Brown v. Board of Education Brief for Appellants in Nos. 1, 2 and 4 and for Respondents in No. 10 on Reargument - 25 Years Since Brown

    IN THE

ffimtrt of %  &tatw
October Term, 1953 

Mo. 1
OLIVER BROWN, e t  a l ., Appellants, 

vs.
BOARD OF EDUCATION OF TOPEKA, e t  a l ., Appellees,

No. 2
HARRY BRIGGS, JR , e t  a l ., Appellants.

vs.
R  W. ELLIOTT, e t  a l ., Appellees.

No. 4
DOROTHY E. DAVIS, e t  a l ., Appellants,

vs.
COUNTY SCHOOL BOARD OF PRINCE EDWARDS COUNTY,

Appellees.
No. 10

FRANCIS B. GEBHART, e t  a l ., Petitioners,
vs.

ETHEL LOUISE BELTON, e t  a l ., Respondents.

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A p p e a l s  F r o m  t h e  U n i t e d  S t a t e s  D i s t r i c t  C o u r t  fo r  t h e  D i s t r i c t  o f  
K a n s a s , t h e  E a s t e r n  D i s t r i c t  o f  S o u t h  C a r o l i n a  a n d  t h e  E a s t e r n  D i s ­
t r ic t  o f  V i r g i n i a , a n d  o n  P e t i t i o n  fo r  a  W r i t  o f  C e r t io r a r i  t o  t h e

S u p r e m e  C o u r t  o f  D e l a w a r e , R e s p e c t i v e l y

■

BRIEF FOR APPELLANTS IN NOS. 1, 2 AND 4 AND 
FOR RESPONDENTS IN NO. 10 ON REARGUMENT

CHARLES L. BLACK, JR., 
ELWOOD H. CHISOLM, 
WILLIAM T. COLEMAN, JR., 
CHARLES T. DUNCAN,
GEORGE E. C. HAYES,
LOREN MILLER,
WILLIAM R. MING, JR., 
CONSTANCE BAKER MOTLEY, 
JAMES M. NABRIT, JR.,
DAVID E. PINSKY,
FRANK D. REEVES,
JOHN SCOTT,
JACK B. WEINSTEIN,

of Counsel.

HAROLD BOULWARE,
ROBERT L. CARTER,
JACK GREENBERG,
OLIVER W. HILL,
THURGOOD MARSHALL,
LOUIS L. REDDING, 
SPOTTSWOOD W. ROBINSON, III, 
CHARLES S. SCOTT,
Attorneys for Appellants in Nos. 1, 

2, 4 and for Respondents in No. 10.



Table of Contents

The NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND is not part of the 
National Association for the Advancement of 
Colored People although it was founded by it 
and shares its commitment to equal rights. LDF 
has had for over 20 years a separate Board, 
program, staff, office and budget.

Foreword—Jack Greenberg ..............................................
Opening Statement—Ambassador Andrew Y oung........
Priorities Now—The Needs Today .................................
Commentary

Vernon E. Jordan, Jr. ......................................................
Robert Coles, M .D...........................................................
Bayard R ustin ...................................................................

Before B ro w n .....................................................................
Commentary

Richard K luger.................................................................
The Brown Decision..........................................................
Commentary

Charles L. Black, Jr. ......................................................
Judge A. Leon Higginbotham ........................................
Clifton R. Wharton, Jr. ..................................................
Roy Wilkins .....................................................................

Since B ro w n .......................................................................
Commentary

Wiley A. Branton.............................................................
James C. Comer, M.D......................................................
James L. Curtis, M.D.......................................................
Dorothy Height ...............................................................

Since Brown (continued) ....................................................
Commentary

Anthony Amsterdam ......................................................
William Sloane C offin ....................................................
Charles V. Hamilton ......................................................
Patricia Roberts H arris ....................................................
Nicholas DeB. Katzenbach ............................................
James Vorenberg ............................................................
Roger Wilkins .................................................................

Legal Talent .......................................................................
Commentary

Michael I. Sovern............................................................
The Legal Defense Fund as Model .................................
Commentary

Vine DeLoria, Jr. ..........................................................
Margaret Fung .................................................................
Father Theodore M. Hesburgh, C.S.M...........................
Vilma Martinez ...............................................................

The Legal Defense Fund Today.......................................
Financing Legal Redress ..................................................
Closing Statement— Excerpts from Earl Warren Address, 
May 15, 1970 .....................................................................

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3 
5

5
8
9

11

15
17

21
22
22
23
25

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Foreword

When anniversaries roll around, one 
tends to look in two directions—over the 
years passed, and ahead to the uncertain 
future. In these summary pages, the 
Legal Defense Fund and some of its 
good friends do both.

As 1 look back to 1954, I wonder what 
life in America would be like today if in 
the Supreme Court’s deliberations the 
Brown decision had gone the other way.

Legal segregation would have 
remained institutionalized in much of 
the country. The courts would not have 
been a forum to effect transition from a 
segregated to a nonsegregated society. 
Public protests, such as that of Martin 
Luther King, would have met the same 
hostile resistance. But the courts 
probably would not have protected Dr. 
King, as they did in over forty Supreme 
Court cases brought by LDF. And. 
therefore, legal and nonviolent means 
would have scarcely been available to 
America’s black citizens in their quest 
for equality. America very well might 
have come to resemble Northern Ireland 
or Lebanon.

Instead, by legal process and legal 
protest, the nation turned the comer from 
being two inexorably separate societies, 
black and white, towards becoming one 
nation where skin color and the heritage 
of slavery one day will make no 
difference in a person’s life.

Nevertheless, a massive task remains 
ahead of us. School segregation lingers 
in the South and is widespread in the 
North. Employment discrimination 
slowly crumbles but also resists change,

so that black unemployment is double 
that of white, black youth unemployment 
four-fold. Housing segregation yields 
grudgingly. The criminal justice system 
disadvantages the poor and black. But 
we continue to make precedents that 
combat injustice, create greater equality 
and offer hope.

We are effective insofar as our 
resources permit. We are grateful for 
the steadfast past support of our friends, 
and ask you to uphold our efforts now 
and in the years ahead.

Jack Greenberg, Director-Counsel 
NAACP Legal Defense Fund

2



Andrew Young, United States Ambassador to 
the United Nations, is the former member of the 
U.S. House of Representatives who worked 
closely with Dr. Martin Luther King, Jr. in the 
Southern Christian Leadership Conference.

T H E  R E P R E S E N T A T I V E  
OF THE

U N I T E D  S T A T E S  O F  A M E R I C A
TO THE

U N I T E D  N A T I O N S

The revolution in race relations in the United States over the last quarter century could 
not have been achieved without a vast and imaginative offensive through the judicial 
process. The Legal Defense Fund was always at the forefront of that undertaking.

My own perspective on this legal effort came from participation in the nonviolent mass 
movement with its multiple strategies of citizenship education and voter registration, 
community organizing and economic boycotts, demonstrations and negotiations, civil 
disobedience and jail-ins. Time and time again, the movement called upon the Legal 
Defense Rind for assistance, and the Fund’s lawyers responded with an aggressive use 
of Constitutional law and a consummate skill which prevailed in a wide variety of 
landmark cases.

Perhaps more than any other lawsuit, Brown v. Board of Education laid the groundwork 
for a body of law which is still growing, still strengthening our democratic institutions, 
still affirming and protecting the whole range of human rights that are the aspiration of 
all people everywhere in the world.

Twenty-five years ago, few people foresaw the potential for the larger meaning of the 
Brown case—the possibility that the legal process, when properly utilized in a 
democratic society, could undergird a mass movement for social change and lead to 
epochal victories for the rights of all citizens. That is the legacy of Brown and the Legal 
Defense Fund, a legacy that inspires people the world over and energizes the global 
quest for human rights.

That alone is enough to enshrine the Legal Defense Fund as a bastion of the rule of law, 
and a beacon of freedom with justice.

Andrew Young

3



In commemoration of the 23rd anniversary of 
Brown v. Board of Education and to lend support 
to LDF’s three-year 40th anniversary national 
campaign, President Carter met with this group at 
the White House on May 18, 1977. Pictured from 
left to right are: ViCurtis Hinton, Coordinator,
LDF-Washington Committee; Julius L. Chambers, 
President, LDF; William T. Coleman, Jr.,
Chairman of the Board, LDF; John Filer,
Chairman, Aetna Life and Casualty and Chairman, 
40th Anniversary Campaign; President Carter; 
Martha Mitchell, then Special Assistant to the 
President for Special Projects; Jack Greenberg, 
Director-Counsel, LDF; Ernest G. Green, Assistant 
Secretary, Employment and Training, U.S. 
Department of Labor and one of the nine high 
school students who integrated Central High 
in Little Rock, Arkansas; Betty J. Stebman, 
Development Staff, LDF; E. B. Knauft, Vice

President, Corporate Social Responsibility, Aetna 
Life and Casualty; James Ghee, Esquire, of 
Farmville, Virginia; and Lucinda Todd, retired 
elementary school teacher, former secretary of the 
Topeka branch of the NAACP and a leader in 
initiating the Brown suit.

4



Priorities Now—The Needs Today

Vernon E. Jordan, Jr. is President of the 
National Urban League. He headed the staff of 
the United Negro College Fund and of the Voter 
Education Project.

Their Urgency
The Legal Defense Fund’s immediate and 
long-term priorities were never more 
necessary to the well-being of our entire 
country than they are today. Whether 
we consider the problems of the economic 
dilemma of the United States, the physical 
and mental health of our people or our 
deteriorating cities, the legal struggle to 
make equal opportunity a practical reality 
is fundamental to the finding of solutions.

The National Urban League has applied 
intelligence and energy to improve the 
working conditions of black Americans 
and other disadvantaged minorities for 
seven decades. In the three centuries of 
black experience in the United States, 
we have achieved tangible and measurable

progress toward equal treatment only in 
the past thirty years. The Brown decision 
was a quantum leap. But, although the 
Supreme Court and the Congress wrote 
the principle of equality into the 
enforceable laws of the nation, translating 
those laws into reality is still painfully 
slow.

An intolerable level of one in four black 
persons ready to work but unemployed, 
the rising numbers of impoverished black 
children, the largely unredeemed promises 
of decent housing and delivery of quality 
medical care to those who need it most, 
a widening gap between the incomes of 
black and white families, and the growing 
indifference to the need for workable, 
effective measures that improve the lot of 
people all mock any assumptions that we 
share a national commitment to the 
enjoyment of equal rights.

Contrary to a widely held belief, 
benefits from general progress in recent 
decades have reached only a small part of 
the black community. True, there is a 
growing number of blacks in college, in 
management positions, and the 
professions. But so long as 28 percent of 
black families have still to climb above the 
poverty level, we have a very long way to 
go-

And not much time.

Vernon Jordan

Twenty-five years after the Supreme 
Court’s historic Brown decision 
outlawing racially segregated public 
schools, what is happening to America’s 
commitment to equal justice?

There is rising reaction against hard- 
won gains. Too many legislators, 
government officials, even some jurists, 
remain callous to deprivation and 
injustice. As one federal Judge has 
observed, rights of the black and poor 
are being measured “with a 
micrometer” .

The Legal Defense Fund will sustain 
the fight. In litigation and in negotiation 
we continue the national struggle for 
equal access to employment, against 
capital punishment—the most racially 
discriminatory penalty, for further strides 
desegregating education, housing, for 
rights of the imprisoned, for equality in 
medical care and voting rights, and the 
steady growth of an experienced civil 
rights bar.

Employment
Notwithstanding civil rights laws 

passed since 1957, and key court 
decisions the Fund has won, minorities 
still have immense difficulty getting jobs 
and overcoming barriers to advancement. 
For the same or more work, too often 
they receive less. Since its creation in 
1964, the federal Equal Employment 
Opportunity Commission (EEOC) has 
accumulated a backlog of 130,000 
complaints. Some date back as long as 
seven years.

5



The EEOC has begun crash efforts to 
reduce this glut. Expediters use 
computers. The Fund intends to make 
sure that, in belated haste, equal 
employment opportunity is not lost in an 
avalanche of paper.

The LDF assigns about half of its 
work toward the right of minority 
Americans to get and hold jobs on their 
individual merits.

