Setting the Stage for Brown: the Development and Implementation of the Naacp's School Desegregation Campaign, 1930-1950 - Leland B. Ware

• Citation: Vol. 52 No. 2
• Publication year: 2001

LEAD ARTICLE

Setting the Stage for Brown: The

Development and Implementationof the NAACP's School

Desegregation Campaign, 1930-

1950by Leland B. Ware^*

I. Introduction

The protest against segregation began early in the twentieth century, not long after the Supreme Court's 1896 decision in Plessy v. Ferguson.¹ The fight was led by the National Association for the Advancement of Colored Persons ("NAACP"), which was founded in 1909 by a group of black activists and white progressives. After years of lobbying, organizing local chapters, and engaging in other activities, the NAACP shifted its direction. In the early 1930s, the organization embarked on a long-range, carefully coordinated litigation campaign that challenged the laws that enforced segregation. During the years that followed, a legal revolution was set into motion that altered the foundations of American jurisprudence. The NAACP's litigation campaign is not as well remembered as the grassroots demonstrations of the 1960s, but the culminating event of that phase of the Civil Rights movement, Brown v. Board of Education of Topeka,² is celebrated as the most significant Supreme Court decision of modern legal history. The decision in Brown was the first of a series of decisions that struck down Jim Crow laws and paved the way for the federal Civil Rights legislation of the 1960s.

Much of the existing literature leaves the impression that the transition from Plessy to Brown emanated from an enlightened judiciary. Contrary to these suggestions, the judges who occupied federal courts in the 1930s and 1940s were conservatives who would have preferred to avoid confrontations with the complex social, political, and legal issues that segregation raised. In reality, the NAACP's litigation strategy compelled a reluctant judiciary to address the many contradictions that segregation posed. The actual visionary in this process was Charles Houston, an African-American Civil Rights lawyer, who was the architect of the NAACP's legal strategy. Houston foresaw a means of eliminating formal segregation at a time when most Americans accepted it as a permanent way of life. It was Houston's insight, together with his ability to orchestrate a coordinated campaign over a several-year period, that resulted in the elimination of segregation laws.

The significance of the decision in Brown is well-documented, but it cannot be fully appreciated without an examination of the cases that led to it. This Article explores the evolution of the legal strategy that was used in the graduate and professional school cases that set the stage for Brown. Part II examines Charles Houston's tenure at Howard Law School. During those years Houston transformed that institution from a marginal night school to a fully accredited, first-rate institution. Under Houston's leadership, students at Howard were trained to structure the test cases that challenged the laws that provided the basis for segregation. Part III examines the significance of the Margold Report, a study that was commissioned by the NAACP's Board of Directors in the early 1930s. The report contained a detailed examination of the "separate but equal doctrine" of Plessy v. Ferguson and suggested ways in which the policy might be challenged in the courts.

After Houston was selected to head the NAACP's litigation campaign in 1935, he modified the Margold Report's recommendations and developed what became the "equalization strategy." This approach involved filing cases in Southern states, demanding that the educational resources made available for African-American students be upgraded to make them equal to those provided for whites. Carefully remaining within the confines of Plessy, the "equalization" cases were premised on the theory that the states that practiced segregation could not afford the expense of maintaining separate educational systems that were actually equal. As Part IV of this Article explains, these early cases focused on graduate and professional schools, the area in which the Southern states were most vulnerable. In a series of cases in Maryland, Missouri, Texas, and Oklahoma, the NAACP's lawyers were able to chip away the foundation of segregation. By the early 1950s the Plessy rationale had been completely undermined. This Article demonstrates that, without these efforts, the decision in Brown would not have been possible.

II. Charles Hamilton Houston: The Architect of The Legal Strategy

A. Background

Beginning in the early 1930s, Howard University Law School served as the West Point for a generation of Civil Rights lawyers. During this period, the institution was transformed from an unaccredited evening program to a laboratory for Civil Rights litigation. Howard's evolution occurred largely through the efforts of Charles Houston, who also developed the legal strategy that was used to eliminate segregation.

