What Brown v. Board of Education Should Have Said: The Nation's Top Legal Experts Rewrite America's Landmark Civil Rights Decision

By Jack M. Balkin | Go to book overview

Chapter 2
The History of the Brown Litigation

A. The NAACP's Strategy

The plaintiffs' victory in Brown was the result of a long and carefully orchestrated legal campaign by the NAACP Legal Defense and Education Fund.1 The campaign began in 1935 and achieved a string of impressive victories. The original architect of the NAACP's strategy was Charles Hamilton Houston, dean of the Howard University Law School. However, by 1939 the leadership passed to his student and protégé Thurgood Marshall. Marshall was probably the most important American lawyer of the twentieth century. He devised the basic strategy for Brown and its companion cases, and for many years he was the NAACP's main advocate before the Supreme Court. Marshall would later become Solicitor General of the United States and the first African American Justice of the Supreme Court.

The NAACP brought a series of lawsuits in the 1930s, 1940s, and 1950s challenging segregation in transportation, residential housing, and the white primary system in the South. It also brought lawsuits to equalize the salaries of black teachers with those of their white counterparts. But its most famous strategy, and the one that led directly to Brown, was bringing a series of lawsuits forcing southern graduate and professional schools—and, in particular, law schools—to admit blacks.

Three considerations justified this strategy. First, most southern states reserved graduate and professional education exclusively for whites—often with only token efforts at providing such education for blacks. As a result, the NAACP believed that the argument that blacks were receiving “separate but equal” treatment would ring particularly hollow. Thus, in Missouri ex rel. Gaines v. Canada,2 the NAACP successfully argued that Missouri did not provide equal protection by paying tuition for black students at out-of-state law schools while denying them admission to the state school. Facilities for legal education within

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