I think Plessy v. Ferguson was right and should be re-affirmed .
William H. Rehnquist, 1952
The initial strategy that the NAACP National Legal Committee pursued to challenge racial segregation was to equalize separate facilities created for African Americans. By 1935 Charles Hamilton Houston was spending most of his time with the NAACP and developing its plans to equalize public schools. He outlined, in the Crisis, specific objectives for the organization's new agenda in "Educational Inequalities Must Go":
At the present time the N.A.A.C.P. educational program has six specific objectives for its immediate efforts:
equality of school terms;
equality of pay for Negro teachers having the same qualifications and doing the same work as white teachers;
equality of transportation for Negro school children at public expense;
equality of buildings and equipment;
equality of per capita expenditure for education of Negroes;
equality in graduate and professional training.
This was an important declaration for the NAACP. Houston was outlininga plan to commit the organization's resources to equalizing educational opportunity, which meant abandoning Walter White's futile attempts to pass the antilynching bill. The article was published just after White's bill was jettisoned from the Senate floor. Houston announced that the organization was "to use every legitimate means at its disposal to accomplish actual equality of educational opportunity." Houston elegantly justified the renewed campaign:
This campaign for equality of educational opportunity is indissolubly linked with all the other major activities of the association. It ties in with the antilynching fight because there is no use educating boys and girls if their function in life is to be the playthings of murderous mobs. It connects up with the association's new economic program because Negro boys and girls must be provided with work opportunities commensurate with their education when they leave school. One of the greatest tragedies of the depression has been the humiliation and suffering which public authorities have inflicted upon trained Negroes, denying them employment at their trades on public works and forcing them to accept menial low-pay jobs as an alternative to starvation. Civil rights, including the right of suffrage, free speech, jury service, and equal facilities of transportation, are directly involved.
While equalizing teachers' salaries and busing schedules remained critical to its program, the LDEF began to focus on high-profile cases equalizing graduate and professional schools. Houston was reluctant to confront the Hughes Court (which had invalidated Roosevelt's New Deal legislation) with a professional-school case because it probably would not reverse on appeal. Pursuing the equalization of Black professional schools, nevertheless, was an effective strategy, for three reasons. First, southern state governments did not even put up a facade with regard to the equality of "separate-but-equal" professional schools. Second, real compliance with the separate-but-equal doctrine would create enormous expenditures from each state's Depression-ravaged budgets. The third reason was cultural: Houston and his colleagues were exploiting the peculiar southern belief that desegregation at the collegiate level seemed less pernicious than desegregation at the primary-school level. Thurgood Marshall (Figure 12) noted the irony: "Those racial supremacy boys somehow think that little kids of six or seven are going to get funny ideas about sex and marriage just from going to school together, but for some equally funny reason youngsters in law school aren't supposed to feel that way. We didn't get it but we decided that if that was what the South believed, then the best thing for the moment was to go along."
Thurgood Marshall, ca 1938.
(Courtesy of the Library of Congress)
Thurgood Marshall presented a solid test case for equalizing professional schools to Houston in 1935. Marshall had just completed law school at Howard University and set up a practice in his hometown, Baltimore.
This case concerned Donald Murray, a graduate of Amherst College, who had applied, in 1934, to the law school at the University of Maryland, Baltimore. The university denied him admittance because of its policy not to admit Negroes. Donald Murray first sought counsel from the local branches of Alpha Phi Alpha Fraternity and the NAACP, which were engaged jointly in a program to desegregate the University of Maryland. Marshall was a member of both organizations, so naturally they turned to him for assistance, and he enlisted the support of his mentor, Charles Houston. Several attorneys were vying to litigate Murray v. Maryland, but a reluctant Houston took it on.
Houston put on witness after witness and argued a brilliant case that Maryland did not provide a separate law school for African Americans so they had to admit Murray. On cross-examination, Houston riddled the testimony of the university's witnesses. He decisively reasoned that scholarships given to Negro students by the state to attend schools outside Maryland could not be construed as equal, because the University of Maryland was the only public school in which the state's unique form of Common Law was taught. The municipal court found for Murray, and he was admitted to the law school. The state court of appeals upheld the decision.
After Roosevelt's 1937 threat to add more justices to the Court, Houston pondered whether the Supreme Court would reverse lower court decisions imposing segregation as zealously as it had upheld New Deal legislation. He found, in 1938, that the Court would at least question the separate-but-equal formula.
Right after Murray the local branch of the NAACP in St. Louis worked up a case for Lloyd Lionel Gaines, who was denied admission into the University of Missouri Law School. The case was identical to the Murray case, except that the state insisted it was going to erect a separate-but-equal law school at Lincoln University. The state of Missouri already offered excellent resources, curricula, and professors for Negroes at Lincoln. Substantively, the education at Lincoln was equal to that at the University of Missouri, and the state insisted that it would build an equally impressive law school. The U.S. Circuit Court of Appeals upheld the denial of admission, and the separate-but-equal doctrine continued to be violated.
Houston petitioned the Supreme Court to grant a writ of mandamus to force the registrar, an officer of the state, to comply with the equal-protection clause. Chief Justice Hughes granted not the writ of mandamus but a writ of certiorari, the most common way cases are heard before the Court. The case was presented as Missouri ex rel. Gaines v.Canada . The Court agreed with the NAACP, and Hughes wrote: "The fact remains that instruction in law for negroes is not now afforded by the State, either at Lincoln University or elsewhere within the State, and that the State excludes negroes from the advantages of the law school it has established at the University of Missouri."
