Jan 24, 2022
America’s Greatest Lawyer — Ever — Died Twenty-NineYears Ago Today.
Thurgood Marshall Wants You To Get To Work
A little girl is walking to school. She walks many blocks. Then she walks through the railroad yards. Eventually, she crosses a busy avenue, only to stand and wait. And wait. And wait, as the sun comes up, for the bus to arrive.
The bus then carries her the mile, or more, to school.
At the end of her school day, the girl doubles back on her long journey home. The sun goes down. She is afraid to cross back, in the dark, through those railroad yards. She runs through the tracks, stumbling along the way.
Now comes winter. It is cold and darker still, both morning and early afternoon. The girl sheds tears on the walk to and from school. Her tears freeze upon her little round cheeks when the frosty air is coldest.
The child walks each day through a bitterly cold part of our nation, the great state of Kansas. Temperatures drop to 25, 20, even 18 degrees, burning her little knees through her well-worn tights, freezing her little toes housed in uninsulated boots, numbing her fingers until she thinks they will snap off.
Occasionally, she turns back to run home because she cannot face down the journey. One morning, she runs into the arms of her Daddy, a stern but loving man who cannot tolerate the suffering his child endures. He knows another school is closer to home, just a few blocks away.
One morning, he and his daughter, dressed in their Sunday best, walk to the nearer school to register. But the school board in Topeka refuses her admission to that all-white school because his little girl is colored. So, her Daddy calls the NAACP.
‘Brown v. Board of Education’ and the Hearts and Minds of America
Thus began one of the most moving and consequential stories in American history. The little girl was Linda Brown. The decision in her case is the most famous in a line of constitutional jurisprudence that reflected the civil rights protests happening in the streets of a hundred burning cities of the era. It was also imprinted on my childhood consciousness.
My Daddy — also loving but stern — was a founding member of the Congress of Racial Equality. Pinned to the bulletin board, over the drafting table where he did his political cartooning: the iconic photograph of another little girl sitting with her mother on the steps of the U.S. Supreme Court, holding up the newspaper headline, “HIGH COURT BANS SEGREGATION IN PUBLIC SCHOOLS.”
In the faces of these little girls, I saw my own. Through the prism of the Constitution, I saw the power to uphold our humanity as Black people.
The simple question posed to the U.S. Supreme Court in Brown v. Board of Education of Topeka: Does the segregation of public schools, based solely on race, violate the Equal Protection Clause of the Fourteenth Amendment?
The answer may seem obvious now, but it was far from clear in 1950s America. “Separate but equal” was the law of the land and Jim Crow was a way of life.
For Linda Brown to win a constitutional victory for Black and brown children everywhere, the Supreme Court had to be convinced that its ruling of just 60 years before, Plessy v. Ferguson, was wrongly decided, unconstitutional, and racist.
Thurgood Marshall was just the man to convince them.
Marshall and the NAACP Legal Defense Fund, which he had helped launch a little over a decade before, took Linda Brown’s case together with four others from Delaware, Virginia, South Carolina, and the District of Columbia to the Supreme Court. When the justices agreed to consolidate the cases, it signaled school segregation was a national, not just a southern problem. But the legal battle was just beginning.
Thurgood Marshall first rose before the justices, a colored man in a white institution, on December 9, 1952.
He argued with cool sensibility that school segregation violated the rights not only of colored people, but all people under the Fourteenth Amendment. Opposing counsel opted for passion, however, making a plea for segregated schools. Representing the state of South Carolina, John W. Davis almost wept as he argued the benefits of segregation — for Negroes. They were asking for more than they could handle, he argued.
The justices seemed persuaded, and the Plessy decision appeared on solid ground.
But everyone understood the case’s significance, not least of all the nine white men who would decide it. The justices asked for clarification about the Founders’ intent in drafting the Fourteenth Amendment. Would they have wanted the races to remain separate in perpetuity?
Marshall seized the prompt, delivering a 235-page brief that answered the question with unwavering certainty: The Founders were fundamentally in support of equality — not separation, division and inequality.
Marshall returned the courtroom on December 7, 1953, for a second round of arguments that would last three days. This time, he pulled no punches. The only rationale for separating colored children from whites, he said, was to keep formerly enslaved Americans “as near that stage as possible.”
