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Oral History Interview with Jack Greenburg Pt. 2
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Interviewer: Oral History Collection. Brown versus Board of Education of Topeka. Supreme Court interviews. Interviewee Professor Jack Greenberg. Interviewer Aloja Ederma for the National Parks Service, part two. Uh, Professor Greenberg, uh, as these cases, um, were decided and then, uh, went on to the Supreme Court, uh, were you in contact with the lawyers in Virginia and South Carolina at that point? Jack Greenberg: Oh, yeah. We had a such a-a small group of lawyers [unintelligible 00:54], 2,000 in the whole country. We saw each other continuously. Interviewer: Now, you said you worked directly on the Delaware case— Jack Greenberg: Yeah. Interviewer: - and the Kansas case. Jack Greenberg: Right. Interviewer: At what point did you get involved with the Virginia- and the South Carolina case? Jack Greenberg: Uh, well I was peripheral with those cases, uh, uh. Interviewer: Throughout? Jack Greenberg: Well, when the case went to the—they went to the Supreme Court, all the cases were combined into one case where it consolidated together, so I was workin’ on different [loud noise] Interviewer: The reason I’m asking— Jack Greenberg: Yeah. Interviewer: - is because I’ve understood that, uh, a lot of the arguing at the Supreme Court was, uh, concerning Briggs. Is that true or false? Jack Greenberg: Um, well, the cases-the cases were argued differently each time. The first time each case was argued like the separate case. Interviewer: One by one? Jack Greenberg: One by one. The second time, uh, lawyers divided up the issues that were common to all the cases, and so [unintelligible 01:51] was Robinson argued the constitutional history as it affected all the cases. Um, and then I argued some procedure—um, well, there’s a book called Argument. Interviewer: Yes. Jack Greenberg: Yes, and [mumbling 02:08] to that. You can do better with that than asking me questions. Interviewer: [Laughter] Jack Greenberg: Um, and if you—if I’d known you were [mumbling 02:15] we would’ve taken a look at it. Interviewer: Mm-hmm. Jack Greenberg: Uh, but the-the second time, it was, um, done by issues of approach somewhat. I mean, you still were normally representing a particular, uh, client in the case, but we divided it. Interviewer: And so then, uh, there was not, uh, more attention paid to the Briggs case for whatever reason [unintelligible 02:43]? Jack Greenberg: Uh, well, I guess there was in the sense that it was all divided up whatever it was that, uh, Frederick was arguin’ about, he—uh, he was the lawyer in the Briggs case, and so they focused on him, and also because of his personality they had focused on him. Interviewer: Mm. Was he—uh, was he the lawyer in any of the other cases as well? Jack Greenberg: We were all lawyers in all the cases. Interviewer: I mean where he played a special role with that case like you have had in the Delaware cases. Jack Greenberg: Um, no, he played a special role in South Carolina, uh, and, uh, in Virginia. Interviewer: In Virginia. Okay. Now, the Washington case, Bowman versus Shaw 03:27— Jack Greenberg: Mm-hmm. Mm-hmm. Interviewee: - that was the only case that was based on the Fifth Amendment. Is that correct? Jack Greenberg: That’s right. Interviewer: And that was because it was the District of Columbia? Jack Greenberg: That’s right. Interviewer: Can you explain to us how that works? Jack Greenberg: Well, uh, the Fifth Amendment, uh, was part of the original Bill of Rights, and it has a provision in it that, uh, I don’t know exactly. [mumbling 03:49] “No person shall be deprived of due process of law.” Um, the, uh, 14th Amendment has a provision like that, but it also says, “No state shall deny any person due process [unintelligible 04:06] with equal protection under the law or the privileges and dealings as citizens of the United States.” So the question is, uh, equal protection under the law, it’s not exactly clear what that means, but it incorporates some motions of equality, and that’s what the Congress was up to at the time after the Civil War to see that equality be given to the former slaves. Interviewer: But they could not do it under the 14th because they were not a state. Jack Greenberg: They were not a state. Yeah. Worse than that to do the due process clause of the Fifth Amendment, the Fifth Amendment was written by the people who had slaves, uh, and to say that they were in favor of equality, it’s, kind of, a hard sell. Interviewer: And the Bolling versus Sharpe case, uh, wa-was lost, uh, in the District Court. Jack Greenberg: Yeah. Interviewer: That was the [unintelligible 04:53]. Jack Greenberg: Yeah. Interviewer: Now, help me understand, the four cases, Delaware— Jack Greenberg: Mm-hmm. Interviewer: - Virginia, South Carolina— Jack Greenberg: Yeah. Interviewer: - Kansas, they were argued together, and Washington was connected to it but was there because the ruling that was going to be made would affect it, but it was not actually part of it. Jack Greenberg: Well, it was not clear the ruling would affect it. The 14th Amendment, until then, had not affected the 5th Amendment. Interviewer: Right. Jack Greenberg: [Crosstalk 00:05:25] Interviewer: But it had been a test. Jack Greenberg: [Crosstalk 00:05:26] same science-sa—well, they-they all argued together ’cause it was very similar issues, and the way the court got over the Fourth and Fifth—versus Fifth