Historic Resource Study

"A STRONG PULL, A LONG PULL, AND A PULL ALTOGETHER:" TOPEKA'S CONTRIBUTION

TO THE CAMPAIGN FOR SCHOOL DESEGREGATION

Rachel Franklin Weekley

Historic Resource Study

Brown v. Board of Education National Historic Site Topeka, Kansas

National Park Service

United States Department of the Interior December 1999 (digitized July 2021)

IN REPLY REFER TO:

United States Department of the Interior

NATIONAL PARK SERVICE

MIDWEST REGION 1709 JACKSON STREET

OMAHA, NEBRASKA 68102-2571

January 24, 2001

"A STRONG PULL, A LONG PULL, AND A PULL ALTOGETHER:" TOPEKA'S CONTRIBUTION

TO THE CAMPAIGN FOR SCHOOL DESEGREGATION

Rachel Franklin Weekley

Historic Resource Study

Brown v. Board of Education National Historic Site Topeka, Kansas

National Park Service

United States Department of the Interior December 1999
At key times in this nation's history, children have wrought great and beneficial change,
as exemplified by those involved in the school desegregation cases.
This study is presented in their honor
and is dedicated to the children of contemporary society, including my nieces and nephews -
the Franklins,
Amy, Steve, Brian, Michael, Lauren, Zachary, Paul,
Daniel, Dylan, Alexandra, Morgan, and Patrick
and the Weekleys,
Leah, Kristin, Isabelle, Andy, Michael,
Amy, Katie, and Paul
for the challenges they've embraced thus far and those that lie ahead

ACKNOWLEDGEMENTS

I truly appreciate Thurgood Marshall's characterization of the valiant school desegregation campaign. Like its subject, the completion of this study could be termed "a long pull," as well. The project began in early August 1994 with an energetic introduction to Topeka and its resources, and now, three years later, at last is coming to a quiet close. Research and writing have ebbed and flowed through this time as I have become involved in additional research projects and new professional responsibilities. Throughout the process, colleagues, friends, and partners listened patiently to my concerns and offered assistance when possible. Yes, it was a long pull, but also "a pull altogether."

Through the most recent reorganizations of the National Park Service (NPS), Cultural Resource Management (CRM) professionals in the Midwest Region grounded me when I became unstrung. Particular thanks go to Ron Cockrell, my first supervisor for the historic resource study (HRS) and unofficial NPS mentor from my seasonal days, and Dr. Don Stevens, who wrote a baseline historiography of Brown v. Board of Education which provided a great starting point for my own research. Both reviewed the study and offered much-needed professional guidance through every step of the project. Bill Harlow lent his good sense of humor, technical expertise, and specific assistance with analyses of Topeka's schools, their architecture and construction. Sherda Williams assisted with preliminary assessments of the Monroe site and its former playgrounds, offering expertise on the historic cultural landscape around Monroe School. Andy Ketterson, my de facto third supervisor for the project, offered support throughout and pointed analysis of the first draft. Craig Kenkel led this project to completion, aided by a good sense of humor and firm commitment to the establishment of the Brown v. Board of Education National Historic Site. Each of these individuals, and others in the Midwest Regional Office, tendered empathy, interest, and enthusiasm when mine was running out.

NPS professionals based in Washington, D.C., and in Topeka also provided direction for the HRS. Dr. Harry Butowsky wrote the NHL theme study which targeted properties associated with the implementation of the U.S. Constitution as well as the NHL nomination of Sumner and Monroe Elementary Schools. He encouraged me from the outset to explore the constitutional ramifications of the landmark school cases and graciously reviewed at least two drafts of the study. Dr. Butowsky's pertinent comments definitely improved the final product. I also appreciated Laura Feller's review of the work and moral support during its completion. Dr. Dwight Pitcaithley, Chief Historian of the NPS, patiently listened to my frustrations, providing professional support and encouragement when I felt stymied. David Barnes, a seasonal cultural landscape architect technician, worked with Sherda Williams on the completion of the cultural landscape inventories f r the Brown v. Board of Education NHS. He introduced me to the Topeka resources in August 1994 and collected important research data during his brief tenure in the park. Superintendent Rayford Harper, the second supervisor for this project, reviewed selected portions of the study and helped secure some historic photographs which greatly enhanced the text. Robin White, then serving as Chief of Interpretation, carefully reviewed the entire document, offered meaningful suggestions, and caught some of my mistakes. I will always be grateful to Robin for her considerate analysis. Teri Perry, as administrative officer for the park unit, gave her friendship as well as much­ needed logistical assistance and moral support. Staff in the park changed as the study underwent repeated, final reviews. Superintendent Bess Sherman, Chief of Interpretation Tyrone Brandyburg, and Administrative Officer Alicia Bullocks lent support during this time. Cheryl Brown Henderson, who helped bring well-deserved recognition to Monroe Elementary, remains a staunch supporter of the park and will shape the school's new legacy as historic site.

More specific contributions came from archivists, librarians, and friends in the Midwest. The Kansas State Historical Society contains a wonderful repository that is only enhanced by its professional staff. Pat Michaelis, Dr. Terry Harmon, Andrea Rooker, David Taylor, and Darrell Garwood assisted my search and acquisition of primary materials in Topeka. Mary Elbow, a reporter with Topeka NBC-affiliate KSNT Channel 27, graciously shared her research and analysis of the local impact of the Brown cases. Deborah Dandridge, in dual roles as archivist of the Kansas Collection at the University of Kansas and member of the Brown Foundation, aided in both the research and review stages. Her knowledge of Topeka and Kansas history, as well as insight into the dynamics of the local desegregation campaign strengthened the study. Kristin Welton, photo archivist with the University of Kansas, also assisted with the acquisition of several historic photographs reposited in the Kansas Collection.

I had the distinct pleasure of working in three, key federal repositories during this project. Herbert L. Pankratz, archivist at the Dwight D. Eisenhower Library, aided my investigation of the executive view of these historical events. Barbara Nathanson, Archivist in the Prints and Photographs Division of the Library of Congress, directed me to some very useful photograph collections. Ernest J. Emrich and many anonymous archivists with the

Library's Manuscript Division helped me pinpoint the most useful collections in their vast repository of data on the school desegregation campaign and administrative responses to events in the mid-twentieth century. Although not viewed as a repository, per se, the Department of Justice maintains valuable case files through its Freedom of Information/Privacy Act Office in the Civil Rights Division. Chief Nelson Hermilla, Mrs. Arzenia Graham, and other staff members opened their offices and allowed me to peruse several files from the U.S. Attorney General's office pertaining to actions in South Carolina, Virginia, Kansas, and Washington, D.C.

On the historic preservation side, several individuals brought materials to my attention which highlighted the cultural resources associated with the school cases and subsequent desegregation activities. Dr. Robert R. Weyeneth, co-director of the Applied History Program at the University of South Carolina, compiled an inventory of resources associated with the larger civil rights movement and reviewed the study for specific content. Professors Rainier Spencer, of the University of Nevada-Las Vegas and Michael S. Mayer, with the University of Montana, also provided technical reviews, contributing valuable comments on factual content and editorial style. Staff in various State Historic Preservation Offices (SHPOs) provided survey information on properties in their respective states. These included Carolyn Hinson, Survey and Registration coordinator in the Alabama SHPO, James Christian Hill, National Register Assistant with the Department of Historic Resources in Virginia, and particularly Robin Bodo, with Delaware SHPO. Janni Kalb, with TIME/LIFE Picture Sales, coordinated a search in the LIFE archives to locate photographs pertaining to the five school cases.

And, finally to my mentors, I express my deepest appreciation. Dr. John L. Bullion always lends his personal and professional support wherever my work takes me. I greatly benefited from the good foundation he provided through instruction of the history of the modern civil rights movement. I appreciate Dr. Susan Flader's dogged determination and sense of commitment because she shares them when I need them most. To Mark R. Weekley, I extend my congratulations because he also has lived with this project for the past five years. His graphics assistance is evident on almost every page of the study and his patience in almost every word. As this project draws to a close, I look forward to future collaborations.

Rachel Franklin Weekley December 1999

--- PREFACE

Public Law 102-525 established the Brown v. Board of Education National Historic Site in Topeka, Kansas on October 26, 1992 to commemorate the 1954 U.S. Supreme Court ruling which overturned the constitutionality of racial segregation in public schools. The enabling legislation which established this historic site mandates that the National Park Service will preserve, protect, and interpret for the benefit and enjoyment of present and future generations, the places that contributed materially to the landmark Supreme Court decision that brought an end to segregation in public education; and to interpret the integral role of the Brown v. Board a/Education case in the civil rights movement; and to assist in the preservation and interpretation of related

resources within the city of Topeka that further the understanding of the civil rights movement

The Monroe Elementary School and its adjacent playgrounds comprise the 1.85-acre national park unit, which was transferred from private ownership to the United States Department of the Interior on December 16, 1993. During the second quarter of the twentieth century, Monroe was dedicated to the education of the Topeka's African American children. It is most well known as the segregated black school represented in the landmark Brown v. Board of Education case, one of five school desegregation cases heard before the U.S. Supreme Court in the early 1950s. With the establishment of this historic site, Monroe Elementary School exemplifies the larger fight for the equalization of rights, opportunities, and privileges among all citizens in the United States.2

Monroe exemplifies four elementary schools in Topeka, Kansas, which were restricted to African American students in the mid-twentieth century. Associated cultural resources not presently part of the national historic site also contribute to the story of race relations and community in Topeka. Plaintiffs from each of the city's black schools participated in the landmark Brown v. Board of Education case along with those taking legal action in South Carolina, Virginia, Delaware, and the District of Columbia. The resultant U.S. Supreme

The terms black and white will be used throughout this study, sometimes interchangeably with African American, in reference to persons and places according to the following usage guidelines. 7be Random House Dictionary of the English Language defines black as: a member of any of various dark-skinned peoples, especially those of Africa, Oceania, and Australia; an Afro-American. It is used in standard English in the following manner: Black, colored, and Negro have all been used to describe or name the dark-skinned African peoples or their descendants. Colored, now somewhat old fashioned, is often offensive. In the late 1950s black began to replace Negro and today is the most widely used term. Common as an adjective (ie: black woman), black is also used as a noun, especially in the plural. Like other terms referring to skin color, black is usually not capitalized, except in proper names or titles (ie: Black Muslims}. The dictionary defines white as: light or comparatively light in color; marked by slight pigmentation of the skin, as of many Caucasoids; for, limited to, or predominantly made up of persons whose racial heritage is Caucasian (ie: a white school, a white neighborhood).

Court rulings of 1954 and 1955 struck down the precedent of "separate but equal" established via Plessy v. Ferguson (1896) and called for "all deliberate speed" in ending segregation in public education. This action, in turn, inspired people of all races to work towards the defeat of segregation in public accommodations and transportation venues, to acquire the full benefits of citizenship, and to combat prejudice and racism in society. Historians of the modern civil rights movement of the late-1950s and 1960s therefore trace its beginning to the initial Brown decision. Because of its historical significance, Monroe School, was designated as a national historic landmark (NHL) in 1991, and also was listed on the National Register of Historic Places (NRHP) in that same year.3

This historic resource study (HRS), completed for the Brown v. Board of Education National Historic Site in Topeka, Kansas, chronicles these nationally significant events, places them within appropriate historical contexts, documents related cultural resources, and appraises available research materials. The National Park Service's Cultural Resources Management Guideline (NPS-28) calls for the preparation of an HRS for each unit in the National Park System. Per agency policy, the report provides a historical overview of a park or region and identifies and evaluates a park's cultural resources within historic contexts. It synthesizes all available cultural resource information from all disciplines in a narrative designed to senior managers, planners, interpreters, cultural resource specialists, and interested public as a reference for the history of the region and the resources within a park.4

This study contains seven chapters which establish the background context in Topeka, Kansas and discuss the prosecution of the five school desegregation cases as well as the national and local impact of the Supreme Court opinions. It also provides documentary photographs of associated cultural resources, a historical base map, a chronological timeline of relevant events, copies of the joint NHL and NRHP nominations for Sumner and Monroe, nominations of associated properties, the park unit's enabling legislation, tables of pertinent litigation pertaining to school desegregation, and profiles of the Topeka plaintiffs. An extensive annotated bibliography completes the work, providing a categorized directory of relevant sources for further research. Thus, due to its comprehensive scope, the study will serve as a primary reference for interpretive programming, future research, and general park planning for the Brown v. Board of Education National Historic Site in Topeka, Kansas.5

The Brown v. Board of Education National Historic Site (NHS), a new unit in the National Park System, marks recent attempts by civil rights activists and the federal government to come to terms with important aspects of race relations in the United States. It functions as a symbol of the lengthy school desegregation campaign which prompted the

U.S. Supreme Court to overturn the 1896 Plessy segregation ruling. The Brown v. Board of Education case inaugurated the desegregation of public education by declaring the unconstitutionality of racial separation. Composed of the Monroe Elementary School and its adjacent playgrounds in Topeka, Kansas, this new
national park represents both historical fiction and irrefutable fact, refraction and reality, of the struggle to end segregated public education in the United States. Monroe first received national attention in the mid-1950s as a representative black school in the racially segregated Unified School District-501 (USD-501) of Topeka, Kansas. Administrators reserved four elementary schools, Washington, Buchanan, McKinley, and Monroe, for the city's African American children. Just as the Browns served as the focal point for the plaintiffs in this and four additional school desegregation cases, in like manner, Monroe became symbolic as a segregated black elementary school, even though it was hardly representative of most in the segregated South. Because relative parity existed between these black and white facilities, the Kansas case boiled down to a debate of the practice of segregation, per se. Counsel adeptly pointed out the obvious inconsistencies in Topeka's segregation policies, whereby children were separated in the lower grades, but mixed in junior and senior high Figure 2. Entry, Monroe Elementary School. schools. This breach in segregation policy created a very potent opportunity for a successful challenge to end all racial separation in public education.

In a broader context, however, the course of events that many simply refer to as Brown involved a complex mix of social currents, federal action, extensive litigation on state and national levels, and direct action by individuals and groups across the United States. Under the successive leadership of Charles Hamilton Houston and Thurgood Marshall, the National Association for the Advancement of Colored People (NAACP) enacted a well-planned legal campaign to end racial segregation in graduate and professional education. Through the 1930s and 1940s, litigation by a very talented group of counselors in federal and county courts chipped away at the "separate but equal" doctrine in higher education. By 1952, the organization undertook a full-fledged assault on segregation in public schools at the elementary and secondary levels. Co-counsel from the national NAACP Legal Defense and Educational Fund, Inc. (LDF) offices in New York City oversaw the coordination of five separate cases which attacked segregation in public elementary and secondary schools.

The appeals process culminated a year later in a hearing before the U.S. Supreme Court which dealt with these consolidated school desegregation cases. The lead plaintiff, Oliver Brown, in the case from Topeka, Kansas, headed a docket which included Harry Briggs, Jr., et. al. v. R. W Elliott et. al. (South Carolina), Dorothy E. Davis et. al. v. County School Board of Prince Edward County, Virginia, et. al., Francis B. Gebhart, et. al. v. Ethel Louise Belton, et. al.' (Delaware), and Spottswood Thomas Bolling, et. al. v. C. Melvin Sharpe, et. al. (District of Columbia). Brown v. Board of Education gave its name to the composite litigation primarily because, by sheer circumstance, that case led the docket, but also because it epitomized the basic issue of each; namely, the denial of due process as guaranteed by the Fourteenth Amendment through the practice of racial segregation. Expert witnesses focused on the lessons of inferiority, learned in segregated classrooms by virtue of their separation and exclusion from the majority group in society. On May 17, 1954, after two years of delay and

argument before the Court, Chief Justice Earl Warren announced the unanimous landmark decision which overturned the Plessy v. Ferguson precedent of segregated facilities. The high court ruled that racial segregation had violated the right of due process granted to all citizens because separate schools were "inherently unequal" and bestowed a sense of inferiority upon their students. The decision ended the 1896 "separate but equal" finding in Plessy v. Ferguson which had sanctioned separate public facilities in the United States. On May 31, 1955, the Court issued another unanimous opinion regarding the implementation of the desegregation decree, urging states to comply "with all deliberate speed." These constitutional victories stripped away the underpinnings of a segregated society and marked the commencement of the modern civil rights movement.

While the opportunity to eradicate inequality came via the U.S. judicial system, this national "debate" about the desegregation of public schools included a virtual cross-section of all Americans. Jack Greenberg, former Director of the NAACP LDF, believed the school desegregation cases "helped to crystallize a national commitment to eradicate racial inequality."2 The convergence of grassroots and federal action initiated a groundswell of responses, from those who sought equalization and integration as well as those who fought to retain social subjugation and separation. Segregationists predominantly from Southern states rallied quickly to oppose what they perceived as an encroachment by a federal branch of government into the powers of state and county officials. Both the desegregation successes and their staunch opposition naturally led to a broader movement for equitable treatment that lasted into the 1970s. The two camps squared off over efforts to desegregate public accommodations, housing, and interstate travel, to facilitate voter registration and political participation, and some who wanted to establish personal and group identities via "Black Power." Although the civil rights movement diversified, many African Americans and their white supporters ultimately sought to equalize access to opportunities and fair treatment across the United States through many avenues broached during various stages of the movement.

Although the Supreme Court struck down the constitutionality of racial segregation more than forty years ago, society has engaged in a wrestling match over judicial powers, local options, and citizens' rights during the course of these decades. The United States continues its angst over race relations and fair treatment to the present. These issues interject themselves into virtually every aspect of public policy and most matters of private concern, such as criminal trials, gender issues, human relations, free expression, national educational standards, and affirmative action programs. The trend shows no signs of stopping. A discussion of the "after-effects" of Brown merely continues on-going conversations about everyday life in America and the people who participate in it. The Brown v. Board of Education NHS will provide a focus for these machinations and instruct the public in the process. Visitors who explore Topeka's participation in the school cases will learn of the broader campaign which initiated them and understand the contributions of all who worked to achieve its goals. The site provides the opportunity to analyze a comprehensive collection of actions, policies, and feelings, which denote the remarkable power of people to change their beliefs and behaviors. The call for legal affirmation by plaintiffs in the five cases exemplifies the persistent democratic contest for sovereignty and the specific struggle by African Americans to gain equitable status in society. As a new historic site, Monroe Elementary School joins an elite group of cultural resources in the National Park System which reaffirm optimism in the United States tradition of demanding full constitutional protection and confidence that the nation's political institutions will grant it.

For almost fifty years, the Brown rulings have been synonymous with efforts to achieve educational equality in America's public schools and equity in all walks of life. These events marked an evolutionary leap in the gradual development of the concept of equality in this nation. As Stanley N. Katz explains, "Substantive equality (the notion that there is only one community of rights holders, that everyone is entitled to equal treatment in all aspects of life) came to maturity in constitutional jurisprudence in 1954 in Brown v. Board of Education."3 By extension, the physical resources associated with these events possess importance, as well. Monroe Elementary School, now serving a new role as Brown v. Board of Education NHS, retains national historical significance for its association with these events that culminated in the landmark U.S. Supreme Court decisions of 1954 and 1955 that resolved the school desegregation cases. It will function as historic site and clearinghouse for information about the five school desegregation cases, as well as the broader endeavor for constitutional equality and its implementation.

The fundamental explanation of this dramatic progression lies with the people who initiated it, who retained the inner will and stamina to translate ideas into action and accomplishments. Their story follows. This historic resource study provides a comprehensive look at those who participated in the school desegregation campaign, their frustrations and successes. It provides a comparative analysis that places Brown v. Board of Education in a national framework, thus linking local players and events with the national significance of this landmark Supreme Court decision. While the study primarily concentrates on the people and events of the school desegregation cases, it also addresses the physical resources they left behind. The story begins with the backdrop of Kansas, the settlement of Topeka, and the growth of its African American community. Chapter Two deals with educational opportunities, the evolution of segregation in Kansas, and early attempts to stem the practice of racial separation. The focus then shifts, in Chapter Three, to Charles Hamilton Houston's work with the NAACP on the national scene. He directed the agency's litigation strategy to overturn the constitutionality of segregation in the 1930s and 1940s and trained an elite group of civil rights attorneys who formed the NAACP's LDF. This chapter also explores key legal successes in the desegregation of professional and graduate educational programs, and the NAACP's decision to enter cases pertaining to secondary schools in South Carolina and Virginia. Chapter Four examines the specific litigation at the district court level for the five school cases through 1952. Arguments before the U.S. Supreme Court, interrupted by a variety of circumstances, are related in Chapter Five. It examines the oral arguments from 1952 to 1954 and the final resolution of Brown I, with a focus on related subsequent arguments on implementation of the desegregation decree and the 1955 edict of "all deliberate speed," issued through Brown II. Chapter Six looks at some of the more immediate effects of the Brown v. Board of Education decisions, by examining desegregation efforts in Topeka, Delaware, and Washington, D.C., and by tracing the dramatic story of retrenchment and denial in Virginia and South Carolina. The physical evidence of these critical events remain in extant cultural resources. Chapter Seven surveys representative buildings, structures, and landscapes which supplement the documentary record and traces the evolution of the new national park which offer a comprehensive interpretation of the landmark desegregation victory.

TOPEKA SITES

(RELATED TO BROWN V. BOARD)

The story of segregation in Topeka is composed of well-crafted strategy and capricious chance. The crux of the combined appeal was characterized by the main event in Topeka; Oliver Brown's plea for his daughter to be allowed to walk five blocks to attend Sumner School rather than ride across town to Monroe Elementary. Through the distance of time, her singular experience has overshadowed the chain of events that initially fueled the comprehensive legal action. This is one of several misconceptions about the history of Brown v. Board of Education which will be corrected in the following account. First of all, timing was crucial because the NAACP campaign was well­ established by 1950 and effectively had won desegregation suits for graduate and professional academic programs. The Topeka branch chapter capitalized on the momentum from the national campaign and the successful desegregation of the city's junior high schools and requested assistance from the national organization for further assistance. Quite ironically, it was the condition of equality that revealed the glaring inequality of segregation. The Association had not intended to pursue desegregation in primary grades when the opportunity arose in Kansas, but it provided an almost perfect application of the "separate but equal" test deemed constitutional by Plessy. Second, plaintiffs relegated to the et. al. designation largely have been forgotten, but their hard work and determination contributed to the success of the school cases. Thirdly, some participants faced resistance within their own black communities for shaking up the status quo. Fourth, busing, which once carried the stigma of segregation, became in the 1970s, the panacea for racial separation. Last, and most important, however, was the element added by the Kansas case. The relative equality of Topeka's elementary schools provided an important basis for debate on segregation, per se, because it removed equalization as a potential remedy for racial discrimination.

The twists and turns of fate brought Topeka and its citizens to the forefront of the national battle for constitutional and social equality. Image and reality characterize the historical record of Brown because memory contributes to, just as it distorts, the historical record. As we search for a "useable past," the two become intertwined. Edward T. Linenthal, who has extensive experience in this field, commented on the need for both, specifically in the interpretation of museum exhibits, but also at historic sites. He cautioned,

Without the commemorative voice, history exhibits run the risk of being just "books on the wall," with little to fire people's imaginations. Without the historical voice, such exhibits become vulnerable to the seduction of personal memory and to the expediency that so often governs what nations choose to remember.

NPS professionals must balance the two in the interpretation of the school desegregation campaign at the Brown v. Board of Education NHS. The politics of nostalgia will certainly come into play, but should be steadied with historical accuracy. The people in the Kansas capital played an important role in the lengthy campaign for school desegregation and, accordingly, earned a prominent place in the formal chronology of events and in the institutional memory of the broader civil rights movement. The drive for judicial and social equality did not begin in Topeka, nor did it end there. But, this place and its people cut to the crux of the argument by providing a classic example of the inherent inequality of "separate but equal." Each in turn, Topeka, Monroe Elementary School, McKinley Burnett, Charles Bledsoe, the Scotts, the Todds, and many others served as catalyst and prism for the long, strong pull which invigorated a successful challenge to racial segregation. The pages that follow tell just how they did it.

Professor Linenthal discussed related issues of commemoration versus accurate historical representation in two larger works, Sacred Ground--Americans and Their Battlefields (Urbana: University of Illinois Press, 1991) and Preserving Memory: The Struggle to Create America's Holocaust Museum (New York: Viking•Penguin Press, 1995). David Glassberg also discusses these dynamics in "Public History and the Study of Memory," The Public Historian 18, no. 2 (Spring 1996), 7-23

Every Kansas man knows, or ought to know that the rough-hewn western men and boys who went in on their instincts as to what was right and wrong, as to what was square and fair in squatters' rights, took a full hand in all that was done in beating down the pro-slavery

power on the soil of Kansas.1

- John Ritchie

Old Settlers' Meeting, September 1879

1John Ritchie, speech presented at an Old Settlers' Meeting, Lawrence, Kansas, September 1879, quoted in John Ritchie: Portrait of An Uncommon Man, ed. Daniel Fitzgerald, Shawnee County Historical Society, Bulletin No. 68 (Topeka: Shawnee County Historical Society, November 1991), 9.

CHAPTER ONE

THE FREE LAND OF KANSAS, 1854-1900

The decade of the 1850s was one of booming expansion for the newly-opened territory, and one that placed "bleeding Kansas" at the crossroads of the slavery debate. The application of popular sovereignty in the 1854 Kansas-Nebraska Act left the territory's status to be determined by a vote of its residents. Like air rushing into a vacuum, supporters and detractors of slavery charged into the breach to win control of the territory. Life on the plains calmed somewhat by 1861 because the flashpoint moved to Ft. Sumter, South Carolina and war exploded across the southeastern United States. After the Civil War, Kansas residents hoped that the bloody process which had forged the free state would ensure a future free from racial strife. Few had such high hopes for a postbellum transformation of Southern society. Although the Civil War amendments disbanded the institution of slavery, they merely dampened racial stratification for the short term. After Reconstruction, white Radical Republicans lost their passion, the flurry of social reform fizzled, and the nation suppressed regional divisions. Black Radical Republicans continued the struggle, with little success. This climate left a new generation of Southern politicians, dubbed Bourbon Redeemers, free to regain political power in former Confederate and border states. The self-proclaimed Redeemers devised new segregationist practices to reestablish hegemonic control over the African American population in the South and lower Midwest. Migration into Kansas increased proportionately once the Civil War was formally underway. The total black population in Kansas increased from less than one percent in 1860 to almost nine percent by 1865. The climate of postbellum society, combined with the lure of available land in the West, convinced many remaining Africans Americans to leave the South. In 1879, "exodusters" left Tennessee, Georgia, and Alabama for fertile lands west of the Missouri River, where they might establish lives free from racial prejudice and restriction. Many Kansas communities welcomed the newcomers initially,but race relations became tense and stratified during the last quarter of the nineteenth century. Individuals and groups, alike, challenged discriminatory treatment, but a national preoccupation with the "separate but equal" panacea limited their success.2

A. Ad astra per aspera

The Kansas state motto, ad astra per aspera, translates as "To the stars through difficulties." It, on the one hand, expresses unbounded optimism in limitless ambition. On the other, it expresses full recognition that potential obstacles lie in the way of those ambitions. The maxim suits the state's territorial beginnings because the settlement of Kansas comprised the most violent domestic circumstance of the 1850s. The Kansas­ Nebraska Act of 1854 opened the two territories to settlement and potentially to the exansion of slavery, through repeal of the Missouri Compromise of 1820. Senator Stephen Douglas' bill caught the nation's attention because the subsequent admission of these two states threatened to disrupt parity between slave and free states, which, in turn, would disrupt the balance of power between these respective political forces in Congress.

Migration west of the Mississippi River during the first quarter of the nineteenth century raised the first serious examination of the expansion of slavery. Political leaders quashed confrontation over slavery through the Missouri Compromise (1820) which provided for the admission of Missouri as a slave state, but forbad any further expansion of slavery north of the 36 30' parallel. This measure temporarily curbed discussion about slavery's advancement north of cotton-producing lands, but the nation continually flirted with the issue throughout this period. Senator Douglas re-opened serious debate in 1854 with the proposal to repeal the Missouri Compromise and its 36 30' boundary, to form two territories from the expanse of land, and to allow settlers to determine the political status of each through the democratic practice of popular sovereignty.

When Congress approved the Kansas-Nebraska Act, it opened the region to competition between the friends and foes of slavery. The free status of Nebraska Territory was settled easily compared with that of Kansas. The latter territory, located immediately to the west of slave state Missouri, became a proving ground for the future of slavery in the United States. The New England Emigrant Aid Society, led by Eli Thayer, immediately sent "colonists" to Kansas to set down roots for a free citizenry.' The society exerted a brief, but strong influence in the effort to stop slavery and other organizations followed its example. Pro­ slavery advocates also poured in, from Missouri and southern states, to counter the free position. By 1855, democratic promise had given way to physical intimidation in the fight over Kansas. "Border ruffians" skirted across the Missouri state line, effectively invalidated elections, and harassed free-soil advocates. Free state "Jayhawkers" retaliated in like manner and soon this competition over whose sovereignty would prevail embroiled Kansas in a series of mini-wars.

The term, "bleeding Kansas," appropriately describes the situation in the mid-1850s. The first election for a territorial legislature, held in March 1855, began the controversy over the legitimacy of elections, voter eligibility, and the validity of election returns. Pro-slavery forces and free-staters vied repeatedly from 1855 to 1860 for the establishment of a government and constitution which codified their respective platforms. Both succeeded, with a free assembly based in Topeka and one in Pawnee, moved later to Shawnee Mission, which sanctioned slavery. The problem was that Kansas now possessed two legislatures, each negated by the other as bogus. Topeka provided the site for the first constitutional convention. Free­ staters dominated the proceedings, therefore the Topeka Constitution outlawed slavery in the Kansas Territory. President Franklin Pierce denounced the Topeka legislature and the government it offered. His administration officially recognized the pro-slavery government formed in Shawnee Mission, funded it, and initially accepted its constitution. With federal backing then, the pro-slavery legislature began to organize counties, made political appointments, and moved the capital to Lecompton. But, Kansas' future was by no means settled because Congress had not acted on any of its constitutions.'

By spring 1856, sectional forces had split the Kansas Territory into two factions. Free­ staters vowed to ignore all power held by the "bogus" pro-slavery government. Residents of free towns, Topeka, Lawrence, Osawatomie, and Manhattan, opposed pro-slavery settlers in Atchison, Leavenworth, Kickapoo, and Lecompton. Violence rose to a new height in 1856, the year which characterized "bleeding Kansas" more than any other. An imminent clash lay ahead because pro-slavery Lecompton was located approximately twelve miles east of Lawrence, a free town. In May, a group of pro-slavery men from Missouri, composed of army officers, sheriffs, and civilians, arrested anti-slavery men in Lawrence and ransacked the town. Those on the free labor side vowed revenge. John Brown, with four of his sons and a few supporters, rode from their homes in nearby Osawatomie two days later and murdered five pro-slavery men living in a settlement on Pottawatomie Creek. Brown, an unyielding abolitionist, viewed the institution of slavery and anyone who condoned it with contempt. He found solace in this retaliation for the Lawrence attack. His more famous raid would occur three years later in Harpers' Ferry and solidify his reputation as a martyr for the cause of freedom. The earlier Kansas raid, dubbed the Pottawatomie Massacre of May 1856, sparked the territory's bloodiest, and possibly longest, guerrilla war which lasted well into the fall.

The Kansas territorial government had coalesced somewhat by 1857, sporting an anti­ slavery legislature and a pro-slavery constitutional convention. Events served as a microcosm for the ultimate, national clash over slavery. Sectionalism also dominated national politics during this period, resulting in a fragmented 1856 election which put James Buchanan, a Southern sympathizer, in the White House. Slavery advocates in Kansas felt his victory cinched their crusade and a year later they submitted the Lecompton Constitution, the third such document in the territory's brief history, for congressional approval. Pro-slavery advocates and Missouri "border ruffians" engineered a territorial victory when the constitution was submitted for voter approval. The ballot count ran 6,226 for the "importation" of slaves against 569 opposing it. Buchanan supported the constitution when it arrived in Washington, but his political appointee, Kansas territorial governor Robert J. Walker, opposed it because the territorial vote on the Lecompton Constitution was fraudulent. Although Walker personally endorsed the institution of slavery, he abhorred any violation of the principle of popular sovereignty. The matter publicized the seemingly endless spate of political fraud in Kansas and led to Walker's resignation. It then fell to Acting Governor Frederick P. Stanton to resolve the controversy over the Lecompton Constitution. He held another vote, this one dominated by free-soilers, and promptly lost his job. James W. Denver, the next territorial governor, apprised Buchanan of the situation in Kansas, telling the president that the majority of bonafide residents wanted a state free from slavery. Buchanan again ignored reality and instead encouraged Congress to accept the Lecompton Constitution and admit Kansas as a slave state. The legislators balked at the request and sent the constitution back for yet another vote. Slavery advocates boycotted the political process on this go-round and free-soilers prevailed by a margin of 11,300 to 1,788. Despite the skewed vote, the referendum finally laid the Lecompton Constitution to rest.

This defeat denoted the end of any hope that slavery would serve Kansans' future labor needs. With the Lecompton question settled, Southern white migration slowed dramatically and the influx from Northern states increased. This shift in migration altered the balance of opinion within the state to such an extent that the populations of former pro-slavery cities, such as Leavenworth and Atchison, now advocated an abolitionist stance. It was in this environment that another constitutional convention met in July 1859, this time in Wyandotte, which now comprises a portion of metropolitan Kansas City. Members produced a valid constitution, accepted by voters across the territory in October 1859, that finally settled the status of Kansas. It outlawed slavery, limited the state's size to its present area, situated the capital in Topeka, enfranchised white men, gave women parity regarding rights over children and property, allowed girls to attend tax-supported schools, and set up the framework of governor, assembly, and some political appointments. Congress formally admitted Kansas as the thirty-fourth state in January 1861, adding one more free state to a very fragmented Union on the brink of civil war.

Kansas enjoyed a brief period of calm as the Civil War exploded in the southeastern United States. Seven states seceded in December 1860, in direct response to Abraham Lincoln's election as president of the United States. Four others followed in April 1861 after the fateful stand-off at Fort Sumter, comprising a total of eleven in the newly-created Confederate States of America. The conflict spread westward, though, and Kansans found themselves embroiled in another border war with Missourians. "For Kansas," Kenneth S. Davis phrases it, "the outbreak of the Civil War was not the shock that it was to most Americans and meant no totally new departure from familiar ways of life."11 They endured guerrilla raids by Confederate supporters, Sterling Price, William C. Quantrill, and their followers, and bore the retaliatory violence of Unionist forces led by James H. Lane, Samuel J. Crawford and many more. With the war's end in 1865, however, the interstate squabbles fell away and were replaced by a unified focus on Indian removal.

Veterans enlisted in the U.S. assault against Native American tribes throughout the West, but particularly focused on the newly-settled areas of Kansas. A series of forts across the region functioned as safe-havens and supply stations for cavalry units mandated to control the native populations. The federal removal program generally resulted from inherent feelings of cultural superiority and racism towards natives, as well as some rather brutal attacks on early settlers. Kansas lands once occupied by the Pawnee, Kansa, Osage, Wichita, and Comanche were viewed by whites as free for the taking. The federal government used military might, persuasion, and intimidation to make that a reality. For the most part, the Indian wars in Kansas ended by 1878. Buffalo herds were all but extinguished by that time and most tribes had been removed to reservations in the Oklahoma Territory or restricted to preserves in Kansas. Potential settlers from the eastern United States now viewed the new state as stable, profitable, and bound for extraordinary economic growth.

Throughout its turbulent "birthing period," the people of Kansas sought to establish farms, businesses, town centers, and rural communities. The battle over slavery provided an initial "pull" for many newcomers. Gold discoveries in the western region of the territory, in present-day Colorado, supplied another incentive. The flood of ideologues and wealth­ seekers, in turn, facilitated business opportunities for those who would make Kansas their home. American citizens and European immigrants, alike, took advantage of opportunities offered by the 1862 Homestead Act by staking out 160-acre claims. Thousands of African American migrants flocked to what they hoped would be the "promised land" after the "opening" of the Kansas Territory. The resurgence of prejudice and racism after Reconstruction encouraged these people to seek better lives in the West. The availability of abundant land, virtually free from cost, made the move even more appealing. The railroad also aided settlement and economic growth in Kansas. Rail companies owned more than ten million acres across the state in the 1870s and dispensed most of it through public auction and relocation of European immigrant groups. Rail lines also facilitated the cattle drives from Texas to the "cow towns" of Abilene, Newton, and Dodge because they provided relatively quick access to eastern markets. By the turn of the century, Kansas was teeming with activity and truly seemed to be a free land open to boundless possibilities.

The phrase, "to the stars through difficulties," quite appropriately describes Kansas' entrance into the Union. Its initiation was unlike that of any other state. The prolonged and bitter constitutional debates, felonious elections, and bloody violence that characterized its organization signalled the determination of its people to make Kansas their own. From its beginning, Kansans addressed the toughest of issues--rule of the majority, the concepts of human freedom, democracy, and slavery--through numerous constitutional debates. Race permeated these deliberations because the question of slavery defined the state. Race relations were another matter, though, because one might oppose the institution of slavery, but regard African Americans as inferior to white Americans. After Reconstruction, society seemed to back away from progress towards full racial equality. Although the Thirteen, Fourteenth, and Fifteenth Amendments to the U.S. Constitution cleared away the legal vestiges of slavery, the stigma that white Americans attached to color remained. By the end of the nineteenth century, people were recovering somewhat from the long-term effects of the Civil War. A large number of white Americans were weary from the fight for human rights, held fast to misconceptions about people of color, and became competitive and defensive during a series of economic downturns and deep recessions during the late nineteenth century. Opportunities for blacks diminished in this climate, even in the free land of Kansas.

B. Topeka emerges from the maelstrom

The founders of Topeka directly correlated their actions to the on-going intrigues regarding the possible extension of slavery into the new territory. A group, including Cyrus

K. Holliday, Fry W. Giles, Milton Dickey, and others, met on the banks of the Kansas (Kaw) River on December 5, 1854 and declared it a lovely spot for the future state capital. These men caught "Kansas fever" and migrated from the eastern U.S. with the determination to reap the plentiful bounty of the Great Plains through land speculation, but also to impose morality and justice on an otherwise "wild west." They met at "Papin's Ferry," a landing site on the north side of the Kaw established by Joseph and Ahcan Papin in 1842. The brothers carried traffic along a military road which extended from Fort Leavenworth to Council Grove where it joined with the Santa Fe Trail. The gentlemen had something more permanent in mind, however, and immediately organized a town association for the establishment of Topeka. William Treadway, in his documentary biography of Holliday, provides an article originally published in 1900 in the Topeka State Journal, in which Holliday recalled the site selection.

On November 22 we arrived upon the ground upon which the city of Topeka now stands, which at once impressed me as a favorable location for a great city. The selection of this town site was not an accident: It offered every advantage as a town site. Here was a great river, plenty of water, and, above all, the two great trails of the continent--Fort Leavenworth and St. Joe to Santa Fe and Independence to California crossed at this point.

The Topeka Town Association laid out the street grid on the south side of the river, apportioned lots, framed a rudimentary government, and solicited entrepreneurs who might make a go of it in their new hamlet. F.W. Giles, one of the founders, is credited with naming the town, "Topeka," a Kansa term for the Kansas River that translated as "the river upon the banks of which wild potatoes grow." The association continued its work, largely under the direction of Cyrus Holliday, until its dissolution in 1859.

Holliday had ventured west from Meadville, Pennsylvania, where his wife and newborn daughter remained until he prepared a home for them. During the intervening separation, he described the open country, its harsh conditions, and efforts to modify them in letters to his wife, Mary. On December 24, 1854, Holliday wrote, "Our city site is without a doubt the prettiest in the Territory-the country 'round is more extensive and better for agricultural purposes than any other I have ever seen and the right kind of men have taken hold of it." Most of the "right kind of men" were Congregationalists associated with the New England Emigrant Aid Society. The society pursued four goals through its colonization efforts in Kansas; those being freedom, religion, education, and temperance. Holliday, himself, acted as a temporary agent for the company, along with Dr. Charles Robinson, a Massachusetts native, who functioned as its principal resident agent and later served as Kansas' first governor. Many chroniclers write that the very character of Kansans sprang from these Congregationalist/ Puritan roots. These early settlers held strong abolitionist sensibilities and fought valiantly to tip the balance of popular sovereignty towards freedom. The temperance question also held particular sway with them and, as a result, the Topeka association prohibited the sale of alcohol on any town lots distributed by the group. Despite the founders' best efforts, however, at least four saloons were in operation by July 1855.

From the beginning, Topekans intended their town to serve as capital of the free state. Holliday visited Governor Reeder in Shawnee Mission as early as February 1855 to offer the suggestion, but received little response. Pro-slavery advocates forestalled Reeder's efforts to establish a rudimentary government for the territory and several preliminary elections for legislative delegates fell by the wayside. The "border war" that ensued during the next few years disrupted all hopes for political stability. Free-staters rejected the "bogus" pro-slavery legislature that emerged from the intrigue and retaliated by convening a "Free-state" constitutional convention in Topeka on October 23, 1855. The Topeka Constitution proposed free status for Kansas, rejected the potential settlement of both slaves and free blacks, outlined state functions, and petitioned for statehood. Conventioneers established a provisional government with Charles Robinson as governor and an "executive committee11 to oversee the logistical operations of the government. On December 1, 1855, the Lawrence Herald of Freedom reported,

In the absence of any other legally constituted authority, this committee has been invested by the people, with all the powers that may be necessary for setting the wheels of government in motion under the new Topeka Free-State Constitution; and as such they hold stated meetings once in two weeks at the office of the committee in Topeka.

The federal government, per President Pierce's direction, rejected the rebel government in short order and accused its participants of treason. The entire episode was a serious setback for the free-staters, but Holliday successfully used the Topeka and Wyandotte Conventions to advance his notion that Topeka should serve as the future state capital. Like a tornado sweeping across the plains, the resultant fight over Kansas pulled communities, one by one, into the vortex. The long, contentious ordeal finally ended victoriously for Topeka free-staters when the state entered the Union, sans slavery, in 1861.

John Ritchie, who joined the Topeka community in April 1855, served as a key participant in events on both territorial and local levels. He immediately joined the town association soon after his arrival and spearheaded the anti-slavery crusade in Topeka. From 1857 to 1861, he and his wife, Mary Jane Shelledy Ritchie, "conducted" enslaved African Americans to freedom via the underground railroad. One path of this national network extended northward from Topeka through the small communities of Norton, Kansas and Nebraska City, Nebraska. Ritchie also participated in at least three constitutional conventions that proposed free status for Kansas. He attended the Topeka Convention, alongside Cyrus Holliday and future Senator James H. Lane, and later, at the Leavenworth Convention led a successful assault on the "Black Law," which had banned African American settlement in Kansas. John Ritchie also attended the successful Wyandotte Convention in 1859 as a delegate from Topeka and Shawnee County. During this period, Ritchie established a reputation as a fearless abolitionist, friend ro John Brown, staunch prohibitionist, and important ally of blacks, women, and the poor.21

With the Kansas question settled, he turned to local events and shaped much of the modern-day landscape of Topeka. As early as April 1856, John Ritchie proposed the establishment of a "Christian college" on a wooded site above the Shunganunga Creek. Fellow Congregationalists endorsed the suggestion one year later and appointed a committee to finalize its location. Ritchie actively participated in the committee's work amidst the fracas over Kansas' fate. Unfortunately, the group discovered that the 160-acre lot that Ritchie sought was privately owned, but a turn of events made the land available and Ritchie tenaciously pursued financing for its purchase. He obtained the land in 1860 and promptly turned the deed over to the Town Association for the establishment of the Topeka Institute. A few financial glitches delayed the final transaction until February 1865 when the college became incorporated as Lincoln College, in honor of the president. For this era, the institute lay quite a distance from Topeka, proper, so a boarding school was constructed on site to serve as student housing. School administrators also built a preparatory school, known as the Academy Building, on two town lots near Tenth and Jackson Streets donated by John Ritchie for the convenience of non-boarding Topeka residents. The institute's name changed a third time during this growth spurt, specifically in 1868, in tribute to benefactor Ichabod Washburn of Worcester, Massachusetts.22 This name stuck and Washburn became known as a well­ spring for liberal arts and legal education in the Kansas capital. Although its name had changed, the Congregationalist foundation of fairness and equitable treatment imbued the institution with a high level of integrity. Washburn's charter announced "the incorporation of an institution of learning of high literary and religious character which shall commemorate the triumph of liberty over slavery in our nation and afford to all classes, without distinction of color, the advantages of liberal education."23 From its beginning, Washburn welcomed African Americans and graduated some notable black scholars through the years.

With the college successfully underway, John Ritchie turned his attention to other civic matters. He apparently owned significant acreage in the very heart of Topeka and, ever the enthusiastic booster, donated several city lots in the heart of Topeka for commercial development. In 1859, Richie purchased from Jacob Chase a 160-acre claim located to the southeast of town, apportioned as Northeast 1/4 Section 6, Township 12, Range 16, on which he built his residence and farm. Ritchie's generosity had few bounds because he also donated some of his farmland to former slaves and to the poor of both races, with the provision that they would "improve" the land through residential development. Mary Ritchie Jarboe, a descendant, writes that the Topeka Weekly Leader praised John Ritchie's racial tolerance, by noting that "The General [Ritchie] calls it the free soil principle and seems bound to build a city upon his farm, although he does not realize one cent for the land."24 This is not to imply, though, that Ritchie gave everything away. In the late 1860s, he subdivided portions of his farm into lots ranging in size from 75' to 100' and sold them to any purchaser regardless of race. Topekans referred to John Ritchie's farm and these cumulative grants as "Ritchie's Addition," which roughly extended due east along Tenth Avenue to Huntoon, then following a line southward along Van Buren Street to Seventeenth, where the boundary extended eastward, and turned north along the bends of the Shunganunga Creek. This area later spanned many important Topeka neighborhoods along Kansas Avenue, Quincy, Monroe, Madison, Jackson, and Harrison Streets. Just as he provided home sites for freedmen in life, Ritchie also set aside a resting place for them after death. Topeka Cemetery was almost exclusively reserved for white residents of the capital city. Ritchie, therefore, donated an adjacent parcel of land, thereafter named Mount Auburn Cemetery, to serve the needs of African Americans and poor whites.

Topeka's African American population began to boom after the Civil War due to mass migration from former slave states. Mary Ritchie Jarboe estimates that the influx into Kansas jumped from 816 to 13,000 during the 1860s, alone." Not all remained in Topeka, but many who did found their way to the fair-handed John Ritchie. The resultant development attracted the attention of Topeka's leaders who made two unsuccessful attempts, beginning as early as 1867, to annex "Ritchie's Addition." Despite staunch opposition by Ritchie and other residents, the town proceeded with its plans and began to make public improvements in the area. Ritchie responded with legal action, claiming that because his original grant lay outside of the city's borders, it fell beyond Topeka's political purview. In 1885, residents of "Ritchie's Addition" formed their own town, appropriately named South Topeka, and John served as its first mayor. This political independence was short-lived, however, because Topeka absorbed its southern neighbor in January 1888, a mere three months after John Ritchie's death."

For Cyrus Holliday, ambition, rather than compassion, underlay his impact on Topeka. Upon its founding, the Kansas River seemed to form a 1 natural, lasting boundary between the capital city and the small town of Eugene, situated across from Topeka on the river's northern banks.

The two settlements grew in tandem until a group of Topeka entrepreneurs, led by Holliday, devised a plan to extend a railroad line across the Kansas River, thus threatening to annex Eugene. Somewhat ironically, Stephen Douglas' initial motivation for drafting the Kansas-Nebraska Act in 1854 had stemmed from a proposal to construct a transcontinental railroad system through this portion of the Louisiana Territory. The railroad project proceeded during the Civil War and the Union Pacific Railroad (Eastern Division) reached Topeka, by way of Lawrence, in 1865. The Union Pacific ultimately became the first of many lines steaming their way across Kansas, and Holliday wanted some of the action. He reputedly had come to Kansas with $20,000 in his pocket for just such a venture and, after Kansas stopped bleeding, he set out to make his fortune in Topeka. According to plan, the city leadership formally incorporated Eugene in 1867. This opened the area, renamed North Topeka, to rail traffic southward across the Kansas River. The way was open, then, for Holliday to found the Atchison, Topeka and Santa Fe Railroad in 1869, making it only the second railway to cross the state. A new railroad bridge spanning the Kansas River completed the scenario, providing easy access for trains originating in Atchison to continue across the river, southward through Topeka, and on to western destinations.

Holliday's venture involved several trips to Washington, D.C. and New York City, political wrangling, treaties with the Osage, Pottawatomie, and Wyandotte tribes, as well as hard work by countless unnamed individuals. The Atchison, Topeka, and Santa Fe added an important economic boon to rural Kansas and made Topeka an important regional transportation center. Holliday located the line's large administrative and maintenance complex at the eastern end of First Avenue, just south of the Kansas River. The Santa Fe "shops" augmented Topeka's economy by providing a booming market for goods, services, and workers. Many African Americans and immigrants found relatively lucrative employment with the railroad, albeit in a general climate of discrimination and prejudice. Cyrus Holliday proved to be a key figure in Topeka history because he directly influenced the city's economy, political authority, and physical landscape. While these accomplishments certainly rest on the hard work of hundreds of Kansans and at the expense of the Pottawatomie, Wyandotte and Osage peoples, one cannot deny the important role that Holliday played in Topeka's development. He possessed the vision and drive which spurred the city to become the Kansas state capital and vital distribution/transportation center.29

In 1879, John Ritchie spoke before an "Old Settlers" meeting which was held in Lawrence as a reunion, of sorts, to honor those who led Kansas through adversity to booming prosperity. He particularly praised his fellow pioneers for maintaining the tough stand for freedom and providing safe haven for those who fled the discrimination of the Confederacy. Researchers can single out individuals, like Ritchie and Cyrus Holliday, who are known in the historical record for the direct impact of their actions. But, historians also must remember the anonymous thousands who established free communities across the state and contributed to their later prominence. Topeka stands as merely one example, but is pertinent here for its later history associated with the school cases of the 1950s. From one perspective, Topekans remained true to their religious, free-state roots, by treating blacks and immigrants with an uncommon degree of acceptance in the late-nineteenth century. From another, residents supported political platforms which called for the exclusion of blacks from the Kansas Territory, discriminated against those who settled in Topeka, and enacted segregation policies which restricted African American rights. Richard Kluger, noted chronicler of the landmark Brown v. Board of Education case, recognizes this sense of moral ambiguity on the part of white residents. He points out that Topekans demanded free status for all people, but then manifested discrimination and prejudice towards Native Americans, African Americans, and immigrants from eastern Europe. "Moral ambiguity" seems a fitting description, given the evidence from the written record. Indeed, Topeka initially extended freedom and opportunity to African Americans, but as the century progressed, the community tempered these by imposing stigma and separation on their black residents. The impetus then fell to African Americans themselves, to react to the increasingly restrictive conditions.

C. Building the African American Community

Issues regarding race, racial equality, and race relations certainly permeated the founding of Kansas and Topeka by virtue of the national debate over the expansion of slavery into western territories and, later, the discontinuation of the practice, altogether. African Americans poured into the new state because they believed that its firm stance against slavery indicated a population favorable to their settlement. They benefitted somewhat from the Homestead Act of 1862, which granted 160 acres to those who would register their claims and reside on them for at least five years, and the 1873 Timber Culture Act which added another 160 acres if the prospective settlers planted and maintained trees on the land. The federal government also sold lands vacated through forced Indian removal at public auction, sometimes for as little as $1.25 to $2.50 per acre, and railroads eagerly sought occupants for their properties for little more than that. African Americans perceived Kansas as a new "Canaan," a promised land, based on its favorable social climate and abundant land--so they set out for the plains by the hundreds.31

The masses seeking Canaan in the 1860s and 1870s found that they were not the first African Americans in Kansas. Some early black residents lived in the area as bound slaves. A rather large population of African Americans, estimated at 500, came from Santo Domingo in 1718 to work under the direction of ethnic French entrepreneurs in lead mines located near present-day Pittsburgh, Kansas. Others arrived much later, during Andrew Jackson's programmed Indian removal in the early s, with Native Americans from the southeastern United States. U.S. Army officers and dragoons serving in the network of forts that stretched across the region also used black slaves as cooks, domestic servants, laborers, and personal attendants. Most African Americans arrived after the Kansas Territory officially opened to white settlement in 1854. Pro-slavery settlers brought bound servants with them in a concerted attempt to establish the institution in Kansas. An 1855 census recorded 151 free African Americans and 192 slaves living in Kansas in that year. The underground railroad handled a brisk business during this period, with the primary escape route running westward from the slave state of Missouri through Lawrence and Topeka, then turning northward to Norton, and on into Nebraska. Free blacks, fugitives, and slaves, in a limited sense, functioned as pawns in the political game of sovereignty for "bleeding Kansas" and their numbers reflect the tug-of-war between pro- and anti-slavery factions. The game was up by 1860, when a reported 625 free blacks and only two slaves then resided in the territory.32

Black Kansans, including those who migrated by choice and by force, strengthened the Free-Staters' cause through military service in the Civil War. Under James H. Lane's initiative, they staffed at least two infantry units before President Lincoln opened the Union Army to African American recruits and two after he relented: the First Kansas Colored Volunteers (later 79th U.S. Colored Troops); the Second Kansas Colored Volunteers (later 83rd U.S. Colored Troops); the Leavenworth Colored Militia; and the Independent Colored Kansas Battery. The term, "volunteers," was apparently a misnomer because white officers pressed many former slaves from Missouri and Arkansas into service. Despite some forced enlistments, these soldiers established strong military reputations through battles on the Kansas-Missouri border and skirmishes with Confederate units from Arkansas and Texas. Military engagement and disease culminated in relatively high casualty rates, which were supplemented by a high incidence of desertion. Those who endured earned high distinction for their contributions to the Union victory in 1865.33

Thomas Cox's meticulous research on the development of Topeka's African American community provides valuable information about the growth of this segment of society after the Civil War. He regards Ann Davis Shattio and her husband, Clement Shattio (also known as Claymore Chattilon), as the first African American and white, respectively, circa 1852, to settle near present-day Topeka. The historical record is a bit cloudy as to details about their experiences, but the chronology shows that Ann Davis, born a free person in Illinois, was kidnapped and forced into slavery in Missouri. She served under several "masters" there before regaining free status. She married Clement Shattio, descended from French heritage in St. Louis, in Uniontown, Kansas. The Shattios moved to a farm located approximately one or two miles west of Topeka, where they lived for more than twenty years. Others, free and slave, followed in due course after the town's official founding in 1854. Independent African Americans came to the new town despite evidence of some Free-State bias against their

32"Historic Preservation in Kansas: Black Historic Sites, A Beginning," Historic Sites Survey, Kansas State Historical Society (Topeka: Kansas State Division of Printing, 1977), 6-8.

33DudleyTaylor Cornish, "Kansas Negro Regiments in the Civil War," Kansas Historical Quarterly 20, no. 6 (May 1953): 417-429; Cox, Blacks in Topeka, 17-19; "Historic Preservation in Kansas, Black Historic Sites," 8; and Sheridan, "From Slavery in Missouri to Freedom in Kansas," Kansas History, 12, no. 1 (Spring 1989).

24 BRv B Historic Resource Study

settlement in Kansas. Cox finds that, initially, black and white communities were mixed in 1865, but some movement had occurred by 1868 in favor of "racially homogenous neighborhoods." Four distinct neighborhoods existed; namely, Ritchie's addition in southern Topeka dubbed "Mud Town," an area on the southern bank of the Kansas River called "the Bottoms," a corridor along First Avenue near the Santa Fe Railroad offices, or "shops," and an area of North Topeka called "Redmonsville" became increasingly populated by African American households. By 1880, Tennessee Town emerged in southwestern Topeka, as a result of the Exoduster migration from the southeastern United States.34

Although the Exoduster movement of 1879, proper, brought a tremendous influx of African American settlers to Topeka and Kansas, it does not account for all black migration during this period of growth. Some wishing to establish cohesive "colonies" appeared as early as 1873. African Americans left former Confederate and border states, particularly Missouri, in increasing numbers as Southern "Redeemers" regained control of the political and economic processes during the 1870s. The stream of migration from the Deep South tended to flow through St. Louis, across Missouri, and into Leavenworth or Wyandotte, otherwise known as Kansas City. Blacks were also pulled out of the South by various factors, including the availability of cheap land, the opportunity for land speculation, the libertarian reputation of Kansas, the attractive advertisements of western settlements, and persuasive entreaties of emigrant agents. Various colonization societies capitalized on these incentives; the most famous was led by Benjamin "Pap" Singleton, a freed slave from Nashville, Tennessee. He began his work in 1869 with the formation of the Tennessee Real Estate and Homestead Association. Singleton initially encouraged African Americans to establish farms in Tennessee, but the reactions of white residents quashed his efforts. He turned, instead, to Kansas and circulated posters and pamphlets which touted its abundant land and benevolent social climate. From 1874 to 1883, "Pap" and his colleagues escorted several groups to Kansas yearly and directly participated in the establishment of Singleton Colony (1874) in Cherokee County and Dunlap Colony (1878) in Morris County. W.A. Sizemore, A.W. McConnell, and N.A. Napier also participated in these ventures, but Singleton emerged as symbolic leader of black migration from the South. He became known as "Father of the Exodus" and "Moses of his People" because his work helped African Americans escape the social remnants of slavery and establish independent lives.

Singleton was not alone in these endeavors, however, for other groups gathered freedmen from Tennessee, Kentucky, Louisiana, and Mississippi for resettlement and some migrants simply established towns on their own. Organizers from both races, notably William Griffin, George Brown, W.J. Niles, and W.R. Hill also actively participated in this movement. Niles and Hill, in fact, contributed to the founding of Nicodemus, Kansas--perhaps the state's most famous African American community. In 1877, they pulled settlers from Kentucky and eastern Kansas to join the Nicodemus Town Company. In July of that same year, a group of thirty founded the town of Nicodemus near the banks of the Solomon River in Graham County. More emigrants from Kentucky, Missouri, and Mississippi arrived during the next few years and the colony's population neared 700 by 1880. The settlement hit its apex in the mid-1880s, when the town center could boast a commercial district, post office, church, school, and social clubs. Unlike some African American communities from this period, Nicodemus held on through declining populations, internal divisions between town company and colony, tensions with neighboring white ranchers, poor harvests, and natural disasters. While its settlement falls outside of the 1879-1881 temporal parameters which define the Exodusters, Nicodemus fits the movement of African Americans from the South to the Midwest in the 1870s and 1880s. Nicodemus survives as the most important African American town, dating from the pre-Exoduster period. The town's historic district was nominated to the National Register of Historic Places (NRHP) in 1974 and received national historic landmark (NHL) designation in 1976 for its historical and architectural significance. Twenty years later, the Nicodemus National Historic Site became a unit of the National Park System. 36

The broad Exoduster movement, which followed in 1879-1881, amplified this historical pattern of African American migration. Nell Irvin Painter has written the classic study of the Exodusters, to date. African Americans from Mississippi, Louisiana, and Tennessee "who left the lower Mississippi Valley in a millenarian movement, seeking new homes in the freedom of Kansas," she explains, "were ordinary, uneducated former slaves, whom one of them called 'a class of hard laboring people.' "37 Those who emigrated to Kansas in 1879 and 1880 fit the precise definition of an Exoduster, but blacks who fled the South both during and after Reconstruction also participated in this broad migratory trend. Freedmen inundated Wyandotte and Leavenworth to such an extent that members of these communities formed relief committees to handle the transients' needs; specifically, for food and shelter, to provide water, police, and sanitation services, and to prevent the spread of disease. Glen Schwendemann reports that Wyandotte, alone, gained one thousand newcomers in less than a two-week period. Local groups began to raise money to enable the Exodusters to move along on their way west. These communities also begged the state government to relieve them of this overwhelming burden of humanity. Governor John P. St. John answered their pleas by reaffirming Kansas as "an asylum for the oppressed." He formed a temporary relief committee in the capital city to collect and disseminate contributions to needy Exodusters. 'The Kansas Freedmen's Relief Association built a national support network that helped emigrants reach 'Topeka and ready them for independent homesteading.38 It "drew upon philanthropists across the nation and in England," Painter explains, "and between its formation in April 1879 and its disbandment in May 1881, it distributed over ninety thousand dollars in cash and supplies."39

Glen Schwendemann describes Topeka as the "center of the relief movement" because it served as headquarters and dispersal point for the new emigrants. The first thirty who founded Nicodemus, for example, reconnoitered in Topeka before moving farther west. This became a common pattern, whereby groups would rest and resupply in 'Topeka before resuming their journeys. Newcomers first camped on its fairgrounds, until opposition mounted for an alternative. In June 1879, the relief committee then constructed temporary barracks, basically an enclosed shelter, near the junction of the Atchison, Topeka, and Santa Fe and the Kansas Pacific rail lines in North Topeka to house the transients. Not everyone kept moving, however. Many blacks who originally intended to homestead on the open plains decided instead to remain in Topeka, for a variety of reasons. Some lacked funds needed to stake and hold a homestead claim; others remained because they found greater economic opportunity, more diverse career choices, and well-established support networks there. And, the town reflected the sudden influx of eager homesteaders and bona fide Exodusters, for its black population grew from 83 in 1865 to 3,648 in 1880. Segments of this population formed "Tennessee Town," a new African American neighborhood in southwestern Topeka, bounded on its eastern edge by Buchanan Street, Washburn on the west, 'Tenth Avenue to the north, and Huntoon to the south. "Pap" Singleton had encouraged emigrants from 'Tennessee and Mississippi to settle here as early as 1873 and it flourished six years later with the arrival of the Exodusters.40

The Exoduster migration slowed by the early 1880s, but its numbers swelled Topeka's black community and its institutions. Churches, organized long before the Exodus, formed its cornerstones, with central congregations dominating the various African American neighborhoods. The status of black clergymen as de facto community leaders illustrated the respect which this institution commanded. The black press also functioned as a unifying institution. Six newspapers were published between 1880 and 1896. The Colored Citizen was the first in print and possibly the most influential publication, closely followed by the Tribune, and the Kansas State Ledger. African Americans embraced the opportunity to voice their opinions about issues that affected their lives, to publicize grievances, and praise accomplishments. A vast array of social institutions in the capital, including fraternal orders, lodges, veterans groups, and trade unions, provided wonderful leadership opportunities, grassroots political experience, and social networks for skilled tradespeople, professionals, and entrepreneurs, alike. These associations enhanced the strength of Topeka's black community. The 1891 mayoral election particularly demonstrated the power and solidarity of African American voters because this voting block determined the outcome of the election .

