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Cover Story

May 15, 2014

Brown vs. Board of Education Turns 60

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‘Tis a pity that Linda Brown isn’t as celebrated as Rosa Parks in the annals of the Civil Rights Movement because the little Topeka, Kansas third grader at the center of public school integration is as much a symbolic heroine as the Montgomery, Alabama seamstress who refused to move to the back of the bus.

Linda was the first named plaintiff in the landmark Brown vs. Board of Education case in which the Supreme Court in 1954 declared state laws establishing separate public schools for Black and White students unconstitutional.

At least in the area of public education, this decision overturned the Supreme Court’s appalling Plessy vs. Ferguson ruling of 1896 that upheld the constitutionality of state laws requiring racial segregation in public facilities under the doctrine of “separate but equal.”

But in Brown vs. Board of Education, the Supreme Court said that “separate educational facilities are inherently unequal.” As a result, legally mandated racial segregation was ruled a violation of the Equal Protection clause of the Fourteenth Amendment to the Constitution and the ruling paved the way for the eventual integration of all public facilities and institutions in America.

In addition, the case made a hero of Thurgood Marshall, the NACCP Legal Defense Fund lawyer who argued it before the Supreme Court and who went on to become the Court’s first Black justice.

While the ruling was obviously a major victory of the Civil Rights Movement and changed the way of life in America, things didn’t exactly happen the way historical legend paints it.

Whenever Brown vs. Board of Education is referenced, for instance, it’s almost always accompanied by the phrase “the Supreme Court’s unanimous decision,” when in fact, this ruling almost wasn’t reached by the Supreme Court at all; the vote was far from unanimous – it took some arm twisting to make all the justices of the Court put on a united front and cast an official 9-0 “for the record” vote; and had it not been for two random acts of nature (or God), things might have turned out quite differently.

And part of the reason it all happened anyway was because of a little White lady who got pissed off about some light bulbs.

At least, all that is the supposition of Douglas O. Linder, professor of law at the University of Missouri-Kansas City School of Law, who wrote an account of the Brown vs. Board of Education case for the school’s website called Famous Trials (of history).

In the Beginning, Separate and Not Equal
According to Linder, Kansas was originally an enlightened state that in 1876 required that all of its public schools be open to all students regardless of race, but backed away from that stance three years later when the legislature authorized school boards in Kansas cities with populations over 15,000 to establish separate schools for Black and White elementary and junior high students.

Topeka did that and its segregation policy was upheld by the Kansas Supreme Court in 1903, just seven years after the Plessy vs. Ferguson “separate but equal” ruling.

Forty-five years later in 1948, 60 miles away from Topeka in the Kansas City suburb of Merriam, Kansas, a little 30-year-old Jewish lady named Esther Brown (not the one in Brown vs. Board) was disheartened to hear her Black maid tell her about the local Black school, Walker Elementary.

It was an 88-year-old, two-room facility without indoor plumbing, cafeteria or even a principal. In the meantime, the area’s white students were getting ready to move into the South Park School, a brand spanking new brick building constructed thanks to a bond issue pushed through by the local school board.

The little White lady, Esther Brown, complained about the unfairness to the all-White school board, which agreed to make minimal changes at the dilapidated Black school, such as putting in new light bulbs. Esther went wtf! and began organizing Black and White parents to protest the school board. When it still did nothing, she enlisted a Black Topeka attorney, Elisha Scott, to file suit against the South Park School District.

That suit led to victory in the Kansas Supreme Court in 1949, when Webb vs. School District No. 90 held that Blacks had the right to attend the new, previously all-White South Park School…basically because although the two schools were separate, they most assuredly were not equal. That ruling would later become very important in Brown vs. Board of Education.

The 1951 Topeka Trial
After that success, Esther threw her support behind the Topeka NAACP’s already established efforts to integrate the city’s elementary schools through petition to the school board, which the board ignored.

Legal action was needed and the local NAACP, along with lawyers from New York’s NAACP Legal Defense Fund, recruited 13 willing Black parents of 20 Topeka elementary school children to be plaintiffs in the suit against the school board.

The first plaintiff was Oliver Brown, an assistant minister with an eight-year-old daughter named Linda, who was a third-grader at all-Black Monroe Elementary School at the time. The case went to trial in 1951 – Esther Brown arranged accommodations for all the lawyers – and revealed that though there was a school for Whites six blocks away from her home, Linda had to walk seven blocks to even catch the bus to go to the Black school, which was 21 blocks from where she lived.

That inconvenience didn’t cut much ice with trial judge Walter Huxman, who said parents always want their kids at schools closer to home. But he was considerate of testimony from experts who testified about the negative effects segregation had on learning.

Kansas University psychology professor Louisa Holt testified that the policy of segregation “is inevitably interpreted both by White people and Negroes as denoting the inferiority of the Negro group.” She said that the internalized “sense of inferiority” of Black students affects their motivation, as they fatalistically assume that any efforts to prove they were not inferior to Whites “would be doomed to failure.”

However, testimony also revealed that basically, the separate White and Black schools in Topeka were equal: the board staffed and supplied Black and White schools on an equal basis; students at both sets of schools had identical curriculum; the physical facilities were basically the same.