Amendment dichotomy, when the case was ultimately decided, it just said, “It’s unthinkable, and we should decide it differently than any-other cases.” Interviewer: Okay. So it then literally was a part. They were all— Jack Greenberg: Oh, yeah! They were all argued together. Sure. Interviewer: Okay. I-I had gotten the impression that it was something that was added on but wasn’t argued in the same way as— Jack Greenberg: Well, it wasn’t argued in the same way because they had to argue the Fifth Amendment, and they weren’t so sure the Fifth Amendment would get ’em where they wanted to go ’cause as I said, how could you say the Fifth Amendment? And then you-you couldn’t have segregation, and the Fifth-Fifth Amendment was written by people who felt you could have slavery. Interviewer: Based on that issue, how involved was the INC Fund Washington Bolling versus Sharpe? Jack Greenberg: Well, that-that was, uh, again another-personality problem. Uh, you wanna get all the facts in the case. You wanna look at your neighbors. It’s the son of, uh, the man who argued it who was a very-good friend of mine, but he kept pretty much to himself. I mean, he came up, and he cooperated with us, but nobody was gonna tell him what to do, and he was not gonna argue about social psychology, and we knew that he’s gonna get up, and he wrapped himself in the flag, saying, “Our boys are dying in Vietnam and I don’t know Korea.” Interviewer: Um, now, he had been—he had taken over a lot of that type of activity—legal activity in Washington from Huston. Is that correct? Jack Greenberg: That’s right. Yeah. Interviewer: Did you know— Jack Greenberg: Did I know Houston? Interviewer: Yes. Jack Greenberg: No. I met him over the phone once. He died shortly after I [murmuring 07:04]. Interviewer: Right. But he—uh, he was very influential. Uh, he even had a im-impact on, uh, Thurgood Marshall. Is that right? Jack Greenberg: Oh, yeah. He was Thurgood’s teacher when he first started out. Interviewer: Yeah. Yeah. And he was very much involved in some of the earliest litigation? Jack Greenberg : Oh. He-he started the whole thing. Yeah. He— Interviewer: He was at Howard University? Jack Greenberg: Well, he was at Howard, but he left Howard to go into practice with his farther. Interviewer: Hmm. Jack Greenberg: Yeah. Interviewer: So the Washington case, uh, was part of the—they were combined together. What were-what-what-what was going on behind the scenes at the INC Fund? Uh, were there times when you had to change your strategy or what—you know, how did that work? You know? From the beginning through the various, uh— Jack Greenberg: In-in-in general or— Interviewer: Just until— Jack Greenberg: - in regard to the Washington case? Interviewer: Oh! Just in general, the Supreme Court case. Jack Greenberg: Well, after we argued it the first time, the court then threw the five questions at us. We had to answer five questions, so the first thing, which pretty much had to do with the history [loud noise] of the 14th Amendment or the 14th Amendment history meaning. And, um, then that required reconciling a lot of statutes and historical information that, uh, was not very clear and, uh, subject of great-considerable dispute. You find people today saying that Congress intended to outlaw segregation of the Civil Rights Act of 1860. Then you find other people who just don’t even wanna see somebody writing an article saying, “That’s a lot of nonsense.” So it-it was, kinda, hard to, uh-to, uh, come to closure on just what is that ruling gonna be, uh, and we asked historians to work with us. Joe Franklin 09:04 was one. There were others. [Unintelligible 09:07] from Michigan, um, [unintelligible 09:13] at Yale, uh, and they came up with theories that sometimes helped us and sometimes didn’t. Uh, we had to make an argument—one of the arguments we had to make was that the 14th Amendment was intended to abolish school segregation. Well, that’s a hard sell. I mean, I think maybe some of the people who [unintelligible 09:33] getting it enacted wanted to that, but to say that a majority of ’em did, and then the majority of the people in the ratifying states did. We had really no way of—uh, no way of knowing, no way of arguing that, but still we had to make an argument, so we-we [unintelligible 09:53]. I mean, there was definitely ill-will feeling about it that just, you know, just academic disagreements. Interviewer: What was the court’s response to that? Jack Greenberg: Well, the court ended up saying that nobody can tell what they meant. Interviewer: So then what did you have to do at that point? Jack Greenberg: Well, the court—well, the-well, the court’s response ultimately, that was in the Brown case. They said, you know, “We can’t tell whether they wanted to abolish school integration.” But they said, “We can tell they wanted to give the full measure of equality of Black people.” And full measure of equality back in 1896 or the mid 1800’s, or the 1800’s didn’t necessarily include schools because schools didn’t play a crucial role in life that they play today. Even that’s a little [unintelligible 10:40] that anybody said that. But now you can’t really be equal if you [unintelligible 10:47] equality in school. Interviewer: What was your reaction—at what point did you know that John Davis was representing—was working with the defense? Jack Greenberg: Oh, I don’t know, but I knew before the first argument started. I knew well before then. Interviewer: Uh-huh. What—did you have any concern about that? Jack