Contributions of Misso
to Securing Equal Just
BY leland ware
Editor’s note: In 1989, St. Louis University School of Law Assistant Professor Leland Ware published this article,
examining the history of black lawyers
in Missouri during the late nineteenth
and early twentieth centuries, in the
Journal of The Missouri Bar. The author
is now the Louis J. Redding Chair and
Professor for the Study of Law and Public Policy at the University of Delaware’s
School of Urban Affairs and Public
Policy. In recognition of February’s celebration of Black History Month, we are
pleased to reprint this article.
Introduction
Black attorneys have been active
in Missouri for more than a century.
However, because the American and
local bar associations originally denied
membership to Black attorneys, the
Mound City Bar Association was
established in St. Louis in 1922. After
a national organization of Black attorneys was organized in 1926, the
Mound City Bar Association became
an affiliate chapter of that organization. During the same period, black
attorneys led the NAACP’s efforts to
eliminate racial discrimination.
The NAACP’s legal campaign
consisted of a carefully planned litigation strategy involving hundreds of
cases over several decades. These cases
eventually led to several significant
Supreme Court victories and ultimately to the Civil Rights legislation
of the 1960s. Two of the most important cases that were involved in
42 / Journal of the Missouri Bar
that process, Missouri ex rel. Gaines
v. Canada1and Shelley v. Kraemer,2
arose in Missouri and were handled by
Black attorneys from St. Louis. Gaines
was an important victory in the effort
to eliminate racially segregated schools
and Shelley was a major step toward
the elimination of discrimination in
housing.
This article will examine the history
of Black lawyers in Missouri during
the late nineteenth and early twentieth
centuries. It will describe the development of the Mound City Bar Association and explain the relationship of
that organization to the National Bar
Association. This article will also analyze the development of the NAACP’s
legal strategy against racial discrimination. And, focusing primarily on the
Gaines and Shelley cases, this article
will discuss the contributions of Missouri lawyers to that effort.
The Formative Years:
1877-1930
St. Louis’ first Black Attorney was
probably Albert Burgess. Mr. Burgess
commenced his practice in 1877 and
was active for more than fifty years
until his death in 1933. He was an
honor graduate of the University of
Michigan and served as counselor
to the City of Carondelet’s Police
Court. Burgess was also a vestryman
in the All Saints Episcopal Church.3
Another Black attorney, Hutchings
Inge, moved to St. Louis from Virginia. Inge received an undergraduate
souri's Black Lawyers
tice
degree from Oberlin College and after
completing a law course settled in St.
Louis in the mid-1880s.
In 1887, Walter Moran Farmer
became the first Black student to
be admitted to Washington University’s Law School. Farmer endured a
hostile atmosphere and attempts were
made to force him to leave. Despite
these difficulties, Farmer was able to
complete his studies in 1889. The law
school’s graduation ceremonies were
delayed that year when the students
refused to march with Farmer in the
graduation procession. This impasse
was finally resolved when the dean of
the law school accompanied Farmer
down the aisle. Farmer practiced for a
period in St. Louis but he eventually
moved to Chicago.
By 1921, the number of Black lawyers practicing in St. Louis was sufficient to support the establishment of a
professional association. The decision
to formally organize is reflected in the
following notice which appeared in
the St. Louis Argus on December 23,
1921, and on January 6, 1922:
Believing that a closer relationship of the members
of the Bar will redound to
the benefit of the race and
the profession, and with a
view of bringing about this
much needed result, the
undersigned attorneys hereby
cordially invite all Negro
members of the bar to meet
at Pythian Hall, 3137 Pine
Street on January 7, 1922 at
8:00 p.m. for the purpose of
perfecting a Bar Association.
Geo. L. Vaughn, Daniel W.
Bowles, Homer G. Phillips,
S.E. Garner, Geo. B. Jones,
W.R. Hill, Jos. A. Smith,
Robert N. Owens, Emanuel
Williams, N.A. Mitchell.
E.H. Taylor, Hutchings Inge,
J.H. Roberts and Freeman L.
Martin.4
The Argus reported later that the
attorneys had organized the St. Louis
Negro Bar Association and elected
George L. Vaughn, President; Robert
Owens, Vice-President; Albert Burgess, Treasurer; and George R. Jones,
Secretary.5
Since the American Bar Association refused to admit Black lawyers,
a national organization of Black
attorneys, the National Bar Association, was organized in 1926.6 The
Mound City Bar Association (the Bar
Association changed its name in the
mid-1920’s) later joined the National
Bar Association, as an affiliate chapter.
