Thurgood Marshall (35 page)

The South Carolina NAACP had recently lost a case in which they asked for new buses for black students. That setback prompted Harold Boulware, the local attorney working on the case, to call Marshall. Boulware
promised that if the national office would lend its support, the local NAACP would find Marshall plaintiffs willing to stand up for complete school integration.

It took eight months, but the South Carolina NAACP produced twenty parents willing to have their childrens’ names attached to a suit. “I was dispatched to go to South Carolina, and I met with all the plaintiffs,” said Robert Carter. “I went down to be certain that the people in Clarendon County understood precisely what we were talking about. Because at that point people were being threatened. They had to realize that there was a possibility of them losing jobs, even threats of physical violence.” But only one parent decided to back away after Carter’s presentation.
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The NAACP filed suit, and the trial was set to begin in May 1951 in Charleston, South Carolina. Marshall and Carter arrived by train from New York with Ken Clark. On the train Clark and Marshall had their first long conversation about school segregation. Marshall was initially his usual glib self, telling Clark vivid stories filled with colorful characters about his trips to southern courtrooms. However, as they traveled deeper into the South and day turned to night, Clark remembered watching Marshall become quieter, spending most of his time staring out the window. “What’s the matter?” Clark asked him. Looking up, Marshall said, “I’m tired, tired of trying to save the white man’s soul.”
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Once they arrived in South Carolina, Marshall showed no sign of the burden he had displayed to Clark. A determined Marshall began preparing the NAACP brief with Carter, Boulware, Spot Robinson, and a Birmingham lawyer, Arthur Shores. Clark meanwhile started conducting psychological testing with his dolls on black children attending Clarendon County’s segregated schools. Marshall had little time to pay attention to Clark’s work, but he had grown fond of the man. The lawyer was worried that Clark might be attacked by white thugs who didn’t like seeing a black university professor in a suit. However, Marshall was not willing to have one of his lawyers stop working on the case to accompany the young psychologist. To ease his mind, Marshall gave Clark a fifty-dollar bill. He told Clark that if any white men bothered him, to hold out the money.
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He also got the local NAACP to assign some men to accompany Clark.

Clark never had to use the fifty-dollar bill, but a white local school superintendent tried to stop his testing. When he first saw the psychologist, the white superintendent told the local NAACP official with Clark, “You fuck, I told you I didn’t want you to come back here to create trouble. I don’t want to have to harm you.”

The threats did not stop Clark, however. He tested sixteen black children between the ages of five and nine and, by using black and white dolls, asked them to give their views of black and white people. The only difference between the dolls was their skin color. Ten of the sixteen children said they preferred the white doll. Eleven of the children referred to the black doll as “bad,” while nine said the white doll was “nice.” Seven of the children pointed to the white doll when they were asked to choose the doll most like themselves.

Marshall and the lawyers, meanwhile, were busy collecting information on the disparities between the state’s white schools and its threadbare black schools. Their initial brief was based solely on the existing inequality between the schools.

In both the teachers’ salary case and the white primary case it was Judge J. Waties Waring who had ruled in Marshall’s favor. In fact, Waring had for years been privately urging Marshall to directly challenge the constitutionality of school segregation. “The NAACP legal staff apparently was quite hesitant about bringing a formal attack on legal segregation in schools,” Waring recalled later. The judge had no such fears. While Marshall was working on the brief, Waring invited Marshall to dinner at his house—at a time when “decent” white people never invited Negroes into their homes as social equals—and told him it was time to make law by making history.

But Marshall was still hesitant. The judge insisted that Marshall rewrite his suit, bringing an even stronger, more direct challenge to school segregation. “He looked rather astonished, but said, ‘Yes,’ ” Waring recounted later.
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Marshall had to rewrite the brief twice before Waring was satisfied that the NAACP was truly challenging the constitutionality of segregation. The trial began on May 28, 1951, before a three-judge federal panel. Waring was joined on the bench by George Timmerman and Federal Circuit Court Judge John Parker, the senior judge for the Fourth Circuit, who presided.

When the trial opened, over five hundred people tried to crowd into the federal courthouse in Charleston, which could seat only seventy-five. News reports said two women fainted in the ninety-degree heat while trying to get into the court. “The plaintiffs and all the spectators in that South Carolina case were rural people,” recalled Alice Stovall, Marshall’s secretary. She had gone to South Carolina to help the lawyers prepare for
court and found herself caught up in an exhibition of excitement and passion she had not expected.

“They came in their jalopy cars and their overalls, and they had this little section of the court where they could go,” Stovall said. “All they wanted to do—if they could—just touch him, just touch him,
Lawyer Marshall
, as if he were a god. These were poor people who had come miles to be there.”

Marshall and Bob Carter were awed too. “If anyone ever tells you that colored people want segregation, remind him of these people,” they wrote a few days later in a letter to the
Afro-American
.
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At the start of the case, South Carolina’s lawyer, Robert McC. Figg, a tall, studious man in a white suit, gave the judges and the NAACP a surprise by conceding that schools for black children in South Carolina were not equal to those for white children. Figg said the state was prepared to upgrade the black schools. He asked the court to give South Carolina a “reasonable period of time” to make the changes before considering the NAACP’s case.

