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Hannah McCarthy:
Civics 101 is supported in part by the Corporation for Public Broadcasting.

Nick Capodice:
Since the first one appeared on the docket in 1791, there have been thousands of cases argued in the U.S. Supreme Court and each one arrived there in a different way. An individual burned a flag.

Speaker3:
Whatever pain freedom of expression may inflict, it is a principle on which we can give no ground.

Nick Capodice:
Another was not informed of their rights upon arrest.

Speaker3:
Miranda petitioner versus Arizona.

Nick Capodice:
The president refused to hand over secret recordings

Speaker3:
That the Constitution means what he says it does and that there is no one, not even the Supreme Court, to tell him otherwise

Nick Capodice:
These become landmark cases after they're decided. But sometimes there's an issue that's so divisive, so prevalent in the minds of Americans that a case is a landmark before it even gets there, a case that lawyers and doctors, sociologists and activists had been working on for a quarter of a century before its day in court.

Judge Roger Gregory:
Sometime, you know, you go through things like, well, you know, I didn't know at the time, but they knew at the time they were riding in lightning.

Every. I can recommend people

Speaker3:
You've got to go to it not only in you getting so many people, I mean, the Feltes main just gravity. Oh, I wouldn't want to get all the hate in their heart. What about you, sir? Do you think they got to go back to school?

And I say segregation now. Segregation tomorrow.

Nick Capodice:
You're listening to Civics 101, I'm Nick Capodice.

Hannah McCarthy:
I'm Hannah McCarthy,

Nick Capodice:
And today we are learning about one of the most landmark landmark decisions in U.S. history, a case that was actually five cases rolled into one, all of them asking this simple question, does racial segregation in schools violate the 14th Amendment is separate but equal equal. This is Brown versus Board of Education of Topeka, Kansas, 1954.

Hannah McCarthy:
How does such an enormous question even end up before the Supreme Court?

Judge Roger Gregory:
Well, the best way to start it is in 1896, the Supreme Court handed down the decision of Plessy vs. Ferguson. Briefly. It is known for its ruling that state mandated segregation of the races would not violate the 14th Amendment of the Constitution if those accommodations or services are equal.

Nick Capodice:
This is Chief Judge Roger Gregory

Judge Roger Gregory:
I'm the chief judge of the United States Court of Appeals for the 4th Circuit. The 4th Circuit encompasses the states of Maryland, West Virginia, the North and South Carolina.

Yohuru Williams:
Well, what you witnessed in the aftermath of Plessy is the kind of gradual adoption of separate but equal as we know it today.

Nick Capodice:
And this is Dr. Yohuru Williams. He's professor of history and founding director of the Racial Justice Initiative at the University of St. Thomas.

Hannah McCarthy:
Gradual adoption of separate but equal. In other words, segregation laws didn't happen overnight.

Nick Capodice:
Yeah, we see this in so many Supreme Court decisions. It takes time for the effects of these big rulings to change laws and customs state by state.

Hannah McCarthy:
What did segregation look like in the United States in the first half of the 20th century before Brown v. Board?

Yohuru Williams:
So it's not immediate that segregation signs go up, but over the course of the 30 years post Plessy, you actually begin to see kind of the advent of this rigid system of segregation, which most of us associate with the white and colored signs. For example, the first municipality to enact the residential segregation ordinance is Baltimore, Maryland, in 1910. That's relatively late. So you're looking at certainly a segregationist impulse and you're certainly looking at efforts by municipalities and private businesses to segregate. But it's informal and haphazard in some sense, and it increasingly becomes more formalized

Nick Capodice:
And in terms of education. This resulted in massive disparities in school funding. Many states were spending three times as much on white students than Black students, and some were even more disparate; for every five dollars spent on a Black child in South Carolina. Fifty three dollars was spent on a white child.

Yohuru Williams:
And then by the time you get to the 19 teens and nineteen twenties, segregation as we know it, in the form that we're most familiar with, it is is pretty much entrenched in the United States, particularly in the former states to the old Confederacy.

Nick Capodice:
But before you think I'm saying that segregation was a purely Southern institution, it was widespread throughout the entire U.S. in completely different ways. And to explain this, Yohuru defined two terms for me, de juri and de facto segregation. De juri is by law, de facto is by custom or practice.

Yohuru Williams:
A good example of that would be segregation ordinances that require African-Americans or the white and colored races to go to separate schools or residential segregation ordinances which deny African-Americans and whites to occupy homes domiciles within the same block. That's there by by law.