Black attorneys from St. Louis served
in prominent roles in the national organization. The third president of the
National Bar Association, Homer G.
Phillips, was elected in 1927. Another
St. Louisan, Sidney Redmond, served
as the National Bar Association’s
president from 1939 to 1941. The
National Bar Association held its 26th
annual meeting in St. Louis in August
of 1951. During that convention, a
St. Louis attorney, Scovel Richardson,
was elected president. The National
Bar Journal was edited by a St. Louisan, Freeman L. Martin.
During the 1920’s, Homer Phillips
was one of the most active and influential lawyers in St. Louis. He was
born in Sedalia, Missouri, on April
1, 1880. His father was a Methodist minister. Phillips graduated from
Howard University Law School in
Washington, D.C. After settling in St.
Louis, Phillips became active in the
city’s political arena and was reputed
to have a large following among Black
voters.7 During his lifetime, Phillips
fought for equal accommodations
for Black citizens on railroad trains,
the inclusion of Black students in
appointments to West Point, and
the improvement of the condition of
Black farmers. The Homer Phillips
Hospital, which was named in honor
of Phillips, served the Black citizens
of St. Louis until it was closed in the
early 1980’s.
The peculiar circumstances of
Philips’ death provide one of the most
mysterious episodes in the history of
Black lawyers in St. Louis. On June
18, 1931, the 51-year-old Phillips left
his home at 1121 Aubert Avenue, and
proceeded south on Aubert to Delmar
Boulevard, where he apparently intended to take a streetcar to his office
January-February 2011 / 43
at 23 N. Jefferson. Near the intersection of Delmar and Aubert, Phillips
stopped to purchase a newspaper.
After selecting a newspaper, Phillips
sat on the window-ledge of a business,
opened his newspaper and waited
for the streetcar. The events which
followed were described by a witness
who gave the following account to the
police:
personally direct the campaign.11 On
October 4, 1930, the NAACP hired
Nathan Margold, a Harvard graduate,
as a consultant to develop a litigation
strategy. On May 31, 1931, Margold
delivered a preliminary report concerning the educational campaign and
three days later, he submitted another report which dealt with racially
restrictive covenants. With regard to
segregation in public schools, Margold
Phillips was sitting on a low
recommended a direct challenge to
widow ledge alongside the
the separate but equal doctrine which
Rubicam Business School on
was established in Plessy v. Ferguson.12
the east side of Aubert Avenue
In his report, Margold urged that “if
reading a newspaper. Sudwe boldly challenge the constitutional
denly two Negroes appeared.
validity of segregation … we can strike
One had an automatic pistol
directly at the most prolific sources
in his hand. He walked up to
of discrimination.”13 According to
Phillips and said someMargold’s analysis, racial
thing. Phillips lowered his
segregation, coupled with
“The NAACP's legal campaign
paper and looked up. The
discrimination, denied equal
Negro struck Phillips in
protection of the law under
consisted of a carefully planned
the jaw and then opened
the Fourteenth Amendment
litigation
strategy
involving
hundreds
fire. Phillips swung around
of the United States Constitujust as the Negro started
tion.
of cases over several decades.
shooting. Six shots were
These cases eventually led to several Not long after he submitfired. The two assassins ran
north on the east side of
significant Supreme Court victories ted his report, Margold went
Aubert to an alley, east in
to work for the Solicitor
and
ultimately
to
the
Civil
Rights
the alley and then north in
of the Department of the
legislation of the 1960s.”
a bisecting alley, where I
Interior. Consequently, the
lost sight of them.8
NAACP still needed a “very
able lawyer” to conduct its
Phillips’ death was a great loss to
Blacks designating specifically equal
litigation campaign. In 1934, Walter
the St. Louis community. Reports
rights in the public schools, voting,
White, who had succeeded James Welof his death appeared on the front
transportation, housing and juries.9
don Johnson as the Executive Secrepages of all three of the city’s newspaThe Garland Fund initially approved
tary of the NAACP, recruited a Black
pers. Two Black youths were arrested
an allocation of $100,000.
attorney, Charles Hamilton Houston,
and tried for the murder, but were
who was then Dean of Howard Uniultimately acquitted. The murder
The Fund established a commitversity’s Law School, to serve full time
of Homer Phillips remains officially
tee to administer the grant and it
as the organization’s legal counsel.14
unsolved.
specifically authorized an “intensive
Houston had graduated from Amherst
campaign” against “unequal apporCollege with honors in 1915 after
tionment of school funds, barring
being elected to Phi Beta Kappa. He
The NAACP Connection
Negroes
from
juries,
jim
crow
cars,
served as an officer in World War I,
The NAACP was organized to
and
residential
segregation
by
property
and later enrolled in Harvard Law
eliminate racial discrimination in
holder’s covenants, disenfranchisement
School, where he became the first
1909. A Harvard undergraduate,
10
and
civil
liberties
defense.”
