Expert Witnesses: The NAACP Legal Defense Fund's Strategy for Brown
Ham, Debra Newman, Black History Bulletin
When Kenneth and Mamie Clark began psychological tests in the early 1940s with four dolls from a New York City dime store, it might have looked like child's play. It was not. Using the dolls, they were continuing years of psychological work with black children. They were developing their own methods and modifying a test developed by two other psychologists, Marian Radke and Helen Trager. In their wildest dreams, they never considered that their research would be cited in the Supreme Court's 1954 Brown v. Board of Education school desegregation decision.
As part of a Philadelphia Early Childhood Project, Radke and Trager had tested black and white children by using cardboard dolls that were identical except that some were tinted brown with dark hair and others were pink with light hair. For the experiment, they used a shabby dollhouse and a nice house; raggedy clothes and pretty clothing. They asked the children to dress the dolls in their own clothes and put them in their houses. The majority of the children--black and white--dressed the brown doll in the shabby clothes and placed her in the shabby house. They dressed the light doll in nice clothes and placed her in the nice house. The psychologists used this to argue that poverty and racism adversely affected the children's perception of themselves and each other.
The Clarks, particularly Mamie, had been studying the damaging effects of racism on black children for several years. While at Howard University from 1934 to 1939, Mamie met Kenneth Bancroft Clark who was a graduate student and a teaching assistant. When Mamie took Kenneth's course in abnormal psychology, she was fascinated with the subject and with him. Kenneth convinced Mamie to change her major to psychology, and he became not only her instructor and mentor, but also her husband, life-long collaborator, and companion. During her undergraduate years Mamie's interest in the psychological health of African-American children led to her life-long work with them. She began by administering individual psychological tests to about 200 preschool children in Works Projects Administration nursery schools in Washington, DC. She was interested in their self-image, their sense of identity, and the detrimental effects of racism on them. Mamie's 1939 master's thesis, entitled, "The Development of Consciousness of Self in Negro Children" discussed the facets of her research. The Clarks coauthored an article based on her thesis. After Mamie graduated from Howard she joined Kenneth at Columbia University in New York City, where they both earned doctorates in psychology.
The Clarks worked with many instruments and tests to evaluate children. The diaper-clad dolls they purchased were central to one test on self-perception. Two of the plastic dolls were colored brown with dark hair and the other two were pink with blonde hair. For their experiment, the Clarks gave children between the ages of three and seven a black doll and a white doll and asked which one they liked better. The majority of the black children considered the white doll to be both prettiest and better, and they attributed the most positive characteristics to it. The Clarks also found that many black children who were given line drawings of children and instructed to color the children the same color as themselves colored the drawings pink, colored them an outlandish color like green or blue, refused to color at all, or cried in frustration over the test.
In 1950 Kenneth Clark gained national attention when he presented a paper about the detrimental effects of segregation on black children to President Harry Truman's Mid-Century White House Conference on Children and Youth. One person who was extremely impressed with the implications of Clark's research was Robert L. Carter, a leading attorney with the National Association for the Advancement of Colored People (NAACP) Legal Defense Fund (nicknamed the "Ink Fund"). Carter had attended Clark's lecture on the detrimental effect of segregation on black children and felt that Clark's findings were so convincing that the psychologist's testimony could be used effectively in court cases that the Ink Fund was bringing against segregated school systems. Schools were not only separated by race. Black teachers and principals received less pay than their white counterparts. Black schools usually had shoddy or dilapidated facilities and tattered books. The Ink Fund was attempting to end the injustices of racial discrimination.
The Ink Fund was fighting to dismantle the terrible effects of the Supreme Court's 1896 Plessy v. Ferguson decision. In this decision--which established the principle of "separate but equal,"--Justice Henry B. Brown stated that the fallacy in the plaintiff's argument "... that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chose to put that construction upon it."
In order to fight against segregation laws, the Ink Fund had to demonstrate that those laws did indeed stamp "the colored race with a badge of inferiority." The Clarks' research clearly evidences this.
After Clark agreed to be an expert witness for the Ink Fund, Carter persuaded his somewhat reluctant fellow attorneys that the use of Clark's psychological evidence could be helpful. Some of the attorneys actually laughed at the idea. Beginning in 1951 with a case in Charleston, South Carolina, Clark worked with Carter, Thurgood Marshall, Jack Greenberg, and other Ink Fund attorneys to prepare cases that would eventually bring down the elaborate system of segregation in the South and other parts of the nation. In a series of trials, Clark became increasingly skilled in making his presentation before critical judges. He learned how to phrase his replies and present the type of evidence that provided the strongest support for the cases. He also regularly attempted to enlist other well-known psychologists to testify or submit written reports to strengthen his presentations in the battle against segregation. The Ink Fund lawyers were actually surprised at the effectiveness of the expert witnesses in the courts. The attorneys readily admitted that Clark and other scholars influenced many decisions in their favor.