As job markets tighten, court 
challenges become more intricate. The 
May 1977 Supreme Court decision in 
International Brotherhood of Teamsters 
v. United States denied relief on the 
ground that seniority systems had no 
intent to discriminate. This may lock an 
entire older generation of minority men 
and women into an inferior least-paid 
underclass.

Brian Weber’s suit against Kaiser 
Aluminum and the United Steelworkers, 
charges reverse discrimination. Bakke's 
case similarly charged reverse 
discrimination in medical school 
admissions. Strenuous effort has fended 
off the “ reverse discrimination 
backlash” , but it still presents the threat 
of stiffling affirmative action programs. 
One attack on voluntary affirmative 
action would require employers to admit 
earlier discrimination that invites claims 
for back pay.

Nearly all the hundreds of current 
LDF employment suits are class actions. 
They affect the chances of thousands of 
minority workers to enter the 
mainstream of the nation’s work force 
and to progress on their worth. In one 
recent year, the Fund appeared in 23 
such employment cases in the Supreme 
Court.

Discrimination by Government. The
1972 Equal Employment Opportunity 
Act aims to “eradicate entrenched 
discrimination in the Federal Service.” 
Federal workers must first exhaust 
procedural remedies through the Civil 
Service Commission before recourse to 
court. There were long delays, elaborate 
rigmarole, few results. Hundreds of 
Justice Department lawyers stalled 
reform, until the LDF won a December 
1975 court judgment compelling the 
Commission to permit class actions.
With the 1978 Barrett case, the

Commission was ordered to resolve class 
complaints it had refused to recognize.

A unanimous Supreme Court ruled in 
Chandler v. Roudebush: Federal 
employees’ job discrimination 
complaints are now entitled to full trials, 
just as workers in the private sector are. 
The Fund has stepped up 20 class action 
suits.

The discriminatory PACE 
(Professional and Administrative Career 
Examination) is now a central issue in 
public employment. It screens applicants 
for hundreds of thousands of middle 
level civil service positions. On the West 
Coast, only one per cent of black, and 
no Hispanic, test-takers passed PACE. 
LDF and others have filed a legal 
challenge to the continued use of PACE.

Twenty-seven active LDF cases attack 
job bias by states and cities. The Fund is 
defending the City of Detroit against two 
suits filed by white police officers’ 
organizations. The survival of 
affirmative action policies, begun in 
1974 by Mayor Coleman Young to 
change discriminatory police hiring and 
promotions, is at stake.

Capital Punishment
The Fifth Circuit Court of Appeals has 

rejected legal arguments against death 
penalty laws developed since 1976. The 
Supreme Court declined to review the 
decision in the case of John Spinkellink, 
a prisoner condemned to death. If not 
granted clemency, the state of Florida 
can electrocute him in 1979. That can 
also pave the way for the six Fifth 
Circuit states to proceed with execution 
of 363 prisoners now on death row in the 
six deep South states. In these six states 
half of the condemned prisoners are 
black or Hispanic.

The Fund intends to prove that the 
application of newly enacted capital 
punishment laws is arbitrary and racist.

In 1978, the Fund continued direct 
defense of more than 50 defendants 
charged with capital crimes. John 
Irving’s case challenges Mississippi’s 
new law: one of the factors considered in 
sentencing him to death was that he had 
once been sent home from school as 
discipline. Whether Texas state 
psychiatrists could lawfully examine

defendants before trial and then after 
conviction testify as to their admission in 
an effort to secure the death penalty is at 
issue in Ernest Benjamin Smith’s case.

The LDF assists lawyers now 
defending hundreds of the nearly 500 
men and three women now under death 
sentences in 25 states. The LDF seeks 
out volunteer lawyers for condemned 
prisoners who are without counsel. It 
helps with strategy, exchange of 
information, and briefs.

Education
In graduate professional and 

undergraduate college education the LDF 
is making sure that past progress does 
not succumb to new attempts that will 
circumvent court-ordered desegregation.

The Fund has helped the U.S. 
Department of Health, Education and 
Welfare (HEW) define clear criteria, so 
that the long delayed desegregation of 
state-wide public university and college 
systems will go forward. These should 
eliminate wasteful curricular duplication 
while also strengthening predominantly 
black colleges.

To ensure effective progress, we 
monitor federal enforcement and state 
compliance.

The LDF is also working with 
admissions officers of medical schools. 
Since 1978, some professional school 
affirmative action programs have 
regressed, probably in reaction to Bakke. 
We are showing them how, in 
compliance with law, they can continue 
to admit minorities affirmatively.

In elementary and secondary public 
schools we press forward to:

•  maintain desegregation won earlier 
in the South;

•  see to it that all-white 
“segregation academies” do
not receive tax-deductibility while 
continuing to evade the law;

•  move against segregated Northern 
schools;

•  defend black educators from 
discriminatory firings and 
demotions;

•  eliminate “ tracking” and “ ability 
group” practices designed to 
segregate black children;

6



® prevent arbitrary and illegal 
suspension and expulsion of black 
pupils;

•  eliminate racially slanted teaching 
materials; and

•  stamp out race and sex 
discrimination in state-supported 
vocational schools.

Housing and Land Use
Lacking real enforcement, the federal 

Fair Housing Law fails to protect 
families refused sale or rental of places 
to live solely because of race. LDF now 
strongly supports efforts of the U.S. 
Department of Housing and Urban 
Development (HUD) to secure legislative 
authority to get cease and desist power 
against housing discrimination.

Since late 1977, the HUD has rated 
the laws and complaint procedures of 24 
states and the District of Columbia as 
“ substantially equivalent” to remedies 
prescribed by law. Having earlier found 
the diligence of these states and D.C. 
less deserving, the Fund consults closely 
with the U.S. Commission on Civil 
Rights staff, monitoring the actual 
performance under such laws and 
helping aggrieved home-seekers.

In the absence of effective federal 
protection, LDF continues to bring cases 
that serve as class actions affecting many 
thousands of families. We negotiated a 
consent decree with one real estate 
company to pay damages for past 
discrimination and to report periodically 
on how its affirmative action program 
works. The LDF has sued five other 
firms and the 300-member Delaware 
County Board of Realtors in 
Pennsylvania. The Board covers 15 
almost exclusively white towns and one 
nearly all-black area outside 
metropolitan Philadelphia.

LDF has sued four major Brooklyn 
real estate firms and the largest New 
Haven, Connecticut realtors for racial 
steering. Evidence shows they 
discouraged white families from buying 
in areas where blacks live, and steer 
prospective black residents away from 
white suburbs.

We hope to build on the victory won 
in the Sixth Circuit Court of Appeals in 
the Harper case (a black couple refused

a Nashville apartment); our purpose is to 
establish need for objective standards, so 
that prospective tenants will receive 
equal treatment.

As in the past, we will continue the 
efforts begun in California where LDF 
established a two-pronged approach to 
housing cases: an exceptionally large 
volume of cases was brought and 
publicized as a way to signal that 
vigorous enforcement against 
discriminators was underway; as a 
further deterrent, we succeeded in 
raising substantially the amount of 
damages awarded in housing 
discrimination cases.

HUD has said it welcomes, but has 
not yet adopted, LDF recommendations 
to stop redlining—the systematic denial 
of mortgage credit in predominantly 
black neighborhoods. We filed a friend- 
of-the-court brief against federal savings 
and loan banks’ attempt to escape 
California’s law against redlining.

Although federal District and Supreme 
Court decisions have frustrated minority 
interests in urban renewal, highway, and 
regional development schemes, the Fund 
still brings new suits. These scrutinize 
relocation programs, exclusionary 
planning, and allocation of federal 
money in the light of damage they inflict 
on black neighborhoods.

Prisoner Rights
Having established the principle that 

prisoners have constitutional rights— and 
having long served as one of the 
principal private resources in the U.S. 
engaged in comprehensive legal action to 
remedy local jail conditions where 
degredation and brutality are normal— 
the Fund’s task now is to make certain 
that court-ordered changes happen.

The June 1978 Supreme Court 
decision in Finney v. Hutto followed a 
decade of litigation in which some years 
ago the entire Arkansas prison system 
was held unconstitutional. The 1978 
decision found that indefinite solitary 
confinement violates the Constitution’s 
prohibition against cruel and unusual 
punishment.

In 1979 we are challenging the 
overcrowded racist Texas prison system. 
We pursue further relief of caged men,

women, and children in the wake of 
decisions won to date in Alabama, 
Florida, Georgia, Illinois, Indiana, 
Massachusetts, New York, Ohio, 
Pennsylvania, Rhode Island and 
Tennessee, affecting state, county, and 
city prisons.

Medical Care
As many as 17 private nonprofit 

community hospitals may be spending 
federal Hill-Burton money to build 
suburban “branches” , while the services 
they once provided to minority and poor 
inner city people become vestigial 
remnants.

Acting as counsel for Mayor Richard 
Hatcher of Gary, Indiana, and other 
black citizens the Fund sued Methodist 
Hospital and HEW. The hospital had 
moved the preponderance of its facilities 
15 miles to Merrillville, where 90 
percent of patients are white. The federal 
District Court has ordered that the 
tentative settlement terms LDF 
negotiated not yet be made public.

In 1979 the LDF will represent the 
city of San Antonio, Texas, and a 
constellation of citizen organizations. 
Issues similar to those in Gary head for 
trial. The focus is on transfer of inpatient 
maternity services to an inaccessible 
white suburb. For the first time the U.S. 
Department of Justice will enter such a 
case, contesting relocation of a runaway 
hospital and consequent reduced delivery 
of medical treatment to sick, poor and 
old people.

The Vote
After protracted litigation, citizen 

action, and national legislation, minority 
citizens can register and vote. In some 
localities reapportionment discounts the 
black constituency’s votes despite the 
Constitutional requirement that each 
citizen’s vote be given equal weight. 
Multi-member districts in combination 
with at-large elections dilute minority 
voting strength.

Supreme Court decisions up to now 
may tolerate a double standard. City 
residents seeking redress against 
overrepresented less populated rural 
districts can prove violation of the one-

7



person, one-vote principle with simple 
statistical evidence. The minority 
plaintiff must prove racial motivation to 
strike down discriminatory 
malapportionment.

The LDF has a dozen active cases in 
six states that seek to correct minimized 
minority participation in government.

Legal Training
LDF’s Earl Warren Legal Training 

Program is providing scholarships for 
190 students at more than 50 law schools 
in the 1979-1980 academic year. Since 
our legal scholarship program began, it 
has helped send 1,121 black lawyers 
through law school.

The Fund is well prepared, but needs 
funds to resume its Civil Rights Legal 
Training Institutes for practicing lawyers. 
These can again be an invigorating 
means to hone and coordinate legal 
actions being brought to court across the 
United States.

Robert Coles, M.D. is the psychiatrist who 
wrote “Children of Crisis.” He is Professor, 
Psychiatry and Medical Humanities, Harvard 
University.

For twenty years I’ve been working with 
American children in all parts of this 
country, from various classes, races, 
backgrounds, and I believe more strongly 
than ever in the value, the importance of 
school integration.

When I worked with the black and white 
children of the South in the early 1960s,.1 
saw the extremely difficult (and different, 
depending upon race) hurdles they had to 
face, in order to sit near each other in a 
classroom. I often wondered whether 
desegregation was worth the effort— all 
that fear and anxiety and mutual distrust 
and suspicion. Yet, over time those 
children became not only pioneers in the 
legal, constitutional sense, but young 
people with a new sensibility— able to see 
others, different by skin color, as 
classmates, and eventually, particular 
persons. I’ve tried to document that 
process in the various articles and books 
I’ve written, but in essence what I've kept 
seeing has been children becoming not only 
broader in their perceptions of others, but 
larger human beings themselves.

I don’t know how better to describe 
what school integration means than to 
quote a white student in a Mississippi 
school in 1970: “I've known black people 
all my life: ‘the colored’, my folks would 
say, or something else! Now there’s Louis 
and there’s Freddie, and there’s Sally and 
there’s Mary Ann, and each is different; 
and I’ll bet they have our names in their 
heads, not just a picture of a white, and 
another white, and another white.” Is 
there any more that needs saying?

We seek integration so that “a more 
perfect union” may be accomplished, to 
use an old American constitutional 
statement. We seek, through integration, 
not something in the abstract, not the 
construction of a social or political theory, 
but an ongoing experience, embedded in 
the concreteness of everyday life, for our 
American children.

