NAACP: Legal Actions
NAACP: Legal Actions, 1935–1955
From the 1920s through the 1950s, the National Association for the Advancement of Colored People (NAACP) pushed the country toward racial equality through organized protests and highly strategic law suits that challenged the racist laws that promoted discrimination against blacks. The organization was founded in 1909, and from its inception it was devoted to the fight against legalized racial discrimination.
In 1930, Walter White became the NAACP’s national executive secretary. Under White’s leadership, which lasted until 1955, the NAACP began focusing its legal challenges on five areas: voting rights, housing discrimination, equality of due process, segregation in institutions of higher education in the South, and segregation in elementary and secondary education. Legalized racial discrimination (also known as Jim Crow laws) prohibited black and white people from using the same water fountains, attending the same public schools, and having access to the same public accommodations, including restaurants, public libraries, and buses.
In a departure from other legal strategies focusing on civil rights, the NAACP pursued these cases at all levels of judicial review, including state and federal courts and before state and federal administrative agencies. In 1935 Walter White recruited Charles Hamilton Houston to lead the NAACP’s legal strategy. Houston had already displayed remarkable legal talent and vision by transforming, with minimal resources, Howard University Law School into the nation’s foremost school for training black lawyers. One of Houston’s brilliant moves at the NAACP was his recruitment to the NAACP of one of his former students, Thur-good Marshall. During this time, Marshall became one of the nation’s leading legal civil rights advocates. Prior to joining the NAACP, Marshall practiced law in Baltimore, Maryland, where he had been born and raised. In 1965, after thirty years with the NAACP, Marshall was named the United States Solicitor General, the lawyer who decides what position the United States will take when the federal government appears before the U.S. Supreme Court. On October 2, 1967, President Lyndon Johnson appointed Marshall as an Associate Justice of United States Supreme Court, making him the first black American to sit on the Supreme Court.
In 1935 Marshall became chief counsel to the Baltimore branch of the NAACP, and shortly thereafter he joined Charles Hamilton Houston in the NAACP’s New York office. For the next twenty years, the NAACP engaged in legal challenges that ultimately developed into a significant body of civil rights law. Many of the civil rights cases litigated by the NAACP during this period are studied in U.S. law schools in the early twenty-first century. As counsel for the NAACP, Marshall took thirty-two cases to the Supreme Court, and he was victorious in twenty-nine of them.
Since one of the NAACP’s litigation goals from 1935 through 1955 included bringing an end to Jim Crow laws, the organization focused on issues deemed necessary to gain and maintain full U.S. citizenship. The most important of these issues was voting rights. Since the end of the Reconstruction era, Southern racism had eliminated black Americans as a political force by restricting or interfering with their right to vote through violence, poll taxes, and the election primaries limited to white voters. These forms of legalized discrimination ultimately eliminated most black American southerners from eligibility to vote during most of the Jim Crow era.
Jim Crow laws restricted the educational opportunities of black Americans by requiring racially segregated elementary, secondary, and undergraduate education. The NAACP’s challenge against unequal educational opportunities is most famously illustrated by the case known as Brown v. Board of Education of Topeka Kansas. This landmark decision of the U.S. Supreme Court struck down laws permitting government support of racial segregation in public schools.
Like a mantra for equal justice, Brown v. Board of Education is so widely recognized by Americans that the name of the case has become a symbol unto itself. On May 17, 1954, the U.S. Supreme Court, in a unanimous decision, declared that “in the field of public education the doctrine of separate but equal” has no place in America, thus affirming that separate educational facilities are inherently unequal. The Court squarely held that racial segregation in public schools violates the Fourteenth Amendment of the U.S. Constitution, which guarantees equal protection of the law, and the Fifth Amendment of the Constitution, which guarantees due process. This case overturned a nineteenth-century legal doctrine that disregarded the pernicious effects of discrimination against black Americans. Thus, the case marked a major turning point in the struggle for civil rights. Given the history of Jim Crow, how did the Supreme Court come to issue such a groundbreaking decision? Why would the nation’s highest court depart from its prior decisions approving legal racial segregation? Of course, the right question is: How did the NAACP achieve its victory?