In
its
Black student elected to serve on the
Charles Garland, received a bequest
proposal,
the
NAACP
had
also
indieditorial board of the Harvard Law
from his father in 1919 of more than
cated that it would retain the services
Review.15 Houston received an LL.B.
one million dollars which he used
of a “very able lawyer” who would
and S.J.D. from Harvard. He was
to establish the American Fund for
44 / Journal of the Missouri Bar
Public Service in 1922. The Fund
was devoted to the support of liberal
causes, and Roger Baldwin, the director of the newly-formed American
Civil Liberties Union, became the
chief administrator of the Fund. In
1930, the Fund’s Committee on Negro Work, whose members included
James Weldon Johnson, the Executive Secretary of the NAACP, Morris
Ernst, a member of the NAACP’s
Legal Committee, and Lewis Garnett,
who was also active in the NAACP,
developed a proposal for a grant to
the NAACP. When the proposal was
submitted to the Garland Fund, it
requested financial assistance for a
large-scale campaign to secure the
constitutional rights of Southern
awarded a Sheldon Traveling Fellowship which he used to study law for an
additional year in Spain at the University of Madrid.
In 1924, Houston joined the faculty of Howard’s Law School and was
appointed to serve as Dean in 1929.
During his tenure at Howard, Houston transformed the law school from
an unaccredited part-time program
to a fully accredited institution.16
In addition to raising standards and
improving the program of instruction
at Howard, Houston served as the
mentor for a generation of Black lawyers who devoted their careers to the
Civil Rights cause. Houston believed
that the inequities of the American
system of racial segregation, which
were sanctioned by Supreme Court
decisions like Plessy v. Ferguson, could
be successfully challenged through
innovative litigation.
The Margold report was a compelling document but Houston disagreed
with the direct attack strategy. He did
not want to risk, in the mid-1930s,
a reaffirmation of Plessy. Houston
believed that the NAACP should
adopt a more gradual approach, beginning in an area where the separate
but equal fiction was most vulnerable
and least likely to generate massive
opposition when challenged. Houston
calculated that the inequalities of the
segregated school system were most
obvious at the graduate and professional school level. With the exception
of Howard University in Washington
D.C. and Meharry Medical College
in Nashville, Tennessee, there were no
graduate or professional schools in any
of the Black colleges in the South.
In Houston’s view, if civil actions
were filed challenging the southern
states’ failure to provide graduate
educational opportunities for Black
students, the states would be required to bear the enormous expense
of building and operating separate
schools for Black students, or to admit
them to white schools. Because of the
small number of student who would
be involved, Houston believed that
the opposition would not be as severe
at the graduate level as it might be at
other levels. If the graduate schools
could be desegregated, the NAACP
could later direct its attention to
colleges and thereafter to secondary
and grade schools. This “equalization” strategy was the course which
the NAACP elected to pursue under
Houston’s leadership.17
After Houston accepted the
position of Special Counsel to the
NAACP in 1935, a network of Black
attorneys evolved which spread itself
across the nation. The network combined Howard University Law School,
the NAACP’s Legal Committees, and
the National Bar Association. By the
late 1930s, these organizations had
become a far-flung network of interconnected Civil Rights organizations
which played the pivotal role in Civil
Rights litigation. A Missouri case,
Missouri ex rel. Gaines v. Canada, was
one of the first of several important
Supreme Court victories in the equalization cases which eventually led to
the 1954 decision in Brown v. Board of
Education.
Missouri ex rel. Gaines v.
Canada
A St. Louis lawyer, Sidney Redmond, had an instrumental role in an
important equalization case. Mr. Redmond was a 1923 graduate of Harvard
College and he received a law degree
from Harvard University in 1927.