Robert Coles



Bayard Rustin is President of the A. Philip 
Randolph Institute. He took part in the first 
Freedom Ride in 1947 testing enforcement of the 
Irene Morgan case outlawing discrimination in 
interstate travel. Arrested in North Carolina, he 
served 30 days on a chain gang. He is a member 
of LDF’s Board.

New Barriers To Minority 
Employment
Twenty-five years ago when the Supreme 
Court handed down its historic decision in 
Brown v. Board of Education, the barriers 
to minority employment and full 
participation in American society were 
shockingly clear. Throughout the South 
and even in many Border states, blacks 
and whites lived under a perverse legal 
system shaped by the “separate but equal” 
doctrine enunciated by the Supreme Court 
in its 1896 decision in the Plessy v.
Ferguson case. Everywhere one went, the 
tangible results of the 1896 decision could 
be seen— signs designating separate 
drinking fountains and rest rooms for 
“coloreds” and “whites” abounded; 
rigidly enforced segregation existed in 
restaurants and public transportation; 
and, of course, blacks and whites had 
separate— and outrageously unequal— 
schools for their children. The legal 
barriers, then, were easy targets and the 
program of the civil rights movement was 
clear-cut, and highly specific.

With the proclamation of the Brown 
decision and the dramatic civil rights 
revolution of the 1960s, the situation 
changed. For the most part, the legal 
barriers which blocked the forward 
movement of black people disappeared 
and blatant racial segregation soon lost all 
social legitimacy. Consequently, the civil

rights movement was forced to broaden its 
focus, and move beyond the purely 
legalistic aspects of racism.

Today, we once again face new and 
rather difficult challenges in the area 
of minority employment. Specifically, we 
must begin to deal with issues like the 
impact of international trade, the problems 
arising from labor-saving technological 
innovation, and the worsening 
unemployment situation among minority 
youth.

In short, our vision of minority 
employment problems must be all- 
encompassing. It must look toward 
long-term social and economic trends, and 
it must combine imagination with 
pragmatism.

Bayard Rustin



G. W. McLaurin kept apart from University of 
Oklahoma Graduate School of Education classmates 
until the 1950 Supreme Court ordered relief.

10



Before Brown

The five 1954 School Desegregation 
cases collectively known as Brown v. 
Board of Education were the climax in a 
long series of tests that ate away the legal 
authority of enforced racial segregation 
in the United States. The Legal Defense 
Fund brief in Brown cited decisions from 
the Supreme Court in several cases in 
which the National Association for the 
Advancement of Colored People 
(NAACP) had taken part before the 
NAACP Legal Defense Fund was 
founded. Among these were:

Guinn v. U.S. (1915), outlawing the 
1910 Oklahoma constitution’s “grand­
father clause” preventing Negroes from 
voting on the pretext that their ancestors 
had not voted before 1866;

Buchanan v. Warley (1917), declaring 
the Louisville residential zoning by 
race was “ in direct violation of the 
fundamental law enacted in the 
Fourteenth Amendment of the 
Constitution” ;

The White Primary cases, declaring 
that blacks could not be excluded from 
party primaries. In Nixon v. Herndon 
(1927) Justice Oliver Wendell Holmes 
said, “Color cannot be made the basis of 
a statutory classification affecting the 
right set up in this case.” In Nixon v. 
Condon Justice Benjamin Cardozo 
wrote, “The Fourteenth Amendment, 
adopted as it was with special solicitude 
for the equal protection of members of 
the Negro race, lays a duty upon the 
court to level by its judgement these 
barriers of color.”

Volunteer attorneys argued NAACP 
cases. Among them were Moorfield 
Storey, former American Bar Association 
president who had been secretary to 
Charles Sumner, Arthur Spingarn, long 
NAACP president and Clarence Darrow. 
Starting in 1929 American Fund for 
Public Service grants enabled Nathan 
Margold, former Solicitor of the 
Department of the Interior, to study how 
legal action might reduce Negroes’ legal, 
political, and economic disabilities.

Margold urged legal suits against 
segregation as a tactic to force states and 
boards of education “to provide ‘equal if 
separate’ accommodations in white and 
colored schools.” The NAACP retained 
Charles H. Houston, then vice dean 
of Howard Law School, to direct a 
coordinated legal program; he worked 
part-time through June, 1935, full time 
until 1938, as Special Counsel to 1940, 
and as national legal committee 
chairman up to his death in 1950.

The lawyers who conducted the 
suits— Dr. Houston, William H. Hastie, 
Thurgood Marshall, and Howard Law 
School colleagues—did not follow 
Margold’s idea of first attacking 
conditions in elementary and high 
schools. They chose all-white tax 
supported professional schools in the 
South. They were the only such training 
centers available in their states.

The Graduate School Cases began 
in 1935 when Thurgood Marshall 
persuaded the Maryland Court of 
Appeals to order Donald Murray

admitted to the University of Maryland 
Law School.

In 1938 the U.S. Supreme Court 
decided in Missouri ex rel Gaines v. 
Canada that the University of Missouri 
had to admit Lloyd Gaines to its law 
school. Missouri had offered to pay the 
difference between its tuition and the 
rate at an out-of-state school. Chief 
Justice Charles Evans Hughes dismissed 
the excuse that there was not enough 
demand to establish a law school for 
Negroes. He said “ the State was bound 
to furnish ... within its borders facilities 
for legal education substantially equal to 
those which the State there afforded for 
persons of the white 
race. . . ”

Gaines was a breakthrough. Soon 
after the decision the NAACP felt there 
would be greatly increased demand for 
lawsuits. Costs would rise. It decided to 
establish the new NAACP Legal Defense 
and Educational Fund as a separate, 
independent organization.

The NAACP Legal Defense Fund 
incorporated in New York State on 
March 20, 1940. On its first Board of 
Directors were the seven incorporators: 
William H. Hastie; Governor Herbert H. 
Lehman of New York; President William 
Allan Neilson of Smith College; Miss 
Mary White Ovington, a founder of the 
NAACP in 1909; Judge Hubert T. 
Delaney; Judge Charles H. Toney; and 
Arthur B. Spingarn. Esq., who was 
elected as LDF’s first President on 
March 27, 1940.

11



When the Board was expanded in 
1941, it included, among others, Senator 
Warren Barbour of Washington; 
President John W. Davis of West 
Virginia State College (who still works 
with LDF 39 years later); Lewis S, 
Gannett of the N.Y. Herald-Tribune; 
John Hammond, the musician and 
businessman; and Dean Charles H. 
Thompson of Howard University 
Graduate School.

Their purposes were to provide free 
legal aid to Negroes suffering injustice; 
to seek and promote educational 
opportunities denied Negroes because of 
race; to conduct research and publish 
information on “educational facilities 
and inequalities furnished for Negroes 
out of public funds and on the status 
of the Negro in American life.”

Three crucial Graduate School 
Cases, 1946-1950, on the Way to 
End Segregation

Sipuel v. University of Oklahoma was 
the suit Ada Lois Sipuel brought in 1946 
after being refused entrance to law 
school. Her defeat in the trial court was 
sustained by the State Supreme Court in 
April, 1947. The trial record contained 
testimony supporting her case from 
leading law professors from Chicago, 
Columbia, Harvard, and Wisconsin. The 
LDF appealed to the U.S. Supreme 
Court. Its brief argued:

“ From the ranks of the educated 
professionals come the leaders of a 
minority people. In the course of their 
daily lives they transmit their skills 
and knowledge to the people they
serve__The average Negro in the
South looks up to the Negro 
professional with a respect that 
sometimes verges on awe. It is 
frequently the Negro professional who 
is able to articulate the hopes 
and aspirations of his people . . . ”
In 1948 the Supreme Court issued its 

unanimous, unsigned per curiam 
decision. Oklahoma had to provide Miss 
Sipuel with a legal education “as soon 
as it does for applicants of any other 
group.” (emphasis ours)

The LDF case of Heman M. Sweatt, a 
Texas mail carrier, against the University 
of Texas was another giant step. After

Sweatt had repeatedly applied to the 
University law school by registered mail, 
the University hurriedly assembled a 
“Texas Law School for Negroes” in four 
basement rooms. At trial in federal 
District Court, Fund lawyers exposed the 
pretense of equality under claimed 
“ separate but equal” expedients. The 
segregated improvisation had nothing 
like the great University law school’s 
library, Law Review, moot courts, or 
faculty reputation.

Significantly, Chief Justice Fred R. 
Vinson’s 1950 decision emphasized that 
the absence of white law students with 
whom the future lawyer would practice 
was a serious handicap. Substantial 
equality, he said, could be achieved only 
by admission to the University of Texas 
Law School.

On the same day the Court decided 
the LDF case of G. W. McLaurin. After 
the University of Oklahoma Graduate 
School of Education admitted him, it 
made McLaurin sit in an anteroom 
adjoining the main classroom. It 
assigned him a desk on a stair landing in 
the library, and required that he eat at a 
table apart from fellow students. Chief 
Justice Vinson spoke for the unanimous 
Court, stating that McLaurin “must 
receive the same treatment at the hands 
of the state as students of other races.”

In both Sweatt and McLaurin the 
Supreme Court refused to reconsider the 
1896 Plessy formulation of “ separate but 
equal.” The unanimous Court stated that 
“ substantial equality” was not provided 
when a student was kept separated from 
other graduate students. The decision in 
McLaurin recognized that his segrega­
tion meant discrimination. That plainly 
set the stage for Brown.

From the time the Fund had become a 
separate entity in 1940 Thurgood 
Marshall and his colleagues accelerated 
their work for minority rights. In 
education, the LDF sought and got 
redress for discriminatory low pay to 
black teachers. It acted against injustices 
that persisted in voting, housing, 
transportation and public accommoda­
tions, employment, military and criminal 
justice.

LDF cases resulted in a repertory of 
precedents that made Supreme Court 
avoidance of decision on the separate-

but-equal doctrine harder. A broad legal 
framework evolved. Well before the 
highest Delaware state court and the 
federal District court in Kansas squarely 
faced the segregation issue, there were 
landmark decisions outlawing restrictive 
covenants, juries that excluded blacks, 
and interstate Jim Crow buses.

Black Teachers’ Pay
Between 1935 and mid-1938 when 

Thurgood Marshall succeeded Charles 
Houston as chief NAACP attorney in 
New York, Marshall won equal-pay 
agreements from nine of Maryland’s 23 
county school boards. In 1939 he 
brought suit on behalf of black principal 
Walter Mills against the Anne Arundel 
county board of education. U.S. District 
Court Judge W. Calvin Chestnut found 
evidence of discrimination 
overwhelming. None of 91 Negro 
teachers received as much pay as any of 
243 white teachers with similar 
qualifications and experience.

Chestnut’s judgment stated that such 
discrimination “ violated the supreme law 
of the land.” Anne Arundel County did 
not appeal. At the Governor's request the 
state legislature made racial pay 
differentials illegal across Maryland.

Alston v. School Board of City of 
Norfolk (Fourth Circuit Court of 
Appeals, June 18, 1940) was a key LDF 
victory. Melvin O. Alston, a high school 
teacher with five years’ experience, was 
being paid $921 per year while white 
male Norfolk high school teachers 
received $1,200. Relief was ordered by 
the appellate court and the U.S.
Supreme Court refused to review.

The Right to Vote
To get around the 1915 Supreme Court 

decision in Guinn, Oklahoma passed a 
law that anyone who had been eligible to 
register during a two-week period in the 
spring of 1916 but had failed to do so 
was forever ineligible to register to vote. 
James M. Nabrit, Jr. challenged that law 
in Lane v. Wilson which went to the 
Supreme Court as an NAACP case in 
1939. The Supreme Court stated, in a 
Justice Frankfurter opinion, later quoted 
in numerous court decisions, that the

12



1949
SEGREGATION AUTHORIZED OR REQUIRED B y  STATE LAW

What Brown ended: state laws requiring and permitting segregation. SOURCE: Dr. Pauli Murray



Fifteenth Amendment forbids 
“sophisticated as well as simple-minded 
modes of discrimination.” It nullified 
the Oklahoma law.