Nick Capodice:
And while during segregation was more common in the Southern states, de facto segregation was in the North.

Yohuru Williams:
You'd have de facto segregation at education because because African-Americans, like immigrants, move into neighborhoods which are predominantly comprised of people from that race or that ethnic group, then the schools and the businesses and everything that's in that community by default is predominantly African-American and predominantly Italian or whatever it may be. The difference with the ethnic immigrants is that eventually they're able to escape those spaces. But for African-Americans, thanks to practices such as redlining, that becomes literally in and of itself a prison and they're not able to escape,

Hannah McCarthy:
I feel like redlining should be an entire episode of Civics 101. But can you just give a short definition of it?

Nick Capodice:
Sure. Briefly. Redlining grew out of the New Deal in the 1930s. In an effort to increase the number of American homeowners, the government increased federal loans for homes, but mortgage lenders refused to grant those loans. The people who lived in, quote, hazardous neighborhoods, those were predominantly neighborhoods with a large Black population.

Speaker3:
We have absolutely no one in the south, those areas which have been segregated for at least 100 years.

Nick Capodice:
So by the time we get to the 1950s, about 11000 school districts in the country, the majority are segregated. It was required in 16 states and optional or not forbidden in another 18. So that's where we are. School segregation wise when the court hears the case in 1952.

Hannah McCarthy:
So what was happening with the opposition to segregation leading up to this case?

Nick Capodice:
The NAACP, the National Association for the Advancement of Colored People began the legal fight against segregation in the early 1930s. Charles Hamilton Houston, he was a graduate of Harvard Law, became their first legal counsel. Houston later worked at Howard University, where he and Thurgood Marshall and others started, in essence, a think tank. Legal minds from across the country working to conceive a strategy to take on separate but equal.

Hannah McCarthy:
And what did their strategy end up being?

Nick Capodice:
Here's Judge Gregory again.

Judge Roger Gregory:
So basically, let's take Plessy, even though we don't like it, at its word. Forms were filed. These suits, whenever there's demonstrable differences in the facilities, is clearly unequal. So you bring litigation. And the overall strategy was it was a war of attrition.

Nick Capodice:
Their legal strategy at first focused on the equal part of separate but equal, schools could segregate as long as they had equal facilities. So the NAACP found instances where schools clearly did not. But providing equal facilities cost a lot of money, money that many institutions didn't have.

Yohuru Williams:
The idea was we need to undermine the doctrine of Plessy vs. Ferguson in all aspects of American life. They realized, for example, that in terms of education, the best case they can make early on is a graduate professional education. Why will they make the case that if a law student wants to practice law in a particular state, but the state's answer to not maintaining a separate facility for quote unquote colored students is to send that student anywhere in the country they want to go provide full tuition. The state saying we're offering you a deal here. We're saying you can go wherever else eventually. Thurgood Marshall, Charles Hamilton, Houston, they'll come to the conclusion, you know, kind of brilliantly, Thurgood Marshall, the case of Murray vs. Maryland that, well, that's inherently unequal because you're denying that student access to those facilities within the state that ultimately would be successful for them to be able to work and be successful as an attorney in that state.

Nick Capodice:
And this was a particular situation that Thurgood Marshall knew very well because he wanted to go to the University of Maryland law school and had been denied admission. And so he went to Howard, a historically Black university. But this strategy, focusing on higher education, worked.

Judge Roger Gregory:
So for the first time in these cases, there were victories. But the victory was this. The court recognized that there were intangibles about the educational process that you couldn't make because these schools, because the states responded, said, OK, we'll start a new law school. And the court said, wait a minute, a law school that's newly minted months old versus University of Oklahoma. University of Texas, it's it's it's almost a joke to consider that to be equal. So therefore, admission was allowed. So that was a good part. But the bad part is that these cases did not take on Plessy head-on. It dealt with equalization.

Nick Capodice:
That is, until 1950. Charles Hamilton Houston died and Thurgood Marshall became the head of the legal team of the NAACP. And he shifted the strategy, saying, we are no longer fighting for equal, we're fighting against separate. And he and his team selected five cases to submit to the Supreme Court to overturn Plessy v. Ferguson.

Hannah McCarthy:
Yeah, OK, so I always thought the Brown v. Board was just one case with one plaintiff. What were these other cases about?