Redmond moved to St. Louis from
Mississippi in 1929. In 1935 there
were only forty-five Black attorneys
in the state of Missouri, and thirty of
those practiced in St. Louis. A total of
three Black attorneys had been admitted to the Missouri bar in the previous
five years, but there were fewer Black
practitioners in the State in 1936 than
there had been ten years earlier.18
In 1936, Houston’s equalization
strategy prevailed in a case against
the University of Maryland, Pearson
et al. v. Murray.19 In that case, the
Maryland Court of Appeals held that
the state was obligated, under the
equal protection clause, to admit a
Black student since it had established
a state-supported law school for white
students but had not done so for
Black students. After the victory in
Murray, the NAACP was anxious to
pursue its litigation strategy in other
states. When Redmond recommended
that the NAACP file a civil action on
behalf of a Black student in Missouri,
Houston agreed.
Lloyd Gaines was a 1935 graduate
of Lincoln University who wanted to
become a lawyer. After his application to the University of Missouri was
denied, he became the plaintiff in the
Missouri case. Sidney R. Redmond
and Henry D. Espy of St. Louis (who
were both members of the Mound
City Bar Association) and Charles
Houston represented Gaines. Houston arrived in St. Louis to complete
the final research for the case several
days prior to the trial. On July 10,
1935, the day of the trial, Houston
rose at 4:15 a.m. to prepare for the
120-mile drive to Columbia. By the
time Gaines and the other lawyers
had assembled, it was six o’clock. An
unanticipated detour caused further
delays. Houston, Redmond, Espy and
Gaines did not arrive at the Boone
County Courthouse until 9:15 a.m.20
During that summer, Boone
County had been suffering from a
severe drought. As a result, dozens of
farmers were in town to visit officials
at the county relief agencies located in
the county courthouse. Several of the
farmers wandered into the courtroom
to watch the Gaines proceedings. In
addition, nearly a hundred students
January-February 2011 / 45
who were attending a summer session
at the University of Missouri also
crowded into the courtroom. Before
long, the courtroom was filled to
capacity. The opposing counsel shook
hands cordially and they all shared
a single table. An arrangement “odd
to us,” Houston reported later. In a
memorandum to his office, Houston
explained that “all during the trial
we were looking down one another’s
throats. For private conferences at
the table we almost had to go into
a football huddle.”21 Although the
courtroom was filled with spectators,
there were no hostile demonstrations
or outbursts during the trial. Furthermore, unlike many courthouses
during that period, the Boone County
courthouse did not provide racially
segregated facilitates. Houston noted
that during the recess, some of the
farmers “looked a little strange at us
drinking out of the same fountain and
using the same lavatories with them,
but they did not say anything.”22
Houston reported that the University’s lawyers, practitioners from
a Kansas City firm, were “driving
and dramatic” in their opening
presentation. They contended that
Gaines’ remedy lay with the officials
of Lincoln University. During the
trial, it was admitted that Gaines was
otherwise qualified for admission to
the law school and that he was denied
admission solely on the basis of his
race. Nevertheless, the disposition of
the trial judge was clear enough to
Houston. In the memorandum to his
office, he concluded that “it is beyond
expectation that the court will decide
in our favor, so we had just as well
get ready for the appeal.”23 The court
eventually entered a judgment for the
University.
The case was later appealed to the
Supreme Court of Missouri. When
the case reached that court, it held
that “the established public policy of
46 / Journal of the Missouri Bar
this State has been and now is, to segregate the white and Negro races.”24
The Court also concluded that the
laws providing for separate schools
were not forbidden by the Fourteenth
Amendment of the Federal Constitution. Houston and Redmond argued
that the laws requiring segregation did
not extend to state-supported colleges
and universities. After reviewing various statutes establishing Lincoln University “for the higher education for
the Negro race,”25 the Court disagreed
and held that there was “a clear intention on the part of the Legislature to
separate the white and Negro races for
the purpose of higher
education.”26
Houston and Redmond also contended that broadly worded statutory
language, which made state-supported
higher education available to “all
youths” who were residents of Missouri, could not be interpreted to
restrict admission to white students.
According to the Court, however, such
an expansive reading would be “at
war” with other statutory provisions
which, in the Court’s view, evidenced
a “clear and unmistakable intention
on the part of the Legislature to separate the races for the purpose of higher
education.”27
Houston and Redmond also
claimed that the state’s actions denied
Gaines equal protection of the law.
After explaining somewhat cryptically that “color carries with it natural
race peculiarities” and that “[t]hese
differences create different social relations,” the Court relied on Plessy v.