The Court had originally upheld the 
Texas white primary in Grovey v. 
Townsend in 1935. The LDF, on new 
grounds, challenged that practice, and in 
Smith v. Allwright the Supreme Court 
held that such all-white primaries 
violated the Fifteenth Amendment.

South Carolina attempted to evade the 
Allwright ruling with repeal of every one 
of 150 laws on its books governing 
primary elections. When Thurgood 
Marshall tried Rice v. Elmore in 1947 
before the United State District Court in 
South Carolina, Judge J. Waties Waring 
forbade continued exclusion of Negores 
from South Carolina primaries:

“ It is time for South Carolina to 
rejoin the Union. It is time to fall in 
step with the other states and adopt 
the American way of conducting 
elections.... Racial distinctions cannot 
exist in the machinery that selects the 
officers and lawmakers of the United 
States.”

Housing: Restrictive Covenants 
Ruled Unenforceable in Court

. .it shall be a condition all the time 
and whether recited or referred to or 
not in subsequent conveyances and 
shall attach to the land as a condition 
precedent to the sale of the same, that 
hereafter no part of said property or 
any portion thereof shall be, for said 
term of Fifty-years, occupied by any 
person not of the Caucasian race . . . ” 
In at least 21 states, courts had upheld 

covenants that excluded Negroes, Jews, 
American Indians, Latin Americans, 
Puerto Ricans and other minorities from 
use of real estate. The Supreme Court 
repeatedly declined applications to 
decide on such covenants since its 1926 
decision Corrigan v. Buckley.

During World War II over 20 suits 
against covenants were filed in Los 
Angeles and as many in Chicago. The 
Federal Housing Administration had 
drawn up a model form and kept public 
housing projects separate-but-equal. The 
1947 report of the President’s Commis­
sion on Civil Rights indicated a more

favorable climate; one of its 40 
recommendations was that the Justice 
Department enter the legal fight against 
the covenants being presented by Legal 
Defense Fund cases from St. Louis and 
Detroit in Shelley v. Kraemer.

The LDF submitted two “Brandeis 
briefs” for Shelley.* Charles H. Houston 
and Spottswood Robinson, III cited over 
150 publications in their St. Louis case 
brief. Thurgood Marshall, Marian Perry 
and Loren Miller used data from 
economist Robert C. Weaver (whose 
book on “The Negro Ghetto” was soon 
to be published), public health and 
mental statistics for the Detroit brief.

Chief Justice Fred R. Vinson handed 
down the unanimous opinion of the six 
sitting Justices in Shelley v. Kraemer, 
restrictive covenants are unenforceable.

In Barrows v. Jackson (1953) the 
Supreme Court said that damages could 
not be awarded for ignoring a restrictive 
covenant, because that would result in 
their enforcement.

Interstate TYavel: Buses, then 
Trains

In Morgan v. Virginia (1946) the LDF 
asked the Supreme Court to rule against 
state imposed discrimination on 
interstate buses. It did.

This began when a sheriff arrested 
Irene Morgan for refusing to go to the 
back of a Greyhound bus when a white 
passenger got on. She had boarded at 
Hayes store in rural Tidewater, Virginia, 
bound for Baltimore. In stating the 
Virginia travel segregation law could not 
apply to interstate buses, the Court said 
differing state laws— 18 states forbade 
segregation, ten required it— were a 
burden to carriers. On a long trip, 
passengers could be made to change 
seats back and forth in a game of 
compulsory musical seats.

The ruling was worded for interstate 
buses, but soon applied to trains in a 
1949 Virginia state court test and the

*These amplified legal arguments with support of 
medical and social science knowledge, in the 
tradition begun by Louis D. Brandeis in his 1908 
brief asking the Supreme Court to uphold a state’s 
right to mandate a ten-hour day for women and 
children working in laundries.

Fourth Circuit Court of Appeals decision 
in 1951 that people going by train from 
North Carolina to Pennsylvania could 
not be forced to change where they sat.

Military Injustices: Courts 
Martial

In World War II, the Fund intervened 
in hundreds of cases when black service 
men and women were victims of gross 
injustice. After inept bungling by a new 
commanding officer resulted in long 
prison sentences for 68 black soldiers of 
the 1320th Engineer General Service 
Regiment; when 44 Negro Seabees, 
trying to protect themselves against 
white Marines invading their barracks 
with machine guns blazing were court 
martialed and sentenced to prison; when 
50 black sailors at Port Chicago, 
California were convicted of mutiny for 
alleged refusal to load ammunition and 
LDF investigation found they were tried 
solely because they were Negroes, LDF 
representatives brought reversals.

In the Korean War in 1950, after the 
24th Infantry Regiment recaptured 
Yechon in a 16-hour battle, 39 black 
enlisted men were convicted and 
sentenced for cowardice. Thurgood 
Marshall talked with the imprisoned 
men, with witnesses at their courts 
martial, and examined records in Korea. 
He found that, for the same offense, 
black soldiers were consistently accused 
of more serious charges. Trials were 
rushed at assembly-line speed. In one 
case, a black was sentenced to death; in 
another, 15 years to life imprisonment; 
fourteen received from ten to 50 years. 
The few whites who were sentenced 
received three and five years 
imprisonment. The LDF prevailed upon 
the Army to grant substantial reduction 
of the blacks’ sentences.

All-White Juries
The Fund has defended hundreds of 

victims of miscarried criminal justice. 
When the Dallas county court convicted 
Henry Allen Hill of rape, LDF attorneys 
Leon R. Ransom and W. Robert Ming 
showed that Dallas jury commissioners 
had consistently selected only white 
jurors. Chief Justice Harlan F. Stone’s

14



1942 opinion reversing Hill’s conviction 
declared:

“ Equal protection of the laws is 
something more than an abstract right. 
It is a command which the state must 
respect, the benefits of which every 
person may demand.”
In Patton v. Mississippi (1947) the 

Supreme Court struck down strategies 
that excluded blacks from jury service.

Coerced Confessions
In the same tradition are scores of 

cases that exposed extraction of incrim­
inating statements under severe duress.

In Chambers v. Florida (1940), 
requiring five appeals to the Florida 
Supreme Court, police forced 
confessions from four black defendants 
by repeated beatings. Justice Hugo L. 
Black wrote:

“ Due process of law ... commands 
that no such practice as that disclosed 
by this record shall send any accused 
to his death.”
Five weeks later the Supreme Court 

acted in White v. Texas to reverse the 
Polk County sentence of Bob White for 
rape. Police had pounded out the 
“confession” in four nights of beatings. 
After the alleged victim’s husband 
walked into the courtroom during 
White’s third trial, and shot him, the all- 
white jury voted acquittal of the husband 
after a trial that lasted two minutes.

Richard Kluger wrote “Simple Justice.” He 
founded Charterhouse Books, was editor-in-chief 
at Atheneum Publishers and executive editor of 
Simon & Schuster. His most recently published 
novel is “Star Witness.”

On December 9, 1952, in the waning days 
of the presidency of Harry Tfuman, fifty- 
six years after “equal but separate” 
segregation was approved in Plessy v. 
Ferguson, ninety years after the 
Emancipation Proclamation, 163 years 
after the ratification of the Constitution, 
and 333 years after the first African slave 
was known to have been brought to the 
shores of the New World, the Supreme 
Court convened to hear arguments on 
whether the white people of the United 
States might continue to treat the black 
people as their subjects.

Another year and half would pass before 
the Justices decided Brown v. Board of 
Education of Topeka, the climax of a legal 
crusade more than two decades in the 
making. The decisive battle, won by a 
small company of mostly black attorneys 
under the flag of the NAACP Legal 
Defense Fund, turned May 17, 1954, into a 
milestone in American history. To many, in 
retrospect, that day marked merely the 
beginning of the struggle; in the midst of 
slowed progress today, however, it is wrong 
to minimize how large a triumph Brown 
was and how far the American people have 
come since.

Having proclaimed the equality of all 
men in the preamble to the Declaration of 
Independence, the nation’s founders then 
elected, out of deference to the 
slaveholding South, to omit that definition 
of equalitarian democracy from the 
Constitution. It took a terrible civil war to 
correct that omission. But the Civil War

amendments, granting full-citizenship 
rights to the freed slaves, were soon 
drained of their original intention to 
lift the black people to meaningful 
membership in American society. The 
Court itself would do much to assist in that 
corrosive process, and Plessy was its most 
brutal blow. Congress was no greater help. 
In the grip of frankly racist Dixiecrats, it 
passed no civil rights laws after the Court 
eviscerated the one of 1875, and those that 
remained on the books were largely 
ignored by the states and unenforced by 
federal administrations that ranged in 
their attitudes from the high-tone bigotry 
of the Wilson regime to the largely 
ineffectual friendship of the TVuman 
presidency.

The Negro, technically liberated from 
bondage, was thus expected to shift on his 
own. But he was no more welcomed in the 
North and the West than he was embraced 
in the South, which derived a perverse 
solace for its own troubled fortunes by 
continuing to bruise the bodies and souls of 
black folk. Denied high skills or advanced 
learning, they remained a superfluous and 
lower order of American being— excess 
baggage in the nation's rush to prosperity 
and greatness. At most, he was there to 
keep the American dream highly polished 
and fetch cool libations for its white 
beneficiaries. The law, as interpreted by 
the Supreme Court, had pronounced it 
permissible— indeed, it was normal and 
expected— to degrade black America.

It was into that moral void that the 
Court under Chief Justice Earl Warren 
stepped twenty-five years ago this day.
Its opinion in Brown, for all its economy, 
represented nothing short of a 
reconstruction of American ideals. At a 
moment when the country had just begun 
to realize the magnitude of its world-wide 
ideological contest with Communist 
authoritarianism, the opinion of the Court 
said that the United States still stood for 
something more than material abundance, 
still moved to an inner spirit, however 
deeply it had been submerged by fear and 
envy and mindless hate. The Court 
restored to the American people a measure 
of the humanity that had eroded in their 
climb to global supremacy. The Court 
said, without using the words, that that 
ascent had been made over the backs of 
black America— and that when you 
stepped on a black man. he hurt. The time 
had come to stop.

But ending the torment was not enough. 
The nation had acquired a moral debt a 
dozen generations in the making. New

15



statutes and insistent judicial rulings were 
necessary— and met by resistance all along 
the way. Affirmative action was denounced 
as punitive to whites, who were reluctant 
to acknowledge that blacks needed, and 
deserved, a break if their climb to 
economic equality and all that flowed 
from it were not to consume many more 
generations. Some have favored benign 
neglect as a substitute for forthright social 
policy in dealing with the nation’s worst 
continuing human dilemma.

If black hopes and white fears may have 
both been unreasonably high in the wake 
of Brown, both races would do well to 
remember that a single generation is not a 
long time to complete a profound social 
revolution. Patience, depending upon 
circumstances, can be both a virtue and a 
vice. What matters most is that the healing 
process, once begun, never stop until the 
noble destiny that animated it has been 
won.

Richard Kluger

School Bell

From Herblock’s Here and Now (Simon & Shuster, 1955). Reprinted by permission.

16



The Brown Decision

On May 17, 1954 the United States made 
racially segregated public schools illegal. 
Chief Justice Earl Warren wrote the 
Supreme Court’s unanimous decision in 
Brown v. Board of Education.

Relying on the Equal Protection 
Clause of the Fourteenth Amendment 
to the Constitution, the historic Brown 
decision stated: “ in the field of public 
education the doctrine of ‘separate but 
equal’ has no place. Separate educational 
facilities are inherently unequal.”

The last six words transformed 
America’s standard of decency.
Inevitably it would soon affect access 
to every other kind of public amenity 
and service.

The Brown decision finally overthrew 
the Plessy v. Ferguson decision of 
the 1896 Supreme Court. That case, 
seeking to uphold the right of a ‘colored’ 
passenger from Louisiana on an 
interstate railway train, validated 
“ separate but equal” laws. Despite a 
succession of judgments that ordered 
relief to Negro applicants, the Supreme 
Court had for years avoided decision on 
whether the Plessy formula was still 
constitutionally valid.

Even though unanimous Supreme 
Court decisions in June, 1950, ordered 
previously segregated graduate schools at 
the Universities of Texas and Oklahoma 
to accord black students equal treatment, 
Chief Justice Fred M. Vinson had 
specifically refused to reject or affirm 
the separate-but-equal principle.