One of the hallmarks of the NAACP’s success up until 1954 was the careful selection of test cases. The victory in Brown v. Board of Education, and in various cases that preceded it, illustrates how the law may be used to work toward social change and equal justice. This point, however, should not overwhelm the fact that after a half century, the promise of Brown v. Board of Education is still subject to legal controversy. In 1992, for example, in the case of United States v. Fordice, the U.S. Department of Justice persuaded the Supreme Court that two southern states, Alabama and Mississippi, had not yet complied with the Court’s direction in Brown to dismantle all systems of legal segregation in higher education.
Resistance to racial segregation and discrimination during the pre- and postwar eras of the twentieth century was undertaken by the use of a number of different strategies, including civil disobedience, nonviolent resistance, political marches, boycotts, rallies, and proposed legislation. Increasingly, access to the courts became a formal method of resistance to segregation and a dominant strategic means to achieve racial equality. The NAACP and the NAACP Legal Defense Fund (LDF) adopted the strategy of using legal cases to promote civil rights and seek equality, dignity, and self-respect for black Americans. The NAACP adopted strategies that promoted civil rights as a response to the role legal racism played in restricting the educational and political opportunities of black Americans, and the nation’s understanding of what it means to discriminate on the basis of race would shift in response to the legal challenges raised by the NAACP. The nation’s courts, and ultimately Congress, were persuaded to reorient the nation toward genuinely supporting the political participation and education for all Americans
The NAACP adopted a legal strategy based upon the use of the test case. This is a strategy involving the use of a case or controversy to establish a point of law as precedent to be relied upon in future cases. The early twentieth-century civil rights lawyers focused upon convincing the courts that no matter how concealed they were, discriminatory laws based on race could not blind the courts to the role of the state in legal racism. State laws imposing racial injustice therefore could, and should, be challenged on constitutional grounds.
Other forms of legal racism often involved private individuals, private acts, or private conduct. Consequently, it became an important objective among civil rights lawyers to develop legal strategies that could pinpoint state action when legal racism was at issue in public or non-public settings. The LDF and local NAACP activists searched for test cases that would get them before the U.S. Supreme Court. Since the test-case strategy was primarily designed to attack laws or government conduct, the goal would be to persuade the nation’s highest court to view racial injustice through the lens of due process and the Fourteenth Amendment’s equal protection clause. In this respect, successful arguments to the Court would ultimately lead the Court to the dismantling of discriminatory laws on the basis of their unconstitutionality.
Despite the overall success of the NAACP’s legal strategy, NAACP lawyers from time to time suffered from false starts or dead ends, and some of the cases that became crucial precedents may not have seemed important to the litigators of the time. Yet legal victories achieved by the NAACP during the mid-twentieth century provided a framework to implement public policies that began to generate social change in American race relations, especially with regard to public education.
Because Jim Crow laws were predominately enacted by states and local governments in the South, the NAACP necessarily involved litigants in southern states. The 1944 case of Smith v. Allwright set the stage for Brown v. Board of Education ten years later. The case involved a black Texas voter, Lonnie E. Smith, who sued for the right to vote in a primary election conducted by the Democratic Party. Thurgood Marshall represented Smith. The law he challenged mandated that all voters in primary elections be white. At the time, the Republican Party was weak in most of the South, with its adherents being only a fraction of the eligible voters in any given locality. Thus, elections were essentially decided by the outcome of the Democratic primary.
Marshall argued that the state law at issue disenfranchised black voters by denying them the ability to vote in the only meaningful election in their jurisdictions. The U.S. Supreme Court agreed with this view of racial injustice, and found in Smith’s favor. The Court held that the State of Texas, by its statute, had denied Smith the equal protection secured by the Fourteenth Amendment. This case overruled the Court’s earlier doctrine in Grovey v. Townsend (1935), which ruled that political parties were not agents of the state but voluntary associations. Now, however, the Court seemed to signal that it was prepared to ensure that the right of citizens of the United States to vote could not be denied or abridged on the basis of race by any state or any association taking part in elections. Political parties operating as private organizations, freely electing officers from candidates of their own membership could not exclude African Americans from their primary elections. What was at issue was whether the opportunity to vote in a primary election for seats in the Congress of the United States used the apparatus of the state. In Texas, the answer was yes.