Ferguson to conclude that “[e]quality and not identity of privileges and
rights, is what is guaranteed to the
citizen.”28 Based on this reasoning,
the Court held that Gaines would not
be deprived of any property rights in
violation of the Federal or Missouri
Constitutions if the educational opportunities provided by the State were
“substantially equal to those furnished
to white citizens of the State.”29
Addressing this question, the Court
noted that Gaines had not applied
for admission to Lincoln University
but if he had done so, the Board of
Curators at Lincoln would have been
obligated to establish a law school “or
furnish him opportunity for training elsewhere, substantially equal
to that furnished white students at
the University of Missouri.”30 The
Court further stated that the law
departments of universities located in
adjacent states admitted non-resident
Black students, and that the programs
of instruction offered at those institutions were as “sound, comprehensive
[and] valuable”31 as the University of
Missouri’s curriculum. In an effort
to bolster its finding of “substantial
equality,” the Court observed that the
distance Gaines would be required to
travel to attend law schools located
in adjacent States would not be any
greater than the distance white residents in some areas of Missouri would
have to travel to attend the University
of Missouri.
In an apparent attempt to placate
Gaines, the Court struck down a
statutory provision which would have
limited the funds supplied to Gaines
to the difference between the tuition
and fees charged by the University of
Missouri and the cost of attending
an out-of-state law school and held
that the State of Missouri would be
required instead to pay “full tuition in
the law department of the university
of an adjacent state.”32
Houston and Redmond’s final
argument was that the Missouri
Court should follow the Maryland
Court’s reasoning in Murray. In the
Court’s view, however, the circumstances which prompted the Murray
decision in Maryland were “radically
different” because unlike Missouri,
Maryland had not made adequate
provisions for the higher education of
Black students as Missouri had done
with Lincoln University. Based on
these findings, the Supreme Court of
Missouri held “that the opportunity
afforded [Gaines] for a law education
in the university of an adjacent State
is substantially equal to that offered
to white students by the University of
Missouri.”33
Gaines was appealed to the United
States Supreme Court. On the day
before the oral arguments, Houston
rehearsed his argument before a group
of students and professors at Howard
University Law School. This was one
of the first of several “dry runs” that
were conducted at Howard in Civil
Rights cases.34 On the following day,
the University argued that Gaines was
not entitled to a writ of mandamus
because “if, on the date when [Gaines]
applied for admission to the University of Missouri, he had instead applied
to the Curators of Lincoln University
it would have been their duty to establish a Law School.”35 The Supreme
Court found no such “mandatory
duty” because the statute on which the
University relied left “to the judgment
of the curators to decide when it will
be necessary and practicable to establish a law school.”36 More important,
the Supreme Court acknowledged the
realities of the situation when it stated
that “the fact remains that instruction
in law for Negroes is not now afforded
by the State either at Lincoln University or elsewhere in the State.”37 Based
on these findings, the Court reasoned
that the real issue was “the question
of whether the provision for the legal
education in other States of Negro
residents of Missouri is sufficient to
satisfy the constitutional requirement
of equal protection.”38
In the Court’s view, the quality of
legal education provided by States
adjacent to Missouri was irrelevant
responsible for the elimination of
since it determined that the question
racial barriers which denied equal
to be resolved was “what opportuniopportunities to Black citizens. The
ties Missouri itself furnishes to white
Supreme Court’s decision in Shelley v.
students and denies to Negroes solely
Kraemer was the result of an organized
upon the ground of color.”39 Accordeffort involving hundreds of cases over
ing to the Court, each state has an
a thirty-year period. As in the school
independent constitutional obligation
desegregation cases, the NAACP’s netto provide equal educational opportunities and this
requirement could
“The Gaines and Shelley cases
not be shifted from
were significant strides towards the
one state to another.40 The Court
elimination of legally sanctioned
also concluded that
racial discrimination. Gaines marked
the right to equal
protection is a “perthe beginning of the end of the
sonal one.” Thereseparate but equal legal fiction and
fore, “the State was
bound to furnish
Shelley set the state for Brown. . . .”
[Gaines] within its
borders facilities for
work of Black attorneys facilitated the
legal education substantially equal to
campaign against housing discriminathose which the State there afforded
41
tion. In its 1930 grant application to
for persons of the white race.” Since
the Garland fund, the NAACP had
the State had, in this instance, failed
specifically targeted racially restrictive
to establish a law school for Black stucovenants. Numerous cases had been
dents, the Court held that Gaines was
litigated in the ensuring years without
entitled to admission to the University
much success. As a consequence, in
of Missouri Law School.