Greenberg: No. I mean, you know, he-he wasn’t a magician. He—what he could do was what he could do. Interviewer: Uh, didn’t he have a—didn’t the—uh, during that time— Jack Greenberg: Mm-hmm. Interviewer: - as far as constitutional law was concerned— Jack Greenberg: Mm-hmm. Interviewer: - would it be safe to say that he was the leading, uh, legal scholar in the country, one of the leading? Jack Greenberg: No. He wasn’t a scholar. He was an advocate. He was a lawyer. Interviewer: Okay. Jack Greenberg: In fact he was—he-he had argued more cases in the Supreme Court then anyone had, maybe even to this day. Uh, and he was a very, uh, influential advocate, but one time during the argument, he-he began crying. Uh, what was—you know, tryin’ to put South Carolina. I was sitting next to a colleague of mine, and I said, “Look, he’s crying.” He said, “That son of a bitch cries every time he argues a case.” Interviewer: [Laughter] Jack Greenberg: So, uh, [laughter] you know? Uh, uh, no, I mean, he wasn’t a magician. He was [crosstalk 12:06 ]— Interviewer: I guess it was overstated then because I had— Jack Greenberg: He was a very-good lawyer, but, you know, you ca—he can’t make something out of nothing. Interviewer: Well, it would be safe to say that their involving him was to—uh, did they-did they intend that it would be intimidating? Jack Greenberg: No. I don’t think so. Interviewer: Okay. Jack Greenberg: We had the best lawyers [unintelligible 12:25]— Interviewer: So it was just overstated because I had gotten— Jack Greenberg: I mean, I had a friend who worked for the Port of New York Authority around that time, and they were having a big dispute with their bondholders and don’t ask me over what. How mu-how much they owed. Interviewer: Mm-hmm. Jack Greenberg: Uh, they hired John W. Davis. Interviewer: Mm-hmm. Jack Greenberg: But he wasn’t gonna intimidate anybody. Interviewer: I see. Jack Greenberg: He was just gettin’— Interviewer: Yeah. So there’s not perhaps as much as significance to him being part— Jack Greenberg: Well— Interviewer: - of the defense team. Jack Greenberg: - well he was—also he was a-he was a Southern, and he was friendly with the governor of South Carolina, so it would be natural. He was imminent, and somebody that Governor Byrnes knew, so it’d be natural to have [unintelligible 13:04]. Interviewer: Was there any connection to the [unintelligible 13:05] committee and the case? Jack Greenberg: The what? Interviewer: The [unintelligible 00:13:09] committee? Jack Greenberg: [Unintelligible 00:13:10] committee? Interviewer: Yes. Jack Greenberg: Was that some committee to refund the schools and the— Interviewer: It-it had something to do with, um, finding ways to, uh, both preserve and defend segregation as I understand. Jack Greenberg: I don’t know, but it-it didn’t play any role in the case. I mean, maybe they wanted to play a role in the case, but they didn’t, no. Interviewer: I guess what I should’ve asked is did it have any, uh, impact on the defense strategy. What can you share with us about the defense strategy other than— Jack Greenberg: Well, they-they had a pretty-good case. So their case was Supreme Court decided this in 1896. That’s the law, and we don’t change the law just because you don’t like it, but maybe in the current situation, there’s something else. But the Supreme Court said they allow segregation, and they rested on the-on the—um, on the precedent. Interviewer: Wasn’t one of the things that made this unusual was that it was actually asking, in a sense, for the court to do something a little bit more revolutionary than they typically did in terms of— Jack Greenberg: Oh sure! That was true. I mean, yeah, the-the court is never, uh, unaware of the consequence it would’ve done. Interviewer: And it tends to be one of the most conservative branches of government. Jack Greenberg: Yes. But at the same time, there was a peculiar circumstance that—uh, that if the court didn’t do it, nobody was gonna do it because Congress certainly wasn’t gonna do it ’cause the Sou-the South dominated the Congress. And they-they want—the Southern—White, Southern senators were not gonna put themselves out of business by saying you couldn’t segregate. Interviewer: Can you help us understand a little bit about what made this somewhat radical aside from the issue of segregation or the constitutionality—uh, the constitution issues? This whole—you had to do more than just argue about school segregation. You literally had to challenge Plessy versus Furgeson, which was the law. Am I-I correct in-in saying that was an additional challenge? Jack Greenberg: Oh, [unintelligible 15:22]. Yeah. It was the law. Yeah. Well, I-I come back to the circumstances. Um, I gave this talk in the Supreme Court about three years ago [unintelligible 15:32]. First of all, if, what would have happened if the court decided the case the other way? Um, well, the State Department that filed the briefing, sent a letter to the, uh, to the solicitor general, which he filed in the case, sayin’, “This is gonna mess up our foreign relations, and they’re criticizing us over the world about segregation.” Uh. Interviewer: What year was that? Jack Greenberg: It was in the Brown case [mumbling 15:54]. Interviewer: You’re— Jack Greenberg: I mean, uh, so the—uh, the-the population of repeat demographics is the United States had changed, and Black people were no longer just concentrated in the South. They were, uh, a political- and social force throughout the country, not as