Cardozo had died before this decision was handed down. To replace him, in 1939, President Roosevelt appointed Felix Frankfurter, Houston's mentor and a member of the NAACP National Legal Committee. Roosevelt's appointments to the Court proved important for the NAACP's efforts to desegregate public school districts. By 1954, when the Court decided Brown, five of the nine justices were still Roosevelt appointees: Hugo L. Black (1937), Stanley F. Reed (1938), Felix Frankfurter (1939), William O. Douglass (1939), and Robert H. Jackson (1941).
What will Berlin Think?
The outbreak of war in Europe spurred the United States to prepare for war. Immediately, racial discrimination took on a global perspective. When Adolf Hitler snubbed Jesse Owens at the 1936 Olympic Games, African Americans spoke out against fascism. In 1940 Congress passed the Selective Service Act, and defense policies were becoming even more exclusionist, which motivated A. Philip Randolph and Walter White to submit a seven-point program to President Roosevelt outlining the acceptable treatment of African Americans in the defense industries and the armed services.
Thousands of jobs were created when Congress appropriated $1.8 billion to prepare the armed services for war, but African Americans were kept out of the hiring frenzy because defense contractors tenaciously held onto rigid Jim Crow policies. Randolph organized a march on Washington to demand equitable hiring by defense contractors: 100,000 African Americans were to unite on the Mall on July 1, 1941. Roosevelt frantically scheduled meetings with Randolph and other African American leaders and pleaded with them to call off the march. Randolph held fast and explained that he was going ahead. Washington was abuzz with the question, "What Will Berlin Think?" Randolph would call off the march only if the President issued an executive order "with teeth in it." On June 25, 1941, just days before the march, Roosevelt issued Executive Order 8802, which stated that "there shall be no discrimination in the employment of workers in the defense industries or Government because of race, creed, color, or national origin." It also established the Fair Employment Practices Committee to investigate violations of the order. The protest was averted.
The international dimensions of Randolph's protest were significant. Seven years earlier, Roosevelt had refused to support the antilynching bill, fearing southern Democrat reprisals. Ostensibly, they would retaliate against the executive order, but Roosevelt had to weigh party politics against the contradiction between U.S. support of freedom abroad and the denial of it at home.
As war raged in Europe, the United States was called on by the enemies of the Axis Powers to be the arsenal for democracy. Giving material support to nations that were being besieged by fascism while maintaining racial inequality required remarkable ideological ambidexterity. The inability of the United States to declare a resolute position with regard to democratic ideals and contrasts made between Jim Crow and Hitlerism weakened its position as defender of equality and freedom and damaged its creditability. To compound these contradictions, almost one million African American men and women served courageously in all branches of the armed forces—in segregated departments.
Fueled again by the wartime economy, another massive wave of African Americans filled jobs created by the defense industry, now desegregated by Roosevelt's executive order. The northward migration was renewed, and for the first time there was a great movement from east to west. The number of Black people in the West tripled when large numbers migrated to Portland, Seattle, Oakland, and Los Angeles to work in shipyards and other industries.
Perhaps more than any other event, World War II illuminated the duplicity of state-sponsored racism. Allied rhetoric about the fight for the "four freedoms" encouraged African Americans to fight for freedom at home. The Holocaust, in which some 6 million Jews were murdered in the name of racial superiority, forced all Americans to confront White supremacy in the United States; more and more, predominately White organizations were making it clear that Jim Crow was unacceptable. African Americans quickened these trends by launching the popular Double-V campaign—victory for freedom abroad and at home.
An American Dilemma: A Guidebook for the Negro Problem
An American Dilemma won instant and widespread acclaim when it was published in 1944. Myrdal's theme was palatable and timely. Frederick Keppel, president of the Carnegie Corporation, recognized that the timing of the watershed study was indeed fortunate. In the book's foreword Keppel wrote:
When the Trustees of the Carnegie Corporation asked for the preparation of this report in 1937, no one (except possibly Adolf Hitler) could have foreseen that it would be made public at a day when the place of the Negro in our American life would be the subject of greatly heightened interest in the United States…. [T]he eyes of men of all races the world over are turned upon us to see how the people of the most powerful of the United Nations are dealing at home with a major problem of race relations.
Myrdal's popular theme quelled the angst many Americans felt when they considered the parallels of state-sponsored racism in the United States and in Nazi Germany.
Though our study includes economic, social, and political race relations, at the bottom our problem is the moral dilemma of the American—the conflict between his moral valuations on various levels of consciousness and generality. The "American Dilemma," … is the ever-raging conflict between, on the one hand, the valuations preserved on the general plane which we shall call the "American Creed," … and, on the other hand, the valuations on specific planes of individual and groups living, where personal and local interest; economic, social, and sexual jealousies [exist].
Myrdal's theme appealed to the American public because he fashioned the Negro problem into a moral dilemma for Whites and a formidable task for Blacks, to assimilate and work themselves out of poverty. But he raised the stakes: White Americans either had to embrace the American ideal of equality or be forced to confront the rising tide of Black militancy.