Nick Capodice:
All right, here's a summary of the five cases that we now know as Brown v. Board of Education. No. One, Briggs v. Elliott. Harry Briggs lived in Summerton, South Carolina, where his son and others had no bus transportation whatsoever to their Black elementary schools, which were little more than wooden shacks. And they would walk, in some cases eight miles to school, #2, Bowling v. Sharpe, a group of 11 Black junior high schoolers who were refused admission to an all white school in Washington, D.C. Their Black-only schools were shown to be grossly unequal. Number three, Belton v. Gebhart. This was a case where students in Delaware were riding busses an hour to get to their crowded one room school. Number 4, Davis V County School Board of Prince Edward County. This is the only case that started from a protest. 16 year old Barbara Rose Johns led a walkout of her school to protest unequal conditions. And finally, number five, Brown vs. Board of Education of Topeka, which interestingly, is the only case where school facilities were found to be equal and in some instances superior. But the qualification of teachers was called into question.

Judge Roger Gregory:
These cases were meticulously chosen because they wanted the facts to be different. Washington, D.C., federal jurisdiction, not state Delaware state case. And they won the case. They were respondents. There was some schools where Blacks attended where it was at least equal to the whites. So they wanted to make sure this wasn't just about you take on Plessy because the argument what they wanted to make is even if the school is equal or better, there's something inherently, inherently. Unequal about separation.

Hannah McCarthy:
It was a strategy where they wanted to cover all of their bases.

Nick Capodice:
Yeah, Judge Gregory said they were thinking through all the possibilities with these cases to make sure that there was no wiggle room.

Judge Roger Gregory:
And the key is this. They want to make sure that when they won, that this would settle it for all America. You couldn't say, oh, that was the state not about federal. No, it's state and federal. Whatever was...every fact was and you couldn't say, well, that was the Blacks in poverty. No, they had several Black physicians, Black professors, teachers. It didn't matter. Segregation, it was harmful. And they wanted to cross the whole spectrum. No matter what the circumstance, the harm is done to the Black kids who are denied based solely on race.

Nick Capodice:
And now we come to the argument in the court, the case or cases, I should say, were argued in December 1952 to answer the question, does segregation violate the equal protection clause of the 14th Amendment?

Hannah McCarthy:
Who are the lawyers who are actually making the arguments in the court?

Nick Capodice:
Due to this being five cases, there were 11 lawyers as advocates. The two most famous, though, were in one corner arguing against Plessy v. Ferguson, Thurgood Marshall.

Speaker3:
Well, when you live in a segregated community, you find that one group has everything and the other group has little, if anything.

Nick Capodice:
And in the other, arguing that states had a right to segregate John W. Davis,

Speaker3:
The state establishes the schools. It pays the funds and it has the sole power to educate its citizens

Nick Capodice:
Since there isn't any archival I can find if John W. Davis, that is from the wonderful TV miniseries Separate but Equal, Burt Lancaster's final role.

Hannah McCarthy:
And what were Marshall's and Davis's arguments?

Nick Capodice:
Ok, first, a man who had appeared in the Supreme Court one hundred and forty times, John W. Davis,

Judge Roger Gregory:
John W. Davis at the time was considered to be the most eminent and prominent lawyer in America. He was former president of the bar. You know, he was a candidate for president. He was ambassador to England. I mean, he he was just awesome. He made it simple. He said, court, you are interpreting the 14th Amendment and you're your power, if it exists, must exist to the 14th Amendment. To end segregation. So let's look at what the framers let's look and see what their intent was.

Nick Capodice:
Davis had three main arguments based on what he saw as the intent of the people who wrote the 14th Amendment. Number one, the Freedmen's Bureau, which was created in 1866, established segregated schools so Congress could not have meant to end segregation. Number two, Davis talked about how Senator Charles Sumner proposed that four formerly Confederate states to be readmitted to the Union. They had to desegregate and that proposal failed. And finally, number three, Congress operated segregated schools in Washington, DC

Judge Roger Gregory:
So how could the same Congress met to end segregated schools in the 14th Amendment when they turned around were operating segregated schools at the same time? So this is first attack. Justices, you can't do this when the framers clearly laid the breadcrumbs to show that that couldn't have been their intent.

Hannah McCarthy:
So Davis wasn't interested in arguing about equality. He was only arguing about the intention of the man who wrote the 14th Amendment.

Nick Capodice:
Yes, Davis admitted schools were not equal and they should be. But he said the states just needed time to do it.

Hannah McCarthy:
And what was Thurgood Marshall's answer to this?

Nick Capodice:
Marshall hardly focused on the intent of the framers at all.