Houston was born in Washington, D.C. on September 3, 1895. His father, William Houston, was a lawyer who obtained his degree while working for the federal government and attending Howard University at night.³

Charles Houston attended the Garrison Elementary School and M Street High School in Washington, D.C. Houston's academic record at M Street provided the foundation for admission to Amherst College in Massachusetts, where he enrolled in 1911. At Amherst Houston excelled in his studies, and he was elected to Phi Beta Kappa during his senior year. After graduating in 1915, Houston returned to Washington, D.C, but he did not have any specific plans for a career.⁴

After America's entry into World War I, Houston decided to enter the military. He obtained a position in the black officers' training corps at Des Moines, Iowa.⁵ In October 1917, Houston was among the 440 African-Americans who received commissions as officers in the United States Army. During World War I, black soldiers were the victims of racism. In a 1940 article, Houston recalled a particularly dangerous encounter that occurred when he and a companion stumbled on a confrontation between a black serviceman and a group of white soldiers. One of the white soldiers became angry after he learned that some female companions had abandoned him for a black soldier. Houston and his friend found themselves surrounded by an angry mob. The tense episode ended after a military police officer intervened. Houston never forgot the incident. Years later he recalled: "'I made up my mind that I would never get caught again without knowing something about my rights; that if luck was with me, and I got through this war, I would study law and use my time fighting for men who could not strike back.'"⁶ After his tour of duty, Houston returned to Washington.⁷

On September 18, 1919, Houston enrolled in Harvard Law School. During his first year, Houston was selected to serve on the staff of the Harvard Law Review, an honor accorded to students who receive the highest grades.⁸ Houston's academic record during his second year and his performance on the law review resulted in his election to the law review's Editorial Board. He was the first African-American to serve in this capacity.⁹ In 1922 he graduated cum laude, finishing in the top five percent of his class. In the following fall, Houston became a candidate for the advanced degree of Doctor of Juridical Science ("S.J.D."). He was awarded the degree in 1923. After receiving the S.J.D. degree, he received a Sheldon Traveling Fellowship, which he used to study law at the University of Madrid during 1923 and 1924.¹⁰

B. Howard University: A Laboratory for Civil Rights Litigation

In 1924 Houston returned to Washington, D.C. and was admitted to practice before the District of Columbia Bar. He joined his father's law firm, which was renamed Houston & Houston. A few months later

Houston joined the faculty at Howard Law School. During his time as a junior faculty member, Houston taught various subjects and was highly regarded by his students and colleagues. In 1927 Houston prepared "A Survey of the Status and Activities of Negro Lawyers in the United States."¹¹ To conduct the research, he traveled to several cities and eventually completed three studies: "Negro Law Schools," "The Negro Lawyer," and "The Negro and His Contact With the Administration of the Law."¹² During the same period, he developed a separate study for the law school: "Survey of Howard University Law Students."¹³ In May 1929, Houston prepared another study titled "Personal Observations on the Summary of Studies in Legal Education as applied to Howard University School of Law."¹⁴ In this twenty-page document, Houston discussed the status of legal education at Howard, the objectives of the school, the curriculum, the instruction methods, and proposed research goals. Houston also outlined his vision of Howard's role in legal education. Houston believed that institutional racism could be effectively challenged through innovative litigation.¹⁵ To accomplish this vision, a group of well-trained lawyers would be needed to handle the lawsuits that would make the Constitution's promise of Equal Protection a reality.

Shortly before Houston joined the law faculty, the university's administration became concerned about the law school's academic standing. In 1920 the Board of Trustees voted "that steps be taken to so advance the School of Law that it may become eligible for membership in the American Association of Law Schools."¹⁶ A bout with tuberculosis forced Houston to take a leave of absence during the 192829 academic year. When Houston returned, the dean was appointed Chief Judge of the United States Court of Claims. Not long afterward, "the Board appointed Charles H[amilton] Houston Resident Vice-Dean in charge of the three-year Day School along with general supervision of the Law School Library, beginning July 1, 1929."¹⁷ Although Booth retained the title of Acting Dean until 1930, Houston immediately assumed responsibility for the day-to-day operations of the school. After...