An American Dilemma effectively reshaped the discussion of race and culture in the United States for the next fifteen years. It became a guide for an array of social policies, a standard text in university curricula, and a dominant reference in nearly every forum on race relations. National newspapers and magazines, including the New Republic, Time, Life, Saturday Review, the New York Times, and the Chicago Tribune, endorsed Myrdal's them by printing articles and reviews with headlines such as "Race Riots or Race Unity: Which Will It Be," "Dr. Myrdal's Treatment of the Negro Problem and Modern Democracy Is a 'Must' Book," "Democracy's Chance: The Negro Problem," and "Comprehensive Study of the Negro Problem: Scholar Predicts War Will Change Outlook of Negroes by Making Them Feel Entitled to Share in American Ideals of Equality." Although the book was not uniformly praised, the federal government began to see the geopolitical benefits of creating the appearance of better race relations. The NAACP was pleased with the book's public reception because it validated and certified the long strugle for racial equality. The legal arm of the NAACP began to see it as solid and well-respected evidence for overturning Plessy .
Mr. Civil Rights
In 1939 the LDEF was established as a separate tax-exempt organization to preserve the NAACP's right to lobby Congress. The LDEF was soon under the direction of Thurgood Marshall, and Howard law professors William Hastie and James Nabrit emerged as key members. As a spokesperson for the LDEF and its celebrated lawyer, Marshall soon became known as Mr. Civil Rights. He handled every kind of case all over the country. He fought for equal salaries for teachers in hostile Little Rock, he defended three Negroes charged with murder in a county besieged by the KKK in Florida, and he confronted South Carolina's consistent abrogation of court-ordered voting rights. As an "outsider" who had come to the South to skew the rigid color line, Marshall was routinely harassed by local police and constantly confronted fear for his life.
While the war curbed the campaign to equalize public education, it solidified public contempt of segregation, which in turn prompted the LDEF to pursue a more aggressive agenda. The LDEF had to make difficult decisions about where to focus its resources. Marshall weighed its priorities: "Without the ballot you've got no goddamned citizenship, no status, no power, in this country. But without the chance to get an education you have no capacity to use the ballot effectively." The LDEF chose to focus its limited resources on attacking the entire separate-but-equal doctrine in a campaign to desegregate public schools, with the aid of social science.
The sociological arguments the LDEF was developing became more attractive with the public's praise for An American Dilemma and the mounting need for better race relations in the United States as the cold war eclipsed World War II. The LDEF attorneys seized these opportunities and finally convinced the U.S. Department of Justice to support the NAACP with an amicus curiae brief detailing why the executive branch supported its case. In 1943, before An American Dilemma and the cold war, the Justice Department refused to support the LDEF's argument to end the Texas White primary in Smith v. Allwright (1944). In 1948, however, U.S. Attorney General Tom Clark supported the LDEF argument to strike down the enforcement of homeowners' restrictive racial covenants with an amicus brief in Shelley v. Kraemer (1948). This dramatic shift of the executive branch concerning Jim Crow laws was essential to the success of the ensuing school-desegregation campaign. The government submitted amicus briefs in support of the LDEF for every desegregation case that followed Shelley .
Harry Truman was ultimately responsible for the executive branch's new support of civil rights issues. After Roosevelt died, Truman moved quickly and decisively to establish the United Nations, broker Germany's unconditional surrender, and order atomic bombs dropped on Japan. He moved equally decisively to expel communists and to secure civil rights for African Americans. In 1947 he created the Federal Employee Loyalty Program to expel so-called communist sympathizers ("the reds and parlor pinks") from government service, terminating hundreds of federal workers and forcing several thousand to resign. He also established the President's Commission on Civil Rights, which first convened early that year. By October the commission had completed its report, To Secure These Rights (1947).
The report recommended that a permanent commission be established to enforce fair employment practices, that federal subsidies for Jim Crow health, education, and housing facilities be revoked, that Jim Crow cars on interstate transportation be prohibited, and that lynching be made a federal offense. Within months Truman had drafted legislation embodying these recommendations and demanded that Congress pass it. His own party refused. Southern Democrates blocked the legislation; in retaliation, Truman issued executive orders abolishing segregation in all government agencies, including the Federal Housing Authority and all branches of the Armed Services. Truman was up for election in 1948, and he campaigned on an anticommunist, pro-civil-rights platform.
In 1948 the LDEF argued the class action suit Shelley v. Kraemer before the Supreme Court. The case addressed restrictive covenants, "private agreements to exclude persons of a designated race or color from the use or occupancy of real estate for residential purposes." The Court found that these covenants by themselves did not violate the Fourteenth Amendment but that state courts violate the equal-protection clause if they enforce them. The LDEF was successful in convincing Truman's attorney general, Tom Clark, to direct his solicitor General to file a brief asamicus curiae. Clark was no radical; he was a leading advocate of the loyalty program and compiled the first "pink" list of alleged communist sympathizers. His brief underscored his paranoia about everything un-American. The Justice Department's brief concluded that overcrowded, demeaning ghettos promoted by the covenants "cannot be reconciled with the spirit of mutual tolerance and respect for the dignity and rights of the individual which give vitality to our democratic way of life."
To argue Shelley the NAACP implemented two strategies that it continued to use effectively in the school-desegregation cases. The first was to solicit briefs of amicus curiae from prominent and powerful organizations as well as from the Justice Department. The second was to buttress its legal arguments with the prevailing social science, selective statistics, and other data in Brandeis briefs. The Court ultimately agreed with the arguments presented by the NAACP and the Justice Department. Although the Court did not consider the sociological data in Shelley, there is no doubt that it took note of the briefs submitted by various organizations and the Justice Department.