1945, the NAACP convened a series
of conferences to discuss the restric The Gaines decision was important
tive covenant cases and to develop an
because the Supreme Court recogoverall strategy for securing a victory
nized that Black students were entitled
in the Supreme Court. In 1948 four
to equal educational opportunities
cases were decided together in two
and that this obligation could not be
separate opinions: Shelley v. Kraemer
satisfied by the provision of out-offrom St. Louis and McGhee v. Sipes
state scholarships. For perhaps the first
from Detroit and two cases involving
time, the Court actually held that a
properties located in the District of
State was obligated to admit a Black
Columbia, Hurd v. Hodge and Uricolo
student to a racially segregated school.
v. Hodge. Thurgood Marshall handled
Houston’s “equalization” strategy
the District of Columbia cases and
had borne fruit and the fight against
George Vaughn represented the Shelsegregation in public schools was well
leys.
underway. After Gaines, equalization
cases were filed in several states and by
The property that the Shelleys pur1950, the groundwork for the successchased was located at 4600 Labadie
ful direct challenge in Brown had been
Avenue in St. Louis. After the Shelleys
carefully and firmly established.42
indicated an interest in purchasing
the home, a Black realtor arranged
Shelly v. Kraemer
a sale through a white intermediary.
Ten years after Gaines, Black
The intermediary negotiated a sale to
lawyers in Missouri were once again
January-February 2011 / 47
a “straw” purchaser who later transferred title to the Shelleys’ agent, who
purchased the property and immediately re-sold the property to the Shelleys. When the Shelleys took possession of the Labadie Street property on
October 9, 1945, they were unaware
of the existence of the restrictive covenant. Consequently, they were quite
surprised when they were served with
a lawsuit which sought their eviction
on October 10. The Shelleys were
represented by George Vaughan, a
Black attorney who had served as the
first president of the Mound City Bar
Association.
The covenant at issue in Shelley
provided the properties covered by
the covenant could not be “occupied
by any person not of the Caucasian
race.”43 When Kraemer v. Shelley
came to trial, Vaughn implemented
the litigation strategy that was outlined in the meetings convened by
the NAACP.44 Vaughn argued that
the covenant was defective because it
contained faulty property descriptions
and had not been executed by all of
the property owners. Vaughn argued
further that the character of the neighborhood had changed since a number
of black families already resided in
the vicinity. Vaughn also claimed that
the covenant violated the Missouri
Constitution, the United States Constitution and the 1866 Civil Rights
Act. Vaughn’s witnesses also testified
about overcrowded conditions within
St. Louis’ Black district and the effects
of overcrowding on health and crime.
After two days of hearings, the trial
court ruled that that covenant was defective because it had not been signed
by all of the property owners to which
it purported to apply.
The decision was appealed and the
Supreme Court of Missouri, sitting
en banc, entered an order reversing
the trial court’s decision on December 9, 1946. The Court held that
48 / Journal of the Missouri Bar
the signatures of all of the property
owners were not required since the
covenant was limited to the properties
whose owners had actually executed
the 1911 covenant. The Court also
held that the exclusion of certain
parcels from the covenant’s coverage
did not affect the agreement’s validty
bedcause there was never any intent to
cover the excluded properties. It held
that covenants did not violate public
policy because “agreements restricting property from being transferred
to or occupied by Negroes have been
consistently upheld by the courts of
this state,”45 and that “the restriction
does not contravene the guarantees of
civil rights of the Constitution of the
United States.”46
Vaughn filed a petition for a writ
of certiorari on April 21, 1947. The
request was granted on June 23,
1947.47 After learning that certiorari
had been granted in Shelley v. Kraemer, Thurgood Marshall prepared a
writ of certiorari for McGhee v. Sipes.