Judge Waring immediately saw that Marshall was unprepared for Figg’s admission of guilt. Marshall had prepared a great number of witnesses and evidence to prove the state had inadequate facilities. Now that evidence was irrelevant.
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The three judges accepted the state’s concession that schools for black children were inadequate. The chief judge was about to bring the session to a close without protest from Marshall when Waring spoke up. He said there was still a major issue in Marshall’s brief for the court to consider—the newly inserted question of whether segregation of schoolchildren was unconstitutional. Judge Waring, speaking without any hint of his private talks with Marshall, added: “This court has got to face the issue of segregation, per se.”
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Buoyed by Waring’s remarks, Marshall began a parade of expert witnesses, including social scientists and educators—college professors from Columbia and Harvard—who testified about the effects of segregation on black children. “Legal segregation hampers the mental, emotional, physical and financial development of colored children and aggravates the very prejudices from which it arises,” said Dr. David Krech, a social psychologist from Harvard. “Damage if continued for ten or twelve years will be permanent.”
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As Marshall and his witnesses tried to make their case, their voices
were often drowned out by the sound of jackhammers. State workers were repairing a street outside the courthouse. Whenever Marshall got to his feet the jackhammers “coincidentally” began to pound into rock and concrete. Eventually Judge Waring asked Judge Parker to order the workers to halt: “The administration of justice is more important than the paving of a street.” Parker had the workers quit.
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Marshall’s star witness was Ken Clark, the mild-mannered psychology professor. In two days of studying black schoolchildren in South Carolina, Clark told the court, he “found that the majority of black children tended to reject themselves and their color and accept whites as desirable.… ”
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Clark testified that school segregation was distorting the minds of black youngsters to the point of making them self-hating. “The conclusion which I was forced to reach was that these children in Clarendon County, like other human beings who are subjected to an obviously inferior status in the society in which they live, have been definitely harmed in the development of their personalities; that the signs of instability in their personalities are clear, and I think that every psychologist would accept and interpret these signs as such.” Clark concluded that the damage was “likely to endure as long as the conditions of segregation exist.”
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The state’s attorney responded to Clark’s testimony with the smug comment that schools were responsible for education, not personality development. The real issue, Figg told the judges, was that South Carolina was willing to equalize spending. If the state was forced to integrate its schools, violence was certain to break out and South Carolina would be forced to stop offering public education.

A month after the trial, the judges ruled with Figg and against the NAACP. Chief Judge Parker and Judge Timmerman said the 1896
Plessy
decision established the idea of separate but equal as a legal, constitutional concept, and the state was within its right to separate black and white children. Parker and Timmerman disregarded Clark’s testimony. In their written opinion they said judges had no “right to read their ideas of sociology into the constitution.”
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Judge Waring, however, cast a dissenting vote. He said the concept of separate but equal violated the Constitution. “And no excuse can be made to deny [black children] these rights which are theirs under the constitution.” He stated that “beyond a doubt the evils of segregation and color prejudice come from early training.” And he added that being
separated from other young Americans because of skin color had “an evil and ineradicable effect upon the mental processes of our young.”
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Despite Waring’s dissent the court gave the state six months to equalize the black schools. In March of 1952 the panel reconvened. Judge Waring had retired, and this new court was unanimous in finding that the state had met its pledge. At the end of the proceedings, above the noise of the crowd leaving the courtroom, one of the state’s lawyers shouted at Marshall, “If you ever show your black ass in Clarendon County again you’ll be dead.”
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Marshall, walking with Carter and his colleagues, glared at the man but did not respond. It was not his way. His mind was already set on sending an appeal to the Supreme Court. Judge Waring offered to help with the appeal, but he was also busy stabbing Marshall in the back. Waring was a close friend of Walter White, and he sent letters to White and NAACP board members in which he criticized Marshall’s legal staff as “not sufficiently equipped” to handle the appeal.

Waring proposed that the NAACP hire a special counsel to present the case before the Supreme Court. In a letter to Judge Hubert Delaney, a leader of the NAACP board, Waring criticized Marshall as too cautious. The South Carolina case, Waring wrote, “has got to be won by a determined fight by determined lawyers calling for a reversal [of
Plessy
] and not apologizing for appealing.”
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All the while, Marshall was unaware that Waring had little respect for his legal ability.

Criticisms of Marshall weren’t just coming from those who wanted a more forceful attack on segregation.

Marjorie McKenzie, a
Pittsburgh Courier
columnist, wrote after the South Carolina decision that Marshall was leading the NAACP over the edge of a high cliff with his strategy. She said the association’s victories in
Sipuel
and
Sweatt
had put black Americans on a sure path to getting better schools by forcing states to equalize facilities. By abandoning that approach, Marshall was risking what had been won in those fights.
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McKenzie’s criticism opened the door for others who wanted to take shots at the NAACP’s special counsel. No one went public, but she got calls and letters from people who supported her, especially black lawyers. “He was not eager for the little lawyers around the country who brought these cases in to follow through in front of the Supreme Court,” she later told an interviewer. “A lot of black lawyers around the country came to feel that Thurgood Marshall was stealing the show.”
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Marshall did keep a tight grip on other lawyers working on NAACP
cases. He wanted to coordinate any legal arguments made under the NAACP name. His goal was to avoid segregationist victories that could be cited in later cases to upset NAACP attempts to uproot the separate-but-equal doctrine.

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As Waring and McKenzie were sparring with Marshall, the NAACP legal fight against segregated schools continued. Just two days after the federal appeals court in South Carolina had ruled against the NAACP, a second major school segregation case began in Topeka, Kansas. Marshall sent the scholarly Bob Carter and an eager young white assistant, Jack Greenberg, to try the case. The local attorneys were Elisha Scott and his two sons, John and Charles, longtime lawyers for the Topeka NAACP.

The Topeka case fit with Marshall’s grand design. He picked it out of the several potential school segregation cases which NAACP branches had sent to his New York office. Topeka was a uniquely good fit. “The schools in Topeka are physically substantially equal and in some cases the Negro schools are even better than the white schools,” an NAACP official wrote in a memo to NAACP headquarters.
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Unlike in other states, where the inferior facilities in the black schools might become the main issue and allow the court to order equalization, the case in Kansas would force the court to confront the state’s policy of segregating black students.