A rapid increase in the number of black professionals and entrepreneurs in the 1890s further strengthened Topeka's African American community. Migration brought a number of well-educated professionals from the Upper South. Thomas Cox found that many African Americans owned businesses, which provided an additional measure of independence and prestige recognized across the city. Black farmers located on the outskirts of the city also enjoyed a relatively high measure of prosperity late in the century. Women also participated in the full breadth of commercial and social activities found in late-nineteenth century Topeka. Lutie Lytle bears distinction as one of the earliest, and perhaps the first, female lawyer admitted to the Kansas bar. Other, less well-known, women owned beauty parlors, millinery and dress shops, provided fortune-telling services, and also worked as domestics, seamstresses, cooks, and laundresses. Patterns of consumption and types of entertainment during this decade also reflect social and economic activities which many black Topekans enjoyed, such as the Interstate Literary Association, comparable groups for art, music, and literature appreciation, the Odd Fellows fraternal organization, and a Negro baseball team. Class distinctions within this community, identified by purchasing power, patterns of consumption, and occupational status, entered into the mix. The common goal of "race progress," however, unified blacks from all segments of society to achieve the fulfillment of promises made by the people of Kansas.

From the first African American presence in the Topeka environs to the turn of the century, blacks sought to find their way to freedom. Thousands of Exodusters realized their goal by establishing homestead claims, building small communities on the plains, or working in the larger towns in the eastern part of the state. Topeka functioned as both destination and provisioning station for the Exodusters of 1879-1881. Geography reflected the associated population boom because by 1890, the city possessed four viable African American neighborhoods within three political wards in the state capital. By the end of the nineteenth century, one could find African American men and women in professional and entrepreneurial ranks, in skilled craft trades, in the railroad industry, and as unskilled laborers. By 1900, Topeka boasted a population of 33,608, with black citizens comprising 4,807 of that number. Although it only approximated fourteen percent of the city's population, this constituency set deep, strong roots through economic vigor, political savvy, and community solidarity.

D. Conclusion

When the Kansas Territory opened to U.S. expansion in 1854, the ideals of freedom and equity for the black race ran strong in early pioneers. Whether those ideals would prevail in the new state remained in question for the first few years, as free-staters and pro-slavery advocates battled it out. But, Kansans ultimately came out on the side of freedom and African American migration increased, despite indications that some white residents not merely opposed slavery, but resisted any black presence in the state. Those sentiments declined during the Civil War, perhaps influenced by the hard work of early settlers and the bravery exhibited by black volunteers who joined the war effort. Westward migration changed the Kansas landscape again after Reconstruction, in light of heavy Exoduster migration from the lower Tennessee and Mississippi Valleys. Many settled in Kansas, establishing a modern Canaan far from the reach of New South Redeemers. Nell Irvin Painter found that "By 1900, blacks in Kansas were generally, if not overwhelmingly, more prosperous than their counterparts in the South; politically they were enormously better off."44

While African Americans lagged behind their white counterparts in both categories, Kansas provided a relatively benevolent environment for the times, as did Topeka. Its citizenry rose to the challenge of thousands of Exodusters pouring into the town. The Relief Association provided food, shelter, supplies, and funds for those establishing new lives in the West. After the Exodus had ended, approximately four thousand blacks made their homes in one of Topeka's predominantly black neighborhoods; including the Bottoms, Ritchie's Addition in South Topeka, Redmonsville in North Topeka, and Tennessee Town. By the end of the century, residents had built strong civic institutions and social networks that reinforced the community's solidarity. Perhaps Topeka's racial tolerance lay in the rather altruistic nature of its founders; such as Congregationalists in the New England Emigrant Aid Society, members of the Town Association, or in the legacies of individuals like Cyrus Holliday and John Ritchie. Although some modern authors laud the morality of Kansas society, there were signs in the late nineteenth century that some egalitarian behaviors were beginning to fall by the wayside.

These events in Kansas corresponded to national trends which indicated more stringent interpretations of individual rights, a resurgence of restrictions on African American opportunities, and the implementation of racial segregation in many social venues. After Reconstruction, the nation seemed to turn its attention away from race relations and discriminatory practices went unchecked. The U.S. Congress and Supreme Court played roles in these developments because both branches of government allowed states to limit African American rights through local action. The Court honed very fine distinctions in its interpretations of the Fourteenth Amendment through key appeal cases during this period. Plessy v. Ferguson stands alone as the most significant finding which sanctioned racial segregation in public transportation. State and local governments applied segrega6on restrictions to many other social situations in Plessy's wake and, accordingly, the Court allowed its widespread application through non-intervention. The tide was noticeably turning in the state of Kansas and the nation by 1900. Kansas' motto, "ad astra per aspera," held new meaning in light of the tightening limitations placed on the rights of African Americans. Segregation in transportation, education, housing, and public accommodations struck to the very heart of opportunities potentially available for African Americans. As the twentieth century approached, blacks found themselves being cut out of mainstream society.45

45Chapter 3 will discuss in greater depth these constitutional limitations on civil rights, enacted particularly by action of the U.S. Supreme Court, which began to relegate African Americans to subordinate social positions and inferior conditions during the late-nineteenth century.

It i:s the normal ambition of adults in any community to provide education for their children superior to that which they themselves enjoyed--seek[ing] through education to provide better lives for their children and a better society in which the oncoming generation may live and work.1

- Mamie Luella Williams handwritten notes, 1976

1Taken from handwritten notes prepared for appearance in "Seventy-Five Years on Quincy Street," a television special produced by Topeka KTWU, Channel 11, originally aired 26 March 1976. Mamie Luella Williams Collection, Kansas State Historical Society, Topeka, Kansas.

CHAPTER TWO

EDUCATIONAL OPPORTUNITIES, 1620-1945

A look at segregation first requires some analysis of educational opportunities available to African Americans through the course of U.S. history. Statesmen and theorists, alike, of the late-eighteenth century repeatedly emphasized the need for a knowledgeable and active populace to drive this grand democratic experiment they called the United States. Thus, republican government carried a specific, inherent demand for public education because its power lay in the hands of "the people." The implementation of democratic ideals therefore required an informed electorate. New Englanders also valued education because of their Puritan roots. Although Southern colonies, later states, lagged a bit behind their northern counterparts, the gentry class valued training in the liberal arts for its sons. The new republic's founders and its constituency further acknowledged the importance of an educated populace by first setting aside public lands for school construction and, later, by placing authority for public education within the individual states.

As the nation grew, state governments interpreted this reserve power, one of many set aside for state authority, in varied ways. Those in New England seemed to adopt a more proactive stance on public education and extended limited opportunities to African Americans and women. While often more egalitarian, discriminatory treatment of African Americans in New England became more systemic by the mid-nineteenth century. Roberts v. City of Boston (1849), an early case concerning segregation, illustrates the point because this

state ruling found segregation to be constitutional. Roberts thus set an important, early precedent for the codification of racial separation. Southern states, by and large, valued male education over that for women, reserving the domestic arts for the more "delicate" sex. This society sharply restricted training opportunities for free blacks and slaves, with most legislatures specifically forbidding instruction in reading and writing. After emancipation, freedmen eagerly sought to reclaim the education that had been denied them and to gain the knowledge necessary to remain free from white domination. 2

Kansas was born of this volatile period, reflecting both the transitional character of Reconstruction and the nation's subsequent withdrawal from racial issues. Its white majority initially vacillated about the status of African Americans, but they welcomed the Exodusters with aid and support. In 1879, however, Kansas lawmakers enacted a system which allowed school boards in cities of the "first class," designated by populations exceeding 15,000, to determine local policies of racial segregation. The relatively small percentage of African American youth in smaller Kansas towns and in rural districts made integration more practical, but specific practices often were left to local option. The intervening years served as a period of community building for both races and lines of division in politics, economics, and education fluctuated somewhat. The codification of segregation, however, proceeded in Kansas it did throughout the United States during the late nineteenth century. African Americans appealed to the courts for equal treatment under the law, but found little success during this period. Despite the high quality of instruction in segregated schools, at least ten court cases challenging these practices reached the Kansas Supreme Court between 1881 and 1941.

Topeka qualified as one of Kansas' three "first class" cities and separated its students in the primary grades, but educated them together in the upper grades. Whereas most segregated schools in the United States diverged sharply in levels of quality education, this was not the case in Topeka. By the 1940s, most African American educators equaled, and some far exceeded, their white counterparts in education and training. Despite the quality of school facilities and instruction, a large percentage of black parents sought to redress the inadequacies that did exist. The William Reynolds v. The Board of Education of the City a/Topeka (1902) and

U.S. Graham v. Board of Education, Topeka (1941) cases raised the strongest challenges to the city's segregated system. Graham successfully brought an end to the segregation of the city's junior high schools. By 1945, Topeka's Unified School District (USD-501) maintained four elementary schools for African American children, but allowed integrated facilities for students attending junior and senior high schools. This breach in segregation policy created a very potent opportunity for a successful challenge to end all racial separation in education.

The broader context of education in America

Many historians of public education trace the beginnings of the American educational system to Puritan roots. Pushed by devotion to their "errand into the wilderness," New Englanders outstripped their southern neighbors by schooling their youth in lessons of religion, moral instruction, and citizenship. Widespread agreement on the obvious benefits for both individual and society during the eighteenth century helped establish education as a cornerstone of American culture. Geographical regions differed, however, in the availability of and emphasis placed on education. Societal changes resulting from industrialization in the nineteenth century institutionalized education and brought about the modern public school system. While federal legislation mandated that communities extend educational opportunities to their citizens, local populations in those communities defined curriculum content and admission standards in accordance with local practices and standards. This discussion bears further relevance because of the Congregational/Puritan roots later set down in Kansas during the 1850s.

Puritans first entered the "wilderness" that was America in 1620. School children still learn the pat tales of their valiant search for religious freedom, far away from interference by the English government. Stories of religious freedom offer simplistic views of a quite restrictive, Calvinist belief system. Church and state maintained a symbiotic relationship in their society, and education provided fundamental preparation for a life defined by godly behavior and good citizenship. Education for both genders was important to the practice of one's religion, as reading the Bible and other Christian texts served as an important means of receiving God's word and lessons for a regenerate life. Parents, ministers, and schools, respectively, bore greatest responsibility for the instruction of the colony's youth. Since schools stood third in the line of intellectual and spiritual defense, colleges were valued over grammar and dame schools because they educated future ministers, who, in turn, became the community's chief teachers. New England colonies which spun off of Massachusetts Bay during the seventeenth century adopted this fundamental Puritan belief about education's value for the salvation of individual and society. As congregations moved westward, their township charters often included land grants and public subsidies for schools. The core Congregational emphasis on learning, therefore, spread and matured throughout the region as the years passed.3

The gentry of the Chesapeake and Lower South topped the social scales of those regions. Education was reserved primarily for the middle and upper segments of white society in Southern colonies. Many first and second sons of wealthier families ventured back to England for a proper education during the early colonial period, with little competition from far inferior local colleges. Informal pupil-teacher relationships often predominated because the region possessed only a few colleges, and "reading law" with a tutor was the standard venue to that profession. Religion remained in the mix, but never dominated educational goals in these areas because the two institutions were never intertwined as in New England, even though most Southern colonies maintained a "state church" until the mid-eighteenth century. Ministers, often second or third sons, received religious instruction, but for others, law, finance, and the liberal arts took precedence. By 1775, young men could choose from nine colleges and more remained in North America for their schooling. Southern women usually received instruction in domestic arts, home management, nutrition, and child-rearing on a relatively informal basis. Poor whites often received no formal instruction and most Southern colonial governments forbad the instruction of free blacks and slaves. The rare "master" sometimes took the prerogative, however, of teaching house slaves to read and write, for his convenience, but this went against social precautions to subjugate potentially rebellious slaves. Although, on the surface, Southern society appeared to disregard the widespread importance of education, its prohibitions of the education for African Americans demonstrates Southern perceptions of its potential power against the restrictive social system.'

Interestingly, one of the South's own became a champion for public education in the new United States. During the period of Confederation (1781-1789), Congress decided that western lands would not be treated as colonies, but rather as territories that ultimately would be admitted as states. Virginia Delegate Thomas Jefferson proposed a set of bureaucratic procedures for the admission of new territories, which became codified in the Land Ordinance of 1785 and the Northwest Ordinance of 1787. These laws applied specifically to the Northwest Territory, comprised of lands which later formed the states of Ohio, Indiana, Illinois, Michigan, and Wisconsin. The 1785 Land Ordinance mandated a grid system of survey which would subdivide the land into townships of thirty-six square miles, with thirty­ six sections of 640 acres each. Congress hoped to solve two problems through this process; specifically, federal debt relief and national settlement. More importantly for this discussion, the law designated that revenue from Section 16 be reserved by the specific township for the maintenance of a public school. Tyack, James, and Benavot's legal history of public education points out that this act signified "the origin of the federal government's active involvement in promoting public schools as a form of internal improvement, one that had crucial ideological and practical dimensions." Two years later, the Northwest Ordinance completed the process by outlining a basic governmental framework and procedures for admitting states carved from the territory. The ordinance enacted standard guidelines for new additions to the Union and set an early precedent for the establishment of and financial support for public schools in the United States. Provisions for common schools were subsequently incorporated into new state constitutions.

Common schools became a standard feature of the American landscape because the nation's founders believed education to be fundamental to the success of republicanism.

Very basically, leaders of the Revolutionary generation combined eighteenth century Enlightenment reason with English precepts of common and constitutional law. As John Locke so cogently summarized it, the power of constitutional government lies with "the people." Framers of the new U.S. government believed that "the people" should be educated so that they, in turn, could carry out their duties to instruct and direct their governments. The will of "the people," as conveyed by the electorate, would make republican government work. The level of intellect and knowledge possessed by "the people" therefore was critical to the entire operation. Jefferson and his compatriots put great stock in public education to create a cogent group of leaders and voters. In this paradigm, the protection of liberty relied directly on the availability of public education because republican government depended on informed participation by its constituents. The nation, therefore, bore a direct responsibility

to guarantee access to education for its citizens.6

The federal government sought to accomplish this by authorizing common schools through laws like the Northwest Ordinance of 1787 and by raising revenue through the sale of public lands. Primary responsibility for the administration of schools, however, fell to the individual states, as a reserve power, by virtue of the federal constitutional system which divides powers between state and federal counterparts. Between 1820 and 1850 a democratic impulse swept the country, coinciding with the presidency and influence of Andrew Jackson. Political reformers of the Jacksonian period strove to increase participation in the democratic process and make government more responsive to the will of "the people." This meant bringing access to power and authority down to the grassroots level. Many states rewrote their constitutions to accomplish this, specifically by broadening the male electorate by eliminating property requirements for voting and expanding opportunities for office holding. Social legislation also became more acceptable in this climate and most of these new constitutions provided for the establishment of public school systems. Fundamental democratic precepts were reinvigorated during this era and education was considered to be critical for those white males now included in the electorate. As the century progressed, Americans moved to new lands in the West and common schools went with them.7

Tyack, James, and Benavot claim that public schools of the nineteenth century functioned as a fourth branch of state government. Jacksonian Democrats who sought to decentralize government found greatest success on state and local levels. Coincidentally, as the populace successfully diffused political power, it sought to consolidate social institutions and cultural values. Americans became concerned about increased numbers of immigrants entering the United States near mid-century because they feared possible fragmentation within society. They felt that these newcomers posed a threat to the democratic ideals and republican traditions that Americans held so dear. Danger also appeared on the frontier, where civil body politic and social institution were supposed to counteract the perceived uncivil effects of the wilderness. Education came to the rescue again as a means for standardizing and indoctrinating an increasingly diverse population, for training a reliable workforce, and for "civilizing" those on the geographical fringe of society. So, although authority for basic schooling fell to the purview of the states in a decentralized fashion, it functioned conversely as a unifying force to imbue standards of behavior and belief in a quickly expanding, diversified United States. This paradoxical arrangement worked well, whereby local option molded curricula to fit national goals. By 1850, many states delegated education to governmental responsibility and established a bureaucracy to handle it, one which thus acted as a fourth branch of government. State superintendents, local school boards, faculty, and staff thereafter served quasi-political roles with varying levels of authority, subject to subtle and not-so-subtle change in the political wind.8

It is evident, then, that public education in the United States historically has operated within a bureaucratic framework for specific social and cultural reasons. This discussion began with the Puritans, who had their own socio-religious goals for educating sons and daughters. This heritage ran deep in New England, and that region accepted common schooling as a public necessity which deserved funding. Other regions were a bit slower to assume this responsibility, regardless of education's social worth. Revenue from the sale of public lands helped finance western and midwestern schools, but the availability of schools and funding for education in the South lagged far behind. Funding rose steadily throughout the United States, as a whole, however, in the last half of the nineteenth century. Tyack, James, and Benavot report that the "ratio of public expenditures to total costs of education, including all levels of schooling, rose from 47 percent in 1850 to 79 percent in 1890."9 Distinctions between public and private schools also sharpened during this period. The number of students attending private institutions fell as these schools were transferred to the public domain; a trend that occurred faster in rural areas. By 1890, more than ninety percent of rural children attended public elementary schools, while Catholic schools predominated in many large cities. Even as the public/private aspect became more well-defined, most viewed education as a public service to be rendered by government on all levels. Following this perspective, the nation, therefore, owed all of its citizens basic instruction and, in turn, benefitted from having an educated populace.

Its institutional status as public service and social tonic meant that education also served reform purposes. Despite its loftier goals, the individual was not lost in the educational system because instruction provided one with the means for economic advancement and political participation. The growth of the public school system parallels that of industrial capitalism in the nineteenth century, which formed the economic base of the Northeast. Michael B. Katz, well-regarded as a historian of education, emphasizes the value of schooling as a disciplinary and socializing force necessary to train an industrial workforce. He believes that it received popular support in the nineteenth century because, as he states it, "Public educational systems crystallized key components of social ideology into an institutional form and assured its t ransmission."11 They grew during this period because they, very simply, reflected the social order and its dominant values. By extension, society could convey new values or behaviors through its schools during times of significant change. Various waves of European migration in this century and the next were met by aggressive indoctrination programs in public schools, illustrating their powers of socialization. The system also could shape the same social order which created it, by teaching new values and behaviors to the nation's youth. For example, postbellum reformers hoped to effect real social change by using the educational system to integrate freedmen into society after the Civil War, to bring white youngsters together with their black counterparts, and thus modify the Southern social

structure. James D. Anderson's important study of African American education in the South outlined the development of public and private school systems, as a result of this reform effort. Many felt universal education would threaten the sense of supremacy upon which the white race based the region's social order. Their economic dependence on agriculture also contributed to a lag in the development of public educational systems. The jump from legal statutes forbidding the education of slaves to a general acceptance of schools established by the Freedmen's Bureau was quite a shock for the majority. But, perhaps because of restrictions on learning and the desire for socio-economic advancement, African Americans craved education and worked hard to acquire it; as, indeed, they had prior to the Civil War. Anderson notes that they "were the first among native Southerners to wage a campaign for universal public education."13 The Military Reconstruction Acts of 1867 swept away the political dominance of former Confederates and brought forth new opportunities for former slaves. Freedmen enjoyed a brief period of participation during Reconstruction and used their new powers to insert educational provisions in post-war state constitutions. Some Radical Republicans in Congress helped by establishing the Bureau of Refugees, Freedmen, and Abandoned Lands (Freedmen's Bureau) in 1865 which operated small schools throughout the South during Reconstruction. Northern missionaries and benevolent societies sent teachers and administrators to bring schooling to the newly liberated slaves. The actions of several parties came together, then, to enact universal public education in the southern United States after the Civil War.14

Things changed, however, with the end of Reconstruction. Southern Democrats who wanted to "redeem" the South regained political control in the 1870s and began to implement restrictions which pushed African Americans back to the bottom of the socio-economic scale. Some resented the moralistic tone of Northern reformers who used political and educational institutions to correct Southern society. Although accepting public education as a responsibility of state government, Bourbon Redeemers began to separate the races through state and local ordinance. This group purportedly "redeemed" the South by overturning Republican governments after Reconstruction; others branded them "Bourbons" because, like their French namesakes, they had learned little from the war experience. 15 They used intimidation and quasi-legal strategies to effect segregation in transportation and public accommodations through the late-nineteenth century and the U.S. Supreme Court deemed such practices constitutional in its 1896 Plessy v. Ferguson ruling. But, segregation was not new and was not confined only to Southern states, it just became more widespread by 1900 as a constitutional practice. Continued reliance on agriculture led the South, at large, to minimize the importance of liberal arts education for its white and black sons. Thus, African Americans either continued to establish their own schools, or gained the best instruction available at the local level. A few significant white benefactors provided alternatives through educational trust funds which supplied seed money for building and staffing black schools; namely Julius Rosenwald, Robert C. Ogden, George Foster Peabody, William H. Baldwin, Jr., J.L.M. Curry, and many others. Some of these philanthropists endowed liberal arts education, but most steered African Americans toward "the Hampton model," developed at Hampton Institute in Tidewater Virginia, which emphasized basic instruction and training for service occupations.16

Samuel Chapman Armstrong founded the Hampton Normal and Agricultural Institute in 1868, at a time when Southerners felt threatened by the prospect of an educated black populace. In this era, normal schools compared with high schools and those who attended were trained to become elementary teachers. Armstrong found middle ground by linking Hampton's teacher education curriculum with another track for "industrial" professions or manual labor. He fulfilled his social goal to educate African Americans sufficiently for economic independence, while avoiding direct conflict with Virginia's historic planter class and white supremacists. The "Hampton model" met with widespread approval from white Americans because it mainstreamed this labor source into professions at the lower end of the social ladder, into manual and custodial work. The Institute also fulfilled republican educational goals, by imbuing lessons of social indoctrination and good citizenship to its students. Booker T. Washington, perhaps Hampton's most renowned pupil, embraced its curriculum and in 1881 implemented the vocational model at Tuskegee Normal and Industrial Institute. During his career, Washington became a champion of manual education for African Americans and sharply countered criticisms from those, represented by W.E.B. DuBois, who advocated a broader education in the liberal arts for their countrymen.1'

This fundamental issue pervaded debates among African American scholars about the future of black higher education well into the twentieth century. James D. Anderson follows major discussions which pitted Washington and the "Hampton model" against DuBois and the black intelligentsia. He argues that white philanthropists from the North and South believed that industrial education was best for individual African Americans and for the nation, at large, because they provided a very necessary workforce for the capitalist economy. Many, including Washington, also believed that African Americans would benefit in the long run because they would pose a lesser challenge to white dominance and evoke less rancor from the majority. The "Hampton model" offered a compromise whereby blacks gained education, but only pertinent to specific, necessary roles in the lower levels of society. This appeased both the Southern planter class and Northern philanthropists who sought to strengthen the Southern economy. The curriculum lacked weight, however, for those who sought admission to academic professions and politics, to those who desired first-, not second-, class citizenship."

For DuBois and other African Americans who wanted equity in American society, an educational curriculum grounded in liberal arts held the key for black advancement. They believed that African Americans deserved and wanted full access to all benefits of universal public education, not merely a supportive role in the labor force. Blacks, furthermore, valued learning for its own sake and placed great importance on education for self-improvement, self­ preservation in, and liberation from a racist society. They recognized the republican importance of education, as Tyack, James, and Benavot explain, saying, "The learning that whites had kept to themselves was one cause of their hegemony, and blacks were determined to win the educational opportunities that undergirded participation."19 But, it required a struggle because white Americans were reluctant to grant entree to this fundamental democratic institution. Segregation proved to be a useful strategy to block African American aspirations, for it presented opportunities for universal instruction, but kept black and white students apart. Separation proved to be the key in subverting black education in the nineteenth and twentieth centuries, through inferior facilities, curricula, and faculty. Racial segregation began long before the Civil War, however, and flourished far beyond the deep South. In a sense, segregation offered a way for communities passively to resist the proper education of their black citizens while, at the same time, guaranteeing their access to instruction. Separate schools convey different sets of options and opportunities to each group. Although the strategy worked fairly well, African Americans clamored for learning and the population's illiteracy rate fell from almost 80 percent in 1870 to 44.5 percent by 1900.20

After the Plessy finding of 1896, the practice of segregation became more aggressive. Both sides resorted to the courts to win their cause, either to block or gain access to knowledge, respectively. State and local governments applied the High Court's determination as if it were a veritable constitutional mandate to separate white and African American youth. Quite ironically, in the process, the white majority used republican institutions to thwart the functioning of democracy. As was their purview, localities throughout the United States implemented segregationist practices in varying degrees. History and civics lessons which lauded the great merits of democratic societies mocked the true conditions which black youths faced daily. African Americans were more likely to find some measure of equity in Northern communities, but life held no guarantees. One of the most significant challenges against segregation rose in 1849, in the historically Puritan town of Boston.

18Ibid., 79-109. Armstrong and other whites assumed that African Americans did not have the intellectual capacity to comprehend a liberal arts curriculum. This discussion of Roberts v. City of Boston jumps back in time a bit, to the mid­ nineteenth century, and an early case against racial segregation in public education. The city had maintained the Smith Grammar School for African Americans since 1820 and spread white youngsters among at least five grade schools. The black school dated to 1798, when it was established by African Americans who believed that their children would suffer prejudice and discrimination in a racially mixed setting. It operated privately until taken over by the public school system in 1820. By the 1840s, however, the abolition movement had gained strength in reform-minded New England and the Massachusetts Anti-Slavery Society requested that Boston's school system be integrated. Benjamin Roberts actively participated in this fight against segregation and used his own daughter, Sarah, to seek redress. Sarah Roberts, five years old at the time, walked past Boston's five white elementary schools each day on her way to Smith Grammar School and her father made four separate requests for her admission to one of the white schools. The Boston School Committee evaluated Smith Grammar School, finding it small, run-down, and badly needing repair. The school system rejected Roberts' request that his daughter be transferred to one of the white schools, so he secured the legal services of Robert Morris, an African American attorney, and later those of Charles Sumner, advocate for racial equality and future U.S. Senator.21

Morris and Sumner appealed to the Massachusetts State Supreme Court for the admittance of African Americans in Boston to schools closer in distance and higher in quality. The legal action represented other plaintiffs, as well, including William Cooper Nell, who aggressively fought for integration in the city's public schools. "Thus when Benjamin Roberts brought suit against the city," James Oliver Horton and Michele Moresi explain, "he did so as part of a series of efforts and strategies by the community to desegregate Boston schools."22 Counsel argued that the Massachusetts state constitution provided equal protection for the state's black population, thereby outlawing political and civil discrimination. Their suit went beyond fixed statute to the heart of the matter, to the very nature of racial separation as a caste system which excluded African Americans. Sumner said, "Strange that here, under a State Constitution declaring the Equality of all men, we should follow the worst precedents and establish among us a Caste."23 He went on to explain that although the school system protested that it maintained the separate facilities on an equal, and therefore equitable, basis, it fell short of the mark simply because of their separateness. As Sumner perceptively argued, "The matters taught in the two schools may be precisely the same, but a school exclusively devoted to one class must differ essentially in spirit and character from that Common School known to the law, where all classes meet together in Equality. It is a mockery to call it an equivalent."24 Chief Justice Lemuel Shaw did not agree. He issued the court's opinion which upheld Boston's segregation policy, which focused on the contention that segregation violated Robert's civil and political rights. In his ruling, Shaw posed an argument that would become familiar to civil rights advocates; namely, that districts could separate children as long as the school system provided facilities to both races on an equal basis. With that, the court denied Sumner's argument that separation amounted to different and inferior treatment.25

While Sumner's specific attack on the Boston segregated system failed, it provided an important model for future desegregation efforts and stands as an interesting parallel to Oliver Brown, et. al. v. Board of Education of Topeka, Kansas. Tyack, James, and Benavot place Roberts as the central precedent for Plessy v. Ferguson because the Massachusetts court "judged separate schools for blacks to be reasonable and denied that law could erase the prejudice that created the distinction in the first place."26 Quite unbeknownst to its participants, Roberts

v. City of Boston held the three classic components of future desegregation cases. Firstly, Benjamin Roberts, William Cooper Nell, and other African Americans initiated a strategy which focused on those most affected by the hurtful lessons of racial stigma, innocent children caught in the game of segregation. Secondly, Charles Sumner clearly stated the ills of racial separation when he likened the low status of African Americans to those entrapped in a caste system. In very eloquent fashion, he framed the classic argument against segregated education. Chief Justice Shaw added the third component, that being the opinion that separate facilities could be equal in a legal sense. The U.S. Supreme Court seized upon Shaw's logic forty-seven years later during its deliberation of Plessy v. Ferguson and proclaimed the constitutional principle of "separate but equal." The case contained these three components of the segregation debate, as did subsequent briefs which tried to undo Plessy's damage. The State of Massachusetts undid the damage of Roberts long before its more famous progeny came about, by abolishing the practice of segregation throughout the Commonwealth in 1855." Thereafter, discussions about the status of African Americans in the United States largely focused on conditions in the South and West, as the nation, as a whole, tried to come to terms with its divisive tendencies.

The Kansas state system of education

White settlers from New England and the southeastern U.S. who descended upon the Kansas Territory during the 1850s and 1860s brought divergent viewpoints about the future of African Americans in the new state. Kansas thus developed with a bit of a schizophrenic streak, whereby its residents accepted and aided black settlers, but placed restrictions on their full and equal participation in society. Legislators mandated universal public education, to be funded and maintained at the local, district, level, and left matters of race relations to the local population, as well. As early as 1868, the Kansas legislature incorporated these dual racial attitudes into the state's educational system by mandating that school systems in larger cities separate the races, while allowing smaller towns to teach their children together. State representatives revoked the segregation in 1876, but reinstated it three years later. This system remained in place, with slight modification, until 1954, when the U.S. Supreme Court ordered the elimination of all real and artificial barriers to universal public education in the United States.28

An early history completed in 1939 as part of the Federal Writers' Project, a program administered by the Works Projects Administration, hearkens Kansas educational programs back to early Indian mission schools. These were primarily organized by religious missionaries between 1820 and 1850, with curricula that emphasized basic reading, writing, hygiene, and agricultural practices. Approximately twenty-five schools operated at various times during this pre-territorial period, for the benefit of Native American and any white youngsters at area trading posts, stage coach stops, and railroad towns. The Wyandotte Indians forged ahead without missionary support, however, and are credited with the first public school in Kansas, built in 1844 in present-day Kansas City. Although not public in the modern sense, Kansans also benefitted from the availability of tuition and subscription schools. Each student paid a fee to the teacher of a tuition school, thus excluding the poorer in the community. Subscription schools gradually became more popular because, while privately supported, they functioned as public institutions. In this system, townspeople raised money specifically for the support of a common school, open to all residents free of charge. One of the first subscription schools opened in Lawrence, in January 1855, in offices provided by Dr. Charles Robinson, primary agent of the New England Emigrant Aid Society. These schools remained even after the Kansas territorial government established formal districts because logistical organization lagged somewhat and general tax revenue was sparse.29

Public education really began to take shape during the territorial period, 1854-1860. The first Kansas assembly, popularly known as the "bogus legislature" corralled by pro-slavery advocates from Missouri, adopted many of that state's laws for Kansas Territory. This group provided for schools "free and open to whites." A "free state" legislature gained control in 1858 and promptly revised this law to include all Kansans. The more equitable line of thinking ultimately prevailed, for the WPA history of Kansas reports that, "The State constitution, drawn up in 1859, provided for 'equal educational advantages for white and colored,' and for 'males and females alike."' Even before statehood, the legislature slowly began to create a framework of district school systems, to be enacted on the local level. The first district, organized in 1858, began a slow process which paralleled settlement patterns and local government organization. The federal government sweetened the pot by contributing approximately three million acres of public land to the establishment of local schools and colleges. As per the precedent of the Northwest Ordinance, Sections 16 and 36 of every township was designated for public school support. The Morrill Act of 1862 added land grants for the establishment of state colleges and universities. Depression-era researchers in the Federal Writers' Project estimated that at least five percent of the revenue accrued from the sale of public lands in Kansas went to support the state's educational system.30

Although the Kansas legislature eliminated broad restrictions on public schooling for African Americans, local populations did not wipe away racial distinction so easily. Local control meant that towns could enforce segregationist practices, as community standards, that the state legislature outlawed. James C. Carper's research on attitudes toward black education shows that, while whites felt that African Americans needed the "socializing" force of education, they rejected common schooling shared by the races. African Americans, on the other hand, saw education as a prerequisite for achieving the prosperity and freedom of the "American dream." Many also believed education and training would eradicate racial prejudice because learned blacks could dispel some of the stereotypes widely held by whites and prepare African Americans to compete with whites in the workplace. Charity and freedmen's schools filled the need immediately after the Civil War, but became over-burdened by Exodusters. Apparently, the small number of African Americans during the territorial period delayed serious debate about the implications of integrated education, but as the population grew during the mass migration, white resistance increased accordingly. In 1867, the state legislature abdicated its responsibility in the matter by passing a statute which Carper cites, by saying, "schools districts were responsible for the 'education of white and colored children, separately or otherwise, securing to them equal educational advantages."' 31 Perhaps for the first time on the state level, the concept of "separate but equal" was accepted in Kansas.

This same legislative assembly approved the Fourteenth Amendment to the U.S. Constitution, which granted the rights of citizenship to all African Americans, but implemented other actions which made 1867 a fateful year for the forces of segregation. The members grouped Kansas towns in two categories; "cities" with populations of more than 15,000 were designated as "first class" and those with fewer citizens as "second class." Both first and second class cities were allowed to segregate students, depending upon local option. Economics, as well as personal attitudes, seem to have driven segregationist practices because small towns which could not afford to maintain two parallel systems educated students together, whereas larger, wealthier ones tended to segregate them. For three brief years, from 1876 to 1879, the legislature altered school laws to eliminate language about segregation. De facto segregation remained, however, and little changed during these intervening years. Code followed practice, however, and in 1879, the Kansas legislature reinstated its earlier school law and amended it to allow cities of the "first class" to segregate their elementary schools only. Researchers in the field propose that the influx of Exodusters in that year prompted white Kansans to retreat behind laws which separated them from the greatly increased numbers of black migrants. This law set a standard which larger Kansas school districts followed for several decades, whereby elementary grades were segregated and secondary grades were integrated. Paul Wilson pointed out that comparatively few Kansans, black or white, attended high school in the late-nineteenth century, and even fewer African Americans had the opportunity to go beyond grammar school. Financial constraints, law, and logistics prohibited most districts from providing a high school exclusively for African Americans. Therefore, even though post-1879 policy mixed black and white students on the secondary level in all Kansas cities, life experience and a relatively small black population kept African American attendance rates low.32

Through the 1870s and 1880s, many African Americans railed against separatist practices as socially divisive and prejudicial, but to no avail. Majority populations in town after town justified segregation in a variety of ways, from segregation as being beneficial to blacks to integration as a violation of "the laws of nature." The Plessy v. Ferguson ruling (1896) only strengthened state laws which sanctioned separate schools. Economic constraints in first class cities, largely consisting of Leavenworth, Atchison, and Topeka, fell by the wayside during the late nineteenth century. Segregation in education spread across the state as the number of first class cities increased. By 1950, twelve maintained separate elementary schools. When blacks and whites came together in high school, boards of education often used creative means to separate the races during extracurricular activities; by specifically segregating African American students in athletic and musical programs, dances, and social clubs. Second class cities dealt with the race issue according to community behavior, expectations, and available funding for separate schools.

As Kansas communities settled into comfortable patterns of avoidance, school districts began to formalize instruction across the state. A state school commission was created in 1913 to oversee the network of local boards of education. The state implemented compulsory education for all students in stages, extending required annual attendance and the length of the school year from three months in 1874 to nine months in urban districts by 1936. Teacher certification and examination also became stricter in the early twentieth century and the quality of instruction increased proportionately. Forms of instruction also diversified, with manual training, home economics, physical education and hygiene classes, adult evening courses, and vocational education rounding out the complement of curriculum offerings. This rapid growth reflects the value placed on education by white Americans and those of African descent. Both groups saw education as a key mechanism for shaping society, but the two differed sharply over the nature of that society.34

Topeka's school system takes shape

The capital city of Topeka took a very proactive stance toward universal public education. Its school system blossomed from a single tuition school, which opened in 1857, to a collection of twenty-two public institutions by 1950. During this period, the community placed importance on education for both races, but qualified and separated instruction for African Americans virtually from the beginning. The existence of black schools in Topeka date to 1867, a year which also happens to be the founding anniversary of the Topeka Board of Education. Despite its record of discrimination and racism, the city's school board and private citizens contributed to formal instruction for African Americans. Black students were stymied, however, by community practices, racism, and Topeka's status as a first class city. The Board of Education willingly segregated elementary students in the first half of the twentieth century and funded separate sports teams and social clubs for secondary students. The city invested heavily in its schools, certainly putting more money in the construction, staffing, and curriculum development in the white schools, but also providing for the basic needs of African American students. Like most cities during the early twentieth century, Topeka developed dual systems for the races which grew in tandem. While the infrastructure and faculty of the black facilities ranked on par with those for whites, the full educational experience for African Americans fell short of parity.

State and local historians credit Topeka's Puritan roots for its residents' enthusiastic support of education. Several Topekans donated sites for public schools and opened informal, private day schools in the mid-1850s soon after the town's founding, with Miss Sarah Harlan's credited as being the first. In its zeal to settle the rustic Kansas Territory, the New England Emigrant Aid Society went to work setting up social institutions for the edification of rambunctious settlers. It funded Topeka township's first school in 1857, which functioned as a tuition school with a few pro bona enrollments from poor families. Additional private academies emerged a few years later, primarily emphasizing basic language skills, arithmetic, history, science, Latin, Greek, and bookkeeping. Shawnee County commissioners designated Topeka as school district number 23 in 1862, but did not appropriate money for public school construction until 1865. The lapse engendered some local criticism, but in 1867 the Topeka school board got the program underway. The Harrison School operated as the city's first for whites and a former black church on Sixth Street between Kansas Avenue and Quincy opened for black children. The next year brought construction of two new schools, one at Thirteenth and Quincy for majority students and a school on Lots 50-54 on Monroe Street, referred to in one source as the Lincoln School, for African Americans. By 1870, the city owned four public schools and rented four more, compnsmg a total of eight with fifteen classrooms averaging 44 pupils per class. Shawnee County, as a whole, maintained 52 schools, began the construction of ten more, and enrolled 3,000 students in this same year. To extend the comparison, by 1874, the entire state of Kansas educated almost 200,000 students in 4,181 rural, and perhaps three urban, school districts. Once begun, the network of school districts grew in number and strength across the state and in the capital city of Topeka.

The decade of the 1880s was a period of tremendous growth for the capital's public school system because the board added several new buildings and expanded existing ones to accommodate its booming student population. Total enrollment recorded between 1880 and 1890 increased from 2,937 to 6,400, approximating a growth rate of fifty-one percent. The state compulsory attendance law of 1874 probably had some impact on this growth in terms of people and structures, but in-migration also stretched Topeka's spatial capacity. Immediate attention went to the condition of the city's elementary grades. By the end of 1886, the system had expanded to fifteen grammar schools, composed of:

Lincoln

Klein

Douglas

Quincy

Jackson

Lane

Grant

Sumner

Harrison

Parkdale

Polk

Madison

Clay

Buchanan

Monroe

Most sources claim that the city educated its black youth in five of these schools; namely, Buchanan, Douglas, Lane, Madison, and Monroe. African American students were taught in a building on Buchanan Street as early as 1881, but a new Buchanan School was built four years later. Douglas was built on Kansas Avenue in 1882, but apparently was used only a short time for black education. North Topekans attended Lane School, also constructed in 1882, at the junction of the Rock Island and Union Pacific Railroads. Madison was a third school erected in 1882, at the corner of Second and Madison Streets. It first housed white students, but four years later was listed as a black grammar school. Since 1874, a new Monroe School had graced the corner of Fifteenth and Monroe Streets, and it continued in operation for several decades. Sumner Elementary, named in honor of Sen. Charles Sumner of Massachusetts, was originally constructed in either 1875 or 1880 to educate African American children - the school built in 1868 on Monroe Street was called the Lincoln School.

The school's African American connection was short-lived, however, for the board reassigned its black students to a smaller building in 1885 and Sumner became a white school at that time.. Topeka maintained more schools for African Americans during the 1870s· and 1880s than at any subsequent time in its history, demonstrating a high level of commitment in the late nineteenth century for the education of its minority population.36

Leaders of the African American community repeatedly stressed the importance of parental support for children's education. Thomas Cox reviewed black newspapers for his extensive study of Topeka's black community and found that editorials and news stories, alike, emphasized learning as a means to race progress. He quoted a statement from 1879, published in the Topeka black newspaper, the Kansas Herald, which appealed for quality and steadfast support, saying, "Give us good schools; give us good teachers, and let parents be careful to keep their children in school regularly and our race is safe."37 African American newspapers also publicized complaints that attendance restrictions and inferior conditions held children back in their development, and by extension, retarded the advancement of the entire race. Cox quotes comments about segregation from an 1879 edition of the Colored Citizen which complain, Figure 10. Sanborn map showing the second Monroe Elementary School.

"We hear of no Irish or German school. All children are at liberty to attend the school closest to them, except the black child."38 In this same year, the publication specifically railed against conditions at the newly established Monroe School as being unequal, proclaiming, "The management of the Monroe Street School has been such that many children in it are just where they were 2-3 years ago, and it is our deliberate opinion that they are purposely kept back to prevent their entering a mixed school."

Topeka, as a first class city, channeled its African American youth into the city's first functional high school, which opened in 1871. The Lincoln School, centrally located at Fifth and Madison, addressed the needs of students on the intermediate and secondary levels until the construction of a proper high school. African American residents of North Topeka attended a segregated elementary school located on that side of the Kansas River in 1889-1890. Few African Americans in the city of Topeka entered the intermediate or secondary grades, however, and eight years passed before the first minority pupils graduated from Topeka High School, proper, in 1882. These students, with their white cohorts, attended class in rented office space in downtown Topeka, but a new school was built at Eighth and Harrison in 1893- 1894. Approximately ten years later another facility opened for vocational training for those on the secondary level. The overall lack of professional job opportunities in Topeka, however, contributed to a low rate of graduation among African Americans from secondary schools, and the Kansas State Ledger succinctly posed a common lament in February 1894, asking "Why do we send our children to high schools and to academies, to earn $1.50/day cleaning the sewers?" One particular grievance lay with the school board's refusal to appoint African American administrators, faculty, and staff in the segregated schools and the perception that white teachers lacked interest in their students. It seemed especially galling that African Americans could accomplish the same training as white teachers, but had little opportunity to practice their skills and talents. The board conceded in 1894, agreeing to place only African American teachers in the black elementary schools, which, as Thomas Cox points out, actually reinforced segregation rather than dissipating the practice.40

Parents recognized such small gains in the late-nineteenth century and continued to send their children to school in hopes that greater accomplishments would follow. By 1894, formal instruction for those in Tennessee Town, an African American neighborhood in southern Topeka, began in kindergarten. The Reverend Dr. Charles Sheldon recognized the untapped potential of the African American community and opened Topeka's first free kindergarten in 1893 for poor children in Tennessee Town. He had made a name for himself as a charismatic and concerned minister who practiced acts of Christian charity during his life. The concept of a specialized school for children ranging in ages from three to six originated in Germany during the mid-1850s. Friedrich Froebe! believed that children should be nurtured in a specialized environment for their intellectual and emotional development, which he called a kindergarten, or child's garden. Single women had operated private schools for Topeka's pre-schoolers since the 1860s. While not the first pre-school in Topeka,per se, Sheldon opened the city's first public kindergarten modeled after Froebel's prototype. Dr. Sheldon's congregation raised money for the kindergarten and held class in Jordan Hall, built by Andrew

Jordan, an African American, for use as a dance hall. Sheldon and his congregation refurbished the building and renamed it, Union Hall. It specifically targeted African American children, but also welcomed poor whites and even accepted some children from Topeka's more renowned families, who paid tuition. Sheldon's kindergarten sparked a local movement to incorporate the German educational model on a broader scale. Training courses evolved to

:ttf ;

,:·,,.,.. , ,.

§,, ?

, -r

Figure 11. Kindergarten entrance at the new Sumner Elementary School, erected in 1935.

educate future kindergarten teachers and student interns participated in "practice teaching" in Sheldon's school as part of their training. Teachers also adapted classroom space to the children's needs, featuring long, tables and small, child-size chairs that could be rearranged as needed. Others copied the Froebel/Sheldon program and nine kindergartens functioned in Topeka within two years, each averaging an attendance of twenty-five students.41

41Timothy Miller, "Charles M. Sheldon and the Uplift of Tennesseetown," Kansas History 9, no. 3 (Autumn 1986): 125-137; and Fitzgerald, Gone but Not Forgotten, 95-102.

Two; Education in Topeka and Beyond 51

Sheldon seized upon an important idea at an opportune time and, quite significantly, implemented the kindergarten curriculum in the African American community. The situation was atypical, however, because a cutting-edge educational program benefitted the minority population first, then spread to the larger population of Kansas. In 1907, the state assembly authorized local boards of education to implement kindergarten programs in the public schools. Topeka acted during the next academic year, when the school board adopted the program for African American students in the public schools. Daniel Fitzgerald, in his important survey of Topeka's abandoned schools, quoted a 1910 "Report of the Superintendent," which guaranteed, "support of a kindergarten for colored children which had been supported for about ten years by private contributions and chiefly through the efforts

r·:::,,,.,.•,tf:,..--

"'' ··.'.w

Figure 12. Washington School, 1910.

of the Rev. Charles M. Sheldon."42 Parents of white children appealed to the board to extend the kindergarten program to the other elementary schools, and it gradually added kindergarten classes to existing white and black schools in the following order.

Buchanan (1910/14)

Clay

(1922)

Polk

(1923)

Potwin (1916)

Branner

(1922)

Quincy

(1923)

Lincoln (1918)

State

(1922)

Branner

Anx (1924)

Lowman (1918)

Sumner

(1922)

Lafayette

(1924)

Grant (1919)

Van Buren

(1922)

Oakland

(1926)

McKinley (1919)

Boswell

(1923)

Washington

(1927)

By the 1920s, Froebel's program had become part of the mainstream curriculum in Topeka for all children. New school construction commissioned during this decade included kindergarten rooms, as a matter of course. Architecture and design elements of these new buildings reflected the importance of the kindergarten for nurturing little minds, as seen inside the kindergarten room in the new Monroe Elementary School (1926) and on the exterior of a newly constructed Sumner Elementary in 1935.

The development of the kindergarten program indicated a deeper level of concern for even the earliest educational needs of its constituents. Topeka's school system expanded in quantity as well as quality during the early twentieth century as the board of education upgraded its facilities. Lane School in North Topeka was ravaged by the 1903 flood of the Kansas River and in 1907 the district replaced it with McKinley Elementary. It housed African American students in this community through the first half of the twentieth century.

Buchanan School received attention in 1920, when it was remodeled and enlarged. Situated at Twelfth and Buchanan, it functioned as a cornerstone of the Tennessee Town community until the school closed in 1955. Washington School, located at Eleventh and Washington Streets on Topeka's east side, served the needs of black children beginning in 1910. It underwent substantial remodeling in 1926 and received a large addition at a cost of approximately $30,000. Topekans, in fact, saw a number of changes and additions during that year of 1926. The board of education commissioned local architect, Thomas W. Williamson, to design several new schools in the 1920s and his team completed five buildings in rapid succession by the end of the decade. The two junior high and four grammar schools brought an eclectic mix of high-style architecture to the Kansas capital and recognition to the school board that commissioned them. An article published on November 15, 1927 in the Kansas City Times reported that board members began the "million-dollar program" in 1925 "to bring the Topeka school system up to first class condition. "

Thomas Williamson (1887-1974) showed great flourish in each of these "million dollar" projects, but most specifically in schools commissioned by the Topeka Board of Education for white students. Williamson's work dramatically modernized Topeka's landscape with a variety of buildings that drew from past architectural styles and others designed in the 1930s which implemented more contemporary forms. He attended the University of Pennsylvania for two years (1908-1909) and began his career in Topeka in 1911, working as a draftsman in the state architect's office and in the firm of John F. Stanton. Williamson established his own office in 1913 and, within the next seven years, became Topeka's premier architect. Close association with the Topeka Board of Education certainly must have helped his practice, for Williamson completed almost all of the city's public school commissions during his tenure from 1920 to 1935 as consulting architect to the board. By mid-century, he had completed approximately fifty commissions across Kansas and the Midwest; including designs for public and private schools, recreational facilities, universities, courthouses, banks, hotels, churches, and plans for domestic military installations which Williamson drafted during World War II

His buildings predominated Topeka's "million dollar school system" of the 1920s. The boon of new construction, and its fine architectural design, reflected Topeka's booming economy during the "roaring twenties." Thomas Williamson fashioned an eclectic mix of high­ style architecture which, in turn, displayed and instilled pride in the city's school system. Despite qualitative improvements within and architectural spectacles without, the Topeka schools remained segregated and Williamson's work reflects that fact. In the mid-1920s, those in the majority, and perhaps some African Americans, simply accepted the reality of segregation as part of life in this midwestern city. The 1927 Kansas City Times article which lauded Topeka's new architectural gems offers a revealing hint about the nature of society there, by noting that, "In all the buildings the school board has held faithfully to its plan to make the schools not only scientifically correct and modern, but things of beauty, and architectural parts of the neighborhoods in which they stand." This meant that those built in the western, more affluent, sections of the city possessed greater architectural detail, ornamentation, and perhaps better materials. The 1927 Times article expounded upon the goal that particular schools fit their physical contexts, explaining that,

For the new residential section in the western part of the city, the large Randolph grade school was built along colonial lines. In the poorer part of the city where Mexicans and negroes live, the new Monroe school was built of Spanish type of architecture.

The new Monroe Elementary, built just south of the older school at Fifteenth and Monroe Streets at a cost of $115,000, had plainer facades, less detail, but materials comparable to those used in the companion white schools. Contemporary historical architects describe Monroe's stylistic elements as Italian Renaissance in nature. Upon completion, the two-story, red-brick building featured eight regular classrooms, a kindergarten, a manual training room for boys, the parallel home economics facility for girls, a lunchroom, and a large gymnasium/ auditorium. This large, attractive facility functioned as a community center for adult meetings and youth activities, alike, because the gymnasium/auditorium provided space for segregated high school sports teams, social clubs, neighborhood meetings, and special events.

Facilities commissioned by the school board for white students, however, possess greater architectural quality in terms of design and construction. A new Parkdale School, built in 1924 at Tenth and Lake, operated solely as an elementary school for four years and in 1928 it housed a public health program for undernourished white children. Randolph Elementary, by comparison, was built in the late 1920s at Thirteenth and Randolph Streets for the middle­ to-upper class white population living on Topeka's west side. Williamson implemented a colonial revival style for this structure, at a cost of $140,000. This large facility sports a typical colonial cupola, circular colonnaded portico, and broken pediment above the main entrance. Clay Elementary, completed at the same time, represents Tudor style architecture. It was located in an older section of the city at Seventh and Clay, an area the Kansas City Times proclaimed, "where houses of English type" predominated. Here, Williamson used brick and stone materials, pointed arches, half-timbered gable ends, and abbreviated entry porches to imbue a sense of "Englishness" in the building. Interestingly, Clay's construction costs of

$115,000 equaled those of Monroe Elementary, even though the building possessed much more stylistic detail. Clay functioned as a standard grammar school, but also housed administrative offices for the Visual Education program and the Hard of Hearing Center which offered special classes to deaf children. A rather elaborate example of public school architecture capped Topeka's building program of the 1920s. Gage School, situated at the intersection of Eighth and Warren, was completed in 1928-1929. Its designer embellished a basic Georgian form with roofline balustrade, ornamental urns, quoins, and decorative treatments in brick and stone. English revivalism gave way to Gothic and Classical styles in his designs for two junior high schools, Holliday and Curtis, during this same period. Again, media lauded these triumphs as typical of Topeka's modern approach to education, a "million dollar" effort largely fashioned by the city's premier architect.

Economic boom turned to bust in dramatic fashion when the stock market crashed in 1929. But a second, much smaller, wave of construction hit Topeka in the 1930s, partially funded by federal New Deal agencies. Williamson designs for public and private buildings again played a dominant role in transforming the Topeka landscape. Topeka High School stands, at Tenth and Taylor Streets, as the most-widely acclaimed monument to Williamson and Company. Its English Academic style, also described as Collegiate Gothic, connoted the hallowed halls of the university, similar to Oxford, Cambridge, and Princeton. The design for the expansive, three-story building, completed by T.R. Greist, conveyed a sensitivity and regard for liberal arts education with its use of English antecedents, Students, however, also found instruction in industrial arts, mechanical drawing, business courses, within these rooms for the secondary school prepared both the college and career-bound. The Topeka Board of Education apparently raised the school's two million dollar tab from private sources or from locally-funded bond sales. But, as the depression deepened, the city turned to federal funds and construction assistance from the Public Works Administration (PWA). East Topeka Junior High, erected by Williamson's firm, and Grant Elementary School in North Topeka, both received PWA funding. The agency also subsidized a new Sumner Elementary School, built in 1935 on the site of its predecessors for a total cost of $240,000. The prolific architect broke with European traditions and crafted a modern, Art Deco design for the new facility at Fourth and Western Streets. Williamson applied an L-shape plan in this project, arranging classrooms along the two "legs," or ells, which join at a central tower. This linear pattern framed the old school, which sat behind the new building until razed a year later. The new, two-story, brick elementary featured ten standard classrooms, and specialized rooms for a kindergarten, a clinic, home economics, sewing, and manual training. A large auditorium, with a basement-level play area, formed a quarter circle to round off the inside of the ell. Williamson's firm applied stone Art Deco design treatments in bas relief on the exterior of the building, including stylized heads on the tower, a half figure on the eastern facade, and a frieze above the kindergarten entrance, as seen in Figure 12. Topeka commissioned a few additional schools during the late 1930s, namely East Topeka Junior High and State Street School, but construction on a grand and intensive scale slowed by the end of the decade.

The city certainly needed new schools as fast as Williamson and Company could finish them. A sudden spurt in enrollment, resulting in overcrowded classrooms, fed the board's building program. Daniel Fitzgerald, in his review of Topeka's abandoned schools, reported that public school attendance jumped from 8,929 in 1920 to 12,497 in 1930. School population then declined somewhat during the 1930s and 1940s, before resurging again in the 1950s. By mid-century, some of these "newer" buildings approached twenty years of age, but still ranked as modern in form and function. The quality of service provided within those schools also remained high among teachers of both races. During Topeka's history, teaching requirements advanced from a reliance on "good moral character" to firm requirements of academic training, prior teaching experience, and professional certification in the subject field.51 Many, of course, went beyond the minimal requirements. As Richard Kluger noted, "At two of the four black schools in the town, more of the teachers held master's degrees than at any of the white grade schools, and their devotion to their work was exemplary."52 Mamie Luella Williams, Ethel Williams Barbour, Barbara Ross, Merrill Ross, and many anonymous, hard-working souls contributed to the quality education found in the city's African American schools. White teachers, as well, maintained high academic standards in their classes and Topeka’s entire educational system held a well-earned reputation for excellence.

A large segment of the African American community felt offended by the segregated system, despite relative parity between the white and black schools. Even though instruction in black facilities equalled or surpassed that in white schools, teachers had to work with fewer materials and older books. Black elementaries also lacked health facilities, music programs, and other extra-curricular activities. Racial integration theoretically occurred on the secondary level, but not in actuality. For example, prior to 1941, white students attended seventh and eight grades in Topeka's junior high schools, and advanced to the ninth grade at Topeka High School, whereas African American students attended the seventh and eighth grades in segregated elementary schools before joining their counterparts in the ninth grade. Blacks, therefore, remained segregated in the middle grades until 1941, when the board of education integrated the district's junior high schools. When students did come together, they did so only inside Topeka High's classrooms. Sports teams, clubs, and social groups remained segregated and African Americans often held their events in Monroe Elementary's large gymnasium/auditorium. The school board began to integrate athletic and social events in 1949, but many parents and community leaders pushed for more. They insisted on full integration on all academic levels.53

Topekans had exhibited a high regard for the importance of education from the start. White philanthropists, ministers, businessmen, and women, in particular, contributed to the establishment of strong academic institutions in the Kansas capital. And, they included African Americans in their efforts after 1867. Reverend Charles Sheldon's kindergarten, implemented first in Tennessee Town, became a cornerstone of elementary education throughout the school system by the end of the century. More typically, anonymous women bore the brunt of teaching duties in the late nineteenth century and dedicated their lives to children of both races. Classroom instruction and school administration became more ordered during the first quarter of the twentieth century as state and district regulations defined public education policy. In turn, Topeka's board of education took a proactive approach to improving physical plants, instructional programs, and extracurricular activities during this period and the system grew accordingly. African Americans joined the teaching ranks steadily, but slowly, as allowed by the community and board of education. Racist attitudes and unreasonable assumptions among those in positions of authority meant that the talents of black teachers largely were restricted to the city's elementary schools and extracurricular programs for African Americans. By 1950, the district had lost one legal challenge to segregation in public education and had fended off at least two others. Topeka's progressive record in education became tarnished because of continual resistance on the part of administrators and board members to end discriminatory policies that affected African American teachers and students. And, the strongest challenge lay ahead.

Segregation in Topeka public schools reflected the larger social situation. A regular schizophrenia existed in the capital regarding practices of racial division, as evident in the partial, qualified separation of school children in some grades, but not in others. Citizens tolerated similar inconsistencies in Jim Crow regulations which separated the races in restaurants, movie theaters, businesses, and public transportation systems. Thomas Cox's wonderful study of the socio-political institutions in Topeka's African American community delved into segregationist practices and policies prior to 1915. He described a picture of situational segregation, which restricted blacks to the balcony at the movie theater, but sometimes allowed them to dine freely in Topeka restaurants.54 De facto segregation ranged from restrictive to loose, depending on undefined circumstance, and this inconsistent order of things may have given African Americans strong hope that the practice could be eliminated altogether. Blacks responded to such social constraints through political organization and protest, through participation in short-lived groups like the Colored League and the Afro­ American League, and in more lasting ones, like the National Negro Business League and National Association for the Advancement of Colored People (NAACP). White and black Topekans formed a local branch of the NAACP in 1913, on the heels of the association's founding. Members of such organizations worked for race progress and civil liberty, striving to equalize opportunity through socio-economic advancement and educational accomplishment. Cox remarks that, "Political consciousness in black Topeka was made acute by a high literacy rate, an informed press, and a zest for political action."55 The public school system became a target of reform because education provided an important means to social advancement, but also an end, prized by African Americans for its own sake.

Most challenges to dual school systems throughout Kansas drew their primary ammunition from the lack of parity between books, materials, and educational opportunities for white and black students. Ten cases concerning racial segregation in Kansas public schools came before the state Supreme Court between 1881 and 1941. Three originated in Topeka; including Reynolds v. Board of Education (1903), Wright v. Board of Education (1929), and Graham v. Board of Education (1941). The most insightful raised the condition of separateness, itself, as the key constitutional issue. Paul E. Wilson, co-counsel for the state in the 1954 Brown v. Board of Education suit, claims that the Reynolds case provided the most significant Kansas precedent used in arguments posed by the Attorney General's office against the Brown petition because it did just that. In 1903, William Reynolds, an American of African descent, sought to enroll his son in a new elementary school located in the Lowman Hill district. Children of both races previously had attended the same facility in this area, but the school burned in 1900. Quite curiously, three buildings used successively as temporary quarters for the school were plagued, one after the other, by unexplained fires. The pattern raised suspicions of arson, and some assigned responsibility to local Ku Klux Klan (KKK) members who objected to a mixed student body. The city erected a new eight-room building, on a new site, in 1901 for white students, but relocated a one-story frame building on the site of the original school, for use by African American children.56 When William Reynolds tried to enroll his son in the new white school instead of the ramshackle black one, the school board denied his request, "on the sole ground that the proposed pupil was of African descent and must attend the colored school."57

Quite significantly, the argument now hinged on the characteristic of race as the sole determinant in school assignment. Reynolds' attorney eloquently argued that Topeka's school board subverted the meaning and intent of "common schools" by so segregating its students. The plaintiff's brief explains, "A school is not 'common,' according to the definitions, if a single race is excluded from its advantages; else it would still be 'common' though half a dozen races and nationalities should be excluded. 'Common' has reference to the people as a whole, and that cannot be 'common' to all from which any are excluded." 58 Indeed, the logic seems failsafe because the Fourteenth Amendment carries guarantees of equal protection under the law. The Topeka Board of Education, however, called on the 1896 U.S. Supreme Court in Plessy v. Ferguson and lower court opinions in other Kansas suits to assert its constitutional right to divide its students on the basis of racial classification. The 1879 Kansas law, which authorized separate schools in "first class" cities, provided additional ammunition for the defendant in the Reynolds case. Although only seven years had passed since the Plessy finding, "separate but equal" had grown rapidly by 1903 as a mainstay in American public education. In turn, Reynolds aided its regression to a quality of mere separateness as a test under Kansas statutes. The court's majority opinion held that state law, legal precedent, and local tradition granted the Topeka board wide latitude in the organization of its school system. This meant that William Reynolds lost his suit and segregation became a little more entrenched in the Kansas capital.