After Shelley the LDEF launched a direct attack on Plessy by arguing that segregation was per se unconstitutional. The time was right to attempt to overturn the separate-but-equal doctrine. Three particular events worked in tandem to allow the LDEF to strategically use the rhetoric of assimilation expressed in An American Dilemma to exploit fears cultivated by the cold war to outmaneuver both the judicial and the executive branch. First, public opinion about the acceptability of Jim Crow was changing after World War II. Second, the force-feeding of An American Dilemma to the American public by the press and the federal government made the Howard circle's cultural legitimacy thesis hegemonic by the early 1950s. Finally, the federal government and the press began to scorn anything considered "un-American." These dynamics allowed the LDEF attorneys to take advantage of the discourse articulated by their former colleagues from Howard as well as the prevailing views of people in circles of power.
If an assimilationist approach proved effective, they would use it. The LDEF made the case that segregation itself was un-American by couching its arguments for equality within a discourse that emphasized the assimilation of American culture and values. Additionally, they argued that segregation denied African Americans the opportunity to embrace true American values, which implied that African Americans were poised to embrace un-American values if they were not educated in desegregated schools. In a sense the LDEF strategy was like Brer Rabbit tricking Brer Fox by playing the fool: the LDEF employed a strategy that disparaged African American culture by evoking a distinctive tradition in African American culture — the trickster.
During the late 1940s and early 1950s, the LDEF gradually won desegregation cases that concerned public graduate and professional schools in the South. It eventually turned to public grade-school desegregation; that litigation culminated with Brown in 1954. Although the LDEF jettisoned the cultural specificity argument, the way the LDEF used the anthropological discourse on racial equality was critical to its protracted litigation. Members of the LDEF only selectively cited anthropological texts in their Brandeis briefs and were even more selective in their choices of which anthropologists to put on the stand as expert witnesses.
Anthropology and Professional-
After World War II African Americans were attending college in record numbers. Armed with the GI Bill, many veterans pursued college and advanced studies. Black universities were overcrowded and turned away thousands of qualified applicants. However, the large state universities in the South still refused to accept African American applicants. The NAACP filed three cases that were eventually argued before the Supreme Court: Sipuel v. Oklahoma State Board of Regents, Sweatt v. Painter, and McLaurin v. Oklahoma State Regents for Higher Education . Although these were three separate cases, they became intertwined, and two were argued before the Supreme Court on the same day. Each case concerned the admission of exceptionally qualified African Americans to a state-supported law or graduate school in the South. Sipuel was the first case argued, and the Court did not write an opinion announcing its decision. It merely issued an unsigned per curiam order compelling the state of Oklahoma 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." To comply, the Oklahoma Board of Regents hired three law teachers and set up a law school in a room in the state capitol. Thurgood Marshall was left with two cases to execute the plan. In the McLaurin case, a sixty-eight-year-old graduate student was admitted to the school but was forced to occupy special "reserved for coloreds" areas cordoned off in the library, cafeteria, and classrooms. In the Sweatt case the state had just allocated $3 million to create a "first-class" university for African Americans rather than admit Black students to its law school in Austin.
The LDEF strategy was honed to precision. Its attorneys solicited briefs as amici curiae, put anthropologists and law-school professors on the stand, and crafted powerful Brandeis briefs. They argued that there was no basis on which to classify the races as separate and no rationale for the segregation of people based on racial inferiority. Additionally, they argued that "intangibles" must be considered in any determination of equal facilities. Employing the same tactics as in Shelley, the NAACP was able to have the Justice Department submit a brief.
The LDEF also received briefs in support of its cases from the American Federation of Teachers, the American Veterans' Committee, the Congress of Industrial Organizations, the Japanese American Citizens' League, the American Civil Liberties Union, the Committee of Law Teachers against Segregation in Legal Education, and the American Jewish Congress (AJC). The brief filed by the AJC evoked the similarities between state-sponsored racism in Nazi Germany and the United States. The AJC, of which Thurgood Marshall and Charles Houston were advisory board members, filed a riveting amicus brief for Sweatt: "The discriminatory effect of such legally sanctioned inequality can be demonstrated by reference to recent tragic history. The Nazis understood it fully when they imposed on Jews the wearing of the Yellow Star of David. Polizeiverordnung über die Kennzeichnung der Juden vom I. September 1942, RGBI, I.S. 547, augeg. am 5. IX. 1941." The AJC also cited An American Dilemma in outlining various arguments, stating with authority, "According to Myrdal…."
Robert Carter joined the LDEF in 1944 as a legal-research assistant. He continued to do much of the research and quickly became one of the most prominent attorneys in the organization. The brief that he and Marshall drafted for McLaurin was theoretically more rigorous than the one filed for Shelley . It was underpinned exclusively with Myrdal and his associates. The list of authorities included John Dollard, Arnold Rose, and Robert Park. Myrdal relied on each for specific aspects of his study. The citations that drew directly from the Howard circle include E. Franklin Frazier, Ralph Bunche, Charles Thompson, and Kenneth B. Clark. Thompson was dean of the Howard Graduate School, editor of the Journal of Negro Education, and a consultant for Myrdal's project. Kenneth Clark went to Howard University as an undergraduate in the early 1930s, at the same time Thurgood Marshall was attending its law school. Clark completed his doctorate in psychology at Columbia University and was also a member of Myrdal's research staff. Kenneth Clark and Mamie P. Clark also a social psychologist, became integral to the later public-school desegregation cases.
