Academic journal article Constitutional Commentary

A Very New Lawyer's First Case: Brown V. Board of Education

Academic journal article Constitutional Commentary

A Very New Lawyer's First Case: Brown V. Board of Education

Article excerpt

They asked the FBI three times to find me that mid-August weekend in 1953. They couldn't do it. Maybe I should have held up a bank or two. They turned the job over to the Harvard Law School grapevine, and within two hours I had a telegram from my fiancee telling me to call a Philip Elman.

I was a year out of law school and had just completed a wonderful clerkship in New York with Learned Hand. I was on vacation, a job with the Department of Justice to begin September 15. When I called Elman, he said that Justice was forming a group to brief the reargument in the School Segregation Cases. Could I come to work immediately? I reported on Monday and began my first case.

The Segregation Cases were five lawsuits involving segregated schools in Delaware, Kansas, South Carolina, Virginia, and the District of Columbia. The thrust of plaintiffs' claims was no longer for equal schools--for better schools--but for the same schools, for a decision that law-enforced segregation of primary and secondary public schools violated the Constitution of the United States. The principle had been established for graduate and professional schools. The NAACP, in a carefully planned campaign, was now extending its challenge to the lower grades. The focus of the case was aided by a finding in the Kansas district court that the black and white schools of Topeka were physically, and in all other respects, equal. In the other four areas black schools were clearly unequal; in D.C., South Carolina, and Virginia, federal courts had given the states time to build new schools. Interestingly, it was only the state courts of Delaware that, while finding that U.S. Supreme Court precedent allowed separate but equal treatment, nevertheless ordered the immediate admission of black children to white schools, pending efforts to bring the black schools up to equality. The right of the children, the Delaware court said, was personal.(1) The five cases had been argued in December of 1952, but in June 1953 reargument was ordered, with directions "to discuss particularly five questions."

The first two questions dealt with the history of the Fourteenth Amendment. Was there an intention or understanding of Congress, or of the state legislatures which ratified the Fourteenth Amendment, with respect to segregation in the public schools?

The last two questions, perhaps critical to the Court's eventual conclusion, asked whether the Court, if it found a constitutional violation, might allow a gradual adjustment.

The third question asked whether, if the legislative history provided no answer, it was "within the judicial power, in construing the Amendment, to abolish segregation in public schools"?

It was this third question I was asked to brief. The "team" consisted of Philip Elman, a member of the Solicitor General's office, who had handled most of the Government's civil rights work, and four other lawyers, two from Alien Property, one from Antitrust and one from Tax. They were all experienced lawyers. Only I was brand-new. Within the Department overall responsibility for the project lay with the Assistant Attorney General for the Office of Legal Counsel, Lee Rankin, an excellent Nebraska lawyer with no experience in constitutional law. Eisenhower had not yet named a Solicitor General. One consequence of that vacancy provided me with the biggest office I will ever have. All the other team members were established lawyers in the Department; they had offices. I was given the S.G.'s office, about the size of a basketball court with its own bath. I felt like a beetle in the Temple of Karnak. I found a tiny room over the secretary's office, which Justice Reed had put in for himself when he was S.G. There I prepared the Government's answer to Question 3.

Writing a vigorous argument that it was indeed "within the judicial power, in construing the Amendment, to abolish segregation in the public schools" I found myself reflecting that this was a slant quite different from the lessons I had learned during the preceding year from America's stoutest exponent of judicial restraint. …

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