Before Brown v. Board of Education
When Fred Vinson became the thirteenth Chief Justice of the United States Supreme Court in 1946, racial segregation was culturally inviolable but legally disputed. The NAACP was ten years into its effort to strategically chip away at the “separate but equal” doctrine declared in Plessy v. Ferguson (1896). In Plessy, the Court held that states had the right to order their communities around racial segregation of black and white Americans, as long as separate and equal facilities were provided to both communities. By the time Vinson died in August 1953, the doctrine was constitutionally on its last legs. Over the course of eight years, the Vinson Court gradually weakened the foundations of “separate but equal” in many areas of life—transportation, employment, and voting among them.
This exhibit explores how the doctrine crumbled in another major area: public education. Between 1938 and 1950, the Court decided four cases--Missouri ex rel. Gaines v. Canada (1938), Sipuel v. Oklahoma State Regents (1948), Sweatt v. Painter (1950), and McLaurin v. Oklahoma State Board of Regents (1950)--that ended legal segregation in graduate education. By doing so, they set the stage for Brown v. Board of Education of Topeka (1954), which abolished Jim Crow in all of public education.
The Supreme Court faced the issue of racial segregation in higher education for the first time in the 1938 case of Missouri ex rel. Gaines v. Canada. In 1936, 34-year-old Lloyd Gaines applied to the University of Missouri law school but was rejected because it violated state laws against racial mixing. Gaines sued UM for violating the Equal Protection Clause of the Fourteenth Amendment, but the Missouri Supreme Court ruled that the law school had fulfilled its responsibilities to Gaines in two ways: (1) it had declared its intent to establish a separate law school for black students in Missouri, and (2) in the interim it provided tuition for students to attend all-black law schools in nearby states.
In the United States Supreme Court, Chief Justice Charles Evans Hughes, writing for a majority of six, rejected both arguments and reversed the state court. First, Hughes pointed out that intending to provide is not the same as actually doing it. Neither was requiring black law students to attend school out-of-state. The opinion marked the first time that the Court set a bar for what constituted “equal” in Plessy’s “separate but equal” doctrine: The state had to provide black students their graduate education at the same time as white students (not sometime in the future). And the state had to provide black students graduate education within its own geographical boundaries, if that’s what it provided white students. In the years ahead, civil rights attorneys built on the new standard, pushing to expand the boundaries of what “equal” actually meant.
Ada Lois Sipuel, later Fisher, applied for admission to the University of Oklahoma law school in 1946, but was rejected because she was black. The Oklahoma state courts denied her relief. The Supreme Court heard arguments in Sipuel v. Board of Regents of the University of Oklahoma on January 7 and 8, 1948, and four days later, issued a unanimous three-paragraph opinion reversing the Oklahoma courts. As in Gaines, the Court declared that Oklahoma had to live up to the “equal” part of the“separate and equal” doctrine, and ordered that the “State must provide [legal education] for [Sipuel] in conformity with the equal protection clause of the Fourteenth Amendment”. In this draft of the published opinion, Justice William O. Douglas adds edits that make explicit the racial discrimination against Sipuel, compared to white applicants or applicants “of any other group”.
But Sipuel had also argued that “separate” could never be “equal”, and thus the doctrine was unconstitutional on its face. This was terrain onto which the Court was not yet ready to go.
Sipuel did not go away. On January 30, Thurgood Marshall, who had directed Sipuel’s case, was before the Court with a petition for leave to file a writ of mandamus against the Chief Justice of Oklahoma for evading the Supreme Court’s January 12 mandate. Rather than acting quickly as the Court had ordered, Marshall argued, Oklahoma’s courts were allowing the university to put off Sipuel’s enrollment until a separate school could be built for her.
For Justice Frankfurter, the petition threw the Court into a fraught situation. In response to Vinson’s circulating per curiam opinion on the petition, Frankfurter warned that the draft’s language drew the Court onto Marshall's terrain. “Thurgood Marshall may use these two sentences as the basis for the claim that we have decided that no separate colored law school under the circumstances of this case may fill the bill. Have we decided that?” Later, he writes: “To me it is highly undesirable for us to put anything in our per curiam that may lead to sophisticated controversy as to what we meant or did not mean by our January 12th opinion, or what is implied by what we meant or not implied.”