The kind of anthropologists Carter and Marshall chose to include in their bibliography shows that the LDEF mirrored the Howard circle's use of Boasian anthropology. The LDEF cited only anthropological publications on race which demonstrated that there was no scientific proof of hereditary differences in intelligence or temperament and concluded that environmental factors could explain the differences among racial groups.
The LDEF did not cite anthropological publications which demonstrated that cultures were historical or functional, adaptive or cognitive. The brief's bibliography included Man's Most Dangerous Myth: The Fallacy of Race (1942), by M. F. Ashley Montagu, a physical anthropologist, an advisee of Boas, and a contributor to Myrdal's project. The other anthropologist was Robert Redfield, a social anthropologist at the University of Chicago. Though not directly associated with the Myrdal study, Redfield was a program director at the Carnegie Institute.
The LDEF included three publications by Otto Klineberg, a social psychologist at Columbia University who had worked closely with Boas and pursued "research in the border-land field between psychology and ethnology." Klineberg was yet another advisor to Myrdal and wrote a monograph for his study. Klineberg drew heavily from Boasian anthropology and investigated cultural differences in relation to differences in IQ scores. The LDEF quoted Klineberg's Negro Intelligence and Selective Migration (1935), which concluded that "length of residence in a favorable environment plays an important part in the intellectual level of the Negro children." The LDEF brief did not include Herskovits, Ruth Benedict, or any other cultural anthropologist.
The exclusion was a calculated decision. For example, William Maslow, director of the AJC's Commission on Law and Social Action, wrote to Marshall to inform him of Ruth Benedict's work. He also suggested "that Ruth Benedict would make a good witness" for the Texas case. Marshall ignored the information, for he only wanted to use anthropologists to testify that no scientific rationale existed to classify the races and that African Americans were not inferior to White Americans. Apparently, he did not want anthropologists to expound on the virtues of African American culture. He expressed this position when he outlined the LDEF's strategy for the Herman Sweatt case. Marshall explained that he was only "contemplating putting on anthropologists to show that there is no difference between folks." He selected Robert Redfield to testify in Sweatt, undoubtedly because of his knowledge of the law and his credentials. He had received a law degree and then a doctorate in social anthropology from the University of Chicago, where he served as dean of social sciences and chair of the Department of Anthropology.
Redfield proved to be an important and indefatigable expert witness during the five days of argument in the District Court of Travis County, Texas. His testimony also proved critical four years later, when the case reached the Supreme Court. In the original "petition and brief" filed at the Supreme Court, Redfield's testimony was the authority cited in the section on "The Unreasonableness of Compulsory Racial Segregation in Public Legal Education." It was also cited in the brief filed for McLaurin .
On the stand in Texas, Redfield presented, with force and candor, scientific studies which established that African Americans were not inferior. Thurgood Marshall told the court that Redfield's arguments that "there is no rational basis for the classification" of race lie "flat in the teeth of the 14th Amendment." Marshall continued:
Q: Dr. Redfield, are there any recognizable differences between Negro and white students on the question of their intellectual capacity? …
A: We got something of a lesson there. We who have been working in the field in which we began with a rather general presumption among our common educators that inherent differences in intellectual ability of capacity to learn existed between negroes and whites, and [we] have slowly, but I think very convincingly, been compelled to come to the opposite conclusion, in the course of long history, special research in the field…. The conclusion, then, to which I come, is differences in intellectual capacity or inability to learn have not been shown to exist as between negroes and whites, and further, that the results make it very probable that if such differences are later shown to exist, they will not prove to be significant for any educational policy or practice.
Redfield was a convincing scientist and did not waver on cross-examination, even when the attorney general tried to make him contradict himself:
Q: [Mr. Daniels] Yes, Sir. In other words, you will agree with the other eminent educators in your field, the fields in which you are acquainted, that it is impossible to force the abolition of segregation upon a community that has had it for a long number of years, in successfully obtaining the results that are best?
A: No, I don't agree to that.
Q: Do you think the laws should be changed tomorrow?
A:I think that segregation is a matter of legal regulation. Such a law can be changed quickly…. Segregation in itself is a matter of law.
The attorney general tried to question Redfield's authority by quoting the Encyclopædia Britannica, but Redfield provided a different set of sources. 
Redfield's testimony and the specific research cited by the LDEF in its briefs for these cases confirm the important role that anthropology played in the juridical construction of race in the early 1950s. The Supreme Court did not completely overturn the separate-but-equal doctrine but reversed lower courts' decisions and desegregated state graduate and professional schools. The NAACP won a major victory and dealt an irreparable blow to Jim Crow.
Footnote II: A Social Science Statement
The use of anthropology and sociology in the arguments for Brown were essentially the same as those in the graduate- and professional-school cases: the LDEF selectively appropriated anthropology to debunk notions of racial inferiority and selectively appropriated sociology to demonstrate the values of assimilation. The LDEF also introduced social psychology to explain the psychosocial impact of segregation. When the class-action suit was being waged in the lower courts, Kenneth Clark was the chief expert witness, testifying about the studies he had conducted with Mamie Clark (Figure 13).
In a series of studies that assessed children's racial attitudes and knowledge, the Clarks presented three-to-seven-year-olds with two White dolls and two Black ones, identical in every respect save color. They then gave the children such instructions as, "Give me the doll that you like best," "Give me the doll that looks bad," and "Give me the doll that looks like you." Although the studies produced mixed results, Clark focused his testimony on the results that found Black children choosing White dolls because they looked "pretty" or "nice" and not choosing Black dolls because they looked "bad" or "ugly."