Judge Roger Gregory:
He said, and this is where he really put it to the court, that the only thing he could think of to rationalize this is that somehow it was important to keep these people who had come up from slavery to keep them as in a position or status as close as possible to that condition of enslavement as you can. And is now is the time for the court to say that that is not what the Constitution stands for and to make that clear. So he took it right on. He said basically you have to adopt that view. That is something intrinsic about the Black race, that it must be kept in an inferior status close to slavery is possible contrary to the 13th Amendment, of course, because it says all vestiges of that servitude beautiful how he tied that into a 13th Amendment theme. And to continue what the court said, the Constitution still stands for that in nineteen fifty three. That was his response to Davis, which was all just just brilliant. You have same schools, equal schools, same funding, beautiful building. It doesn't matter. Then what he did. It put together not just arguments from lawyers, but a team of experts that were awesome, Dr. Kenneth Clark, who did Black Doll study and showed how these Black kids were shown dolls and rejecting really themselves

Archival:
As the nice dark. Which doll is the bad doll,

Nick Capodice:
Kenneth and Mamie Clark's doll test asked Black children to point to a Black or a white doll when asked, which is the smart doll, the polite doll, or which is the ugly doll, which is the naughty doll. And these children overwhelmingly pointed to the white doll for all the positive traits and the Black doll for all the negative ones.

Judge Roger Gregory:
What compels the court to act is to show a harm. And they use the tort model, which means in law a wrong, the wrong is the physical and mental damage done to the child. Had to be a moment of just tearful moment, but also a moment powerfully that for the first time to show in terms of the amount of science that these things are real and they're very devastating and Marshall made it clear. We may have done it long and announced it long but these have become echoes of real harm to real children.

Nick Capodice:
The court hears the arguments in 1952 and says come back in a year and argue it again,

Hannah McCarthy:
Why did they do that? Why not just issue a ruling? Then and there?

Nick Capodice:
The court was divided on the issue and some justices felt that if this decision was not unanimous, pro segregationists could use that to delegitimize the ruling. And so Justice Felix Frankfurter proposed a new hearing as a stalling tactic to build consensus, impossible as it seemed at the time. But before that second round of arguments, something big happened.

Speaker3:
President Eisenhower appointed Governor Earl Warren of California as chief justice of the Supreme Court. The 62 year old Calif.

Nick Capodice:
What happened is this. Chief justice, Fred Vinson, who had presided over the first Brown v. Board arguments, died in 1953, and President Eisenhower needed to appoint a new chief justice. And he had promised former California Governor Earl Warren, who is just about to take a job as Eisenhower solicitor general, that he'd have the next vacancy that opened up in the court and Earl Warren was nominated to be the next chief justice. The case was argued again in December of nineteen fifty three. And on May 17th, 1954,

Speaker3:
On May 17, the court ruled unanimously that segregation in public schools was not legal.

Nick Capodice:
Separate but equal is a violation of the Fourteenth Amendment overturning Plessy v. Ferguson and ending school segregation. And it was unanimous. Scholars agree that while the ruling would have been the same if Vinson hadn't died, the unanimity was secured by Chief Justice Warren. He convinced one justice to drop his concurring opinion and another to drop his dissent. And Warren himself wrote the opinion.

Judge Roger Gregory:
The opinion is beautiful in its simplicity and brevity. The court said quite plainly, we cannot determine the intent. Brilliant. We can't do it. They didn't hem and haw and try to, you know, pontificate and scratch their chins like some opinions do. We can't tell. So we move on. And we must assess in modern day time. What is the importance of education? So that's how he got to it quickly. And what he said, there's nothing probably more important in a state and local government function to educate its children. It is the window through which everyone develops, how they become a thinking person. How democracy thrives. Because people are able to function and be productive and understand their rights and those things. And he doubts that in a court of law they say that any child could succeed without an education.

Nick Capodice:
Warren's opinion ends with "we conclude that in the field of public education, the doctrine of separate but equal has no place. Separate educational facilities are inherently unequal."

Judge Roger Gregory:
It reminds me of Alexis de Tocqueville in 1830, traipsed about America and wrote American Democracy. He said America's greatness is not because we are more enlightened than other nations. He said Our greatness is our ability to repair our faults. And I can't think of a better example of that than Brown.

Hannah McCarthy:
But what next? How does desegregation happen in those 11000 school districts?

