Charles Hamilton Houston, “Don't Shout Too Soon”.
The Crisis Magazine, March 1936

The turn of the new century saw a surge in immigrant passage to America. Many would encounter cruel prejudice and open hostility. Sickness, poverty and hardship would become a routine part of life. Some would not survive; others would simply give up and leave. For African Americans whose families had been here for generations, life in the agrarian south was little better.

Disproportionate poverty, and a system that was fiercely separate and anything but equal, relegated the majority of southern Black Americans to the rank of second-class citizen. Despairing of ever realizing the promise of true freedom, millions would eventually join in a Great Migration to the north. Here there would be jobs and opportunity for education and achievement, but they would go head-to-head with a largely white immigrant population, also willing to work for survival wages.

By this time, educated Black leadership in the North was taking a stand. Mary Church Terrell and Ida Wells-Barnet had merged interests to form the National Association of Colored Women. W.E.B. DuBois, William Monroe Trotter and others collaborated to create The Niagra Movement. Though short lived, it laid the foundation for the formation of the National Association for the Advancement of Colored People in 1909.

But despite these efforts, there was little relief from the government. President Woodrow Wilson (1913-1921), a Southerner by birth, would do little to advance the cause of the Negro. He declined for years to speak out against the murderous practice of lynching. When confronted by prominent Black citizens who protested his segregationist policies, the President maintained that being separated from the mainstream white society actually benefited Blacks. While denied the equal protection of the law, this population was nonetheless expected to uphold eve the hardiest duties of citizenship.

African Americans had served their country with distinction since the American Revolution. By the end of the First World War, nearly 200,000 Black American soldiers had served in Europe. Among them was an elite corps of ‘Colored Officers’ that included a young professor from Howard University named Charles Hamilton Houston. Houston and his colleagues had formed the Central Committee of Negro College Men to press the War Department for an officer's training camp so that they might with honor lead Black troops whowere drafted to serve. Houston had done just that.

When the War ended, Charles Houston was honorably discharged from the Army. In 1919, He traveled home to Washington bitter from the prejudice he encountered upon his return to the US. Houston entered Harvard Law School and within a few short years would return to Washington and transform Howard University Law School as Dean. Later, he would lay the groundwork for the strategy that would bring to an end the practice of legal segregation in American public education.

The roaring 20's saw a burgeoning of interest in African American culture. New York's Harlem routinely drew the elite from both Black and white society, eager to consume the music, dance and intellectual offerings created by America's celebrated Black artists-the “talented tenth” as DuBois called them.

During this period of African American Renaissance, researcher and Columbia University professor, Franz Boaz, called the "Father of American Anthropology", was pioneering anti-racist studies.As the decade roared on, African Americans remained under the stranglehold of Jim Crow law. Worse, there were those who still maintained that Blacks were naturally fit to live secondhand lives. This of course included school life.

African American students in the southern and border states were left to attend separate and decidedly unequal "Colored Schools". Like white schools located in poor, rural areas, these classrooms were chronically under funded, understaffed and lacking in all but the most basic amenities. This phenomenon had not gone unnoticed by all of white America, including industrialist philanthropists Julius Rosenwald, John D. Rockefeller and Pierre S. Dupont of Delaware.

Embarrassed and concerned by the condition of Delaware's "Negro Schools", Dupont had poured personal funds, amounting to nearly one million dollars, into both rehabilitation and new construction of schools for African Americans throughout the state. This noble effort resulted in the greater equalization of educational facilities there, but Black Delawareans would remain separate and barred from attending "white schools" until a landmark ruling in the state's Chancery Court admitted them into two white schools in 1952.

During the 1920s and early 30s, the NAACP received $100,000 from a young Harvard undergraduate named Charles Garland, who had dedicated much of his inheritance to the struggle for Civil Rights. Charles Houston recommended they retain the services of his fellow Harvard graduate, Nathan Margold, to devise a strategy to attack segregation in schools. Margold produced a lengthy report recommending that the funds be used to directly challenge the constitutionality of the Plessy v. Ferguson decision. In the years to come, Houston would work toward the lofty goal of reversing Plessy from the ground up. He was, however, aware that he must first challenge states to make their separate facilities truly equal, because the cost to do so would likely necessitate desegregation, and also because the nation was not yet ready to denounce the decision that had kept blacks and whites legally divided for so long.

The idea of successfully seeking in the Courts the justice that had for so long eluded African Americans affirmed Charles Houston's belief in the lawyer as "social engineer". He was already succeeding in transforming Howard University Law School into a first class institution. Accepting nothing less than excellence, he would graduate a corps of talented young lawyers, including Thurgood Marshall, who would take up the mantle.

By this time Plessy had become nothing less than a sacred cow. Sidestepping the issue of equal protection as it pertained to public education, in Gong Lum v. (versus) Rice, the Court in 1927 unanimously refused to admit a Chinese child, considered ‘colored’, to a white school in Mississippi. Yet where the pressure is greatest and the social antagonisms most acute,' wrote Houston, `the services of the Negro lawyer as social engineer are needed.