Robert Carter argued to the Court that the social science testimony and briefs were the "heart of our case." The heart of the case, then, was an "Appendix to Appellants' Briefs" entitled "The Effects of Segregation and the Consequences of Desegregation: A Social Science Statement." The introduction read: "The following statement was drafted and signed by some of the foremost authorities in sociology, anthropology, psychology and psychiatry who have worked in the area of American race relations. It represents a consensus of social scientists." The statement drew explicitly from Myrdal's theme and thesis, and An American Dilemma was the first reference cited. Although the brief dealt mostly with
Kenneth B. and Mamie P. Clark, ca. 1936.
(Courtesy of the Library of Congress)
the psychological impact of segregation, the anthropological discourse on race was specifically employed to argue the idea of racial equality:
Behind this question is the assumption, which is examined below, that the presently segregated groups actually are inferior intellectually.
The available scientific evidence indicates that much, perhaps all, of the observable differences among various racial and national groups may be adequately explained in terms of environmental differences. It has been found, for instance, that the differences between the average intelligence test scores of Negro and white children decreases, and the overlap of the distributions increases, proportionately to the number of years that the Negro children have lived in the North…. It seems clear, therefore, that fears based on the assumption of innate racial differences in intelligence are not well founded.
This was the Boasian discourse on race; the LDEF conclusion mirrored Boas's conclusion after studying the cephalic indexes of immigrants some forty years earlier. Boas concluded that "It appears in those cases that contain many individuals whose parents have been residents of America for a long time that the influence of American environment upon the descendants of immigrants increases with the time that the immigrants have lived in this country."
Most of the justices found the social science evidence compelling. The Court was, however, obliged to present a rational explanation for its judicial interpretation. Because the framers of the Fourteenth Amendment did not explicitly delineate whether the amendment was intended to abolish segregation in the public schools, the Court charged both sides with determining, historically, if the framers of the Fourteenth Amendment understood or did not understand it to abolish segregation in public schools.
The Court found that it could not rely on history to explain its judicial interpretation because history proved inconclusive. The only other rationale to use was the set of arguments evidenced by current social science. Earl Warren was able to craft a weak but unanimous decision to put an end to the disingenuous doctrine of separate but equal as it pertained to public-school education. To construe the Fourteenth Amendment, he stated that the Court "cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written." He then documented how the Supreme Court used social science as a rationale for establishing a new juridical construction of race:
To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone…. Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson , this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected. We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal.
Celebrating after Brown v. Board of Education
Left to right: George Edmond Haynes, Thurgood Marshall, and James M. Nabrit Jr.
(Courtesy of the Library of Congress)
In this passage Warren included "Footnote 11" to provide the authority and rationale for overturning Plessy (Figure 14). Cited in the footnote were, among others, Kenneth B. Clark and E. Franklin Frazier. It concluded "and see generally Myrdal, An American Dilemma (1944)." Although this decision was technically weak, it was a powerful symbolic victory. Brown did change the way the state imposed racial categories in the United States, and it was a clarion call for the Civil Rights movement.
The following year, Rosa Parks refused to give up her seat on a bus in Montgomery, Alabama; and her community, led by Dr. Martin Luther King, Jr., launched the landmark bus strike.
Anthropology played a complex and crucial role in the desegregation movement. It was complex because the LDEF was forced to unravel the tightly knit Boasian discourse on race, language, and culture; what it appropriated from anthropology proved crucial to its success. Throughout the twentieth century, anthropology reigned over its scientific domain—race. In 1896, when ideas of racial inferiority and the law were wedded, the discipline of anthropology was appropriated whole-cloth to validate claims about racial inferiority. In 1954, when ideas of racial equality and the law became wedded, the discipline was selectively appropriated to validate claims about racial equality. The discourse produced by scholars in anthropology, in a very literal sense, was woven into the very fabric of U.S. society.
1. In 1952 William Rehnquist, the current chief justice of the Supreme Court, was a clerk for Justice Robert H. Jackson, when the Supreme Court was deciding Brown v. Board of Education. This quotation is in Rehnquist's two-page memorandum to Jackson outlining his support of Plessy and separate-but-equal education.
2. Houston, "Educational Inequalities," 300.
4. Alfred H. Kelly, "The School Desegregation Case," in Quarrels That Have Shaped the Constitution, ed. John A. Garraty (New York: Harper and Row, 1964), 254.
5. Kluger, Simple Justice, 188-193; Houston, "Don't Shout," 79, 91; Charles H. Houston, "How to Fight for Better Schools," Crisis 43 (1936): 59.
6. Petitioning the Court for a writ of certiorari is the primary way in which cases come before the U.S. Supreme Court. The other way the Court will review a case is on appeal, but the process of appealing a Circuit Court's decision to the U.S. Supreme Court is limited to a congressional mandate for a particular category of case.
7. Missouri ex rel. Gaines v. Canada, 305 US 345 (1938).
8. Randolph was also the architect of the 1963 March on Washington.
9. Franklin, From Slavery to Freedom, 439.
10. Lewis, "Pressure Groups," 464-473.
11. Franklin, From Slavery to Freedom, 440.
12. Myrdal, American Dilemma, 1: 1.
13. Ibid., 1: lxxi (italics in the original).
14. David D. Southern, Gunnar Myrdal and Black-White Relations: The Use and Abuse of An American Dilemma, 1944-1969 (Baton Rouge: Louisiana State University Press, 1987), 71-125. The book was not embraced uniformly around the country, and many southern politicians and their constituents disagreed with its findings. For entirely different reasons, a number of intellectuals, such as Carter G. Woodson, Melville Herskovits, and Herbert Aptheker, also denounced its findings. However, neither group had much impact on the public's reception.