Ultimately, the Supreme Court was persuaded.
“We conclude unanimously that in the field of public education, the doctrine of separate but equal has no place.”
The Failed Promise of Brown
I was born ten years later into the promise of Brown v Board. The schools were integrated by law and my spirit was full of gratitude to Linda Brown and her courageous litigator. I soon learned, however, that neither case law nor legislation could change minds, let alone hearts.
Even as African Americans celebrated the Court’s decision, many whites were ambivalent. Still others were down-right recalcitrant. A Southern Manifesto immediately and openly defied the Court.
The following year, the justices felt compelled to order public schools to desegregate “with all deliberate speed.” Still, by 1963, almost ten years later, only a negligible number of African American children attended schools with whites.
I started kindergarten in 1969. The “gorgeous mosaic,” if visible on the sidewalks and subways of 1970s New York City, was decidedly absent in its classrooms. For me, the failed promise of Brown entailed an odyssey through the segregated schools of the 1970s and 80s.
My schoolmates called me “Oreo,” “half-breed,” “halfie,” and the cruelly specific, “half-nigger.” Kids armed with less information went with just plain “nigger.”
The kids also bullied me physically — hair pulling, shoving and kicking, black eyes, and bloody noses — all because of race.
And reminiscent of little Linda Brown, I faced a Hellishly long commute, made worse, at the end of the day, by the dark and often lonely street corner wait for the bus to pick me up, in winter, my knees sore, my fingers and toes frozen from the bitter cold.
However, far more important than any of this is the radical truth distilled in the Brown decision: my education suffered miserably.
Thurgood Marshall had presented to the Supreme Court robust evidence in the form of a doll study demonstrating that African American children as young as six-years-old preferred white dolls and devalued Black dolls as unattractive and untrustworthy. The justices agreed that the very fact of being separate had taught these children to devalue themselves.
In my case, not only was my sense of self repeatedly undermined at school, but I didn’t learn as well in segregated environments.
- My peers dismissed my humanity and equality.
- Guidance counselors sold me short.
- Teachers didn’t believe in me.
- Over time, it was destabilizing and difficult to believe in myself.
As the Court held in Brown,
“To separate [children] 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.”
The Dream Deferred: Education as a Civil Right
I became a lawyer to continue unraveling the wrongs of segregation. Linda Brown became a teacher to do the same.
In 1979, Linda Brown joined the American Civil Liberties Union to re-open Brown v Board of Education, arguing yet again that Topeka’s schools remained segregated. And yet again, the Supreme Court agreed. This iteration of the case was not decided in1989, the year I graduated from law school.
I started teaching law school just as officials started to implement a new integration for Topeka, in 1994. I stood in front of a classroom to preach the lofty principles her case represented, as Linda Brown spoke instead with Washington Post about the intractable realities on the ground: “We feel disheartened that 40 years later we’re still talking about desegregation. But the struggle has to continue.”
The Struggle Has to Continue
The advocate for Linda Brown became the first African American appointed to the U.S. Supreme Court. Justice Thurgood Marshall served with distinction until 1991, and he died on this day in 1993. He spent his life dismantling Jim Crow and fighting for the rights of minorities. Marshall arguably did more than any other attorney, before or since, to change the face of American law.
But there is still so much work to be done.
Before he brought Linda Brown’s case to the courts, Marshall worried about implementation: if he won, how would the country ensure integration of the nation’s schools. Marshall died 29 years ago, but he was prescient.
On the 65th anniversary of Brown, a 2019 report from the Poverty and Race Research Action Council found that forty percent of African American students attend schools that are at least 90 percent Black or brown.
In honor of Thurgood Marshall and his legacy, let us
~ rededicate ourselves to his work,
~ find new and creative ways to weed out the historical segregation deeply rooted in housing patterns, zoning, school choice, and economic disempowerment, and
~ endeavor to change hearts and minds to bring them into alignment with the promise of Brown.
Teachers, lawyers, social activists — we must redouble our commitment to integrated schools to ensure all children have an equal opportunity to awaken to our democratic culture, spirit, and values.
Let’s get to work.