This closed the matter for the meantime. Separation of elementary students became more commonplace in the early twentieth century, and segregation of the middle grades occurred at some point between 1908 and 1941.60 As occasional practice turned to stagnant policy in the twentieth century, African Americans increasingly were restricted to subordinate positions, limited experiences, and inferior treatment. J.B. Holland, a native Topekan, served in the city's public school system for thirty-four years, from 1940 to 1974, in the capacities of teacher and principal. Holland grew up in the African American community and described some of the more tangible aspects of second-class status, imbued by arbitrary restrictions placed on black students, saying,

High school was integrated except for activities-activities were all black and white. We couldn't play baseball. We finally had a football team, but that was segregated. You couldn't belong to the debate team. When we went to a class, the whites were seared alphaberjcally. We sat behind the whites. All of our classes... Well, we had some fine teachers who wouldn't buy that, but we frequently were seated that way. You were always ar the end of the room, back of the room. So

that's one of the experiences I'll always remember.61

Subsequent attempts to chip away at segregation, namely through Wright (1929), found no success. In the interim, African Americans had tried to broaden the limited opportunities available to their children through selected court action and private appeal. By 1940, one segment of the black community made a concerted effort to end racial separation in junior high schools.

That venture elicited the most successful action of this period, U.S. Graham v. Board a/Education, Topeka (1941). Mr. Graham brought suit against the school board for his twelve year old son, petitioning for the younger Graham's admittance to the seventh grade at the white, Boswell School. He initially wrote to board president, James McClure, requesting the transfer, but McClure demurred, believing that the child's admittance would open the door to two potentially disruptive situations; 1) either overcrowding in the traditional junior high schools if the administration mainstreamed all African Americans; or 2) too few black students attending classes in elementary school buildings if only some chose to attend white schools. Minutes of school board meetings in June and July 1940 reveal that members seriously addressed the issue of discrimination, itself, and specifically whether or not segregation, per se, amounted to bias. They compared various conditions in the white versus "colored" schools, and offered a tentative proposal to transform Monroe School into a junior high for African American youth. Members rejected that proposal in due course, but it left untouched the potential solution of removing the seventh and eighth grades from the four elementary schools.

The Kansas State Supreme Court ruled on the Graham case by summer 1941, finding in favor of the plaintiff and ordering the Topeka Unified School District (USD) 501 to admit the student to the white junior high school. But, in the minds of administrators and parents, the broader issue of wholesale desegregation remained unresolved. Elisha Scott, a prominent local black attorney, led a delegation of African Americans which appeared before the Board of Education on June 23, 1941. He proposed that the board move students in the seventh and eighth grades from the elementary schools, but that they be taught in a segregated junior high school established for African Americans. Scott deemed that "the time is not ripe" for full integration of these youth, but instead they should be taught by black teachers who understood and cared for them. He expressed grave concern for African American teachers who might be displaced if integration proceeded. Scott proposed a survey of the black community to ascertain the sentiment among the population regarding the school situation. When board members asked another representative, Mr. Joe Thompson, his opinion of the situation, he stated his belief that most parents would reject integration because "it is not so pleasant for colored children to attend school maintained for whites; that it would give the colored students an "inferiority complex" and that many of them would drop out of school which might lead them into trouble of various kinds."63 Thompson and Scott reiterated their hope for the retention of black schools, but leaving open the option for those who so desired to attend the traditional white junior high schools. They offered to conduct a survey of those affected by a policy change, to determine the level of support for integrating the city's junior high schools. The board accepted the proposal and left the issue for future debate. This meeting began a series of discussions about Topeka's school situation between typical factions in American society, namely blacks versus whites and school board versus parents, but they also exposed divisions within the African American community, itself.

On July 7, 1941, a second delegation of forty parents, this time led by NAACP chapter president R.J. Reynolds, spoke to the USD-501 school board about the situation. This group countered the sentiments of Elisha Scott and those who attended the previous meeting by insisting that any option to retain separate seventh and eighth grades would constitute a violation of the Graham decision. Reynolds suggested that the board could reassign any displaced teachers to elementary grades, which would alleviate overcrowded elementary classrooms. Minutes from the meeting note that after this group's presentation, Elisha Scott "asked to go on record again against any discrimination between white and colored children but in favor of segregation, for the present at least, with equal facilities and accommodations." 64 School board members discussed the situation further, with one member, Judge McClure, reiterating the illegality of continuing separate classes for the seventh and eighth grades with no plan for merging the races. He backed away from this staunch view during the July 11 meeting and another member suggested that USD-501 convert Monroe Elementary to a junior high school for African American students. The board also considered the results of Elisha Scott's poll regarding the black community's preference of schools. Reportedly sixty-five percent favored student attendance of segregated rather than integrated schools.

The board took up the issue again at its August 4th meeting, during which a lengthy discussion ensued about the ramifications of retaining the option of choice in school selection. Members expressed fears of contributing to racial tensions within the African American community, of violating the court's integration ruling, and of discriminating against students if the system retained segregated schools. They finally adopted a united stance, voting to eliminate the seventh and eighth grades in Topeka's four segregated elementary schools and reassigning those students into pre-existing, white, junior high schools. Eight African American teachers lost their jobs or were forced into retirement, as Elisha Scott had feared, but these events affected far fewer teachers than some had predicted. Most of the remaining faculty endured a tenuous period of employment during the transition, but the situation opened new opportunities for a few. The school board moved some educators, including Mamie Luella Williams, into administrative positions in the black elementary schools. This dedicated effort to face job loss and division within the African American community in order to stem segregation denoted a significant change in Topeka. The lengthy machinations within the African American community indicated some degree of hesitation for immediate desegregation on the part of a significant portion of the black population. The issue went to the core of control over the educational process, itself, and the right of African Americans to maintain their own institutions. For some parents, the right to protect their children from rude and possibly hostile treatment from white teachers and students outweighed potential gains that might arise from a mixed student body. For others, desegregation represented an opportunity for their children to enter mainstream American society; namely, to learn with white children, socialize with them, and ultimately to work and live peacefully together as one community.

Conclusion

A system of public education in the United States first developed in New England, largely because of devotion to Puritan Congregationalism which emphasized the importance of a staid life of learning and religious discourse. Southerners regarded schooling from an engendered, class-based perspective whereby the sons of the gentry learned law, liberal arts, and estate management. As the nineteenth century neared, a more regimented, universal approach to public education emerged. Americans reached a consensus that instruction should be made available to all citizens of the republic because it was just that, a republic, which survived or failed by the proper functioning of its democratic institutions. A virtuous, enlightened citizenry, which lay at the base of these institutions, relied on education to provide the skills necessary to process data and make informed decisions. An educated populace would elect representatives to govern in the best, most reasonable manner.

Political theory meshed with real life on the borders of this little republic. Congress established the governmental precedent of public schooling through the Land Ordinance of 1785 and Northwest Ordinance of 1787. These laws set the standard for the admission of territories and states by delineating a process which called for the appropriation of public funds and lands for the development of common schools. By 1854, the United States stretched far beyond the Mississippi River and the slavery question had resulted in a reevaluation of the nature of the republic. Americans, divided over the expansion or continuation of slavery, debated the morality of such acts by examining the gradients of citizenship that existed in this reputedly classless society. Those who looked within found diversity rather than homogeneity. The growth of a multiplicity of group identities revealed deep social stratification in a nation that touted virtues of equality and opportunity; as exemplified by the status of slaves, Native Americans, indentured workers, free blacks, immigrants, industrial ''wage slaves," working women, wealthy women, artisans, and businessmen at various times in this nation's history. Even old New England Puritanism was tainted in the process, particularly during a period of discrimination and segregation in the early nineteenth century. The South, entrenched in an economy built on slavery, struggled to maintain its system of racial stratification. Settlers from both regions converged on the Kansas Territory at mid­ century, building communities that would be conflicted over race relations.

While Jayhawkers eschewed bound labor and all its trappings, free-slaters puzzled about the future status of African Americans in their new state. Rather than ponder, Topekans simply went on with the daily business of creating socio-political institutions in their community on the Kaw. Schools were a mainstay, relying on trained professionals and concerned citizens to provide instruction to African American and white children on a relatively even basis during the late nineteenth century. Attitudes began to change, however, during a period of post-Reconstruction retrenchment. During this period, federal courts spewed restrictive interpretations of Fourteenth Amendment rights, which led to more stringent regulations for African Americans in communities across the country. Topeka was no different, and segregation grew stronger after the 1896 Plessy v. Ferguson opinion codified the "separate but equal" test.

As a result, Topeka's educational system experienced some sharp growing pains during its first century. Selected case histories illustrate the development of dual systems for blacks and whites, as well as the strength of challenges to this status quo. African American citizens felt excluded from the full benefits of society, and from the fair and equal treatment due them. Kansans largely were spared from the worst discriminatory conditions, but segregation prevailed nevertheless. While Topeka's school facilities for African Americans surpassed those in most Southern segregated districts, they were still separate and students were stigmatized by that fact. Thomas W. Williamson and Company erected several schools in Topeka during a flurry of activity in the 1920s and 1930s, including the rather spartan Monroe and Art Deco

Sumner. Those built for white children far surpassed the architectural character and quality of the four black primary schools, Buchanan, Washington, McKinley, and Monroe. Williamson's body of work in Topeka brought the greatest level of recognition to the architect because of the quality of design exhibited by his buildings and because of the historic events that occurred inside them. Later attempts by African American parents to move their children from segregated black schools to neighborhood white schools subsequently brought national attention to Monroe and Sumner Elementary Schools. These and all other resources associated with the school desegregation campaign now represent far more than either education or architecture.

By 1940, momentum was building within the African American community for a challenge to end the USD's system of segregated education, and on the heels of national success by the NAACP, such a challenge would not be denied. U.S. Graham's fight to enroll his son in a white junior high school, braced by support among the African American community, directly led ro the desegregation of junior high schools in Topeka. Graham v. Board of Education is vitally important to the history of race relations and public education in the capital city because it signified a major step toward the full desegregation of Topeka's public schools. Community protest and local legal action successfully confined racial separation to the elementary grades, but that was not enough. Graham provided a litmus test for members of the local NAACP chapter and the larger African American community, as a whole. Ten years later, many of the same players found themselves enmeshed in the ultimate fight for educational parity, a legal action dubbed Brown v. Board of Education.

Throughout the struggle in the courts against obstacles of one type or the other, and often against what had been considered binding precedent, a most gratifying source of inspiration has always been the challenge thrown down by the poor souls who have repeated over and over again: "It can't be done." These court cases and the decisions from them have been made possible by the stalwarts who held faith with our Constitution and the men who have

interpreted it to prove "it can be done."1

-Thurgood Marshall, 16 July 1959 NAACP Freedom Fund Report Dinner

1Excerpts of address, "The Fifty Year Fight for Civil Rights," Presented at the NAACP Freedom Fund Report Dinner, 16 July 1959, 5, Thurgood Marshall Papers, Box 579: Folder 16, Manuscripts Division, The Library of Congress, Washington, D.C.

CHAPTER THREE

THE NAACP LAYS THE GROUNDWORK, 1930-1950

On the national scene, African Americans sought viable strategies to challenge well­ establishedJim Crow laws that maintained segregated school systems. The Howard University Law School, located in Washington, D.C., provided the setting for the development of plans to prove the inherent injustices of the "separate but equal" doctrine, as determined to be constitutional by the U.S. Supreme Coutt in the 1896 case, Plessy v. Ferguson. Professor Charles Hamilton Houston and his student colleagues joined with the National Association for the Advancement of Colored People (NAACP) to map out a plan to attack Plessy v. Ferguson by exposing the inherent inequalities found in separate school systems across the nation. Lawyers with the NAACP's Legal Defense and Educational Fund, Inc. (LDF) filed several suits in the 1930s and 1940s which chipped away at segregationist practices in graduate and professional schools. They ultimately sought dependable plaintiffs for an exemplary case, however, that would definitively overturn the constitutionality of Plessy. Several possibilities arose in the early 1950s, including school cases in South Carolina, Virginia, Delaware, Washington, D.C., and one particularly reliable suit filed in U.S. District Court in Topeka, Kansas.

Plessy v. Ferguson

Approximately sixty years earlier, Homer Adolph Plessy had thrown himself into the fray by challenging the constitutionality of a Louisiana state law which segregated public transportation systems. The Separate Car Act designated "equal but separate accommodations for the white and colored races" on railway cars. Plessy, a thirty-year old shoemaker from New Orleans, first challenged the statute when he refused to move to a car reserved for African Americans. A local Comite des Citoyens had organized specifically to appeal the constitutionality of the Jim Crow law by prosecuting two test cases through the federal appeals process to the Supreme Court. They had selected Homer Plessy as a model plaintiff in the case because of his fair skin color and had prearranged the events that led to his arrest on June 7, 1892. With the chain of events thus set into motion, Plessy's case came before New Orleans Judge John Howard Ferguson a month later. Albion W. Tourgee, counsel for the Comite des Citoyens, claimed that Louisiana's law violated Plessy's rights as a citizen of the United States. But, Judge Ferguson felt that the central issue hinged on commerce rather than citizen rights. He ruled the law unconstitutional for trains traveling between states because it potentially placed restrictions on interstate commerce. Travel within state boundaries, however, presented a different set of circumstances. Here, Ferguson specified that states retained the right to regulate railroads operating within their boundaries, therefore the Louisiana statute complied with constitutional guidelines and so had not violated Homer Plessy's liberty.'

As planned, Albion Tourgee appealed the ruling in Homer Plessy v. J.H Ferguson before the Louisiana State and U.S. Supreme Courts. 3 He argued that racial segregation violated the legal protections of due process guaranteed by the Fourteenth Amendment. The concept of due process, or equal protection, can be traced through the evolution of English common law to its guarantee in the Fifth and Fourteenth Amendments to the U.S. Constitution. It places limitations on the police power of the state, as applied through statutes, ordinances, or administrative acts which restrict private property or free contract rights. This principle became the symbolic protector of vested rights in the United States after 1890, replacing the contract clause in this respect, and served as a guarantee against unreasonable legal interference by the state. Both courts denied Tourgee's claim that the statute violated Homer Plessy's right to equal protection because of the "equal but separate" criterion stipulated in the Louisiana Separate Car Act. Justices of the U.S. Supreme Court interpreted the due process clause of the Fourteenth Amendment narrowly in Plessy by reasoning that if each race possessed equal facilities, then no violation occurred. In their classic text on American constitutional history, Kelly and Harbison emphasized that the Court's majority opinion, issued in 1896, stated that "Such a statute,... did not deprive Negroes of the equal protection of the laws, provided Negroes were furnished accommodations equal to those for whites." Justice John Marshall Harlan found Louisiana's statute to be unconstitutional in his famous lone dissent, which eloquently proclaimed the U.S. Constitution to be "color-blind." He felt that segregation violated both the Thirteenth and Fourteenth Amendments because "the arbitrary separation of citizens" by race branded blacks with "a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution."' Justice Harlan, however, was a minority of one.

At least two findings issued prior to the landmark Plessy v. Ferguson ruling dimmed hopes for an equitable application of U.S. law to all the nation's citizens. The Slaughterhouse Cases (1873) and the Civil Rights Cases (1883), in effect, restricted the protections guaranteed in the Fourteenth Amendment by limiting federal authority to intervene in individual matters on the state level. Radical Republicans in Congress, led by Charles Sumner and Thaddeus Stevens, passed the Civil War amendments and the Civil Rights Act of 1875 so as to extend judicial rights and due process protections to recently-freed African Americans. Judicial review thus far had established a theory of dual citizenship which absolved the federal government from any responsibility to protect individual rights, leaving it to the responsibility of the state. Justices determined that each U.S. citizen possessed dual citizenship, of the country as a whole and of the specific state of residence. The Slaughterhouse Cases offered the first test of the Fourteenth Amendment protection against the arbitrary use of state powers, providing the

U.S. Supreme Court with its first opportunity to review and interpret this constitutional reform. This litigation specifically involved the ability of the state of Louisiana to grant a monopoly to one slaughterhouse in New Orleans. Plaintiffs claimed that the monopoly violated individual privileges and immunities protected by the Fourteenth Amendment. But the Court denied their claim, in an exceedingly narrow interpretation of the Fourteenth Amendment, by ruling that the federal government lacked the authority to monitor a state's action in this respect. Justices determined that the Fourteenth Amendment protected only

federal rights, largely international in scope, but had no purview over civil rights, which flowed from the states.;

Rooted in its post-Civil War context, the Civil Rights Act of 1875 stipulated that all citizens were entitled to "the full and equal enjoyment" of accommodations, public conveyances, and places of public amusement. In the Civil Rights Cases of 1883, however, the Court struck it down because it pertained to individual, rather than state action. Justices reiterated the interpretation that the federal government could legally monitor state actions, but lacked the authority to control individual behavior. This finding stipulated, therefore, that the Civil Rights Act of 1875 violated certain individual rights which were beyond federal control, precisely because, at that time, the regulation of individual behaviors, in general, was beyond federal control.' These two cases established precedents which decreased the Fourteenth Amendment's ability to protect individual rights against state actions. Meanwhile, Bourbon Redeemers regained control of local and state governments through the decade as Republican interest in the South's reconstruction declined. The period came to an official close with the inauguration of Rutherford B. Hayes and the subsequent withdrawal of federal troops, as promised in the Compromise of 1877. All of these events signified a definite shift in the 1870s away from concern for African American socio-political participation in general, and the protection of any individual in particular. For all practical purposes, the question of civil rights for black Americans was dropped from the national agenda.

The 1896 Plessy ruling added a crucial element to the momentum of retrenchment from the equitable treatment of African Americans in the post-Reconstruction United States. A battle had waged in the South during the 1870s and 1880s over the status of newly-freed African Americans and the degree to which they would participate in society and politics. But it quickly became a one-sided affair because Republicans lost interest in the South and its problems, Reconstruction formally ended, and Supreme Court actions condoned segregationist laws which limited the civil rights of African Americans. All the while, Redeemers successfully reinstated many former Confederates in political office and enacted legislation to maintain antebellum social divisions along racial lines. The Court's ruling in Plessy v. Ferguson added credibility to these actions by affirming the constitutionality of "separate but equal" transportational venues. Communities throughout the United States, in both the North and the South, applied the doctrine to many types of public accommodations and to educational facilities. Formal racial classification, which the Court earlier had condemned, was thus legitimized by Plessy. In effect, the nation's legal and moral authority condoned local and state legislation that mandated separate facilities for blacks and whites, known as Jim Crow laws. The 1896 finding of "separate but equal" meant that these practices did not violate the due process or equal protection guarantees of the Fourteenth Amendment. Although the Thirteenth Amendment officially ended the practice of slavery, separate societies became the norm in the late nineteenth century through the enforcement of these Jim Crow laws. Many people denied the significance of segregation by assuming that the quality of separate facilities for blacks equalled those enjoyed by whites, but they were rarely comparable. African Americans sought to redress the "separate but equal" doctrine despite opposition from the Court and society, at large. They realized, however, that any protest about inequitable facilities or opportunities automatically raised the specter, and the credibility, of Plessy v. Ferguson.' Unfortunately, the precept of "separate but equal" carried the U.S. Supreme Court's seal of approval. African Americans first tested the doctrine of "separate but equal" in Cumming v. Richmond County Board of Education, three years after the Court's finding. Citizens in Augusta, Georgia, challenged segregated education in Richmond County by petitioning for an injunction to interrupt the operation of a "white" high school until the board of education reopened one for African American youth.' Parties involved in the case had wrangled over the availability of a "black" high school for years, and when it was converted to elementary use, the plaintiffs sought relief because the county then provided no facility, much less an equal one, for African American high school students. The case centered on the amount of taxes paid by blacks in Augusta versus the amount of public benefits they enjoyed. Justice Harlan, of Plessy dissent fame, wrote the unanimous opinion for the Court. He denied any claim of discrimination resulting from a disproportionate share of public accommodations and stayed away from a discussion of equal facilities completely. Harlan found no violation of the Fourteenth Amendment or of the "separate but equal" rule, despite his rejection of a similar argument three years earlier. Richard Kluger points out, in his classic study of Brown v. Board of Education, that the plaintiffs' strategy in Cumming needed a sharper focus because they sought punitive relief rather than a re-evaluation of segregation, itself. Nevertheless, the case had a significant impact because it sent the message that African Americans had little recourse to inequitable use of public funds or discrimination in public accommodations.'

Civil rights advocates realized that the full benefits of African American citizenship had slipped away quickly in the late nineteenth century. Booker T. Washington's call for patience, his emphasis on vocational training, and accommodation of the white majority's expectations of blacks, as well as Washington's increasing national prominence, rankled more than a few liberals. In 1909, a core group of proactive intellectuals organized the National Association for the Advancement of Colored People (NAACP) in New York City to fight race discrimination. It sprang out of the Niagara Movement led by W.E.B. DuBois, who gathered a prestigious group, as Minnie Finch quotes, "for 'organized determination and aggressive action on the part of men who believe in Negro freedom and growth....'"10 DuBois opposed Washington's moderate stance on race relations, much preferring an aggressive campaign to redirect socio-political participation for the equal enhancement of African Americans. The Niagara Movement included a broadly-based coalition of former abolitionists and their descendants, socialists, Progressives, liberals from many disciplines, social workers, and opponents of accommodationism. Members of both races founded the Association in 1909 and formally organized it in stages from 1910 to 1912. William English Walling became the first chairman of the thirty-member board and Moorfield Storey took the honorary title of president. Du Bois served as director of publications and research, editing its mouthpiece, The Crisis. Although the NAACP adopted an activist rather than an accommodationist stance, Mary White Ovington, a wealthy, white social worker and founding board member, feared that the organization needed Washington's support, with an appropriate nod to his views, to attract financial backing."

Money was indeed tight, but the NAACP raised enough funds to begin a legal campaign against the bulwarks of racial discrimination. Members petitioned Woodrow Wilson's administration to attack segregation in the federal government and the armed forces, to appoint a race commission, and to lobby for anti-lynching legislation. The Association launched a major anti-lynching campaign as early as 1911 which drew attention to violence against blacks throughout the United States. The mass migration of blacks from the rural South to urban areas in the Nonh and Midwest sparked additional riots and lynchings after World War I. By 1919, the organization focused on the disparity between the contributions made by African American servicemen in the war versus the benefits of democracy they shared back in the states. The NAACP lobbied hard for federal anti-lynching legislation, with little success. The widespread violence and discrimination in the 1920s pointed to persistent practices of segregation which allowed unrestricted access to resources and full socio-political participation for whites, but denied them to African Americans. The extent of prejudice and racial violence across the country showed that it had become a national problem, no longer limited to a reconstructed South."

Participants in the Niagara Conferences had viewed education as a means for ending racial stereotypes, creating an informed populace, and effecting change in race relations. They transferred this conviction to the NAACP. Du Bois had stated openly his personal beliefs about the importance of liberal ans education and had proposed the development of a "talented tenth" who would direct African American energies. He differed with his colleagues, however, on the issue of segregation as means to equality. In his comprehensive study of the NAACP's litigation strategy against segregation, Mark V, Tushnet states that Du Bois "wanted to distinguish segregation from racial discrimination" because the African American community possessed tremendous power through solidarity. Integration would diffuse this power. Furthermore, Du Bois believed that African American youth often profited from segregated education because it removed them from subtle discrimination and direct racist attacks by white students and instructors that they would find in mixed schools. During the 1930s, he published several editorials in The Crisis and anicles in The Journal of Negro Education which explained his philosophy about segregation. Even though he couched his arguments in a realistic context of race relations, Du Bois' position on segregation led to rancor with his colleagues and contributed to his resignation from the NAACP in 1934. Du Bois summarized his arguments for racial separation in a 1935 anicle, entitled "Does the Negro Need Separate Schools?" He examined both sides of the issue, finding that, with integration, the critical teacher-pupil relationship would suffer and white instructors would not teach African American history. Calls for mixed schools, Du Bois claimed, belie a low level of confidence on the pan of African Americans, in black educators and curricula. He believed separate schools which educated their students far outstripped mixed ones where they were mistreated. Du Bois ended his argument with this analysis,

To sum up this: theoretically, the Negro needs neither segregated schools nor mixed schools. What he needs is Education. What he must remember is that there is no magic, either in mixed schools or in segregated schools. A mixed school with poor and unsympathetic teachers, with hostile public opinion, and no teaching of truth concerning black folk, is bad. A segregated school with ignorant placeholders, inadequate equipment, poor salaries, and wretched housing, is equally bad. Other things being equal, the mixed school is the broader, more natural basis for the education of all youth. It gives wider contacts; it inspires greater self-confidence; and suppresses the inferiority complex. But other things seldom are equal, and in that case, Sympathy, Knowledge, and the Truth, outweigh all that the mixed school can offer.

At this time in his career, Du Bois came down on the side of economic advancement for African Americans, racial pride, integrity, and separation.

The Association focused its efforts on ending segregation by overturning the Plessy "separate but equal" precedent despite such weighty opposition. Early on, members created a legal redress committee to organize a well-funded, well-planned litigation campaign against discrimination. The NAACP initially placed two conditions on its cases: 1) the case had to involve racial discrimination; and 2) it must deal with some fundamental right of citizenship. Arthur B. Spingarn and Charles H. Studin handled legal matters at first, but the organization's demand outswept the workload capacity of two men. Members compiled a list of lawyers across the United States who could be drafted into service when necessary, including jurist Felix Frankfurter and his students at Harvard. Moorfield Storey successfully argued two early cases before the U.S. Supreme Court, dealing with Oklahoma's grandfather clause restriction on voter registration (1915) and segregation in Louisville, Kentucky (1917). The NAACP prosecuted a number of cases from 1911 to 1930, dealing with a range of injustices from lynching to salary disputes. But, members viewed segregation, in transportation, public accommodation, and education, as the primary means by which the majority population restricted African American socio-political participation and status. Discussions of access and status naturally led to the issues of public opinion and economic equalization. Some members argued that without the support of the white middle class, legal change would be futile because it would not automatically lead to social change. Others believed that adjustments to the political structure, effected via litigation and legislation, would direct social change and economic advancement, to which the public would adapt. The NAACP, as a whole, also viewed legal action as a way to galvanize African American solidarity.

As with all things, inadequate financing placed real limitations on the NAACP's work. It received a grant in 1929 from the American Fund for Public Service, more commonly known as the Garland Fund, which was established by Charles Garland with a large bequest left by his father. The relationship between the Garland Fund and the NAACP was a tenuous one, at best. The initial promise of $100,000 shrank to $30,000 real dollars during the Great Depression of the 1930s. Nevertheless, members of the Association and Fund formed an administrative board which outlined key targets for litigation, including segregation in housing, transportation, franchisement, restrictions on black juries, and "the unequal apportionment of school funds." Garland moneys allowed the national office to hire an attorney to prosecute such civil rights cases on a full-time basis. Nathan R. Margold, protege of Felix Frankfurter and former assistant United States attorney for the Southern District of New York, filled the post from 1930 to 19331.6

Margold immediately began a comprehensive study of the legal status of African Americans. The work naturally focused on complex questions about the nature of citizenship, constitutional guarantees versus political rights, and social dynamics between the races. The Margold Report, published in 1931, discussed at length legal routes for attacking segregation in public schools. It suggested a direct attack on disproportionate spending patterns between white and black schools, which would be fairly easy to prove but difficult to change. Facilities for African Americans rarely matched those used by Caucasians. Margold initially outlined three points of action; 1) obtain mandamus, an order from the state courts, requiring the school system to abide by state law; 2) obtain federal remedy when federal funds were misapportioned; and 3) force the issue of "equal" in the "separate but equal" dictum so that taxpayers would opt for one school system instead of two.17 These strategies would attack segregation in a logical way, by pointing out discrepancies in de jure segregation which showed that separate rarely meant equal. By forcing segregated school systems to equalize funding, the courts would place an expensive burden on taxpayers because they would, by law, be required to support two systems. After this preliminary analysis, however, Margold felt that lawsuits using mandamus and those protesting disproportionate funding would be too tedious for three major reasons. They would have to target specific individuals responsible for expenditures, mandamus orders would have to be renewed annually, and state regulations do not apply strictly to certain schools within counties, but only call for equalized funding across the state. He summed up his thinking by saying,

It would be a great mistake to fritter away our limited funds on sporadic attempts to force the making of equal divisions of school funds in the few instances where such attempts might be expected to succeed. At the most, we could do no more than to eliminate a very rninor pan of the discrimination during the year our suits are commenced. We should not be establishing any new principles, nor bringing any sort of pressure to bear which can reasonably be expected to retain the slightest force beyond that exerred by the specific judgement or order that we might obtain. And we should be leaving wholly untouched the very essence of the existing evils.18

As a result of his analysis, Margold effectively honed this broad legal argument to three points; that state law required separate schools, that expenditures were obviously unequal, and that state remedies for specific schools or counties were unavailable. He recommended that the NAACP directly challenge segregation in elementary and secondary schools by seeking findings of unconstitutionality for violations of these precise points rather than by pursuing temporary orders of mandamus for funding equalization. Margold summed it up by saying, "On the other hand, if we boldly challenge the constitutional validity of segregation if and when accompanied irremediably by discrimination, we can strike directly at the most prolific sources of discrimination." Success in explicit lawsuits would force specific issues with school systems and reduce appeal options, causing them to either equalize facilities or end segregation.

Nathan Margold resigned from his post at the NAACP in 1933, but he framed a critical argument central to the organization's existence. As summarized by Jack Greenberg, former co-counsel and director of the Legal Defense and Educational Fund, Inc., "The idea was that if wherever there was segregation there also was inequality, which was invariably the case, segregation, therefore, was unconstitutional."20 Margold explicitly crafted a methodology for accomplishing this goal. He further believed that litigation successes would provide a crucial rallying point for the nation's African Americans and would lead to greater respect from the population at large. Although Nathan Margold captured the essence of the Association, his report's effectiveness was limited by Margold's departure, NAACP financial worries, and disagreements with administrators of the Garland Fund. Charles Hamilton Houston, prominent faculty member and dean at Howard University Law School, succeeded Margold as special counsel in May 1934. He operated on the same fundamental beliefs expressed by Margold, but targeted graduate and professional education and salary equalization as starting points in the fight against segregation. Houston also emphasized racial pride as an important element in the NAACP's work and sought involvement by local communities in civil rights efforts. During his tenure, the organization added more black lawyers to its legal staff, shifted influence from Arthur Spingarn and the Legal Committee to staff counsel led by Houston, and initiated model cases which sharpened procedural strategies to strike down segregation. Houston wanted the NAACP to grow stronger and litigation offered one way to attract new members. Continual disagreements over the use of the Garland grant terminated that relationship by 1938. Nevertheless, the Association drafted and sustained its own economic plan. Its membership and influence grew as legal work flourished on a foundation laid by Charles Hamilton Houston.21

The Life and Work of Charles Hamilton Houston

No one signifies the Association's efforts to end segregation more than Charles Hamilton Houston. He refined the litigation campaign during his brief tenure as NAACP special counsel and trained an elite group at Howard University Law School to conduct it. Genna Rae McNeil, who has written a very complete biography of the man and his mission, stated, "Charles Houston's entire career as a civil rights lawyer exemplified the belief that the law could be used to promote fundamental social change and that it was an instrument available to a minority even when that minority was without access to the ordinary weapons of democracy."22 Throughout his life, Houston sought equitable treatment for himself and those of his race. Education and jurisprudence proved to be the most effective avenues for his labors.

Charles Hamilton Houston, born into a middle class family in 1895, lived most of his life in Washington, D.C. His father, William, conducted a private law practice and taught evening law classes at Howard University Law School. Mary Houston, Charles' mother, operated a hairdressing salon for some of Washington's elite. As their professional standing matured, the household's economic security stabilized and provided Charles with a supportive and nurturing environment. He attended one of the nation's most acclaimed secondary schools, M Street High, which was the first built exclusively for black students with public funds. This facility, and its successor Dunbar High School, sustained a prime group of outstanding African American educators and students from 1890 to 1954, including Francis L. Cardozo, Robert Terrell, Mary Church Terrell, Rayford Logan, Carter G. Woodson, and Charles Hamilton Houston. M Street's faculty maintained high academic standards, resisted pressures to emphasize vocational training, and turned out graduates prepared for rigorous university instruction. Like many of M Street's graduates, Houston advanced easily to a well­ renowned, eastern university, but, unlike his compatriots, he did so at the tender age of fifteen. Buoyed by full financial support from his parents, he completed an undergraduate degree at Amherst College four years later, in 1915. Houston later graduated with honors from Harvard Law School, with a Bachelor of Laws and Doctor of Juridical Science, but not without an interim period of contemplation, frustration, and worldly experience.

In 1915, the younger Houston emerged at nineteen from the academic cloister with little "real world" experience. William Houston hoped that his son would join his legal practice, but the young man resisted and instead became an English instructor at Howard University for two academic terms from 1915 to 1917. At this time, the Progressive Era, defined by optimistic social reform, was winding down and the United States teetered on the brink of involvement in "the great war" that would be the "war to end all wars," but which only would be America's first in a busy twentieth century. President Woodrow Wilson watched with his country as the war bogged down in Europe and ultimately offered its forces in 1917 to "make the world safe for democracy." Charles Hamilton Houston enlisted in theU.S. Army officer corps rather than face an uncertain draft situation. He and other college graduates called for the establishment of a separate training facility for African American officers who would then lead "black" units. Some opposed this out-right request for segregation, but supporters argued that the War Department would organize Jim Crow units, anyway, and place white officers in the lead. This way, African Americans might make some gains by proving capability and earning respect. Houston's group received leadership positions, but training and placement moved at a slow pace and was interspersed with disrespectful and discriminatory treatment. Many aspects of his military career frustrated Charlie, especially the notion of a prejudicial nation espousing a democratic ideal that it did not meet. He returned from the war with a bitterness shaped by racist behaviors and by the hypocrisy of U.S. rhetoric and socio-political systems. Racial tensions heightened by the "Red Scare" and post-war economic recession provided a candid homecoming that further illustrated the slim justice shared by African Americans. Houston became convinced that blacks could receive equitable remedy, not through the accommodationist approach espoused by Booker T. Washington or Robert Russa Moton, but only by changing the system from within.

A proper education in the law offered the first step to this end. Houston returned to academia to gain recourse against the cruelties of the "real world," completing his degrees at Harvard in 1924. He then joined his father's law practice in Washington, D.C. and after a few months, also joined the faculty of the Howard University Law School. By all accounts, Charles led his students through a tough regimen that required excellence and hard work. His biographer, Genna Rae McNeil says, "But Charles Houston asked no more of his students than he expected of himself, and for that reason," Spottswood Robinson, III claimed, "while 'students were sometimes driven to swearing' at Houston 'they also swore by hi m."'25 Houston engaged in a year-long research project which took him across the South to survey the activity and status of its African American lawyers. He saw widespread poverty, personal degradation, and meager facilities firsthand. This aggressive, young faculty member drew the favorable attention of the university's administration early on and by 1929 was appointed vice­ dean of the law school. A petition for accreditation by Howard's president and board of trustees coincided with Houston's arrival and the young professor supported the bid wholeheartedly. Houston believed that the school carried an obligation to train African American lawyers to defend their people against a monolithic juridical system. In his philosophy, these lawyers should function as "social engineers" and "group interpreters" who worked for the advocacy of their race. Without full certification, Howard Law School lacked academic credibility, which would, in turn, potentially handicap its graduates, hinder their work, and tarnish their reputations.26

Charles Houston worked hard to bring the law school up to contemporary professional standards. Critics accused him of trying to "Harvardize" it when he raised admission standards, abolished the evening school, lengthened the academic term, and revised the curriculum to include basic economics, administrative law, and practical professional training. Despite heavy criticism, Houston remained convinced that Howard had a crucial role to play in the future social advancement of African Americans. And, he saw that it did. The changes toughened standards and curtailed opportunities for part-time students, but established a more conducive environment for those who could devote themselves wholeheartedly to jurisprudence. Vice-Dean Houston instituted teaching fellowships to bring some of the best to Howard as visiting faculty who would conduct "special lectures" to motivate and instruct. Howard Law School became a laboratory for the development of a corps of conscientious, well-trained litigators. He pushed his students to greater accomplishments and recruited some of the more outstanding ones to conduct the NAACP's litigation campaign. Alumni Thurgood Marshall, Robert Carter, and Spottswood Robinson later comprised a valuable core for the NAACP's Legal Defense and Educational Fund, Inc. Although Howard would graduate fewer attorneys each year, they would be better qualified as professionals and leaders of their communities. 27

When Charles Hamilton Houston joined the NAACP in 1935 as Special Counsel, he launched into the position with the same energy displayed at Howard Law School, by revising the Legal Committee's agenda. He picked up where Nathan Margold left off, agreeing that segregation offered a basic key to prejudicial treatment, but developing a practical strategy based on a process of litigation modified for each case, rather than retaining the broad, static planning outlined in Margold's report. Houston toured the South in 1935 to assess educational facilities for African Americans and was shocked by the conditions of most "black" public schools. He immediately targeted two major causes; salary equalization for teachers and parity in admissions to graduate and professional schools. Although believing desegregation at all levels held the potential for racial equalization, Houston regarded the desegregation of graduate and professional education as a first and less threatening step for a race conscious society. Furthermore, he believed that suits for minority university admissions more likely would find success in the Upper South and in border states; that is, if the right plaintiffs could be found. Mark Tushnet, in his study of the NAACP's legal strategy, quoted William Hastie as describing "the desirable plaintiff as a person who would be 'of outstanding scholarship neat,

personable, and unmistakably a Negro.' The plaintiff would be 'a valuable object lesson which shows the whites in the community that there are negroes who measure up in every respect

to collegiate standards."' 28 In like manner, representative lawsuits had to possess characteristics that offered wider applicability beyond the specific case and, if litigated successfully, could establish a precedent to be used for the more prolonged attack on Plessy v. Ferguson's "separate but equal" doctrine. Each small victory would contribute to the war against segregation and unequal treatment in American society. From 1935 to 1950, qualified litigants represented exceptional plaintiffs in suits germane to fundamental civil rights issues in the Upper South. Counsel carefully selected both case and plaintiff, learning by trial and error which combinations of case and plaintiff worked best to beat back segregation. The formula of time, place, players, and action worked in rather quick fashion, with Houston as the catalyst.

Although this period proved to be a rigorous one for NAACP counsel, Charles Hamilton Houston ran the "shop" from behind the scenes, while Thurgood Marshall eased into national prominence. Houston's service in the New York office as Special Counsel officially lasted only three years, from 1935 to 1938, because in July of that year he returned to Washington, D.C. Charles then resumed the practice of law with "Houston & Houston" and also continued to coordinate the NAACP's litigation process. Thurgood Marshall was immediately tapped as assistant special counsel for the interim, providing direction in the New York office until officially advancing to the top position in 1940. Houston argued Missouri ex. rel. Gaines v. Canada regarding admission to the University of Missouri Law School before the U.S. Supreme Court during this transitional period, consulted on other key cases, most notably, Bolling v. Sharpe regarding desegregation in the District of Columbia, and litigated many labor grievances. Marshall, however, had assumed a primary role in the prosecution of most education and salary equalization suits by 1938, along with others educated by Houston at Howard or honed under his leadership at the NAACP. After his resignation as special counsel, Charles Houston retained a seat on the NAACP's National Legal Committee and

28Tushnet, The NAACP's Legal Strategy Against Segregated Education, 37.

84 BRv B Historic Resource Study

continued to advise Marshall until his death in 1950. Ill health had plagued Houston throughout most of his professional career. Bouts with influenza during World War I had damaged his lungs, which, in turn, contributed to the onset of tuberculosis in the mid-1920s. He resumed work after a period of quarantine, but Houston suffered sporadically with angina and heart problems during the hectic years of the 1930s and 1940s. These problems simply escalated and Charles Hamilton Houston died of heart failure on April 20, 1950 at the age of fifty-four.29

"His name may be little known," Juan Williams has commented, "but the results of his efforts were profound."30 The groundwork for the destruction of Plessy's legacy was laid by Houston. Instead of accepting the status quo, Charles Houston established his own legacy by training young attorneys to look beyond the law, to the people it affected and the society it shaped. He emphasized the importance of social engineering conducted by African Americans to enhance opportunity, equity, and status for African Americans. Houston provided the skills with which attorneys could dispute in cogent and rational fashion, not merely the day-to-day atrocities of segregation, but the well-entrenched, institutionalization of racism. To this end, a team of bright, talented lawyers had coalesced by the late 1930s. They formed the center of the NAACP's Legal Defense and Educational Fund, Inc. (LDF), more commonly referred to as the "Inc., Fund," which then selectively litigated cases regarding the desegregation of graduate, professional, and public elementary schools. Charles Hamilton Houston was the "father" of these young professionals who achieved so much for racial equality in the mid­ twentieth century.

The legal course against segregation

Thurgood Marshall, Constance Baker Motley, Jack Greenberg, Robert Carter, Spottswood Robinson, James Nabrit, Louis Redding, William Hastie--the list has become a veritable "who's who" comprised of members from both races employed by the LDF for the purpose of overturning Plessy v. Ferguson. Walter White led the NAACP during this period, and in fact, had suggested employing Charles Houston to continue the legal program established by Margold. Under White's direction, the Association had formed the LDF specifically to conduct legal action and used it to raise both human and financial capital. By the late 1930s, however, the Association's successful anti-lynching crusade and congressional lobbying efforts had raised serious challenges to its tax-exempt status. LDF counsel feared a potential loss of funding and also realized that the sheer scale of its litigation efforts required far more money than membership dues could cover, so the Fund separated from the NAACP in order to remain non-profit and to vigorously solicit funds exclusively for its legal program.

This allowed greater focus on the work at hand, but the division augmented tensions between the two organizations as the century progressed."

This "cadre of lawyers," as they are often labeled, ventured beyond Houston's attack to bring equalization to the "separate but equal" doctrine. They set out to prove the intrinsic illegality of segregation, itself. This careful process required the establishment of a juridical foundation via the prosecution of a series of lawsuits which challenged manifestations of segregation in graduate and professional education. The line of argument concerned well­ established guarantees of due process that were entrenched in western culture and codified in the Fifth and Fourteenth constitutional amendments. The Magna Carta (1215) first recorded the concept of "due process of law" in western culture as a means of protecting private property against the potential, arbitrary power of the English monarch. It became incorporated into English common law over several generations and ultimately crossed the Atlantic in governmental charters for various British colonies. State constitutional conventions subsequently adopted the measure and their representatives later incorporated it into a Bill of Rights attached to the new Constitution for the United States in 1791. The Fifth Amendment codified a guarantee of due process which applied specifically to protections of "life, liberty and property" against the arbitrary use of power by the federal government. Prior to 1870, the due process clause offered general procedural protection of broad judicial rights; such as requirement of a warrant for an arrest, the right to counsel, trial by an impartial jury of peers, the right to hear evidence, and requirement of a verdict before sentencing.32

Specific individual rights became a greater issue after 1870 when the concept of due process replaced the contract clause as a guarantee against unreasonable interference with private property. The dynamics of the Civil War experience added to this metamorphosis by bringing about the "Civil War Amendments," consisting of the Thirteenth which outlawed slavery, the Fourteenth which bestowed citizenship, and the Fifteenth which granted voting rights to adult males regardless of race or ethnic origin. These related specifically to African Americans, but also directed attention to the subject of individual rights, with the Fourteenth, in particular, ostensibly broaching citizens' rights versus those of the state. This marked a profound change in judicial interpretations of due process, for this guarantee dealt with individual civil rights concerning personal interactions to make and enforce contracts, to sue and be sued, to retain or dispose of real and personal property, and most importantly--to extend equal protection of the laws to any citizen living within the jurisdiction of the United States. The Fourteenth Amendment, born of the Radical Republicans' Civil Rights Bill of 1866, specifically countered arbitrary and unsanctioned state powers. Section One specifically states,

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

On paper, this comprehensive amendment specifically checked the powers of the state rather than the federal government and pinpointed rights that rested with the individual citizen. Section One's provision for equal protection paved the way for future attacks on practices, segregation, for example, that obstructed the broad protections of civil law. It, in a sense, preserved the sovereignty of the individual against the over-arching power of the civil body politic.34

Concepts of due process and equal protection which descended from European socio­ political traditions were given form in this nation's dynamic, innovative political system. LDF counsel drew upon this long history in the mid-twentieth century by claiming that segregation violated individual guarantees of due process and equal protection. Several precedents gave judicial backing for a final push to overturn the constitutionality of the "separate but equal" finding' in Plessy v. Ferguson. Although the record of litigation regarding fundamental civil rights is quite extensive, some landmark cases stand out because they either condoned or reproached segregation. Gong Lum v. Rice (1927), a case which dealt with the assignment of a young girl of Chinese descent to a public school for African Americans, reinforced the legality of racial separation. The plaintiff did not challenge racial segregation, itself, but only requested exemption from minority racial assignment. Martha Lum's father requested that the Bolivar County, Mississippi school system allow her to attend the local school district's "white" rather than its "black" school. His request was denied. When the case reached the

U.S. Supreme Court, Chief Justice William H. Taft deemed the constitutionality of racial segregation as thoroughly settled in Roberts v. City of Boston (1849), finding no contradictions with the privileges and immunities of the Fourteenth Amendment. He furthermore determined that the Court had no place in the state's business and maintained the legality of Lum's racial assignment with African American youth. This became an important precedent which upheld the Plessy finding and which the LDF had to address on its own merit.;3

The "failure" of Gong Lum reinforced some opinions that the LDF had to structure its attack on segregation to be as least threatening as possible to the white majority. Behavior patterns seemed to indicate a reluctance on the part of many Southern whites to allow the mixing of young, impressionable children.36 Even though pre-schoolers of both races often played together, parents usually separated them when they entered elementary school. Houston and others, therefore, believed that LDF strategy should acknowledge these perceptions and avoid them altogether by focusing on the integration of young adults in professional and graduate schools. In 1933, William H. Hastie, Jr., Houston's second cousin and member of the family law firm, took on a case which fit this goal perfectly. Walter White, the NAACP's executive secretary, recommended the case of Thomas Hocutt, a graduate

of North Carolina College for Negroes, who had applied to the state's only school of pharmacy, located at the University of North Carolina. Interestingly, Hocutt's application was blocked not by white university administrators, but by the state's leading African American educator and a wide majority of Durham's black business community. 37

Dr. James E. Shepard, president of the North Carolina College for Negroes, effectively blocked the admission by refusing to provide Hocutt's undergraduate transcript and written recommendation for further study. "He believed that blacks preferred separate education," Gilbert Ware claimed, "provided that it was indeed equal, a quality that had been made even more unlikely in light of severe cuts in the budgets of Negro colleges." But, other members of the African American business and professional communities opposed Hocutt's legal challenge because they felt that the action generally would undermine the race's social progress in North Carolina, and specifically hinder legislative support for black colleges. Some African Americans very simply decried the intrusion of "outsiders" into their affairs. Nevertheless, the case of Thomas R. Hocutt v. Thomas]. Wilson, Jr. Dean of Admissions and Registrar, and the University of North Carolina (1933) reached Superior Court, where Hastie's request for relief was refused. The court ruled that Hocutt sought improper relief because his petition failed to request that the university consider his application in good faith, without regard to his race. The university could not consider Hocutt's application without the required copies of transcripts and letters of recommendation, which Dr. Shepard refused to provide, so Hastie's request for mandamus ordering such action was denied. It summarily dismissed the suit and Hastie filed no appeal. 38

Despite its quick, but disappointing, resolution, Hocutt provided some important lessons for the NAACP's campaign against segregation. Firstly, counselors realized the critical importance of support for legal action from local African American communmes. As mentioned, the NAACP found little support for Hocutt among African Americans in Durham, and even the Association's local chapter voted to oppose it. Secondly, attorneys realized that plaintiffs must meet exemplary qualifications in order to guarantee success. Hocutt's academic performance was less than stellar. His high school grades were low and, although his undergraduate scores ranked above average, he had deficient reading skills and performed poorly on the witness stand. Arguments for his admission to the University of North Carolina were nullified because Hocutt's weak academic record outstripped the issue of race, his application lacked supporting documentation, and his poor trial performance raised questions about Hocutt's qualifications for advanced education. North Carolina Superior Court's finding further showed that Hastie's specific call for mandamus defined the legal question too narrowly, thus allowing judges to resolve or dismiss precise grievances out-of­ hand, without room for appeal. NAACP attorneys would avoid mandamus in the future, and would frame their arguments more broadly. In addition, they found that firm control by the central office in New York was critical because the physical proximity of participants, namely potentially great geographical distances between plaintiffs and counsel, could result in very real logistical problems. Particular attention also had to be paid to local law--to the idiosyncracies of local courts, where, as Mark Tushnet says, "litigation could be aborted by what state judges could treat as technical errors of various sorts." The Hocutt experience proved to be very beneficial because NAACP counsel quickly grasped the importance of four key criteria for litigation; including community support, exemplary clientele, petition of a redressable grievance, and central control over cases. Charles Hamilton Houston learned from this experience and adapted NAACP strategy accordingly. 39

Maryland provided the setting for the next significant case. Donald Murray, a graduate of Amherst College, applied in 1935 for admission to the state university's law school. The University of Maryland rejected the applications of nine African Americans during the previous year, and rejected Thurgood Marshall's application in 1930, so the desegregation of this particular school held broad support from the black community and a personal connection for this leading African American attorney. Murray met the same fate. The university's president, Raymond A. Pearson, declined admission to the School of Law, but gave Murray two choices; he could either attend the segregated Princess Anne Academy on the Eastern Shore or receive a scholarship for study outside of the state. Richard Kluger refers to the "black" equivalent of Maryland's School of Law as a "glorified high school," hardly equal to its well-established counterpart. Murray declined the offer and sought relief through the courts. Houston and Marshall challenged the school position as a direct violation of the Fourteenth Amendment's equal protection clause in Murray v. Maryland (1936).

The case met all of the NAACP's criteria; the African American community supponed the litigation, Donald Murray possessed an impeccable academic record, Houston and Marshall requested relief via Founeenth Amendment guarantees, and it was litigated by the NAACP's top counsel in a border state within close proximity to the New York and Washington offices. Funhermore, Marshall grew up in Baltimore and knew from personal experience the intricacies of Maryland state law and the university's treatment of black applicants. During the hearing, he established that the Princess Anne Academy was, according to Carl Rowan, "really an unaccredited junior college whose faculty contained only one person with an earned college degree."41 The University of Maryland possessed the only accredited law school in the state. The combination of talent, credibility, and clear demonstration of inequality between the two facilities led to success. The state Courtinitially found in Murray's favor, and the Maryland State Courtof Appeals reaffirmed the lower coun's ruling. It rejected the scholarship system as a method of relief for equal treatment, ordering the university to either admit Donald Murray to its existing School of Law or establish a new, equitable one for African Americans. The school admitted Murray during the appeals process and he received diverse forms of suppon from a number of sources during his successful academic career. His case bolstered confidence in the NAACP strategy, panicularly reaffirming Houston's belief that segregation could be attacked more successfully in border states, and marked a significant precedent for the continual battle against the "separate but equal" ruling.42

Soon after this success, Houston contacted Sidney Redmond, a leading NAACP activist and attorney in St. Louis, regarding an incident at the University of Missouri in Columbia. Lloyd L. Gaines had applied for admission to the university's School of Law in 1936, but was referred to the state's representative "black" school, Lincoln University, approximately thiny miles away in Jefferson City. Gaines graduated from Lincoln with honors and knew that it did not possess a law school. Since he was the first African American to apply to any degree program at the University of Missouri, President Middlebush and the board of curators deliberated briefly about procedures for dealing with Mr. Gaines. They ignored and then rejected his application, based on race and the legalities of segregation, and instead offered Gaines the choice of an out-of-state scholarship or their promise to found a segregated law school at Lincoln University. Gaines instead chose to file a grievance, with the NAACP's help. Houston, at first, had expressed unspecified misgivings about Gaines' suitability as a plaintiff and wanted Redmond to find additional clients to bolster the suit, but no others could be found. Houston finally accepted the case because the university's rejection provided a clear target for arguments based solely on race. The board of curators had made a critical mistake by citing race as the determining factor for Gaines' rejection because it provided a clear opponunity to file suit based on a denial of equal protection under the law. Marshall and Houston were ecstatic about the curators' confession. They argued the case, along with Redmond, in Missouri state court, which determined that the university's options fell well within constitutional guidelines. Appeals for mandamus, ordering the school to admit Gaines, were repeatedly denied in the Missouri Supreme Court and federal circuit courts."

The NAACP legal team finally found relief before the U.S. Supreme Court in Missouri ex. rel. Lloyd L. Gaines v. S.W. Canada, Registrar, University of Missouri (1938), which resolved that Gaines deserved the opportunity for legal education comparable to that available to white students. Chief Justice Charles Evans Hughes cited Murray as a precedent for his opinion that Missouri's action constituted a denial of equal protection. He considered the proposed remedy of out-of-state scholarships as null because it evaded the state's responsibility to provide equal education to African Americans within its boundaries. Despite his victory, Lloyd Gaines never entered the University of Missouri School of Law. He enrolled in an economics program at the University of Michigan during the appeals process. Despite graduating from Lincoln with honors, he failed to qualify for financial aid at Michigan and considered accepting Missouri's scholarship offer. Charlie Houston hustled to retain his client by locating funds to defray Gaines' educational expenses during the litigation process. It was critical to keep Gaines happy, for without him, the NAACP had no case. Gaines remained in school through the full resolution of the case by the U.S. Supreme Court, but dropped out of sight soon afterward and the NAACP never heard from him again. The University of Missouri went ahead with its plans and, by 1939, had established the Lincoln University Law School Oocated in St. Louis) for African Americans. 44

Lloyd Gaines never entered law school, despite his Supreme Court victory, and the University of Missouri-Columbia remained segregated until 1950. Nevertheless, Missouri ex. rel. Gaines v. Canada provided a second, crucial precedent for the desegregation of graduate and professional schools. It also reinforced NAACP strategy because it demonstrated the significance of credible, steadfast plaintiffs and highlighted the importance of having multiple plaintiffs, due to the very real chance that a sole complainant would withdraw the petition before its full resolution. Years later, Carl T. Rowan interviewed his old friend, Thurgood Marshall, who recalled the situation with mixed pride, by saying, "I remember Gaines as one of our greatest victories, but I have never lost the pain of having so many people spend so much time and money on him, only to have him disappear."45 In the future, NAACP counsel would pay closer attention to the reliability of their plaintiffs and would try to secure several clients, in subsequent desegregation actions rather than relying on only one.

Throughout the years of training and litigation, NAACP strategists learned from these and other key cases, modifying plaintiff selection and case preparation accordingly. By 1946, counsel added a new methodological approach to the mix by using sociological arguments in legal briefs. Mark Tushnet explained that this stemmed from the 1930s-era Legal Realist school of thought within the judicial corps at Howard and the NAACP, which considered law as policy, operating within a social context. He also credited the Margold Report as arguing "that desegregation could follow from the fact of irremediable inequality," which meant that no legal recourse could remedy the situation. Nathan Margold did not create the concept, however, for Oliver Wendell Holmes, Jr. addressed the use of intellectual theory in a dissent which

severely criticized the use of economic concepts in Lochner v. New York (1905). Louis D. Brandeis confirmed professional acceptance of extra-legal arguments through his famous "Brandeis Brief" presented in Muller v. Oregon (1908), which addressed working conditions for women. Brandeis submitted a concise constitutional argument along with a lengthy supplemental report which compared factory systems in the U.S. and Europe, reviewing statistics, legislation, working conditions, and their effects on laborers. He not only overwhelmed the Court with information, Brandeis plied them with social philosophy according to "the rule of reason," as opposed to the formalist theory of "received law" which held that judges did not make law, but merely discovered and applied it. Social theory won the day and denoted a significant change in American jurisprudence. Constitutional scholars, Alfred H. Kelly and Winfred A. Harbison point out Brandeis' contribution,

The logic behind the brief rested upon the premise that if the Court in fact passed upon legislation of this kind in the light of its reasonable character and plausible relation to the social welfare, then the best possible approach was to overwhelm the justices with direct and specific documentary evidence as to the wisdom and intelligence of the law under review. 46

Brandeis made a significant leap by raising questions about the prudence of law, not merely its juridical track record. And the U.S. Supreme Court made the jump with him by confirming the relevance of sociological evidence. Ironically, Brandeis' deviation from the practice that mandated legal briefs composed of dry, constitutional recitation created a radical new precedent. A new form of judicial review evolved whereby the U.S. Supreme Court increasingly applied more personal interpretations of due process to tests of constitutionality. This fresh perspective resulted in opinions that settled matters of public policy and injected a quasi-legislative function into the duties of the Supreme Cou rt.47

The practice of using extra-legal evidence had became fairly common practice by 1946, when NAACP lawyers added it to their repertoire. They also drew upon the scholarship of Swedish sociologist, Gunnar Myrdal, who raised public consciousness a step higher by illustrating the application of sociological constructs to the issue of race. Myrdal produced his findings in An American Dilemma (1944), which documented the oppression of African Americans in the United States. This study brought a double benefit by corroborating the NAACP's message and providing sociological data for use in future petitions which opposed segregation by virtue of documented instances of inferior, discriminatory treatment. NAACP strategy took a significant turn in the late-1940s, away from a straightforward attack on segregation as a denial of equal treatment under the law, to a plea to end the practice because it carried racial stigma and messages of inferiority. Sociological studies, like Myrdal's, and new interpretations of judicial review facilitated that change. William Hastie and Thurgood Marshall had long believed that equalization should be a last resort, favoring instead a complete end to double standards and social separation. Now they had documented proof of the inherent immorality of segregation through a number of academic studies published in the mid­ twentieth century. These simply corroborated what LDF counsel already knew through personal experience, but scholarship provided a widely-regarded tool for the legal campaign.48

The NAACP first applied this new methodology on behalf of plaintiffs in Oklahoma and Texas who sought admission to these state university law schools. Ada Sipuel provided the first in a quick series of test cases designed to reaffirm, and define, the Supreme Court's finding in Gaines v. Canada. While Chief Justice Hughes clearly declared the exclusion of African Americans from graduate and professional schools as a denial of equal protection, southern states balked at the authority of the Court to do so. Upon closer analysis, attorneys realized that the Gaines opinion actually failed to nullify "separate but equal" on any level, but merely emphasized a state's responsibility to provide access to "white" facilities where none existed for African Americans. Oklahoma and Texas even balked at this contention. When Ada Lois Sipuel applied for admission to the University of Oklahoma School of Law in 1945, the Board of Regents flatly refused her request and further claimed that the dearth of potential candidates indicated little need for a separate school for African Americans. At the time, Sipuel attended the State College for Negroes, where she volunteered in 1946 to serve as a plaintiff to desegregate the University of Oklahoma. Consistent with an emerging pattern, local attorneys initiated the litigation and then referred it to the national NAACP office, where Sipuel's complaint came under the direction of Thurgood Marshall.49

State trial courts and the Oklahoma State Supreme Court dispensed with the case rather quickly, denying Sipuel's plea with successive verdicts that firstly said that mandamus could not be used to challenge state law and secondly that NAACP briefs failed to demand the establishment of a "black" law school. Despite feeling that the appeal lacked sufficient evidentiary foundation, Marshall argued Sipuel v. Board of Regents (1948) before the U.S. Supreme Court in early January 1948. Sources describe the NAACP legal briefs as somewhat "loose" in logic and argument, but the Court reversed the lower court rulings an astonishing four days after oral argument. Justices reaffirmed Gaines in very short order by affirming the state's responsibility to provide Ada Sipuel with a legal education, "in conformity with the equal protection clause of the Fourteenth Amendment and provide it as soon as it does for applicants of any other group."50 The finding's speed and substance buffeted growing optimism within the NAACP that Plessy would, indeed, be definitively reversed. But, Oklahoma refused to give in. The Board of Regents went back to the state supreme court, which allowed the university to establish an inadequate, make-shift law school for African Americans. It cordoned off an area in the state capitol building for their "equal" education, but neglected provisions for books, professors, and moot courtrooms. Marshall retaliated by charging that the school directly evaded the U.S. Supreme Court mandate and insisting that the Court declare an end to segregated education. After further reargument before the Court in February 1948, it found that the university had not acted improperly because the earlier finding included no consideration of the "separate but equal" doctrine. It issued no order for the school to admit Miss Sipuel, but directed Oklahoma only to treat her equally. The Court, therefore, left the university free to resolve the issue by constructing a separate school for African Americans. Richard Kluger sums up the situation by saying, "All that Sipuel established, then, was that a state had to offer something or other that passed for a school to meet the separate-but-equal test, and it had to do so promptly."" He, in fact, considers Sipuel to be a setback, rather than a victory, in the NAACP campaign. LDF counsel rejected such a dour outlook and viewed the case as a qualified success because Ada Lois Sipuel integrated the University of Oklahoma in 1949 when the "black" law school closed and successfully completed her law degree two years later. Even though the Supreme Court thus far had deferred direct consideration of segregation's basic constitutionality, Murray, Gaines, and Sipuel established important precedents. They also signalled a developing trend, however, whereby the Court issued opinions which required equal treatment, but which also left plenty of wiggle room for appellees to evade the judicial directives.52

The wave of NAACP victories continued in America's heartland. Concurrent with Ada Sipuel's complaint, Marshall prosecuted a similar case against the University of Texas involving Heman Sweatt. He had prodded the state NAACP chapters to locate several viable plaintiffs, but potential candidates either withdrew under pressure or were discounted by Marshall. Only one remained, Heman Sweatt, a mail carrier. By January 1946, Sweatt agreed to participate because he had been denied advancement to a clerical position in the postal service and now wanted to attend law school. Sweatt submitted an application to the University of Texas Law School at Austin in February 1946, which was promptly denied by the board of regents. Marshall was optimistic about litigation in Texas, even though Sweatt held an undergraduate degree from an unaccredited college, because the regents had denied Sweatt's application on the sole basis of race without any mention of ability or merit. Marshall filed suit in May 1946 against the president of the university, Theophilus Painter, who functioned as the respondent in the famed Sweatt v. Painter desegregation suit.53

In his letter of denial, Painter said that Sweatt could request the establishment of a "black" law school, an option later confirmed by district court. The judge ordered the state to establish a law school at Prairie View University within six months. This African American school consisted of a group of rented rooms in Houst9n which barely approached equal status to the well-regarded academic village reserved for whites in Austin. A hearing before the Court of Civil Appeals in March 1947 resulted in an agreement to establish the Texas State University for Negroes complete with law school, faculty, and library. Sweatt declined admission to the new school and continued a tedious course of litigation that challenged the state's contention that its new law school was indeed equal. Although Thurgood Marshall alternated his time and attention between several lawsuits during the next three years, he built a solid foundation for an ultimate appeal of Sweatt before the U.S. Supreme Court in April 1950.54

NAACP LDF strategy called for sociological arguments to bolster the technical legal case against the University of Texas. Marshall called upon Robert Redfield, chair of the Department of Anthropology and head of social sciences at the University of Chicago, for testimony which documented the negative social consequences of racial prejudice and the absence of any scientific basis for racial preference. This evidence broadened arguments beyond mere educational policy in the state of Texas. Marshall's dual strategy correlating equalization issues to sociological data eventually worked. In a unanimous opinion written by Chief Justice Fred Vinson, the Court determined that the state of Texas failed to provide equitable educational opportunities for African Americans, as required under constitutional guidelines. Although several justices privately felt that the case held merit for a consideration of Plessy, the final ruling backed away from any scrutiny of the validity of the "separate but equal" precedent. Vinson, instead, focused on the obvious inadequacies of Texas' African American law school; such as inexperienced faculty, staff, and administration, poor facilities, and the absence of an established reputation and alumni association. The University of Texas School of Law ranked well in all of these categories, illustrating the incongruity in this situation of separate being equal. Vinson's opinion went to the essence of legal education, the association with colleagues, rather than its framework of physical trappings, and he came down on the side of Heman Sweatt. Vinson ordered the University of Texas Law School to admit Sweatt on the grounds that the state lacked a comparable educational facility for African Americans. This case determined that, despite inherent problems, separate facilities remained constitutional, but must be equal and where they were not, additional relief was merited. Sweatt confirmed precedents calling for equalization, so the lDF's next step involved challenging separation in and of itself.55

NAACP lDF counsel took hold of two legal threads in this case which would go far beyond Sweatt; one being the issue of inequality under the law and the other delving into the sociological debate about racial difference. At the same time, Marshall pursued another case which closely paralleled Sweatt, that of George W. Mclaurin, who sought admittance to Department of Education at the University of Oklahoma. Marshall initiated this second case against Oklahoma even while Ada Sipuel's suit proceeded. The NAACP, therefore, pursued three very significant, and similar, actions concurrently during the late-1940s; consisting of Sipuel v. Board of Regents (1948), Sweatt v. Painter (1950), and Mclaurin v. Oklahoma State Regents (1950). In this instance, George Mclaurin already possessed a master's degree and now wished to earn a doctorate in education. lDF counsel selected Mclaurin from a pool of eight potential plaintiffs. His age of sixty-eight added a nice quality to the case because at the time, Dixiecrats complained that African Americans who sought desegregation merely wanted social equality and intermarriage with whites. Few could accuse the elderly and distinguished Mclaurin of having a roaming eye for young, attractive white co-eds.56

The university denied Mclaurin's application and the NAACP immediately filed suit in special federal district court overseen by three judges, two from U.S. District Court and one from the Court of Appeals. Richard Kluger explains the typical three-step appeals process whereby suits of national concern which call for reassessment of federal law or constitutional guidelines are first introduced in U.S. District Court, then advance to a Circuit Court of Appeals before heading to the U.S. Supreme Court, which can accept or deny a hearing request at will via a writ of certiorari. 57 As Kluger puts it, the process is "downright streamlined" because this procedure allows pending litigation to proceed faster to the U.S. Supreme Court without intermediate review. The NAACP was able to circumvent the lengthy appeals procedure by taking Mclaurin directly to a three-judge federal court because the action satisfied the court's test of national immediacy. Judges heard the case in August

55 Ibid., 127-132; and Kluger, Simple Justice, 260-266 and 280-282. District court findings and Vinson's opinion may

be found at Sweatt v. Painter, 210 S.W. 2d 442 (1947), 339 U.S. 629 (1950).