In his classic history of the Brown 
decision, “ Simple Justice,” Richard

Kluger tells how the Vinson court left 
segregated education below graduate 
professional schools still unadjudicated. 
And how further legal attacks directed at 
segregation risked permanently 
cementing it in thousands of schools:

“ .. .For the first time, the Court had 
asserted that separate-but-equal 
education was not a mere slogan. The 
equality had to be real or the separate 
was constitutionally intolerable. That 
was what Sweatt had accomplished. 
And if separate facilities were not 
provided, no individual or group 
might suffer restrictions or 
harassments within the biracial school. 
That was what McLaurin did...
“All the Justices had really done was 
to declare that the Court meant what it 
said in Plessy more than half a century 
earlier. Unless the Court could be 
forced now to confront the legality of 
segregation itself, NAACP lawyers 
might have to spend the next half- 
century arguing cases of unequal 
educational facilities one by one. 
Meanwhile, segregation would go on. 
If the issue were forced, though, and 
the Supreme Court chose not to uproot 
Plessy, the cost of defeat might be 
higher still. Segregation would be 
reinforced as the law of the land... ” 
Brown v. Board of Education cf 

Topeka led the list of five school 
desegregation appeals the Supreme 
Court had scheduled for consideration in 
its October 1952 term.

Two of the cases, Briggs v. Elliott 
from Clarendon County, South Carolina,

and Davis v. County School Board of 
Prince Edward County, Virginia, were 
from the rural South. Black people there 
were still at the margin of existence. 
Black plaintiffs suffered severe reprisals 
after filing suits.

In Topeka, Kansas, white and black 
students attended school together in all 
classes above the sixth grade. A court 
order had integrated junior high schools 
in 1941. Oliver Brown, who headed the 
list of plaintiffs, was a welder working 
for the Santa Fe Rail Road, belonged to 
a union; he sued because his seven-year- 
old daughter Linda had to travel farther 
to get to her black primary school than if 
she had been allowed to go to either of 
two white elementary schools closer to 
their home. As a skilled craftsman he 
was economically secure.

In contrast, Harry Briggs, who headed 
the list of black plaintiffs suing 
Clarendon County, S.C., was fired after 
14 years pumping gas at a filling station. 
Community pressure forced the firing of 
teachers, an Esso driver-salesman, two 
motel chambermaids, and a garage 
worker. A family was thrown off the 
farm it rented. A veteran of Iwo Jirna 
and Okinawa could not get a tractor 
financed and the feed store told local 
black farmers they had to pay up at once. 
Sharecroppers were told not to bring 
their dead to a funeral home run by a 
plaintiff. The school board fired the 
black principal from the school where he 
had taught for ten years, discharged his 
wife, two sisters, and a niece. The 
church he served as pastor was stoned.

17



The Legal Defense Fund attorneys in the five 
school segregation cases, Gebhart v. Belton, 
(Delaware); Davis v. County School Board of 
Prince Edward County, (Virginia); Briggs v.
Elliott, (South Carolina); Bolling v. Sharpe, 
(Washington); Brown v. Board c f Education, 
(Kansas). From left to right— Louis L. Redding 
(Gebhart)-, Robert L. Carter (Brown)-, Oliver M.
Hill (Davis)-, Thurgood Marshall, Director-Counsel, 
NAACP Legal Defense Fund; Spottswood W. 
Robinson, III (Davis); Jack Greenberg (Gebhart); 
James M. Nabrit, Jr. (Bolling); George E. C. Hayes 
(Bolling).

18



His house was burned to the ground.
Gebhardt v. Belton was an appeal by 

Delaware’s Attorney General after the 
highest state court upheld complaints 
filed by black plaintiffs in two cases.
Both had sought admission to suburban 
schools in the towns where the black 
families lived.

The Topeka and Delaware cases thrust 
before the Supreme Court clear findings 
that segregation penalized black 
students.

In Kansas Judge Walter A. Huxman 
had issued the federal District Court’s 
unanimous opinion in July, 1962. It 
found physical facilities and all other 
measurable factors comparable in 
Topeka’s 18 white and four black 
elementary schools. There was “ no 
willful, intentional or substantial 
discrimination,” but whether segregation 
itself constituted inequality was another 
matter:

“ ... If segregation within a school as 
in the McLaurin case is a denial of 
due process, it is difficult to see why 
segregation in separate schools would 
not result in the same denial. Or if the 
denial of the right to commingle with 
the majority group in higher 
institutions of learning as in the 
Sweatt case and gain the educational 
advantages resulting therefrom, is lack 
of due process, it is difficult to see 
why such denial would not result in 
the same lack of due process if 
practiced in the lower grades.” 

Attached to Huxman’s opinion were nine 
“Findings of Fact.” Finding VIII echoed 
the social scientists who had testified 
at the Topeka trial, especially the 
sociologist Louisa Holt:

“ Segregation of white and colored 
children in public schools has a 
detrimental effect upon the colored 
children. The impact is greater when it 
has the sanction of the law; for the 
policy of separating the races is 
usually interpreted as denoting the 
inferiority of the Negro group.
A sense of inferiority affects the 
motivation of a child to learn. 
Segregation with the sanction of law, 
therefore, has a tendency to retard the 
educational and mental development 
of Negro children and to deprive them 
of some of the benefits they would

receive in a racially integrated school 
system.”
In Delaware Chancellor Collins Seitz 

heard three days’ testimony in the State 
Court of Chancery in October, 1951. One 
witness was Frederic Wertham, the 
psychiatrist who had examined eight 
black and five white Delaware children. 
Dr. Wertham reported, “Most of the 
children we have examined interpret 
segregation in one way and only one 
way— and that is they interpret it as 
punishment.” He said school segregation 
is especially damaging because (1) it is 
absolutely clearcut; (2) the state does it; 
(3) it is discrimination of very long 
duration, and (4) “ it is bound up with 
the whole educational process. . . ” 

Chancellor Seitz then saw for himself 
the schools for white and colored 
children. He found the differences 
overwhelming. His April, 1952, decision 
read:

“ Defendants say that the evidence 
shows that the state may not be 
‘ready’ for non-segregated education 
and that a social problem cannot be 
solved through legal force. Assuming 
the validity of the contention without 
for a minute conceding the sweeping 
factual assumption, nevertheless, the 
contention does not answer the fact 
that the Negro’s mental health and 
therefore his educational opportunities 
are adversely affected by state- 
imposed segregation in education. The 
application of constitutional principles 
is often distasteful to some citizens, 
but that is one reason for 
constitutional guarantees. The 
principles override transitory 
passions”

Chancellor Seitz then placed the duty to 
decide on the highest Court:

“ ... the Supreme Court... has said 
that a separate but equal test can be 
applied, at least below the college 
level. This court does not believe such 
an implication is justified under the 
evidence. Nevertheless, I do not 
believe a lower court can reject a 
principle of United States 
Constitutional law which has been 
adopted by fair implication by the 
highest court of the land. I believe the 
‘separate but equal’ doctrine should be

rejected, but I also believe its rejection 
must come from that court.”
The Legal Defense Fund was the 

attorney-of-record in the Kansas, South 
Carolina, Virginia, and Delaware cases. 
Bolling v. Sharpe, in which eleven black 
students sued for admission to an all- 
white District of Columbia junior high 
school, had as its counsel James M. 
Nabrit, Jr.— Professor of law and later 
president of Howard University— who 
was “of counsel” as co-author of the 
briefs in the four LDF cases and for 
many years has been an LDF board 
member.

The Bolling argument was different. 
Even though the all-white John Philip 
Sousa Junior High School the plaintiffs 
sought to enter was brand-new and 
beautifully equipped, and the all-black 
Shaw Junior High they attended had a 
science laboratory consisting of one 
Bunsen burner and a bowl of goldfish, 
Nabrit made no claim that Shaw was 
unequal to the Sousa school. He based 
the request for relief wholly on the fact 
of segregation itself.

Professor Nabrit argued that the 
District of Columbia government had the 
obligation to prove there was a 
reasonable basis or public purpose in 
racially restricting school admissions. If 
acts of Congress were held to compel the 
District to maintain separate schools, 
these were bills of attainder, legislative 
acts “ which inflict punishment without a 
judicial trial.”

He also cited Judge Henry Edgerton’s 
1950 U.S. Court of Appeals dissent in 
Carr v. Corning, which Charles H. 
Houston had argued soon before his 
death. Edgerton said:

“ ... School segregation is humiliating 
to Negroes. Courts have sometimes 
denied that segregation implies 
inferiority. This amounts to saying, in 
the face of the obvious fact of racial 
prejudice, that the whites who impose 
segregation do not consider Negroes 
inferior. Not only words but acts mean 
what they are intended and understood 
to mean ... Segregation of a depressed 
minority means that it is not thought 
fit to associate with others. Both 
whites and Negroes know that 
enforced racial segregation in schools 
exists because people who impose it

19



consider colored children unfit to 
associate with white children. 
“Appellees [the D.C. school officials] 
say that Congress requires them to 
maintain segregation ... I think the 
question irrelevant, since legislation 
cannot affect appellants’ constitutional 
rights.
” ... Congress may have been right in 
thinking Negroes were not entitled to 
unsegregated schooling when the 
Fourteenth Amendment was adopted. 
But the question what schooling was 
good enough to meet their 
constitutional rights 160 or 180 years 
ago is different from the question what 
schooling meets their rights now.” 
James M. Nabrit, Jr. ended his oral 

argument before the Supreme Court with 
two sentences: “ We submit that in this 
case, in the heart of the nation’s capital, 
in the capital of democracy, there is no 
place for a segregated school system.
The country cannot afford it, and the 
Constitution does not permit it. and the 
statutes of Congress do not authorize it.” 

On June 8, 1953 the Supreme Court 
ordered the five segregation cases to be 
reargued on October 12th. It asked the 
parties to the suits five questions. These 
called for evidence showing whether or 
not the framers and ratifiers of the 
Fourteenth Amendment understood that 
it would abolish public school 
segregation, or authorize future 
Congresses or courts to do so. If the 
Court were to decide against segregated 
public schools, what orders should it 
issue? It also invited the Attorney 
General of the U.S. to submit a new 
brief.

The summer of 1953 saw more intense 
historical research into Congressional 
and state legislative debates in the period 
soon after the Civil War than had been 
pursued within memory.

John W. Davis, the eminent attorney 
who had argued more cases before the 
Supreme Court than any man living or 
dead and was counsel for South 
Carolina, assigned half a dozen crack 
law students working as summer trainees 
for his Wall Street law firm of Davis,
Polk & Wardwell to study the 
Congressional debates in the New York 
Public and Congressional Libraries. The 
leading Richmond law firm of Hunton,

Williams, Anderson, Gay & Moore, 
retained by Prince Edward County, 
studied the process whereby states had 
ratified the Fourteenth amendment.

The Legal Defense Fund divided 
research into sections on law, history, 
and sociology. Dr. John A. Davis, 
associate professor of government at City 
College of New York, directed non-legal 
studies. By the time the LDF filed its 
reargument brief the task force would 
number more than 200 scholars.*

Richard Kluger has written that more 
top-grade brainpower flowed into the 
effort early that summer "when, without 
being asked, William Coleman, the 
tough-minded black Philadelphia lawyer, 
’phoned [Thurgood] Marshall and asked 
to coordinate the research in the various 
states— a task that in most cases had to 
be done in the state capital, where 
archives and official accounts of 
legislative and other governmental 
proceedings were generally stored.