In 1953, a few years after the South Carolina cases, the NAACP Legal Defense Fund brought before the United States Supreme Court five cases relating to segregated school that became collectively known as Brown v. Board of Education of Topeka, Kansas. The Fund lawyers were not sure at first how they would use Clark's expertise but eventually decided to submit a written report that explained the psychological tests the Clarks had conducted with white and black children in the North, South, and West. To accompany their report to the Court the Clarks collected letters from leading psychologists throughout the country corroborating their findings. When the Ink Fund lawyers presented their arguments before the justices of the Supreme Court in the Brown trial, they utilized cases relating to segregated schools in various parts of the United States. They primarily wanted to challenge the "separate but equal" doctrine established by the Supreme Court's Plessy v. Ferguson decision of 1896. It was important to demonstrate that segregation should be challenged in a variety of settings throughout the nation, not just in the former Confederacy. The Court heard the Brown arguments but sent the case back to the Ink Fund with a number of detailed questions that it wanted to be addressed.
One of the major questions that the judges raised related to the original intent of the Fourteenth Amendment to the Constitution, ratified in 1868, which provides for equal protection under the law. Section 1 of the Fourteenth Amendment states:
"All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." The justices wanted to know if the Congress and the states assumed that racial segregation was the norm for American society, or if the original intent of the amendment was, among other things, to prevent segregation in the U.S.
The Ink Fund lawyers decided that they needed social scientists, especially historians, to research the question. They wanted the scholars to analyze congressional and state debates before and after the passage and ratification of the Fourteenth Amendment to see if the states made statements relating to racial segregation in schools or any other institution. One of scholars recruited by the Ink Fund was John Hope Franklin, a Harvard Ph.D., who was an expert on the Reconstruction era of United States history. Franklin, an African-American professor at Howard University, agreed to be a part of the team addressing the questions raised by the justices.
This was not Franklin's first assignment from the Ink Fund. In 1948 Thurgood Marshall and attorney James Nabrit, Jr. had invited him to serve as an expert witness in Lyman Johnson v. the University of Kentucky. Johnson, an African-American, wanted to pursue a graduate education in the field of history at the University of Kentucky but was denied admission and told to attend Kentucky State College for Negroes. Franklin's task was to compare the history programs, faculties, libraries and facilities at the two institutions to show that those at Kentucky State were not equal to those at the University of Kentucky. Franklin prepared the necessary materials and was eager to testify. However, before Franklin had a chance to present his testimony and deposition, the judge, at Marshall's urging, ordered the university to admit Johnson.
Five years later the Ink Fund sought out Franklin again to help them with the necessary research on the Fourteenth Amendment. He readily agreed to help. Franklin traveled to the Ink Fund offices in New York City every week between September and December 1953, to help with the research and to write a position paper. Other scholars came from a variety of institutions, including Lincoln University of Pennsylvania, Wayne State College, and Johns Hopkins University. After months of hard work, Franklin was gratified when Marshall remarked that the position paper sounded like a lawyer's brief. Franklin later related that he "deliberately transformed the objective data provided by historical research into an urgent plea for justice...."
Thurgood Marshall reargued the Brown case again in 1954. The Ink Fund submitted the reports by the Clarks and the committee of scholars as well as other evidence requested by the Supreme Court justices. After hearing the case a second time, the justices unanimously agreed that racially separate schools were inherently unequal. This paved the way for future congressional legislation and Supreme Court decisions, which would declare unconstitutional all racial segregation in the United States.
In Chief Justice Earl Warren's opinion, the Clarks' report and its acceptance by other psychologists were factors specifically cited as influencing the Court's decision of May 10, 1954.
The Clarks, along with Franklin and other scholars, had waged a successful fight to end the terrible injustices of school segregation in the U. S. These injustices caused young black children to weep at the color of their skin. Lawyers from the Ink Fund who had employed the successful strategy of testimonies and depositions from expert witnesses had won a major victory.
by Debra Newman Ham, Ph.D., Morgan State University…
Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Article title: Expert Witnesses: The NAACP Legal Defense Fund's Strategy for Brown. Contributors: Ham, Debra Newman - Author. Magazine title: Black History Bulletin. Volume: 67. Issue: 1-4 Publication date: January-December 2004. Page number: 6+. © 2007 Association for the Study of African American Life and History, Inc. COPYRIGHT 2004 Gale Group.
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