much as they would become, but certainly much more than they had been. Uh, the, um, Second World War had just been fought. You know? That was, uh, viewed in one way, quite actually we’re against racism. People was people killing people because of their religion and race, Gypsies, Jews, or Poles or something. You know? The United Nations, uh, Universal Declaration of Human Rights had just come to play. We’d struggled before that, which was essentially an outcome of the Second World War, uh, and, um, its influence, um, affected, it was equality and fairness or something. All these things were going on outside the-the court at the same time, and the court had taken [unintelligible 17:00]. Interviewer: Behind the scenes, you-you-you— Jack Greenberg: And one-more important thing. We were in a big competition with the Soviet Union, and they would say, uh, you know? We would say to them, “You’re suppressing.” [Unintelligible 17:14], ” “Why are you doing with Black people?” Interviewer: Mm-hmm. You mentioned that, um, had the case been decided earlier, it might have been decided the same way, but, uh, there might not have been as much, uh, uh, persuasion on the part of the chief justice as there was. Can you-can you help us to understand the differences between the two justices, and also what Warren did right? Jack Greenberg: Well, I’m, uh, not really an expert on difference be-between the two justices, but, uh, basically, uh, Vincent was conservative. Uh, he was, uh, not as activist. Interviewer: He was from the South? Jack Greenberg: He was from Kentucky so not the deep South, but he was-but he was not an activist. Uh, he would write in the [unintelligible 18:16] cases. He would write in the—um, the voting rights’ cases. The—he-he would write in the university and law school cases, so he-he was, uh, somebody—he wasn’t a, uh, primitive. He wasn’t a throwback, uh, but, uh, was he-was he-somebody to really rock the boat, I—that was—he probably less likely to do that. But Warren, uh, had a very profound sense of fairness. Uh, he would—[phone ringing] Interviewer: Warren, um, this sense of fairness that he had— Jack Greenberg: Mm-hmm. Interviewer: - what did he do as a result of that as far as the Supreme—Court case was concerned? Jack Greenberg: Well, uh, according to the historians, he didn’t do this in plain daylight, so he probably wasn’t in the records— Interviewer: Yeah. Jack Greenberg: - recollections, but he, uh, and there was a clearly majority for the plaintiffs in the case, but he felt that it would go a five to four or six or three, and the country would be divided, and this would—it would turn into resistance in the South, and he was clearly right about that ’cause it was unanimous. Um, so, he, uh, went to work from—for union in-in the court. Ultimately, he went to the last of the holdouts and Justice Reed, and s—he actually [unintelligible 19:44] Justice [unintelligible 19:45] actually did it and said, “Look, you write a descent cause you think that someday the country’s gonna come around to the point of view that segregation’s ending. It’s never come back, so what’s the point of writing a descent?” Interviewer: Uh-huh. Jack Greenberg: So we said that was right, so he did not descend. Interviewer: He did not? Jack Greenberg: No. Interviewer: Okay. Jack Greenberg: Uh, and a long, uh—well, [unintelligible 20:08] that he postponed the case and let people think about it, and, you know, he used whatever of the powers of be [unintelligible 20:15]. I might say when-when Warren was first elected in the pulpit, nobody jumped with joy. He had the reputation of a hard-nosed prosecutor. Interviewer: Uh-huh. Jack Greenberg: Uh, and the government played a part in-in turning Japanese in the Second World War, so nobody thought he was gonna be doing [unintelligible 20:31]. Interviewer: Uh-huh. What is the—um, talk t—talk a little bit, if you would, more about, uh, the significance of this case because I understand that there are—this case is studied, not just for the decision. Jack Greenberg: Yeah. Interviewer: Can you help us to understand, uh, what some of the larger issues are related to this [crosstalk 00:21:01]? Jack Greenberg: Well, just knowing the larger issues. Uh, the case—uh, well, first of all, it-it-it was a revolution in—uh, in Federalism, uh, the-the National Government told states to do things that the National Government that had told states to do before. Um. Interviewer: In this case? Jack Greenberg: In this case. Interviewer: Mm-hmm. Jack Greenberg: It was a revolution in race relationships. I mean, it was-it was the beginning of the end of subordination of Black people, which unhappily still continues, but it’s still certainly nothing now like it used to be. Um, it—um, it still confounds the, uh-the, uh, jurisprudence, uh, who—I say this to my colleagues here. “So the court was wrong on the history. It was wrong on the precedent. It was wrong on the facts, but it was right in the result. How do you account for that? Interviewer: Mm-hmm. Jack Greenberg: They said, “ I don’t know.” And so, uh, uh, it—uh, it shook people up a lot because in the-the legal reasoning is that, uh, it didn’t get ’em where they wanted to go, uh, but they went there anyway. So what does the legal reasoning mean? Interviewer: Mm-hmm. Jack Greenberg: And you-you have to stop and ask the-the serious questions about that, so-so, you know, there’s a big argument. It’s the most-important case ever decided. It’s the second-most-important case even decided. Interviewer: