1987 The University of North Carolina Press
Epilogue 2004 The University of North Carolina Press
All rights reserved
Manufactured in the United States of America
The paper in this book meets the guidelines for permanence and durability of the Committee on Production Guidelines for Book Longevity of the Council on Library Resources.
The Library of Congress has catalogued the original edition as follows:
Tushnet, Mark V., 1945
The NAACPs legal strategy against segregated education, 19251950.
Bibliography: p.
Includes index.
1. Segregation in educationLaw and legislation
United StatesHistory. 2. National Association for the
Advancement of Colored PeopleHistory. I. Title.
KF4155.T87 1987 344.73'0978 86-24971
347.304798
ISBN 0-8078-5595-2 (pbk.: alk. paper)
08 07 06 05 04 5 4 3 2 1
Contents
1
Setting the Course:
The Grant from the Garland Fund
2
The Legal Background:
From Margold to Houston
3
The Influence of the Staff
4
Thurgood Marshall and the
Maryland Connection
5
Securing the Precedents:
Gaines and Alston
6
The Campaign in the 1940s:
Contingencies, Adaptations,
and the Problem of Staff
7
The Strategy of Delay
and the Direct Attack on
Segregation
8
Conclusion: Some Lessons
from the Campaign
Acknowledgments
Research for this project was supported by grants from the Rockefeller Foundations program of Fellowships in the Humanities, the American Bar Foundations Program in Legal History, the Research Committee of the Graduate School of the University of Wisconsin-Madison, and the Georgetown University Law Center. It had its genesis in conversations with Herbert Hill. I would like to thank Elizabeth Alexander, Derrick Bell, Herbert Hill, Dennis Hutchinson, James Jones, Willard Hurst, Kathryn Powers, Deborah Rhode, and Stephen Wasby for their comments. Jennifer Jaff, James Rosenfeld, and Steven Halpert provided helpful research assistance in the projects later stages. Rebecca and Laura will have to wait again; there is only one person to whom this could be dedicated.
Introduction
In 1896 the United States Supreme Court decided Plessy v. Ferguson. Because subordination was linked to segregation, and segregation to the legal doctrine of separate but equal, it was natural for the NAACP to try to destroy the constitutional doctrine that Plessy established.
What follows is the story of the campaign conducted by the NAACP against segregated schools, from the inception of the campaign in the mid-1920s to its culmination in the early 1950s, when the organization decided to pursue the litigation that goes under the name of Brown v. Board of Education.
An introductory summary of the interpretation may assist in understanding what follows. The interpretation relies on the conception of litigation as a social process. By doing so, it helps bring into focus a number of otherwise disconnected aspects of the narrative, and allows one to understand how public interest litigation actually works. Understanding litigation as a social process requires that close attention be paid to what might be called internal aspects of the litigation campaign, that is, to the details of organizational politics and the imperatives of practical litigation.
The conception of litigation as a social process draws on analytic models from several disciplines. The people involved in these events are seen as attempting rationally to pursue their goals under circumstances of uncertainty and limited resources; this part of the conception relies on economic analyses of political action and on what has been called the resource mobilization interpretation of social movements. Economics and sociology also emphasize that the outcomes of social processes need not be those intended by the actors: economists argue that the invisible hand of the market produces aggregate outcomes that no one intends, and sociologists examine the unintended consequences of intentional actions. The social process of litigation is in this regard no different from other social processes, and my interpretation attempts to identify the role played by aggregate processes and unintended consequences.
A further limitation on the resource mobilization perspective is that it is most useful in identifying the circumstances under which some form of social movement activity can be expected to occur, but does little to explain more precisely why that activity occurs when it does and in the form that it takes. personal preferences and personalities are likely to be more important here than in the economists or sociologists efforts to understand larger-scale outcomes.
I also rely on recent work by legal scholars examining what they have called institutional reform litigation, of which the NAACPs campaign against segregated schools was a precursor. These studies have illuminated the problems lawyers and judges have in managing this sort of litigation. The conception of litigation as a social process, which is shaped by the contributions of economists, sociologists, and legal scholars, provides the structure for the narrative, but in general I have withheld explicit discussion of that conception until the concluding chapter.
The conception of litigation as a social process indicates the prominent role that internal elements play in the interpretation. External elements had, of course, some influence on the shape of the litigation campaign, and these are discussed at appropriate points. For example, the development of a force of talented black lawyers affected some aspects of the campaign, as did broader discussions in the black community about appropriate strategies to combat segregation. In the concluding chapter, I argue that these external elements had two kinds of effects. First, they set the initial conditions for the litigation effort, but as the campaign developed its own dynamic, the effects of the initial conditions diminished. Second, they produced an atmosphere that made one decision seem more sensible than another. But the external elements were loose enough to allow the small number of people involved in the litigation effort to draw whatever conclusions they desired. Thus it seems sufficient to indicate in rather broad outlines what those external elements were. To develop them in detail would suggest that there was a closer connection between the details of the external elements and the details of the litigation campaign than the evidence justifies. The external elements had an atmospheric effect that had no dramatic direct consequences, and the interpretation I offer of the overall shape of the litigation effort subordinates the external to the internal elements.
Chapter 1 examines the initial planning, which was shaped by interactions between NAACP officials and their source of funding, whose primary interests affected the plans the NAACP proposed. In chapter 2 the initial stages of the planning specifically for litigation are described. Here the main influence on the plans was the view different planners took of the place litigation should have in a general attack by the black community on race discrimination. Competition between the NAACP and the Communist party for leadership of the black community gave further shape to the litigation campaign, as is discussed in chapter 3. Although the NAACPs limited resources constrained the litigation throughout the campaign until the late 1940s, resource limitations had a particularly dramatic impact, examined in chapter 4, in leading the NAACP to make its first sustained effort in Maryland under the direction of Charles Hamilton Houston and his protg Thurgood Marshall. Chapter 5 describes the two early cases that provided the foundation for later efforts.