Certiorari was eventually granted in
that case and in Houston’s District of
Columbia cases. Following the practice which was established ten years
earlier in Gaines, a dry run was held at
Howard Law School prior to the oral
arguments in Shelley. The Dean of the
Law School arranged the rehearsal for
the Shelley arguments, and it is said
that a second-year student asked a
long and rambling question which was
ultimately vindicated when the same
point was raised during oral argument, by Justice Frankfurter.48
George L. Vaughn presented the
argument in Shelley. He argued that
the judicial enforcement of covenants
constituted state action and stressed
his claim that that covenants violated the Civil Rights Act of 1870.49
Vaughn characterized racial restrictive covenants as “the Achilles heel”
of American democracy.50 In what
observers remembered as the most
dramatic point in the seven hours of
argument, Vaughn, the son of a slave,
stated in a voice that reverberated
through the corridors of the Court,
that the “Negro knocks at America’s
door and cries, Let me come in and
sit by the fire. I helped build the
house.”51 Vaughn emphasized the
“American door” remarks by rapping
sharply on the counsel table. The
sound of his knuckles striking the
table resonated throughout the then
silent courtroom and supplied a climax to his argument that mere words
never could.52
On May 3, 1948, the Supreme
Court issued its decision in Shelley
v. Kraemer and McGhee v. Sipes.53
Chief Justice Vinson delivered the
Court’s decision. After noting that the
Fourteenth Amendment “erects no
shield against private conduct however discriminatory or wrongful,”54
the Court directed its discussion to
a consideration of the types of state
action involved in previous decisions
involving direct action by legislatures.
In those cases, the Court said, state
action was clearly involved because the
challenged actions involved statutes
or ordinances that were enacted
by legislative bodies. This case, in
contract, involved “the patterns of
discrimination and the areas in which
the restrictions are to operate are determined, in the first instance, by the
terms of an agreement among private
individuals.”55
Since the state’s involvement in this
case was limited to the enforcement of
private agreements, the critical question here involved a determination of
whether judicial enforcement of the
restrictive covenants was “state action”
for purpose of the Fourteenth Amendment. The answer to that question, in
the Court’s view, was affirmative.
“[T]hat the action of state courts in
their official capacities is to be regarded as action of the state within the
meaning of the Fourteenth Amendment, is a proposition which has long
been established by the decisions of
this court.”56
After citing a number of cases
in which the actions of state courts
were held unconstitutional under the
Fourteenth Amendment, the Court
reasoned that the Fourteenth Amendment was not restricted to situations
in which the judicial proceedings
were themselves found to be procedurally unfair. The Court stated that
judicial enforcement of a common
law right may violate the Fourteenth
Amendment even where the judicial
proceedings were themselves in complete accord with the most rigorous
standards of procedural due process.
As a result, the Court concluded that
the “state action” contemplated by
the Fourteenth Amendment “includes
action of state courts and state judicial
officials.”57
The Court reasoned further that
there had “been state action in these
cases in the full and complete sense of
the phrase.”58 To support this determination, the Court observed that
without the intervention of the state
courts, the Black families involved in
Shelley would have been free to occupy
the properties in question without interruption. The Court believed that it
did not matter that the state’s involvement arose from a private agreement
because “the Fourteenth Amendment
refers to exertions of state power in all
forms.”59
Turning finally to the contentions
of the respondents – that there was
no denial of equal protection because
Black families were free to execute
covenants prohibiting the sale of
properties to whites and they were
equally free to secure judicial enforcement of such covenants – the Court
illuminated the specious basis of this
argument by observing that there
had never been a reported instance in
which a Black family had attempted
to exclude a white family from a Black
neighborhood. On a more substantive
note, the Court noted in the opinion’s
most memorable passage that “[e]qual
protection of the law is not achieved
through indiscriminate imposition of
inequalities.”60 For these reasons, the
Court concluded that “in granting
judicial enforcement of the restrictive
agreements in these cases, the states
have denied petitioners equal protection of the laws.”61
Conclusion
The Gaines and Shelley cases were
significant strides towards the elimination of legally sanctioned racial
discrimination. Gaines marked the beginning of the end of the separate but
equal legal fiction and the 1948 decision in Shelley set the stage for Brown
which was decided just six years later.
The organized legal campaign begun
in 1930 with the grant from the Garland fund and the NAACP’s litigation
strategy reached its climax when the
Supreme Court reversed the Plessey
decision with Brown. All of these
decisions stand as monuments to the
NAACP and the Black attorneys who
implemented that organization’s legal
strategy.
Up to the late 1950s, the thrust
of the Civil Rights movement was
directed through the Courts. Without the NAACP’s success in Brown
v. Board of Education in 1954, the
freedom marches of the 50’s and 60’s
might not have occurred. These accomplishments would not have been
possible without the assistance of
the hundreds of Black attorneys who
maintained practices in the cities and
towns across the nation. They shared
a common vision and they endured
years of sacrifice and effort to accomplish their goals. The efforts of “very
able lawyers” like Charles Houston,
Sidney Redmond and George Vaughn
made these victories possible.