Nick Capodice:
The Supreme Court made a new ruling in 1955, which they just called Brown vs. Board of Education of Topeka II to give their recommendations and how the decisions should be implemented. Now, remember, the Supreme Court interprets the law. They can't enforce it. They can't fine a school or arrest a principal for refusing to desegregate. But they did use four famous, some now say, infamous words about how desegregation should happen "with all deliberate speed." Here's Yohuru Williams again.

Yohuru Williams:
It's not so much that Brown led to immediate desegregation. In fact, the language of the court itself becomes contested. What does all deliberate speed mean? You've got some municipalities who look at that after they, you know, exhaust efforts at interposition and nullification and other efforts, Governor Lindsay Almond in Virginia closes the schools for a year rather than see them open on an integrated basis. Then you've got other places, you know, other states that go. Well, all deliberate speed. We think that we can accomplish this by nineteen eighty. So they're kind of kicking the can down the road.

Nick Capodice:
The timeline of desegregation of schools is lengthy. Most famously in 1957, a white mob of protesters as well as the Arkansas National Guard prevented nine students from attending Central High in Little Rock, Arkansas.

Speaker3:
Little Rock, Arkansas. And the first phase of the trouble, the white population are determined to prevent college students from going to the school. Their own children attend picketing the school. They clash with the police. The law of the land agrees

Nick Capodice:
In response, President Eisenhower federalized the National Guard and sent 1000 soldiers from 101st Airborne to protect those students.

Hannah McCarthy:
And so at what point was total desegregation of schools actually achieved in the United States?

Nick Capodice:
The answer to this is complicated because while no public school officially says this is a segregated school, schools in America are enormously segregated. A study in 2016 found that over half of American schoolchildren attend a school that is predominantly white or predominantly Black. And the barrier to integration is due to income inequality, to unequal practices like redlining, even to the placement of train tracks in a town. But the fact is, schools in America do remain segregated.

Yohuru Williams:
I think part of the challenge with Brown in this kind of tortured relationship with Brown is that there's a recognition on one hand that Brown versus Board of Education was an important milestone in the struggle for Black equality, no matter what, in terms of how we think about what it actually accomplished, it repudiated the doctrine of separate but equal. The problem is that it's an articulation of principle. And in practice, Brown really hasn't achieved. In fact, one could argue that the efforts to maintain the segregationist impulse were so insidious that things are worse today when people make the argument that, you know, maybe we should retreat from the promise of Brown versus Board of Education. It's coming in some sense from that room and the narrative that comes from if Brown was meant to create equality by ensuring absolute equality, access to public education, it failed miserably. If the metric is that it got rid of separate but equal as articulated in Plessy and opened the door for interrogation of of how you dismantle that in other areas is an absolute success. But in terms of its primary directive, desegregation of schools with all deliberate speed, it would be difficult for anyone to argue at this point that Brown v. Board was a success.

Hannah McCarthy:
It sounds like Yohuru is saying that while this case was a tremendous victory, schools are just one part of an unequal system. Discrimination in housing, employment, the criminal justice system. These issues are all intertwined.

Nick Capodice:
That's right. And changing laws does not necessarily change minds. Brown is an amazing victory and an amazing story. You've even got Thurgood Marshall becoming the first Black justice on the Supreme Court 13 years later.

Historians will note this hour at the White House in a Rose Garden ceremony, a 58 year old great grandson of a slave is nominated by President Johnson to be a Supreme Court justice. He is Solicitor General Thurgood Marshall

Nick Capodice:
But the half century since that decision has been a series of gains and losses. Many other movements, including the fight for rights of other minority groups, have been helped by the Brown decision. But many of the issues at the heart of Brown, the promise of equality for all people and how to achieve it remain. That's it for this Supreme Court episode on Civics 101, follow us on whatever podcast app you prefer to keep up with how these justices interpret our lives.

This episode was produced by me Nick Capodice with You, Hannah McCarthy thank you.

Hannah McCarthy:
Thank you. Thank you.Our staff includes Christina Phillips, Mitch Scacchi, and Jacqui Fulton. Erika Janik is our executive producer and rides in lightning while her dogs hide from it.

Nick Capodice:
Music in this episode by Blue Dot Sessions, Sarah the Illstrumentalist,, Scott Holmes, Jesse Gallagher, and that lady whose beats are never vague, Emily Sprague.

Hannah McCarthy:
Our show is and always will be free to listen to, so show your support of it with a donation at our website, civics101podcast.org.

Nick Capodice:
Civics 101 is made possible by our listeners and is supported in part by the Corporation for Public Broadcasting and is a production of NPR, New Hampshire Public Radio.

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