56Kluger, Simple Justice, 266.

57A writ of certiorari is the means by which a higher court calls up the record of a proceeding from a lower court for review. The appeals court uses this procedure to signify its acceptance to review a case on appeal. By contrast, the U.S. Supreme Court expresses its refusal of a case by denying certiorari. Please refer to the glossary for a more complete definition. 1948 and quickly ruled that the state must provide all students, including Mclaurin, access to

education in a timely manner.58

Oklahoma skirted the mandate, but conceded after a second court appearance in November in which Mclaurin won admission to the university because the state's African American college lacked a doctoral program in education. Administrators allowed him to attend classes with white students, but required Mclaurin to sit in an anteroom, or alcove, publicly cordoned off for African Americans with a sign that read, "Reserved for Coloreds." They also restricted him to specific tables in the library and cafeteria in an attempt to keep the races as separate as possible. The NAACP now had a clear demonstration of equitable facilities, by such disparate treatment based solely on racial grounds. The lDF appeal to the

U.S. Supreme Court clearly presented a challenge to "separate but equal" policies maintained only for separation's sake. George Mclaurin attended the same classes, studied in the same library, used the same materials, and ate the same food in the same room with whites. His case presented the most direct test of the Plessy doctrine to date, and again the American judicial system backed away from it. The U.S. District Coutt refused to hear Mclaurin's specific complaints about this treatment and so the NAACP proceeded to the Supreme C ourt.59

lDF co-counsel Robert L. Carter presented arguments for Mclaurin v. Oklahoma State Regents on April 3-4, 1950, alternately when Marshall argued Sweatt v. Painter. The two opinions also were delivered together on June 5. Vinson initially addressed the broader picture in the Mclaurin opinion's introduction by saying, "State-imposed restrictions which produce such inequalities cannot be sustained." This seemed to indicate that groundwork for the ultimate reversal of Plessy had firmly been laid. But, although the Court unanimously ordered relief in the appellant's favor, it sidestepped a broad examination of racial separation. Vinson acknowledged that the egregious conditions under which George Mclaurin pursued his graduate studies impaired his education, and in turn could affect his future career negatively. These inequalities amounted to a denial of the constitutional guarantee of equal protection, so the Court ordered the University of Oklahoma to lift all restrictions placed upon him. Despite Carter's best efforts, justices limited their attention in this case to Mclaurin's singular experiences with no public consideration of de jure racial segregation. Tushnet and Kluger both reported that members of the Court remarked privately about an imminent re-evaluation of Plessy, but that would be left for the future.

None of these cases impaired segregation, per se, but each targeted the denial of equal protection to African Americans, as guaranteed by the Fourteenth Amendment and as affirmed, after a fashion, in the "equal" component of the Plessy v. Ferguson doctrine. Despite torturous lengths to avoid desegregation, state university graduate and professional schools in the Upper South and Midwest began to admit African American students in the late-1940s. Steady litigation by NAACP experts cracked the wall of racial segregation because co-counsel paid close attention to the effectiveness of each strategem forwarded in specific cases. Marshall and his colleagues worked out a unified plan through "trial" and error. Although it makes for a bad pun, these bright, young attorneys added tactics and evidence, piece by piece, until a scheme had been formulated for the final push to overturn Plessy. Written and oral records show that "the road to Brown" was no accident. Houston's cadre sought reliable plaintiffs with redressable complaints, possessing community support in locales not too distant from the NAACP spheres of influence. Extralegal evidence, such as sociological data, provided the extra punch needed to demonstrate the incongruities of segregation. Legal successes facilitated the growth of the association across the United States and the NAACP's sphere of influence expanded. Although the Legal Defense Fund split from the NAACP in 1939, the two organizations worked in tandem for a common goal. The NAACP benefitted from the LDF's success because as co-counsel won cases, the NAACP attracted more members and added both emotional and financial support for the "Inc. Fund's" primary cause.

The LDF strengthened its power-base and sharpened its focus through this period, adding staff to carry the ever-increasing case load. Marshall recruited several outstanding young attorneys in the mid- to late-1940s to participate in the legal campaign. Robert L. Carter, an Air Force veteran, joined the staff in 1944 and functioned as Marshall's assistant in the New York NAACP office. He attended Lincoln University and Howard Law School, where he earned William Hastie's respect. Carter worked on the Mclaurin suit and later added his talents to the team that prosecuted the Topeka desegregation case before the U.S. District and Supreme Courts. Marshall also located a key ally in Virginia, a white attorney named Spottswood Robinson, Ill. "Spot," as Marshall called his good friend, also attended Howard University Law School and then returned to his native Richmond. He investigated conditions throughout the state for Marshall in 1947 and provided evaluations of potential equalization lawsuits pertaining to public primary and secondary education. This, too, would prove portentous because the two men later worked together on key school desegregation cases from Clarendon County, South Carolina, and Prince Edward County, Virginia. Constance Baker Motley came on board in 1945 to clerk with Marshall and passed the bar three years later. She remained with the LDF for twenty years, and specifically provided technical research, compiled background data, and wrote legal briefs for the school cases of the 1950s. Jack Greenberg joined the group in 1949 as an assistant, but quickly moved ahead through his work on the famed desegregation case from Delaware. These staff members comprised an outstanding group of young attorneys who later would establish their professional reputations through successful litigation of the five school desegregation cases. They, and unnamed others, lifted the LDF to its pinnacle of success in the 1950s by adapting the Margold/Houston strategies to the realities of American courtrooms.61

Conclusion

The period of 1930 through 1950 was a very successful one for the NAACP under the direction of Charles Hamilton Houston, Walter White, Roy Wilkins, and Thurgood Marshall. By mid-century, the legal strategy to end segregated education had coalesced, with some significant precedents established. Although Charlie Houston failed to see the campaign to successful completion, he refined the Margold plan and provided valuable direction of young professionals, many from Howard Law School, who then would implement it in carefully selected courtrooms. Ill health was partially responsible for Houston's less-official role after 1938, but he remained involved in NAACP activities throughout the rest of his life. For Houston, education functioned as the catalyst for social change. He realized its importance at Howard, re-shaped the university law school in short order, and trained better litigators who then furthered educational reform by forestalling desegregation in graduate and professional schools. Jack Greenberg believes that World War II interrupted its progress briefly by siphoning off potential plaintiffs, but the war also contributed an important element to the struggle for equal rights.62 Military service affected many young African American men as World War I influenced Charlie Houston. In both instances, blacks faced the dichotomy between United States rhetoric of democracy's beneficence and restricted opportunities in the armed forces.

The international trumpeting of human rights during and after World War II invigorated the effort to gain racial equality in this country. By 1950, many Americans of both races, within the NAACP and beyond, supported an end to segregation. Journals targeting a more intellectual readership, such as The New Republic, 1be Crisis, and The Journal of Negro Education, featured articles ranging from editorial essays to scholarly studies which trumpeted the NAACP mission to bring an end to racial disparity. These served four primary purposes: to defuse racial stereotypes, to exchange ideas and refine strategy, to publicize the progress of the course of litigation, and to emphasize the long-term importance of racial equalization. LDF co-counsel, James Nabrit, Robert Carter, and Thurgood Marshall, used this forum to discuss the LDF's evolving strategy and its relative success. This was but another important channel for the convergence of talent, method, and social context, for the successful reversal of Plessy v. Ferguson through the litigation of five school desegregation cases in the 1950s, better known as Brown v. Board of Education.

Well, it wasn't for the sake of hot dogs. It wasn't to cast any insinuations that our teachers are not capable of teaching our children because they are supreme, extremely intelligent and are capable of teaching my kids or white kids or black kids. But my point was that not only I and my children are craving light--the entire colored race is craving light, and the only way to reach the light is to start our children together in their infancy and they come up together. 1

- Silas Hardrick Fleming, 25 June 1951

testimony given in the Kansas case, explaining the essential need for desegregation

CHAPTER FOUR

THE SCHOOL CASES, 1945-1952

By 1950, the national NAACP office had come together with local chapters in a concerted effort to outlaw "separate but equal" school systems. Legal counsel had established some important precedents which invalidated the contention that segregation held constitutional validity. At this point, the organization needed to apply its desegregation strategy to public education in the primary and secondary grades. This fed a new initiative to define the purpose and goals of the NAACP in order to refocus its energies. The organization circulated a two-page memo in 1949, entitled the "NAACP Legal Program," which stated,

In line with the NAACP Board of Director's mandate that this association go on record as being opposed to segregation of the Negro in the civil, political and economic spheres of our national life, the legal department in a continuation of its battles against discrimination outlines the following program2.

The document highlights efforts: 1) to end "discriminatory practices by local school boards;"

2) to draw attention to disenfranchised African Americans; and 3) to represent those denied equitable "transportation facilities in interstate commerce." It went on to state, "On the educational front it is estimated that no less than ten suits a year be brought in widely separated areas in order to be effective as precedent and persuasion for surrounding areas."3 Staff in the central office actively networked with local chapters during the late-1940s and early 1950s through direct contact and national conferences, trying to clarify the NAACP mission, garner support at the grassroots level, raise funds, and select potential plaintiffs for the on­ going legal campaign. They followed up with a national conference on strategy in September 1950, held in the central NAACP office in New York City.

Soon afterward, the association's offensive narrowed to five school cases from Kansas, South Carolina, Virginia, Delaware, and the District of Columbia. Local counsel joined with LDF attorneys in these challenges to end separatist policies in elementary and secondary schools in the Upper South, Midwest, and Mid-Atlantic regions. Four challenged state denials of equal protection as granted in the Fourteenth Amendment to the U.S. Constitution and the fifth suit, from Washington, D.C., charged that segregation violated federal responsibilities of due process/equal protection as stipulated in the Fifth Amendment. Thurgood Marshall coordinated this unified challenge to overturn Plessy v. Ferguson with the help of the LDF's Robert Carter, Spottswood Robinson, Oliver Hill, Louis Redding, Jack Greenberg, William Hastie, Constance Baker Motley, and others. Local NAACP chapters and attorneys in Topeka, Summerton, Farmville, Wilmington, and Washington, D.C. also contributed critical technical support and, in some instances, initiated the litigation. The long-sought end to de jure segregation lay in the team's successful litigation of these five cases.'

"The other Mrs. Brown" and the Merriam school case

Individual citizens and members of local chapters of the NAACP in Kansas City and Topeka, Kansas played crucial roles in the events which culminated in the Brown v. Board of Education lawsuit. The state's attendance policy had left wide latitude for local practices regarding the mixing of races in public schools. Legal action had previously challenged selected public school programs, with some success. In 1948, a case involving schools in Merriam, Kansas moved to the forefront. It was initiated by Mrs. Esther Brown, a white, middle-class suburbanite who lived in this small residential area located on the southwestern edge of Kansas City. She noticed the conditions of the district's African American school when transporting her maid, Mrs. Helen Swan, to Swan's home in the nearby South Park community. The sight of a public school in such a state of disrepair prompted Esther Brown to attend school board meetings and rally for an end to separate, inferior treatment.5

Frank J. Adler described Walker Elementary School, the facility reserved for black youth, as a "two room shack with outside toilet facilities," standing in marked contrast to the new Park Elementary School, which the district erected for white students.6 Although African American taxpayers contributed to the maintenance of all public schools, their children received the least consideration when District 90 administrators allocated funds. To add insult to injury, the 1879 Kansas state law regarding segregation in public education remained in effect and specifically disallowed racial separation in "second class cities," a category which included South Park. This fact and the tragic conditions at Walker lay at the heart of the crusade. African Americans in South Park organized a local branch chapter of the NAACP and gathered attorneys and plaintiffs to participate in a lawsuit which requested the admittance of black students to the white high school.7 Parents withdrew their children from the segregated school until administrators addressed their concerns about its conditions and enrollment. Esther Brown and others held "home schools" to educate the students during the pending action. She also contacted and hired Topeka's most well­ regarded African American attorney, Elisha Scott, to help with the

Figure 24. Elisha Scott.

case. Scott had established quite a reputation as a civil rights lawyer in eastern Kansas. Reverend Sheldon, of public kindergarten fame, served as mentor to the young man during Elisha's youth and hoped

that he would join the ministry. Elisha Scott instead graduated from Washburn University

in 1916 with a law degree and quickly established a reputation as a tough, eloquent advocate for black Kansans.8 Mrs. Brown had so many concerns about his conduct and expertise that she asked the national NAACP office to send someone to assist in the litigation. Franklin Williams, LDF special assistant counsel in New York, interceded between Esther and Elisha, submitted focused legal briefs, and helped guide the case to the Kansas Supreme Court.'

In a quite significant victory, the court found for the plaintiffs on June 11, 1949 in Harvey Webb, et. al. v. School District No. 90 of ]o/mson County, Kansas. Justices determined that the district's actions were "arbitrary and unreasonable," and ordered the desegregation of South Park Elementary School the following academic year. But, the process was not so easy and certainly not expeditious. District administrators used a variety of tactics to channel African American children back to Walker Elementary, with no success. Desegregation ultimately came to this small community located approximately seventy miles east of Topeka, Kansas. The impact of this case from Merriam traveled across those miles, bringing specific contributions to future legal action in the capital city. In a letter dated August 1, 1949 to Franklin Williams, Esther Brown recognized the broader value of Webb v. School District No. 90 of Johnson County, Kansas, saying,

This case had definitely done [sic] a lot for the State and I repeat for the 50th time, we can raise any amount of money we need for civil rights fights in this state as a result of this case, and from individuals who have never given to these causes before. But, if we drag this thing out and don't follow thru [sicJ we are losing all of this. 10

Others also recognized the momentum initiated by Webb within Kansas and seized it.11

Esther Brown succumbed to cancer in 1970 at age fifty-two, well after the U.S. Supreme Court addressed segregation on a national scale in Brown v. Board of Education. She contributed to the ascension of the Topeka case to the high court during her lifetime, however, through correspondence with the national NAACP office, work on the grassroots level with African American communities through local NAACP chapters in Kansas City and Topeka, by aligning Elisha Scott with attorneys from the LDF, raising funds, and establishing a network of supportive white professionals who would aid in the Topeka case. Webb, itself, brought Kansas to the attention of Thurgood Marshall and his colleagues at a time when the Association was honing in on potential cases which would disarm any remaining justification for the "separate but equal" doctrine. Significantly, there would have been no Webb case without Esther Brown, and her family suffered accordingly. They endured quite an assortment of grievances during the prosecution of the Merriam and later, the Topeka, suit. The Browns received harassing phone calls, racist epithets in public forums, accusations of Communist sympathies, as well as warnings of physical violence, a cross burning, and threat of the same for their home. Esther suffered a miscarriage during this period and Paul Brown lost his job, which forced the family to sell their house and move into an apartment. Through it all, neither wavered in their support for equal rights for African Americans. Soon after the Merriam litigation, Esther Brown lent her talents and determination to desegregation efforts that were coalescing just down the road in the Kansas capital.12

Activity by the Topeka NAACP

By 1950, movement had already begun within Topeka's African American community to fully desegregate the USD-501 school system. Just as the NAACP had prepared well­ documented precedents of court action, so had citizens in Topeka. Between 1900 and 1951, at least five civil suits pertaining to segregation in public education had proceeded to either the Kansas Supreme Court or U.S. District Court, with definite accomplishment." Individual citizens also made private requests to go beyond the color line, with less success. During the latter part of this period, most gains came through group effort organized by ad hoc committees or by the Topeka NAACP chapter. Sustained, long-term organization apparently presented some problem for Topeka's black community, however. The local NAACP chapter had deteriorated from a record high membership of 114 in 1935 to disbanding four years later due to declining activity and a lack of support. Elisha Scott, ex post facto "sitting" branch president, contacted the national Director of Branches in February 1940 to express an interest in re-establishing the local chapter. The national office required twenty-five members for an active branch and fifty for full charter certification. Seventy-two members were recruited for a renewed chapter by the end of 1941 and Raymond Jordan (R.J.) Reynolds became its new president. This renewed activism in Topeka may reflect a national trend of increased organization by the NAACP, possibly inspired by advances made in Murray and Gaines which brought optimism about the full desegregation of post-graduate education throughout the nation, or it may have developed from events occurring closer to home.14

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Victory in Graham v. Board of Education elicited what change, but it was but a beginning of the local NAACP chapter's efforts to bring full integration to the city of

Topeka. Several membership drives during the next few years boosted the chapter to an all-time high of 645 in February 1946. Two years later, the branch had a new president, McKinley Burnett, with John Sawyer serving as secretary and an executive committee that included John Scott, Elisha's younger son. At the same time that LDF counsel led the mobilization of judicial forces in Oklahoma and Texas, NAACP members in Topeka struggled to build local support by presenting lectures, organizing a credit union, reviewing housing conditions for veterans, and attempting to establish programs for the city's African American youth. 15 Burnett refused to give up on the school desegregation issue, however, and presented a formal request to the meeting. The poor photocopy quality of the meeting minutes prohibits its reproduction as an illustration, but the text of the brief entry states that,

The Clerk presented a letter from Mr. McKinley Burnett, represe[m]ing the National Association for the Advancement of Colored People, in which they asked for a meeting. Mr. Hobbs [Board President) explained that this meeting had been cafled for the purpose of hearing from their committee.

Mr. McKinley Burnett spoke first and asked for a change from the dual segregation system of education in Topeka to an integrated system. He explained that by integrated he meant full and complete integration of both pupils and teachers, and that "nothing less would suffice or get the job done."

Mr. Amos M. Booker, Reverend E.S. Faust, Charles Bledsoe, John Scott, and Mrs. Douglas also spoke on the subject of complete integration1.6

The minutes then include a letter from the Topeka Council of Colored Parents and Teachers, which represented members of the Parent Teacher Associations of the four black elementary schools. The NAACP qualified Burnett's position, by withholding full support for total integration, saying,

We would not be in favor of abolishing Colored schools if such a move means abolishing our own teachers' jobs, We fail to see how children can be inspired to get an education if we continually do away with the jobs they can fill after securing their education. We would not be in favor of changing our present set-up without more evidence that our children would do as well and be as

happy as they are now.17

With some frustration, Burnett contacted Walter White, NAACP Executive Secretary, a month later for advice regarding faculty opposition to integrated schools and their intimidation by USD-501 supervisor, Harrison L. Caldwell. Even though Caldwell was African American, his professional position as a school administrator and personal friendship with Superintendent Kenneth McFarland contributed to his reputation as an uncompromising advocate of segregation. Both of these men strove to maintain racial separation in the schools, supplementing the internal threat posed by African American teachers with a clearly-identified, external one. The Caldwell-McFarland team offered a rallying point which motivated some teachers to join the Topeka NAACP chapter's efforts to desegregate the four black elementary schools. Richard Kluger relates that the release of eight teachers in 1941, after USD-501 integrated its junior high schools, instilled fear in those who opposed the desegregation of elementary schools ten years later. Harrison Caldwell capitalized on this and specifically threatened that integration would end teaching opportunities in Topeka for African Americans. From his public forum within the USD-501 system, Caldwell officially voiced what many already feared. 18

McKinley Burnett forced the issue of full desegregation despite opposition from both the USD-501 administration and African American teachers. Walter White referred his letter to Gloster B. Current, director of branches, who provided specific advice for proceeding with a desegregation plan. Current advocated public appeal rather than personal attack to defuse Caldwell's power; specifically suggesting that the Topeka NAACP survey and compare segregated school facilities, publicize the findings in print and radio media, draft a petition of supponers, and submit it to the school board. He also sent literature from the NAACP Education Committee and copies of surveys recently completed in other states, and suggested that a branch member attend the NAACP annual conference in Kansas City so that representatives "could talk with that person at length about the Topeka situation and perhaps give additional advice."19 This exchange signifies imponant and early communication between the local NAACP branch in Topeka and the national, New York office about framing strategy to desegregate the city's four black elementary schools. While the correspondence lacks specific mention of litigation, the NAACP was then in the midst of two Supreme Courtcases which would open the way for a direct challenge to the constitutionality of "separate but equal" practices in secondary and elementary grades. The time was not yet right for either LDF counsel or Topeka's African American community, but in two years the patties would come together to draft one of the five suits that eventually toppled Plessy.20

The Kansas case

In the meantime, Burnett's recourse still lay with the school board. He took the national office's advice and rallied supponers for "The Citizens' Committee," composed of NAACP members in a less threatening form. Burnett made a final, frustrated appeal before the USD-501 board in 1950. He presented a petition to school administrators, reminding them that two years had elapsed since his first request for full desegregation of Topeka public schools. Impatient with the board's inaction, Burnett and other African Americans formed a legal redress committee, led by Charles Bledsoe, and contacted the national NAACP office for assistance. This request came as no surprise because NAACP staff were fully apprised of the events and personalities of Kansas; including Mrs. Esther Brown and Elisha Scott's work in the Webb case, the re-organization of the Topeka chapter, as well as R.J.Reynolds and McKinley Burnett's work to end segregation. The important point is that a relationship had already developed between Walter White, Gloster Current, Frederic Morrow and hard-working Kansans by the time the Topeka chapter actually made its litigation request. Indeed, White, personally, had visited the city only the year before.

The dramatic conclusion of this Topeka suit has made its genesis one of the most significant events in the city, state, and arguably, in the nation. Because of its later importance, memories which try to recapture specific details of that fateful moment have muddied the historical record. Richard Kluger perhaps summarizes the now-famous event best, by saying, "On August 25, 1950, Lucinda Todd as secretary of the NAACP branch wrote to Walter White in New York, saying that the school situation in Topeka had grown 'unbearable' and the branch was prepared to go to court to test the Kansas law that permitted it."21 At this same time, McKinley Burnett wrote separately to Walter White, noting brusque treatment by the USD-501 board and its suggestion that the group simply should request the Kansas legislature to repeal the state segregation law. Most consider this round of correspondence by Mrs. Todd and McKinley Burnett between the local chapter and national NAACP office initiated the legal challenge which would become Brown v. Board of Education. Charles Bledsoe followed by contacting LDF attorney Robert Carter for technical assistance with initial preparation of the case. Carter recalled the incident during a 1992 oral history interview, saying that the first contact from Topeka occurred when Bledsoe notified him after the national 1950 NAACP convention in Kansas City. Carter affixes the Topeka connection within a national context by reiterating the goals pursuant to the NAACP's long-term legal strategy, explaining that,

Resolutions passed announcing that the organization would only take cases in which the elimination of segregation was subject. We couldn't take any cases for equalization of schools. It was announcement of general policy. The branches at that point began, I noticed, were [sic] looking for cases in which we were attacking segregation not equalization and so forth. 22

The Topeka case suited these national requirements and presented a rather unique example of a relatively "separate but equal" school system. The level of parity between the city's white and black schools focused the matter on the singular practice and rationale of racial separation, rather than on imbalances between the infrastructure and curricula of the dual facilities.

The critical issue here lay in the constitutionality of the school board's denial of African American attendance of neighborhood elementary schools that were traditionally reserved only for white students. Because the Topeka schools were very similar, legal strategy could spotlight the constitutionality of separate facilities for black and white children, as well as the psycho-social effects of segregation. This strategy sharpened over the course of 1950-1951 through interaction between co-counsel 1n New York, Washington, D.C., and Topeka. Robert Carter and Walter White stayed in touch with the local chapter, providing technical assistance and moral support as the branch developed a plan of action. The legal redress committee of the Topeka NAACP began to gather potential players for a suit to desegregate the city's elementary schools. Charles Bledsoe initially led the campaign to solicit attorneys and plaintiffs. He had served the city as a fireman since 1916, but retired in 1947, at the age of fifty-six, to practice law full time. Bledsoe certainly knew of Elisha Scott's reputation as a civil rights attorney and knew his sons, John and Charles, who also were fellow Washburn alums. The brothers had served in the military during World War II and returned to Topeka to finish their education. With law degrees in hand, they joined the firm of Scott, Scott, and Scott in 1948, representing clients of both races. John was involved heavily with the local NAACP chapter and served as chair of its legal redress committee. It was natural, then, that Charles Bledsoe approached the Scott brothers in 1950 for assistance with the preparation of the initial legal petition which soon unfolded as Brown v. Board of Education, of Topeka, Shawnee County, Kansas.23

Jack Greenberg, co-counsel from the New York office, recalls that in communiques from October to December 1950, Carter urged Bledsoe to "sign up a large number of plaintiffs" and debated the advantages of presenting arguments before a one- or three-member court. NAACP strategists sought people who would be willing to test enrollment restrictions at Topeka's white elementary schools. They gathered a group of parents who tried to enroll their children in the white school located nearest to their homes at the beginning of the 1950-1951 academic year. Each expected to be refused and, one by one, white principals did not disappoint them. McKinley Burnett, president of the local branch, joined Bledsoe and the Scotts in the recruitment of potential plaintiffs. They first looked within the membership, itself,

and then to others among the network of institutions in the African American community. It appears that, despite its reorganization and membership surge in the mid-1940s, relatively few members actively participated either in regular meetings or in this legal action. Lucinda Todd, branch secretary, readily agreed to serve as a plaintiff, in favor of her daughter, Nancy. Members Vivian Scales and Zelma Henderson represented their children, Ruth Ann Scales, and

23"After 31 Years, Retires as Fireman to Be a Lawyer," Topeka Capital journal, 27 July 1947, clipping under "Charles E. Bledsoe," in "Lawyers--Clipping--Alph.," Vol. 1., Kansas Collection, Center for Historical Research, Kansas State Historical Society, Topeka, Kansas, n.p.; Kluger, Simple Justice, 390 391; and Charles Scott Collection, Kansas Collection, University of Kansas Libraries, Lawrence, Kansas. Correspondence between Charles and Elisha during the war reveal that racism and prejudicial treatment persisted in the military. Charles' tone in some letters is reminiscent of frustrations expressed by Charles Hamilton Houston after his World War I experiences. The parallel career paths of these men are somewhat striking. Donald and Vickie Henderson. The legal committee, however, recruited most of the thirteen plaintiffs through social networks; by way of contacts in churches, residential neighborhoods, social clubs, local businesses, and workplaces. Ten others joined the suit as plaintiffs for their children; including Mrs. Richard Lawton, Sadie Emmanuel, Iona Richardson, Lena Mae Carper, Shirley Bodison, Alma Lewis, Darlene Brown, Oliver Brown, Shirla Fleming, and Marguerite Emmerson. In all, they represented twenty children who, all things being equal, would have attended one of seven "neighborhood" elementary schools, rather than a segregated black primary school. 24

Much has been written about the role of Oliver Brown in the landmark suit that bears his name. He was neither the first nor the most resolute plaintiff in the Kansas case. Oliver Brown, apparently, was a man of hard work and deep devotion, who labored as a welder in the Santa Fe shops but also served as an associate AME minister. Brown was not a member of the NAACP when the committee began calling upon plaintiffs. Initial contact may have been made at St. John's African Methodist Episcopal (AME) church, where Brown served as assistant pastor, because Alvin Todd, McKinley Burnett, Zelma Henderson, and others also attended St. John's. Contemporaries recall that Oliver Brown's occupation as welder in the Sante Fe "shops" and role as associate minister made him an ideal candidate for such a suit, and may have contributed to his position at the head of the docket. As a welder and union member, Brown was protected from economic reprisal for his participation in a test case. As associate minister, he served in a position of high regard in both black and white communities. Some sources claim that Brown joined the case because of his friendship with Charles Scott. The attorney, however, spoke of the Brown's involvement with some detachment in a 1970 interview with James Duram, saying,

The NAACP would go and solicit families or parents of children and explain the thrust of the NAACP and would they consent to being used as plaintiffs, as guinea pigs, as we refer to them quite frequently. Now the Brown family was just one of several families and it so happened that these names happened to be first, a number of names, you see, because it could have been Laughton [sic] and her two children that she had, Vicky Laughton [sic], for instance, you see.

Logistical considerations, however, contributed to Oliver Brown's decision to participate, but happenstance best explains his placement at the top of the docket. Those who contend that the list follows alphabetical order are mistaken. Family members have posited that Mr. Brown was listed first because of his gender. Those involved in the preparation of the brief, however, claim that Brown was just one of a group of thirteen plaintiffs until Charles Scott's secretary listed his name at the top of the suit. Scott also emphasizes the logistics of Brown's residence at the time Brown joined the case, which at that time was located strategically near Sumner Elementary School, as another point in his favor.

Rev. Brown was a minister of the AME church, [and later of] St. Mark

AME Church in Topeka, and he had the young lady, Linda, who lived in a very strategic neighborhood just approximately two or three blocks from an all-white school. We felt that she would serve our purpose perfectly, along with others that had lived in a similar situation. And so we--when I say we I'm referring to the committee chat we had at that time--we solicited and gained the consent from these parents to use their names as well as the children in the test law suit. They all consented very graciously and there was not any great reluctance on the part of chose chat we had included. There was some reluctance and some refusals of some kids--1 should say chat parents of these children-and the reason for it was because they felt that they would suffer some reprisals of employment and this type of thing. 26

Whether due to carefully crafted reason, random accident, or divine intervention, Brown's name became synonymous with arguably the most significant civil rights litigation in the United States. Although he and his daughter are often emphasized, hundreds of participants contributed to the NAACP campaign for school desegregation. Many of the other individuals largely have been lost to the anonymity of an et. al. distinction simply because of legal shorthand.27

The circumstances of all the plaintiff children, in fact, contributed vital evidence in this action. Legalese referred to the children of the thirteen adult plaintiffs as "infants" because as minor dependents, they could not file suit on their own volition against the Topeka Board of Education. Of the twenty children represented, it is speculated that Linda, like her father, became the focal point for specific reasons. The Brown family lived in an integrated neighborhood on First Avenue, a street crossed by railroad tracks. Each school day, Linda and Terry Brown walked through the railroad switching yard and across a busy street to catch the public school bus. They then rode fifteen blocks to the segregated Monroe Elementary School. Without de jure segregation, Linda would have attended Sumner Elementary School, located on Fourth Avenue, approximately five blocks away from her residence. While Linda did not travel the farthest distance to her segregated school, the length of her school day, amounting to nine hours, was the longest among the group. Case notes indicate that Linda left home at 7:40 A.M., the earliest departure time among the group, and returned home at 4:45 P.M. She therefore spent more time outside, subject to the elements, than the other children. 28 The route which Linda and her sister Terry traveled, however, particularly the six-block journey through the switching yard, provided strong ammunition for the test case. The long journey to Monroe crystallized key issues in this case, those being experiences endured and opportunities denied, simply because of race.29

All the "infant" plaintiffs portrayed the types of hardships endured by African Americans who merely sought the benefits of their society. After Linda, Charles Bodison bore the next longest day among the group, lasting an average of eight hours and forty minutes. By comparison, the Carper family lived on the west edge of Topeka. Their daughter Katherine walked five blocks to catch a bus for the twenty-six block ride to segregated Buchanan Elementary School. Analyses completed in preparation for the hearing show that, although Katherine Carper traveled the longest distance,

amounting to thirty-one blocks to Buchanan, her day lasted Figure 36· Miss Katherine Carper.

only eight hours and ten minutes, fifty minutes less than

Linda's. Miss Carper offered the sole testimony on behalf of the children involved in the Kansas case; "Asked to describe the condition of the bus when she caught it in the morning," Richard Kluger reported, "she said, 'It is. loaded,. and there is no place hardly to sit."'30 All of the children in the Kansas case traveled longer distances to black schools, often on over­ crowded buses, because board policy denied their attendance at closer, neighborhood schools. In fact, Sadie Emmanuel paid for her son, James, to ride the city bus to Washington Elementary because it normally was less crowded and better supervised than the school bus. The Flemings also sent their children to school via the city transit system because the distance to the school bus stop was almost as far away as the black school, itself. Iona Richardson and her husband perhaps took the most direct action against the segregated system. They withdrew their son, Roland, from Buchanan and enrolled him in Holy Name Catholic School, a parochial school which lay beyond the confines of public policy. Over and over, plaintiffs explained the hardships endured by their children at their segregated schools; comprised by long journeys to school, long waits at bus stops and school doors, gaps in safety and supervision, and excessively long school days. The race factor was most obvious because these children lived in mixed neighborhoods. They tolerated long commutes, while their white friends did not. The story was the same with most of the participants, as young Katherine Carper stated on behalf of her young colleagues3.1

The case presented to the U.S. District Court-Kansas Circuit first highlighted issues of inequality and then attacked segregation, per se, as unconstitutional. Robert Carter and Jack Greenberg, NAACP LDF counsel in the New York office, brought much-needed technical assistance to the local suit. They applied valuable lessons learned by trial and error during the lengthy desegregation campaign which the Association had conducted in the 1930s and 1940s. Three specific components paid off in the Kansas case; namely, 1) the involvement of attorneys within the community who knew its socio-political climate, 2) the reliance on a pool of plaintiffs rather than on a single individual, and 3) argument of the case before a three-judge federal district court, which would bypass the lengthy state circuit and make the appeal directly eligible for consideration by the U.S. Supreme Court. The local attorneys filed the case in March 1951, with a hearing scheduled for June of that same year. The NAACP sought a comparison of educational facilities in Topeka for use in arguments concerning equality of opportunity. As Richard Kluger says, "In order to secure its fall-back position in the school cases--that is, that segregation was illegal if for no other reason than that it invariably produced unequal educational facilities and curriculum--the NAACP legal corps had to have the Topeka system scrutinized for the inevitable disparities." Esther Brown, advocate for the 1948 South Park litigation, contacted, Hugh Speer, a friend on the faculty of the Education Department at the University of Kansas City, to undertake such a study.32

NAACP counsel felt that separate schools could never be equal, by virtue of their separateness. Furthermore, any child who attended a segregated school became stigmatized by the experience because separation conveyed a sense of inferiority and exclusion from mainstream society. Speer, a specialist in educational evaluation, was tapped in March 1951 to provide evidence of the former. Three months later, he sent a telegram to Jack Greenberg which told the basic story in Topeka,

PRELIMINARY EVIDENCE REVEALS NO SIGNIFICANT DlSCRIMINATION ON TEACHER PREPARATION SALARY OR CROWDED CONDITIONS PROBABLY SOME INFERIORITY IN BUILDINGS TRANSPORTATION SPECIAL TEACHERS AND CURRICULUM. SUGGEST EMPHASIS ON SOCIAL AND PSYCHOLOGICAL HANDICAPS OF SEGREGATION PER SE.33

Speer found that there was wide divergence between the ages and conditions of the city's schools, differences that cut across racial lines. The schools had been built over a sixty­ year period and the oldest as well as the newest buildings were used by white students. Racial discrimination, alone, could not account for variations in the facilities. Facility ages and conditions made a direct one-to-one comparison impossible, so Speer used insurance valuations to compile a blanket appraisal of Topeka's twenty­ two public elementary school buildings.

He and Dr. James Buchanan, chair of the graduate school at Kansas State Teachers College, personally inspected fourteen schools, the four black elementaries and ten white ones. They determined that the white schools carried higher insurance values· because, on average, the black schools were six years older. Auditoriums, playgrounds, and gymnasiums were appraised as being equivalent. The lack of full-service cafeterias in the black elementaries, however, and the fact that black children could not return home to eat hot meals at lunchtime was presented as a glaring inadequacy. After compiling their findings, Speer and Buchanan verified great similarities between segregated facilities, as a whole. Speer also looked at curricula, materials, teacher qualifications, special programs, and transportation systems. African American teachers ranked highly because many had masters degrees and some white teachers lacked basic subject certification. The school board provided transportation only to African American students, so this factor also favored the minority group. The lack of in-school health clinics, music programs, clubs, and some sports teams marked sharp weaknesses in programming for the black schools. The major difference between Topeka's black and white schools lay squarely in the curricula.34

Although educational facilities ranked equitably in Topeka, African Americans missed out on the "nuts and bolts" of the school experience. During his testimony before the district court, Dr. Speer explained that curriculum amounted to the total school experience of a child, which, in turn, affected his social and psychological development. African American children in the primary grades lacked the same books, supplies, and school programs that white children enjoyed. Teachers segregated those in the middle and secondary classrooms and excluded black youth from extra-curricular programs funded by the school board. The situation forced African American teenagers to hold meetings, spans activities, and dances in the black elementary school, which denigrated this important part of their lives. Hugh Speer summed it up by saying, "For example, if the colored children are denied the experience in school of associating with white children, who represent ninety percent of our national society in which these colored children must live, then the colored child's curriculum is being greatly curtailed. The Topeka curriculum or any school curriculum cannot be equal under segregation."35 This testimony directly bridged the analysis of USD-501s infrastructure to its educational programs, thereby linking the NAACP counsel's first litigation goal to the second-­ the injustice of segregation, per se.

Counsel for the plaintiffs called on social scientists to follow-up the line of reasoning opened by Dr. Speer. The NAACP had used this line of argument in earlier cases, when broaching the contention that separation or exclusion invalidated any sense of equality. Sociologist Kenneth Clark functioned as and discrimination, testifying on this field in the South Carolina and Virginia school cases. But, Clark never made it to Topeka. Robert Carter and Jack Greenberg instead pursued this line of inquiry with great success through the testimony of Dr. Louisa Holt. A psychologist, she had worked at the Karl Menninger clinic in Topeka and, at the time of the trial, served on the faculty of the University of Kansas. Holt carried both professional expertise and personal experience with the Topeka system, for she had two children who attended USD-501 grade schools. Through direct- and cross-examination, Dr. Holt reasoned that segregation conveyed the implicit message that one group in society was inferior to another. By virtue of separation and exclusion, a minority was placed in a subordinate position that conveyed lessons of inadequacy and second-class status. Holt testified that "It is other people's reactions to one's self which most basically affects the conception of one's self that one has. If these attitudes that are reflected back and then internalized or projected, are unfavorable ones, then one develops a sense of one's self as an inferior being."36 Social scientists corroborated Holt's line of reasoning, by providing documentation of the harmful effects of segregation on African American children; and, subsequently on American society, as a whole. Lester Goodell, primary counsel for the defense, tried to discount such psychological damage, by re­ emphasizing the relative level of equality between black and white facilities, the availability of bus service for black students, and the fact that white students also traveled long distances to old, decaying schools. Kenneth McFarland, superintendent of Topeka schools, claimed that social custom primarily dictated the board's segregationist policy. Community standards, not the school administration should bear the blame for discriminatory actions. Carter's cross­ examination went to the critical point in such a statement and seriously weakened McFarland's argument. The NAACP counsel adeptly pointed out the obvious inconsistency in this reasoning, given the fact that policy segregated children in the lower grades, but mixed them at the junior and high school levels. This argument would suggest that community sentiment towards children in grammar school differed from its attitude towards older students. Carter contended that segregation policy would be consistent if community standards were to blame. McFarland's "the community made me do it" defense simply didn't stand up.37

Presiding judges Walter Huxman, Arthur J. Mellott and Delmas C. Hill returned a unanimous decision in August 1951, five weeks after oral arguments. They found in favor of the defendants, the Topeka Board of Education, but expressed serious doubts about the old, formerly monolithic regimen of "separate but equal." Huxman wrote the opinion and drew heavily from the Holt and Speer testimony about the psychologically harmful effects of segregation. His opinion also showed that the NAACP victories in Sweatt and Mclaurin were beginning to make a definite impact. Judge Huxman wrote,

if segregation within a school as in the Mclaurin case is a denial of due process, it is difficult to see why segregation in separate schools would not result in the same denial. Or if the denial of the right to commingle with the majority group in higher institutions of learning as in the Sweatt case and gain the educational advantages resulting therefrom, is lack of due process, it is difficult to see why such denial would not result in the same lack of due process if practiced in the lower grad es.38

The court agreed that black and white facilities in Topeka had slight differences, but were basically equal, except for the condition of segregation. The Brown opinion, however, expounded on the effects of segregation as being detrimental to society because it branded

African Americans as inferior, which retarded the emotional and intellectual development of black children. In Huxman's words,

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 the 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,39

Nevertheless, Plessy v. Ferguson remained on the books and so the district court could not deviate from the U.S. Supreme Court's determination that segregation was constitutional. Courts which grappled with the same issues in South Carolina and Virginia did not express such liberal views. But, the Kansas case was different because it suspended lengthy debate of conditions by addressing the ramifications of segregation; namely, the fairness and long-term wisdom of it. In doing so, the NAACP counsel and the court elevated the discussion to a point at which the U.S. Supreme Court had to face the very constitutionality of segregation, itself.

The success of the Brown suit, despite its qualified failure in U.S. District Court, lay with the talents of NAACP counsel from Topeka and New York, and the many supporters who strengthened the case. Chronology also helped because some key events preceded the litigation; 1) the local chapter had reorganized with renewed vigor to end segregation in Topeka, 2) Bledsoe and Burnett were ready to mount a strong challenge to the school board's policy and recruited others to help, 3) the NAACP LDF achieved significant success in Mclaurin and Sweatt, which lent national momentum to the desegregation of elementary schools. Support among the African American community in Topeka, at large, remained slight and has led to considered analysis through the years. Events after the 1941 Graham victory had convinced teachers to maintain a low profile during the Brown suit and threats of retaliation remained strong in the wake of Brown. By the end of August 1951, the NAACP LDF submitted Brown, et. al. v. Board of Education, Topeka, Shawnee County to the U.S. Supreme Court for reconsideration. The cause of thirteen Topeka plaintiffs, who sought to enroll their various twenty children in neighborhood elementary schools, would now join forces with parents in South Carolina, Delaware, and Virginia in a combined appeal to the high court. Although this study addresses them after the Kansas case, the South Carolina and Delaware disputes actually pre-dated the Topeka suit. The Virginia case, Davis v. Prince Edward County, followed in 1952. Bolling v. Sharpe, from the District of Columbia, dated to the 1940s, but joined this litigation package in 1953. Through an odd set of circumstances, Brown v. Board emerged at the top of the docket, thereby lending its name to litigation which comprised five separate actions. The crux of the joint appeal was characterized by the issues highlighted in the Topeka suit. In due time, this case would capture the nation's attention, overshadowing the chain of local events that fueled the companion school cases.40

Reverend Delaine gathers his flock in Clarendon County

In 1947,Joseph Albert (j.A.) Delaine asked the school board of South Carolina's district #22, to provide school buses to carry African American students in Summerton to their segregated public schools. Such a request at this time in South Carolina brought severe retribution, but Delaine received backing from the NAACP and inspired twenty people to join a lawsuit which initially requested that the county equalize the segregated facilities, but was revised to ask that administrators get rid of them altogether. Conditions were much harsher in Summerton than in Topeka and the climate of racial tension simmered just below the boiling point. Thurgood Marshall served as chief litigator for the NAACP on the case, named Harry Briggs, et. al., v. R.W. Elliott, et. al., and drew heavily upon sociological findings about the psychological effects of prejudice and segregation. Briggs found some success before U.S. District Court, but certainly not the result that Marshall sought. The process proved useful, though, because counsel in the other school cases honed the "new" NAACP strategy to strengthen their argument before the U.S. Supreme for the reversal of Plessy v. Ferguson.

During the 1940s, African Americans made up approximately seventy percent of the population in Clarendon County. South Carolina, as a whole, had long possessed a black majority, as a result of the predominance of slavery dating to the state's colonial past. Although African Americans held the majority in numbers, they were subjugated to minority status in government and society by whites who kept strong control over positions of power. The history of race relations in the Deep South differs sharply from that in Kansas because Southerners endured what Kansans had escaped, by virtue of time and temperament. The social structure in South Carolina remained very stratified through the late-nineteenth century, reflecting the former slave system and the desires of white Southerners to keep black laborers in the fields. Whites rejected industrial development, and, instead, relied on agriculture regardless of poor soil, weakened plant stock, and overproduction. Forced labor systems like tenancy and sharecropping kept African Americans tied to failing agriculture and subjugated in low socio-economic positions. Education threatened this scenario because African Americans could learn about the world beyond South Carolina and their position in it. On a very practical level, school attendance simply would take the dominant labor force out of the fields; for hours, or days, or for a lifetime. The resultant labor shortage then would threaten the production of cotton, the state's cash crop, and would jeopardize the economic stability of the landowning class. James Anderson's study of black education in the South documents that whites in South Carolina overwhelmingly opposed extending education to African Americans. The state legislature passed a compulsory school law in 1900 which raised fears that it would open opportunities to black youth. Anderson says, however, "Even the supporters of compulsory school attendance carefully assured the state that local white officials could exclude blacks from the compulsory school law." And, they successfully did just that.

Little changed over time. Many who lived in Clarendon County either accepted or tolerated the hierarchical social system which functioned well into the twentieth century. This began to change with a simple request made by Rev. Delaine in 1947 that the county school board provide bus transportation to carry African American students to the segregated Scotts Branch High School. Board members denied the request, on the rounds that white taxpayers would be forced to pay for the transportation because African Americans, who generally earned small salaries, contributed comparatively less to the community till. Delaine sought help from state and federal officials, with no success. In the interim, African American parents took on the burden themselves and raised money to purchase a second-hand bus to transport their children to school. This band-aid approach solved nothing, however, so Delaine decided to seek judicial relief to change the situation in the long run. Levi Pearson, whose three children attended the school, agreed to appear as the plaintiff in a test case to expand Clarendon County's transportation policy to include African Americans. Pearson owned a farm which lay nine miles away from Scotts Branch and, unfortunately, straddled the boundaries of School Districts 5, 22, and 26. Levi Pearson v. County Board of Education (1948) ended before it really began because it had no merit. Pearson paid taxes to District #5, but sent his children to schools in Districts #22 and #26. He therefore had no legal claim to file grievances against Clarendon County's District #22 because he did not pay taxes in that district and, therefore, did not contribute to the maintenance of its schools.42

This initial request for greater equity in educational opportunities ultimately gave way to a petition for full integration. Even though it was a non-starter, the Pearson suit contributed to the legal campaign against segregation in South Carolina because it brought the involvement of the NAACP LDF in New York and signified an initial stand against the status quo in Clarendon County. Thurgood Marshall joined with Harold Boulware, an attorney from Columbia, in this effort which once again confirmed the inherent weakness of one­ plaintiff cases. There was no case without Pearson. Marshall and Delaine regrouped a year later with a new effort to petition for the full desegregation of public schools throughout the county. Marshall charged Delaine with the task of recruiting twenty plaintiffs who would testify to the inferior conditions of segregated schools and request relief through integration of the white public schools. The local branch, under Delaine's leadership, held meetings in African American churches, private homes, and public schools to draft volunteers. Fellow brethren in Summerton, Reverend J.W. Seals, of St. Marks AME Church, and Reverend E.E. Richburg, pastor of Liberty Hill AME Church, broadened the drive to gather eligible plaintiffs. By November 1949, Marshall, Boulware, and Robert Carter, who would later participate in the Kansas case, presented the county school board with one hundred names of parents who sought integration. Harry Briggs, a service station attendant in Summerton, led the list and contributed his name to the case that would ultimately reach the U.S. Supreme Court. 43

The board, in predictable fashion, refused to acknowledge the community petition for equal access to public education. NAACP counsel, in turn, filed Harry Briggs, et. al. v. R.W Elliott, et. al. in federal district court in Charleston on May 17, 1950. The suit named only twenty plaintiffs, comprised of fourteen fathers and six mothers acting on behalf of forty-six children, who requested relief from several defendants, beginning with R.W. Elliott, chairman of the Board of Trustees of School District #22, Clarendon County, South Carolina. Other defendants included all District #22 board members, the Summerton High School District, the superintendent of education, superintendent of schools, and members of the County Board of Education for Clarendon County. All but two of these many participants were lost to the Latin, et. al., and Briggs v. Elliott went forward as if alone in U.S. District Court. The slate of NAACP attorneys, led by Marshall, included Boulware, Carter, and Spottswood Robinson, Thurgood's close friend from Richmond, Virginia, who had been trying to recruit plaintiffs for a class action suit to desegregate schools in the former "Cradle of the Confederacy." Robinson and Marshall had met at Howard University, where both blossomed under the tutelage of Charles Hamilton Houston. Robinson kept an active hand in NAACP activities in his home state, but ventured south at Marshall's request to help with Briggs.

The LDF team argued for the abolition of segregation before District Judges John J.

Parker, J. Waties Waring, and George Bell Timmerman during a two-day hearing held on May 28 and 29, 1951. Judge Parker carried a national reputation as a staunch segregationist, traced to President Herbert Hoover's 1930 nomination of Parker to the U.S. Supreme Court. The nomination failed when the eminent judge publicly expressed his opposition to extending the vote to African Americans, a right granted in the Fifteenth Amendment (ratified in 1870). The NAACP, then under the direction of Walter White, had lobbied hard against Parker's nomination and was well-acquainted with his views on African American rights. Twenty-one years later, LDF counsel were none too optimistic about the potential outcome of Briggs v. Elliott. Judge Waties Waring, however, held the promise of acting as a counterweight against

Parker's influence on the district panel. Waring, a native son from a long line of Charleston "blue-bloods," held very liberal views about the social status of African Americans, opinions quite uncharacteristic of his Charleston peer group. George B. Timmerman, described by Richard Kluger as a religious fundamentalist, openly advocated white supremacy and would predictably align with segregation. Arguments began before the triad in late May with a direct assault on Clarendon County's system of racial separation. Marshall and his team implemented the NAACP strategy of attacking segregation, itself, rather than skirting around equalization, even though the board admitted that discrepancies existed between the dual school systems. Charleston attorney Robert McCormick Figg, Jr., highly regarded in all quarters, provided counsel for the defense and kept attention on the issue of equality, in order to avoid a prolonged examination of segregation, per se. He openly conceded the truth of the plaintiffs statements about the lack of transportation, the existence of inferior black facilities, and the prevalence of inequities in staffing and curricula. With promises to correct the inequities, the Clarendon County board of education sought to maintain a system which conformed to the separate but equal" requirement. 45

The defendants hoped that by equalizing the black facilities, they could rectify, rather than scrap, the segregated system. Thurgood Marshall and the LDF team would not surrender Briggs so easily, notwithstanding the board's promises to do better in the future, because it sought to keep the races separate. He stuck by the NAACP's decision to pursue a complete end to segregation and followed a strategy engineered by Robert Carter. In 1950, Carter had discovered the work of Dr. Kenneth Clark, a social psychologist who specialized in the field of child development. Clark and his wife, Dr. Mamie Clark, established the Northside Center for Child Development in Harlem, New York, specializing in the pathology of racism. The Clarks developed behavioral tests to determine a child's awareness of race and its effects. They used dolls which were identical in all respects, except for color, and asked children first to identify the white and black dolls, then moved on to more precise questions; such as 1) "Give me the doll you like best," 2) "Give me the doll that is the nice doll," 3) "Give me the doll that looks bad." Answers indicated levels of racial awareness, as well as perceptions and attitudes about the attributes or characteristics of each race. Overwhelmingly, the Clark's found that African American children associated good characteristics with white dolls and bad ones with black dolls. They traced these feelings to lessons of racism, both overt and subtle, learned in homes, schools, and communities. Black children very effectively and very early internalized the messages of inferiority that they found all around them. Racial separation carried a great deal of psychological stigma because those pushed away felt inferior to those doing the pushing.46 When Robert Carter discovered the Clarks, he rushed to incorporate their findings into the NAACP legal strategy to end segregation. Marshall also realized the pertinence of the couple's research on the black self-image, later saying, "We needed exactly that kind of evidence in the school cases. When Bob Carter came to me with Ken Clark's doll test, I thought it was a promising way of showing injury to these segregated youngsters. I wanted this kind of evidence on the record."47 Marshall thought it particularly important to prove damages in these cases, which resulted from the "stigmatic injury" of segregation.

So, Kenneth Clark brought his dolls to Clarendon County, South Carolina in the spring of 1951 and found similar results among the African American children who lived there. Marshall presented Clark as an expert witness in Briggs v. Elliott to provide evidence of the inherent racism which existed in a segregated system and to illustrate the damage it could do to the children who were educated in it. The NAACP felt that Clark's findings clearly proved the inherent inferiority of dual school systems in Clarendon County. Predictably, Judges Parker and Timmermann saw it differently. The District Court announced its decision on June 21, three weeks after the hearing. Parker wrote the majority opinion, which raised the specter of states' rights by claiming purview over the operation of public schools. He summarily rejected Clark's psychological arguments about the impact of segregation and instead concentrated on the prevailing constitutionality of Plessy. Parker threw the onus of judgement back on the U.S. Supreme Court, saying,

We conclude, therefore, that if equal facilities are offered, segregation of the races in the public schools as prescribed by the Constitution and laws of South Carolina is not of itself violative of the Fourteenth Amendment. We think that this conclusion is supported by overwhelming authority which we are not at liberty to disregard on the basis of theories advanced by a few educators and sociologists. Even if we felt at liberty to disregard other authorities, we may not ignore the

unreversed decisions of the Supreme Court of the United States which are squarely in point and conclusive of the question before us 48

Judge Parker implied that any debate of segregation, per se, would have to be made before the High Court, which would have to reverse Plessy in order to effect any change in school policy. He and Timmermann concentrated only on the narrow issue of equalization and ordered the school district to build new, equivalent, facilities for its African American students, thereby satisfying the "separate but equal" rule. Judge Waring opposed this finding in a separate, dissenting opinion which affirmed the validity of Clark's sociological testimony. Waring condemned segregation in very eloquent, at times poetic, discourse, saying

This case presents the matter clearly for adjudication and I am of the opinion that all of the legal guideposts, expert testimony, common sense and reason point unerringly to the conclusion that the system of segregation in education adopted and practiced in the State of South Carolina must go and must go now.

Segregation is per se inequality.

As heretofore shown, the courts of this land have stricken down discrimination in higher education and have declared unequivocally that segregation is not equality. But these decisions have pruned away only the noxious fruits. Here in this case, we are asked to strike its very root. Or rather, to change the metaphor, we are asked to strike at the cause of infection and not merely at the symptoms of disease. And if the courts of this land are to render justice under the laws without fear or favor, justice for all men and all kinds of men, the time to do it is now and the place is in elementary schools where our future citizens learn their first lesson to respect the dignity of the

individual in a democracy .49

After expressing his disgust with the system and those who sought to retain it, Waring retired from the bench and left his home state for good. He and his wife suffered social snubs, insults,

and vandalism of their property. The state legislature had even passed a joint resolution in February 1950 to appropriate funds "to Purchase Two One-Way Tickets for Federal Judge J.

Waties Waring and his Socialite Wife to any Point of their Choice Provided they never Return to the State of South Carolina."50 The Warings gladly purchased their own tickets about eighteen months later and moved to New York.51

The Briggs decision strengthened the segregationist position in South Carolina and provided a rallying point for states' righters and former Dixiecrats who were happy to have another precedent which tightened Plessy's grip. The court had granted a six-month reprieve to District #22, during which it was supposed to raise the salaries of African American teachers, improve the black schools, and adequately stock them with supplies and teaching materials. Although Marshall immediately filed for certiorari, or review of the case, by the

U.S. Supreme Court, the justices ignored the request because Briggs still fell under the jurisdiction of the District Court. Nothing would happen until the lower court had reviewed the defendants' progress and dismissed the case. Figg returned before Parker, Timmerman, and Waring's replacement, Judge Frank Dobie, on December 20, 1951 with the status report which showed that the board had accepted a bid for a new high school in Summerton, preliminary designs were underway for two new black elementary schools, salaries had been equalized, equipment purchased, and bus transportation provided for African American students. The District Court, however, refused final adjudication and, in January 1952, passed it to the Supreme Court docket for the next October Term. The Kansas case joined it soon thereafter, so for a very brief time in January 1952, the school cases consisted of Briggs v. Elliott, listed first, and Brown v. Board of Education, second. If Briggs had remained on the docket, the litigation package would have been known by that case, but the justices refused to bite and sent it back to Charleston, remanding the case for further action on the district level. This removed Briggs temporarily, until the District Court ruled that the board of education had satisfied its order to equalize the public schools, and Brown rose to the top of the docket. When Briggs returned for a second time, Parker and his colleagues on the bench dismissed the case and cleared the way for an NAACP appeal to the U.S. Supreme Court.52

Brown and Briggs moved to a national forum in June 1952 when the Supreme Court scheduled oral arguments for the two school cases for the following October. For all practical purposes, the fight over school desegregation in South Carolina was just beginning. Governor James F. Byrnes vowed that if a federal court ever ordered desegregation in his state, he would protect the rights of his constituents by closing the schools rather than integrating them. Those who had participated in the Clarendon County case as plaintiffs and supporters immediately felt retribution for their actions, long before the case was resolved in federal court. The Warings left South Carolina and its troubles behind, but many poor African Americans had no choice but to stay. The KKK kept busy with a campaign of terrorism and coercion, and in October 1951, a suspicious fire had destroyed Rev. J.A. Delaine's house in Summerton. Harry Briggs, his wife, and others lost their jobs, their livelihoods, and their tentative grip on financial independence. Plaintiffs and NAACP members who lived in Manning, Summerton, and Liberty Hill could no longer find markets for their farm crops, saw mills to cut their timber, or cotton gins to process their harvests. Whites in control used violence and coercion to send the message that life would not change for African Americans living in rural South Carolina. Briggs v. Elliott provided a very important battleground for the national debate over the status of blacks in American society. It exposed conditions in the Deep South that had been ignored for decades. This aspect, alone, was the critical element which the South Carolina case brought to the package of school cases. It provided an example of segregated education that was far more typical than were facilities in Topeka, which provided virtually equal structures, staffs, and materials to its black and white children. Circumstances in central Virginia also substantiated the atrocious conditions found in most segregated schools in the South, which the NAACP documented before a national audience through the prosecution of Davis v. Prince Edward County. 53

Students strike back in Farmville

As the NAACP LDF pursued its litigation strategy in Kansas and South Carolina, high school students in Prince Edward County, Virginia decided to initiate a third action to desegregate public schools in the small community of Farmville. The town lay not too far from Appomattox Courthouse, the crossroads where General Grant sounded the death knell of the Confederacy. While slavery had ended almost a century earlier, socio-economic independence continued to elude African Americans in central Virginia. Just like their cousins in the Deep South, whites fostered dependency among blacks by circumventing job opportunities, stalling black farmers in tenancy and sharecropping, and stifling intellectual growth. By April 23, 1951, 450 African American students protested such limitations by initiating a two-week boycott of classes and contacting the NAACP office in Richmond for assistance in a suit to equalize the public schools in Prince Edward County. Davis v. County Board of Prince Edward County, Virginia resulted, with 117 plaintiffs petitioning the board of education to end, rather than improve, the segregated system. The "dollman," Dr. Kenneth Clark, again demonstrated the sense of inferiority among Farmville's black youths and, again, the District Court rejected the NAACP's petition for integration. Eighteen months later, the suit joined the school cases on the Supreme Court docket for argument during the October Term, 1952. Although thus far the High Court had ducked direct reevaluation of the Plessy

v. Ferguson finding, Davis added to the impulse for pointed discussions of this nation's attitudes and policies regarding race in public education.