In fact, the Black schools might have offered a better educational opportunity because the class sizes were smaller – 25 Black kindergarteners compared to 42 White kindergarteners in a class, for instance. The salary, training, and workload for Black and White teachers were the same.

The three-judge panel unanimously decided that since all things seemed equal, and legal segregation was still the law of the land (Plessy vs. Ferguson had not been overturned), the Topeka school board should win the case.

But Judge Huxman did conclude: “Segregation 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 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.”

Heading For The Supreme Court

In a way, that was a great decision because now there was a model case for the NAACP to appeal to the Supreme Court.

As Linder wrote: “The Brown decision was especially critical to the NAACP’s challenge, because Judge Huxman’s finding about the psychological impact of segregation had to be accepted unless it was found to be clearly erroneous, as would his finding that the facilities, quality of staff, and quality of Black and White instruction were equal.

“The Brown decision boxed the Supreme Court in. It left the Court little option but to either uphold the separate but equal education in Topeka, relying on the Plessy precedent, or to overrule Plessy and hold that segregated education was inherently unequal.”  So the issue became whether separate was equal.

The Brown v. Board of Education case that appeared before the Supreme Court on December 9, 1952 was actually the name used for five different cases that had been working their way through the court system, known collectively as the School Segregation cases. In addition to Brown in Kansas, the cases involved Delaware, Virginia, South Carolina, and the District of Columbia.

Brown was the first case to be argued, with Atty. Robert Carter telling the justices that the Topeka court’s findings in Brown meant the case presented a challenge to the constitutionality of segregation itself.  Thurgood Marshall next argued that the South Carolina case’s policy of segregation violated equal protection principles.

The NAACP lawyers argued that schools and other public facilities were separate, but hardly equal.  They presented social science data showing that segregated schools harmed Black children because segregation imposed a distorted sense of social reality on children of both races; it perpetuated stereotypes, increased distrust and led to violent outbreaks of racial tension.

Arguments ended on December 11, 1952 and the case went to the justices, who were a mixed bag and badly split.  One, Stanley Reed, was a proclaimed segregationist.  Two others, Robert Jackson, and the Chief Justice himself Fred Vinson, were hardly integrationists.  A couple of the justices were wafflers, and there were only four clear votes to end policies of segregation.  So there was no majority either way and a good chance that “separate but equal” could be upheld by a single vote.

Before a deciding vote was taken, however, one of the wafflers, Justice Felix Frankfurter, suggested that the entire case be kicked back and re-argued in the Supreme Court’s next session.  He suggested arguments along the lines of whether the 14th Amendment of 1868, which has an Equal Protection clause requiring each state to provide equal protection under the law to all people within its jurisdiction, prohibited the operation of separate schools for Black and Whites, and whether it gave the Supreme Court the power to abolish segregation.

The justices agreed and the re-argument was scheduled for October 1953.  That’s when fate stepped in.

Arm Twisting For Unanimity

In September 1953, probable Brown dissenter Chief Justice Vinson died of a heart attack and was replaced by Earl Warren, who came in as Chief Justice and vigorously wanted to end public segregation.  Now there were five clear votes on the Court in favor of Brown – a majority – so it really didn’t matter what was said during the re-argument that was held in October 1953.

However, Warren knew a 5-4 majority vote wasn’t good enough to overcome massive Southern resistance to a decision by a splintered Court, so he worked for months before the decision was handed down to arrive at a unanimous opinion to show America how strongly the Court felt on the issue.  But it wasn’t easy.

Instead of pushing for an immediate vote, Warren lobbied all the justices first.  He told them simply that the only reason to sustain segregation was if one held an honest and personal belief that Black people are inferior and he told them he believed that segregation violated the Constitution.

Former waffler Frankfurter quickly came over to the Brown side, as did another justice, giving Brown a 7-2 majority.  That left only justices Robert Jackson and Stanley Reed to be swayed.

Jackson’s stance was best summed up in papers he had written in which he concluded that while he personally believed “segregation elsewhere had outlived whatever justification it may have had,” it was an important social practice in the South, and Northerners on the Court should be sensitive to the conditions that brought segregation to the South.

In the second twist of fate in the Brown case, Robert Jackson also had a heart attack, on March 30, 1954.  Chief Justice Warren visited him several times in the hospital and somehow got him to agree to go along with Brown.  Jackson died in October 1954, five months after the Brown decision was announced.  He never spoke much about the case and no one is sure what Warren said to convince him.

But once Jackson’s vote was in the bag for an 8-0 majority, Warren went to Justice Reed, who was trying to write a dissent to the majority opinion and said, “Stanley, you’re all by yourself now. Eight of us are going to find segregation unconstitutional. It would be a terrible thing for this country for there to be a dissent on this question. You’ve got to decide it that’s really what’s best.”

Reed never agreed with the Brown decision, but shoe-boxed like he was by Earl Warren and not wanting the spotlight of the world to shine on him as the lone dissenter – which would have put him in a Donald Sterling-like position – Reed agreed to go along.

On May 17, 1954, the United States Supreme Court issued a unanimous ruling holding that “in the field of public education, the doctrine of ‘separate but equal’ has no place.”

And Linda Brown’s two younger siblings were able to attend the integrated public elementary school just six blocks from their home.



About the Author

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David Smallwood






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