Because of the Court's refusal to consider overturning Plessy, Houston and the NAACP would initiate a strategy designed to compel the Court to enforce the ‘equal’ part of ‘separate but equal’, including pay for qualified Negro teachers, transportation at public expense, buildings and equipment, and per capita expenditure. In 1935, they targeted public institutions of higher learning, specifically law and graduate schools, in the southern and border states.

The first case was filed against the University of Maryland on behalf of Donald Gaines Murray who sought acceptance to the Law School there. The young attorney Thurgood Marshall recommended the case and helped to prepare a flawless argument. Murray prevailed and was later affirmed by the Maryland Court of Appeals. Houston was cautiously optimistic and authored an article in the NAACP's Crisis magazine entitled, ‘Don't Shout Too Soon.’ ‘Law suits mean little unless supported by public opinion,’ he wrote, ‘The truth is there are millions of white people who have no real knowledge of the Negro's problems and who never give the Negro a serious thought… We must remain on the alert and push the struggle farther with all our might.’ Marshall agreed.

In most of the world's academic circles, long held racist theories were now being challenged. Ralph Bunche completed his Ph.D. in government and international relations at Harvard and helped to organize a conference at Howard University. The Conference assessed the role of the New Deal on the economic crisis facing Negroes in America. The sweeping Federal program had thus far brought mixed blessings to the African American community. While many Blacks found work in WPA projects, segregation was more deeply rooted than ever, particularly in the South. In 1936 Bunche helped A. Philip Randolph and others to form the National Negro Congress, a coalition black organizations opposing racial discrimination.

Franklin Roosevelt, working to sell Congress his plan to free the nation from economic depression, was loath to antagonize powerful Southerners whose support was critical. Once again, America had more on its mind than securing educational equality for its Black citizens, but the NAACP and Houston were evolving their strategy.

In 1935, Lloyd Gaines graduated from a state supported black college in Missouri andapplied to Missouri University Law School. Refused on the grounds of race, the University offered to set up a separate Law School or even pay his excess tuition if hewould study elsewhere, out of state. Gaines declined.

In 1938, after an expensive and frustrating battle, the Supreme Court decided in his favor, instructing the University that it would have to offer Gaines facilities that were truly equal to facilities available to whites.The victory was sweet but short lived when the University circumvented the order. In 1939, Lloyd Gaines simply disappeared, leaving the NAACP without a plaintiff. Some feel that Gaines was murdered, given the history of tension and violence between the races in Missouri (a lynching the decade before had resulted in accusations that some U. Missouri students had been involved in the killing). Others think Gaines was convinced (financially or by threat) to disappear and deprive the NAACP of its opportunity to break the color line on the University of Missouri campus. No one really knows what happened to Lloyd Gaines. Shortly afterwards, the NAACP set up an offshoot of the parent organization to spearhead a legal attack on segregation. Thurgood Marshall was promoted to head the new NAACP Legal Defense and Educational Fund, Incorporated, eventually known simply as ‘The Fund.’ In this capacity, he would travel around the country until the early 1950's promoting its mission and earning the title, ‘Mr. Civil Rights.’

In April of 1947, the Oklahoma Supreme Court upheld the refusal of a lower court to admit Miss Ada Sipuel to the University of Oklahoma Law School. In January of 1948, Marshall argued Sipuel v. the Oklahoma State Board of Regents before the United States Supreme Court, winning a unanimous decision. The University had to admit Miss Sipuel OR provide her with an equal experience. But despite the legal victory and supportive campus protests by whites who sided with her cause, the University got away with providing Miss Sipuel with several instructors and a roped off room in the State Capital. For now, Plessy would stand, and Marshall and his team would turn up the fight: only truly equal would suffice, and only for the time being.

On July 26, 1948, President Truman issued an executive order abolishing segregation in the armed forces and ordering full integration of all the services. Executive Order 9981 stated that, "there shall be equality of treatment and opportunity for all persons in the armed forces without regard to race, color, religion, or national origin." The order also established an advisory committee to recommend ways to make desegregation a reality. There was significant opposition to the mandate from the military and on the whole, white southerners stiffened their resistance, fearing that any co-mingling simply raised Black aspirations even further.

That same year, South Carolina Governor Strom Thurmond challenged Truman's bid for a second presidential term, creating the States Rights' Democratic Party. The ‘Dixiecrats’ managed to win Alabama, Louisiana, Mississippi, and Thurmond's home state of South Carolina, energizing racist hate groups and conservatives everywhere (not all anti-integrationists were southerners, after all).

As the 1950s approached, Marshall had assembled a first class team of dedicated legal practitioners that included men like James Nabrit, Spottswood Robinson, III and Oliver Hill. The team that would eventually argue Brown would include Robert Carter, Louis Redding, George Hayes, and the only white member of the group, Jack Greenberg. They continued to battle in pioneering court cases throughout the years that followed the war.