I’ve heard that said. Yeah. Jack Greenberg: [Crosstalk 00:22:30] Interviewer: Those three things you just mentioned. Jack Greenberg: Mm-hmm. Interviewer: It was wrong on the—can you name those three again? Jack Greenberg : Oh. [Unintelligible 00:22:38] Interviewer: Okay. Jack Greenberg: Well, it was wrong on the constitution history. They said— Interviewer: In what way? Jack Greenberg: Well, the-the—uh, [loud noise] nobody considers the argument, and I wouldn’t even argue with the—uh, that the Congress would show—adapt [loud noise] the 14th Amendment in the states that ratified it and intend to desegregate schools. Now— Interviewer: But yet you argued that because that was— Jack Greenberg: Well, but it was right on the constitutional history in the sense that the con—they wanted Black people to have full equality, so the question is can you have full equality? So— Interviewer: Right. Jack Greenberg: - so hopefully you level without distraction, which got you into a different argument. Interviewer: Right. Right. Jack Greenberg: Uh, it was wrong on the precedence. Well, it was Plessy against Ferguson, so we said, “Well, that’s a relative trend. You’re talkin’ about schools here. It’s a matter of generalization.” Interviewer: Uh-huh. Jack Greenberg: I said, “If you segregate somebody in a railroad train, you oughta be able to segregate ’em anywhere.” Interviewer: Mm-hmm. Jack Greenberg: Uh, and we was wrong in the facts, plus he talked about social scientific stuff, and they said, “There’s no basis for that,” so they said we was wrong on all those facts, but how—but then it was right in the result so. Interviewer: Now, let me—on that last point, uh, that was where the Doll Study had been done. The dolls had been used to-to show that— Jack Greenberg: The Doll Study was only a small part of it. I mean, the Doll Study was, uh, um, [crosstalk 24:00]— Interviewer: There was some controversy about the Doll Study wasn’t there? Jack Greenberg: Yeah. But the Doll Study was only one piece of a big, uh, psychological fabric that consisted of many-different things. Interviewer: Mm-hmm. Jack Greenberg: The Doll Study was rather a small part of it, but since it was Dolls, it was— Interviewer: Mm-hmm. Jack Greenberg: - attracted a lot of attention. Interviewer: But that was not felt to be valid. Is that [crosstalk 24:26]? Jack Greenberg: Oh, yeah. [mumbling 24:27]. Interviewer: Mm-hmm. Jack Greenberg: Well, a lot of people—not-not a lotta people, some people on our side didn’t use the Doll Study. [Unintelligible 24:32] doesn’t really get a win. Interviewer: Now, what happened after the, uh, decisions? There was another step a year later. Jack Greenberg: Brown II. Uh, Brown II was—well, the Supreme Court in 1952 asked five questions. The first-three questions had to do with the history of the 14th Amendment with, uh, whether or not, uh, the Congress intended that the court would interpret the 14th Amendment in such a way. Uh, but really the court just out of its own powers could do that without Congress giving them permission to do anything. Then the last-two questions had to with procedure. Uh, if-if we decided we’re gonna integrate the schools, which is when the court started telling the South to think about the unthinkable. Uh, how do we do it? Do we do it immediately? Forthwith as [unintelligible 25:31], or do we do it over a period of time? Do we lay down a timetable? Do we lay down a pattern by which the lower courts just look at a time table or do we—they had a-an idea of appointing a special mass for that, so-so Presario 25:49 who would just take the whole thing over and oversee the transition, and then the courts had to answer that. So the second Brown—or the third Brown argued that—the one after that. The second Brown argument was in the first-three questions of history, and then the third Brown argument was in the last-two questions of procedure, and you know about those. And they argued that—um, we argued forthwith, saying—well, we didn’t have to be forthwith. It was like next month, but that, uh, taking time to arrange things. And the South mostly argued the [unintelligible 26:26]. Interviewer: [Laughter] Jack Greenberg: I mean, they—uh, no Southern states said, you know, “Well, we’ll do it in a year. We’ll do two years, five years.” And they just said, “We just can’t do it.” Interviewer: And so you had this ruling said that with all—with— Jack Greenberg: Speed. Interviewer: Speed? Jack Greenberg: Which was a term that nobody’d ever heard before and. Interviewer: What was your reaction when you heard that? Jack Greenberg: Well, of course, what did it mean? Uh, and people said, “Well, it came from ancient-English-equity practice.” And I went to the library, and I looked through close to—you know, you couldn’t look it up, so I went by book by book, and I couldn’t find it. And recently I read somebody else did the same thing and couldn’t find it either. Uh, it, uh— Interviewer: Because the two terms, kind of, neutralize each other. Jack Greenberg: It’s an oxymoron. Deliberate means slow, and speed means fast. Interviewer: Mm-hmm. Jack Greenberg: Uh, people use the term a lot nowadays. It’s like all you have ever do is on deliberate speed. If they know what that means, they wouldn’t been doin’ it all. Interviewer: Mm-hmm. Jack Greenberg: Uh, but it came out of, uh, a number of places. One place it was a poem. I don’t know if you knew about that. Interviewer: No. Jack Greenberg: Frances Thompson wrote a poem called the “Hound of