The record of black education in Virginia parallels the history of the South, with some noteworthy exceptions. For the most part, ex-Confederates in the planter class and lower strata of society wanted to keep African Americans out of classrooms and in the fields. Most opposed even the idea of black education because of racist beliefs that African Americans were innately inferior and unteachable. Reliance on child labor, crucial to the economic success of black workers and white landlords, was the greatest enemy to education because the seasonal routines of planting and harvesting left little time for schooling. Academic terms were so short that children rarely got past rudimentary reading and writing skills. The establishment of the Hampton Normal and Agricultural Institute in 1868 by Samuel Armstrong provided a very bright spot in this bleak climate. The "Hampton idea" aimed to provide future elementary school teachers with basic requirements for teaching certification on a strong foundation of manual training. Matriculating students usually possessed only an elementary education and earned a two-year degree at Hampton, which meant students graduated with the approximate equivalent of a tenth-grade high school education. Armstrong's curriculum emphasized working within the white power structure, and, in many respects, prodded African Americans to aim only for careers suitable for a low station in society. James Anderson, in his study of black education from 1860 to 1935, points out the inherent tensions of the "Hampton idea" between the desires of African Americans to confront white hegemony and Armstrong's curriculum which emphasized conformity and adjustment to white control. He said, "Armstrong developed a pedagogy and ideology designed to avoid such confrontations and to maintain within the South a social consensus that did not challenge traditional inequalities of wealth and power."54 By 1880, accommodation had become the operative word in the on­ going debate between DuBois and Washington over the desired mission of black education.

Those who bucked this system and aspired to higher goals attended academic high schools and colleges which provided a richer liberal arts curriculum. Prior to 1920, most secondary education available to African Americans in the South came through private sources. Anderson provided an important perspective on the lack of public facilities for blacks, saying "In 1916, fully 95 percent of the southern black secondary school age population was not enrolled in public institutions, and in the deep South the proportion not enrolled in public secondary schools was 97 percent."56 Virginia bucked this trend, by providing six public high schools for African American students with curricula that emphasized classical, liberal arts education, and college preparatory courses. Black public education expanded after 1920, but with a more moderate curriculum that combined academics with vocational training. This seemed to be an acceptable compromise to the white majority, which operated particularly well within the constraints of a segregated system. Public education, in general, had been a rather low priority for the Virginia legislature up to 1920 because of the social trends and economics. Although much had changed since the colonial period, many in the upper. class still relied on private institutions to educate their children and few demanded quality public schools. Furthermore, in an attempt to diversify its economic base beyond stagnant agriculture, the state relied on low tax rates to attract railroads and industry in the late­ nineteenth century. Low taxes meant low expenditures and few dollars for public school facilities for either race. The expansion of the federal government in the twentieth century changed this scenario. Increased military demand during World War I initiated economic growth through the establishment of large military installations and shipyards on the Virginia coast. A federal, civilian, work force continued to grow from 1930 to 1950, populating the state's northern and eastern areas through the eras of the New Deal; World War II, and Cold War. Virginia now needed adequate schools for the children of its expanding, non-native workforce, so the impetus to improve the state's public schools grew.57

Unfortunately, Prince Edward County lay in the middle of the state, far away from the areas of expansion and growth. Its population hovered around 15,000 in 1955, including a large percentage of African Americans who depended on a failing tobacco crop. Like many areas in South Carolina, Prince Edward County lay on the western edge of the "black belt," where African Americans actually held a numerical majority over the wealthier, more influential white residents. Most African Americans owned small farms, worked as janitors or maids, as laborers in farm fields, on the railroads, in warehouses, or factories. Education was fleeting, physical labor was the norm, and those who wanted something else for their children left for a more northerly clime. But, those who remained grew impatient with the status quo through the 1930s and 1940s, as Virginia moved into the twentieth century. Whites also sought improvements and, in the 1920s, demanded that administrators provide new public high schools for their children. Magistrates built a large high school in Farmville, the county seat, and a second one in Worsham, a small town which sat in the geographical center of Prince Edward County. They provided a brick building in Farmville, housing grades one to eight, to serve as the primary school for African Americans and those in rural areas attended smaller, one-room schools. The school board commissioned a black high school in 1939, named Robert Russa Moton High School, after the Virginia native who succeeded Booker T. Washington at Tuskegee Institute. Attendance at Moton swelled after World War II, even though the African American population of Prince Edward County remained stable. Planners designed Moton to accommodate 180 students; however, 167 enrolled in 1939, 219 in 1940, and by 1947, the student population exceeded 360. Needless to say, administrators had greatly underestimated the black community's desire for and commitment to education. Instead of solving the problem, school officials erected three temporary outbuildings, wooden structures covered with tarpaper, to take care of the overflow. State law allowed the district to use these "shacks," as the black community called them, for five years, but a better solution had to be found for the long term. Prince Edward County's administrators duly resolved to build a new high school, at some point in the future, to accommodate Moton's student body comfortably.58

Whites, by and large, believed that their African American neighbors were satisfied with their lives in central Virginia. Perhaps both groups had become used to the languid tempo of life, the slow rate of change, and the quiet submission of blacks to white authority. By 1950, however, unquestioned deference to those who "knew best" was waning. The maturing black generation felt little satisfaction with the social conditions imposed upon them and were growing impatient with patriarchal white attitudes towards African Americans. Reverend L. Francis Griffin, pastor of the First Baptist Church, represented the new breed in Prince Edward County. After serving with the first African American tank corps under General George Patton in World War II, Griffin returned to central Virginia, where he established his ministry and reputation as a community leader bent on improving the lives of his followers. Griffin organized a chapter of the NAACP and initiated contact with NAACP attorneys in Richmond who were searching for candidates to file suit against segregation in Virginia public schools. Spottswood Robinson and Oliver Hill, already involved in the Briggs action in South Carolina, sought to expand the NAACP legal campaign with a Virginia case. They found hearty, willing souls in Farmville who had a legitimate grievance against the Prince Edward school board; namely, in the form of those tarpaper shacks behind Moton High School. John Lancaster, the black agricultural extension agent, and Boyd Jones, principal of Moton High, joined Rev. Griffin in his efforts to organize the local NAACP chapter and spur the African American community to action. This trio used the Parent Teacher Association (PTA), which Griffin presided over, from 1949 to 1951 as a primary medium for discussions about a new facility for Moton. The school board ignored every attempt to discuss the matter, ostensibly until a satisfactory site had been found, and Griffin later related that members finally told him that "They would let me know when it was time to build a school."59

During the fall semester of 1950, Barbara Rose Johns decided that the time had come. Johns, an eleventh grade student at Moton, was frustrated with the inadequacies of her school and angry that opportunities open to white teenagers at Farmville High were denied the African Americans at Moton. She rejected accommodationism and resented the attitude among both races that rewards would come, if she only waited long enough. Her uncle, Reverend Vernon Johns, had instilled a zeal for control and self-determination in Barbara. Richard Kluger writes that, "Where her father was a quiet and kindly man, her Uncle Vernon was a dazzlingly articulate and argumentative preacher who made as many enemies as friends with his thundering sermons that took no pity on the black man for his ignorance and docility in the face of the white man's malice."60 Vernon Johns inspired his niece to get angry about inequities in society and to do what she could to rectify them. Therefore, after years of delay by the school board and the PTA, Barbara Johns approached Carrie Stokes, Moton's student body president, and suggested that the students take action into their own hands. A core group, including Barbara Johns, Carrie Stokes, and John Stokes, monitored the progress of the PTA and school board for a few months. When none ensued, they decided to strike. On April 23, 1951, the group reported that truant students were loitering at the local bus station, a blatant ploy to get Principal Boyd Jones away from Moton. With the principal otherwise engaged, sixteen year old Johns and her coterie convened an assembly, in Boyd's name, and called upon students to support a strike against conditions at the high school. Boyd, after discerning the red herring, returned to find the student body ready to walk out of school until they received treatment on a par with that given to white students. After some deliberation, the students agreed to stay on school grounds for the rest of the day, either demonstrating outside with picket signs or sitting inside at their desks. Johns' committee then called on Rev. Griffin to join and advise them. He met with the group and suggested they contact their parents, which the committee put to a student vote. They promptly rejected Griffin's recommendation and asked for the names of NAACP contacts who might support their walkout. Spottswood Robinson and Oliver Hill immediately came to mind, and within the month, made their way to Prince Edward County to meet with Miss Barbara Johns.61

In the days following, Johns' committee met with Superintendent T.J. Mcilwaine, who rebuffed their grievances and railed against Principal Boyd for inciting the student action. Moton's students remained on strike despite warnings of retribution and met with NAACP counsel, Robinson and Hill, on April 25 to discuss their options. The attorneys, both products of Charlie Houston's tutelage at Howard, had dedicated their careers to fighting discrimination in the Old Dominion by equalizing teachers' salaries, student transportation systems, educational facilities, and supplies. Robinson, heavily involved in the Briggs suit, had searched for a similar test case to implement the NAACP strategy to end segregation in Virginia, but wanted to fight the battle in a more progressive city, rather than in the rural backcountry. But, opportunity chose him and the students of Moton High School pledged to pursue litigation against Prince Edward County. Robinson later recalled his first impressions of the situation, saying, "We were going to tell the kids about the Briggs suit, which was about to begin in Charleston in a few weeks, and how crucial that would prove, but a strike in Prince Edward was something else again. Only these kids turned out to be so well organized and their morale was so high, we just didn't have the heart to tell 'em to break it up."62 Thus with the national NAACP office behind them, Griffin and others from the local chapter drew the African American community into the organizational net. One thousand people rallied at Moton High for the first planning session, in the form of a county­ wide PTA meeting to discuss the Moton situation. Meetings held throughout the process at black churches and schools routinely drew hundreds of supporters, mostly from the ranks of the county's independent black farmers. In a 1955 interview with Haldore Hanson, Rev. Griffin said, "Farmers will drive 20 miles to attend a PTA meeting whenever we discuss the lawsuit. We have 600 Negro farm families in the county, and 500 own their own farms. They don't make much of a living, but they have electricity now, and are buying tractors to replace their mules. Nobody bosses them. They are the backbone of the lawsuit."63 Griffin took to the backroads, soliciting signatures for a petition which called for the desegregation of Farmville High School. On May 23, 1951, one month after the student strike, Spottswood Robinson and Oliver Hill filed suit on behalf of 117 plaintiffs who called for an end to segregation. Quite by circumstance, Dorothy E. Davis, at age fourteen, led the names of Moton students listed on the petition for Davis, et. al. v. County School Board of Prince Edward County. With the judicial process underway, Robinson joined Kenneth Clark and Thurgood Marshall that same day on a train bound for Charleston and a court battle over public education m Clarendon County.

In due course, the South Carolina case came to a predictable end and LDF counsel expected much the same in Virginia. As in the prior two school cases, the NAACP filed its brief with a three­ judge panel, the U.S. District Court for the Eastern District of Virginia in Richmond, which was composed of native Virginians Armistead Dobie, Sterling Hutcheson, and Albert Bryan. Lindsay Almond, the state's Attorney General, hovered over T. Justin Moore during case preparation and defense of Prince Edward County policy. Almond knew that the ramifications of this case reached far beyond the Farmville backwater and, ever the adept politician, he sought to maneuver it to the benefit of old-line segregationists. Recognizing in the 1940s that the NAACP had undertaken a campaign against segregation, the state had hoped to avoid successful attacks by implementing a broad program to improve its public schools. Improvements, however, had never reached Farmville and accommodation was no longer an option for its African American community. Nevertheless, Moore's defense fell back on the rationale that equalization would correct the situation contested in Davis. In fact, construction finally had begun on a new Moton High School, which would offer facilities comparable to those at the white Farmville High. The NAACP defense strategy rejected any likelihood of settling for a new, but segregated, high school. There was no turning back from full integration.

Robert Carter joined the Robinson/Hill litigation team in Richmond for the February 24-29, 1952 hearing and again pursued the sociological argument that segregation instilled a sense of inferiority in African Americans. As in Briggs, Kenneth Clark provided evidence from his doll tests and testimony from interviews with sixteen Moton students. M. Brewster Smith, a psychologist appearing for the plaintiffs, supplemented Clark's core testimony and compared segregation to a state of being quarantined. Smith explained the emotional impact of racial separation in personal terms, "as meaning that I, the person segregated against, am someone that has to be quarantined, somebody that has to be kept, from associating with people because I am not good enough, and this is inherently an insult to the integrity of the individual."65 Moore attacked both of these scholars by minimizing the social stigma of segregation and emphasizing the value of equal facilities. He felt that Clark's brief interaction with Prince Edward County youth proved very little. Moore then introduced a defense strategy used only in this school case, by calling upon his own social science experts who refuted the ill-effects of exclusion and endorsed the system of segregation. Henry Garrett, chair of Columbia's Psychology Department, William H. Kelly, a child psychologist, Colgate Darden, president of the University of Virginia, and Lindley Stiles, head of the university's education department, presented psychological data which, in their opinions, rationalized segregation and purported the potential dangers of integration. The brunt of the defense testimonies followed two tacks: the first contended that equalization removed discriminatory elements from the system of segregation; and the second stressed that segregation was a component of the established social order and cultural protocol of Virginia. Therefore, Moore argued, relief granted in favor of the plaintiffs would result in social upheaval and cultural disarray. Although Hill and Spottswood scored points against these contentions through cross-examination, defense arguments carried the day.66

Judges Dobie, Hutcheson, and Bryan returned their decision on March 7, 1952, only one week after closing arguments in Davis v. County School Board of Prince Edward County. The panel discounted psychological evidence of segregation's harm and instead determined that no discrimination existed in a system based upon the "separate but equal" principle. Judge Bryan wrote the unanimous opinion for the court, relying greatly on the recent Briggs v. Elliott finding and its antagonist, Plessy v. Ferguson. He reiterated Moore's reasoning that segregation had become an intrinsic part of Virginia life, by saying,

In this milieu we cannot say that Virginia's separation of white and colored children in the public schools is without substance in fact or reason. We have found no hurt or harm to either race. This ends our inquiry. It is not for us to adjudge the policy as right or wrong "67

Prince Edward County officials were to improve black facilities and curricula and the problem in Farmville was to disappear. But, Robinson, Hill, Johns, Griffin, and many, many others had worked too hard to simply drop the matter here. As Bryan inferred, the issue went beyond the purview of any district court. Only the U.S. Supreme Court could determine the validity of Virginia's educational policy, which meant a full reevaluation of "separate but equal," itself. The NAACP filed its appeal to the Court on July 12, 1952. Meanwhile, Marshall and his LDF staff prepared to debate Brown and Briggs in the October Term. On October 8, only days short of the scheduled appeal, the Court postponed the school cases in order to add Davis to the docket. Davis and Briggs, in particular, shared several factors that defined segregation in Prince Edward and Clarendon Counties; ranging from their poor agricultural base, the leadership of key ministers, the stark inferiority of black facilities, the

proactive response of white society to balance conditions, and the dedication of African Americans to threaten racist institutions. If the justices had to face the constitutional question proffered by Plessy, they wanted to do it in one comprehensive action, rather than through separate appeals. Three school cases now were rescheduled for oral argument on December 8, 1952. Four and five soon would follow, adding vital components to undermine Plessy v. Ferguson t horoughly.68

The Chancellor's order

In 1951, two African American women, Ethel Belton and Sarah Bulah, spawned separate legal actions that melded as one school case from Delaware. Jack Greenberg, co-counsel in the Brown suit, joined Louis Redding in Wilmington to prosecute the two actions in Delaware's Chancery Court. Here, the initial petition concerned equal access to transportation for youngsters attending schools in Hockessin and Claymont, a suburb of Wilmington. Redding, on behalf of the NAACP, refused to petition the court merely for passage to segregated schools, but encouraged Belton and Bulah to sue for full integration of white facilities in Hockessin and Wilmington. Chancellor Collins Seitz, whose integrity paralleled that of Charleston's Waties Waring, found for the plaintiffs in both complaints, Belton v. Gebhart and Bulah v. Gebhart. This presented an interesting dilemma for the NAACP's desegregation campaign because Seitz ordered immediate integration of the public schools in the two communities even though the "separate but equal" doctrine remained in force. His finding left the school boards, who had appeared as defendants in Chancery Court, in the position of appellant before the U.S. Supreme Court, petitioning in Gebhart v. Belton for relief from Seitz' order. Redding and Greenberg were now on the defensive, protecting their small technical victory against a renewed assault on the authority of the Court to countermand segregation in public education.

Delaware lies below the Mason-Dixon Line, adjacent to Maryland's Eastern Shore. Like its mid. Atlantic neighbor, Delaware allowed the practice of slavery until Congress abolished the institution in 1865. Its residents had rejected Abraham Lincoln in the 1860 election, opting instead for the pro-slavery advocate, William Breckinridge. But unionist politicos kept the state out of the Confederacy and Delaware remained in the Union as a slave-holding border state throughout the Civil War. This brief history is important because it indicates that Delaware's residents retained racist attitudes toward African Americans long after the war had ended. The legislature refused to ratify the Thirteenth, Fourteenth, and Fifteenth Amendments, which ended slavery, then granted citizenship and voting rights to freedmen after the Civil War. Although federal authority superseded attempts to maintain a slave system, the legislature did its best to limit rights granted to the newly-freed population. Delaware specifically used poll and property taxes to disenfranchise its black voters. Public education also provided a useful tool for subjugating the African American population. Quakers and other charitable groups provided the first schools to free blacks in Delaware. The African School Society (1830s-1866), later known as the Delaware Association for the Moral Improvement and Education of the Colored People (1866), sought to broaden access to education in the late-nineteenth century. In 1875, the general assembly funded the state's few black schools through a special tax on African Americans, who, by and large, could ill afford generous school facilities. Revenues covered only one-third of total costs and private donations made up the rest. The general assembly began to fund black schools in 1881 and required that they remain open for three months each year. In 1897, just one year after the Plessy decision, the state implemented a "separate but equal" mandate which stipulated that black and white schools receive equal funding. This marked the official beginning of dual school systems in Delaware.69

Black facilities fell behind, however, and the Delaware Colored Citizens Political Organization and the Delaware Negro Civic Association lobbied the state for educational funds into the twentieth century. Supporters gained substantial victories in 1919 when the legislature made four significant changes in the School Code: 1) funding responsibilities moved from local to state authority; 2) the 1875 tax on African Americans was revised and extended to all residents to raise revenues for the support of all public schools; 3) the state required that children under the age of fourteen attend 180 days of school per year; and 4) transportation was provided for students in grades one through six who lived more than two miles from school. The 1919 statute bound African Americans and whites together under the same regulations and financial restrictions for the first time in Delaware's history. Past indifference towards African American education, however, meant that the dual systems barely compared even though the state government now regarded both in a more consistent manner. Delaware's modern patriarch, Pierre S. du Pont, recognized that black facilities fell far behind white schools in quality and construction. The legislature apparently revised the 1919 School Code to include a two million dollar building program to bring the black schools up to par. DuPont contributed the funds and oversaw the comprehensive program which included improvements in the fabric and content of African American children education. Susan Brizzolara's National Register nomination of "Iron Hill School Number 112C" provided a wonderful synopsis of du Pont's educational program. She made an important point about the broader importance of du Pont's work, namely that "By choosing to fund the construction of the African American schools, which would become the property of the State upon completion, du Pont prompted Delaware educators to confront and to develop a position toward the education of the African American child."70 Du Pont called for a "single-teacher system" to be implemented in black schools because the small, agricultural population spread thinly across the state. Small schools were built near black populations, but white students, in contrast, were pulled from rural areas into large, consolidated schools. This meant that black schools remained small, one-room facilities, but white schools were designed for large student bodies. Attendance remained a problem for both races, but particularly for African Americans, because of the reliance on small-scale agriculture in rural areas. African American families relied on income from the work their children performed as agricultural laborers, so poverty and limited opportunity contributed to the difficulty of economic advancement. Du Pont's efforts made a significant impact on Delaware's public schools, however, and provided a consistent strategy for improving black education. Its rank among the nation's schools climbed from thirty-ninth• in 1915 to eighth in 1938. Changes in the administration of Delaware's public educational system and the du Pont agenda enhanced the educational experience for African Americans, but blacks still received stereotypic treatment in the form of shortened school terms, one-room facilities, and rudimentary curricula.71

Blacks made up only fourteen percent of Delaware's population in 1950, but these citizens were segregated in public facilities and kept out of most white collar professions. Segregation in education prevailed on both elementary and secondary levels from 1897 to 1954, although no four-year black high schools were to be found south of Wilmington, an area which included most of the state. Delaware's population centered in Wilmington and environs, just south of the Pennsylvania border. African American teenagers who lived within the city, proper, or in its outlying suburbs attended Howard High School, the state's first facility for black secondary education and the only one in the vicinity. The eighteen-mile commute could take an hour each way and in 1950, several parents from the town of Claymont decided that the distance was a bit excessive. They contacted Louis Redding, a prominent African American attorney in Wilmington, in M4rch 1951, for advice about how they might proceed to integrate Claymont High School. He suggested that they petition the Claymont school board, on behalf of their children, for admission to the local, white high school. Coincidentally, a resident of Hockessin, a small community west of Wilmington, grew frustrated that the school district did not offer bus transportation for African American children attending the black elementary school located in the village center. Hockessin provided passage for white students, but not for blacks, so Sarah Bulah asked the Department of Public Instruction to rectify the situation. A bus for white children passed by her home every morning and could take her daughter, Shirley, into Hockessin, but the department determined that segregation in education extended to the transportation system, as well. African Americans were not allowed to ride the bus used for white children and none were provided for blacks in Hockessin. Finding no help in Hockessin, Mrs. Bulah contacted Redding to initiate proceedings that would allow Shirley to ride the white bus. He refused to participate in this specific action, but encouraged her to sue, instead, for integration of the nearby white school. These two separate actions regarding segregation in the Claymont high school and in Hockessin elementary schools went forth, therefore, under the direction of Louis Redding and the NAACP LDF in the spring of 1951.72

Louis Redding descended from one of the most prominent African American families in Delaware. They have been referred to as members of the black elite, the "talented tenth," as it were, for the Reddings excelled in academic endeavors and civil rights activities that took them far beyond Wilmington. Louis attended Brown University and Harvard Law School, and bears distinction as the first African American admitted, in 1929, to the Delaware bar.

He established a private firm in Wilmington and maintained close ties with Thurgood Marshall and the NAACP in New York. Predictably, Redding worked where he was needed most, as an advocate for individual African Americans who needed legal assistance and defender of the race in the broader, civil rights arena. In 1950, he and LDF attorney, Jack Greenberg, successfully gained admission for thirty African Americans to the University of Delaware. They presented their case, Parker v. University of Delaware, before Vice-Chancellor Collins Seitz, who at thirty-six served as one of the youngest jurists in the history of the Chancery Court. In only five years of service, Seitz had proven himself a patron of those on the periphery of society. He believed in giving fair treatment to ethnic minorities, workers against large corporations, and African Americans. Despite political opposition, Seitz rose to the position of chancellor in June 1951, just in time to preside over Redding and Greenberg's latest endeavor, the Belton and Bulah school desegregation cases filed against the State Board of Education. Francis B. Gebhart had the misfortune to fall first in an alphabetical listing of board members and so became linked eternally with the Delaware school cases.73

Redding and Greenberg filed the cases in Delaware state court in July and August 1951, on the heels of proceedings in the Brown and Briggs cases. Ethel Louise Belton led a slate of eight children who formally petitioned for admission to Claymont High School in Belton, et. al. v. Gebhart, et. al. Ethel Belton, Joseph Crumpler, John W. Davis, Willie Robinson, Emma Fountain, John Short, and Harlan Trotter represented their eight children as official plaintiffs in Civil Action No. 258. Shirley Barbara Bulah stood alone with her parents, Fred and Sarah Bulah, in a separate action, Bulah v. Gebhart, et. al., which requested the integration of Hockessin elementary schools. Both dealt with the issue of transporting children over long distances simply to maintain segregation. Arguments began before Chancellor Seitz on October 22, 1951, with Redding and Greenberg squared off against Delaware's attorney general, H. Albert Young, participating as counsel for the defense. The NAACP litigators followed the association's resolute strategy of attacking segregation at its sociological roots. Greenberg lined up an outstanding panel of fourteen experts to testify about the psychological damage inflicted by racial separation on all Americans, the harmful effects of busing, and to provide proof of African American intellectual capabilities in order to dispel false notions about the race's inferiority. Dr. Kenneth Clark appeared with new data from interviews with forty-one Delaware children, whose results in Clark's famous doll tests compared consistently with Southern blacks. Segregation spread its consistent lessons of inferiority and guilt across the United States, regardless of economic background, social class, or geographic region. Redding and Greenberg successfully showed that it was no different in Delaware. Albert Young put the state superintendent of instruction, George R. Miller, Jr., on the hotseat to defend the policy of exclusion. In 1943, Miller had assessed African American education in Delaware for his doctoral dissertation and found severe disparities between black and white schools. The state had neglected to provide equal funding for the dual systems to 1951 and it showed. On defense, the debate turned from the conceptual effects of segregation to the tangible disparities between black and white schools. At the close of three days of testimony, Chancellor Seitz chose to deviate from normal courtroom proceedings and visit the sites in question, himself. He, the court clerk, and participating attorneys found unsanitary restrooms, deteriorating structures, poor playgrounds and landscaping, unsafe settings, and no extra­ curricular offerings or health clinic at Hockessin's black School No. 29 and at Howard High in Wilmington, Upon deliberation, the issue of equality certainly would be easy to resolve, but the essence of segregation, itself, might pose a more difficult question. 74

Collins Seitz had time to mull over these important matters, however, for he had to wait for the clerk to submit an official copy of the trial transcript and then for attorneys to file briefs supporting their arguments. The whole process took five months, so the finding in Belton and Bulah was not announced until April 1, 1952, an unforeseeable April Fools' Day. The state board of education used the time to improve some of its facilities, perhaps in hopes of proactively countering the chancellor's finding. But Seitz would have none of it. He lambasted the state for the poor conditions of the African American schools, reiterated evidence of the sociological damage wrought by segregation, and declared that "the 'separate but equal' doctrine in education should be rejected." Since only the Supreme Court could accomplish that, Seitz took the next best course of action, explaining,

It seems to me that when a plaintiff shows to the satisfaction of a court that there is an existing and continuing violation of the "separate but equal" doctrine, he is entitled to have made available to him the state facilities which have been shown to be superior. To do otherwise is to say to such a plaintiff, "Yes, your Constitutional rights are being invaded, but be patient, we will see whether

in time they are still being violated."75

The Chancery Court of the State of Delaware therefore resolved that, "If, as the Supreme Court has said, this right is personal, such a plaintiff is entitled to relief immediately, in the only way it is available, namely, by admission to the school with the superior facilities. To postpone such relief is to deny relief."76 Very simply, the chancellor ordered that administrators admit Ethel Louise Belton and her friends to Claymont High and Shirley Barbara Bulah to Hockessin's School No. 107, and indicated that integration begin immediately. Thurgood Marshall had believed that Delaware, as a border state, provided the best opportunity for success and after the hearing, proclaimed to the press, "This is the first real victory ordered in our campaign to destroy segregation of American pupils in elementary and high schools.

The Delaware cases provided the first instances in which a court ordered that white schools admit African American children on an equal basis. Seitz' finding in favor of the plaintiffs put the onus on the Delaware board of education to petition for relief from the chancellor's order. Young first appealed to the state supreme court, asking that it grant a stay which would delay integration. The former defendant now became the appellant in two new cases, Gebhart, et. al. v. Belton, et. al. and Gebhart, et. al. v. Bulah, et. al., which reversed the roles of those involved. The state insisted that Seitz should have told the school systems to equalize conditions, as judges had done in Briggs and Davis, instead of directing immediate integration. In basic legalese, the court refused to countermand Seitz' order, thereby affirming the judgement of the Court of Chancery on August 28, 1952. Attorney General Young moved to the next step in the appeals process, to the U.S. Supreme Court, to gain relief from Seitz' mandate to integrate Hockessin and Claymont. Almost three months passed, though, before Young submitted his request for a writ of certiorari for the two Gebhart cases. He filed on

November 13, 1952, only a few weeks before the scheduled hearing of the school desegregation cases. The Court's docket now contained four of them, listed one by one under Brown v.

Board of Education because the justices had added a case from Washington, D.C. to the Kansas,

South Carolina, and Virginia package. The Delaware cases would join the complement to be heard in early December, whether or not Young was ready for arguments.78

Attorneys on both sides were ready that December morning. Delaware stood alone as an appellant seeking to defer integration indefinitely. Counsel for the other states had staved off the NAACP's threat thus far, but realized the strong body of evidence that the five school cases presented. Distinctive characteristics of each case showed the breadth and pervasiveness of segregation in the United States. Social relations between the races in Delaware closely resembled the inequitable conditions in the deep South, but the relatively small size of the state's African American community may have made change more difficult. Residents of ethnic backgrounds and those of the Catholic faith accepted their African American neighbors more readily than the standard white, Anglo-Saxon, Protestant population. There seems to have been less conflict between diverse people at the same socio-economic level than farther south. Also, where black churches and community leaders played substantial roles in events in Kansas, South Carolina, and Virginia, there is no mention of either in accounts of the events surrounding the Delaware cases. In fact, Sarah Bulah found real resistance among her Hockessin neighbors when the case began. Richard Kluger recalls a response by her minister, Reverend Martin Luther Kilson, who said,

I was for segregation. These folks around here would rather have a colored teacher. They didn't want to be mixed up with no white folks. All we wanted was a bus for the colored. Redding and some members of the NAACP encroached this issue of segregation. I hated to see them tamper with that little old colored school next to our church. It was so handy.79

Others apparently shared his feelings. The NAACP had met local resistance in other situations, from people who feared change or who rejected direct contact with whites because it might lead to personal, direct abuse. Marshall and his troops, of course, felt that, in the long run, the fight to end segregation in the United States would be for the greater good. They would rise above local resistance, wherever it came from, because this was a national fight for the future of African Americans.

And the first shall be last

Depending on one's perspective, the case from the District of Columbia, Bolling v. Sharpe, falls as the first, fourth, or fifth school desegregation case. Charles Hamilton Houston began working for integration in the District public schools during the late-1940s because, as the nation's capital, such blatant discrimination was an affront to the democratic ideals which the government was supposed to safeguard. Gardner Bishop, a black barber, spurred a local parents' group to seek equal access for their children to public playgrounds and public schools and sought Houston's assistance. He worked on several discrimination suits until health problems forced Charlie Houston to turn the civil rights work over to James Nabrit, Jr. Equalization was the goal in 1947, but four years later, Nabrit insisted on pursuing full integration in D.C. schools. Gardner Bishop recruited eligible plaintiffs for an action against the Board of Education of the District of Columbia, which Nabrit filed in 1951 before U.S. District Court. Young Spottswood Bolling, one of eleven junior high school students, topped the list of plaintiffs against board president and lead defendant, C. Melvin Sharpe. Although heard on appeal with the four other school cases, the issue in Bolling, et. al. v. Sharpe, et. al. differed from these because it appealed for desegregation of public schools in a federal district, which fell under the jurisdiction of the U.S. Congress. The issue of segregation in this instance pertained to guarantees in the Fifth, rather than the Fourteenth, Amendment, which the Supreme Court would have to address in a separate opinion. Bolling, therefore, stood with the school cases, yet alone, because it pertained to discrimination by the federal government against its own citizens.

The history of Washington, D.C. has always been blemished by the practice of slavery in the national capital. Those who helped craft the United States from thirteen colonies decided to set aside land for use as the seat of government so that no one state could assert implicit control over it. After a period of politicking while Congress migrated from Annapolis to New York to Philadelphia, a deal was struck for a parcel of swampy land juxtaposed on the northern bank of the Potomac River between Maryland and Virginia. Washington, therefore, developed a southern character and, although the Compromise of 1850 banned the sale of slaves in the District, the practice of slavery continued until 1865. Congress established public schools for Washington's African Americans, however, as early as 1864 because Republican reformers felt responsibility for its underprivileged citizens. Dual systems developed and were reaffirmed by legislation in 1874 and federal court action in 1910. Inadequacies existed in the black schools from their founding; characterized by overcrowded classrooms, few available kindergartens, few supplies, and watered-down curricula. A scarcity of building materials during World War II convinced Congress to halt the construction of new schools. A post-war population boom, due to heavy black migration, made the bad situation worse by escalating the problem of overcrowded schools. African Americans found themselves in quite a predicament because Congress directly controlled funding for District schools. The political winds could determine times of feast or famine because politicians who disregarded the importance of black education could, and did, block much-needed appropriations. The large quantity of tax-exempt properties owned by the federal government also meant that Washington had a small tax base, which could not make up the difference in meager times. Another dynamic, fed by socio-economic class, persisted within the African American community, itself. Upper middle-class blacks separated themselves from those whom they perceived fell lower on the social scale. As a result, workers near the bottom felt prejudice from whites and blacks. Affluent black families preferred to send their children to private schools to avoid the ill-effects of the inferior education that poorer blacks received. Socio­ economic divisions within the community existed and may have delayed demands for either equalization or desegregation; that is, until Gardner Bishop started pushing for change.80

Bishop sensed that he fell below the affluent group in Washington society. He operated his own business, a barbershop, so had achieved some economic independence, but expressed anger towards whites and upper middle-class African Americans. He especially resented the fact that his daughter, Judine, could not play on a playground reserved for whites only. Bishop's anger grew as the years passed and facilities for African Americans deteriorated. His daughter, a young teenager in 1948, attended Browne Junior High School which jockeyed more, shorter classes to deal with the overcrowded conditions. Bishop and other parents realized that nearby white junior high schools swam in classroom space because class size was shrinking. The phenomenon of "white flight" had begun, whereby white families moved out of the District into the booming Maryland and Virginia suburbs. Whites moved out of Washington during the 1940s as more African Americans moved in. Conditions in segregated schools became even more unbalanced, as a result, and parents began to vent their frustration. The Browne Parent-Teacher Association (PTA) became the nexus for discontent. In 1947, the group engaged prominent Washington attorney, Belford Lawson, to file a lawsuit which accused the board of education of preventing black students in overcrowded schools from being reassigned to white schools which could accommodate them. Carrv. Corning prompted the board to move some students to two aging, white, elementary schools that functioned as annexes for Browne Junior High. Parents were not satisfied with this inadequate solution. Gardner Bishop had not joined the PTA because it was dominated by upper middle-class African Americans, but he felt just as much frustration over the Browne school situation. He rallied a second group of parents which first tried to participate in the PTA discussions, then formed their own group when the PTA turned them away because they were not official members. Bishop and his friends took refuge in Jones Memorial Church and officially organized as the Consolidated Parents Group, Inc. Protests and peaceful demonstrations ensued through the autumn of 1947 with little progress towards gaining adequate facilities for the teenagers. Three hundred adults joined Consolidated Parents and threatened to keep their children home from school until the board appropriately addressed their grievances. In February 1948, Gardner Bishop finally approached an upper-middle class African American from the Washington establishment, a social segment which his group actively had avoided in the past, and asked Charles Hamilton Houston for legal assistance.81

Houston was aware of the group's work and eagerly joined their cause. He polished their grievances that the board of education failed to provide adequate schools for African American children and had defrauded citizens by claiming that blacks received the same education as whites, in half the time. Consolidated Parents expanded their energies to include other injustices; such as segregation in recreation areas, the heavy teaching loads in black schools, the exclusion of African American children from kindergartens, and unequal conditions in other black facilities throughout the District. Through 1948 to 1950, the group tried to rectify some of these problems by pursuing at least three separate cases. Houston virtually became part of the parents' group and quickly defused their fears about working with someone outside of their social cluster. He worked on a pro bona basis through it all, until slowed by heart problems. Colleagues at Howard University, including Harry Merican, Charles Thompson, James Nabrit, Jr., and Ellis Knox worked with Houston during his illness until Nabrit and George E.C. Hayes took over the case completely in 1950, just before Houston's death. Both taught at Howard Law School at the time and were not officially on the staff of the NAACP's LDF, but Nabrit often served as an unofficial advisor to Marshall and his colleagues in civil rights matters. He closely followed the LDF's work in Virginia, South Carolina and Kansas, and was ready to tackle school desegregation in the national capital. Nabrit informed Gardner Bishop in the spring of 1950 that he would insist on pursuing full integration in future cases against the D.C. board, eliminating equalization as an option. In this respect, Nabrit led the pack by implementing the direct strategy first among the school cases. After years of frustration and delay, Bishop agreed with the more candid approach and engaged Nabrit as the new legal advisor for the Consolidated Parents Group, Inc.

An opportunity to implement the plan arose in September 1950, when Gardner Bishop initiated the incident that Nabrit would pursue in the Washington school case. Bishop accompanied eleven African American teenagers to the new, white John Philip Sousa Junior High School on September 11, 1950. The facility was large and clean, with a wonderful auditorium, a double gymnasium, a softball field and seven basketball courts on expansive grounds, and several empty classrooms. Bishop asked that the board of education allow the African American students to attend Sousa rather than the cramped black schools. It refused because black students were not allowed to attend school with white youth. Administrators instead offered to re-open an abandoned elementary school and use it as a black junior high.

Parents had been protesting conditions at Browne Junior High School for years, but conditions at others throughout the city were no better. From 1948 to 1951, administrators had considered only accommodationist solutions to real problems in the public schools, so the time for legal action had come. Spottswood Bolling, a tall, gangly young man attended Shaw Junior High and led the list of plaintiffs in the formal complaint, Spottswood Thomas Bolling, et. al., v. C. Melvin Sharpe, et. al., filed in early 1951 in U.S. District Court during the early months of 1951. The soon-to-be-famous twelve year old had graduated from Garfield Elementary the previous year and now traveled across town to attend the seventh grade at Shaw. In his legal brief, Nabrit avoided discussions of distances to or conditions in black facilities because he based the case solely on the fact that segregation, itself, was unconstitutional. Nabrit claimed that, since District schools fell under federal jurisdiction, administrators bore the responsibility of demonstrating the reason and legal basis for using race to make school assignments.83

Judge Walter M. Bastian, representing the U.S. District Court for the District of Columbia, heard arguments in Bolling v. Sharpe in the spring of 1951. Nabrit hammered at the issue of federal protection by arguing that discriminatory practices in Washington, D.C. constituted denials of due process, a civil right conferred in the Fifth Amendment. Like the equal protection guarantees in the Fourteenth Amendment, due process basically provided a check on the police power of the state. This Fifth Amendment protection, however, specifically pertained to statutes, ordinances, or administrative acts of the federal government, so any action that seemed to limit one's right of private property or free association could indicate a potential violation of due process. Nabrit argued that the board of education deprived his clients of liberty and property because segregation and due process were incompatible concepts. He invoked Justice Hugo Black's majority opinion in Korematsu v. United States, a 1944 appeal concerning the internment of Japanese Americans during World War II. Black wrote that, "Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can. The educational rights which petitioners assert are fundamental rights protected by the due-process clause of the Fifth Amendment from unreasonable and arbitrary restrictions."84 In this and other precedents, the Supreme Court recognized that dire circumstance could call for restrictive action, but confirmed the clear responsibility of the federal government to safeguard the right of due process for all Americans. Nabrit argued that these precedents applied to Bolling. He went as far as to say that Sharpe and his colleagues misinterpreted congressional directives about educational programs in Washington, D.C. because Congress never intended to establish segregation in the nation's capital. Milton Korman, acting as Assistant Corporation Counsel for the District of Columbia, countered by saying that the board, indeed, provided public schools for all of its citizens and legally implemented the constitutional practice of segregation. And, Judge Bastian agreed. He dismissed Bolling in April 1951 on the grounds that the plaintiffs had failed to suggest a valid course of action, or relief, from segregation, by not asking for equalization. Nabrit had not bickered about conditions because that was not the issue: he only had addressed the legality of segregation, itself. From the Court's perspective, however, segregation was still constitutional, so the plaintiffs had no valid claim for relief from a legal practice.85

James Nabrit and George Hays had feared the speedy "justice" of a one-judge panel and their fears were realized. Attempts to file the Bolling complaint before a three-judge District Court failed. Nabrit and Hays then moved to the next highest level, to the United Circuit Court of Appeals for the District of Columbia. In the meantime, the NAACP LDF moved ahead with individual appeals for Brown v. Board of Education, Briggs v. Elliott, and began litigation of Davis v. County School Board of Prince Edward County and the two Delaware cases. All merged as one before the U.S. Supreme Court during the October 1952 term. After the Court postponed October arguments for Brown, Briggs, and Davis, the Clerk of the Court, Harold B. Wiley, contacted James Nabrit about adding the Washington case to the package. Chief Justice Fred Vinson had "suggested" that Nabrit and Hayes ask the Court to entertain all four school cases together. Bolling v. Sharpe had yet to receive a hearing before the Court of Appeals, so advancing directly to the High Court seemed ideal. The Justices agreed and granted a writ of certiorari to Bolling an November 10, 1952, one month before Nabrit and Hayes would present oral arguments. Delaware's appeal of Belton and Bulah joined the school cases three days later. The Washington, D.C. suit added a crucial element to the complement by presenting a situation where the federal government bore final responsibility for racial separation in public education. Plessy faced a strong test in this suit, particularly because Bolling directly juxtaposed discriminatory practice against democratic rhetoric. Only one outcome could preserve the republican integrity of the United States, one which confirmed the civil rights of all Americans by eliminating the illogical pretense of "separate but equal."86

Gardner Bishop had contested the unfair system since the mid-1940s, first on behalf of his daughter Judine and then for all black children who were cheated out of educational opportunities simply because of ethnic origin and skin color. One might say that Charles Hamilton Houston's efforts returned one-hundred fold because his work directly contributed to the success of all of the school cases. Progress in Washington, D.C. was long in coming, but real change became more evident by 1952 because of increased African American migration after World War II, white flight, and support from Democratic and Republican presidential administrations. The nation's capital carried special status as the seat of representative government for the strongest power in the "free world" in the 1950s, which Cold War tempers made even more significant when the U.S. pitted its democratic principles against the starkness of communism. School desegregation in Washington, D.C. became politicized in the Cold War environment because it provided a wonderful, unifying non-issue which members of both parties could support. As competent politicians, Harry Truman and his successor, Dwight D. Eisenhower, pledged to improve the conditions of African Americans, but particularly for those living in the national capital. The Washington school case, under the careful guidance of Nabrit and Hayes, provided a ready vehicle for accomplishing this goal.

Conclusion

The course of events from 1945 to 1952 merged local concerns in Topeka with the national goals of the NAACP, producing a desegregation controversy that soon would affect school systems throughout the United States. A tedious trial-and-error process led the NAACP LDF to a successful litigation strategy for ending segregation in graduate and professional schools. They used it well in Sipuel, Mclaurin, and Sweatt, even though the Supreme Court backed away from direct reconsideration of Plessy. By 1950, the national office sought valid plaintiffs for well-grounded cases that would knock the remaining "legs" out from under segregation in elementary and secondary education. These five school cases, argued before the Court in 1952, 1953, and 1954, did just that. Preliminary groundwork laid by NAACP professionals provided a context for litigation in Kansas, South Carolina, Virginia, Delaware, and Washington, D.C. The five came together in November 1952 because national NAACP strategy merged with local efforts in representative segments of the South. "Sheer accident," recalled Thurgood Marshall in a 1968 interview with Dr. Hugh Speer. Marshall went on to explain,

The oldest one was the District of Columbia...that started in the 1940s. It was still pending in the Court of Appeals when the Supreme Court on its own motion brought it up. The Clarendon County South Carolina case came about by a shift in the county line. In Prince Edward County, Virginia, the Negro kids staged a strike on their own. Their parents didn't even know about it, so there was no plan there either. Topeka and Delaware came along slowly by local effort so all five of them were accidents. The nearest one to being planned was the District of Columbia. It had

been festering and festering. The others were sudden 87

Marshall's group of LDF attorneys had expected to move step-by-step down the educational ladder; first desegregating graduate schools, then undergraduate programs, high schools, junior highs, and finally the primary grades. While case selection had a spontaneous quality, none originated in a vacuum. Nor did they proceed totally at random, without historical context or NAACP involvement. Local chapters knew about the broad campaign to desegregate public schools through national conferences, meetings, correspondence, and seminars. Enthusiasm for the LDF's work further increased after the Supreme Court opened access to African Americans in colleges and universities.

Each suit included in Brown v. Board of Education made important contributions to the NAACP's comprehensive campaign to end segregation in public education. Strong sociological evidence, like that used in the Kansas, South Carolina, Virginia, and Delaware litigation indicated that segregation committed social harm on very deep psychological levels. African American children learned that society, at large, considered them to be inferior to other children when they were relegated to poor, inadequate facilities apart from majority society. Physical comparisons of white and black schools showed that separate facilities could never be equal. Schools in Topeka, Kansas came closest to the "separate but equal" ideal, but Carter, Greenberg, and the Scotts showed that educational inquiry involved more than quantitative measures of supplies and square footage. Curricula involved the entire experience which children encountered. LDF counsel wanted to call attention to the years of neglect suffered by African American children, but the litigation campaign zeroed in on desegregation as its goal. They found varying levels of support among African American communities across the South. In most situations, some African Americans tried to discourage integrationists because they wanted to maintain the integrity of black institutions and businesses. Teachers, in particular, feared for their jobs because an end to segregation could mean an end to the employment of black instructors. Some African Americans simply did not want their children to mix with whites and especially feared that white teachers would embarrass or criticize black students. Support, on the other hand, crossed many demographic sectors; including gender, economic status, occupation, race, and age group. African American churches and community groups formed strong networks of support for desegregation efforts. Women and men, adults, teenagers, and children played prominent roles in all phases of the operation.

Although attorneys filed the school cases on behalf of specific plaintiffs, all functioned as "class action" suits which, in effect, represented all African Americans living in the community where segregation was being contested. Hundreds, if not thousands, of African Americans were directly affected by the litigation. Silas Fleming, who testified on behalf of plaintiffs in Topeka, characterized the feeling and aspirations of his race as "craving light." He eloquently described an intense desire for opportunity and advancement, which segregation hindered. Sacrifice and service during World War II, along with Cold War rhetoric, raised expectations among African Americans and inspired them to demand the full benefits of citizenship guaranteed in the U.S. Constitution. Comparisons between the United States and the Soviet Union brought attention to the quality of life enjoyed by African Americans, particularly those who lived in the South. Image, by and large, outswept reality. In 1959 Thurgood Marshall said, "In truth, we in the N.A.A.C.P. and all other fair-minded people who are interested in democracy, realize that while what we are doing can be interpreted as benefitting Negroes, as such, actually it is in the interest of our government and democracy in general."" The school cases held universal significance and appeal throughout the world because they posed a very real opportunity for those normally ostracized to gain equal opportunity and status. In the interim, however, Plessy v. Ferguson represented post­ Reconstruction attitudes and treatment that would not end easily. With cases consolidated by mid-November 1952, counsel on both sides prepared for a final assault on segregation's judicial cornerstone.

We conclude that in the maintenance and operation of the schools there is no willful, intentional, or substantial discrimination in the matters referred to above between the colored and white schools. In fact, while plaintiffs' attorneys have not abandoned this contention, they did not give it great emphasis in their presentation before the court. They relied primarily upon the contention that segregation in and of itself without more violates their rights guaranteed by the Fourteenth Amendment.

This contention poses a question not free from difficulty. As a subordinate court in the federal judicial system, we seek the answer to this constitutional question in the decisions of the Supreme Court when it has spoken on the subject and do not substitute our own views for the declared law by the Supreme Court. The difficult question as always is to analyze the decisions

and seek to ascertain the trend as revealed by the later decisions1.

-· Circuit Judge Walter A. Huxman, 3 August 1951 excerpt from the court's majority opinion for the

Topeka case, Kansas District Court

10 liv er Brown, et. al. v. Board of Education, of Topeka, Shawnee County, Kansas, Civ. No. T-316, 98 F. Supp. 797, United States District Court, D. Kansas (3 August 1951) in Leon Friedman, ed., Argument: 1he Oral Argument Before the Supreme Court in Brown v. Board of Education of Topeka, 1952-1955 (New York: Chelsea House Publishers, 1969), 539-540.

CHAPTER FIVE

THE BROIVNDECISIONS, 1952-1955

Oral arguments for the five separate court actions comprising Oliver Brown, et. al. v. the Board of Education, Topeka, Kansas were scheduled to begin on December 9, 1952. Lawyers from the New York NAACP LDF office, like-minded colleagues from each of the states, and opponents representing the segregationist view gathered in Washington, D.C. for pre-trial preparations. Although the cases presented very contentious issues, the parties involved remained cordial and respectful throughout lengthy proceedings which extended over a period of two and a half years. Subsequent to the December 1952 arguments, justices requested that counsel, on both sides, submit answers to five constitutional questions regarding the original intent of key provisions of the Fourteenth Amendment. Chief Justice Fred Vinson's sudden death in 1953 further delayed proceedings, until the installation of the new chief justice, Earl Warren. Eisenhower's appointee changed the complexion of the Court, by casting a more liberal shadow over his peers, one most decidedly in favor of desegregation. The tone, therefore, was different during the second hearing, held in December 1953, and justices came to a consensus in the following spring. Warren spoke for the Court on May 17, 1954, striking down the "separate but equal" precedent established by Plessy and ruling that separate facilities were inherently unequal. He based the Court's per curiam opinion, subsequently dubbed Brown I, on the equal protection clause of the Fourteenth Amendment, which guarantees the right of equal treatment to all U.S. citizens regardless of race or ethnic background. Justices appended a separate decision for Bolling v. Sharpe because the suit dealt with action by the federal government, which fell under the due process clause of the Fifth Amendment. These findings did not lay the matter to rest, however, for the Court asked interested parties to address specific points regarding relief from segregation and potential impacts of such wide­ sweeping social change.

Counsel appeared for a third and final time in April 1955, for debate on the appropriate remedy for segregation in public education. In an attempt to put some authority behind its Brown I finding, the Court issued an implementation decree, later referred to as Brown II, ordering desegregation efforts to proceed with "all deliberate speed." Some states enacted racial integration plans during the course of the proceedings, but most forestalled social change by insisting that federal authorities held no power to dictate policy to local school systems. The old states' rights theory of interposition reared its ugly head. The Eisenhower administration watched as the political winds changed during this period. The president was initially reticent about getting involved in the issue, but felt that, whatever one's personal views on race, federal jurisdiction superseded local option. He supported the Court's decision and used federal troops to enforce it when deemed necessary, but many African Americans reserved judgement about his personal prejudices and went on with more important work. By the late 1950s and early 1960s, civil rights activists capitalized on the momentum of the school desegregation campaign by tackling segregation ordinances in all venues of American society.

After the dust had settled on the school desegregation cases, participants and observers, alike, wondered why Kansas, the "free state," had endorsed racial discrimination as a preferred social policy. Kansans, themselves, led the inquiry, possibly to assuage their guilt for engaging in such behavior. Some lamented that discrimination was the purview of the South, the old Confederacy, not of border states like Kansas and Delaware, and most certainly not of the federal government, as practiced in the nation's capital, Washington, D.C. But there it was, in each of these places, and in Boston, and Los Angeles, and in "anytown, U.S.A." In 1952, many communities practiced racial segregation and held African Americans in subordinate social positions. The school cases brought national attention to the dichotomy between democratic rhetoric and everyday life. Topeka, Kansas, provided a good example of "anytown,

U.S.A." and the state attorney general's office was put in the position of defending the practice of segregation in middle America. Some significant new players entered the game when the cases advanced to the final stages. John W. Davis, widely respected as an elder statesman, functioned as lead counsel for the group of litigators who asked the Court to uphold the practice of segregation. Thurgood Marshall rallied the team of LDF staff and private counsel who prepared to depose Plessy v. Ferguson. For three days in December 1952, the two sides faced off on the floor of the Supreme Court for a grueling evaluation of judicial rights for African American citizens of the United States.

Paul E. Wilson, a very young assistant attorney general, appeared on behalf of the state of Kansas. He had joined Harold Fatzer's office in December 1951, and began work on the school case in Spring 1952, pending receipt of certiorari from the Supreme Court. It seems that Brown v.

Board of Education garnered relatively little attention in Figure 4. 9

Topeka during the course of this year because political

Paul E. Wilson.

dynamics within the city's power structure changed. School board elections held in April 1951, actually prior to the District Court hearing, brought new blood into the administration and an easing of its staunch segregationist position. Topekans elected three new members who held more liberal views towards school integration. Support for Dr. Kenneth McFarland, superintendent, and Harrison Caldwell, administrator of black schools, dwindled because of contrasting perspectives, personality conflicts, and political difficulties. These two men had presented a stiff front against African American parents who supported integration and the administrators had threatened black teachers with dismissal if they supported the wrong side of the issue. McFarland submitted his resignation in April, due to allegations of financial impropriety, and left his post in August 1951, thereby removing quite a bit of animosity from the Topeka situation. The people of Topeka, by and large, lost the motivation to resist desegregation in the city's elementary schools. The new superintendent, Wendell Godwin, and the new board, therefore, determined that they would do nothing to hinder or resist the appeals process. They felt that the Brown v. Board litigation targeted a legal statute of Kansas, so response to the NAACP's motion for appeal should be directed by the state's attorney general. Harold Patzer saw it differently. He felt that while the Kansas law permitted segregation in cities with populations over 15,000, it did not require the practice. As Kansas attorney general, Patzer believed that responsibility for a legal defense of segregation lay with the Topeka Board of Education. 2

In the interim, neither party submitted a legal brief to the U.S. Supreme Court, although certiorari was granted and arguments were scheduled for December 1952. The Court stepped into the breach with an "Intermediate Supreme Court Order in Brown v. Board of Education," issued on November 24, 1952. In it, justices acknowledged the lack of movement by the parties involved, but stipulated that, Because of the national importance of the issue presented and because of its importance to the State of Kansas, we request that the State present its views at oral argument. If the State does not appear, we request the Attorney General to advise whether the States' default shall be construed as a concession of invalidity3.

The Court's "request" resolved the question of jurisdiction because the state would not abandon its position at this point. Four days later, Patzer and Wilson made arrangements to be in Washington to represent the state of Kansas in opening arguments on December 9. Paul Wilson was well-prepared to write the state's brief and, although a bit nervous, ready to open the seminal debate of his professional career. Patzer, however, wanted the Topeka school board to contribute a brief to the state's case and instructed them to do so. The board assigned the task to its attorney, Peter Caldwell, after engaging in a lengthy debate about the system's segregation policy. Members considered and rejected a resolution to end segregation in the city's elementary schools, settling instead on a statement which recognized the constitutionality of Kansas' statute, but which did not exactly endorse the practice of segregation, itself. Even though it held the winning hand at this point, Topeka administrators were backing away from discriminatory policies. A measure of embarrassment and integrity swept through the ranks as Wilson and Caldwell crafted a defense of Kansas law, rather than segregationist policy, per se. Comparable rationalizations also occurred in the other schools cases whereby the defendants justified segregationist practices in a variety of ways; namely, as accepted social practice, for the protection of both races, as best for the education of young children, for economic feasibility, and as constitutional by the Supreme Court's own collective hand. Racist sentiments may have permeated opinions behind these justifications, but pro­ segregationist attorneys tried to leave that component out of their legal briefs. They countered sociological evidence of segregation's harm by denying it. Counsel for the defendants downplayed any suggestion that segregationist policies inferred that African Americans were inferior to whites. Attorneys representing Virginia and South Carolina asserted that the fundamental issue concerned equalization, not segregation.4

By raising such questions, the complement of school cases provided an opportunity for one of the most vital discussions in this nation's history, held both by scholars in formal halls of learning and by the unschooled in the most casual of settings. Paul Wilson characterized the group of young lawyers, of both races, who became involved in this classic legal and political event. Participation in Brown v. Board highlighted the careers of Topekans Charles Bledsoe, John and Charles Scott; LDF counsel, Robert Carter, Jack Greenberg, Constance Baker Motley, and Spottswood Robinson; and private attorneys, James Nabrit, Jr., George E.C. Hays, William H. Hastie, and Louis Redding. The school cases launched Thurgood Marshall on a path of federal service, for he later served as solicitor general of the United States and Supreme Court justice. Counsel for the pro-segregationist defendants, led by John W. Davis, included an older mix of experienced jurists and ambitious politicians. Participants on both sides regarded Davis as the premier gentleman jurist. A native West Virginian, he had served in the House of Representatives, as solicitor general of the United States during the Wilson administration, as ambassador to Great Britain, had launched an unsuccessful campaign for the presidency in 1924, and spent the rest of his years in private law practice with the New York law firm of Davis, Polk and Wardwell. Patzer, and Wilson were joined by the attorneys general from Virginia, J. Lindsay Almond, and from Delaware, H. Albert Young and Joseph

D. Craven. Archibald G. Robinson, T. Justin Moore, S.E. Rogers, Robert McCormick Figg. Jr., and Milton Korman completed the appellee team. Counsel seeking either to uphold or overturn segregation worked somewhat independently on the specific cases which had brought them to the Supreme Court, while contributing to the team effort for victory in Brown v. Board of Education. Therefore, Thurgood Marshall functioned as lead counsel on the complement of cases, but served as primary counsel only in Briggs. Robert Carter pled the Topeka case, as counsel of record for the plaintiffs in Brown v. Board. Appendix I provides a comprehensive view of the attorneys of record for each of the five school cases and the schedule of arguments presented to the Court in 1952, 1953, and 1955.5

While the litigation provided a capstone to the NAACP's long campaign for desegregation, it provided an important, early benchmark in the distinguished careers of these young professionals. Each side prepared for oral arguments by conducting considerable research into the judicial record of precedents pertaining to segregation, the historical antecedents for the constitutional rights of due process and equal protection, evidence of original intent on the pan of authors of the Fourteenth Amendment, and on the part of authors of state laws which followed. As Topeka attorney Charles Scott remarked in a 1970 interview with James Duram,

We did our homework, but yet, I think it ought to be fair to say that there were [a] large body of personnel that assisted in the research and all aspects of this case. I'm referring to the social aspects as well as the legal aspects. You mentioned earlier about the historical data-we even had historians working on, digging up this stuff and going in to the legislative history. Now we did some work on that as well-we had the state library over here, our state capitol building, digging up the legislative history as to when our state first adopted the permissive statute permitting the cities of the first class to maintain separate schools in the cities of the first class. What the thinking of the legislators was at that time, as to what prompted them to enact such a statute and this type of thing.

For the larger effort, the NAACP put historians, legal scholars, sociologists, and psychologists to work on research and analysis of the litigation's key components; those being, historical events, the judicial record, and the sociological impact of institutional racism. Marshall and his cohorts held several scholarly conferences and seminars in 1952, 1953, and 1954 to explore as many avenues as possible. Three hundred professionals met in April 1952 for a three-day colloquium held at Howard University regarding the topic, "The Courts and Racial Integration in Education." Marshall and Carter also arranged smaller group meetings through this period in Chicago, New York, Washington, and elsewhere to exchange information with professionals in the field. These discussions with some of the nation's best scholars helped sharpen LDF arguments against segregation and enabled counsel to anticipate debate from the opposition and from the justices, themselves.'

NAACP counsel also asked experts to write supportive studies which elaborated on a particular topic, such as synopses of social science evidence of racism or historical narratives on race relations in the South. Kenneth Clark joined with Isidor Chein and Stuart W. Cook to craft a lengthy discourse on the psychology of racism, which Marshall appended to the NAACP brief, entitled "The Effects of Segregation and the Consequences of Desegregation: A Social Science Statement." Thirty-two social scientists signed the document, adding weight to its findings. Clark also published substantial portions of the NAACP study in his seminal work, Prejudice and Your Child (1955). Harry Ashmore, an Arkansas reporter, also researched and wrote a supplemental work, published as The Negro and The Schools (1954). Ashton's study also provided valuable information used in NAACP legal briefs and in the Court's Brown I determination, as well. Historians John Hope Franklin and C. Vann Woodward examined slavery and race relations during Reconstruction to provide credible information about the development of segregationist practices in American society. Publication of their now-classic works, From Slavery to Freedom (2d ed. 1956), The Militant South (1956), and The Strange Career of Jim Crow (1956), followed after the conclusion of the school cases. Marshall tapped his pool of scholars throughout the three-year Brown litigation, with excellent result. Preparation was critical at each stage in the long campaign to end segregation in public education.