David Southern explained that Myrdal's work was employed as "trickle-down" social theory. As President Bill Clinton reminded us, "For twelve years of trickle-down economics, we tried to build a false prosperity on a hollow base" (William J. Clinton, Address before a Joint Session of Congress on the State of the Union, January 25, 1994 [http://library.whitehouse.gov/]). In a similar fashion, the Eastern establishment circulated a convenient discourse to create an illusion that the United States was actually coming to terms with its racial contradictions.
15. Carl T. Rowan, Dream Makers, Dream Breakers: The World of Justice Thurgood Marshall (Boston: Back Bay Books, 1993), 129.
16. Tushnet, NAACP's Legal Strategy, 82-138; Jackson, Gunnar Myrdal, 95.
17. The White primary elections of Texas had effectively disfranchised African Americans for nearly a hundred years: the winner of the Democratic primary was certain to win the general election. The Texas legislature continued to circumvent the Supreme Court, which invalidated its White primary with Nixon v. Herndon, 273 US 536 (1927), and Nixon v. Condon, 286 US 73 (1932). In a final attempt to get around the rebukes of the Supreme Court, Texas legislators repealed all of the statutes concerning primary elections, which made the Democratic Party a private enterprise. The Supreme Court, in Grovey v. Townsend, 295 US 45 (1935), finally validated the Texas White primary because discrimination in private organization was beyond the purview of the Constitution. Thurgood Marshall, however, found a hole provided by a recent decision to make his case. He argued that Congress must regulate primaries for federal elections because the party, even though private, performed a public function or state action. Marshall won the case, which curbed the wholesale disfranchisement of African Americans. After Allwright, disenfranchisement was limited to poll taxes, literacy tests, and other devices imposed on individuals.
18. Thomas Baker, "Smith v. Allwright," in The Oxford Companion to the Supreme Court of the United States, ed. Kermit T. Hall (New York: Oxford University Press, 1992), 800; Kluger, Simple Justice, 233-238; Mark V. Tushnet, Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936-1961 (New York: Oxford University Press, 1994), 99-103.
19. Rice and Krout, United States History from 1865, 303.
20. Shelley v. Kraemer, 334 US 1 (1948).
21. Kluger, Simple Justice, 253.
22. Shelley v. Kraemer, 334 US 1 (1948). The decision was 6-0. Reed, Jackson, and Rutledge recused themselves from the case, probably because they had signed restrictive covenants.
23. Francis Allen, "Shelley v. Kraemer," in The Oxford Companion to the Supreme Court of the United States, ed. Kermit T. Hall (New York: Oxford University Press, 1992), 781; Kluger, simple Justice, 250-255; Shelley v. Kraemer, 334 US 1 (1948).
24. Charles Thompson, "Southern Intransigence and the Sweatt and McLaurin Decisions," Journal of Negro Education 19 (1950): 430.
25. Emblematic of the conflation of cold-war fears of communism and civil rights was this editorial published in the New York Times on January 15, 1948. It was entitled "Equal Rights in Education":
If the United States is to stand before the world as an exemplar of equality of rights, if it is to urge with integrity the acceptance by the rest of the world of the tenets and practices of a democratic society, then it would be well if we set our own record straight. It seems to us that the language of the Fourteenth Amendment must be tortured out of common meaning to make segregation practices in education anything except unconstitutional.
26. Robert Carter, "Reassessment of Brown v. Board," in Shades of Brown, ed. Derrick Bell (New York: Teachers College Press, 1980), 27.
27. US 631 (1948).
28. US 629 (1950).
29. US 637 (1950).
30. Sipuel v. Oklahoma State Board of Regents, 332 US 633 (1948).
31. Kluger, Simple Justice, 259.
32. William Maslow and Shad Polier, "Memorandum of American Jewish Congress, as Amicus Curiae, in Support of the Petition," U.S. Supreme Court, October Term, 1948, Sweatt v. Painter, 14. Here they are citing Nazi legislation, translated as "The police ordinance to mark to the Jews."
33. Ibid., 7.
34. Robert Carter, Amos T. Hall, and Thurgood Marshall, "Brief for the Appellant," U.S. Supreme Court, October Term, 1949, McLaurin v. Oklahoma State Regents for Higher Education, iv-vii.
35. Klineberg to Boas, February 16, 1929, APS.
36. Klineberg, Negro Intelligence and Selective Migration, 61. This conclusion mirrored Boas's conclusion in Changes in Bodily Form of Descendants of Immigrants. It was also recited almost verbatim in the brief that the NAACP LDEF filed for Brown.
37. Maslow to Marshall, April 28, 1947, NAACP Papers, Group II, Box 206, File "Sweatt v. Painter Legal Papers and Background," Manuscript Division, Library of Congress, Washington, D.C.
38. Marshall to Hastie, April 3, 1947, NAACP Papers, Group II, Box 205, File "Sweatt v. Painter Correspondence," Manuscript Division, Library of Congress, Washington, D.C.