“From his experiences as an editor of 
the Harvard Law Review, a clerk to 
Felix Frankfurter, and an associate at 
the Paul, Weiss firm in New York, 
Coleman had a growing network of 
acquaintances in the profession who 
shared with him a notably high-caliber 
intellect— young lawyers and legal 
scholars who had been, in effect, the 
law-school All Americans of their 
day. ‘Sitting here in my office one

*Dr Alfred H. Kelly, professor of constitutional 
history at Wayne State University, Law Librarian 
Howard Jay Graham of the Los Angeles Bar 
Association, and President Horace M. Bond of 
Lincoln University prepared basic monographs on 
the adoption and ratification of the 14th 
amendment. Professors C. Vann Woodward of 
Johns Hopkins and John Hope Franklin of Howard 
University wrote monographs on the history of 
reconstruction in the South and the results of 
segregation. Dr. Kenneth B. Clark, associate 
professor of psychology at the City College of 
New York, headed the team that explored methods 
used to effect desegregation in varied situations. 
Others the December 15. 1953 brief credited were 
Professor Howard K. Beale. Dr. Charles S. 
Johnson. Dr. Buell Gallagher, Dr. Charles Wesley. 
Professor Robert K. Carr, Professor John Frank, 
Professor Paul Freund, Dean George M. Johnson. 
Professor Walter Gellhorn, Dr. Charles S. 
Thompson, Professor David Haber, Dr. Milton 
Konvitz, Professor Robert Cushman, Ulysses S. 
Tate, David Feller, Dr. Harvey C. Mansfield, 
Professor Rayford Logan, Professor Wallace 
Sayre, Joseph Robison, and Dr. Lillian Dabney.

afternoon,’ Coleman remembers, ‘I 
figured I knew someone in each of the 
37 states who could do a superior 
research job for us. Thurgood said 
fine.’ Indeed, Marshall was delighted 
to obtain such gifted assistance from 
across the nation.”
“ Simple Justice,” completed in 1975 

after seven years’ writing, recaptures the 
pace and spirit of LDF work sessions 
that raced against the clock. John Frank 
recalled, “ What impressed me at the 
meetings in 1953 was Thurgood’s good 
humor, and his calm, and the steadiness 
of his judgment.”

According to Kluger, Thurgood 
Marshall “ had another knack of 
incalculable value: he kept everybody 
feeling he or she was contributing and he 
reduced friction to a minimum among 
men who were in no way his intellectual 
inferiors:

“There was (Robert L. ] Carter, careful 
and conscientious and efficient, 
keeping a thousand loose ends from 
getting knotted. There was Coleman, 
a superb technician, bringing his 
clinical intellect to bear on the 
language of the brief. There was 
Spottswood Robinson, habitually 
cautionary, battling fatigue and the 
loud, bold policy-forging of Bob 
Ming. Recalls one regular of the 
[LDF] councils: ‘Ming might say, 
“They got to listen to u s ... ” and Spot 
would say, “No, they don’t got to 
listen to u s ’ For all the dogmatism 
of his style, Ming’s mind was supple 
and his position on the cases fluid, 
and Marshall knew how to get the 
most out of him— and when to stop 
taking. Others added vital ingredients. 
Nabrit supplied ‘a kind of drive and 
poetry’ to the sessions, remarks 
another insider.”
Jack Greenberg, not twenty-five years 

old when he walked into the LDF office 
in 1949, brought, according to “ Simple 
Justice,” several qualities including:

" . . .  a supple and uncluttered mind, 
great intellectual energy eagerly- 
exercised and methodically 
disciplined, the courage to take a 
position on a complex legal question 
and the stamina to stick to i t . ...
“And a pair of youngish Columbia 
professors, Jack Weinstein and Charles

20



L. Black, Jr., brought, besides their 
insights, first-rate writing skills to the 
home-stretch drive.”
Professor Black “ threw all his 

passionate brilliance” into the concerted 
effort that Fall. “ Simple Justice” relates 
that he did not balk “ at seeing his prose 
tinkered with or discarded. ‘Everything 
was torn to pieces,’ he recalls.” But 
Black’s gift for clear, vigorous, and 
moving prose was evidenced in this sort 
of passage that he contributed to the final 
brief:

“These infant appellants are asserting 
the most important secular claims that 
can be put forward by children, the 
claim to their full measure of the 
chance to learn and grow, and the 
inseparably connected but even more 
important claim to be treated as entire 
citizens of the society into which they 
have been born.. . ”

Chief Justice Warren wrote— in 
the 1954 Brown decision—that the 
exhaustive study of circumstances 
surrounding the adoption of the 
Fourteenth Amendment and the Court’s 
own investigations were at best 
inconclusive, because of the status of 
public education at that time. The 
movement toward free common schools 
supported by taxes had not yet taken 
hold in the South. Education of white 
children was largely private, that of 
Negroes almost nonexistent and 
forbidden by law in some states. Even in 
the North the curriculum was usually 
rudimentary; ungraded rural schools 
were common, the school year in many 
states but three months, and compulsory 
attendance virtually unknown. That there 
was so little in the history of the 
Amendment on its intended effect on 
public schools was not surprising.

“We cannot turn the clock back to 
1868 when the Amendment was adopted, 
or even to 1896 when Plessy v. Ferguson 
was written,” Chief Justice Warren said. 
“We must consider public education in 
the light of its full development and 
its present place in American life 
throughout the Nation. . . ”

Facing the question whether 
segregation of children in public schools 
solely on the basis of race deprives the 
minority children of equal educational

opportunities, Earl Warren answered, 
“We believe that it does.”

After citing Court decisions in the 
Sweatt and McLaurin cases brought by 
the Fund that opened up graduate 
education, the Warren judgment quoted 
the Finding of Fact by the special three- 
judge federal court in the Kansas case.
In a footnote he quoted from the similar 
finding from Delaware. He then cited 
ample support by authorities in 
psychological knowledge. Among the 
seven documenting sources mentioned 
were Kenneth B. Clark’s summary for 
the Midcentury White House Conference 
on Children and Youth, Isidor Chein’s 
digest of research on the effects of 
enforced segregation, and Gunnar 
Myrdal’s definitive 1944 compendium on 
the Negro, “An American Dilemma.” 

Because these were class actions with 
wide applicability in varied local 
conditions, the Court called again for 
reargument to assist in formulating 
appropriate decrees.

Decades of litigation would follow.
But the Supreme Court had left no 
doubt as to every American child’s 
constitutional right to public education 
unsegregated by race. A dozen years 
later in his 1966 Meiklejohn Lecture at 
Brown University, Jack Greenberg would 
say that “Brown v. Board of Education 
proved to be the Declaration of 
Independence of its day. Together with 
the other school desegregation cases, it 
profoundly affected national thinking.”

Charles L. Black, Jr. is Sterling Professor of 
Law at Yale University.

Did The Brown Case Do Any 
Good?

Some people seem to be saying, here and 
there, that the Brown case did no good.

Last year in Austin, Texas, my old 
home, I went to eat in a middle-sized cafe 
near the Capitol. A black family— parents 
and several children— came in, took a 
table, dealt with the children’s disputes 
over seating, and began studying the 
menu. I sat quietly, with that tingling 
feeling in the neck, the feeling by which—
I believe it is Housman who says— we 
recognize poetry that works. Then I went 
on over to the Capitol to meet Sam 
Hudson, the black legislator who had 
brought me down there to testify against 
the death penalty. Walking into the 
Capitol, I remembered that, working 
there as a messenger boy in 1929, I had 
happened to see, in a faded photograph ol 
a Legislature of the 1870’s, the face of a 
black man— and how the sight of that 
man’s face, in that picture, struck me in 
1929 as impossible, clear out of the order 
of nature.

There existed in the South, before the 
Brown case, a well-masoned wall, 
obviously built for the ages, scribbled over 
with obscene insult to millions of blacks, 
and shutting millions of whites away from 
the well of humankindness. That Southern 
system no longer exists in specie; big pieces 
lie about, ugly and inconvenient, but the 
system as a system, is gone. Southern 
segregation was not the only thing 
destroyed; the cardinal tenet of Sumnerian 
sociology, the tenet underlying that most 
sociological of opinions, Plessy v. Ferguson

21



— “law-ways cannot change folk-ways” — 
has been stunned into a silence rather 
resembling death.

I wish the people who bad-mouth the 
Brown case would give me an example of 
what they would call a successful case. Since 
nobody seems to be coming forward with 
this, I have to trust my own recollection and 
reading; the Brown case did more good than 
any other judicial decision ever uttered, 
anywhere.

Charles Black

Judge A. Leon Higginbotham is Judge of the 
United States Court of Appeals for the Third 
Circuit. He is author of “In the Matter of Color: 
Race & the American Legal Process, the 
Colonial Period.”

Almost 100 years ago, Frederick 
Douglass pinpointed the critical question 
to this nation on the issue of race and the 
American legal process. He asked:

“[can] American justice, American 
liberty, American civilization, American 
law, and American Christianity...be 
made to include and protect alike and 
forever all American citizens in the 
rights which have been guaranteed to 
them by the organic and fundamental 
law of the land.”
On May 17, 1954, the Supreme Court 

answered Frederick Douglass and gave 
vitality to the 13th, 14th and 15th 
amendments.

Since then, the Brown case has been 
the base for nearly every legal precedent 
advancing racial human rights. While 
Brown and its progeny have swept away 
countless obstacles in the path of racial 
justice, we must be ever mindful of the fact 
that the corridors of history are still lined 
with significant injustices. During the next 
25 years, our citizens, our courts and our 
legislature will by their daily deeds answer 
Frederick Douglass’ inquiry. Complete 
racial justice is not a certainty, but we have 
the obligation to try to make certain that 
these constitutional mandates will “include 
and protect alike and forever all American 
citizens.”

Leon Higginbotham

Clifton R. Wharton, Jr. is Chancellor of the 
State University of New York.

The Struggle for Equal 
Access to Education

Today, black Americans have a greater 
opportunity than ever before to take 
advantage of education— thanks in part 
to Brown v. Board of Education.

The rewards of education are both 
tangible and more than tangible. In the 
years since that historic Supreme Court 
decision was handed down, economic gains 
for blacks have been consistently greatest 
among those with the highest levels of 
education. Even more important than the 
immediate financial rewards, however, 
have been the larger efforts of young black 
minds— not just what they have done for 
themselves, but what they have done for 
their brothers, sisters, and the next 
generations.

Developing what I call black intellectual 
power has been the key to understanding, 
dealing with, and succeeding in an often 
hostile world. It continues to be the key 
to erasing injustice, the key to full 
participation in the life of our pluralistic 
society and culture.

Those black intellectuals who make the 
greatest contribution to our cause, 
therefore, will be the ones who recognize 
the relationship between values and acts, 
between research and the solutions to 
problems, between ideas and progress. As 
an economist, a student of history, and an 
educator, I believe the pen is mightier than 
the sword. To wield the pen in the fight 
against ignorance and oppression is the 
essence of education— to struggle on behalf 
of intelligence, creativity, and human 
potential is the best hope of our 
beleaguered planet.

Clifton Wharton, Jr.

22



Roy Wilkins was Executive Director of the 
National Association for the Advancement of 
Colored People.

Civil Rights Since Brown
The Supreme Court decision in Brown 
struck down segregation in public schools. 
When the nine Justices declared that 
separate is not equal, it was inevitable 
that the legal rights of every American 
for access to all kinds of public 
accommodations had to follow.

The Brown decision was a cleansing act. 
It spelled out in plain language at long 
last— 85 years after the Fourteenth 
Amendment— that no state can deny to 
any of its citizens the equal protection of 
the laws.

Black citizens lived with humiliation 
every day of their lives. American practices 
were rife with insult. More cruel even than 
the lynchings, beatings, penury, and abuse 
were the daily customs branding us 
inferior, customs imbedded in hundreds 
of laws, enforced with all the majesty 
and might of government.

Pervasive and profuse, these laws and 
ordinances reached into every phase of life, 
into every public place from railway and 
bus depots, trains and street cars, to 
cafeterias, hotels, theatres, libraries, 
stores, and rest rooms. Jim Crow 
was endemic. Since the undoing of 
Reconstruction, a heritage of legislation 
mocked the pretense of a nation with 
liberty and justice for all.

In one bold, noble stroke the Brown 
decision swept away state-imposed bigotry.

On May 17,1954 America’s best 
self spoke out for human dignity. It 
straightened our backs and strengthened 
our courage so that its truths could be 
tested against mindless mobs.

The deepest and most enduring impact 
made by the Brown decision was the new 
hope and confidence it. gave to millions 
of black people for the future of their 
children. The often repeated phrase of 
black parents, “a better chance than I 
had,” became a reality. It was a new 
beginning in the struggle to make 
opportunity equal for all citizens. What 
the Warren Court did on May 17, 1954 was 
to demonstrate that our faith in free 
institutions was justified, that equal justice 
is obtainable under the law.

Roy Wilkins



4,



Since Brown

The gains and setbacks in the 25 years 
since Brown show how the Legal 
Defense Fund’s several civil rights 
concerns intertwine, how results are 
cumulative, and that while opposition 
can be bitter, vicious and persistent, it 
does give way to legal action.

