The NAACP legal strategy – lecture notes
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Beginning in the 1920s, Howard University is transformed into a premier center for civil
rights law under direction of Charles Hamilton Houston.
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The non-profit Garland Fund gives $100,000 to NAACP to “carry out a large-scale,
widespread, dramatic campaign to give the Southern Negro his constitutional rights, his
political and civil equality, and therewith a self-consciousness and self-respect which
would inevitably tend to effect a revolution in the economic life of the country.”

Nathan Margold is hired to frame NAACP legal strategy; he argues that NAACP should
focus on cases where states provided no facilities for blacks or where it would be
difficult, if not impossible, for states to make segregated facilities equal. Failure to
equalize segregated facilities would deprive states of constitutional protection under the
separate-but-equal doctrine set forth in Plessy v. Ferguson.
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As chief counsel for NAACP, Charles Hamilton Houston proposes attacking segregation
where it is most vulnerable – in publicly funded graduate schools of border states. If the
graduate schools can be peacefully desegregated, the NAACP will turn its attention to
lower levels of the educational system.
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Missouri ex rel. Gaines v. Canada (1938). Lloyd Gaines seeks admission to all-white law
school at University of Missouri; told to apply to all-black Lincoln University, which did
not have a law program, or to attend an out-of-state law school at state expense. Supreme
Court rules in favor of Gaines, saying states have an obligation to provide equal
education to all citizens, regardless of race.
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Southern states consider setting up regional graduate and professional schools for blacks
only, but plans never materialize.
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Sweatt v. Painter (1950). Herman Sweatt applies for admission to law school at
University of Texas at Austin; school complies by renting a room in Houston, hiring two
black lawyers as teachers, and calling it Prairie View Law School. Sweatt refuses to
attend. Supreme Court rules in favor of Sweatt, orders restrictions removed.

McLaurin v. Oklahoma State Regents for Higher Education (1950). George McLaurin is
denied admission to University of Oklahoma graduate school of education. A federal
district court judge orders school to provide McLaurin with an equal education; school
complies by allowing McLaurin to take same classes as white students “but on a
segregated basis.” Case isolates issue of segregation from issue of equalization. NAACP
concedes that school has provided McLaurin with equal facilities, but argues that stateimposed segregation stigmatized McLaurin on basis of race and deprived him of an equal
educational experience. Supreme Court rules in favor of McLaurin, orders restrictions
removed.
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Victories in Sweatt and McLaurin cases persuade NAACP Legal Defense Fund, led by
Thurgood Marshall, to challenge constitutionality of separate-but-equal doctrine head-on.

To make case that segregated schools were inherently unequal and that segregation
conferred a “badge of inferiority” on black students, the NAACP introduced social
scientific evidence. Kenneth Clark, a black psychologist, had devised a test using black
and white dolls to measure the damage to black self-esteem caused by segregation. Most
black children he tested in the South identified the black doll as inferior and said they
liked the white doll better.
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In 1952, when the Supreme Court agrees to hear six segregation cases lumped together
under Brown v. Board of Education of Topeka, Kansas, there is no clear consensus for
overturning Plessy. The death of Chief Justice Vinson and the appointment of Earl
Warren to replace him turns the tide in favor a unanimous decision.
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On May 17, 1954, the Supreme Court announces its decision: “We conclude that in the
field of public education, the doctrine of ‘separate but equal’ has no place. Separate
educational facilities are inherently unequal.” The court does not say how it will enforce
the ruling; instead, it invites all parties to submit briefs on how the ruling might be put
into practice.
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On May 31, 1955, in a ruling known as Brown II, the Supreme Court orders local school
boards to devise desegregation plans “with all deliberate speed,” granting federal district
court judges wide latitude in deciding how fast was fast enough.
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In Virginia, the Byrd machine rallies Democratic Party opposition to desegregation under
the banner of states’ rights. The Gray Commission, a state advisory panel appointed to
study the implications of the Supreme Court ruling, recommends a series of measures
designed to circumvent the order. In 1956, The Virginia General Assembly passes a
package of “massive resistance” laws, including one provision to cut off state funding to
any school that desegregates and another giving the Governor power to close any public
school faced with an order to desegregate. Public schools are shut down in three Virginia
cities (including Charlottesville) before the school-closing laws are invalidated by the
Virginia Supreme Court of Appeals and a panel of federal judges in 1959.
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In 1956, James J. Kilpatrick, editor of the Richmond News-Leader, incorporates the
nullification theory of John C. Calhoun into an updated states’ rights doctrine called
“interposition.” The doctrine holds that a state has the right to “interpose” its sovereignty
between the federal government and the people of the state if the people do not agree
with the actions of the federal government. In effect, interposition would allow a state to
nullify the power of the federal government until the states agreed to a constitutional
amendment explicitly granting the power in question. By the end of 1956, five Southern
states had passed interposition resolutions, though none invoked it.
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The cry of states’ rights finds its most militant expression in the Southern Manifesto, a
declaration signed by nineteen southern senators and eighty-one representatives of
Southern states. Issued in March 1956, the manifesto accuses the Supreme Court of
substituting “naked power for established law.” It warns that the decision will destroy
“the amicable relations between the white and the Negro races that have been created
through ninety years of patience by the good people of both races.”