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
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 AfricanAmericans. 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 AfricanAmericans during the 1920 North Carolina gubernatorial campaign. Nearly two
months after his nomination, the Senate rejected him 39-41.
Charles Hamilton Houston
•
•
•
•
The issue of racial discrimination often coalesced
around education. After a debate within the AfricanAmerican 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
Missouri ex rel. Gaines v. Canada (1938)
Lloyd Gaines
• 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.
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.”
Sweatt v. Painter (1950)
•
•
Heman Marion Sweatt
registering for classes in
the University of Texas
School of Law,
Sept. 19, 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.
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.
Brown v. Board of Education I (1954):
• 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.
The Facts
Third-grader Linda Brown (L) and her sister Terri walk through
the railroad switchyard on their one-mile journey to the black
elementary school.
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
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.
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.”
“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."
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?
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, WWIIera 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.
Legacy: GI Bill
•
•
•
Rep. John Rankin of
Mississippi chaired the
House Committee on
World War Veteran’s
Legislation, which
drafted the 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 smallbusiness 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.
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.
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.
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.