39. W. J. Durham, Bill Hastie, W. R. Ming, J. Nabrit, and T. Marshall, "Petition and Brief in Support of Petition for Writ of Certiorari to the Supreme Court of the State of Texas," U.S. Supreme Court, October Term, 1948, Sweatt v. Painter, 9.
40. Carter, Hall, and Marshall, "Brief for the Appellant," vii.
41. Supreme Court of the United States, "Transcript of Record," Sweatt v. Painter, 399 US 629 (1950), 192.
42. Ibid., 193-194.
43. Ibid., 198.
44. Ibid., 204-205. After Redfield finished his testimony, the courtroom started to become crowded, so the bailiff began to racially segregate it to make room for more White people. The NAACP was already sitting on the Negro side, but when the bailiff asked Redfield to move, he refused. The refusal was grounds for contempt of court.
45. Prior to the Supreme Court decision in the university cases, the LDEF had begun its campaign in the lower courts to desegregate public-school districts. The LDEF executed with great aplomb its formula of packing briefs with social science, putting expert witnesses on the stand in the lower courts, and soliciting briefs as amici curiae from influential organizations and the U.S. government. By the end of 1952 the LDEF successfully appealed three public-school-district desegregation cases to the Supreme Court. The cases came from Kansas, South Carolina, and Virginia. In addition, the Court granted two writs of certiorari for desegregation cases in Delaware and the District of Columbia. These five cases comprised the class-action suit that the LDEF first argued before the Supreme Court on December 9, 1952; the Court wrote its final decision two years later, without any mechanism to force its compliance.
46. The complete list of questions used by the Clarks (Kenneth B. Clark and Mamie P. Clark, "Racial Identification and Preference in Negro Children," in Readings in Social Psychology, ed. T. M. Newcomb and E. L. Hartley [New York: Norton, 1947], 169) is as follows:
Give me the doll that you like to play with — (a) like best.
Give me the doll that is a nice doll.
Give me the doll that looks bad.
Give me the doll that is a nice color.
Give me the doll that looks like a white child.
Give me the doll that looks like a colored child.
Give me the doll that looks like a Negro child.
Give me the doll that looks like you.
Kenneth B. Clark and Mamie P. Clark, "The Development of Consciousness of Self and the Emergence of Racial Identification in Negro Pre-school Children," Journal of Social Psychology 10 (1939): 591-599; Kenneth B. Clark and Mamie P. Clark, "Segregation as a Factor in the Racial Identification of Negro Pre-SChool Children: A Preliminary Report," Journal of Experimental Education 11 (1939): 161-163; Kenneth B. Clark and Mamie P. Clark, "Skin Color as a Factor in the Racial Identification of Negro Pre-School Children," Journal of Social Psychology 11 (1940): 159-169; Kenneth B. Clark and Mamie P. Clark, "Emotional Factors in Racial Identification and Preference in Negro Children," Journal of Negro Education 19 (1950): 341-350; Kenneth B. Clark, The Effect of Prejudice and Discrimination on Personality Development, The 1950 Mid-Century White House Conference on Children and Youth (Washington, D.C.: Federal Security Agency, Children's Bureau, 1950).
47. Sara Lightfoot, "Families as Educators: The Forgotten People," in Shades of Brown: New Perspectives in School Desegregation, ed. Derrick Bell (New York: Teachers College Press, 1980), 5; Leon Friedman, ed., Argument: The Oral Argument before the Supreme Court in Brown v. Board of Education of Topeka, 1952-1955 (New York: Chelsea House, 1969), 13; Layli D. Phillips, "A Re-Examination of the Clark Doll Studies at the 40th Anniversary of the Brown v. Board of Education Case: Implications for a Critique of the Efficacy of a Landmark Decision" (paper presented at the annual meeting of the Association for the Study of Alfro-American Life and History, Atlanta, Ga., October 12-16, 1994); Sabrina L. Thomas, "Doll Choice Studies and Black Youth Self-Concept: A Reexamination" (M.A. thesis, University of Rochester, 1989); Ellen Herman, The Romance of American Psychology: Political Culture in the Age of Experts (Berkeley: University of California Press, 1995), 194-198.
48. Robert Carter, Thurgood Marshall, and Spottswood Robinson III, "Appendix to Appellants' Briefs: The Effects of Segregation and the Consequences of Desegregation: A Social Science Statement," U.S. Supreme Court, October Term, 1952, Brown v. Board of Education, 12.
49. Boas, Changes in Bodily Forms, 7.
50. Associate Justice Felix Frankfurter was skeptical of the evidence. Frankfurter, an early proponent of sociological jurisprudence, an early member of the NAACP legal committee, and the mentor of Charles Houston, began to tear the heart out of its case. In the first argument of Brown, Frankfurter questioned, "If a man says three yards, and I have measured it, and it is three yards, there it is.... But if a man tells you [what is] inside of your brain and mine, and how we function, that is not a measurement, and there you are.... [This may bring the Court to] a domain which I do not yet regard as science in the sense of mathematical certainty.... I simply know its character" (Friedman, Argument, 172-173). Frankfurter indeed knew its character. He knew how a totally different social science was used in a similar fashion within a totally different social and political context. In 1908 his mentor Louis Brandeis "proved" the inferiority of women by using the prevailing social science (the original Brandeis brief). He knew that times change and that a new scientific discourse could shape public policy.
51. Brown v. Board of Education, 347 US 492 (1954).
11. Franklin, From Slavery to Freedom, 440.
52. Brown v. Board of Education, 347 US 494-495 (1954).