Compared to other litigants, NAACP staff had the luxury of time during the autumn of 1952. They prepared for oral arguments to begin in October, as scheduled, so had ample time to review their material when the Court pushed the schedule back to add Davis, Gebhart, and Bolling on the docket. Counsel for defendants felt a bit more harried, but all arrived in Washington, D.C. in time to attend congenial, pre-trial meetings and to admit some to the bar of the U.S. Supreme Court. Paul E. Wilson provided a wonderful account of his introduction to the hallowed marble halls in his memoirs, A Time to Lose. He also described a "visit to the for the segregationist view also expected to win, and presented a strong, united front which drew upon fifty-seven years of constitutional precedent. While state counsel had confidence in the legal strength of their arguments, attorneys viewed changes in contemporary society with some trepidation.'

As 1952 came to a close, politicians, civil servants, and jurists in Washington, D.C. readied for a change in presidential administration, from Harry S Truman to Dwight D. Eisenhower, bringing for some a welcome end to thirty-two years of dominance by the Democratic Party. But, Roosevelt and Truman left a legacy which would outlast them, through designees who served on the U.S. Supreme Court. Five of the "nine old men" who served on the Court during the October 1952 Term received their appointments during Franklin Roosevelt's administration and Truman installed four others. While FDR's "court­ packing plan" of 1937 earned him no grace with sitting justices, he did succeed in replacing five jurists between 1937 and 1941. Hugo Black (Alabama), Stanley Reed (Kentucky), Felix Frankfurter (Massachusetts), William Douglas (Connecticut), and Robert Jackson (New York) represented the Roosevelt contingent. Constitutional scholars credit the Roosevelt Court with a record of "liberal nationalism" because of its support of many New Deal programs and labor reforms. Justices Black, Frankfurter, and Douglas contributed the most-decidedly liberal elements in the civil rights arena. Through several cases, justices of the Roosevelt Court embraced broader interpretations of the First and Fourteenth Amendments, which meant that they gave wider latitude to civil rights guarantees of free speech, press, assembly, and religion. Truman's appointments included Harold Burton (Ohio), the only Republican, along with Fred Vinson (Kentucky), Sherman Minton (Indiana), and Tom Clark (Texas). These men brought the Court back to a more moderate, centrist composition and dampened some of the liberality of the Roosevelt Court. Cold War fears of communism prompted the Truman Court to tighten First Amendment rights regarding speech and assembly. It was a divided group, however, and Vinson, as chief justice from 1946 to 1953, did little to unite them.10

Overall, the Vinson Court tendered a mixed record on civil rights. Several key cases chipped away at restrictive covenants applied to housing and public, interstate transportation, which impeded access for African Americans. Vinson agreed with the majority in a significant opinion which found such covenants within the purview of state powers, and thereby in violation of the Fourteenth Amendment. The Court also struck down judicial enforcement of such covenants in the District of Columbia, providing another good sign. It drew upon interstate commerce law to overturn segregation on buses traveling across state lines and to remove segregated dining cars from public trains. The NAACP also found significant success before these justices in Sipuel (1948), Sweatt (1950), and Mclaurin (1950), but those who opposed segregation feared that Vinson would, again, steer clear of direct confrontation with Plessy. In light of the Cold War, Vinson and his cohorts stiffened their views on civil liberties, particularly in cases concerning the rights of Socialists, Communist Party members, and political dissenters. These findings muddied the Court's full record on civil rights. But, counsel for both sides of the school desegregation issue studied this record and mulled over their chances with the nine justices, trying to determine which factors would sway their decisions. Personal and ideological divisions between the justices made matters worse because one had to play the odds when trying to predict future voting patterns. Richard Kluger summed up the situation, by saying,

From 1949, when Clark and Minton joined the Court, through the 1952 Term, the Vinson bloc of Reed, Burton, Clark, Minton, and the Chief voted together in non-unanimous cases nearly three­ quarters of the time. At the other end of the Court, Black and Douglas voted together in 61 percent of the non-unanimous cases. And oscillating between the two poles were Jackson and Frankfurter, who voted together in 69 percent of the non-unanimous cases.11

He, in fact, charged the Vinson Court as being one of the most fragmented judiciaries in U.S. history. Four members hailed from southern states which practiced segregation and five originated in northern or midwestern states which had discarded such practices. The whole picture of a Supreme Court racked by sectional tensions, personality conflicts, ideological differences, and dueling egos made the prospect of oral argument ever more daunting. It was this distinguished panel which would ponder the constitutionality of racial segregation--this Court which Dwight Eisenhower would "inherit" in January 1953.12

Opposing counsel and esteemed jurists came together in a crowded courtroom on Tuesday afternoon, December 9, 1952 for oral arguments in the Brown v. Board of Education school desegregation case. At precisely 1:35 p.m., Chief Justice Vinson called "Case No. 8, Oliver Brown and Others versus the Board of Education of Topeka, Shawnee County, Kansas." Opening arguments fell to Robert Carter, as counsel for appellants in the Kansas case. He gave a brief review of the litigation before luncheon recess at 2:00 p.m. When Court reconvened one half hour later, justices closely questioned Carter about his contention that segregation, per se, was unequal because it had a detrimental impact on African American students. Felix Frankfurter kept Carter on the defensive by citing examples from legal precedent and history, but Carter countered by saying the equal protection clause offered safeguards against all discrimination based on race. With that, Carter reserved his remaining time and Paul E. Wilson stepped into the arena. After reviewing pertinent Kansas statutes, he took up the psychological ramifications of segregation. Wilson kept to the law and emphasized the District Court finding of parity between Topeka's black and white schools. He kept the focus on specifics, so as to limit arguments ranging to the practice of segregation, in general. With further questions from the justices and rebuttal from Carter, oral arguments for the Kansas case came to a close at 3:15 p.m.13

The "big guns" appeared next, when Vinson called "Case No. 101, Harry Briggs Jr., et al. against Roger W. Elliott, chairman, J.D. Carson, et. al., member of Board of Trustees of School District No. 22, Clarendon County, South Carolina, et. al." Thurgood Marshall carefully laid out the case for the appellants. He reviewed all the particulars, but spent most of his time on expert sociological testimony presented before the lower court by Kenneth Clark and others. Marshall argued, therefore, that the legality of segregation should be overturned and the matter of school policy should fall to individual states to sort out. This caught Frankfurter's attention and a discussion of gerrymandering ensued. NAACP counsel took the position that if school lines were drawn along racial lines, then discrimination would result, but not if the lines merely delineated district boundaries and nothing else. Marshall, quite naively as it turned out, claimed that, "If the lines are drawn on a natural basis, without regard to race or color, then I think that nobody would have any complaint."14 In this scenario, the NAACP position put the onus on legislatures and federal courts to implement, regulate, and check the policy of equal access. John W. Davis then rose for the appellees. He relied on history as his guide and reaffirmed prior applications of the Fourteenth Amendment. Davis also reviewed the recent progress in South Carolina, stemming from litigation by the NAACP and the resultant District Court order to bring black facilities and teacher salaries up to par. Accomplishments included the construction and repair of black schools, the equalization of teacher salaries, the purchase of new equipment, and the improvement of curricula. As indicated earlier, administrators and politicians in the "Palmetto State" believed that equalization would make the problem go away.

Court adjourned promptly at 4:30 p.m. and Davis resumed his presentation just after noon on December 10. Through exchanges with Justice Frankfurter, Davis concluded that, although conditions and technologies change over time, Congress did not intend for the equal protection clause to prevent racial separation. Separateness, in his mind, did not constitute a form of discrimination. In rebuttal, Marshall redirected the discussion to the heart of the matter, specifically to the fact that law and social policy excluded African Americans from mainstream society for no reason other than race. He cut to the quick of the sociological debate, in sharp contrast to Davis' replay of history. Wilson later recalled, "In the Davis involvement I sensed an element of poignancy--one of the century's greatest advocates employing his wit and eloquence to support a cause that had already been lost, not to Thurgood Marshall and his associates, but to history and the maturing American social conscience.'1 15 No one yet knew how the justices would view the matter, in a nostalgic context of past practice for its own sake, or in a more modern context of progressive social justice.16

Spottswood Robinson followed the Briggs presentation with arguments in "Case No. 191, Davis, et. al., against County School Board of Prince Edward County, Virginia, et. al." The hearing began at 1:15 p.m. on Wednesday, December 10, and concluded two hours later. Robinson labored through details of the Davis case and called for an end to school assignment based on race. He requested that the Court order Prince Edward County to admit African American students immediately to the white, Farmville High School on the basis of due process and equal protection clauses in the U.S. Constitution. T. Justin Moore served as counsel for the appellees. He outlined his clients' attempts to upgrade the black public schools within Prince Edward County and the state's broader program to equalize education across the board. Moore contended that segregationist policies were not prejudicial and had not harmed Virginia's youth. He claimed that segregation functioned as a fundamental, accepted, social institution which sprang from the culture of the "Old Dominion." Pro-segregationists believed it to be a lynchpin of their world and if removed, would lead to fragmentation and possible collapse. Lindsay Almond, Virginia's attorney general, also presented arguments on behalf of Prince Edward County and reaffirmed Moore's position. He spent most of his time on a very selective interpretation of Virginia history. Almond ended his monologue, however, by saying that a desegregation order would "destroy" the state's school system because tax revenues and public funds would dry up. His comments left some observers, and perhaps the Court, itself, with a veiled threat if the justices decided to overturn segregation. During rebuttal, Robinson engaged Justices Jackson, Douglas, and Vinson in a discussion about congressional authority over Fourteenth Amendment protections. Basically, did Congress have to enact legislation in order to implement the Fourteenth Amendment? Could the Supreme Court act upon Fourteenth Amendment issues without law to review or overturn? Robinson argued that because the Constitution, itself, was law, Congress did not have to pass enabling legislation to implement equal protection guarantees. The Court, indeed, had the authority to review Fourteenth Al)1endment issues because the amendment, itself, amounted to legislation. It was a worthy finale for one of Charles Hamilton Houston's most able scholars. 17

Bolling v. Sharpe, the direct offspring of Houston's own work, came next before the Court. George E.C. Hayes began the presentation for the African American petitioners in "Number 413, Bolling, et. al., versus C. Melvin Sharpe, and others," late in the day on that Wednesday afternoon. He adhered to Nabrit's "all-or-nothing" strategy by making a direct attack on the legality of segregation. Hayes claimed that practices of racial separation were unconstitutional because Congress had never specifically required it through legislation. Justices pointed out that Congress obviously accepted the policy because it funded separate schools in the District of Columbia. The Bolling case relied on protections granted in the due process clause of the Fifth Amendment and Hayes explained that these should supersede any discriminatory legislation or policy. James Nabrit, Jr. picked up this same argument during his presentation, which extended into the next morning's session, December 11. Nabrit, however, grounded the legal arguments in a review of U.S. legal history and the record of segregation in Washington, D.C. He used the Bill of Rights and Civil War amendments the authority of constitutional protection over Congressional legislation. The Supreme Court's job, therefore, lay in checking unconstitutional laws which restricted the rights of U.S. citizens. Milton Korman, speaking on behalf of the District board of education, argued that Congress clearly intended separate schools for the capital city. He recited a litany of statutes which showed intent to separate the races. Korman seemed credible until he recited a passage from the Dred Scott v. Sandford (1857) finding, a most notorious Supreme Court opinion which virtually denied the very humanity of African Americans. The precedent was not a good choice. Korman used it to infer that the justices should resist the tide of social change, as their predecessors did, by reaffirming segregation, but the strategy backfired. Nabrit responded with a stirring and eloquent rebuttal. James Nabrit's words captured the essence of the long desegregation campaign. He concluded by saying,

The basic question here is one of liberty, and under liberty, under the due process clause, you cannot deal with it as you would deal with equal protection of the laws, because there you deal with it as a quantum of treatment, substantially equal.

You either have liberty or you do not. When liberty is interfered with by the state, it has to be justified, and you cannot justify it by saying that we only took a little liberty. You justify it by the reasonableness of the taking.

We submit that in this case, in the heart of the nation's capital, in the capital of democracy, in the capital of the free world, there is no place for a segregated school system. This country cannot afford it, and the Constitution does not permit it, and the statutes of Congress do not authorize it.18

With that, oral argument in Bolling v. Sharpe came to an end.19

The time had come for the fifth, and final, school case, "No. 448, Francis B. Gebhart, and others, versus Ethel Louise Belton, and others." Roles were reversed in this suit because Chancellor Seitz had found in favor of the African American plaintiffs. Therefore, Delaware's attorney general, H. Albert Young, opened arguments at 1:27 p.m. on Thursday, December

11. Young reviewed the details of the case and protested the lower court's order that Claymont and Hockessin administrators admit African Americans to white public schools. Jack Greenberg recalls that Young faced a difficult task because he asked the Court to reverse his own state supreme court, which had confirmed the chancellor's finding. Furthermore, Young attacked the method of relief, which was determined by individual judges, rather than the broader issue of equalization. Louis Redding rose first for the defendants. He attached the Delaware suit to the other four school cases, by saying that all dealt with the rights of the individual against capricious government action. Redding stressed that even though the plaintiffs had won in lower court, the state of Delaware threatened to eject the African American students from formerly white schools when the dual systems were equalized. Temporary relief in the form of separate but equal was not acceptable, therefore, the Court should order blanket desegregation. Jack Greenberg, at the ripe old age of 28, finished oral arguments with a review of sociological evidence. Chancery Court had accepted expert testimony which showed segregation's harm. The Supreme Court, then, should affirm the chancellor's order by allowing the plaintiffs to remain in integrated facilities.20

With that, oral arguments in the school desegregation cases came to an end at 3:50 p.m. on Thursday, December 11, 1952. Counsel and participants on both sides returned home to resume life and other duties while waiting for the Court's opinion. Although the decision would not come until early summer, justices met on the following Saturday, December 13, to review the cases and begin the deliberation process. Although they took no formal vote, the justices realized that they were divided on the issue. Preliminary sentiments divided along predictable lines, with Vinson, Reed, and Clark opposing any reversal of Plessy and Black, Frankfurter, Douglas, Burton, and Minton leaning towards a constitutional end to segregation. Justice Jackson seemed to dither on the question, finding justifiable reasons to vote to retain the status quo or to strike it down. Justices worried less about the constitutional issue and more about the rippling social effects of desegregation. Most favored integration of Washington, D.C.'s schools because they fell under federal control, but action affecting the states raised serious concerns. Threats by Governor James Byrnes and Attorney General Lindsay Almond about closing public schools in South Carolina and Virginia made a definite impact on deliberations. Felix Frankfurter wanted the Court to have the cases reargued in March 1953, with counsel addressing the original intent of the Fourteenth Amendment and various means of implementing desegregation. Delay and non-action, however, seemed a more plausible strategy at this point, in order to give the Court more time to consider its options and to calm society's fears of change. For the moment, the crux of the matter seemed to lie not in doing what was right, but in doing what was politically expedient in 19522.1

B. The politics of civil rights

While the U.S. Supreme Court acts as final arbiter in judicial matters and provides an independent check on the other branches of the federal government, it does not function in a vacuum. These nine people belong to the larger, American society and are not immune to political issues, social tensions, regional differences, and personal foibles. These factors, more than anything, seem to have tempered the Court's decision in December 1952 to delay a final opinion in the Brown v. Board of Education school cases. Justices put the matter on hold to allow Southern tempers to cool, but found themselves adjusting to changes in their own world during that fateful year. Dwight D. Eisenhower entered the presidency on January 20, signifying a new era of Republican leadership, domestic peace, and Cold War politics, Ike had definite ideas about the function of the presidency and the relationship between federal and state governments. His rather conservative opinions account for Eisenhower's reputation as a staunch moderate, who sometimes acted as stable, reassuring leader, yet at other times seemed to be backward-looking ideologue.

Harry Truman, by comparison, seemed to have had more of the old "rough and ready" spirit when facing new situations. His administration initiated small, but significant, gains for African Americans in the civil rights arena during the 1940s. Walter White, executive secretary of the NAACP, drew Truman's attention to the plight of African Americans in the South and earned his support of an anti-lynching bill. White also asked Truman to call a special session of Congress to address race relations in the United States. Truman bypassed the fractious Congress altogether and created the President's Committee on Civil Rights by executive order to study race relations. The committee's report, To Secure 7hese Rights (1947), became a significant document for American civil rights because it outlined key proposals for federal action; calling for, 1) the elimination of segregation in all public venues, schools, and transportation systems; 2) legislation to outlaw discrimination based on race, creed, or national origin; 3) the establishment of fair health practices; and 4) an end to restrictive covenants. Members also asked that the government establish a permanent Fair Employment Practices Commission, a Civil Rights Commission, and a Civil Rights Division within the Justice Department. The administration sent various legislative packages to Congress, to enact some of the committee's proposals as part of Truman's Fair Deal program, with little success. The president, in typical brash manner, worked around Congress by issuing executive orders. In 1948, he called for the integration of the armed forces in Executive Order No. 8981, which also established the Committee on Equality of Treatment and Opportunity in the Armed Services. Action in Korea (1950-1953) expedited matters and facilitated a smooth transition from the old status quo. On the domestic front, Truman directed the creation of the Fair Employment Board to function within the Civil Service Commission through Executive Order 9980. Its mandate authorized members to ferret out discriminatory practices in federal agencies. Other recommendations made in To Secure 7hese Rights were implemented slowly, but surely, over the next twenty-one years.22

Truman's administration made greater inroads through the courts, which in the long run contributed to the strength of the school cases. The president instructed his attorney general and solicitor general to submit legal briefs, as amici curiae or "friends of the court," in important civil rights cases. These documents routinely are prepared by non-involved, but interested parties in support or opposition to legal positions expressed in cases heard by the

U.S. Supreme Court. Richard Kluger claimed that neither of the two men who filled these slots felt great compassion for African Americans, but carried out their duties as loyal political appointees. Truman tapped Tom Clark to serve as U.S. Attorney General and, in this role, Clark prepared amicus briefs calling for an end to restricting housing covenants and to segregation, itself. Later, when deliberating the Brown decisions as a U.S. Supreme Court justice, Clark seemed to be much less supportive of these positions. Philip Perlman, U.S. Solicitor General, also filed amicus briefs, many of which were written by Philip Elman, his assistant. Perlman took a personal stance in the school cases, however, against the mixing of the races in public schools and refused to authorize a supportive brief. Elman prepared an outstanding brief on his own initiative, with the blessing of the new attorney general, James

P. McGranery, but was asked not to file it until after the 1952 election. Elman's brief stated that legal segregation was unconstitutional in the United States. More importantly, it suggested a possible strategy for Court action, whereby justices could strike down Plessy, but implement desegregation on a slow, gradual scale. Philip Elman had clerked for Justice Frankfurter at one time and, perhaps through that experience, had gained a particularly insightful perspective on the Court's mood. In the role of assistant solicitor general, Elman represented the Truman administration with a strong stance on the school desegregation cases. This position, combined with those opposing restrictive covenants, provide evidence that Truman's administration adopted an affirmative stand on civil rights during his presidency2.3

Despite many restrictions, political and economic power increased overall for African Americans during the late 1940s and 1950s. As the old saying goes, "a rising tide lifts all boats," and the post-war economic boom benefited blacks and whites. After World War II, average incomes of African Americans rose and more voted in national elections. Financial stability and confident post-war attitudes of former servicemen and defense industry workers contributed to these trends. Black migration to northern states, where there were fewer restrictions on franchisement, led to broader participation in the electoral process. Adept politicians realized that African Americans could form a strong voting block which could either support them or vote for their opponents. Democratic support for African American interests certainly garnered votes in November 1952, just as it also brought the wrath of Southern conservatives who formed the core of the upstart Dixiecrats. Eisenhower easily defeated Adlai Stevenson and assumed the presidency in January 1953. Many factors contributed to the change in the White House, including Harry Truman's stand for expanding civil rights for African American citizens. Relative prosperity increased through Ike's term and Republican domination of the White House and both houses of Congress brought hopes of greater domestic harmony. Military might and Cold War tensions put the U.S. in the world spotlight throughout this period. Its brilliance showed a number of positive aspects of American life, but it also exposed some negative ones like discrimination and racial intolerance.

It was now up to Eisenhower to move beyond the rhetoric to flesh out what life in this democracy really meant.

As a man who previously had avoided political entanglements, Ike presented an enigma to the Washington power brokers in 1953. He seemed to act as a foil for his supporters because he had no political track record and so could represent whatever they wanted. The affable Ike, a Kansan, carried four southern states in the election. These voters wanted Eisenhower to reduce the administration's involvement in civil rights issues. The Justice Department now came under the direction of Attorney

General Herbert Brownell. William P. Rogers and J. Lee

Rankin served as assistant attorneys general. Simon Sobeloff became the new solicitor general, with Robert Stern and Philip Elman assisting. These men would figure prominently in

Figure 53. A charming and affable President Eisenhower.

future Brown proceedings because they would present the administration's position through amicus briefs. Eisenhower, members of his cabinet, and White House staff believed that the administration should stay out of the school desegregation issue. A position either for or against portended serious political ramifications. Ike believed that each branch served a specific, separate function in the federal system of government, meaning that the executive branch should not influence the judiciary. Furthermore, he believed that the court system should avoid social issues because those matters were beyond its scope. They were best left for states and local communities to work out through reform activity or legislation. Eisenhower believed in boundaries; that is, between private citizen and the role of the government, between state and federal authority, and between the three branches of government.

Dwight Eisenhower was harder to pin down on the issue of segregation, itself. He grew up in a segregated society and enjoyed the comforts provided by African American staff and personal valets for most of his military career. This lifestyle did not change once he entered the White House, but perhaps his perceptions of African Americans did. He appointed an African American to his executive staff, E. Frederic Morrow, the first to work in the White House in an administrative role. Morrow functioned as the administrative officer of a Special Projects Group, which dealt with race relations. He fielded correspondence about the president's position on desegregation and civil rights issues, gave speeches, and maintained contact with interest groups and black leaders. In an oral interview given in 1977, Frederic Morrow explained that while he dealt primarily with African American concerns, "However, the administration was very careful to give me an across-the-board assignment, to make sure that there was never any suspicion that I was merely there as some king of window dressing to advise the President on what to do about black affairs."26 Morrow tried to convince the Eisenhower administration and the Republican Party to embrace African Americans as ordinary citizens, not keep them at arms length as a separate group. Things did not progress the way he wanted, however, and Morrow believed that contemporary attitudes and Ike's close relationships with Southerners interfered with true racial advancement. One significant friend, Governor James Byrnes, had Ike's ear and used his influence to discuss all of the horrors which surely would rain down on the South if full integration became a reality."

Eisenhower viewed segregation in very subjective and conditional ways. The president was not exactly opposed to desegregation, he merely believed that such drastic social change should occur slowly and should correspond to community standards. In theory, he felt that government could not legislate social attitudes. He accepted desegregation in the military, after openly opposing it at first, and understood the benefits of integrated professional and graduate schools. Eisenhower seemed to agree with those who feared mixing young children, but felt that adults could handle close contact. Washington, D.C., however, presented a separate case because conditions in the capital reflected federal policy. In his first state of the union address, the president clearly came out against segregation in Washington. "I propose to use whatever authority exists in the office of the President to end segregation in the District of Columbia," he promised, "including the Federal Government, and any segregation in the Armed Forces."28 Desegregation of federal offices, government contractors, schools on military posts, and in the branches of the military, all initiated during Truman's administration, proceeded during the 1950s with little problem. Action regarding school desegregation in Washington, D.C., however, was tied specifically to the Bolling v. Sharpe case, now pending before the Supreme Court. Eisenhower's attitude about integration in the District again points to the rather subjective nature of his views. He made a distinction between policy for schools in Washington and those operated by the various states, expressly rejecting federal involvement in education beyond the District's boundaries. Desegregation seemed appropriate for Washington because those schools operated according to federal policy, but Ike generally sided with the more conservative view that children of separate races should not be brought together in public schools. This situation reflects three primary strands of thought in Eisenhower's mind: firstly, that the federal government should not continue segregationist policies; secondly, that state and federal actions should remain separate; and thirdly, that community standards and attitudes bear significant weight in social matt ers.29

The administration waited through the spring of 1953 for the Supreme Court to announce its decision in the five school cases. Other cases came and went during this time, but the justices sorted out their concerns through private notes and deliberations. Felix Frankfurter set one of his clerks, Alexander Bickel, to work on a research project which would trace state use of the Fourteenth Amendment immediately after the Civil War. Such information could provide clues on the intent of the constitutional statute and reveal potential loopholes that might be used to outlaw segregation. Frankfurter realized that his colleagues were divided in their resolution of Brown v. Board of Education and believed that a delay for reargument of key issues would provide time for the justices to reach a consensus. Process, and unanimity, seemed as important as outcome at this point. In late May, Frankfurter proposed that the Court ask counsel and the U.S. Attorney General to answer five questions about the original intent of the Fourteenth Amendment. Bickel's research paid off because it formed the basis for the inquiry. He and Frankfurter drafted the questions, which the Court accepted with little revision; as follows,

What evidence is there that the Congress which submitted and the state legislatures and conventions which ratified the Fourteenth Amendment contemplated or did not contemplate, understood or did not understand, that it would abolish segregation in public schools?

If neither the Congress in submitting nor the states in ratifying the Fourteenth Amendment understood that compliance with it would require the immediate abolition of segregation in public schools, was it nevertheless the understanding of the framers of the amendment {a) chat future Congresses might in the exercise of their power under Sec. S of the amendment, abolish segregation, or (b) that it would be within the judicial power, in light of future conditions, to construe the amendment as abolishing such segregation of its own force?

On the assumption that the answers to questions 2(a) and (b) do not dispose of the issue, is it

within the judicial power, in construing the amendment, to abolish segregation in public schools?

Assuming it is decided that segregation in public schools violates the Fourteenth Amendment,

would a decree necessarily follow providing that, within the limits set by normal geographic school districting, Negro children should forthwith be admitted to schools of their choice, or

may this Court, in the exercise of its equity powers, permit an effective gradual adjustment to be brought about from existing segregated systems to a system not based on color distinctions?

On the assumption on which questions 4(a) and (b) are based, and assuming further that this Court will exercise its equity powers to the end described in question 4(6),

should this Court formulate detailed decrees in these cases;

if so, what specific issues should the decrees reach;

should this Court appoint a special master to hear evidence with a view to recommending specific terms for such decrees;

{d) should this Court remand to the courts of first instance with directions to frame decrees in these cases, and if so, what general directions should the decrees of this Court include and what procedures should the courts of first instance follow in arriving at the specific terms of more detailed decrees?30

Vinson instructed counsel for each school case to address these issues through an "Intermediate order of the Supreme Court" issued on June 8, 1953. He ordered the Court clerk to restore the five cases to the docket and scheduled rearguments for October 12, 1953. After waiting through the spring for some final resolution, counsel now faced preparations for a second round of arguments before the High Court. This time, the chief justice specifically invited the attorney general to file a new brief and participate in oral arguments, leaving Eisenhower's staff in a quandary over whether to get involved in the growing debate over school desegregation or to leave the politically-sensitive issue alone. 31

As attorney general, Herbert Brownell had to determine what position the Justice Department would take, if, indeed, it did submit a brief in response to the five questions for reargument. He realized that participation in the Brown hearing would put the administration in a tough situation because it could bind the administration to a publicly-stated opinion. Eisenhower also felt uncomfortable with the Court's request because he believed it invited the executive branch to step over the line into the judiciary's territory. Brownell convinced Ike that a legal brief from the Justice Department would not compromise the integrity of either party and, besides, the administration could not rightly refuse the Court's "request." Brownell won Eisenhower over to his position, but faced further opposition from members of his own staff. He moved the case from the solicitor general's office to his own and set his staff to work by late July. Brownell, Lee Rankin, and Philip Elman believed that the department should take a strong stand against segregation. William Rogers expressed reservations, but followed the attorney general's lead in support of the brief. Given the scope of the Court's assignment, Brownell asked the justices to delay arguments and they agreed to move the Brown hearing back two months, to December 7, 1953. Most of the work fell to Rankin and Elman as they prepared a supplemental brief, attached to Elman's 1952 document as an addendum which responded to the Fourteenth Amendment inquiry. The government's brief claimed that nothing in the historical record gave clear direction on the question at hand, but said that the Fourteenth Amendment espoused the principle of equality for all, regardless of race. The 1953 brief came down squarely on the side of desegregation, but asked that the Court require a transitional period to allow states to gradually integrate the public schools. Eisenhower quickly reassured his Southern friends that the administration would move cautiously if desegregation, indeed, became a reality. 32

Counsel in each case also benefitted from the delay because preparation for reargument involved intensive research into action by the Thirty-ninth Congress during the Civil War era, as well as reactions by the, then thirty-seven, state legislatures upon the Fourteenth Amendment's ratification in 1868. The NAACP called on its supporters to provide documentary evidence of the Radical Republicans' more benevolent actions; including, the Civil Rights Act of 1866, the Freedmen's Bureau Bill, the "Civil War Amendments," and congressional plans for Reconstruction. As before, the LDF enlisted scholars and academics in their cause to ferret out the true meaning of these events. Alfred H. Kelly, a renowned constitutional historian, made significant contributions to the briefs submitted for reargument. Marshall, co-counsel, and legal staff brought researchers and attorneys together at regional conferences where they could discuss their findings and present cogent information in response to the Court's queries. All in all, they found that the post-war era offered a mixed assortment of civil rights advocates who endeavored to give African Americans an equal chance and strict constructionists who thought social matters were better left out of the legislative arena. While there was evidence that framers of the Civil Rights Act and the Fourteenth Amendment believed they incorporated equal standing in these laws, direct control over school administration and social policy lay in the reserve powers of the states, and, needless to say, Southern states had no intention of granting equal status to African Americans. Original intent, then, varied among those involved in drafting and ratifying the Fourteenth Amendment, meaning that divergent motives of Republicans, Democrats, Northerners, Southerners, congressmen, and state legislators all came into play. "This foray into original intent," Jack Greenberg divined, "posed seemingly unanswerable questions."33

The pro-segregation interpretation of these historical events hinged on the maintenance of separate schools in Washington, D.C., by the same Congress which approved the Fourteenth Amendment. In this view, segregation was not barred by either the Civil Rights Act of 1866 or the Fourteenth Amendment. Counsel sorted through the historical record in systematic fashion. They divided research tasks and shared results, but submitted separate briefs for each school case. The attorneys general of segregated states also joined forces to scour the legislative record for evidence that racial separation, indeed, was acceptable to the framers of the statute. Lindsay Almond, of Virginia, sent a detailed questionnaire to his counterpart in each of the thirty-seven states which in 1868 comprised the United States. At Almond's request, Paul Wilson, of the Kansas Attorney General's Office, routed a similar survey to school superintendents in twelve cities of the "first class," asking for specific information about the establishment of their schools systems, administrative policy, and the use of segregation. The response from Topeka showed that a total of 836 African American children, divided among twenty-eight teachers, attended the city's four black schools during the 1953-1954 academic year. John Davis, Moore, and Almond fit the statistical data into the broad strategy for the segregationist position. They relied primarily on the historical precedent of the Southern way of life, where discrimination and racial separation prevailed. When faced with the Court's question on implementation, counsel retreated to the old, reliable states' rights defense against federal incursion. They asked the Court's indulgence to handle the process at their own pace.34

Even as preparations continued, changing political winds in the Kansas capital denoted that the board of education had second thoughts about pursuing the Brown litigation in order to maintain segregation. As early as March 1953, Superintendent Wendell Godwin sent letters to six African American teachers who lacked continuing contracts, but were employed on a yearly basis. He informed them that a Supreme Court order to desegregate Topeka's schools would result in a loss of jobs because "our Board will proceed on the assumption that the majority of people in Topeka will not want to employ negro teachers next year for white children."35 Any forthcoming plans for the integration of the elementary schools, therefore, would not include the black faculty. A school board election in April ejected the last remaining members who, in 1950, had refused McKinley Burnett's pleas for full integration. The new members now broached the subject, in light of the continuing litigation and perceptions that segregationist policies were easing throughout the country. If they integrated the elementary schools, the case could be declared moot and removed from the Court docket. While Wilson waited for the board's decision, Justin Moore and John W. Davis encouraged him to continue preparations for reargument, in hopes that the Court would not find the Kansas case to be moot. The board decided that it would not contribute to the state's legal brief, nor would they withdraw the case, but instead would submit a separate brief which answered the Court's quest10ns regarding implementation, in the event that segregation were overturned. Surprisingly, Topeka jumped ahead of the Court and adopted a resolution to change school policy. It read, "Be it resolved that it is the policy of the Topeka Board of Education to terminate the maintenance of segregation in the elementary grades as rapidly as is practicable."36

The 1953-1954 school term apparently seemed a "practicable" time, for administrators slowly began to integrate two elementary schools, Randolph and Southwest.

The action affected only fifteen children, none participating in the Brown case. Most African American children returned to segregated schools in the autumn and life went on as before. Wilson, therefore, forged ahead with his brief for reargument because segregation still existed in Kansas and the attorney general wanted the question settled once and for all.37

As to be expected, counsel representing both sides in the school cases felt that their findings contained evidence which confirmed their particular position. Only the Supreme Court could determine which side held the correct interpretation. The justices also had reviewed the record of history and precedent in preparation for the new October 1953 term. Bickel finished his report on the origins of the Fourteenth Amendment in August, with the basic conclusion that while specific references to civil rights had been stricken from the amendment, Congress hoped that future legislation would add definition to some of the vague language. His research seemed to suggest that the Supreme Court could justify a decision either for or against segregation, as it saw fit. Justice Frankfurter was delighted with its scope, had it printed as a formal memorandum, and sent a copy to his colleagues. All seemed on schedule for the December reargument when, on September 8, 1953, Chief Justice Vinson suffered a massive heart attack and died. According to form, all of Washington publicly mourned his loss, but few grieved deeply over his passing. The conservative pall which Fred Vinson had cast over the Court was now lifted. In its place, blame for the mistrust and fragmentation among the justices heaped silently on his memory. Felix Frankfurter, sources reveal, held a rather optimistic view of the change which Vinson's death would bring to the Court. At last, the justice hoped, a new era of consensus could begin, but not even he could anticipate the revolution which was about to occur.38

C. Earl Warren fosters consensus through Brown I

Attention now focused on Eisenhower and his choice for a replacement. The president received unsolicited advice from many quarters, but sought more expert guidance from his brother, Milton, and Attorney General Brownell. Milton Eisenhower functioned as an unofficial advisor to the president throughout his administration, and on September 11, 1953, Ike asked for Milton's input on two political appointments, one to the Supreme Court and one to the Department of Labor. He wrote,

As far as the Supreme Court vacancy is concerned, my problem is to get a man {a) of known and recognized integrity, (b) of wide experience in government, (c) of competence in the law, (d) of national stature in reputation so as to be useful in my effort to restore the Court to the high position of prestige that it once enjoyed.3

EARL WARREN,

Ike wanted to expunge the tenets of the New Deal and Fair Deal programs which endured through the Roosevelt and Truman appointees. He wanted a chief justice with broad, practical experience, impeccable personal integrity, common sense, and middle-of-the-road political views. Ike found these qualities in Earl Warren, three-term governor of California. Warren had proven himself to be an efficient administrator and good manager who could get results. Although many questioned Eisenhower's quick decision, Warren took his place on the bench by the beginning of the October 1953 term and made the Court his own.

Earl Warren, the son of a Norwegian immigrant, earned his law degree at the University of California at Berkeley and, after World War I, became assistant district attorney for Alameda County. His success led him to higher office in 1938, as attorney general of California. Warren became nationally famous as an effective prosecutor, who took a tough stance against crime, but had a humanitarian's heart. He tumbled from the pedestal during World War II, when he advocated the confinement of Japanese-Americans because he felt they posed a threat to internal security. By 1943, Earl Warren had settled into the governor's mansion in Sacramento. As governor, he streamlined state agencies and implemented a rather liberal social agenda. Warren survived the Japanese internment episode and became a major player in the Republican Party on a national scale. Thomas E. Dewey tapped the governor to be his vice-presidential candidate on the 1948 Republican ticket. After the narrow defeat by Harry Truman and Alben Barkley, Warren returned to California, but remained in the national limelight. He met Eisenhower at the 1952 Republican convention and competed with him for the opportunity to run for the presidency. General Eisenhower carried the convention, however, and Warren graciously delivered California's delegates to seal the nomination. Some claim that, in return, Eisenhower guaranteed Warren a place on the Supreme Court, but no evidence indicates that the president perceived the appointment merely as political pay-back. He defended the choice in an October 1, 1953 letter to Milton Eisenhower, in which Ike rails against complaints that Warren had no judicial experience. Ike explained,

I believe that we need statesmanship on the Supreme Court. Statesmanship is developed in the hard knocks of a general experience, private and public. Naturally, a man occupying the post must be competent in the law--and Warren has had seventeen years of practice in public law, during which his record was one of remarkable accomplishment and success, to say nothing of dedication. He has been very definitely a liberal conservative; he represents the kind of political, economic, and social thinking that I believe we need on the Supreme Court. Finally, he has a national name for integrity, uprightness, and courage that, again, I believe we need on the Court.40

One wonders if Eisenhower interpreted "liberal-conservative" to mean moderate because he later expressed disappointment over some of the more progressive decisions that came from the Warren Court. He seemed to have no reservations in 1953, however, for Ike hustled the new chief to Washington post haste and instated Warren during a congressional recess prior to his Senate confirmation. Earl Warren uttered the oath of office at noon on Monday, October 4, and a few moments later took his seat at the center of the bench, ready to begin the 1953 term. 41

The new chief justice raised the ire of Southerners who wanted to maintain a segregated society. Governor James Byrnes, Lindsay Almond, and Justin Moore felt Ike's choice portended hard times ahead. They were convinced that the Eisenhower administration meant to destroy segregation, particularly when Brownell released the government's brief which declared the practice unconstitutional. Paul Wilson, on the other hand, believed that Warren's long career in state government meant that he would be favorable to states' rights arguments. NAACP members and supporters dared not embrace too much optimism, but hoped the Southerners were right. The parties met for the second showdown after noon on Monday, December 7, 1953. This time, the Court combined rearguments in the South Carolina and Virginia cases, so at 1:05 p.m., Spottswood Robinson began speaking for the plaintiffs in Case No. 2, Briggs v. Elliott. Eleven hours of debate continued into the next day. Robinson and Marshall, when debating Davis v. County School Board of Prince Edward County, maintained that the framers of the Fourteenth Amendment intended to ban segregation because it smacked of social restriction based solely on race. After the Civil War, members of the Thirty-Ninth Congress sought to rid this nation of the vestiges of slavery, including segregation and black codes which communities imposed to control and subjugate African Americans. Marshall called upon the guarantees of due process and equal protection as justification for declaring segregation unconstitutional. The doctrine of "separate but equal" was fundamentally flawed because, as he put it, "it assumes that two things can be equal." The Court had concocted a legal fiction in its Plessy ruling, which allowed state and local governments to implement statutes on the order of black codes, which the Thirty-Ninth Congress had specifically rejected.42

John W. Davis, at eighty years of age, summarized the segregationist position in response to the Court's five questions. He and colleagues Justin Moore and Lindsay Almond, who spoke on behalf of Virginia in the Davis case, believed that Congress acknowledged and accepted race-specific practices in 1868. They carefully reviewed the ratification process, data compiled from Almond's surveys, recognized that inequitable conditions had prevailed, but would be corrected in the future. These men repeatedly emphasized the view that local conditions, community standards, and accepted principles should prevail. Davis specifically represented the state in Briggs, but gave an emotional oration in defense of the mores of Southern society. He likened African Americans to the dog in an Aesop fable who carried a bone in his mouth and, upon seeing his reflection, dropped it, and reached for the bone carried by the dog in the image. Aesop warned that the dog lost his bone and his life because he threw away what he had for something better. Instead of profiting, he came away with nothing. In dramatic fashion, Davis mused, "Here is equal education, not promised, not prophesied, but present. Shall it be thrown away on some fancied question of racial prestige?" 43 Thurgood Marshall, while respecting Davis' distinguished career, snapped back in rebuttal the following day. Indeed, the question was a matter of racial prestige, as well as personal pride and justice under the law. One could not take race out of it, he argued, because separate treatment was based on race. This, in turn, must indicate that white society, as a whole, believed the African American race to be inferior. Segregation could only be sustained if the Court agreed.44

The position of the friend of the court is that of a participation in litigation who has no substantial stake in the immediate case. At the same time, the amicus is seldom an uninterested bystander but usually has a strong interest in the outcome and enters the case to suggest a rationale consistent with its views.45

In this instance, the Department of Justice supported Wilson's opponents. Rankin claimed that the Court should not interpret Congressional management of segregated schools in Washington, D.C. as evidence of the government's position on the broader issue at hand. Several justices closely questioned Rankin in order to pin him down on the government's specific determination. Justice Reed asked, "... does this Court through its own power have the right--is that the belief of the Government--have the power to declare segregation unconstitutional?" Rankin responded, "The position of the government is that the Court does have the power and that it has the duty."46 This being the case, he recommended that remedy for the appellees take the form of a gradual program to implement desegregation. Lower courts could deal with specific situations on the state and local levels through litigation on a case by case basis. Rankin explained, "We suggest a year for the presentation and consideration of the plan, not because that is an exact standard, but with the idea that it might involve the principle of handling the matter with deliberate speed."47 Questioning continued as the Court considered the logistical problems of unending legal battles by those who would resist desegregation. "I foresee a generation of litigation if we send it back with no standards,"

Justice Jackson declared, "and each case has to come here to determine it standard by standard."48 But, the government could offer no further recommendation.49

The fireworks ended after the Briggs and Davis arguments. The Kansas, Delaware, and District of Columbia cases followed in quick succession. Robert Carter presented rearguments of Case No. 1, Brown v. Board of Education, on Tuesday afternoon, December 8. Felix Frankfurter immediately questioned the status of the case, given Topeka's action to desegregate its elementary schools. He wanted to know whether or not the city's new desegregation policy had voided the plaintiff's grievance. Wilson elaborated in a 1970 interview, saying, "The courts, the Supreme Court, decides only cases in controversy and when the matter is no longer in controversy, the court doesn't want to waste its time with it. It doesn't decide academic questions."50 Counsel for both sides claimed that their case was not moot because integration had begun in only two schools and the Kansas statute still prevailed in state law. Carter wanted some guarantee, however, that Topeka school board would continue the desegregation process in good faith. "Bob, after perhaps ten minutes," Jack Greenberg later recalled, "said, 'I certainly have no real desire to proceed with an argument,' and sat down."51 Wilson then rose to explain that Brown was not moot because city policy and state law operated separately. "Although the chief justice had given me the signal to discuss the issues," Wilson later wrote in his memoirs, "I soon sensed that most of the justices did not regard my argument as vital."52 He condensed his presentation and spoke about segregation in sixteen Kansas communities, pursuing the broad reasoning already presented by Davis, Moore, and Almond that the framers of the Fourteenth Amendment condoned segregation. The full debate of Brown v. Board on reargument lasted a mere fifty minutes.53

The final two cases also followed familiar lines with great efficiency. The crux of Case No. 8, Bolling v. Sharpe, hinged on proper interpretation of the Fifth, not the Fourteenth, Amendment. George Hayes, Jim Nabrit, and Milton Korman trod over familiar ground through the remaining hours of December 8 and into the afternoon of December 9. As in Topeka, a school board election held in Washington, D.C. during the preceding year had changed the composition of the appellee group. Hayes and Nabrit asked the Court if Korman possessed legal standing in light of the new situation; specifically whether or not the new board retained Korman as counsel and maintained interest in the case. Indeed it did, even though some members realized that integration was imminent. President Eisenhower had publicly challenged the D.C. policy, giving good indication that federal authority would prevail here as it did in the armed forces, government contracts, and federal employment. Reargument of Bolling proceeded like an obligatory exercise, with one flash of brilliance. During his rebuttal, James Nabrit reviewed the constitutional merits of due process as the means for ordering desegregation in Washington, to begin in September 1954. Nabrit concluded his argument, by recalling the fictional society represented in George Orwell's Animal Farm. After the animals overthrew Farmer Jones,

dictatorship was set up and the sign set up there that all animals were equal, was changed to read "but some are more equal than others."

Our Constitution has no provision across it that all men are equal but that white men are more equal than others.

Under this statute and under this country, under this Constitution, and under the protection of this Court, we believe that we, too, are equal.54

The reference to Orwell's allegory of Soviet history hit home. On-going competition between communism in the U.S.S.R. and capitalism in the U.S. provided an excellent backdrop to Nabrit's appeal for the Court to extend the full benefits of democracy to young African Americans. 55

Proforma reargument of Case No. 10, Gebhart v. Belton and Gebhart v. Bulah, rounded out the school cases. Delaware Attorney General Young led with a summary of the record of litigation, the lower court opinion, and post-Civil War debate on civil rights. The two districts in Hockessin and Claymont had integrated the public schools, but segregation prevailed in other communities. Jack Greenberg pointed out that Delaware had stated that it intended to re-segregate these students once the black and white schools were equalized. This point kept the case alive. Louis Redding did not participate in these proceedings. Greenberg intended to argue the case alone, but at the last minute, asked Thurgood Marshall to conclude. Marshall briefly linked all five school cases, reiterating the Court's authority, nay, duty, to confirm the Supreme Court of Delaware's ruling that segregation was unconstitutional. Attorney General Young offered nothing in rebuttal.56

The second round of arguments in the comprehensive Brown v. Board of Education case came to a close at 2:40 p.m. on Wednesday, December 9, 1953. Several participants later commented that the experience left them rather flat. The intensive pace and comprehensive scope of preparations for the Court's questions on original intent and implementation seemed completely separate from the argument phase. Greenberg later wrote,

It all seemed rather curious. They had turned our world upside down with a demand for the most exhaustive historical research ever conducted for a Supreme Court case, and with inordinately difficult questions about implementation. Then they gave most of their attention to whether we had live lawsuits or issues.57

Paul Wilson had similar perceptions. He believed that "collateral issues," such as the condition of mootness, overshadowed the fundamental evidence presented in the cases. He, and others, felt that the justices showed little interest in the answers to the five questions posed for reargument. Davis and Marshall, however, defined the rudimentary interpretations at the outset through reargument of the South Carolina and Virginia litigation. There was no need to reiterate the same arguments for each of the three remaining cases because they dealt with the same basic issues, and the communities involved had desegregation plans which were pending or were already underway. Therefore, the second round before the Court ended rather quietly. Counsel turned to other work during the spring of 1954 while the justices waded through the briefs, documentary evidence, and oral testimony.58

Kansans, for the most part, kept a low profile during the entire process. "Except for members of boards of education and employees of school districts where segregation was practiced," Paul Wilson observed, "most non-black Kansans had little interest in the case, and few were able to appreciate its

significance. "59 On January 20, 1954, members of the Topeka school board announced a second step in its desegregation program. They ended segregation at twelve additional schools and allowed five white schools to continue on a segregated basis. The new policy also eliminated transportation for African American children within designated areas because they could now attend schools located close to their homes. Those who lived near integrated schools, but preferred to finish their education at one of the former black schools, could do so, but transportation responsibilities were left to the parents. Bus service continued through 1954-55 only for those who were assigned to and attended Monroe, Washington, and Buchanan. The board implemented this plan in September 1954. It affected 123 of 824 African American students in the elementary grades by previously reserved for white students, but did not transfer white students into the former black schools. At this early stage, integration in the capital city went in only one direction, whereby black students could attend formerly white, neighbor-hood schools. More Topekans took notice of the significance of NAACP's desegregation campaign in the autumn of 1954, when the desegregation plan moved into its second phase because it began to affect their lives on a very fundamental level.60

National press coverage of the lead plaintiffs in each of the five cases began in earnest during the spring of 1953 and escalated the following year, as the nation again waited for a Supreme Court decision. Media coverage quickly elevated the lead plaintiffs and chief counsel above their compatriots and began the process of shifting the lesser-known participants into the background. Linda Brown, Harry Briggs, Dorothy Davis, Ethel Louise Belton, and Spottswood Bolling represented each of the five cases in print articles, photographs, and early television reports. Photographers Hank Walker and Carl Iwasaki captured some of the most lasting images associated with the landmark desegregation campaign for LIFE magazine. The Associated Press and United Press International wire services broadcast the specifics of each school case to newspapers and magazines throughout the country. Thurgood Marshall and John W. Davis represented dozens of attorneys who contributed to the litigation. In like manner, Oliver Brown and his daughter Linda moved to the forefront because they topped the slate of plaintiffs in the lead school desegregation case, the one which gave its name to the five consolidated actions. Linda Brown's experience particularly captured public attention. Her experiences epitomized those of her but equal" argument. Linda provided substance and form for the media campaign for school desegregation. When the Kansas case joined the others before the U.S. Supreme Court in 1953- 54, national media coverage attached Linda Brown's face to the issue of school desegregation, thus personalizing an otherwise anonymous and unknown threat to white authority. Fellow plaintiffs in the Topeka suit, and those in the other four school cases, increasingly were pushed aside as the nation settled in to watch the outcome of Brown v. Board of Education. Poignant photographs and personal stories elevated the school desegregation campaign to the national level and imbedded the history of its bold participants into national consciousness."

The U.S. Supreme Court reserved judgement on Brown v. Board of Education until mid­ May 1954. Justices met on Saturday, December 12, 1953, three days after oral arguments. Chief Justice Warren spoke first, saying that no vote should be taken at this meeting, but should be delayed until the May 15 conference, when all had reached a final opinion on the merits of the cases. He believed the question of the legality of segregation to be a relatively simple one. Warren explained his views during the 1970s, when he said,

It seemed to me a comparatively simple case. Just look at the various decisions that had been eroding Plessy for so many years. They kept chipping away at it rather than ever really facing it head-on. If you looked back-to Gaines, to Sweatt, to some of the interstate-commerce cases-you saw that the doctrine of separate-but-equal had been so eroded that only the fact of segregation itself remained unconsidered. On the merits, the natural, the logical, and practically the only way the case could be decided was clear. The question was how the decision was to be reached.62

Justice Hugo Black missed the December conference because of a family emergency, but the seven associates present each gave their views in turn. The question of relief seems to have topped most of their concerns, with little doubt that segregation must end. They agreed that a reversal of Plessy must be accompanied by some plan for implementation. Warren convened a second conference on January 16, 1954 to address potential remedies for ending racial separation. All participants feared hasty action which would threaten stringent segregationists in the South. A third conference, held in February, brought the first official tally on both questions. Warren wrote in his memoirs that, "On the first vote, we unanimously agreed that the 'separate but equal' doctrine had no place in public education." The group decided that the opinion should be issued per curiam, with the opinion written by the Chief Justice. Marcus Whitman and Richard Kluger disputed Warren's account of the Court's unanimity by claiming that the February vote resulted in a distinctly non-unanimous 8:1 count. Others supported Whitman's contention that Justice Reed disagreed with his colleagues and worked on a dissenting opinion through the spring. Warren worked on Reed during this same period, finally bringing him into the fold by May. Justice Reed's support made the opinion unanimous. In late April, Warren provided a draft of the final opinion, with specific wording, to his law clerk, Earl Pollock, who fleshed out the Brown decision. Meanwhile, Clerk William Oliver worked on a separate opinion for Bolling v. Sharpe because the District's schools fell under federal jurisdiction."

Implementation remained the sticking point. Against Warren's wishes, Justices Jackson and Frankfurter drafted separate, concurring opinions. Both men drew upon interpretations of original intent and recognized that social change sometimes directed law and policy, believing that it should do so in this instance. Justice Frankfurter circulated his views among the other justices in the form of a memorandum, prompting further discussion of implementation strategies, and perhaps inducing Warren to work harder to achieve unanimity among the Court. In it, he suggested that the Court define the process by which "integration" could be achieved in ways which would limit future litigation. Justice Jackson questioned the use of federal power in this matter, but health problems hampered work on the separate finding. He suffered a heart attack on March 30, 1954 and remained in the hospital during this time. Warren's draft opinion, circulated in early May, found favor with his fellow justices. They approved it during the regular Saturday conference on May 15 and agreed to announce it on the following Monday, May 17, 1954.64

Eisenhower waited for the Court's ruling with the rest of the nation. Herbert Brownell periodically updated the president on the status of the school cases during the months of deliberation. As early as January 25, 1954, Brownell told Ike that the Court may split its ruling on the practice of segregation from possible action to reverse the policy. Notes from their telephone conversation recall that,

Brownell told President he had heard (strictly between them) that the Supreme Court might decide constitutionality point of segregation this spring, put off remedies for fall. President said, "I don't know where I stand, but I think I stand that the best interests of the U.S. demand an answer in keep [sic] with past decisions." Supreme Court apparently wants to defer matter long as possible­ President laughingly said perhaps they would defer it until problem no longer Administration's.65

Ike did not get his wish and failed to stay out of the fray despite his strong support for the separation of powers. Eisenhower took a jab at Chief Justice Warren during a White House "stag dinner" held in the spring of 1954, which was also attended by John W. Davis. Warren later recalled that Ike praised Davis throughout the meal and afterward, expressed empathy for southern concerns. The chief justice did not take kindly to Ike's attempt at persuasion and later expressed general disappointment in the president's handling of race relations after Brown. The president stayed in close contact with Governor Byrnes, Senator James Eastland of Mississippi, and Georgia Governor Herman Talmadge throughout 1953 and 1954. He and Brownell soothed fears and unruffled feathers, trying to maintain harmony before the siege.66

On May 17, 1954, the last day of the October 1953 term, the U.S. Supreme Court announced the landmark ruling, later known as Brown I, which overturned the 1896 Plessy v. Ferguson finding. Justice Jackson left his hospital bed to participate in the historic event. News spread among key participants that the announcement would be made when the Court convened for its regular Monday session. Reporters who routinely covered Court proceedings noticed Attorney General Brownell, former Secretary of State Dean Acheson, Thurgood Marshall, John W. Davis, James Nabrit, and George Hays among the spectators packed in the courtroom. At 12:52 p.m., Chief Justice Warren said, "I have for announcement the judgement and opinion of the Court in No. 1, Oliver Brown, et. al. v. Board of Education of Topeka."67 The Court deemed that the Fourteenth Amendment "proscribed all state-imposed discriminations against the Negro race." Plessy v. Ferguson, not the U.S. Constitution, instituted segregation and several precedents had stripped its authority. "In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written," Warren continued. "We must consider public education in the light of its full development and its present place in American life throughout the Nation." The Court found that segregation, indeed, constituted a denial of equal protection and did psychological harm to students who were subjected to it. It drew upon testimony of experts from the South Carolina, Virginia, and Kansas cases which documented its ill effects. In fact, Warren listed significant studies completed by Kenneth Clark, Isidor Chein, Harry Ashmore, Gunnar Myrdal, and others in a footnote to the Brown opinion. The famous ruling announced, "We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal." Therefore, segregation no longer bore the weight of law. 68

A separate opinion for Bolling et. al. v. Sharpe, et. al. reaffirmed the judgement that segregation violated the equal protection clause of the Fourteenth Amendment and announced that it also deprived guarantees of due process found in the Fifth Amendment. In the words of the Court,

Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause.

In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.6

Both opinions deferred the question of relief and ordered appellants to reargue questions four and five, regarding strategies for implementation. Warren again asked for input from the U.S. Attorney General and invited briefs from the attorneys general of the seventeen states which currently allowed segregation. In the space of thirty minutes, the Court handed the NAACP its magnanimous victory over Plessy, but the players now had to analyze the meaning of that conquest. Adversaries would meet yet again for round three in the fall, during the October 1954 term.70

Warren instituted the practice of providing copies of each opm10n upon its announcement to the media. News of the Brown decision flew across the wires as soon as the chief justice finished reading the first opinion. Kansas Attorney General Harold Patzer and Paul Wilson received word in Topeka from reporters who called for their reaction to the news of Plessy' s defeat. They explained that they had no love for segregation, but had stood for the right of states to regulate school policy. A banner headline in the Topeka Daily Capital proclaimed, "School Segregation Banned." One thing was certain, Topekans no longer would ignore the importance of the Supreme Court action. Paul Brady remembers the "great joy" in the home of his aunt and uncle, Lucinda and Alvin Todd, upon hearing the news. Their early activism in the Topeka NAACP and involvement in the Brown litigation had paid off.

That evening, fellow NAACP members, plaintiffs, and supporters gathered in the Monroe Elementary gymnasium to celebrate their hard-won accomplishment. Charles Scott, who tended the case all the way to the Supreme Court, recalled, "I don't think there's any question the black community was over rejoiced as I was able to discern because they felt that this was a step toward equality. They felt that once again the power structure was willing to yield to some of the demands that were made from the black community, moving down the path to equality."71 Just how far society would venture down that path was yet to be determined.

D. Brown II sets a new world in motion

The Warren announcement shocked most Americans, even though they realized that the NAACP legal campaign had weakened the foundation of the "separate but equal" precedent. Brown v. Board of Education toppled the Plessy finding according to plan. Some critics charged that the Warren Court had stretched beyond its constitutional limits by engaging in judicial legislation. Whatever the immediate reaction, the Court had acted and the nation now needed an equitable policy which would integrate the races into one community. The Supreme Court hoped to develop a strategy after reviewing suggestions for implementation of its desegregation decree. Justices also may have hoped that the White House would provide some direction, or at least support, for states that needed to reorganize their education programs. Earl Warren certainly did. But, Eisenhower maintained a low profile on the subjects of race relations and school desegregation immediately after the Brown I decision. Curt comments which broke the public silence on occasion cast the impression that Ike sided with Southern politicians in their support of segregation, but realized that the policy had to end.

Against the advice of his staff, Eisenhower held a press conference on the following day, May 18, to address a variety of issues. When

asked if he had any advice for the South, in light of the Court decree, he gruffly refused, saying "Not in the slightest. The Supreme Court has spoken and I am sworn to uphold the constitutional process in this country; and I will obey." 73 James Hagerty, White House press secretary and close advisor, kept a diary during the first years of the presidential term. His entry for Tuesday, May 18, 1954, mentioned Ike's concern about the effects of the ruling. Governors of key Southern states had threatened to shift white students to quasi-private schools and close public facilities in order to avoid desegregation. Such a dire strategy, the president commented, would hurt both African Americans and poor whites. The Southern reaction to Brown I led Eisenhower to believe that the Supreme Court had reversed progress in race relations. The only course now could be a slow, deliberate one. Sources often quote the former general as saying, "We can't demand perfection in these moral questions. All we can do is keep working toward a goal and keep it high. And the fellow who tries to tell me that you can do these things by force is just plain nuts."74 Like many, Ike revealed mixed feelings about this turn of events. Historians, as well as contemporary observers, usually criticize the president for sparing his personal charm and charisma in a situation which called for national leadership. His broad appeal could have been used to sway public opinion to accept desegregation as morally correct. Instead, Ike's inaction denoted anger and disappointment that the Court had tampered with the natural order of things. 75

Protocol and constitutional law, however, dictated that Dwight Eisenhower follow the Court's direction. He resolved to enforce the Brown decision, whether or not he personally agreed with it. At the Department of Justice, Herbert Brownell, Lee Rankin, and Philip Elman felt elated over Warren's ability to unite the Court in such a just, albeit portentous, decision. Brownell, the most liberal member of the Eisenhower cabinet, supported integration wholeheartedly. He had overseen the administration's legal agenda thus far, but now the president had selected Simon E. Sobeloff to serve as U.S. Solicitor General. This office, located within the Justice Department, usually determines which course the government will take in legal actions before the Supreme Court, either to participate fully, to avoid action, or to function as an amicus curiae. Attorney General Brownell had taken responsibility for federal involvement in Brown v. Board because this position had been in a state of flux until Sobeloff's appointment. The new solicitor general assumed responsibility for the government's participation in the third round of arguments of the school cases. Sobeloff's position on segregation was well-known. His career, thus far, featured active lobbying for the anti­ lynching bill and vigorous opposition to racial discrimination in housing, school segregation, and other public facilities. Any assessment of Eisenhower's position on segregation should take Sobeloff's appointment into account. The government's brief on implementation, drafted by Sobeloff and Elman, called for desegregation to be enacted as quickly as possible, but on a gradual scale. It encouraged the Court to set guidelines which lower courts could follow when adjudicating the pace and progress of integration. These courts would bear the responsibility for ensuring that local school boards formulate and execute viable desegregation plans.76

Co-counsel for the original defendants took on several new members when they began work on the implementation questions. The leading advocate for segregation, John W. Davis, felt that his work terminated with the Court's unanimous rejection of racial exclusion. He had appeared 140 times before the U.S. Supreme Court and looked forward to retirement. Davis resigned from the ream in late-May 1954 and died, at the age of eighty-one, approximately ten months later. Robert McCormick Figg, Jr. and S.E. Rogers stepped into the breach for South Carolina. Joseph Craven replaced Albert Young as Delaware attorney general during this year and appeared for the state during the second reargument hearing. Lindsay Almond and Archibald Robertson, who replaced Justin Moore, formed the Virginia delegation. Governors and attorneys general who opposed desegregation met to discuss their options, devise strategy, and prepare arguments for their briefs as either participants or amicus in the next hearing before the Court. Warren had invited representation from each state affected by the Court order, seventeen in all, but only Florida, North Carolina, Arkansas, Oklahoma, Maryland, and Texas submitted amicus briefs. Harold Patzer, of Kansas, skipped the meetings and conferences held among his cohorts. He disagreed with their caustic reactions to the Brown decision and, in contrast, accepted his responsibility to abide by the decree as the state's chief law enforcement officer. The Topeka school board again filed a separate response to the Court, regarding implementation, and proceeded with its desegregation plan. As before, Paul Wilson prepared the state's brief, supplemented by surveys of segregated systems in Kansas. This time, Patzer, would accompany him to Washington, D.C. for a final appearance before the High Court."