The Brown decision concerned public 
schools. Its enormous.impact gave strong 
impetus to desegregation of beaches, 
parks, libraries, buses, colleges, juries, 
lunch counters, and hospitals. The 
changes Brown made in law reached, in 
time, into and across American life.

Revulsion and defiance were at first 
strenuous in the South. By the mid- 
1970s there was more measurable 
progress in achieving integrated southern 
schools than against de facto segregation 
in the North. Victories in court led to 
enactment of sweeping new civil rights 
laws that in turn had to be tested and 
enforced through LDF legal actions.

Federal enforcement during the 
Nixon-Ford period lagged. But the broad 
growth of public interest law that Legal 
Defense Fund achievements inspired is 
irreversible. Even as the nation and the 
Supreme Court changed, decisions in 
LDF cases opened up new vistas for the 
poor, women, and minorities. As 
difficult suits challenge mandated 
affirmative action programs in education 
and employment, the Fund marshals 
evidence and arguments to protect hard- 
won past advances.

Throughout, the Fund has brought 
fresh initiatives as civil rights law 
evolves. It has substantially expanded

the number of experienced black civil 
rights attorneys. With them, the LDF 
fights for wider application of principles 
won in major cases, while facing 
formidable new counterattacks. Together, 
their work has been re-educating citizens 
on America’s unfinished civil rights 
business.

The Deep South Said “Never”
The 1954 Brown decision struck at the 

core of southern life and attitudes. 
Hundreds of white Citizens Councils 
waged economic reprisals against blacks 
who asked for desegregation. As die­
hard agitation rankled, a second decision 
in 1955 (Brown II) called for school 
desegregation “with all deliberate 
speed.”

Public Schools
Response to Brown II varied. Large 

school systems in Baltimore, the District 
of Columbia, Louisville, St. Louis, and 
Wilmington desegregated within a year. 
So did small ones in West Virginia and 
Missouri. Prodding from LDF suits 
caused some districts in Arkansas, 
Florida, Kentucky, North Carolina, 
Oklahoma, and Texas to follow.

Elsewhere the South was defiant. 
Encouraged by governors and the 1956 
Southern Manifesto that 110 Senators and 
Congressmen signed, legislatures passed 
at least 120 new state laws trying to hold 
fast to desegregation.

Virginia’s “Massive Resistance.”
The 1956 Virginia General Assembly 
required the Governor to close any 
desegregated schools. When federal 
courts ordered Norfolk, Charlottesville, 
and Front Royal to desegregate schools 
in 1958, Governor Almond shut them. 
Nearly 13,000 children had no education 
for five months.

When the Fourth Circuit Court of 
Appeals moved Prince Edward County’s 
scheduled compliance up to 1959 from 
1965, the county closed public schools. 
An “ academy” for white children 
formed. Although it was labeled private, 
the state made tuition grants to white 
parents whose children attended. Blacks 
had no schools until 1963, when private 
gifts supported a Free School 
Association for them.

In May 1964 the Supreme Court 
ordered Prince Edward County to 
appropriate public school funds. It told 
Virginia if the county did not obey, the 
state might have to provide funding.
U.S. Solicitor General Archibald Cox 
termed Virginia’s behavior “ this 
experiment in ignorance.” The County 
capitulated.

From 1956 until 1963, the state 
legislature tried to stop the LDF from 
working in Virginia. One law it passed 
made it a crime to advise any person that 
his legal rights were infringed or to refer 
him to an attorney or group of attorneys. 
The Supreme Court struck down several 
Virginia laws that attempted to prevent 
the practice of civil rights law. A state 
investigating committee demanded a list

25



of Virginia donors to the LDF, an 
attempt fought successfully in the state 
supreme court.

“ Massive Resistance” cost Virginia 
taxpayers over $1,000,000. Southern 
states spent many millions more on 
delays and harassment. With 
considerably less financial resources, 
I-DF— then the primary organization 
working to enforce the Brown decision— 
won out over their expedients.

Little Rock, New Orleans, 
Montgomery, Birmingham, Selma, and 
Memphis were sites of violence that 
shocked the world. With the Fund’s legal 
support, courageous black plaintiffs 
remained steadfast. Aided by activist 
workers of both races, they endured to 
win vindication for the generations 
coming after them.

The Battle of Little Rock. Little 
Rock, Arkansas, adopted an extremely 
gradual desegregation plan. Nine black 
pupils were to attend the 1,000-student 
Central High School. Governor Orval 
Faubus put 270 National Guardsmen 
outside the school to prevent their 
entrance. The Federal District Court 
enjoined the Governor from interfering 
and asked the United States to enter the 
LDF suit of Aaron v. Cooper. When 
school opened on September 23, 1957, 
the guardsman had gone. But a mob so 
terrorized police stationed outside 
Central High, that the black youngsters 
were escorted home.

President Eisenhower ordered 1,000 
paratroopers to Little Rock. He placed 
10,000 Arkansas National Guard 
members on federal service. The black 
students— six boys and three girls— 
entered Central High on September 25. 
The soldiers stayed there the rest of the 
school year.

The Little Rock school board asked 
the District court to hold up the 
integration plan for two and a half years 
because of “unfavorable community 
attitude.” On June 27, 1958 this request 
was granted.

The U.S. Supreme Court met in 
special session on August 27, 1958 to 
hear Thurgood Marshall argue Cooper 
v. Aaron. On September 12 the Court 
unanimously overruled the 
postponement, saying:

“Law and order are not here to be 
preserved by depriving the Negro 
children of their constitutional rights.” 

Governor Faubus closed all Little Rock 
high schools to avoid what he said was « 
“ impending violence and disorder.”
They stayed shut the 1958-59 school 
year. Federal courts declared state-passed 
school-closing laws unconstitutional. 
Little Rock reopened high schools in 
August, 1959. A mob reappeared, but 
city police maintained order.

New Orleans. Bush v. Orleans Parish 
School Board involved, in a federal 
judge’s words, “ a chronology of delay, 
evasion, obstruction, defiance and 
reprisal.” In 1951 a group of black 
parents had asked that schools be 
desegregated, but held up their 1952 suit 
until the Supreme Court decided Brown.

In 1956 a District Court ordered 
desegregation “with all deliberate 
speed.” The Louisiana legislature passed 
what the Court of Appeals later termed 
“ a massive body of laws” to preserve 
segregation. In mid-1959 the District 
Court ordered the school board to file a 
plan by March 1, 1960. After the board 
did not comply, the court prescribed its 
own year-at-a-time plan starting with the 
first grade by September. In August the 
District court struck down a state court 
injunction against desegregation and the 
governor’s assumption of control over 
city schools.

Five special state legislative sessions 
“ addressed out of office” four of five 
school board members, the board’s 
attorney and superintendent. Federal 
courts declared these acts unconstitu­
tional. Out of 134 black child applicants, 
four six-year-old Negro girls were 
admitted to two “white” schools in 
November 1960. Daily demonstrations, 
picketing, stone-throwing, and rioting, 
with Negroes stabbed and beaten, went 
on for months.

In September 1961 eight black children 
put of 66 who applied entered former 
“white” schools with relatively scant 
disturbance. In February 1962 the LDF 
filed yet another suit, this time for 101 
pupils, on the ground that pupil- 
placement procedures continued 
segregation for all but a few students.

After five more federal court orders, 
New Orleans settled down.

Widespread Intimidation to Keep 
Segregation

Little Rock and New Orleans are only 
two of many places across the South 
where the LDF faced obstruction, 
complex legal counter-actions, and often 
physical danger to its plaintiffs and 
lawyers. There were thousands of 
instances of physical harm and economic 
reprisal against black parents. 
Segregationists in Arkansas, Maryland, 
North Carolina, Tennessee, and Texas 
tried to have state courts intervene. LDF 
brought suits in federal courts that held 
the state rulings ineffectual.
•  100 jeering, angry whites in 1958 set 

up a roadblock to prevent Theresa 
Gordon, eight, and her brother James, 
ten, from entering the Clay, Kentucky 
Consolidated School. State police and 
National Guard escorted them in.

® In 1964 white men visited parents of 
nine Carthage, Mississippi children 
who applied to “white” schools. 
Debora Lewis’ father was fired. She 
was the only black child who entered, 
protected by a dozen police and deputy 
sheriffs. The Lewis family received 
American Friends Service Committee 
help. Debora stayed in school.

•  1965: The Neshoba, Mississippi family 
that registered nine children in a 
“ white” school had their cabin riddled 
with bullets. The Holmes County 
widow who enrolled her three children 
in a newly integrated school was 
discharged from her job in a laundry.
A mother who sent three children to 
the newly integrated school in Shelby 
County was shot and wounded in the 
leg. Despite eviction from their home 
of 14 years, Mrs. Ruby Barnes’ two 
daughters stayed in the formerly white 
Rolling Forks school. Although Walter 
Collier, Jr. was fired from his job 
loading cotton, and four crosses were 
burned outside his door, his 
daughters—aged eight and six—kept 
attending the Anguilla Consolidated 
School.

•  In Fall 1965 the Wetumpka, Alabama 
high school, newly integrated.

26



suspended Debra M. Bracy when she 
fought back after having rubber wads 
shot at her. Before her scheduled return 
after Christmas, the Bracy home was 
fire bombed. They saved only a 
mattress, a dresser, sewing machine, 
and a washer, but Debra and her sister 
went back to school.

•  As late as 1970, racists overturned and 
destroyed a bus carrying Negro 
students to the desegregated Lamar, 
South Carolina high school.
Persecution continued. But so did 

desegregation. Before 1960, suits against 
Arlington County and Norfolk school 
boards resulted in the first black pupils 
attending hitherto all-white Virginia 
public schools.

Speeding Up Compliance
The 1955 Brown II ruling that called 

for “ all deliberate speed” said that 
“ once a start has been made, the courts 
may find that additional time is 
necessary to carry out the ruling in an 
effective manner.” In the 1963 LDF case 
of Goss v. Nashville, Justice Clark spoke 
for a unanimous Supreme Court decision 
that a pupil transfer plan would have 
perpetuated segregation.

The 1964 and 1965 Civil Rights Acts 
spurred Fund suits that heightened 
Supreme Court impatience after a decade 
of laggard compliance. In the Bradley, 
Gilliam, and Rogers cases, the Court 
made faculty desegregation a necessary 
part of all school desegregation plans.
In Lee v. Macon County Board of 
Education it ordered all Alabama school 
districts desegregated and held that state 
tuition grants to private segregated 
schools were unlawful.

“Freedom of Choice”
The Fifth Circuit Court of Appeals 

consolidated six LDF suits contesting 
“freedom of choice” plans. Its detailed 
1966 Jefferson decree required 
integration of students, faculty, 
transportation, and all school-related 
activities. The decree enabled the LDF 
to re-open 175 school cases in the six 
Fifth Circuit states.

Because the Fourth Circuit had 
approved freedom-of-choice, the LDF

asked the Supreme Court to review in 
Green v. School Board of New Kent 
County. “ Freedom of choice” put the 
entire burden on black children to 
choose white schools in the face of 
community pressure and even physical 
violence. In Green one school was all 
black. The white school at the other end 
of New Kent County took a token 
number of Negro pupils to assure 
continued federal funds, while 85 
percent of black children attended the 
all-black school. In three years no white 
student used “ freedom” to choose it.

In the unanimous 1968 Supreme Court 
decision Justice Brennan ordered school 
boards to come forward with 
desegregation plans “that promise 
realistically to work now.” Freedom of 
Choice plans adopted by an estimated 
1,300 Southern school districts—90 
percent of all— “ must be held 
unacceptable unless they change schools 
to a unitary system in which racial 
discrimination would be eliminated root 
and branch.”

In 1968, too, Justice Black set aside a 
Fourth Circuit delay of desegregation in 
two North Carolina counties. He said 
the Green decision “ requires that the 
desegregation of schools be carried out 
at the earliest possible moment.”

“Deliberate speed” Ends
After the LDF appealed against 

HEW’s request for yet more time in 33 
Mississippi school districts, the Supreme 
Court 1969 decision in Alexander v. 
Holmes County Board of Education 
directed all the districts to end dual 
school systems at once.