Heaven.” Interviewer: Mm-hmm. Jack Greenberg: Uh, and I’ve gotten written some book around here. See if I find it. It’s-it’s, uh, okay, and I quoted it in this book there. [Loud noise] Uh, it’s, uh, but, yeah, sometimes I read to my class. If I do it right, they applaud sometimes. Interviewer: Mm-hmm. So what essentially happened as a result of those arguments—the South not wanting to do it at all—what-what was the court’s decision? Jack Greenberg: Well, what happened was—I don’t think deliberate speed—uh, I, sorta, uh, disagree with a lot of people, and they disagree with me. They think the old-deliberate-speed decision slowed things down. I think—um, I don’t think it was a good decision ’cause I think it denigrated the rights of Black people whose s’pose to have a constitutional right, but at the same time nobody did anything to enforce it. But I think it had nothing to do with slowin’ things down. The things that caused the, uh, decision to, uh, not to be implemented because the South put up this [unintelligible 28:47] resistance, put the NAACP out of business in the United States, tied us up defending ourselves. Um, it then, uh, set up state Sovereignty Commissions, which persecuted Civil Rights’ people. It passed laws and engaged in all kinds of, uh, legal proceedings to interfere with the operations of Civil Rights’ organizations. The Department of Justice had no power [unintelligible 29:11] enforce desegregation. Uh, private organizations plus Legal Defense Fund did have the power to do it, but, uh, you know—he might’ve told you [unintelligible 29:25]— Interviewer: Mm-hmm. Jack Greenberg: - but there were 100 others. Interviewer: Mm-hmm. Jack Greenberg: Uh, not much you could do. Interviewer: Sure. Jack Greenberg: Uh. Interviewer: Essentially this has affected the whole country, not just [crosstalk 29:33]. Jack Greenberg: That’s right. That’s right. And then the Southern judges, I would say, 90 percent of them was very hostile, so they either dragged their feet, or they ruled against us. Interviewer: Mm-hmm. Jack Greenberg: So that’s what slowed things down. The Supreme Court could’ve said, you know, “Do it tomorrow,” and it would’ve taken the same amount of time. Interviewer: Mm-hmm. I understand. Jack Greenberg: Yeah. Interviewer: I understand. Now, Brown versus, uh, Board II— Jack Greenberg: Mm-hmm. Interviewer: - what exactly was being [crosstalk 30:00]— Jack Greenberg: Well, the debate was should you do it immediately, or should you set up [unintelligible 30:04], so on and so forth-so forth [crosstalk 30:08]— Interviewer: So when that was decided, what was the-the next step [crosstalk 30:13]? Jack Greenberg: Well, actually Brown v. Board II, if you come to it because it’s determined whatever the speed is, so that’s an oxymoron, but the standards they set down were pretty good standards. They have to have [unintelligible 30:24]. Uh, you can take time to, uh, write some new rules and draw up some new boundaries and set up [background noise 30:32] rules. Um, you cannot take time because of oppositions in the decision, and everything just quickly as possible, so that means in the biggest-most-complicated-school system in the country, you might have a year to do it. Interviewer: Mm-hmm. Jack Greenberg: And everywhere else, you could do it, you know, right next week or next month. Interviewer: Right. Jack Greenberg: So the standards were okay, but that isn’t what was holding it up. Interviewer: Now, I understood you to say that the big—the next-big case, which you were involved in related to this was in ’69 then? Jack Greenberg: That’s right [crosstalk 31:06]. Interviewer: How did-how did that come about, and what was the impact? Jack Greenberg: Well, that came about—it-it was an interesting thing. Um, we were bringing cases, which little by little were chipping away at the deliberate speed doctrine, um, even though the doctrine, as I said, was not central with holding things up, it essentially symbolized it. Uh, and the country was changing because the Civil Rights Act had been passed in ’64. Kennedy was elected in ’60, and he was for the Brown decision. [Loud noise] Civil Rights Act was passed in ’64, ’65, and ’68, so the Congress was lookin’ at the Brown decision, so we were then getting the political consensus that you didn’t have to [unintelligible 31:43]. Interviewer: Mm-hmm. Jack Greenberg: Um, we began chipping away. We brought a series of cases. Um, the South also was resisting by setting up some, you know, people-placement plans, so in order for Black kid—in order to integrate the schools, Black kids had to apply to go to the White school and integrate the system. Uh, and, the procedure for applying was very difficult and time-consuming and technical, and nobody ever got in. Only one kid—it was actually two kids, so we set chipping away at those cases, and we were winning those cases. Finally we won a case, uh, in Virginia called Green v. New Kent County, and that case was a fascinating case in that there was this sparsely-populated county, no Black schools, only White schools. And the court ordered to go and say, “Okay. Anybody wanting to [unintelligible 32:40].” The Blacks kept going to the Black school, and the Whites kept going to the White school as you might expect ’cause nobody wanted to stick his neck out. Uh, and so we went to the court and said, “They can’t do that. They’ve gotta the integrate the schools and bus ’em back and forth,” and the court agreed. They said, “You have to extirpate the segregation root and