Endnotes
1 305 U.S. 337 (1938).
2 334 U.S. 1 (1948).
3 See generally, Nathan Young, Early Black
Lawyers in St. Louis, The St. Louis Black
Journal 30:4 (Spring 1984); Anne-Marie
Clarke, The History of the Black Bar, The St.
Louis Bar Journal 30:4 (Spring 1984).
4 St. Louis Argus, January 13, 1922 p. 1,
reprinted in, Clark, The History of the Black
Bar, supra, at p. 19.
5 Id.
6 See Smith, The Black Bar Association
and Civil Rights, 15 Creighton L. Rev. 651
(1982).
7 Stanford Richardson, Homer G. Phillips:
the Man, the Hospital, The St. Louis Bar
Journal 30:4 (Spring 1984).
8 Richardson, Homer Phillips, supra, at p.
33.
9 See generally, Genna Rae McNeil, Charles
Hamilton Houston and The Struggle
for Civil Rights (University of Penn. Press
1983); Mark V. Tushnet, The NAACP’s Legal
Strategy Against Segregated Education
1925-1950 (University of North Carolina
Press 1987); Richard Kluger, Simple Justice:
A History of Brown v. Board of Education
and Black America’s Struggle for Equality
(Vantage Press 1975).
10 Tushet, supra, p. 7.
11 Id. p. 14.
12 163 U.S. 537 (1896).
13 Id.
14 McNeil, supra, at 86-105.
15 Note, 35 Harv. L. Rev. 950 (1922).
16 Raymond Logan, Howard University:
The First Hundred Years (1969).
17 Tushnet, supra pp. 1-24; McNeil, supra,
pp. 86-106.
18 Kluger, supra, p. 203.
19 182 A.2d 591 (1936).
20 Kluger, supra, 203-204; McNeil, supra,
pp. 144-144. See also Lucille Bluford, The
Lloyd Gaines Story, 32 Journal of Educational Sociology 243 (1959); Larry Grothaus,
The Inevitable Mr. Gaines, 26 Arizona and
the West 21 (1984).
21 Kluger, supra, at p. 203.
22 Id.
23 Id. at 203-204.
24 118 S.W.2d 785.
25 Id. at 786.
26 Id.
27 Id. at 787.
28 Id. at 788.
29 Id. at 789.
30 Id.
31 Id.
32 Id. at 790.
33 118 S.W.2d at 791.
34 McNeil, supra, 143-144.
January-February 2011 / 49
demonstrate with expert testimony, the role of
restrictive covenants in the overcrowded and
deteriorating conditions of ghetto housing.
45 198 S.W.2d at 682.
46 Id.
47 331 U.S. 803 (1947).
48 McNeil, supra, p. 162; personal recollection of Professor Gerald T. Dunne of conversation, 1960, with Herman Willer.
49 Arguments Before the Court: Enforcement of Restrictive Covenants, 16 U.S. L. Week
3219-20 (Jan. 20, 1948). Charles Houston
argued on behalf of the Black home purchasers in the two District of Columbia cases and
Thurgood Marshall argued McGhee v. Sipes.
Solicitor General Phillip Perlman argued for
the United States which appeared as amicus in
support of the NAACP.
35 305 U.S. at 346.
36 Id. at 347.
37 Id. at 345.
38 Id. at 348.
39 Id. at 349.
40 Id. at 350.
41 Id. at 351.
42 The actual integration of the University
of Missouri was delayed for several years after
Gaines disappeared. In the interim, the State of
Missouri hastily established a law department
at Lincoln University which operated in St.
Louis until the early 1950s.
43 Kraemer v. Shelley, 198 S.W.2d 679, 681
(Mo. 1946).
44 At the first meeting, Charles Houston
urged the attorneys present to assert various
technical and Constitutional defenses and to
50 Id. at 3220.
51 Id.
52 Personal recollection of Professor Dunne,
of conversation with Herman Willer, 1960.
Herman Willer, who was Vaughn’s co-counsel,
followed Vaughn with a summation of the
primary legal arguments.
53 334 U.S. 1 (1948).
54 334 U.S. at 13.
55 Id.
56 Id.
57 334 U.S. at 18.
58 Id. at 19.
59 Id. at 20.
60 334 U.S. at 23.
61 Id. In the Hodge case, the Court relied on
a nearly forgotten District of Columiba statute
to invalidate the racially restrictive covenants
challenged in those cases. 334 U.S. 24 (1948).
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