The State of Texas, by its own constitution and state laws, provided that every person qualified by residence in the district or county “shall be deemed a qualified elector.” The Supreme Court reasoned that whereas a state was free to conduct elections and limit electorate participation, the Fourteenth Amendment forbade the states from abridging the right to vote on account of race. As such, the Democratic Party of Texas, although it was a voluntary organization freely able to select its own membership, could not legally limit participation in the party primary to whites.
The Court rejected the argument that the protections of the Constitution are applicable only to general elections. Primaries, the state argued, are political party affairs, handled by the party and not by governmental officials. The state’s argument, however, did not square with the Court. Instead, the Court sided with the NAACP’s
lawyers, who argued that the right to vote in a primary for the nomination of candidates, like the right to vote in a general election, is a right secured by the U.S. Constitution, and that that right may not be abridged by any state on account of race. Accordingly, the Court did not allow the use of private organizations or political parties in the election system to camouflage the role of the state in the electoral process. Racial discrimination in this case was clearly traceable to the state, and the white-only primary was a clear instance of legal racism that the Court was prepared to strike down.
In another case, NAACP lawyers raised the issue of whether the use of a private agreement or contract could insulate a state from the reach of the federal Constitution. In 1945 a black family by the name of Shelley purchased a house in St. Louis, Missouri, but a “restrictive covenant” had been placed on the property in 1911. Restrictive covenants were used to limit an owner’s right to sell property to whomever he or she desired. Such covenants were used by white property owners to prevent future home sales to black Americans. In Shelley v. Kraemer, the restrictive covenant at issue barred blacks and Asians from owning the property the Shelleys had purchased, and neighbors sued to restrain them from taking possession of the property. Thirty out of a total of thirty-nine owners in the area had signed an agreement containing a restrictive covenant, which held that “the said property is hereby restricted … that hereafter no part of said property or any portion thereof shall be … occupied by any person not of the Caucasian race.”
At the time the agreement was signed, black Americans owned five of the parcels in the district, and black families had occupied one of those since 1882. The trial court found that some of the owners of homes within the restricted area of the premises in question had failed to sign the restrictive agreement in 1911. On August 11, 1945, pursuant to a contract of sale, the Shelleys obtained a deed to their new home. On October 9, 1945, the owners of other property subject to the terms of the restrictive covenant brought suit in Circuit Court of the City of St. Louis, requesting that the court divest the Shelleys of the title to the property. The trial court denied the requested relief on the ground that the restrictive agreement had never become final and complete because it had not been signed by all property owners in the district.
The Supreme Court of Missouri reversed this decision and directed the trial court to grant relief for the neighbors, holding that the agreement was legal and that enforcement of its provisions violated no rights guaranteed by the Constitution. Notably, at the time the court rendered its decision, the Shelleys were occupying the property.
The NAACP recognized that this case could allow the civil rights movement to build on legal precedent, while also attacking a discriminatory restriction on equal access to housing. Charles Hamilton Houston, the first African American to earn a Doctor of Juridical Science degree at Harvard, and Thurgood Marshall, argued the case before the U.S. Supreme Court. At issue two questions: (1) Are (race-based) restrictive covenants legal under the Fourteenth Amendment of the U.S. Constitution? and (2) Can they be enforced by a court of law?
Although this case focused on an economic opportunity, it followed closely upon the context of Smith v. Allwright. In both cases, the Supreme Court was faced with the task of drawing a line between presumptively permissible private discrimination based on race and unlawful state discrimination based on race. The Supreme Court held in this case that it is unconstitutional under the Fourteenth Amendment for the government to enforce such a restrictive covenant, because to do so requires judicial action by the state.
The only pertinent arguments that the Shelley’s neighbors could raise was that judicial enforcement of private agreements did not amount to state action, and that the participation of the state is so attenuated that its participation could not constitute state action within the meaning of the Fourteenth Amendment. The Court determined, however, that there had indeed been state action in the case. The Court observed that the Shelleys were willing purchasers of the property, and that the owners were willing sellers. It was clear that but for the active intervention of the state courts, the Shelleys would have been free to occupy the property without restraint. The freedom from discrimination by the states in the enjoyment of property rights was among the basic objectives sought by the framers of the Fourteenth Amendment. For the Court, whatever else the framers sought to achieve, it was clear that the matter of primary concern was the establishment of equality in the enjoyment of basic civil and political rights, and the Court sought to preserve those rights from discriminatory action on the part of the states based on considerations of race or color.