branch.” Well, armed with that, we started filing what we called, “Green Motions,” in the local courts in Mississippi, asking them to carry the segregation root and branch. And, uh, uh, we won such a case. I’m sorry. We lost the case and went to the Court of Appeals, and we appealed it, and it looked like we were gonna win the case. At this point, uh, Senator—it wasn’t Bill, but who was the other Mississippi senator? Anyway— Interviewer: East-east— Jack Greenberg: Maybe it was Eastland. I don’t know. Interviewer: Yeah. Eastland, I think, at that time. Jack Greenberg: Went to—um, went to President Nixon and said, “I can’t vote on—” He was head of the Military Affairs Committee in the Senate. “I can’t bring up the Military Affairs Bill for funding The-The Pentagon ’cause I’ve gotta be down with my people in Mississippi ’cause they’re so upset about this case. And I think I’m gonna stay down there unless you do something about it.” Uh, and so Nixon wrote a letter of the head of Health Education and Welfare [unintelligible 34:01] Court of Appeals, saying, “Don’t decide the case. Send it back to the Trial Court [unintelligible 34:06] proceedings. Um, we then did what happened in the District of Columbia case and the original-Brown case, we sent it to the Supreme Court. “Even though the Court of Appeals hasn’t decided it, you take it and you decide it,” and essentially that’s what happened. That was his case. Interviewer: Hmm. Going back to the Delaware case just for a moment, uh, you had indicated that, uh, it was held in the State Court, and that’s where you preferred it to be. Jack Greenberg: Mm-hmm. Interviewer: I understand that Thurgood Marshall had wanted the South Carolina case in Federal District Court in order to get it to the Supreme Court. Jack Greenberg: Uh, yeah, but— Interviewer: It’s-it’s pre-tracted. Jack Greenberg: - uh, that’s— Interviewer: Yeah. Jack Greenberg: Yeah. It’s true, but, uh, uh, the State Court would not have done you any good in South Carolina under any circumstances. Interviewer: Right. So the only reason that you preferred there was just because of the favor-favorable rulings that you had gotten for each one— Jack Greenberg: Oh, yeah. We’d won from Collins Seitz, and we figured we’d win from him again. Interviewer: Right. Jack Greenberg: But we— Interviewer: So when you were doing that, you were doing it in hopes of winning, and were not in the beginning hoping that it would go to the Supreme Court. It was only afterwards that you hoped it would— Jack Greenberg: Oh, no! We-we hoped to go to the Supreme Court, but, we, uh-we, uh-we also hoped to win. We wanted to go. Yeah. Interviewer: Now, if you win, you would not be able to take it to the Supreme Court. Jack Greenberg: That’s right, but we counted on them being dumb enough to take it [crosstalk 35:31]— Interviewer: I see. So that was part of your strategy? Jack Greenberg: Yeah. Interviewer: I understand. Jack Greenberg: Well, I don’t wanna sound like we had plotted on that out. You know? A lotta things you, sort of, [crosstalk 35:36]— Interviewer: Tha— Jack Greenberg: - as you go along. Yeah. Interviewer: Yeah. but that-that certainly worked in your favor. Jack Greenberg: Yep. All right. Here’s the—you wanna hear a poem? Interviewer: Yes. Jack Greenberg: Okay. Frances Thompson wrote a poem called the “Hound of Heaven.” It’s a beautiful poem. “I fled him down the nights and down the days. I fled him down the arches of the years. I fled him down the labyrinth and ways of my own mind, and in the midst of tears, I hid from him, and under running laughter, up the [unintelligible 36:05] I sped. And shock precipitated down Titanic wombs of Casim fears from those strong feet that followed after, but with unhurrying chase and unperturbed pace, deliberate speed majestic instancy, they beat. My voice beat more instant than the feet. All things betray thee who betrayest me.” Interviewer: When was that written? Jack Greenberg: When was it written? Uh, I’m not sure. [Pause 36:34 - 36:40] Jack Greenberg: I don’t know. It’s a-it’s a—I would-I would say well-known poet, moderately-well known. You have look at some anthology book and. Interviewer: Thank you for sharing that. Having worked on something as monumental as this and something that impacted as many people, and not just in the area of segregation but the court and the thinking of people— Jack Greenberg: Mm-hmm. Interviewer: - connected to the court, [unintelligible 37:06] uh, did you realize that you were involved in something that was of such-great significance at the time? Jack Greenberg: Uh, well, I gotta say yes and no. If you’d ask me, I would’ve said, you know, “Obviously, [mumbling 37:22] bragging rights. That was one— Interviewer: Mm. Jack Greenberg: - “for the history book, but I feel we personally impacted on them.” Interviewer: And how do you feel today, uh, and how-how do you feel others that-that you worked with would feel about the state of, uh, the degree to which segregation persists in the schools? Jack Greenberg: Uh, well, I think it’s, sort of, a testimony to the—well, basic rights [unintelligible 37:51]. There was a recent report on it just last week. In fact, I got it on the desk, uh, the study of school population, and, uh, on the, uh, Black kids who remain pretty much isolated. The Asian kids, uh, pretty much, uh, blend in with the Whites, and the-the Hispanic kids, not to [unintelligible 38:16] the Asians, but the blacks. Uh, and the Black kids remain pretty isolated ’cause the Whites moved