In 1946, Heman Sweatt, a mailman from Houston, had been rejected in his bid for admission to the Law School at the University of Texas. In a mock attempt at providing ‘equal’ facilities, the state created a poorly equipped ‘law school’ for Black applicants in a basement near the campus. Sweatt fought back, even in the face of amicus (friend of the court) briefs filed by eleven southern and border states.

In 1950, Marshall argued and won Sweatt's case before a packed Supreme Court Chamber. The Court unanimously held that it could not find ‘substantial equality in the educational facilities offered white and Negro law students’ by the state of Texas. Harassed and threatened by whites, Heman Sweatt became ill and eventually dropped out.

Deciding in another case that same day, the Court upheld the right of Doctoral student George McLaurin to pursue his degree at the all-white University of Oklahoma. A sixty-eight year old school teacher when he first applied, McLaurin had been grudgingly admitted in a humiliating arrangement that enabled him to audit classes from a segregated alcove. The Court ruled that the arrangement `impaired and inhibited' McLaurin's ability to learn his profession.

Legal Defense Fund team members Jack Greenberg and Louis Redding were also in court in 1950. The Chancery Court of Delaware functioned as an equity court and had primary jurisdiction over a wide range of disputes affecting plaintiffs from multi-million dollar corporations to individuals seeking custody, guardianship, pardons and even civil rights. In 1950, the case of Parker v. (versus) the University of Delaware was heard by thirty-five year old Vice Chancellor, Collins Seitz.

Patient and courageous, Seitz was a superb arbiter who carefully listened to the arguments, then personally inspected the white and colored colleges provided by the state. Seitz found facilities at the Delaware State College for Negroes grossly inferior' and ordered Mr. Parker and the other Negro plaintiffs admitted to the white university.

"How can we say we deeply revere the principles of our Declaration and our Constitution," Seitz asked in a commencement speech, "and yet refuse to recognize those principles when they are to be applied to the American Negro in a down-to-earth fashion?"

Within two years, Seitz, who was now the Chancellor, would order Delaware public schools to admit Negro students Shirley Bulah and Ethel Belton in the lone case brought by the Fund to receive relief at the state level.

Marshall and the LDF were now at a crossroad. Even if successful, continuing to force the mandate of equality on a case by case basis would take years, not to mention copious amounts of funding. The nation was at war in Korea and President Truman, who would soon seek re-election, was already fending off a growing anti-communist frenzy spearheaded by Senator Joseph McCarthy. Once again, desegregating public education was not the foremost issue on the minds of most white Americans. It was time for the Fund to change its strategy. At great personal risk, southern black constituents, would now stand with the Fund in a direct attack on Plessy and segregation itself.

Writing in "An American Dilemma", Gunnar Myrdal reported that when "slavery disappeared, caste remained." "Within this framework of adverse tradition," he continued, "the average Negro in every generation had had a most disadvantageous start." Myrdal went on to detail a pathological system of inequity and abuse that resulted in the abandonment of hope and self-esteem-that was particularly pernicious for young Black people.

Social scientists Kenneth and Mamie Clark continued working to pinpoint the nature and development of the damage caused by racism. Using investigative techniques shared by researchers Marion Radke and Helen Trager, the Clarks conducted "doll tests" in which children of both races were presented with dolls cast from the same mold in every respect except that one was brown and the other white. A series of questions were then posed to each child: Show me the doll that looks like a white child. Show me the doll that looks like a colored child. Show me the doll you like best?…that would look nice in clothes?…that is likely to act bad?…that is a nice color?…that you like best?…that looks like you? The results were appallingly clear. The majority of children of both races attributed positive aspects to, and preferred, the white dolls. Researchers concurred that intervention would need to occur before despair and self-loathing generated by prejudice and racism took their toll.

As Marshall and the Fund developed a strategy for directly assaulting segregation, Jim Crow maintained a stranglehold on Black America, particularly in the south: health care, sports, leisure facilities, public accommodations, prisons and the majority of schools remained segregated by law. Overturning Plessy would be nothing less than a Herculean task, requiring additional consultation.

After learning about the Clarks and their work, Robert Carter believed he had found exactly what was needed to push the argument against segregation over the top. Marshall was skeptical but allowed Carter to proceed. Other team members took a wait-and-see attitude. The challenge would be to isolate the damage specifically caused by segregation in schools.

Kenneth Clark was first enlisted to testify in the Briggs v. Elliott case in South Carolina. The introduction of the social-psychological argument provided a new and compelling perspective for judging the constitutionality of school segregation.

By this time, the Legal Defense Fund was overwhelmed with litigation. Marshall himself would no longer be able to spearhead each case. Moreover, he and the team determined that the best strategy for dismantling school segregation, once and for all, would be to present a single argument to the Supreme Court in an alignment of suits that would become known as Brown v. Board of Education of Topeka, KS.