In Sweatt v. Painter, Herman Sweatt, a black American, was denied admission to the University of Texas Law School on the grounds that substantially equivalent facilities were offered by a law school open only to blacks (thus meeting the requirements of the 1896 decision in Plessy v. Ferguson). At the time the plaintiff first applied to the University of Texas, there was no law school in Texas that admitted blacks. The Texas trial court, instead of granting the plaintiff a writ of mandamus (a court order from a superior court to a lower or trial court to comply with a legal command in order to safeguard an individual’s legal interest), postponed the trial for six months, allowing the state time to create a law school only for blacks. Ultimately, the U.S. Supreme Court reversed a trial court opinion that the newly established state law school for black Americans met the “separate but equal” judicial doctrine prevailing after Plessy v. Ferguson.
The University of Texas Law School had sixteen full-time and three part-time professors, 850 students, a library of 65,000 volumes, a law review, moot court facilities, scholarship funds, an Order of the Coif affiliation, distinguished alumni, and prestige. The separate law school for black Americans had five full-time professors, twenty-three students, a library of 16,500 volumes, a practice court, a legal aid association, and one alumnus admitted to the Texas Bar. At issue in this case was whether the legal education offered by the new school was substantially equal to that offered by the University of Texas Law School. W. J. Durham and Thurgood Marshall argued the case before the Court, recognizing that it could prove exceptionally useful as a test case, and perhaps help overturn the Plessy standard of separate but equal facilities.
Leading up to Sweatt v. Painter, the civil rights movement obtained a couple of additional helpful victories. In Missouri ex rel. Gaines v. Canada (1938), the U.S. Supreme Court invalidated state laws that refused black students access to all-white state graduate schools when no separate state graduate schools were available for African-Americans. In Sipuel v. Oklahoma State Regents (1948) the Court reaffirmed and extended Missouri ex rel. Gaines v. Canada, ruling that Oklahoma could not bar a black student from its all-white law school on the ground that she had not requested the state to provide a separate law school for black students. Perhaps forecasting the NAACP’s focus on attacking legal racism in public education, Marshall had won a case in 1935 in the Maryland Court of Appeals against the state’s law school, which gained admission for Donald Murray, a black graduate of Amherst College who had been denied admission to the law school based on the separate but equal doctrine. While significant, this ruling did not apply outside of Maryland. Marshall himself had been denied admittance to the University of Maryland Law School on the basis of race.
Following these precedents, the Supreme Court ruled in Sweatt v. Painter that, “with such a substantial and significant segment of society excluded, we cannot conclude that the education offered petitioner is substantially equal to that which he would receive if admitted to the University of Texas Law School.” The court also considered whether excluding Sweatt from the University of Texas Law School was no different from excluding white students from the state’s new law school. It concluded that it was unlikely that a member of a group so decisively in the majority and attending a school with rich traditions and prestige would seriously claim that the opportunities afforded him for legal education were unequal to those held open to Sweatt. Here, the Court concluded: “Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.”
Ruling that Sweatt could claim his full constitutional right, the Court held that a black American had a right to a legal education equivalent to that offered by the state to students of other races. Although the Court refused to expressly overrule Plessy v. Ferguson, and thus leaving the doctrine of separate but equal in place, the Court acknowledged that the equal protection clause of the Fourteenth Amendment required that Herman Sweatt be admitted to the University of Texas Law School.
Notwithstanding the success of Sweatt, the fact that the doctrine of Plessy v. Ferguson was not flatly rejected illustrates why Brown was necessary to complete the objectives of the civil rights lawyers. The constitutional evil of the separate but equal doctrine was that blacks were told to go to one set of schools, while whites could go to another set that, in practice, clearly provided a better education. This form of legal racism was pernicious because of its implicit stigmatization of black students. In Brown, the Court acknowledged that to separate black students from others of similar age and qualifications solely because of race generates a feeling of inferiority that affects the individual in a manner unlikely ever to be undone.
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