In contrast, the NAACP corps maintained solidarity throughout preparations for the remedy hearing. Momentum from the May 17th victory helped sustain optimism among the litigation team as they dug in for another round. "The most gratifying thing," Thurgood Marshall declared, "in addition to the fact it was in favor of our side is the unanimous decision and the language used. Once and for all, it's decided, completely decided."78 The court had determined the constitutional status of segregation, but nothing beyond that. The NAACP still had a tough fight ahead to change the status quo, with segregationists resisting the whole way. Marshall rallied his troops in June 1954 for another evaluation of implementation strategies. The team was particularly gratified that the chief justice specifically mentioned several sociological studies in the majority opinion. He again convened assemblies of social scientists, psychologists, legal scholars, and historians during the summer to discuss the application of desegregation strategies. NAACP chapters also contributed information for the appellant responses to questions four and five. The LDF coordinated a national survey, conducted by the local chapters, to locate successful examples of desegregation, spots of resistance, and attitudes about integration in order to gain more information about the status of and impediments to racial equity. The collection of historical precedent, sociological data, and local conditions bolstered the NAACP's appeal for immediate desegregation throughout the United States. 79

Brown v. Board of Education fell rather high on the docket for the October 1954 term. Supreme Court Clerk Wiley scheduled oral arguments for December 6, 1954 and counsel filed supplemental briefs accordingly. As in the previous hearings, nothing occurred as planned. Justice Jackson, weakened by heart problems in the spring, suffered a second, fatal attack on October 9. President Eisenhower filled the opening in barely a month's time, appointing New York Circuit Judge John Marshall Harlan. The name carried weight among those involved in Brown, for his grandfather had earned fame as the lone dissenter in the 1896 Plessy v. Ferguson finding. The junior Justice Harlan had impeccable credentials in his own right. He graduated from Princeton, studied abroad as a Rhodes scholar, and established a national reputation as a sharp, Wall Street corporate lawyer. Harlan also served in a variety of public positions in New York, as counsel for the New York Board of Higher Education and New York State Crime Commission, among others. Although Harlan held rather conservative views, his lineage may have led Southern senators to delay his confirmation hearing for several months. Joseph McCarthy's shenanigans and resultant censure by the full Senate also intervened during winter 1954. Harlan's appointment finally cleared the Senate on March 18, 1955. The work of the Court had been delayed through it all, but the clerk finally restored Brown v. Board to the schedule for Monday, April 11, 1955.80

Eleven months passed between Warren's request for further reargument of implementation and the presentation of oral arguments on questions four and five. In the interim, the Topeka school board announced the third stage of its desegregation plan, on February 23, which would begin with the 1955-1956 school year. The plan ended segregation in all public schools, closed McKinley Elementary, and adjusted geographic boundaries to incorporate Buchanan, Monroe, and Washington in school assignments for both races. The USD-501 system employed twenty-four African American teachers, but only needed twenty after reorganization. Quite predictably, teachers worried about their futures, despite reassurances from the board that they would be retained during 1955-1956. Two other events transpired during the spring of 1955 which shook the core of the NAACP. Sadly, Thurgood Marshall's wife, "Buster," died on February 11. She had kept her illness a secret from Thurgood until after the Court ruled on Brown v. Board of Education. When Marshall learned of its gravity, he dropped work on the reargument brief to care for her during the last months of her life. After a brief respite, Marshall plunged back into the school cases. A second tragedy, however, struck the NAACP. Its executive secretary, Walter White, sustained a fatal heart attack on March 21, 1955. The association selected Roy Wilkins to succeeded White and rallied behind him for its next battle before the Supreme Court. 81

The contingents gathered in Washington in mid-April for final litigation of the school cases. In Brown, the Court specifically asked counsel to readdress the following,

Assuming it is decided that segregation in public schools violates the Fourteenth Amendment,

would a decree necessarily follow providing that, within the limits set by normal geographic school districting, Negro children should forthwith be admitted to schools of their choice, or

may this Court, in the exercise of its equity powers, permit an effective gradual adjustment to be brought about from existing segregated systems to a system not based on color distinctions?

On the assumption on which questions 4(a) and (b) are based, and assuming further that this Court will exercise its equity powers to the end described in question 4(6),

should this Court formulate detailed decrees in these cases;

if so, what specific issues should the decrees reach;

should this Court appoint a special master to hear evidence with a view to recommending specific terms for such decrees;

should this Court remand to the courts of first instance with directions to frame decrees in

these cases, and if so, what general directions should the decrees of this Court include and what procedures should the courts of first instance follow in arriving at the specific terms of more detailed

decrees?82

Advocates for each school case provided answers in the form of supplemental legal briefs, intended to function as attachments to those submitted in 1952 and 1953. The Court's rejection of Plessy set a new tone for this hearing, of course, but each side's basic position varied very little from prior viewpoints. Attorneys who represented states and school boards suggested the Court leave the business of integration to local and state governments. Counsel for the original plaintiffs, on the other hand, urged the Court to order swift action and set guidelines which resistant communities could not evade indefinitely.83

Court convened at 12:00 noon on Monday, April 11. Oral presentations by the twenty-two participants lasted four days. Chief Justice Warren called Case No. 1, Brown v. Board of Education, first. This time, Harold Fatzer led arguments on behalf of Kansas and the Topeka Board of Education. He spent considerable time discussing integration plans that were already underway in the capital city and that would continue in the autumn. Justices also expressed interest in the conditions of eight other Kansas cities where segregation still existed. Fatzer assured the Court that Kansas would remedy these situations by incorporating the forthcoming implementation decree in its public school policies. On rebuttal, Robert Carter offered some objection to the Topeka plan, saying that the new districting scenario would assign some African Americans students to one of the three traditional black schools, while it allowed white students to remain in formerly all-white schools. Carter disagreed with Fatzer's claim that Topeka schools would be integrated because only African Americans would attend Buchanan, Monroe, and Washington. In his mind, the situation remained the same. Arguments for Gebhart v. Belton, Case No. 5, followed. This case involved the desegregation of high schools, so some of the original plaintiffs had graduated by this time. Nevertheless, the issue remained current because the desegregation order in Brown I presented problems for the people of Delaware. Joseph Craven, the state's attorney general, asked for time to sort through these problems. In opposition, Louis Redding reminded the Court that the Delaware Supreme Court had determined that each child had a personal right to equal opportunity through integrated education. The attorney general, however, had extended this right only to specific plaintiffs mentioned in Gebhart and other, subsequent, litigation. As class actions, the policy should apply to all African American students in Delaware."

Discussion of Case No. 4, Bolling v. Sharpe, centered around desegregation plans already underway in the District of Columbia. The new plan assigned students to schools within their districts and some retained student bodies composed of one race. Mr. Hayes wanted the Court to allow students and their parents to exercise some choice, or option, in school selection. Counsel for the original plaintiffs noted that while African American students had moved into previously all-white schools, no white students attended former black schools--echoing concerns expressed by Robert Carter about the situation in Topeka. James Nabrit followed with specific details about District of Columbia schools and the desegregation efforts in progress. He also advocated a system where choice prevailed in school selection, but objected to the board's plan which used a system of sub-districts to assign students to specific schools. Nabrit argued that this, in effect, denied choice. Milton Korman, counsel for the District, defended the desegregation plan because district assignments corresponded to residential patterns and did not assign students based on race. Critical points in this debate presaged obstacles to integration which would emerge during the next two decades; namely, school choice programs, redistricting, and "white flight" to suburban areas.85

For the present, any implementation action issued by the Court would carry most relevance for the final two cases, No. 3, Davis v. County School Board of Prince Edward County and, No. 2, Briggs v. Elliott, because neither Virginia nor South Carolina had begun any move towards integration. Quite the opposite loomed, in fact, since state officials in both had threatened to close the public school systems completely rather than desegregate them. Spottswood Robinson and Thurgood Marshall combined their presentations on questions four and five in these actions. They gave emotional appeals for the immediate implementation of desegregation orders on the grounds that any delay constituted a denial of equal protection. Marshall reminded the Court of dire predictions of social upheaval made in the past during civil rights litigation. Firm action by courts and law enforcement officers had prevented much of it from coming true. He said that the same was true for school desegregation. The Court could not back away from its constitutional duty simply because Southerners felt threatened. Marshall pushed for September 1955 as a deadline for local schools boards to effect viable integration policies. As expected, S. Emory Rogers, Robert McCormick Figg, and Archibald Robertson pressed for some consideration of local attitudes and local authority. They claimed that social tradition which had endured for generations could not be reversed so easily. Rogers pressed for an open decree, which would leave the proper time and method to the will of South Carolinians. State arguments which called for moderation conveyed not-so-subtle threats of defiance of court action which intruded into the reserve powers of the states. South Carolina had called on the theory of interposition/nullification in the past to evade federal policy, and would do so again if challenged by the Court. With the gauntlet down, counsel closed arguments in the school cases.86

Following the formal litigants, attorneys general from Virginia, Florida, North Carolina, Arkansas, Oklahoma, Maryland, and Texas rose, one by one, as amicus curiae in support of the conservative position. Simon Sobeloff provided the last statement, given on behalf of the federal government. He recommended that the justices refrain from issuing a specific decree that either set a deadline for integration or established criteria which would guide lower court action in future desegregation cases. Sobeloff asked the Court to remand the school cases to their respective district courts so that integration could begin as soon as it was "feasible." The solicitor general made a distinction between the situations in Washington, D.C. and Topeka, where integration had begun, and those in Clarendon and Prince Edward Counties, where the majority resisted it. This, he said, provided a rationale for allowing lower courts to play more direct roles in local desegregation efforts. Briefs submitted by the amici overwhelmingly emphasized the importance of local control and sensitivity to local conditions in the restructuring of Southern school systems. While the Justice Department clearly endorsed Brown [, it recommended a measure of judicial restraint and a rather broad decree about the course of implementation. 87

Justices met in conference on April 16, 1955 to review arguments in this latest round of the school cases. Warren outlined two basic ground rules before discussion began on possible implementation procedures. First, justices should keep in mind that these were class actions, which meant that the named plaintiffs represented everyone affected by segregation. He also stressed that lower courts should consider physical aspects, rather than psychological attitudes, when addressing legal action pertaining to integration procedures. The chief justice opened discussion of the cases with his own opinion that the Court avoid setting a deadline for implementation as well as any strict procedure for integration. In other words, the Supreme Court should not function as a "super school board," but should give wide latitude and support to U.S. district courts. Members of the Court, most of all, agreed that the decision on implementation must be unanimous. Each justice gave his impressions of the school cases and challenges to integration in order of seniority. They discussed class action status at length because some felt that the final decree should apply only to the named plaintiffs and not to their communities, at large. The issues of condition and time had led the Court to defer final adjudication; they could not prolong the cases any further. The cases constituted class action suits, period. Justice Frankfurter offered a solution for the time problem. He recalled the phrase, "with deliberate speed," used by Philip Elman in the Justice Department's 1952 brief and in others. This phrase turned on one used in a 1918 ruling by Justice Oliver Wendell Holmes, "with all deliberate speed." Frankfurter suggested it for the Brown v. Board implementation decree and Warren agreed. As before, Earl Warren drafted the Court's finding, circulated it among the brethren for their review, and made it public on the final day of the term. 88

The chief justice announced the Court's unanimous ruling on May 31, 1955. Later known as Brown II, the "Final Decision on Relief, Brown et. al. v. Board of Education of Topeka, et. al.," reviewed the lengthy progress of litigation and specifically addressed the issue of relief. Justices recognized that "Full implementation of these constitutional principles may require solution of varied local school problems." They left resolution of these problems to local school authorities and courts. "Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner," Warren declared. "But it should go without saying," he continued, "that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them."89 The May 17, 1954 ruling stood as law, therefore, lower courts would have to determine whether or not local school boards acted in good faith to implement it. Brown II stipulated that "Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date."90 Rather than establishing a set timetable, the Warren Court reversed the decisions of four of the school cases and returned them to their respective district courts with a mandate "to admit to public schools on a racially nondiscriminatory basis with all deliberate speed."91 The Court left the original Belton v. Gebhart ruling as Chancellor Seitz had crafted it, in favor of the African American plaintiffs, but the justices referred to the Delaware Supreme Court for final adjudication. 92

With its standard directive, "It is so ordered," the U.S. Supreme Court set in motion a chain of events that continues to unfold. Brown II represents a concerted effort to deal with logistical problems associated with bringing two races together on equal standing in communities which had little interest in altering the white-dominated status quo. Some believed that the High Court used the ruling on implementation to bring the balance of justice back to center because it tempered Brown I, which held the promise of equal treatment for African Americans. Critics viewed Brown II as an accommodation to white separatists who could use its vague "with all deliberate speed" decree to stall integration indefinitely. During initial arguments of Briggs v. Elliott, presented in December 1952, Justice Felix Frankfurter said, "I think that nothing would be worse than for this Court--! am expressing my own opinion-nothing would be worse, from my point of view, than for this Court to make an abstract declaration that segregation is bad and then have it evaded by tricks."93 His comments, again, illustrate Frankfurter's insight into the complexities of integration. Whereas the Brown I decree striking down segregation can never be described as "abstract," Brown II may be. Thurgood Marshall feared this scenario, as well, and asked the Supreme Court to impose a one-year deadline on integration plans in order to force compliance with the May 17, 1954 ruling. When it failed to do so, he expressed initial disappointment, but viewed the school desegregation rulings optimistically because they signified real, constitutional progress for African Americans. The inherent contradiction of "all deliberate speed," however, left enforcement of Brown I open to several loopholes. Despite deferring a final decree for further analysis of implementation strategies, the Court contributed little direction in Brown II. The burden, instead, fell to local school boards, who were instructed to carry out integration "in good faith." Justices relegated oversight responsibilities to U.S. district courts, which had to discern between good faith effort gone astray and calculated indifference to the goals of racial equality.94

E. Conclusion

The Brown decisions denoted overwhelming success in the national campaign against segregation in public education. The Warren Court confirmed the constitutional rights owed to millions of African Americans who had been separated from mainstream society as a result of the 1896 Plessy v. Ferguson opinion. The Supreme Court, under Chief Justice Vinson's leadership, granted certiorari to the school desegregation cases during the October 1952 term. The lengthy appellate process mirrored the slow tempo of equalization efforts, overall. Proceedings dragged on for three years, through a series of events which led to three rounds of arguments, scheduling delays, personnel changes among the justices and legal advocates, and indecision. Oral arguments of Briggs and Davis revealed racism that underlay rationalizations to equalize, rather than integrate, public schools in South Carolina and Virginia. Politicians, community leaders, and private citizens in these and other Deep South states threatened to boycott local public schools if the Court ended de jure segregation in the United States. Debate in the Topeka, Delaware, and Washington, D.C. cases foreshadowed some of the most critical stumbling blocks to integration, that being, evasion by school choice programs and selective desegregation. Both scenarios, one more overt than the other, would develop further as the decade advanced.

African Americans celebrated the hard-won victory over Plessy because it represented a major step towards real social progress. These rulings provided the catalyst for a new era of African American activism. The year, 1954, often signifies the advent of a modern civil rights movement because the Brown v. Board of Education decisions ended legal segregation in the United States. Several factors facilitated activism in the late-1950s and 1960s. These included strong advocacy for African American equality, outstanding leadership within and beyond the NAACP, and experiences encountered during World War II, both for those at home and abroad. Financial assistance for home loans and college tuition provided by the "GI Bill" aided veterans and boosted the economic status of many African Americans. Steady incomes during the 1950s brought enhanced buying power to more Americans. Accordingly, blacks could choose to patronize or boycott businesses as they chose, with very effective results. Television inaugurated the "information age" by spreading news about injustices against blacks, resistance to desegregation in many venues, equitable treatment, constitutional rights, and reactions by governmental leaders. Such widely-available data influenced the viewpoints and actions of African Americans as the movement grew stronger. The Cold War emphasis on the concepts of democracy and freedom also contributed to growing dissatisfaction among black Americans and to anxiety among the white majority. Rhetoric which touted the benefits of representative government and the comfort of a democratic society brought attention to glaring inconsistencies in the treatment of each race.

Within this context, the school cases provided an important forum for a broad discussion of race relations in the United States because they sparked close examination of the "separate but equal" doctrine. Each school case contributed to the debate, largely through findings of historical, psychological, and sociological scholarship. The Kansas case, in particular, targeted this analysis because conditions in Topeka came closest to the equal mark, exposing commonly-held perceptions and attitudes which bolstered racial separation for its own sake. The implications of "separate but equal" were clear: separateness negated any sense of equality. Logically, a race truly perceived as equal would be allowed equal treatment. Two phenomena merged during this "period of consensus;" namely, redress of constitutional injustice and a maturing social conscience. Many Americans felt pangs of conscience when juxtaposing racial segregation with the canon of representative government, Earl Warren notwithstanding. As governor of California, this man had called for the incarceration of Japanese-Americans during World War II because he mistrusted their loyalty. Years later, however, he crafted unanimity among a very fractured group, for the purpose of restoring equity status to African Americans. His appointment to the Supreme Court added another important quantity to the complicated equation for social justice. Earl Warren built upon the precedents issued by the Vinson Court, but ushered in a new, more liberal era of American jurisprudence.

The new Chief Justice contributed to a long chain of events by rallying his brethren to address contemporary social dynamics and to use the Court's authority to end unconstitutional practices. The outcome of the consolidated Brown v. Board of Education case signified a moderating of views held by members of the Supreme Court and among society, at large. Although the Court stands as last adjudicator in U.S. jurisprudence, it does not function in isolation. Members on the bench selectively hear cases which deal with critical issues, resolve long-standing controversies, or redress society's wrongs. Topeka attorney Charles Scott later commented that during the Brown proceedings, counsel considered the interplay between the Court and society, saying,

There had been many efforts made to resolve the issue [of school desegregation], and we felt eventually that perhaps that they would reverse themselves in accordance and keeping abreast with the mood of the times perhaps. Because we felt that the social climate was changing somewhat or would change or at least the Supreme Court would... help institute a change of the social climate to some degree.95

Advocates were correct on both counts, the social climate had changed and would continue to evolve as the civil rights movement gained momentum. The landmark Supreme Court action resulted from decades of discriminatory treatment, the long record of NAACP legal victories, a rather conducive social environment, the labor of many individuals, and Earl Warren's leadership. Few Americans missed the significance of the desegregation ruling. The broad-sweeping implications of the Brown decisions prompted critics to flail the Court for enacting a piece of judicial legislation. Most praised Warren for coming to terms with past injustices. The method of relief, however, raised questions about the Court's sincerity and authority to end segregation in the United States. The historical record clearly illustrated past patterns of discrimination, but the way to rectify them remained murky. The contradictory correlation in Brown II between deliberation and speed only complicated things further.

Eisenhower, too, presented a frustrating paradox because he preferred a moderate course of action and did not embrace change very easily. During his presidency, Ike showed himself to be a quite capable politician, despite the lack of formal experience in that particular arena. With the 1956 election approaching, he assessed public sentiment in light of the Brown decisions, recognized his legal obligation to abide by the Court's decrees, and advocated a legalistic approach. The moderate course lay in supporting, but not endorsing, the Brown decisions. Ike had lobbied heavily for a gradual approach to racial equality, but apparently did not find satisfaction in the moderation of Brown II. He apparently felt great disappointment in Warren's liberal leanings and believed that the school desegregation rulings portended tremendous social unrest. Southern reaction confirmed the president's fears. Politicians from the region crowed loudly about the Supreme Court's interference with state powers, and Ike tried his best to smooth over ruffled feelings. When vocal complaints gave way to open defiance, however, Eisenhower had to deal squarely with serious threats to federal authority.

My eight friends and I paid for the integration of Central High with our innocence. During those years when we desperately needed approval from our peers, we were victims of the most harsh rejection imaginable. The physical and psychological punishment we endured profoundly affected all our lives. It transformed us into warriors who dared not cry even when we suffered intolerable pain.1

CHAPTER SIX

THE SLOW PACE OF "DELIBERATE SPEED," 1955-1975

The second Brown decision strengthened the original, 1954 U.S. Supreme Court finding and prompted action on the part of local school systems across the country to either implement or reject desegregation orders. Educators in Topeka, Kansas, and Wilmington, Delaware, initiated steps to integrate their classrooms prior to the actual resolution of the school desegregation cases. The decision hastened integration overall, but, for many school systems, it also brought harsh repercussions because administrative boards often closed formerly black, neighborhood schools and terminated many African American teachers. The public school systems of Clarendon County, South Carolina, and Prince Edward County, Virginia, closed their facilities, refusing to integrate them. The situation kindled to crisis stage before federal authorities stepped in to enforce the Supreme Court action. Governors and mayors, alike, stood in school doorways and made pronouncements rejecting the authority of the federal government to determine the mixture of their school populations. Eisenhower's fear of social upheaval rang true until he clarified the federal government's position by interceding in the desegregation of Little Rock's Central High School. Federal troops failed to end local dissension, however, and the "era of consensus" ended with the promise of further civil rights gains amidst ominous warnings of race-based terrorism and retaliation. From the 1950s on, the nation's school systems have wrangled with the issue of desegregation and the very complex strategies which strive for full racial integration. The significance of the 1954

U.S. Supreme Court ruling, however, swept far beyond the classroom. It marked the beginning of the modern civil rights movement, by providing a foundation for efforts to end segregated public accommodations, modes of interstate travel, restrictions of due process, and denial of African American voting rights.

A. Impedance versus implementation

Through this volatile period of diplomatic warring abroad and mistrust at home, national leaders coped with a very complex political landscape where civil dissent countered state and federal authority. As chief executive, Dwight D. Eisenhower was bound to enforce the U.S. Supreme Court ruling, regardless of his own opinion about the prudence of such a mandate. Desegregation proceeded at varying rates in the mid-Atlantic region, Deep South, and Midwest. Opponents of integration formed citizens groups across the country which advocated local control over school policy. Although the racial climate in Topeka had been much less tense than that in towns throughout the South, segregation in public facilities persisted into the 1960s in this and other Kansas communities. As promised, governmental leaders in South Carolina and Virginia took drastic steps to avoid federally-enforced integration. They enacted a policy of "massive resistance," which closed public schools and subsidized the education of white students at private academies. The power struggle between implementation and impedance of the desegregation order raised old debates about the federal system of government, itself. Pro-segregationists clouded the issue of educational equity by couching it in broader constitutional issues. Politicians from the Deep South, in particular, dredged up pre-Civil War doctrines of nullification and interposition in an attempt to use states' rights arguments to stave off equalization in U.S. classrooms. Their protests compelled President Eisenhower to act on the behalf of all Americans, to ensure the full realization of their fundamental civil rights.

In early June 1954, only two weeks after the initial Brown decree, Dr. Kenneth Clark wrote a very brief "Statement on the Meaning of the Supreme Court Decision," in which he explained its significance as opening the way for democracy to flourish. "The decision itself cannot fulfill these dreams of youth," Clark explained. "In order to attain these goals, we must have faith in their attainment. We must have men and women of good will, clarity, intelligence and courage who believe in democracy--enough to train our children in the ways of democracy and to continue to work for democratic goals."2 Optimism and hope justified Clark's observations in 1954, but the events in the aftermath of Brown engendered dissension and mistrust, rather than pride, on the grassroots level. Earl Warren lay some of the blame on Dwight Eisenhower for widespread reticence to comply with the integration order. Although Ike chose not to exercise his charismatic leadership to break down racial barriers, he used the power of the executive branch to facilitate gradual integration. Publicly, he took an impartial position and delegated administrative responsibility to the Department of Health, Education, and Welfare, Department of Justice, and Special Assistants Frederic Morrow and Maxwell Rabb. Michael Mayer explained the importance of judicial appointments made during the Eisenhower administration, largely engineered by Herbert Brownell, but approved by the president. Federal judges on circuit courts functioned on the front lines, as it were, enforcing and monitoring integration plans. Ike also sponsored two civil rights bills during his presidency, those of 1957 and 1960, successfully maneuvered them through Congress, and instituted the Civil Rights Commission. The later 1964 Civil Rights Act garners more attention because of its long-term impact, but civil rights legislation during the Eisenhower administration signified the first since Reconstruction, a span of eighty-two years.3

Washington, D.C., provided one opportunity where Eisenhower wholeheartedly supported integration. Upon taking office, Ike had promised to end segregation in the District in order to ensure "that this Capital provide an honored example to all communities of our

2C lark, "Statement on the Meaning of the Supreme Court Decision," Box 61, Kenneth B. Clark Papers, Library of Congress, n.d., 2.

3Mayer, "With Much Deliberation and Some Speed," 74-76; Duram, A Moderate Among Extremists, 105-120; and Pach and Richardson, The Presidency of Dwight D. Eisenhower, 137-149. Robert L. Branyan and Lawrence H. Larsen, eds., The Eisenhower Administration, 1953-1961: A Documentary History, Vol. II (New York: Random House, 1971), contains extensive documentary evidence and discussion of the administrations civil rights activities.

Six:: "Deliberate Speed" 213

Na tion."4 School desegregation began during the litigation of Bolling v. Sharpe and proceeded slowly during the late-l950s. The District outlawed segregation in housing in 1947 and legal action in June 1953 brought about equal access to restaurants and hotels in the city. In 1954, the superintendent of schools, Dr. Corning, drafted a plan for integration to be implemented the following year. It allowed students to complete their education in their present school or transfer to schools near their homes. Many complained that the plan's option for school selection meant that little would change. The school board implemented the "Corning Plan" in fall of 1954 and dealt with public demonstrations, high rates of absenteeism, and student strikes. Things calmed down as the weeks passed because the police and school officials enforced the new policies in a consistent manner. The schedule for full integration proved unworkable, however, and attempts to consolidate Washington, D.C. schools dragged on for several years. The District Board of Commissioners kept in close contact with the White House, through Maxwell Rabb and the president, himself, during the lengthy process.

The third stage of the Topeka school board's desegregation plan went into effect during the 1955-56 academic year. Public elementary schools in the USD-501 system had opened their doors, on a gradual basis, to African American children during the lengthy litigation of Brown v. Board. The capital city experienced a dramatic growth spurt during the 1950s, which resulted in new school construction and annexation of areas outside of the city limits. The Kansas state legislature passed a special bill in 1953 which allowed local school boards to purchase sites outside of their district boundaries for new school construction. Topeka USD- 501 added school districts to the south and west of the capital, and on the northern edge of North Topeka. Student population grew from 10,183 in 1950 to 12,811 in 1955, requiring the construction of eight new buildings. Some of these replaced older structures, such as Lowman Hill and Lafayette, but additional schools also helped relieve the burden of the growing student population. Articles in the local press from 1952 to 1956, appearing in the Topeka Daily Capital and Topeka State Journal, emphasized the progress made in the school board's integration plan. Reporter Anna Mary Murphy wrote on June 26, 1956 that "With the exception of about 140 older students, who may choose to remain in their original elementary school throughout the first six grades, Topeka will have complete integration next fall of its nearly 9,000 elementary youngsters."6 The quandary lay in the definition of "integration." The school board and many white residents believed that open access to enrollment in local elementary schools signified the accomplishment of integration. African Americans, on the other hand, looked for a convergence of the races. Townspeople expected school populations to be mixed, with white children joining their cohorts in the former black elementary schools, just as black students entered formerly white ones.

Where some perceived progress, others saw the same patterns of interaction. African Americans had been admitted to neighborhood schools, but white students continued to attend predominantly white schools. An analysis of enrollment for Topeka's twenty-four primary schools from 1952 to 1955 shows an increase in the number of African Americans attending facilities formerly restricted to them. Relatively little change occurred, however, in the racial composition of student bodies at Buchanan, Washington, McKinley, and Monroe. The total number of students in attendance declined because they transferred to neighborhood schools, but through this period, Buchanan, McKinley, and Monroe remained one hundred percent black. McKinley closed at the end of the 1954-55 academic year and all of its sixty-seven students transferred to Grant School. During the fall of 1955, one white child enrolled in Washington Elementary, a statistically insignificant event. Movement went in only one direction, whereby black students moved to predominantly white schools. LDF Counsel Robert Carter drew upon similar examples of desegregation in Topeka for oral arguments presented to the U.S. Supreme Court in April 1955. These enrollment patterns help explain some of the frustration felt by the NAACP with USD-50l's claim of progress toward full integration. 8

One cause of frustration stemmed from revised goals, as evidenced by new terms and meanings in the national debate about race relations. Across the country, the term "integration" began to replace "desegregation" in common usage during this period. This signified a lesser emphasis on opening access to formerly segregated schools, placing much greater importance on a proportionate racial composition. The term "integration," which Felix Frankfurter coined in 1953, served to define a new standard for the achievement of true racial progress in the late-twentieth century. African Americans in Topeka now had full access to neighborhood schools. Expectations went beyond that, however, because parents envisioned classrooms filled with children of both races, in numbers corresponding to the racial composition of Topeka's population. This led to another cause of frustration. Heretofore, the school board's program tried to equalize opportunity rather than ethnic ratios among students. The local NAACP chapter, still led by McKinley Burnett, opposed several "options" stipulated in earlier stages of the Topeka desegregation plan because they had allowed parents to enroll their children in formerly segregated schools. The group successfully blocked this option on September 15, 1955, in U.S. District Court, forcing USD-501 to craft Step IV, in an attempt to break segregated attendance patterns. Superintendent Godwin presented the fourth stage in USD-501's desegregation plan at a December 1955 board of education meeting. The plan linked school assignment to the location of one's residence. Step IV removed the option for kindergartners to attend formerly segregated schools and restricted attendance to schools within a specific residential district. Some districts overlapped, thereby creating an "optional district" where parents could select one school over another. Full integration, as outlined in the board's proposal, would take seven years to accomplish.9

It actually took much longer than that. Federal judges continued to oversee the integration of Topeka public schools, as prescribed in Brown II, through the next four decades. McKinley Burnett and the NAACP monitored actions by the superintendent and board of education for the immediate future. Members of the organization criticized USD-501 administrators for the lengthy timetable, believing that residents of both races would accept an immediate end to racial segregation. He also called for the integration of teachers, who had been left to teach dwindling classes at the three remaining black schools. Superintendent Godwin and members of the board seemed reluctant to place African American teachers in predominantly white classes. J.B. Holland, one-time principal at Monroe Elementary School, became a test case when he was assigned as a half-day teacher at two formerly all-white schools. To ease the transition, USD-501 administrators polled the parents of white students, requesting permission for their children to be placed under Holland's instruction. Other steps in the equalization process would take even longer to achieve. In 1962, after Godwin had left his post, Merrill Ross became the city's first African American principal of a formerly white school, Avondale West Elementary. Ida Norman also became one of the first to cross the color line. She had served USD-501 as a school nurse for the African American schools and, after Brown, added East Topeka and Polk to her rotation. After some initial tensions, these transitions eased some of the misunderstanding between the races and denote significant contributions to the achievement of racial equality in Topeka.10

Because the Kansas suit led the docket of five school cases before the U.S. Supreme Court, it has garnered more attention than the companion cases over the years. The original plaintiffs had continued with their lives during the three years of litigation. Apparently, none, in this or the other cases, attended the Supreme Court hearings. Most of the children of the petitioners in the Topeka case moved on from elementary to junior high school during the proceedings. They never gained admission to neighborhood primary schools, but some of the younger participants benefitted from the USD-50l's desegregation program. The most well­ known plaintiff, Oliver Brown, moved his family to North Topeka in 1953, upon receiving a full-time position as pastor of St. Mark's AME Church. By this time, the chance for Linda Brown to attend Sumner Elementary School had passed.11

During oral arguments on implementation, Delaware Attorney General Joseph Craven reported that high schools in Claymont and Hockessin had admitted the plaintiffs represented in Bulah and Belton. Desegregation began in New Castle County in 1952 and proceeded rather smoothly in the towns of Claymont and Hockessin. Shirley Bulah, the lead plaintiff in the Delaware case, enrolled in Hockessin School No. 29 and began making new friends. Raymond Wolters, in his concise study of the impact of desegregation, reports that most of Mrs. Bulah's opposition lay not with white parents, but among her African American neighbors. Some black students complained of racist treatment at the now-integrated high school and some parents criticized Mrs. Bulah for causing disruption in the African American community. Desegregation also proceeded in Wilmington, being phased in the city's elementary schools in 1954, junior highs during the next year, and integrating senior high schools in 1956. The plan contained a profound flaw, however, because the school board continued to offer a transfer policy, whereby students could enroll in another school located within an assigned district, if space were available. This provided an outlet for those who preferred not to enroll in historically black schools.

African Americans comprised approximately twenty-seven percent of the school population in Wilmington in the mid-1950s. This percentage increased as integration proceeded because white Americans began to move from the city into surrounding suburbs. Fears of declining educational standards contributed to the phenomenon of "white flight." Whatever the precise cause, Raymond Wolters, who studied the immediate progress of desegregation in the five communities represented in the School Cases, reports that, "Total enrollment in the Wilmington public schools varied between 13,000 and 16,000 students, but the percentage of whites steadily decreased from 72.9 in 1954 to 9.7 in 1976. The population shift transpired slowly during this twenty-year period and caused a dramatic revision of Wilmington's integration program during the 1970s and 1980s.14

While Wilmington schools became predominantly African American, districts "downstate" retained an essentially white racial composition. Mrs. Brenda Evans, an African American in the Clayton School District filed suit in 1956 on behalf of her nine-year old daughter to protest the lack of action in Clayton. Under the direction of the venerable Louis

L. Redding, Evans v. Buchanan inaugurated a renewed attempt to take desegregation beyond urban areas in Delaware. The pertinent issue now concerned responsibility for desegregation, rather than the desegregation process, itself. After lengthy proceedings and appeals, the Third Circuit Court of Appeals determined in 1958 that the state should develop a plan for gradual desegregation of Delaware's schools, to be implemented by local school boards by Fall 1961. As this example shows, residents in the southern part of state experienced the most difficulty with desegregation. Many attempted to block integration by rallying support for various "citizens' groups." Bryant W. Bowles, a non-resident, led the state's most belligerent protest in 1954, in Milford, on behalf of the "National Association for the Advancement of White People." The local school board drew the ire of its residents by implementing its desegregation plan without informing parents. Instigators, like Bowles, added fuel to the political inferno by playing on irrational fears of miscegenation and violence. The Milford incident seemed to reflect the broader climate of downstate Delaware. The state board of education pushed ahead with its broad integration policy during the early 1960s. It called for mixed enrollment and closed all remaining African American schools by 1967, thereby effectively integrating Delaware's rural school systems.15

Activists in South Carolina and Virginia achieved greater success in their efforts to stop the integration of the races in public educational facilities. Those holding office in Virginia embraced a segregationist stance and promised to make good on Attorney General Almond's threat to close, rather than integrate, the state's public schools. The more agitated segment of the "Old Dominion" dredged up the theory of interposition, whereby a state could "interpose" itself between federal authority and law. Such an act functioned to countermand the authority of the federal government within state boundaries. South Carolina used nullification, an expression of this political concept, during the nineteenth century to block federal orders. In 1956, Virginia followed its lead. The general assembly adopted an anti-integrationist position and passed an interposition resolution, which, as Robbins Gates explains, said "The 'sovereignty of Virginia' had been interposed 'against encroachment upon the reserved powers of this State,' and appeal had been made 'to sister states to resolve a question of contested power."'16 Local communities stepped in with their own ordinances to block the Supreme Court decrees. Spottswood Robinson, Oliver Hill, and Robert Carter, on behalf of the NAACP, countered by petitioning federal courts to order desegregation in Farmville and other communities by September 1956. School boards in Newport News, Norfolk, Charlottesville, and Arlington soon found themselves in the midst of the fray, stuck between desegregation orders issued by federal district courts, NAACP attorneys pushing for implementation, and the white community that balked at any notion of race mixing.17

In 1956, two federal judges issued desegregation orders in two separate actions, effectively throwing down the gauntlet before resistant school boards and parents across the state. During the next year, segregationists, who dubbed themselves the "Defenders of State Sovereignty and Individual Liberties," adopted the policy of "massive resistance." Even as desegregation plans were drafted, Governor Thomas B. Stanley vowed to withhold state funds from public school systems that proceeded with integration. Little came of this threat, however, for in September 1958, his successor, Lindsay Almond, closed nine public schools. "In order to avoid the integration of what might have been as many as seventy-one Negro students," Robbins Gates explains, "12,700 white students had their public school education suspended."" Approximately six months later, U.S. district court determined that state's denial of funding for public schools violated the equal protection guarantee of the Fourteenth Amendment. This action ended the official period of "massive resistance" and led to the reopening of schools in selected communities. Thereafter, Governor Almond softened his position by blocking additional segregationist legislation, amending tuition grant laws to remove mention of race, and adopting a statute against violence. Yet, at the same time, Almond also supported the repeal of compulsory school attendance, which indirectly aided those school systems that kept their facilities closed.19

The people of Prince Edward County bore the brunt of the assault on the Supreme Court's integrity because the school board was the subject of the Davis suit. Prince Edward County closed its schools in September 1959 by refusing to collect taxes needed to run them. Nevertheless, administrators raised funds, through contributions and tuition grants, to sponsor white students enrolled in "private" academies. The Prince Edward School Foundation, in effect, replaced the board of education and sponsored classes through the Prince Edward Academy for approximately 1,260 white children. The brand new Robert Russa Moton High School, built to provide a separate and equal facility for blacks, sat empty throughout this episode. The American Friends Service Committee, a Quaker organization, relocated approximately fifty African American students from Farmville to communities in the North and Midwest so that they might continue their educations. Those who remained received no formal education until the fall of 1963, when parents, with the backing of the U.S. Justice Department, formed the Prince Edward Free School Association to educate approximately 1,567 black and eight white students. The Virginia Supreme Court of Appeals reaffirmed the policy of "massive resistance" in 1963 through a ruling which stated that the state did not carry a constitutional duty to provide public education in every city and county in Virginia. The episode finally ended on May 25, 1964 with a U.S. Supreme Court order in Griffin, et. al. v. County School Board of Prince Edward County, et. al. that the county Board of Supervisors comply with federal authority and reopen the public schools. When schools opened in the fall of 1964, the student population consisted of more than two thousand African American and two white children. De facto segregation continued in Farmville through the next ten to fifteen years, with most African American students graduating from the county's public schools and most white children attending the Prince Edward Academy.20

Unlike its sister to the north, South Carolina shied away from interposition and "massive resistance" in the 1950s. Clarendon County, by no means, accepted the Supreme Court decree to integrate, but residents evaded the order in a less blatant manner. Throughout the litigation of Briggs v. Elliott, Governor James Byrnes had lobbied the Eisenhower administration for relief from potential Supreme Court action. He wanted Ike to temper judicial interference with state authority and to alleviate the hardships on South Carolina's patriarchy which Byrnes feared would result from desegregation. Through Brown II, the Supreme Court returned Briggs to federal district court in South Carolina, which would enforce the desegregation of Clarendon County public schools. Judges Parker, Timmerman, and Dobie, who had heard the complaint three years previously, carefully interpreted the Supreme Court's ruling as meaning that, whereas schools could no longer deny the enrollment of African Americans, neither could they force pupils to attend specific facilities. NAACP attorneys, led by Robert Carter, complained that the High Court's ruling implied that states must go beyond lifting enrollment restrictions, and instead strive to integrate schools. De facto racial separation harmed students just as much as de jure segregation had. The NAACP lost this round. Schools in Clarendon County, South Carolina, remained open after Brown

v. Board, but they also remained segregated. As in Farmville, Virginia, African Americans in the Summerton, Manning, and Greeleyville districts of Clarendon County attended all-black public schools and their white counterparts attended the private, Clarendon Hall Academy. Although intimidation and subjugation characterized race relations in these communities, they escaped blatant confrontation over desegregation, like that seen in Virginia's "massive resistance" strategy. This may be due to the fact that the players in this drama, Governor Byrnes, state legislators, federal judges on the Charleston circuit court, local officials, and white parents, all maintained the same position. They pledged to maintain the status quo and were prepared to close the state's public schools, but avoided doing so by devising a desegregation plan which allowed African American access only to single-race, de facto black, schools. This situation continued until 1963, when eleven African American students enrolled in predominantly white schools in Charleston. Two years later, five black students integrated Summerton High School, bringing the post-Brown chapter of the Briggs story to a close.21

Governor Byrnes promoted his segregationist agenda on a national scale during the 1950s. He, Virginia Governor Lindsay Almond, and Mississippi Senator James Eastland led the charge against federal interference in Southern social traditions immediately after the Court announced the Brown decisions. One hundred and one members of Congress, nineteen senators and eighty-two representatives, expressed their support for the segregationist position in March 1956 by signing the "Southern Manifesto." This unofficial compact recorded their opposition to the Supreme Court's action and apparently did little else. It signified a powerful voting block, however, which could thwart Eisenhower's domestic agenda. His administration kept a relatively low profile immediately following the Brown decisions until after Ike had secured a second term in the 1956 presidential election. Eisenhower then used the re-election momentum to push civil rights legislation through Congress, at first against the opposition of Majority Leader Lyndon Johnson and later with his help. In their study of the Eisenhower presidency, Pach and Richardson claimed that, "Johnson realized that he could raise his national stature and advance his presidential aspirations by guiding a compromise bill through the upper house."22 After lengthy and contentious debates which lasted several months, Johnson guided the Civil Rights Bill of 1957 into law. While heated debate had stripped the final version to bare bones, the 1957 law did establish a civil rights commission, a civil rights division within the Department of Justice, extended federal jurisdiction over discrimination and racial injustice, and spelled out new conditions for jury trials in criminal contempt cases. Perhaps most importantly, it signified the first piece of civil rights legislation passed since Reconstruction and established an important precedent for the more-widely renowned Civil Rights Act of 1964.23

21Wolters, The Burden of Brown, 138-141 149-150; Julian Scheer, The White Folks Fight Back," The New Republic 133 {31 October 1955):9-12; John Margolis, "Integration Hasn't Happened in Areas of 'Black Belt,"' and Wayne King, "Greatest Desegregation Strides Made in South," The Wichita Eagle Beacon, 13 May 1979, lF, 6F. Correspondence between Byrnes and Eisenhower can be viewed in several collect10ns at the Dwight D. Eisenhower Library; including the Administration Series, the Dwight D. Eisenhower Diary Series, and Names Series located in the Ann Whitman File, Papers of Dwight D. Eisenhower as President, as well as in Central Files, Official Files Collections.

During this pivotal ten-year period, from 1954 to 1964, segregationists mobilized their forces through grassroots organization, successful political campaigning, and harsh rhetoric. A meeting of concerned citizens in Indianola, Mississippi, sparked the formation of a loosely­ organized confederation known as the White Citizens' Councils of America. Its president, Roy Harris, summarized its dire, reactionary sentiment, saying "We are engaged in the greatest struggle and the greatest crusade in the history of mankind. If you're a white man, then it's time to stand up with us, or black your face and get on the other side."24 Citizens' Councils spread across the lower U.S. and did their best to block integration. Members gave notice to moderate Southerners to follow the segregationist position or suffer the consequences. They used economic intimidation, consumer boycotts, electioneering, and physical violence to bring local residents in line. Earl Black conducted a very thorough analysis of the use of segregation in campaign strategy from 1950 to 1969. He found that segregation, quite predictably, became the pivotal issue in gubernatorial elections held immediately after the Brown decisions. Fifty­ nine percent of the elections between 1954 and 1961 went to strong segregationists, whereas moderates won thirty-three percent of available offices. The viability of the pro-segregation stance declined significantly from 1966 to 1969, largely because of the stronger federal presence after the passage of the 1964 Civil Rights Act, greater economic security among African Americans, increased political participation by African American voters, and the broad social revolution of the 1960s and 1970s, which transformed U.S. society during the turbulent Vietnam War era. The configuration of both grassroots organization and participation shifted significantly, from white to black, during this period.25

The cause of civil rights, in fact, made significant gains during the late-1950s despite Ike's reticence and Southern resistance. Although the brunt of the modern civil rights movement lay ahead, the constitutional success of Brown v. Board of Education opened the way for an aggressive push to change discriminatory conditions in virtually all segments of society; including transportation, voter registration, housing, and public accommodations. The African American community of Montgomery, Alabama, and their Montgomery Improvement Association (MIA) escalated the momentum of the desegregation decisions. The successful 1955 Montgomery bus boycott propelled Rosa Parks and Martin Luther King, Jr., onto the national scene. The civil rights struggle benefitted from the talents of a new generation of African American leaders who broke on the national scene during the 1950s and 1960s. NAACP Secretary Roy Wilkins, New York Congressman Adam Clayton Powell, Jr., Martin Luther King, Jr., Joseph Lowry, and many others built upon the accomplishments of their predecessors, A. Philip Randolph, Walter White, Lester Granger, and Thurgood Marshall, to name only a few. Eisenhower recognized the political importance of these talented mavericks and reluctantly agreed to meet with Randolph, Granger, Wilkins, and King in the White House on June 23, 1958 to discuss the administration's stance on desegregation. Despite high expectations, the men left disappointed because the president uttered his usual palliatives and asked for patience with the slow rate of change. African Americans, by and large, had little patience with Eisenhower's approach, and instead took the initiative, themselves. The NAACP and Southern Christian Leadership Conference (SCLC), organized in 1957, provided a regional network for the organization of non-violent activities throughout the South. Integration in education provided only one outlet for non-violent action. Groups like the Congress of Racial Equality (CORE) and the Student Non-Violent Coordinating Committee (SNCC) promulgated civil rights on a national scale during the 1960s, tackling discrimination in all facets of society with notable success.

In the meantime, President Eisenhower had to defuse African American activism on the one hand and southern intransigence on the other. His responded by doing nothing publicly, thus exercising his "capacity for caution," as Stephen Ambrose puts it.27 Perhaps historians have viewed Ike too harshly, though, because his was the first administration to deal with race relations on a continuing basis. Although he advocated a moderate course, Dwight Eisenhower used his powers of persuasion through private correspondence with some of the most adamant segregationists. He cautioned men like James Byrnes, Herman Talmadge, and Orval Faubus to adhere to federal authority and asked the Reverend Billy Graham to encourage southern ministers to exert leadership in this time of change. Many in his administration also worked for social progress. The Department of Justice, first under Brownell's direction and then under William P. Rogers, strongly recommended that the Supreme Court overrule Plessy during the litigation of the school cases and thereafter pursued civil rights violations through the Federal Bureau of Investigation (FBI) and the department's new Civil Rights Division. Secretary Oveta Culp Hobby and her successor, Arthur S. Flemming, directed programs in the Department of Health, Education, and Welfare (HEW) which promoted desegregation, and also channeled federal support to school systems which implemented integration plans. Funding for the construction of new public schools, technical assistance for the improvement of existing buildings, curriculum development, and testing ranked highly among Ike's priorities. His administration facilitated the desegregation process by selectively providing funds, through grants and federal outlays, to districts which followed federal desegregation guidelines, and by withholding funds from those which evaded them." By 1957, the president had secured civil rights legislation and had appointed members to the newly-created Civil Rights Commission, which addressed the status of race relations in the United States. Ike recognized that Brown had ushered in a new era for social relations and, along with it, a more active role for the federal government. In a personal letter to his close friend, Swede Hazlett, Dwight Eisenhower commented,

I think that no other single event has so disturbed the domestic scene in many years as did the Supreme Court's decision of 1954 in the school segregation case. That decision and similar ones earlier and later in point of time have interpreted the Constitution in such fashion as to put heavier responsibilities than before on the Federal government in the matter of assuring to each citizen his guaranteed Constitutional rights.29

These words, written on July 22, 1957, foreshadowed some of the most grave events associated with the struggle to integrate the nation's schools. Little did Ike know just how involved he would become in the school desegregation crisis.30

Showdown in Little Rock

In his study of Eisenhower and the school desegregation episode, James Duram examined the president's tendency to waffle, dither, and evade when asked about his position on key events, such as Brown I or the closing of schools in Virginia. "The president maintained his position that when court orders were defied in desegregation cases," Duram explains, "the major point was not a question of integration but obedience to the law."31 His administration made some progress towards greater equality for African Americans, but hardly enough. The. Little Rock episode, instigated by Arkansas Governor Orval Faubus, forced Dwight Eisenhower to act like the general he once was and lead the American people. Publicly, Ike took his role as chief executive seriously, but evidence of leadership in the civil rights arena had been scarce. Most of the work to facilitate desegregation came from the judiciary, the legislature, cabinet members, White House staff, and employees of the Departments of Justice and HEW. Now the spotlight turned to Dwight Eisenhower. He took the path of least resistance, until he perceived that federal authority was in jeopardy. Ike ultimately endorsed the policy of racial integration in 1957 by calling upon federal troops to ensure the admission of black students to Central High School in Little Rock, Arkansas. He did so to affirm the integrity of the presidency and the authority of federal jurisdiction over the many states.

Other states had presented ample situations where Eisenhower could have taken a defining stand against segregation, Virginia and South Carolina, notwithstanding. White House staff had encouraged Ike to speak out against the 1955 murder of Emmett Till, an African American teen from Chicago who was shot while living with relatives in Mississippi. He felt it was a local matter that would be sorted out. The president referred the Autherine Lucy case to the newly-formed Civil Rights Commission. The University of Alabama had turned away Ms. Lucy and Polly Anne Myers after granting them admission for the fall semester of 1952. When the women arrived for matriculation, university officials retracted the offer of acceptance because Alabama law forbad the admission of African Americans to the state university. They turned to the NAACP for help, which it provided even while entrenched in the litigation of the school cases. Thurgood Marshall represented the women in U.S. District Court in Birmingham, but did not gain relief until 1955 when the Supreme Court confirmed a lower court order to admit Lucy. Segregationists prevailed, however, because they pummeled Autherine Lucy with eggs and racist epithets when in February 1956 she tried to enroll in the university. President Eisenhower kept quiet through the ordeal, even when Alabama Governor Jim Folsom asked him to send the National Guard to assist with the restive population. Ike also maintained a non-interventionist stance when individually Georgia, Louisiana, Kentucky, Texas, and Mississippi declared the Brown mandate unconstitutional and flaunted restrictions which prevented African American attendance of predominantly white institutions. 32

Orval Faubus finally prompted Eisenhower to act, perhaps because of the brazen manner in which he defied federal jurisdiction. Interestingly, the people of Arkansas had made significant progress toward integrating public school systems throughout the state. At least ten districts had drafted desegregation plans by 1955 and African Americans enrolled in five state universities in that same year. All seemed peaceful for the implementation of an integration plan in Little Rock scheduled for the 1957-58 academic year. Politics, unfortunately, intervened. Arkansas' governor, Orval Faubus, had served two terms with no hint of racial animosity. In July, he rejected a demand by the local chapter of the Citizens' Council that he use the interposition/ nullification strategy to halt the desegregation of the city's high school. But, staunch segregationists throughout the Deep South flooded the governor's office with telegrams and telephone calls which condemned his flurry of criticism, Faubus prepared for a tough reelection fight against two hard-line segregationists. He needed a strong response if he hoped to retain any chance of winning a third gubernatorial term. "A populist Democrat, Faubus appeared to be a moderate among southern governors on race relations," write Chester Pach, Jr. and Elmo Richardson. "Actually he was an opportunist."33

Faubus announced his decision to forestall the integration of Little Rock's Central High School on September 2, 1957, the night before nine African American students were scheduled to enroll for the 1957-58 academic year. The group, later dubbed the "Little Rock Nine," included Melba Pattillo (Beals), Elizabeth Eckford, Ernest Green, Gloria Ray (Karlmark), Carlotta Walls (LaNier), Minni jean Brown (Trickey), Terrence Roberts, Jefferson Thomas, and Thelma Mothershed (Wair). These students were recruited and selected by the local NAACP for their strong academic achievement, personal character, and willingness to attend Central High. For his part, the governor claimed that it would be difficult to maintain order if "forcible integration" were carried out as planned. In actuality, Faubus staged a protest, replete with National Guard troops, as a political ploy. Apparently few in Little Rock took notice at first. A legal brief filed against Faubus for these actions summarizes the scene, by stating that on the following morning, "Little Rock arose to gaze upon the incredible spectacle of an empty high school surrounded by National Guard troops called out by Governor Faubus to protect life and property against a mob that never materialized."34 His wishes prevailed, despite this false start, because several people turned out on the second day, September 4, to berate the African American children who tried to enter the building. Federal district court ordered the Little Rock school board to proceed with its integration plan regardless of the governor's opposition. Faubus had the upper hand though, and ordered the National Guard troops to remain at Central High in order to prevent the nine African American students from entering the public facility.35

Days passed and the stalemate continued. White public officials and business owners exerted economic pressure on African Americans, by eliminating credit and threatening job loss in order to force NAACP officials to back down. Governor Faubus became concerned about his tenuous legal position and solicited assistance from Arkansas Representative Brooks Hays. He and Sherman Adams, Ike's chief of staff, arranged a meeting on September 14, 1957 between Faubus and President Eisenhower in Newport, Rhode Island. The two men met privately for fifteen minutes and were later joined by Hays, Attorney General Brownell, and members of the White House staff. Eisenhower wanted to respect Faubus' authority as governor of Arkansas, but believed that federal court orders superseded state powers. For his part, Oral Faubus recognized the supremacy of federal authority and sought an honorable retreat from his predicament. Eisenhower believed that Faubus would return to Little Rock and modify his order to the National Guard such that troops would maintain order when the nine African American students entered Central High. His expectation proved to be false, however, and the stalemate continued. When Faubus returned to Little Rock, he expressed a desire to cooperate with the president's wishes, but did not modify his orders to the troops. The gauntlet was thrown down on Friday, September 20, federal District Judge Ronald Davies issued an injunction which ordered Faubus to end all actions which prevented the integration of the high school. That evening, the governor ordered the Arkansas National Guard to step down.

Ike worried through the weekend about the response in Little Rock to this latest decree which would open Central High School to integration on Monday morning, September 23. A crowd of approximately one thousand segregationists, assembled from across the Deep South, gathered outside of the school that morning. Melba Pattillo Beals, one of the "Little Rock Nine," has written a gripping memoir of the experience. "The shouts came closer," she recalls. "The roar swelled, as though their frenzy had been fired up by something. It took a moment to digest the fact that it was the sight of us."37 Whites in the crowd pelted the black students with rocks, bricks, and insults, and severely beat three African American reporters who were covering the day's events. The students entered Central High without injury and attended morning classes, but administrators sent them home at midday in an attempt to protect the young people from the intractable mob. Eisenhower watched the situation closely from Newport, Rhode Island, and issued a proclamation regarding the "Obstruction of Justice in The State of Arkansas." In a public statement accompanying this action, Ike explained, I will use the full power of the United States, including whatever force may be necessary to prevent any obstruction of the law and to carry out the orders of the Federal court.

Of course, every right­ thinking citizen will hope that the American sense of justice and fair play will prevail in this case. It will be a sad day for this country­ both at home and abroad--if school children can safely attend their classes only under the protection of armed guards.38

Perhaps this would segregationists to accept lead the integration of Central High.39

But, it didn't. On the following day, September 24, protestors showed up in even greater numbers, and it seemed that the situation would not be abated. Woodrow Wilson Mann, mayor of Little Rock, sent an urgent telegram to the White House asking for immediate assistance with crowd control and Ike responded accordingly. The president called upon General Maxwell Taylor, chief of staff of the U.S. Army, to send 1200 paratroopers from the 101st Airborne Division, stationed at Ft. Campbell, Kentucky, and federalized the Arkansas National Guard to enforce integration in Little Rock. Eisenhower returned to the White House and delivered a televised address that evening from the Oval Office to comment on these drastic steps. He explained,

The proper use of the powers of the Executive Branch to enforce the orders of a Federal Courtis limited to extraordinary and compelling circumstances. Manifestly, such an extreme situation has been created in Little Rock. This challenge must be met and with such measures as will preserve to the people as a whole their lawfully-protected rights in a climate permitting their free and fair exercise.40

Predictably, public opinion split along regional lines, with citizens in the North supporting Eisenhower's strong stance while those in the South condemned it. Governor Faubus claimed that the city had been turned into an occupied territory, but Ike refused to rescind his order until things changed in Little Rock.41

Troops of the 101st Airborne Division guarded the "Little Rock Nine" during the next two months, until November 27, 1957. The administration reduced their numbers gradually through this period and ultimately replaced them with members of the still-federalized National Guard. Although discussions continued, the stand-off in Little Rock lasted for the rest of the 1957-1958 academic year. Orval Faubus, bolstered by the support of other Southern governors, refused to give in. His reelection strategy had worked and he won a third term in November 1957. Still, Faubus refused to back down from his anti-integration platform and, when federally-enforced integration ended at the close of the school year, he shut down the Little Rock public school system. Facilities remained closed for entire 1958-59 session. Throughout the entire Little Rock episode, Orval Faubus had pursued relief from the original desegregation order through several appeals to federal district court and two high-profile actions before the U.S. Supreme Court. Aaron v. Cooper pitted John Aaron and other defendants against William G. Cooper, Jr., president of the Little Rock Board of Education, and his colleagues. Like previous desegregation suits, the original action, Aaron and subsequent petitions dragged on from 1957 to 1959. Thurgood Marshall and fellow LDF counsel represented the "Little Rock Nine" and other African American plaintiffs in the spate of litigation. The school board retaliated with Cooper v. Aaron, the Supreme Court appeal which ultimately found for the African American defendants who sought the racial integration of Little Rock's public schools. Courts repeatedly reasserted the precedence of the original Brown

40"Text of the Address by the President of the United States, Delivered from his Office at the White House, Tuesday," September 24, 1957, at 9:00 P.M., EDT, 3, copy in "Little Rock" files, Box 23, Administration Series, DDE Papers as President, Eisenhower Library.

41Beals, Warriors Don't Cry, 124-134; Pach and Richardson, The Presidency of Dwight D. Eisenhower, 153-155; Duram, A Moderate Among Extremists, 156-164; and Eisenhower, Waging Peace, 168-176. Executive Order No. 10730 authorized the use of troops in Little Rock

I decree during this three-year period of litigation. Rather than undermine its credibility, Faubus' scheme reaffirmed the constitutionality of the landmark school desegregation ruling.42

The clash between Dwight Eisenhower and Orval Faubus signified a turning point for desegregation in the United States. Mid-way through his second term, Eisenhower took a firm stance in support of racial integration. Most scholars point out that Ike acted primarily to uphold the authority of the chief executive and of the U.S. Supreme Court, concluding that this discounted any consequences which accrued for the cause of racial integration. This judgement may be too harsh, however, for the president clearly recognized the broader implications of equitable treatment for African Americans. In statements to the press and to the nation, at large, he criticized the obstruction of justice and reiterated the sanctity of individual rights and freedoms in this country for all citizens. Ike could do no less in this era of Cold War conflict. The propaganda campaign conducted by Congress and the executive branch highlighted the privileges of democracy against the restrictions of communism. The federal government could no longer deny the legitimate benefits of American citizenship to a broad segment of society in this climate. During the height of the Little Rock crisis, United Nations Representative Henry Cabot Lodge reminded Ike of the international implications of racial discrimination, saying,

Here at the United Nations I can see clearly the harm that the riots in Little Rock are doing to our foreign relations. More than two-thirds of the world is non-white and the reactions of the representatives of these people is easy to see. I suspect that we lost several votes on the Chinese communist item because of Little Rock.43

"I realize, with you, the harm that our prestige has suffered," Eisenhower responded, "and if you have any ideas as to how we might try to repair the damage, after the situation calms down, I would be most interested."44 Despite his apprehension, President Eisenhower left final resolution of the Little Rock situation to the courts and did not intervene when Faubus closed the city's public schools. He, instead, relied on the framework established in the 1957 Civil Rights Act to check discriminatory practices and on federal jurists to negotiate through the impassioned feud over full desegregation.

Creative strategies for desegregation

Dwight D. Eisenhower turned to other matters during the remaining years of his administration. He fought persistent rumors of poor health because Ike suffered a startling number of small strokes, episodes of coronary angina, and at least two major heart attacks during his presidency. The president's attention also was increasingly drawn to international issues, relating to construction of the Suez Canal, the spread of communism, and the looming presence of the Soviet Union. As in the early twentieth century, legislation and litigation became the most reliable tools for combatting segregationist strategies which, thus far, successfully had derailed the implementation of the Brown decisions in the Deep South. The 1957 Civil Rights Act, although significant for providing a federal mandate to end discrimination, lacked strong enforcement. A second, weaker, law followed in 1960 and a third, and most important one, was drafted four years later. Private initiative complemented and surpassed these limited congressional actions during the decade of the 1960s. The modern civil rights movement blossomed through non-violent demonstrations aimed to equalize access to public transportation, housing, restaurants, and other facilities. At the same time, the NAACP pursued litigation in the 1960s and 1970s which significantly modified desegregation strategies for public education. After a hiatus that bridged the late 1950s and early 1960s, the

U.S. Supreme Court whittled away at mechanisms designed to limit African American access to predominantly white, largely suburban, schools. Five key cases led to an increased federal presence in the administration of the nation's public schools during this period. Through them, the Court mandated aggressive strategies to counter the effects of school choice programs and the phenomenon of "white-flight," which took white students away from inner-city schools.