away. Interviewer: As you pointed out, there are, at times, tendencies for people to choose to go to schools where there’s, uh, not a lot of diversity. Uh, sometimes because it’s a [unintelligible 38:36] school or whatever. Jack Greenberg: Yeah. Interviewer: And I guess that’s always going to exist, but I guess I’m-I’m wondering about the resistance that continues to exit today to people, uh, doing that when the circumstances would obviously suggest that that would be the more-practical thing to do. Jack Greenberg: Well, if you want me to explain racism to you, I can’t do it. Uh— Interviewer: No, just your feelings. Jack Greenberg: Yeah. Interviewer: Just how you feel as a human being that had worked so hard for this, and some of the others that are no longer here [crosstalk 39:04]. Jack Greenberg: Well, you see—you-you do see a lotta progress in other areas. I mean, it’s in the employment. Uh, you just look at the Republican cabinet for God’s sake, and the [unintelligible 39:12] more Republicans that are voting for [unintelligible 39:14] than voted for Bush. You know? [Laughter] Interviewer: So it’s safe to say that this case has impacted so many areas— Jack Greenberg: Uh, immensely. Interviewer: - other than education. Jack Greenberg: Immensely-liberating effect and education too. I mean, you know, you see the affirmation action started to— Interviewer: Mm-hmm. Jack Greenberg: Just take a look at this law school. When I went to law school here, there was one Black in my class, and she wasn’t even American. She was from the Bahamas. Interviewer: Mm-hmm. Jack Greenberg: Um, um, and when I went to college, there was one Black in my class. Um, and now at Columbia College, I was the dean over there [unintelligible 39:51]. It was 10 percent Black, and, you know, like 100 kids in each class. And in the law school here is like 11, 12 percent Black. That is, you know, [unintelligible 40:00] Black kids [unintelligible 40:01] so. Interviewer: And part of the reason I ask that was because—uh, and-and correct me if I’m wrong—is it true that many with the INC Fund felt more strongly about the importance of litigation than some of the people at the NAACP or some of the people with some of, uh, the other movements? Jack Greenberg: No, I don’t think so. I think they felt strongly about the litigation. Um, one of the things that happened is when they got tax exemption, which was sometime in the ’70s, they didn’t want them to close the INC Fund ’cause they felt they could do it without us, and we didn’t wanna do that, so they sued us so. Interviewer: Is it the case that because the courts, when the decisions were made, such as what happened with Brown, that there was not, on the part of the court, an attempt to enforce that. That it still took that social activism to-to get what the lawyers had been successful in. Jack Greenberg: Oh, yeah, without doubt. Yeah. That’s what happens. Interviewer: Yeah. So the case changed the law, but it still requires a change in people’s hearts. Jack Greenberg: Well, at least in their conduct. They may be actin’ that way and not feelin’ that way, but they have to change their hearts enough to-to act differently. Interviewer: Ultimately, um, given that we’re not just talkin’ about people agreeing to do that, but we’re talking about resistance to it, will—do you feel that it-it-it is going to be important at some point that people come to grips with racism itself as opposed just to laws that try to prevent people from— Jack Greenberg: Well, it’s-it’s always important and will continue to be important. Yeah. Coming to grips is not gonna deal with it, but I don’t know what coming to grips means. People are just gonna have to change, just have to change. Interviewer: Mm-hmm. Well, we certainly appreciate you taking this time. Jack Greenberg: Thank you. Interviewer: And we appreciate the effort that you and others, uh, were involved in, and it certainly has made a difference in this country. Jack Greenberg: Yeah. I wanna say I’ve been interviewed on this thing a number of times, but this is the most-intelligent interview I’ve had. Interviewer: Well, thank you. Female Voice: Thank you. Jack Greenberg: It, sorta, sounds like— Interviewer: What a compliment. Female Voice: Mm-hmm. Jack Greenberg: No. But seriously I— Interviewer: I hope that’s on the record. Jack Greenberg: You-you explored this in a way that I don’t—I-I’ve been interviewed about this at least once a year, once every-other year. Interviewer: Wow! Female Voice: Mm-hmm. Interviewer: Thank you! Jack Greenberg: Yeah. Well, you really do a good interview. Female Voice: We’ve gotta do our homework before get here. [Laughter] Jack Greenberg: Okay. [Crosstalk 42:51] Interviewer: Thank you very much. Jack Greenberg: I’m shuttin’ down the call again. I’ll be— Female Voice: Oh! Go ahead. Jack Greenberg: - back in a minute. Female Voice: No problem. [End of BRVB02b - 42:56] [End of Audio]
Description
Brown versus Board Oral History Collection. Brown versus Board of Education, Topeka, court case interviews. Interviewee Professor Jack Greenberg. Interviewer Oloye Adeyemon 00:27 for the National Park Service. Interview conducted on July 31, 2001 in the office of Professor Greenberg at Columbia University in Manhattan, New York. These interviews are made possible through the Brown versus Board Oral History Research Projected funded by the National Park Service for the summer of 2001 as part of the Brown ver
Date Created
07/31/2024
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