Relations Act, leaving a majority of’ the south’s workers unable to organize unions, engage in collective bargaining, and take part in strikes.

15. Legacy: GI Bill • The GI Bill of Rights—”Servicemen’s Readjustment Act of 1944” was the most wide-ranging set of social benefits ever offered by the federal government in a single, comprehensive initiative. Designed to reintegrate millions of returning soldiers, the GI Bill reached 8 out of 10 men born in the 1920s. From 1944 to 1971, federal spending for former soldiers totaled more than $95 billion. With the help of the GI Bill, millions attended college, bought homes with federally guaranteed low-interest mortgages, started business ventures with small-business loans, and found jobs via the U.S. Employment Service. Through these opportunities, and by advancing momentum toward suburban living, mass consumption, and the creation of wealth and economic security, this legislation created middle-class America. • Although race-neutral on its face, the GI Bill—like the New-Deal social-welfare legislation that preceded it—was discriminatory by design. The program was administered locally, with predictable effects in the south where legalized segregation in higher education limited the options for blacks. The gap in educational attainment between blacks and whites widened, rather than closed, after 1945. • Of perhaps greater lasting significance, black veterans were systematically discriminated against by the lending institutions created by the bill, which used redlining, local control, and overt discrimination to make it very difficult, often impossible, for blacks to qualify for mortgages. The consequences of denying black veterans access to cheap mortgages were profound. Missed chances at home ownership compound over time. By 1984, when GI Bill mortgages had mostly matured, the median white American household had a net worth of $39,135; the comparable figure for black households was $3,397, which translates to 9% of white holdings. 7 of 10 white Americans owned their own home, whereas only 4 out of 10 black families did. • Despite all good intentions, there was no greater instrument for widening an already huge racial gap in postwar America than the GI Bill. Rep. John Rankin of Mississippi chaired the House Committee on World War Veteran’s Legislation, which drafted the GI Bill.

16. Resistance, Backlash, and Resegregation • Brown did not immediately change segregation in the South. It was fiercely resisted. • In 1954, .001% of black students attended schools with whites in southern and border states. In 1955 there was a slight upward trend to .12%. Yet there were no significant changes until the 1970s: 1965 (6%); 1966 (17%); 1968 (32%); 1970 (86%); 1972 (91%). • These changes were largely due to busing programs. However, their unpopularity led to a backlash and ultimately a series of Supreme Court decisions in the late 1980s and early 1990s such as Board of Education of Oklahoma City Public Schools v. Dowell (1991) which freed local school boards from federal-court supervision as long as they were not actively segregating their students. Hence, if segregation occurred as a result of private individual choices (de facto segregation), and was not the result of public policy (de jure segregation), then it is allowable. • In Freeman v. Pitts (1992) the Court held that “Where resegregation is a product not of state action, but of private choices, it does not have constitutional implications. It is beyond the authority and beyond the practical ability of the federal courts to try to counteract these kinds of continuous and massive demographic shifts. To attempt such results would require ongoing and never-ending supervision by the courts of school districts simply because they were once de jure segregated. Residential housing choices, and their attendant effects on the racial composition of schools, present and ever-changing patter, on difficult to address through judicial remedies.” • The result has been a trend back to resegregation with most white students now having little contact with minority students in many areas of the country. The percentages of black students attending schools with whites in southern and border states has reverted back to 1968 levels. The most segregated states for black students are New York and Illinois. For Latino students it is New York and California. 75% of black and Latino students nationwide attend majority minority schools. In 2002-2003, the Chicago suburb of Highland Park/Deerfield spent $17,291 and New Tier spent $14,909 per High School pupil. In contrast, the Chicago Public Schools (87% black or Hispanic and 85% poor) spent only $8,482 per pupil.

17. Conclusion • The civil rights movement of the 20th Century was only partially successful at ending racial discrimination. • The NAACP’s litigation strategy, which included the landmark victory in Brown v. Board of Education (1954) was only as successful as the larger civil rights movement more generally. • While legal victories in courts and legislatures provided positive gains for racial minorities, it was ultimately the deliberately discriminatory social welfare policy that dealt the greatest blow to racial equality in the 20th Century. • In the end, as American became more conservative at the close of the century, Supreme Court decisions sustained de facto discrimination in education.

18. References • Douglas, William O. 1980. The Court Years, 1939-1975: The Autobiography of William O. Douglas. New York, NY: Random House. • Dudziak, Mary L. 2002. Cold Ward Civil Rights: Race and Image of American Democracy. Princeton, NJ: Princeton University Press. • Katznelson, Ira. 2005. When Affirmative Action was White: An Untold History of Racial Inequality in Twentieth Century America. New York, NY: Norton. • Kozol, Jonathan. 2005. The Shame of the Nation: The Restoration of Apartheid Schooling in America. New York, NY: Three Rivers Press. • Rosenberg, Gerald N. 1991. The Hollow Hope: Can Courts Bring About Social Change? Chicago, IL: University of Chicago Press.