Sipuel was not the full vindication that civil rights activists were working toward, but it galvanized activism around graduate education. Around the country, black Americans challenged graduate schools in their states, often with the help of local NAACP chapters. In Kentucky, the president of Louisville’s NAACP, Lyman T. Johnson filed Johnson v. Board of Trustees of University of Kentucky (1949). In the suit, Johnson claimed that he was unconstitutionally refused admittance to UK’s graduate school because of the color of his skin. Federal Judge H. Church Ford heard the case in downtown Lexington and agreed. Citing Sipuel, Ford wrote that unless UK provided black students “equal or substantially equal” training, the university must admit them. UK did not fight Judge Ford’s decision, effectively ending legal segregation at UK.
In Sweatt v. Painter, Texas resident Heman Sweatt sued the University of Texas Law School (UT) for refusing him admission. When the state built a law school for black students, Texas State University of Negroes (TSUN), Sweatt refused to enroll, arguing that his education there would be unequal on multiple grounds. In McLaurin v. Oklahoma State Regents, the University of Oklahoma admitted George McLaurin to pursue a doctorate in education but forced him to use separate facilities from white students, including separate desks in the library and classroom and a separate table in the cafeteria. The NAACP represented both Sweatt and McLaurin and argued that, among other things, both states violated their plaintiffs’ right to equal protection under the Fourteenth Amendment.
The Supreme Court agreed using analysis that paved the way for Brown. In Sweatt, the Court held that a TSUN education was by definition unequal to that provided by UT both in facilities and in "those qualities which are incapable of objective measurement but which make for greatness in a law school". In McLaurin, the Court held that the “conditions under which appellant is required to receive his education deprive him of his personal and present right to the equal protection of the laws.” With this language, the Supreme Court was on the brink of ruling that “separate” could not be “equal”. They refused, however, to reach the Jim Crow doctrine as a whole, writing that “we adhere to the principle of deciding constitutional questions only in the context of the particular case before the Court.”
On May 17, Chief Justice Vinson circulated draft opinions in Sweatt and McLaurin, both of which were brief and narrow. As the circulated record sheet shows, Vinson received agreement within two days from all but one of the justices, suggesting that the narrowness of Vinson's language won the justices to the opinion’s position.
In 1947, Philip Perlman became Solicitor General (SG) of the United States, the first Jewish American in the role. Perlman’s tenure marked the beginning of an SG’s office actively engaged in civil rights cases, even when it was not a party. In Shelley v. Kraemer (1948), a landmark decision in which the Supreme Court struck down racially restricted housing covenants, the Solicitor General filed an amicus brief in support of the Shelley family and that called for destruction of legal segregation. The case marked the first time the United States had gone on record in the Supreme Court broadly condemning all manifestations of racial discrimination. Perlman’s office employed similarly strong language in its amicus filings in both Sweatt and McLaurin, urging the Court to overrule Plessy and declare that state-sponsored racial segregation is unconstitutional in all cases.
Chief Justice Vinson wrote that the restrictions placed on McLaurin made his graduate training unequal to that of his white classmates, thus depriving McLaurin of equal protection of the laws. As in Sweatt, Vinson’s opinion in McLaurin emphasized that it was unnecessary to reach the broader contentions that Plessy should be overruled. The draft’s narrow reasoning avoided the question of the constitutionality of “segregation per se”, as Reed writes in his note to the Chief.
Multiple justices, including Justice Harold Burton, wrote to the Chief about their wish for unanimity. With the NAACP, the United States government, and the states watching Sweatt and McLaurin, the Court understood the added weight that unanimity would provide in these pivotal cases. Vinson threaded the needle of the Court’s divisions on segregation, producing drafts that, with slight tinkering, quickly gathered unanimous agreement.
The Vinson Court avoided confronting Plessy’s role in public education in Sipuel, Sweatt, and McLaurin. It was not until the advent of the Warren Court, upon the death of Chief Justice Vinson, that Brown came down as a unanimous decision effectively ending “separate but equal” public education. Why? Two audio clips suggest potential answers. In one, Justice Tom Clark argues that Brown presented the right mix of cases while the earlier ones hadn’t.
In the second audio clip, Bennet Boskey, law clerk to Justice Reed 1940-1941, describes the challenges of directly overturning Jim Crow for a justice from a border state. Boskey begins by commenting on Reed's perspective on Mitchell v. United States (1941), a case about segregation on interstate railways. He concludes by describing how Reed thought about Brown. Reed and Vinson were considered the last holdouts in overturning the "separate but equal" doctrine in the landmark case.
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