Civil rights legislation passed in 1957, 1960, and 1964 targeted discrimination in federal employment and established bureaucratic mechanisms to monitor race relations in the United States. The Eisenhower administration had announced the 1957 law with great optimism, but as time passed, it led to few real gains. White House staff joined with colleagues in HEW, the Justice Department, and members of Congress in 1959 to craft stronger legislation designed to protect African American voting rights and end interference with school desegregation. The Civil Rights Act of 1960 mandated the preservation of state records of federal elections for at least twenty-two months, and provided for the appointment by federal courts of voter-referees who would consider grievances from any person allegedly denied the right to vote. The law also designated arson and bombing as federal crimes, authorized schools for members of the armed forces when local facilities were not available to them, and levied a $1000 fine and year's imprisonment for obstructing the orders of a federal court. Unfortunately, the 1960 Civil Rights Act proved to be weaker than intended. Voting rights provisions contained in Title VI of the law seemed promising, but required case-by-case enforcement, and so were rather tedious and unworkable. These early steps towards designing bureaucratic and legislative civil rights protections were perhaps the most important accomplishments of the Eisenhower administration.45

Provisions of the Omnibus Civil Rights Act of 1964, passed during the Johnson administration, garnered greater authority than had these prior statutes. Harry Ashmore, a long-time civil rights activist, explains that "The measure transferred the burden of initiating action in school desegregation cases from black plaintiffs to the attorney general, and authorized the Justice Department to initiate class-action suits. This became the principal means for ending discrimination in housing, employment, and public accommodations, now specifically outlawed by act of Congress."46 Portions of the law also eliminated specific voting restrictions, long used by Southern states to restrict the African American franchise. Title I prohibited anyone from applying any discriminatory standard to a prospective voter that differed from those applied to other voters. Any test, such as for literacy or comprehension, had to be administered in writing and required of all registrants. Furthermore, states were required to conduct elections under a "rebuttable presumption" that anyone with a sixth-grade education possessed sufficient "literacy, comprehension, and intelligence to vote in a federal election." Arguably, the heart of the 1964 act lay under its Title II provision, which declared all persons to be entitled to "the full and equal enjoyment" of inns, hotels, motels, restaurants, theaters, concert halls, and other venues, "without discrimination or segregation" because of "race, color, religion or national origin." Other provisions of the 1964 law gave greater authority to the attorney general, the Commissioner of Education, and Civil Rights Commission to safeguard against racial discrimination in specific instances and to prosecute those who denied equal protection under the law. Title VI of the 1964 Civil Rights Act ordered HEW to withhold federal funds from public schools that discriminated against African American students. The following provision, Title VII, created a five-person Equal Employment Opportunity Commission which banned discrimination in employment on account of race, color, religion, or national origin by employers, labor unions, and employment agencies, and empowered the new commission to enforce the law. The Civil Rights Act of 1964 signified a mammoth, comprehensive step by the federal government to ensure equal protection for African Americans citizens of the United States. 47

More specific laws, such as the Voting Rights Act of 1965, and federal mandates calling for equal access to housing and employment closed some important loopholes in the omnibus bill. School desegregation, however, which had served as an important catalyst for this flurry of civil rights legislation, remained elusive. Subsequent litigation pursued by the LDF during the 1960s and 1970s sought to confirm the end of racial segregation in public education and equalize access to opportunity for African Americans. To this end, counsel set out to eliminate "school choice" plans, which became very popular in the early- to mid-1960s as a strategy for avoiding full, immediate integration. "Freedom of choice" plans theoretically allowed any child to attend any public school within his or her school district. In practice, districts largely remained predominantly black or white, and so restricted student choice to historically single-race schools. These plans relied on the force of local custom, economic conditions, and de facto segregation to restrict African American choices to predominantly black, segregated schools. By 1963, federal judges viewed "freedom of choice" plans as an acceptable stage in a very lengthy process of gradual desegregation, thereby giving them the full sanction of law and allowing school districts to defer full integration indefinitely. The LDF attacked school choice in Goss v. Board of Education of Knoxville (1963). Residential zoning, not race per se, dictated school attendance in this Tennessee community. The case arose when one student gained permission to transfer out of a predominantly black school where he fell in the minority and into another where he joined a majority of white students. Lower courts upheld the validity of the transfer, but the U.S. Supreme Court determined it to be unconstitutional because it used race as a determining factor in school attendance. Justice Tom Clark wrote the majority opinion, which reaffirmed Brown I by declaring that transfers based on the criterion of race, as in this case, were "no less unconstitutional than its use for original admission or subsequent assignment to public schools."48 While this decision banned plans which used race to determine school attendance, justices indicated that other factors would be permissible. Language in the Goss opinion warned of growing impatience with the slow pace of desegregation, but the Court did little to speed it along.49

Jack Greenberg instead credited Title VI of the 1964 Civil Rights Act for most of the accomplishments toward integration in the late 1960s. The segment of African Americans comprising the student populations of formerly white schools in the South grew from 10.9 to

15.9 percent during the 1965-1966 academic year, alone. Percentages were smaller in the Deep South, but grew from less than one percent in 1962-1963 to 6.01 percent in 1965-1966. Predictably, border states had the highest integration rate, with 68.9 percent of formerly all­ white student populations comprised by African Americans.50 Nevertheless, "freedom of choice" held these numbers down by allowing white students to avoid attending predominantly black schools. The LDF sounded the death knell for such programs by obtaining a definitive legal finding against pupil placement in Green v. County Board of New Kent County (1968). New Kent County, Virginia, had only two public schools, both of which combined elementary and secondary grades for white and African American students. One, in New Kent, lay on the eastern side of the county and the other, in Watkins, was located on the western side. The population throughout New Kent County was proportionately mixed in rural areas and residential neighborhoods, but the composition of the two student bodies fell along racial lines. Prior to Brown I, the county school board had assigned African American students to Watkins and sent white students to the school in New Kent. This pattern of attendance remained for more than ten years after the Court struck down de jure segregation in Brown v. Board of Education. Attorneys representing the county school board defended its policies, however, in light of criticism that it had done nothing to bring the races together. Administrators had enacted a policy which allowed the parents of children in Grades K-8 to make annual school selections, choosing between the Watkins and New Kent schools. The school board argued that the plan's provision for choice fulfilled constitutional requirements because it allowed African American students to attend either school, as they wished. Greenberg, as primary counsel in the litigation, attacked the de facto continuation of the pre-Brown conditions and community inaction to end segregation. The Supreme Court agreed.51

The Court, through Justice Brennan, rejected the argument based on the mandate of Brown II that school systems should pursue desegregation "with all deliberate speed." Brennan's majority opinion affirmed the constitutionality of Brown II, which had placed the responsibility on school boards to dismantle dual educational systems and bestowed them "with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch."52 The Green finding held that New Kent County had not complied with a desegregation plan because it failed to aggressively mix students of different races. Hereafter only "freedom of choice" plans which aided integration would be acceptable. In practice, Green v. New Kent County invalidated "freedom of choice" plans because, fourteen years after Brown, courts began to look more closely at the intentions and outcomes of desegregation strategies. The High Court established, furthermore, that racially-identifiable schools were suspect for lacking a proportionate blend of students from diverse backgrounds. Acts of omission now equalled those of commission, meaning that administrators no longer could stand back and let de facto segregation prevail, but instead had to take action to bring the races together.53

Green served as an important turning point in the history of educational equity in the United States. This case converted "a prohibition of racial discrimination to a requirement of racial discrimination," Lino Graglia explains, "while i,.cc:,orting to enforce the prohibition."54 It created a new litmus test for compliance with desegregation mandates of the Brown decisions and signified a new era in public school administration. The question now lay not in whether the school board was merely in compliance with Brown I, but whether a specific school board had taken sufficient action to balance enrollment between the races. This fine point indicated a sharper interpretation of Brown II, calling for results rather than cautious deliberation. As . Lino Graglia's polemical work indicates, this change constituted a shift from a prohibition of racial discrimination to a requirement of it. After Green, the harbinger of a dual system was now defined by insufficient racial mixing rather than assignment by race. Indeed, school systems now began to assign students to specific schools, by race and ethnic origin, in order to achieve a proper, proportional balance among students of diverse cultural and economic experiences. For this reason, Graglia argues that Green brought the Brown era to a close because, through it, the Court made racial labeling a prerequisite for school assignment in order to achieve integration. 55

De facto segregation was the nemesis of those who sought equality of opportunity and access in public education. As Dwight Eisenhower often warned, one cannot change feelings, perceptions, or attitudes through legislation or federal intervention. The government can, however, use its powers to end the legal standing of discriminatory practices, such as de jure segregation, and bring diverse peoples together so that they might correct and avoid mistaken perceptions. This became a major line of defense against de facto segregation. De jure discrimination, characterized by unconstitutional practices couched in law, was rapidly ending during the modern civil rights era of the 1960s. De facto segregation, however, was more deeply ingrained in social mores, customs, and practices which belied racist motivations and misinformed prejudices. After disbanding the legal framework of segregation, justices on the Warren Court had targeted the less tangible practices in an attempt to eliminate discrimination, "root and branch." The Court's resolute stance wavered a bit late in the decade and aggressive desegregation efforts carried out by the Department of Justice lost some support during the Richard Nixon administration. The new president, who had served as second in command during the Eisenhower years, appointed Warren Burger as chief justice of the U.S. Supreme Court upon Earl Warren's retirement in June 1969. Nixon criticized the Warren Court for legislating from the bench and promised to appoint federal judges who would undo the damage

it had done during its sixteen-year existence. He played to the fears and frustrations of white

Southerners, who in turn, fed Nixon's political influence as part of the "silent majority." The president, however, could not roll back the progress made for the cause of civil rights. While Chief Justice Burger lacked Warren's liberal bent, he did not, and could not, derail desegregation.56

When two significant cases came before the Court in the early 1970s, Burger affirmed the practice of pupil assignment, but curbed the scope of redistricting plans and busing as strategies to attain integration. The first, Swann v. Charlotte-Mecklenburg Board of Education (1971), involved a challenge to the North Carolina school system's desegregation plan. In 1962, the school board voluntarily instituted a policy to divide the city into districts, thereby making school assignments according to geographic location rather than race. The area consisted of 550 square miles, with 84,000 students in at least one hundred schools. Administrators implemented the districting plan and built additional facilities where necessary over the course of the next five years. Although whites held the majority, by 1965 more than two thousand African Americans attended Charlotte public schools. African Americans amounted to twenty-nine percent of the total student population, but schools remained predominantly black or white according to geographic location. Plaintiffs, represented by the LDF, filed Swann in 1965, claiming that the districting plan promulgated the continuation of dual systems in the Charlotte-Mecklenburg metropolitan school system. Judge James McMillan heard their arguments and found for the plaintiffs in federal district court based on the precedent established in Green v. New Kent County. The "rules of the game have changed," McMillan said, "and the methods and philosophies which in good faith the School Board has followed are no longer adequate to complete the job which the courts now say must be done ' now."'57 In 1969, he ordered county administrators to transport approximately 13,300 students to achieve-a more balanced ratio of African American and white students. Parents and school officials balked at the busing order and appealed the case to the U.S. Supreme Court even as it was implemented."

They found no relief there, however, for the justices sided with McMillan's lower court ruling. Chief Justice Burger addressed the key points in the Court's unanimous opinion. School administrators had asked the Court to restore some segregated neighborhood schools to the district plan, in hopes that residential integration would solve the matter. Burger refused, saying that desegregation plans cannot protect the neighborhood school because they must ensure a integrated, non-racial system. His opinion read,

The remedy for such segregation may be administratively awkward, inconvenient and even bizarre in some situations and may impose burdens on some; but all awkwardness and inconvenience cannot be avoided in the interim period when remedial adjustments are being made to eliminate the dual school systems.59

Swann, in effect, pushed aside districting plans in favor of busing to effect racial integration. The Court's finding authorized the transportation of students for the specific purpose of desegregating individual schools. Although considered discriminatory in Brown v. Board and Bulah v. Gebhart, busing became the primary tool in the 1970s for ending de facto segregation. Just as the very meaning of desegregation had been reinterpreted during this period, the issue of attending the neighborhood school was side-stepped in favor of racial symmetry. Location and access to schools in close proximity no longer mattered because racial composition, or balance, within classrooms had become the goal. Many residents of Charlotte and Mecklenburg County fumed about the turn of events which fixed busing as part of each child's life. But, they could not turn back, for Swann instituted the practice of using mathematical quotas for assessing distribution patterns of specific racial and ethnic groups. Through the next two decades, cities and towns across the nation wrestled with desegregation plans which relied upon the practice of busing. One by one, Austin, Nashville, Richmond, Norfolk, Charlottesville, Boston, and countless others, modified their attendance policies and implemented busing programs to bring class composition in line with population ap portion ment.60

For his part, President Nixon vowed to fight busing and incorporated it in his "Southern Strategy" to win the support of the disgruntled. Opposition flared in all regions of the United States, often regardless of specific opinions about race. Busing encompassed other difficult issues, as well; namely, those concerning the character of the neighborhood school, the well-being of children bussed over long distances, and the relevance of single-race or single-sex schools. Swann endorsed a busing program which included the city of Charlotte, North Carolina, and areas adjacent to it in Mecklenburg County. The inclusion of students from districts beyond the city limits raised specific objections elsewhere. Parents and administrators in Detroit, Michigan, challenged the practice of busing students across district and city boundaries in Milliken v. Bradle-y (1974). The complaint did not question the need for busing to integrate the metropolitan area's public schools, but rather the inclusion of students from suburban Detroit in the city's desegregation plan. In legalese, it contested the form of remedy, not the remedy, itself. Litigation began when Ronald Bradley's parents sued the Detroit school board in 1968 because he was assigned to a predominantly African American kindergarten class. After a six-year court battle, young Bradley attended a sixth grade composed wholly of African American students. Detroit's desegregation plan had no effect, in other words, on the racial composition of its schools. From the administration's point of view, it could hardly guarantee mixing races in a city fast losing its white residents. "White flight" to the more affluent suburbs left the inner-city with a predominantly African American composition. Those who remained largely included the middle-aged and elderly, whose children had completed their educations. Significantly, the proportion of African Americans of school age rose from 45.8 percent in 1961 to 69.8 in 1973. De facto segregation persisted, with blacks living within Detroit city limits and whites residing beyond them.61

The LDF represented the plaintiffs in the initial rounds of litigation in Bradley v. Milliken and upon appeal in Milliken v. Bradley. Several proposals, counter-proposals, plans, and policies came about during the six years of litigation as participants struggled to resolve the desegregation dilemma. It presented a rather ironic dilemma, for de jure segregation had never been applied in Detroit schools, but the city now wrestled with the very real predicament of de facto segregation. Could a desegregation plan be required of a school district that had never been segregated? Indeed, it could. Early in the process, Federal District Judge Stephen Roth determined that the Detroit Board of Education had evaded integration. He ordered school administrators, in cooperation with a citizen panel, to devise a viable plan to correct the situation. They created a strategy to bus white students into the inner city from the suburbs to achieve a greater racial balance among students. The plan viewed the entire metropolitan area as one huge school system, linking fifty-three suburban districts with those in Detroit. It, then, contained a total of 780,000 students and bused 310,000 of them each day. A busing plan which only included the city of Detroit, proper, would accomplish nothing because the schools would remain seventy-five to ninety percent black. A plan which included suburban schools, however, brought protests from parents that the city had no authority to annex outlying schools in order to integrate its own. Although lower courts reaffirmed Roth's initial decision to cross political boundaries, the Supreme Court struck it down. In a five to four decision, the Court ruled that the problems of Detroit stopped at its boundaries. Suburbs had not been part of the problem and they did not have to be part of the remedy. In doing so, justices disregarded the finding in Swann, which allowed cross-over between the city of Charlotte and Mecklenburg County. 62

The reversal occurred in a year which marked the twentieth anniversary of the Brown I decision. For the first time since Gaines (1938), the U.S. Supreme Court rejected the legal position taken by the NAACP in a desegregation case. Now a member of the Court, Thurgood Marshall said, "After 20 years of small, often difficult steps toward that great end, the Court today takes a giant step backwards."63 He insisted that his colleagues recognize and address the problem of "white flight" because it threatened to undo the progress made thus far towards racial integration. The encroachment of de facto segregation would prove to be a much more enigmatic and elusive adversary than had been the fight for equal justice under law. Over the course of this lengthy struggle, the mark of a segregated system changed from the use of race to aggressively control and confine, to the simple existence of racially-identifiable schools. The language and meaning of the words, "desegregation," and "integration," changed accordingly. The term, "desegregation," which had targeted enrollment restrictions, gave way to "integration," which implied a blending of the races, as coined by Justice Felix Frankfurter during the Brown proceedings. Modern usage of the term, "integration," implies not only racial mixing, but sometimes requires school administrators to forge a precise numerical balance of racially and ethnically-identifiable persons. While the debate about racial equity continues, some communities are retreating from aggressive strategies, such as busing and pooling students in subject-area magnet school programs. Citizens question whether the goal of integration now lies in the removal of restrictions, the creation of opportunities, or in the delicate balancing of students in correct demographic proportions. The answer need not rely on only one of these options, but it must address all of them.

Conclusion

Conclusions about this episode in the history of desegregation in public education are elusive and premature. There are only observations, findings, and judgements at this point because the line between history and current events is blurred. From this contemporary vantage point, Brown v. Board of Education lies midway in a long continuum in which people continually strive for parity. The pace of "deliberate speed" certainly has been slow. Although the Court struck down the legality of segregation and ordered communities to eradicate it, a number of factors hindered the process of desegregation. Fear and anxiety over such dramatic change led communities in all regions of the country to dally until confronted by the NAACP, local advocacy groups, or individual citizens with evidence of their inaction. Not all engaged in 11massiveresistance 11 to the Court's orders, but most equivocated because they had little motivation or desire to achieve true integration. Some, like Orval Faubus,

played the race card for political purposes; others employed it to alarm and intimidate. Diverse groups, from J. Edgar Hoover's FBI to southern citizens' councils, linked civil rights activism, including desegregation, to communism during the height of the Cold War.

Few children who served as plaintiffs in the school cases were able to attend integrated schools because the legal process dragged on for more than four years and implementation took even longer, depending upon the will of the local school board. Districts in Virginia and South Carolina directly confronted and evaded the Brown rulings. Those in Kansas, Delaware, and Washington, D.C., formulated desegregation plans during the course of litigation and enacted new policies in a faster, but rather piecemeal, fashion. School administrators in Topeka, Wilmington, Hockessin, and the District wrestled with the desegregation dilemma, first by redistricting and assigning students to nearby schools, then busing, and ultimately building magnet schools to achieve a proportional blend among the city's school populations. The pattern became typical in most communities during the 1960s, 1970s, and 1980s, marked by the successive pattern of segregation, desegregation, resegregation, court-ordered busing, and magnet school programs. Even the best intentions to integrate students fully during this period faltered because plans relied on residential patterns. "White flight" from inner cities, and self-segregation through other means, skewed the distribution of white and minority populations.

Educational systems on all academic levels still grapple with the goals of full racial integration, inasmuch as integration, itself, is the abiding objective. Whereas, in the past, school systems used racial categorization to exclude, they now use it as a tool to merge. Although communities continually strive to grant equal access to high-quality education, many citizens across the United States question the need to statistically balance racial and ethnic populations. There have been some ironic twists in the history of desegregation in the United States. Busing, once the onus of African Americans denied access to neighborhood schools, became, in the 1970s, the most widely used tool to bring students together. It appeared to be a good solution at the time, but it quickly complicated the integration process because white parents moved their families to desirable districts, often beyond the authority of inner-city desegregation plans, or enrolled their children in private schools. The trend occurred in most communities across the United States, raising the specter of self-, or de facto, segregation. Residential patterns, shaped by attitudes and economics, directly influenced public school policy and these could not be regulated.

A more recent device, that of magnet schools, strove to entice, rather than force, white students to attend schools in predominantly ethnic, minority neighborhoods. In a 1989 study of school desegregation, William Gordon proclaimed magnets as "the easy way out," requiring dual commitments of money and good faith. He found that they work best in small communities, such as Tulsa, Oklahoma, and achieve less when used in larger cities like New York, Chicago, St. Louis, and Kansas City. Nevertheless, magnets are still viewed as the most viable option, even after more than twenty years of mixed success. Topeka now takes a turn at the magnet school solution, as mandated by a 1994 order from the United States Court of Appeals for the Tenth Circuit. The action resulted from continuing litigation brought under the rubric of the initial Brown v. Board of Education of Topeka, Shawnee County suit. Attorneys involved in the suit, dubbed Brown III, claimed that Topeka never fully complied with the Supreme Court's desegregation decrees issued in Brown I and II. The remedy plan calls for the elimination of all racially-identifiable schools through the closure of four elementary schools, redistricting, and construction of four magnets, which will bring students together for specific curriculum-based programs. Topeka implemented the plan during the 1996-97 academic year, with hopes that the distinguishing characteristics of minority and majority schools will be eradicated over the next few years."

All of the investments of time, energy, and money in desegregation plans prove that the people of the United States value racial and ethnic integration. This applied not only to public education, but to all social interaction. Gary Orfield answered his query, "Must We Bus?" in this way

The choice before the nation is not whether its urban schools should be desegregated-that issue has been settled by the findings of unconstitutional segregation in most cities, judicial recognition of the right to desegregation, and insistence by civil rights groups on enforcing this right. The choice is whether we will integrate in a peaceful, beneficial, and lasting way.

Progress towards this end, indeed, has been slow and halting, but did occur during this twenty year period, 1955 to 1975, as highlighted by the modern civil rights movement. The success of Brown v. Board of Education sparked a whole wave of activism, designed to break down barriers in housing, interstate transportation, voting rights, and access to public accommodations. The movement spread first across the South, then branched into the northern and western regions of the country. While the civil rights movement relied on its strong grassroots base, the federal government proved to be a crucial ally in the struggle to gain constitutional rights for African Americans. Their success, in turn, led other groups, such as women, the elderly, Hispanics, gay/lesbian Americans, and those with disabilities to reach for civil rights guaranteed to them, as well, in the Fourteenth Amendment. All of these groups relied on the federal government to enforce the letter of the law and to craft legislation which would apply it. Civil rights acts, voting rights acts, equal opportunity protections, and safeguards of civil liberties woven into the legal code now provided greater assurances of "equality" and "freedom" for a larger number of people than at any time previously in U.S. history. "Equality is not absolute;" warns Stanley Katz, "as social norms change so do societal and legal conceptions of equality."66 The history of Brown v. Board of Education demonstrates this very well. The course of events during this volatile period imbued the concept of constitutional equality with broader social and political meaning. Law and policy now carried the presumption of equality and fundamental rights were no longer prizes which had to be won. Equality became the rule, rather than the exception.

CHAPTER SEVEN

MONROE SCHOOL: FROM SEGREGATION TO PRESERVATION, 1975-1999

Twenty years after its heyday, the Topeka Board of Education closed Monroe Elementary School because of structural deterioration and declining enrollment. For the next five years, the school system used the building as a storage facility and then sold it at public auction. From 1975 to 1991, the school functioned

alternately as warehouse, church, and shelter for the needy. Its useful days seemed at an end by 1991, when Monroe's owner offered it for sale and potential demolition. After active lobbying by the Brown Foundation for Educational Equity, Excellence and Research, the Trust for Public Lands acquired Monroe Elementary School and sold the property to the National Park Service in 1992 for the establishment of a national historic site commemorating the school desegregation campaign and continuing struggle for racial equity. Although the constitutionality of de jure racial segregation ended with the reversal of Plessy v. Ferguson, de facto segregation still prevails. Sociological factors prolong the full accomplishment of educational equity and true integration. Forty years after the initial Brown decision, many public schools remain segregated by racial or ethnic classification even though they educate a broader spectrum of students, of Asian, Hispanic, African American and other cultures. Education, however, lies beyond the specific communities that brought suit in the 1950s.

Brown opened opportunities for African American youth in towns, small and large, across the country and this is what the historic site celebrates. The Supreme Court, in finding that segregated school systems violated the constitutional rights of these Americans, created the most valuable precedent for the eradication of segregated facilities and the broadening of equal opportunity and just treatment for all United States citizens. Brown v. Board of Education provided the final constitutional battle in the long war to break down segregation in the United States. The segregated schools of Topeka, including Monroe Elementary provided crucial evidence for the Kansas case. While it no longer functions as a school, per se, Monroe stands as a monument to honor those who labored for racial equality and to educate all Americans about the importance of their work.

A. School's out forever

Built in 1926 as one of Topeka's four segregated black elementary schools, Monroe served its community well. It functioned as an educational facility and community center for a broad segment of Topeka's African American population from 1927 to 1975. For most of this period, its constituency was segregated, first by law and then by custom. The African American community, however, formed loyal ties to Monroe School and took great pride in the skill and dedication of its faculty. Citizens boasted the city's first parent-teacher association here and used the facility as a community center. The Topeka board of education closed Monroe Elementary in 1975 because enrollment had declined. This launched a second period of service, from 1975 to 1992, when its various owners used Monroe as a maintenance facility, church/mission, and warehouse. The building's useful life seemed at an end by 1991, but leading members of Topeka's African American community rallied to save the school because of its historical significance. Monroe Elementary bears distinction as a National Historic Landmark (NHL) as a result of its association with the Brown v. Board of Education school desegregation case and correlation to the broader civil rights movement of the twentieth century. This designation initiated its third phase, as a national historic site.

Thomas Williamson's classical Italian Renaissance design provided a wonderful setting for the education of Topeka's youth. From 1927 to 1975, Monroe's faculty offered core curricula in nine classrooms, in addition to kindergarten, manual arts training, and instruction in home economics. While its architectural components and styling are a bit understated when compared to schools built for white students during the same period, it was touted upon completion in 1927 as one of Topeka's "million dollar schools." The architect sited the new facility on Lots 517, 519, 521, and 523, immediately south of its predecessor at Fifteenth and Monroe Streets. The old Monroe Elementary was razed soon after the completion of the new building and the cleared area of Lots 505 through 509 enlarged the playground on the northern side of the new school. The board of education later acquired Lots 525 through 531 to be used as a playground to the south of Monroe School. In 1934, administrators added a vacant lot on Monroe Street, which lay across from the grade school, to the complement of playground facilities. This triangular parcel was bounded by Monroe, Fifteenth Street, Seventeenth Street, and the rail line of the Atchison, Topeka, and Santa Fe Railroad. Apparently, students had used this field since 1927, and a "land swap" officially incorporated it as part of Monroe's playground facilities. 3

3"A Million in New Schools," Kansas City Times, 15 November 1927, n.p; Roland Smith, Sarah Heath, Denise Hopkins, Scotney Fenton, and David Hurley, "Monroe Elementary School, Shawnee County, Kansas," Historic American Buildings Survey (HABS), HABS No. KS-67, United States Department of the Interior, National Park Service, 1992 (reposited in the Prints and Photographs Division, Library of Congress); Quinn/Evans, Architects, "Historic Structure Report: Monroe Elementary School," draft report, 1997; and Sherda Williams and David Barnes, "Monroe Elementary School, Topeka, Kansas," Cultural Landscape Inventory (CLI), Levels I and II, United States Department of the Interior, National Park Service, Midwest Regional Office, February 1995, 8-14. Monroe Elementary School served several generations of Topekans, largely those of the African American community, who attended under the system of segregation. Nevertheless, they received a quality education from teachers and administrative staff who were dedicated to providing the best instruction possible. Former students laud the professionals who taught at Monroe. Joe Douglas, a former pupil who went on to serve as Topeka's first African American fire chief, recalled, "The teachers here exuded love and trust, which was inductive to learning. The idea that separate is inherently unequal is correct, but here, there was a very strong substitute for what we didn't have."4 Many faculty members boasted high academic achievement, them­selves, including Bachelor and Master of Arts degrees. They engendered a strong sense of community with the residents who lived near the school and among Monroe alumni, which, in turn, led to deep loyalty to this institution. Although it became famous for its association with the 1954 Supreme Court decision regarding school desegregation, Monroe Elementary School represented much more to its students, parents, and faculty. It functioned as an institution of learning which fostered successful accomplishment, in spite of the social stigma of exclusion and racial separation. This helps explain some of the disappointment felt by friends and alumni when Monroe's integrity was challenged, first by desegregation, itself, and second, by declining enrollments. While African Americans in Topeka celebrated the Brown decisions, they felt some concern about the future of black, wonderfully detailed information about the genesis of the cultural landscape associated with Monroe Elementary, as documented in the record of School Board Minutes available in the USD 501 Administration Building, Topeka, neighborhood schools. "I think some of the people were sad," recalls Leola Brown Montgomery. During an oral interview about the school desegregation campaign, she said, "I think it didn't hit them for awhile that, why my goodness, these schools are just going to be gone. I mean we are not going to have any schools."5 Indeed, administrators closed McKinley immediately and shifted their focus away from the three remaining black elementary schools. Instead of integrating these facilities, the plan devised by the board of education focused on building new schools and moving African American children into formerly white facilities. As a result, Monroe's student population remained predominantly African American and slowly declined until 1975, when Topeka USD,501 administrators decided to close the facility. 6

For Monroe, the twenty-year anniversary of Brown II marked the end of its days as a grade school. Administrators used the facility as a warehouse for the next six years, 1975 through 1980. Maintenance staff with USD-501 transformed Monroe's playgrounds into parking lots for buses and maintenance vehicles. They immediately cleared the property of playground equipment, water fountains, and mud scrapers. A basketball backboard was the only feature that remained on playgrounds adjacent to the building. Maintenance staff also left intact the baseball field located on the eastern side of Monroe Street. The school board entertained the idea of selling Monroe School, as surplus property, as early as December 1978, but lacked a suitable buyer until 1980. Richard C. Appelhans purchased the property on June 27 of that year for $100,000. By this time, the city of Topeka had rezoned the area for light industrial/commercial use, which led to a significant change in the character of the neighborhood surrounding the former school. Commercial warehouses, businesses, and parking lots replaced residential housing throughout the next decade.7

The available source material provides contradictory information about Appelhans' intentions for the building. He, ostensibly, acquired Monroe for use as either an office building or private school. Neither venture worked as expected and he, and partner Richard L. Plush, Jr., sold the building to the Church of the Nazarene two years later. From 1982 to 1988, the building functioned as a church, serving religious and humanitarian functions for the community. Members removed walls and renovated Monroe's interior to accommodate several charitable services which the church provided. The building housed congregational meetings, a dental clinic, and a clothing bank. Leaders hoped to devote some of the interior space for use as a halfway house/dormitory, but this project was never fully implemented. Apparently disappointed with the limited impact of their work, the Church of the Nazarene sold the property in 1988 to SIS Builders, Inc., owned by Mark A. Steuve. Monroe again became a warehouse for construction materials and equipment. At some point during the late 1980s, a fire damaged the interior of the old school, marring some rooms on the southeastern, front, side of the first floor. It did limited harm, however, to the structure, itself. Steuve erected a chain-link fence around the property, but made few other changes during his brief ownership. As others had found, Monroe required relatively high maintenance costs and did not accommodate the needs of the construction firm, so in 1990, SIS Builders offered the property for sale at public auction.

By doing so, Steuve put the former Monroe School in a very vulnerable position.

It opened the possibility of demolition as never before because the building proved to be unsuitable for commercial use and the surrounding neighborhood increasingly had gained an industrial character. For the first time, it seems, people began to recognize the building's historical significance, structural integrity, and design qualities. The Kansas State Historic Preservation Office (SHPO) had surveyed the property in 1974 for possible inclusion on the National Register of Historic Places (NRHP), but did not proceed with the nomination.' From 1975 to 1990, Monroe's role in the Brown v. Board of Education desegregation suit received little, if any, attention. When the property was threatened with potential demolition, however, Brown family members, Monroe alumni, and others rallied to save the building. The cause drew upon their appreciation for the quality education received in the segregated elementary school and its significance to the reversal of discriminatory policies across the United States. Concerted action to underscore the importance of these intangibles would launch the third phase of Monroe's existence, that as a national historic site.

B. Monroe joins the Service

Through the next two years, the Brown Foundation, led by Cheryl Brown Henderson, spearheaded the campaign to save Monroe Elementary School and draw attention to its history. The foundation received aid from many individuals and organizations; namely, among former Brown plaintiffs and other supporters, the Black Historical Society of the Topeka Metropolitan Area, the Kansas SHPO, the Trust for Public Lands (TPL), Senators Robert Dole and Nancy Kassebaum, Representatives Dan Glickman, Jim Slattery, and Jan Meyers, and the National Park Service (NPS). Upon learning of Monroe's connection to Brown v. Board of Education, Mark Steuve agreed to retain the building until an alternate plan could be devised. In relatively quick succession, the property received historic designation on the NRHP as an NHL and was transferred through the TPL to the NPS. NHL designation inaugurated a new era for Monroe, perhaps its most important, because it launched the property into service as a national historic site. In 1992, the U.S. Congress authorized the establishment of the Brown v. Board of Education National Historic Site, established to honor the contributions of those who participated in all five school desegregation cases, their predecessors in civil rights activism, and successors who sustained the quest for equal justice in the broad civil rights movement of the twentieth century.

Jerry Jones, a Brown Foundation board member, first called attention to the "For Sale" sign posted on the fence at Monroe Elementary in June 1990. It announced Steuve's plans to auction the 22,000 square foot building and adjacent tracts of land. Jones informed Cheryl Brown Henderson, president of the Brown Foundation, of the impending sale and, in doing so, unofficially began the campaign to save Monroe. Henderson had three points of connection to Monroe Elementary; first, as a member the Brown family, secondly, as a former teacher at the elementary school, and thirdly, as an African American. Along with family and friends, Mrs. Henderson formed the Brown Foundation for Educational Equity, Excellence and Research in 1988, as a non-profit organization dedicated to honor the work of those involved in the Brown case, aid minority students, support educational research, and promote multicultural awar en ess . 10 Members now added a more immediate cause to their broad agenda. The foundation formed a community coalition and organized a national letter-writing campaign to wealthy individuals, politicians, and governmental leaders in an attempt to purchase the building. Mrs. Henderson, who led the charge, concisely expressed the importance of their cause. "Monroe elementary school, the other half of the equation in the Brown vs. The Board of Education of Topeka," she wrote, "is going on the auction block. If sold chances are great that the building will be destroyed or forever changed and therefore lost to present and future generations who know it to be a symbol of what we have overcome." 11 The coalition of concerned citizens suggested that the former school be used as a museum and resource center for African American history, but first they had to safeguard Monroe. Appeals for private patronage met with little success, so the Brown Foundation turned to public sources of support.12

Preservation of the building as a historic property hinged on official designation to the NRHP, preferably as an NHL. Monroe's historical significance seemed unquestionable, even though the SHPO had not filed a nomination after completing evaluations of the property in 1974 and 1987. Sumner, on the other hand, also had been evaluated and listed on the NRHP in 1987 as an NHL as part of an NPS constitutional theme study conducted by Dr. Harry Butowsky. It had been the school Oliver and Linda Brown walked to as part of the NAACP plan to attempt enrollment of African American children in white schools. Sumner had functioned as the white complement to Monroe during the school desegregation suit because Linda Brown would have attended Sumner if segregation policy had not forced her to commute to Monroe Elementary. In essence, each functioned as foil to the other, playing important, but opposing, roles in the litigation of the Kansas case. "By denying Linda Brown the right to enroll in the Sumner Elementary School," the nomination states, "the Board of Education of Topeka, Kansas, started the chain of events that led to the Supreme Court and the case of Brown v. Board of Education of Topeka."13 It seemed logical, therefore, that the segregated school, which Linda attended, merited equal status. At the urging of the Brown Foundation, Dr. Butowsky, who had written the Sumner nomination, amended the NHL in 1991 to include Monroe Elementary School. The sixty-five-year-old property retained a high degree of integrity and possessed historical significance on a national level for its association with Brown v. Board of Education .14

Although the idea already had been broached, advocates now had sufficient ammunition to request the addition of Monroe Elementary to the National Park System. Henderson had contacted the Trust for Public Lands (TPL) while the historic nomination ensued. This non­ profit organization purchases land threatened by development in order to protect natural and cultural resources. In this case, TPL functioned as a "holding company" by relieving Mark Steuve of the financial burden required to maintain Monroe Elementary and facilitating the subsequent real estate transfer. Kathy Blaha, former assistant director of TPL's midwest office, later explained, "We worked with S&S Builders to secure the site with an option agreement and put up the dollars for the real estate assessment and put some option money down to help him meet some of his costs."15 Timing was critical in this preservation process, but each step fell in line. The Brown Foundation petitioned governmental leaders in Kansas and the state's congressional delegates in Washington, D.C. to save the property as a historic site. They readily concurred and expedited its acqms1t10n by the National Park Service (NPS). Preliminary suitability and feasibility studies, conducted in 1991, confirmed Monroe's national significance and potential contribution to the NPS. President George Bush signed the enabling legislation on October 26, 1992 which established the Brown v. Board of Education National Historic Site. Ownership officially transferred to the NPS in December 1993 and work began in earnest to fulfill the mandates of its legislation:

to preserve, protect, and interpret for the benefit and enjoyment of present and future generations, the places that contributed materially to the lartdmark United States Supreme Court decision that brought an end to segregation in public education; and to interpret the integral role of the Brown v. Board of Education case in the civil rights movement; to assist in the preservation and interpretation of related resources within the city of Topeka that further the understanding of the civil rights movement.

The park unit is composed of 1.85 acres; including the former school, adjacent playgrounds, parking areas, and the baseball field located to the east of Monroe Street. The 1991 NHL designation for Monroe Elementary addressed issues of integrity and significance for the building, only, but a Determination of Eligibility (DOE) completed in 1995 provided an assessment of the cultural landscapes associated with the property. 17

Within a relatively short time, the former Monroe Elementary School went from the auction block to national historic site. The Brown Foundation played an instrumental role in this transition, largely through the hard work of its president, Cheryl Brown Henderson. Its work will continue long after the official designation of the new park unit. "The Brown Foundation," Henderson proclaimed, "is working cooperatively with the NPS and has the unique distinction of being one of a handful of non-governmental agencies that provide researchers, educators, museums, etc., with primary source information about the Brown case."18 It will aid the NPS in implementing congressional directives for the site when it opens to the public. Work currently proceeds to rehabilitate the facility for its multiple functions; as visitor center, interpretive center, and administrative office. This park is an important addition to the National Park System because it is one of few units which honor the achievements made by and for African Americans. Park staff hope to inform, challenge, and inspire visitors to look beyond stereotypes and pat stories. In particular, the Brown v. Board of Education NHS will focus its interpretive programs on all five school cases, their

participants, local histories, and the broader, national context of the modern civil rights movement. This new park symbolizes the long, hard fight to gain civil rights for African Americans, first, and by extension, the attainment of human rights for all peoples throughout the world.19

C. The cultural resources of civil rights

Monroe Elementary School joins a growing number of cultural resources significant for their association with the civil rights movement of the twentieth century. This constitutes only one category of historic resources affiliated with the legacy of African Americans in the United States, but it is an extremely important one. Sites, structures, landscapes, and monuments which document this theme may possess historical significance and integrity on local, state, and national levels. They may fall within several sub-categories relating to social, cultural, intellectual, and political history, as well as those pertaining· to the study of architecture, cultural landscapes, and material culture. The medium actually may be the message, in some cases, or convey it. It is important to remember that the point of all these lists of themes, property types, and sub-categories is African American history. This field traditionally has been under-represented in the National Park System, but in recent years, the NPS has placed greater emphasis on its contribution to the study of U.S. history. Agency policy reiterates the importance of physical evidence, in general, by noting that, "Cultural resources constitute a unique medium through which all people, regardless of background, can see themselves and the rest of the world from a new point of view. Access to cultural resources means that people can learn not only about their own immediate ancestors but about other traditions as well."20 The potential value of these resources can only be realized if they are protected and interpreted. This does not mean that they must be under public ownership, for many remain in private hands. Extant cultural resources associated with Brown v. Board of Education and the broader civil rights movement are safeguarded by the NPS, state historic preservation offices, local governments, and private groups who want to share the momentous accomplishments which they represent.

The Brown v. Board of Education NHS represents an urban park which wiiJ be accessible to local residents and distant visitors. The unit is composed only of Monroe Elementary School, its adjacent playgrounds, and ball field. It will provide a focal point for the interpretation of events in Topeka, the full school desegregation campaign, and the comprehensive civil rights movement. This means that related resources in public, but non­ NPS, and private ownership will ensure a comprehensive analysis of these historic events.21 Monroe represents a traditional black elementary school in Topeka and Sumner, a school restricted ro white students only. Of the four segregated schools, Washington is no longer extant, McKinley functions as a warehouse, and Buchanan serves as a training center/food bank. The historical significance of the two surviving buildings remains strong, but their integrity has been severely impaired. Some of the white elementary schools associated with the case were razed and replaced during the 1950s and 1960s; including Lowman Hill, Parkdale, Quincy, and Lafayette. Gage, Clay, and Randolph remain in use as educational facilities, although Clay now functions as a private, rather than public, school. Monroe and Sumner symbolize all of Topeka's segregated schools during the pre-Brown era, but most particularly for the period, 1950 to 1955, and the legal proceedings which abolished them.

Private residences also bear significance through association with the Topeka plaintiffs and grassroots efforts of local NAACP workers. Alvin and Lucinda Todd's former residence is associated with the Topeka desegregation case because of their activity in the local NAACP chapter and participation in the legal action, itself. Mrs. Todd served as secretary of the local branch chapter in the early 1950s and volunteered to be one of twenty plaintiffs in the Topeka suit. Her husband worked diligently within the organization to desegregate schools and public facilities in Topeka. The couple hosted NAACP meetings in their home on many occasions. In subsequent interviews, Mrs. Todd recalled meeting with McKinley Burnett and others around her dining table to draft correspondence requesting technical assistance from the LDF.22 Even though first contact between the local and national NAACP offices originated elsewhere, important contributions were made in this dwelling. The later relevance of these events accords a high level of significance to the Todd home and may make it eligible for nomination to the NRHP. This reasoning also applies to the residences of other plaintiffs, that is, their domiciles during the litigation, 1950-1955. Extant resources associated with these plaintiffs also bear potential NRHP eligibility, including the homes of Mrs. Richard Lawton, Sadie Emmanuel, Iona Richardson, Lena Carper, Marguerite Emerson, Shirley Hodison, Mrs. among other sources previously cited.

Allen Lewis, Darlene Brown, Shirla Fleming, Mrs. Andrew Henderson, and Vivian Scales. The homes, schools, and churches of NAACP staff, counsel, and plaintiffs merit consideration for their historical significance, as well.

The Brown residence, occupied during the period of significance, was razed in the 1970s for federal highway construction. Its former site bears some logistical significance because of its spatial relationship to the locations of Sumner and Monroe Schools. The transportation corridor between the Brown home site and the segregated schools provided important ammunition for the legal action to strike down segregation. National media used Linda Brown's experiences to represent those of her compatriots in Topeka and in other communities. The path along First Street which she, her sister, Terry, and other African American children walked, specifically between Topeka Boulevard and Kansas Avenue, still bears a great degree of historical integrity for the period of significance and merits designation on the NRHP. In similar fashion, the routes taken by other "infant" plaintiffs carried great importance in the case prepared by LDF and local counsel because they illustrated a major difference in the experiences of African American versus white youngsters.23 These cultural landscape corridors, therefore, possess historical significance which may make them eligible for nomination to the NRHP. The Santa Fe "shops" and St. Mark's AME Church provide two extant properties which bear association to Oliver Brown and his participation in the school desegregation case. He worked for the railroad when the case began and when it ended, he held the ministerial position at St. Mark's.

Public buildings, such as churches, offices, and governmental agencies, also retam significance for association with the successful desegregation campaign. Members of the Topeka NAACP chapter held meetings in churches, including St. John's and St. Mark's AME Churches. The importance of these resources is enhanced by association with Oliver Brown and other plaintiffs who belonged to their congregations. The legal offices of the Scott firm, located during the course of the litigation at 410 Kansas Avenue, are no longer extant. The Washburn University Law School, however, as alma mater to local attorneys on both sides of the issue, bears recognition. The Topeka State Capitol, listed on the NRHP in 1971, housed the office of the attorney general and law library used during the preparation of the state's brief.24 The federal district courtroom which provided the forum for the lower court hearing.

The Capitol, constructed from 1866 to 1903, bears significance for architecture and political history, rather than association with the landmark Brown v. Board of Education case. Please refer to Richard D. Pankratz, "Kansas State Capitol," Topeka, Shawnee County, Kansas, National Register of Historic Places Nomination, United States Depanment of the Interior, National Park Service, 3 September 1971. Readers can find a copy of the nomination in remains intact in the United States Post Office Building, located at 424 South Kansas Avenue. The courtroom and judges chambers retain a high degree of integrity and historical significance for the Kansas proceedings in June 1951.

Cultural resources associated with the specific legal actions in South Carolina, Virginia, Delaware, and the District of Columbia also pertain directly to the aggregate Brown v. Board of Education case. Those affiliated with Briggs v. Elliott include Summerton High School, Scotts Branch High School, Summerton Elementary School, Liberty Hill Elementary School, Rambay Elementary School, Liberty Hill AME Church, and St. Marks AME Church. Of these, only Summerton High School has been listed on the NRHP.25 Robert Russa Moton High School, in Farmville, Virginia, stands as the most well-known resource associated with Davis v. County School Board of Prince Edward County. This property has been designated an NHL and the Branch-Moton Historical Society seeks to follow the Monroe model, to some extent, in order to use the historic school building as a museum and/or interpretive center for the Davis case. The organization's goals for the development of the Robert R. Moton High School Museum are being achieved, largely through private initiative and tremendous support among the national preservation community. The complementary private facility, Prince Edward Academy, bears significance because it served as the segregated, white, school during the period of massive resistance in Virginia. The congregation of the First Baptist Church in Farmville followed its pastor, Rev. L. ·Francis Griffin, in the fight to desegregate Prince Edward County schools. The building possesses significance by virtue of the numerous meetings, rallies, and services held during this difficult period in Farmville's history.26

In similar fashion, advocates in Delaware are working to save the schools associated with the Belton v. Gebhart and Bulah v. Gebhart actions. These include Howard High in Wilmington, Claymont High School, and two formerly segregated facilities in Hockessin, School No. 29 (white) and School No. 107 (black). The Delaware SHPO and others seek to preserve and restore the Wilmington and Claymont buildings, in particular, because of their relationship with the larger Brown v. Board of Education litigation. Howard High School, which educated African Americans under Delaware's segregation policies, was added to the NRHP in 1985, for local significance. This secondary school was renowned for association with some of the state's most skilled African American professionals, including Louis Redding. Its significance broadens to the national level, however, through association with the school desegregation victory. Preservationists hope to secure NHL status for Howard High School and possibly for other related resources, as well, based on the overwhelming national significance of selected properties. The Redding House has been determined eligible for

inclusion on the NRHP, but has not been placed on the Register. Its primary significance traces to the contributions of siblings, J. Saunders, Louis, and C. Gwendolyn Redding. Louis Redding earned distinction as the first African American attorney in the state and as primary

counsel for the Delaware school cases. This structure, as well as law offices, private homes, and other facilities, contribute to the physical record of civil rights struggle in the Mid-Atlantic region. 27

Cultural resources in Washington, D.C. which bear relevance to Bolling v. Sharpe and the comprehensive Brown "package" fall into the same categories. John Philip Sousa Junior High School, formerly reserved for white students, and former black schools, namely, Browne Junior High, Shaw Junior High, and Benjamin Cardozo High School, should be assessed for inclusion in the NRHP for their connection to these events. All continue as functioning schools and their historical significance seems apparent, but integrity and condition bear inspection. Although religious properties normally are excluded from nomination to the NRHP, the Jones Memorial Church should be recognized as the meeting place for the Consolidated Parents Group, Inc., which met and coordinated strategy for the desegregation of public education in the District of Columbia. Federal properties which bear NHL status for architecture, significant persons, and a broad range of historical events, also contribute to the physical legacy of Brown v. Board of Education, civil rights legislation, and the broader movement, at large. The U.S. Supreme Court building, the U.S. Department of Justice building, the White House, the U.S. Capitol, and the Lincoln Memorial fall into this category.28

The NAACP's desegregation victory spawned specific battles over the control of public education which raised questions about the relationship between federal and reserve powers, the jurisdiction of the U.S. Supreme Court, and the regulation of implementation strategies. Central High School, known historically as Little Rock High School, stands as a principle resource associated with these issues. It received NHL status in 1977, for association with Orval Faubus' stand against the enrollment of nine African American students twenty years earlier, and the use of federal troops to guarantee their safe admittance.29 Battles arose in other states as desegregation proceeded. Cultural resources associated with the struggle for educational equity are abundant, even if not specifically recognized, in communities across the country.

'the reversal of Plessy opened a floodgate for the desegregation of all public venues and is evidenced by a plethora of cultural resources relating to this theme. 'the broader civil rights movement followed on the heels of Brown v. Board, with concerted efforts to equalize voting rights, as well as access to interstate transportation and public facilities of all types. Civil rights constitutes an important segment of African American history and is well-represented on the local, state, and national levels. The study of social history during the late twentieth century brought much greater awareness of individual players who helped bring about social gains for African Americans. Some of these accomplishments are represented by units in the

National Park System, such as the Frederick Douglass NHS, the Mary McLeod Bethune NHS, the Brown v. Board of Education NHS, the Martin Luther King, Jr. NHS, and the Selma to

Montgomery National Historic Trail. These units complement private concerns, such as the Birmingham Civil Rights Institute, the National Civil Rights Museum in Memphis, and the National Afro-American Museum and Cultural Center in Wilberforce, Ohio, dedicated to African American history. Individual properties listed on the NRHP also document the physical record of civil rights, including the Dexter Avenue Baptist Church and pastorium in Montgomery, and the Brown Chapel AME and First Baptist Churches in Selma, Alabama. Together, facilities like these provide a complete interpretation of pivotal events in the late twentieth century.30

Cultural resources provide the backdrop to otherwise intangible deeds by linking them to their human agents and placing them within the contexts of time and space. At a minimum, property types associated with the modern civil rights movement include schools, residences, office buildings, churches, federal courthouses, restaurants, bus depots, theaters, and cultural landscapes. 'the NHLprogram was established by the Historic Sites Act of 1935 for the recognition of properties which possess national significance. The NRHP, on the other hand, was established by the National Historic Preservation Act of 1966 to enable states to designate properties of state and local significance as important cultural resources. NHL designation bestows automatic listing on the NRHP. The Secretary of the Interior bears ultimate responsibility for the maintenance of each, but routine monitoring of each falls under the purview of the NPS. At present, only three properties associated with Brown v. Board of Education bear NHL designation, some are listed on the NRHP for state or local significance, and others are eligible for inclusion based upon association with the school desegregation cases or later civil rights activism. The NHL and NRHP programs are by no means the sole judges of historical significance and integrity, but they provide a widely recognized system for recording, documenting, and protecting notable buildings, landscapes, structures, and objects. Presently, Monroe Elementary School, Sumner Elementary School (Kansas), Moton High School (Virginia), Summerton High School (South Carolina), and Howard High School (Delaware) are the only representative resources currently listed on the NRHP for association with the Brown litigation. Central High School bears NHL designation for events associated with the 1957 Little Rock crisis and is a new addition to the National Park System. The Redding House (Delaware) has been deemed eligible for inclusion, but, thus far, has not been formally nominated. Churches, private residences, and law offices associated with participants

and supporters of the school cases, such asJ.A. Delaine, Jr., Francis Griffin, Jr., Barbara Johns,

Oliver Hill, Spottswood Robinson, Shirley Bulah, Gardner Bishop, and others, may also merit consideration for inclusion on the National Register. Representative cultural resources provide physical vestiges of these critical events and contribute to a more comprehensive understanding of their place in U.S. history.

D. Conclusion

Students of all ages can learn the important lessons of the NAACP school desegregation campaign through primary documents, secondary monographs, oral histories, and physical resources. Units within the National Park System are expanding the scope of interpretive programming to facilitate a more accurate view of events and people who previously were pushed aside by traditional "stories." The Brown v. Board of Education NHS, composed of the former Monroe Elementary School, exemplifies the agency's new emphasis on social and African American history. It will function as a symbol for the school desegregation campaign and serve as a nucleus for the interpretation of events in Topeka and related communities. The site represents a direct link between the school desegregation campaign and the subsequent civil rights movement.

The record of events leading to Monroe's preservation also provides a model for the protection of relevant cultural resources. This venerable building has had three lives: first, as an elementary school for African American children; secondly, as a warehouse and storage facility; and thirdly, as a national historic site in the National Park System. After its closure in 1975, most were unaware of its significance as one of Topeka's four segregated elementary schools and the one represented in the landmark litigation. Mark Steuve, of SIS Builders, reportedly had no idea of the building's role in the landmark Brown v. Board of Education decision until he put Monroe on the auction block. The Brown Foundation, under Cheryl Brown Henderson's guidance, drew attention to the historical significance of the abandoned school and garnered national support for its preservation. Her actions led to its designation in October 1992 as a new unit of the National Park Service. As mandated by Congress, this 1.85-acre site exemplifies properties which contributed to the landmark United States Supreme Court decision that ended de Jure segregation in public education. Through it, NPS staff will interpret the integral role which Brown v. Board of Education case played in launching the modern civil rights movement and will assist in the preservation and interpretation of related resources located within the city of Topeka.

Measures to stabilize and rehabilitate the building are currently underway, with its formal opening scheduled for the year 2000. As the park's only building, Monroe must serve several capacities; primarily, as administrative headquarters, visitor center, interpretive media center, and as an educational/ research facility. The park will fulfill its mission to explore the contributions and accomplishments of those who fought to secure African American rights in the United States through exhibitry, video presentations, interactive conferencing, and more traditional interpretive programming. 31 While linked to other NPS sites associated with the civil rights theme, the Brown v. Board of Education NHS will provide a specialized focus on desegregation in public education and endeavors to bring dual, segregated societies together. Like its juridical namesake, this historic site harkens to past injustices, praises hard-won accomplishments, and presages future attainments left for others to mark.

While Topeka, Kansas, is well-known for its prominent role in the Brown v. Board of Education litigation to effect desegregation in public education, most attention has focused on the suit's lead plaintiff, Oliver Brown and his daughter, Linda, rather than on the full record of events. This historic resource study seeks to separate and identify those symbolized by popular images and relate the documented history of the landmark school desegregation cases of the mid-twentieth century. Ever since the Browns walked to Sumner Elementary School in the fall of 1950, the nation has been captivated by the image of a little girl turned away from the neighborhood grade school that her friends attended. By freezing this seminal event in time, the powerful image became a popular American icon that characterized the prejudice conveyed by racial segregation and some degree of the discrimination endured by African Americans. The record of United States history contains lessons about several popular figures whose names and faces have become synonymous with momentous events in U.S. history, including Crispus Attucks, Dred Scott, Homer Plessy, Rosa Parks, and Oliver and Linda Brown. Such important figures have achieved symbolic status over time, representing far more than the single historical event in which they participated. Like myths and fables, historical icons serve valuable social purposes because they represent broad-sweeping trends and movements, serving as readily identifiable forms for a wide spectrum of actions and feelings. They are used to commemorate and celebrate a collection of important events. The image of young Linda Brown came to represent a national revolution for the equalization of civil liberties and equal justice; in other words, for the end of a society that based status and opportunity on race.2

More than sixty years ago, W.E.B. DuBois asked, "do we need separate schools?" He pondered the value of integration relative to the risks of exposing African American youth to prejudice and discrimination. Early in its organizational history, members of the NAACP decided that constitutional equality was worth potential personal risks and proceeded to challenge de jure segregation. While African American communities valued their rich social institutions of family, church, and school, they wanted to enjoy the full opportunities enjoyed by those in the mainstream, as well. Because law encoded these socio-political restrictions, the legal defense wing of the NAACP aimed to change it through litigation. And, the strategy worked because several factors coalesced; namely, opportunity, talent, timing, and dedication. The talent and drive of LDF co-counsel, the commitment of plaintiffs, and the hard work of NAACP supporters sustained the lengthy endeavor to overturn Plessy v. Ferguson. Although Charles Hamilton Houston and others began formulating the attack earlier, the context, or social environment, of the mid-twentieth century proved to be somewhat conducive to the school desegregation cause. World War II and the Cold War clearly elucidated the stark contrast between the jingoist rhetoric and racist reality whereby dual societies operated in this democratic nation. American citizens were directly faced with the inconsistencies of the black experience in the United States, Desegregation provided a solution because it would knock out the braces which separated the races. 'The school cases of the 1950s accomplished that, but they also made people realize that there was more to segregation than its legal trusses. Personal attitudes, fears, and stereotypes sustained the practice. ·

The glorious announcements of Brown I and II signified the hope and fulfillment of full constitutional equality. With the hard-fought victory won, however, Americans of both races began to realize that the real work of altering policies and attitudes had barely begun. Little changed, little happened immediately, except organization and militance by staunch segregationists. Real reform needed aid from those in power, and after a few years of silence, only began when the combined authority of the executive, legislative, and judicial branches of the federal government began to craft and enforce desegregation codes. Paul Wilson best articulates repercussions of Brown in his memoirs, explaining,

One impression stands out-law and litigation do not supply all of the answers to human problems. Law provides minimum standards of conduct and defines basic human rights and re_sponsibilities. Litigation provides the means to determine and enforce what the law requires. The resolution of human conflict requires more-understanding, compassion, and mutual respect.3

By the 1970s, private citizens and public institutions, albeit with some resistance and much litigation, implemented regulations aimed to effect full integration through racial balancing. Despite good intentions, results often have not met expectations. Although Swann (1971) sanctioned the use of busing to counteract de facto segregation, proactive integration policies of the past two decades have failed to guarantee racial balance among students in the nation's public schools. Jonathan Koza!, educational specialist and critic, conducted a study of inner­ city schools across the country in 1988, finding that ninety-five to ninety-nine percent of them had non-white populations. "What seems unmistakable, but, oddly enough, is rarely said in public settings nowadays," Kozol remarks, "is that the nation, for all practice and intent, has turned its back upon the moral implications, if not yet the legal ramifications, of the Brown decision."' As usual, Kozol's sharp criticisms are on target. If racial barriers have been eliminated, why is de facto segregation and inequity so widespread?

Another concern, first raised on the national level in Regents of the University of California v. Bakke (1978), pertains to the issue of "reverse discrimination" which has led to a reevaluation of affirmative action policies carried out by both governmental agencies and private businesses in the United States. The concept of "affirmative action" was first introduced during Lyndon Johnson's administration, as part of his broad "Great Society" program. 'The Civil Rights Act of 1964, the Voting Rights Act, and other civil rights legislation signified a proactive stance, taking affirmative action, to open opportunities to African Americans which, in the long run, would bring about greater representation by women and blacks in the workplace. Jurists and policy-makers tried to accomplish this through the use of busing and equal opportunity programs, and through the use of quotas to achieve a proportional representation of individuals from specific racial and ethnic groups. This raised the ire of some white citizens, including Allen Bakke, who cried "reverse discrimination" because they now felt excluded. Bakke applied to the University of California­ Davis medical school, but was denied admission in 1973 and 1974 even though his grades and test scores ranked higher than some applicants who were accepted. The university reserved sixteen of one hundred spaces for "disadvantaged" members of racial minorities, some of whom ranked lower than Allen Bakke. He sued the institution, claiming that the use of racial quotas violated his right to equal protection of the laws under the Fourteenth Amendment.'

Although professional schools use other criteria, in addition to test scores, when assessing candidates for admission, some form of discrimination had occurred. The crux of Bakke lay in whether or not preferential treatment was justified and whether or not the form of discrimination was constitutional. In 1978, a divided Court declared the use of quotas in this instance as being unconstitutional and ordered Bakke's admission. It also found, however, that the U.S. Constitution allows "race-conscious" admissions programs designed to benefit minorities in order to remedy past injustices. "Government may take race into account when it acts not to demean or insult any racial group," the majority opinion read, "but to remedy disadvantages cast on minorities by past racial prejudice, at least when appropriate findings have been made by judicial, legislative, or administrative bodies with competence to act in this area." 6 Although remembered for striking down a quota system, Bakke actually reinforced the legitimacy of affirmative action programs. Thurgood Marshall, then a member of the esteemed Court, bolstered the overarching effect of the suit, saying, "It is because of a legacy of unequal treatment that we now must permit the institutions of this society to give consideration to race in making decisions about who will hold the positions of influence, affluence, and prestige in

America."7 More recent litigation concerning minority contracting and hiring now threatens affirmative action incentives and forces a reevaluation of these policies, particularly in regards to guarantees of open access and equal opportunity in the United States.

There is also another side to this debate, one which questions the validity of integration and racial balancing as the panacea for the race issue. As generations of young people go through the process of desegregation, more return to Dr. Dubois' prescient concerns. Apprehensions about local control, quality education, equal opportunity, and equitable treatment under the law prolong the debate raised more than forty years ago by parents and leaders in communities like Summerton, Farmville, Topeka, Hockessin, Wilmington, and Washington, D.C. All agree we need educational equity, opportunity, and fairness. But, is integration the only way to achieve these goals? As the quality of public education declines and "minority" populations increase, more and more parents wonder if integration should garner so much attention. Cities and counties which possess predominantly African American populations question the need to continue busing programs, which merely shift students from one school to another. While Topekans still strive to create an integrated school system, some in the broader, national African American community advocate the right to maintain historically black schools, particularly on the elementary and post-secondary levels. These institutions could strengthen African American culture, celebrate its heritage, and retain control over the education of the nation's black youth. Local control is an important ingredient in the educational debate because it concerns the regulation of curriculum content and teaching excellence. As the quality of public education declines, parents of all ethnic and racial origins consider abandoning the system in favor of private institutions.

Even though Americans must continually deal with racial tensions and divisions, the record of school desegregation and broader civil rights activism confirm the importance of racial unity. Segregation was a galvanizing issue because the practice was wrong. Contemporary educational issues are not as dear-cut as they were fifty years ago because de jure segregation has ended, desegregation programs have been implemented, and public educators try to meet the needs of all children. Despite efforts to broaden instruction, however, the ramifications and logistics of doing so raise broader social issues. And, there are still no solutions. Concerns over the lack of full racial integration in the public schools of Topeka led to the resumption of the original Brown v. Board of Education litigation in the 1970s to achieve full desegregation, largely through Brown III. In 1994, the U.S. Supreme Court ordered the case to be sent back to the U.S. District Court of Kansas, which in turn ordered the Topeka USD-501 to implement a viable desegregation plan. In 1996, the school board did so by closing several elementary schools and constructing three magnet schools dedicated to specific curricula in an attempt to centralize educational facilities for all qualified students, regardless of race or ethnic origin. With these actions, perhaps issues which fueled Brown v. Board of Education fifty years ago finally will be laid to rest.

Last updated: August 17, 2021

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