Alexander in hand, the LDF 
challenged the dual school system in 
Mobile, Alabama. Here the Fifth Circuit 
Court of Appeals had selected, from a 
variety of plans submitted, an inadequate 
one based on the “ neighborhood 
school.” Jack Greenberg’s appeal to the 
Supreme Court showed that 64 percent 
of black elementary pupils were assigned 
to nine schools 90 percent or more 
black. Chief Justice Warren E. Burger 
ordered a new plan “ that promised 
realistically to work and promised 
realistically to work now.”
Neighborhood schools perpetuating

segregation were henceforth 
unconstitutional.

In 1971 Swann v. Charlotte— 
Mecklenburg Board of Education 
required desegregation plans to be 
effective. Speaking for a unanimous 
Court, Chief Justice Burger said that 
such devices as pairing, satellite zoning, 
and buses could be needed. “ Bus 
transportation has long been a part of our 
public educational systems,” he wrote, 
“ and it is unlikely that a truly effective 
remedy could be devised without 
continued reliance upon it.” Swann was 
argued by LDF’s current President Julius 
LeVonne Chambers, and by LDF 
Associate Counsel James M. Nabrit, III.

In spite of President Nixon’s attempt 
to nullify Swann by instructing the 
Justice Department to draft a 
constitutional amendment against 
busing, the South obeyed the Supreme 
Court. Kluger reports that by the 
1972-73 school year, 46.3 percent of 
black children in eleven southern states 
attended schools where a majority of 
students were white. “No other section 
of the nation,” he wrote, “had achieved 
anything near that degree of 
desegregation.”

The Swann suit went on until July 
1975, when the District Court found 
Charlotte-Mecklenburg in full 
compliance. The school system had 
become one of the most thoroughly 
integrated in the country. Based on this 
landmark, the LDF filed scores of suits 
pressing for adherence to Swann.

Federal Enforcement
The 1964 Civil Rights Act had 

directed federal agencies to cut off aid 
money to programs practicing race 
discrimination. Through 1968, 600 
federal proceedings had led to 
observance through desegregation in all 
but four districts. In early 1969, 
however, HEW Secretary Robert H. 
Finch and Attorney General John 
Mitchell announced their new 
“ voluntary compliance” policy. It 
virtually halted all fund cut-offs and 
enforcement against those Southern 
school districts still violating 
desegregation requirements.

27



HERBLOCK’S CARTOON

Copyright 1954 by Herblock in The Washington Post. Reprinted by permission.



In 1970 the LDF sued HEW in Adams 
v. Richardson. It charged calculated 
default in enforcing the law. In 1973 
District Judge John H. Pratt ordered 
HEW to begin enforcement steps leading 
to fund cut-offs against school systems 
in 17 states unless they complied. The 
Circuit Court of Appeals upheld.

The Adams case has returned to court 
many times, renamed Adams v. 
Weinberger, Adams v. Mathews, and now 
Adams v. Califano. Its principal thrust is 
now against remiss HEW enforcement of 
desegregation that courts have ordered in 
six state university systems.

Still new, vestigial evasions in 
elementary and secondary schooling 
have had to be fought in court. In the 
Wright and Cotton suits the Supreme 
Court said that two largely white towns 
could not lawfully secede from 
predominantly black county school 
systems. Its 1973 Norwood v. Harrison 
decision ruled that the Mississippi 
practice of giving free state textbooks to 
segregated private academies had to stop.

School Segregation in Northern 
Cities

In 1973 the Supreme Court issued its 
first decree against a school system 
outside the South. Four years earlier the 
LDF had filed Keyes v. School District 
No. 1 on behalf of eleven Denver black, 
Hispanic, and white parents. The Court 
held that when official action segregates 
a substantial number of schools, the 
entire district is presumed illegally 
segregated.

Keyes has had wide impact in the 
North. It reduced the task of furnishing 
proof of segregation, thus making 
Northern cases more manageable. The 
LDF suit against the Springfield, Illinois 
system brought a 1975 District Court 
order for adoption of a kindergarten to 
sixth grade plan devised by the Fund 
consultant on school integration.

1973 saw two LDF victories in 
Northcross v. Board of Education. The 
Sixth Circuit Court of Appeals order for 
an urban-suburban plan involving 13,000 
students went into effect in Memphis in 
January. Then the Supreme Court was 
responsible for a giant stride forward 
when it upheld the right of parents in a

successful school desegregation law suit 
to recover the cost of attorneys’ fees 
from the losing school board.

There were setbacks as well. The 
Fourth Circuit Court of Appeals reversed 
a District order for Richmond, Virginia 
urban and suburban schools to 
consolidate. And the 1974 Supreme 
Court 5-to-4 division in Milliken v. 
Bradley was a serious defeat.

Milliken held that the plan to integrate 
greater Detroit area city and suburban 
schools was unjustified. Chief Justice 
Burger stated that no official acts of 
suburban schools were responsible for 
Detroit’s discriminatory practices, and 
that courts cannot reach across district 
boundaries to disrupt local control of 
schools.

Justices Brennan, Douglas, Marshall, 
and White dissented. Justice Marshall 
wrote that the decision was

“more of a reflection of a perceived 
public mood that we have gone far 
enough in enforcing the Constitution’s 
guarantee of equal justice than it is the 
product of neutral principles of law ... 
It is a course, I predict, our people 
will ultimately regret.
In the years since, the LDF has fought 

efforts to resegregate school systems 
previously integrated when new schools 
are built or old ones close. A 1976 court 
order enjoined the Galveston, Texas 
school board from putting new schools 
into use until the court approved a 
student-assignment plan that would 
achieve meaningful desegregation. As 
the flow of teachers’ rights litigation 
attending school reorganizations 
continues to grow, cooperation with the 
National Education Association helps 
LDF to continue both financial and legal 
back-up of cooperating attorneys’ 
litigation for educators.

In 1977 the District Court in 
Washington. D.C. made an important 
decision in the constellation of issues 
embraced by Adams v. Califano, first 
filed in 1970. It rejected HEW’s petition 
to ignore court-ordered timetables for 
school desegregation. As a result,
HEW’s Office of Civil Rights is forced 
to clear its backlog of complaints, go 
forward with compliance reviews at all 
levels of public education in 17 states,

and develop a program for vocational 
schools.

Higher Education
Between Supreme Court decisions for 

Sweatt and McLaurin in 1950 and those 
in Brown in 1954 and 1955, LDF suits 
had won black students’ admission to the 
University of Maryland for nursing and 
graduate work in sociology, and to the 
Universities of Virginia and North 
Carolina for law. Within a year after 
Sweatt, 20 private colleges in seven 
states and D.C. voluntarily admitted 
blacks.

The Universities of Alabama, Florida, 
Georgia, South Carolina, and 
Mississippi remained obdurate.

Alabama defied 1956 federal court 
orders. It sent Autherine Lucy home 
after rioters cowed the administration. 
Seven years later, it desegregated.

After a series of court battles, rioting 
delayed but did not prevent Charlayne 
Hunter and Hamilton Holmes from 
attending the University of Georgia in 
1961.

The LDF had to go to court at least 30 
times in 1961 and 1962 before James 
Meredith finally entered the University 
of Mississippi. Governor Ross Barnett 
insisted on a charade so he could be 
photographed blocking two of Meredith’s 
attempts to register. A 15-hour campus 
riot killed a French newsman and a local 
juke-box repairman while white students 
and townspeople smashed property. Only 
after President Kennedy sent 5,000 
Army troops and federalized state 
guardsmen to ensure his safety was 
Meredith able to attend classes.

LDF’s Constance Baker Motley (now 
a federal judge in New York) was the 
lead attorney in this series of cases that 
integrated state universities in Georgia, 
Florida, Alabama, Mississippi, and 
South Carolina. As LDF’s Associate 
Counsel in the early 1960s, she 
overcame the defenses of one segregated 
university after another in a stunning 
series of legal victories.

Once the color bar broke in southern 
colleges, some adjusted quickly. The 
story is told of a state legislator deciding 
not to cast his vote for yet one more last- 
ditch segregation law. He thought about

29



the star black halfback at his university, 
the big game against its traditional rival 
coming up, and said, “ Every time 1 look 
at that young man, he gets whiter in my
eyes.”

There would still be protracted 
litigation for students exercising their 
rights to protest and demonstrate. Even 
now, we press suits to end dual state 
university system and to strengthen the 
role of traditional predominantly black 
institutions.

James Meredith desegregates the University of Ole Mississippi, 1962.

Lawn sit-in at Gadsden City Hall in Alabama as demonstrators protest against segregation, 1963.

30



Birmingham, July 1963

31



Mourning Reverend James Reeb, killed at Selma, 1965.

Birmingham, May 1963

Wiley A. Branton, Dean of Howard University 
Law School, was Director of the Voter Education 
Project. As a practicing lawyer in Arkansas in 
the 1950’s, he represented the Little Rock 9 who 
integrated Central High School. He is Vice 
President of LDF.

The Bakke case focused public attention 
on civil rights to a degree unmatched for a 
decade. Gradual gains toward overcoming 
centuries of discrimination against 
minorities will continue to encounter 
counter-currents in various forms of 
backlash. For decades we have begun, 
through hard-won, step-by-step legislation 
and litigation, to make tangible headway 
in the face of massive advantages long 
enjoyed by majority aspirants to good jobs 
and professional education.

Colleges have always given preferential 
treatment to certain categories of 
applicants:— outstanding athletes, children 
of alumni, residents of particular 
geographic regions, without bringing suits 
from candidates who are not admitted. 
Historically the white applicant for a job 
opening was always selected, the white 
worker always promoted to higher job 
status, in preference over blacks,
Hispanics, and women.

It is only when long biased practices 
against minorities are being revised to 
correct historic injustice that we hear 
arguments against reverse discrimination.

The Legal Defense Fund’s defense of 
Mayor Coleman Young’s affirmative action 
plan for the Detroit police department can 
influence race relations and civil peace in 
American cities for years to come. The 
LDF deserves full support for entering two 
cases that challenge the University of 
North Carolina’s racially affirmative 
admissions policy.

32



Attacks on such programs may come to 
court, with increasing sophisticated and 
subtle questions. The effect of their 
arguments on the broad public is to 
distract from the enormous extent and 
very long duration of race discrimination 
and its damage to this country. The gulf 
separating impoverished inner city and 
rural America from comfortable, insulated 
suburbia is wide, growing, and dangerous.

Wiley Branton

James C. Comer, M .D., Associate Dean of Yale 
Medical School and Director of the Yale Child 
Stuck Center, is author of “Beyond Black and 
White.”

The American Future: 25 Years 
After Brown v. Board of 
Education
A civilization can survive only when the 
children of each generation are prepared 
to live successfully in the next. Because of 
the complexity of this technologically- 
based age and rapid social change, the 
preparation of children for the next 
generation is even more important today 
than yesterday.

The Supreme Court decision in Brown v. 
Board of Education was a crucial step 
in the direction of adequate child 
preparation— for blacks and whites—for 
this and future generations. It was an 
effort to establish equal educational 
opportunities for ail children. But equally 
important, the decision destroyed the most 
powerful symbol of racial inferiority and 
the rationale for the denial of opportunity 
on the basis of race. This development 
established the unquestioned right of 
blacks to living wage jobs and/or economic 
development opportunities.

Adequate income permits the heads of 
households to provide their families with 
food, clothing, shelter, health care and 
other basic human needs. Parents and 
others who are able to provide for 
themselves are able to experience a sense of 
adequacy, value, worth and a sense of 
belonging in the larger society. Such 
parents are better able to rear their 
children; enabling greater family and 
neighborhood vitality, strength and 
stability as well as optimal academic and 
social performance in school.

Unfortunately the nation treated school 
desegregation as an isolated end rather 
than the beginning of a continuing and 
comprehensive effort to prepare all 
children for the needs of a modern and 
ever changing society. Economic 
development and neighborhood 
revitalization and development in black 
neighborhoods did not go hand-in-hand 
with school desegregation. Low-income 
housing has all but been banned in areas 
with a strong economic base, closing out a 
disproportionate number of blacks. Health 
care opportunities are often fragmented 
and distant from the location of many 
blacks. As a result of ail these conditions, 
high quality educational opportunities for 
blacks— in predominantly black or 
integrated schools— are difficult to 
achieve. In time, even with a genuine effort 
to meet affirmative action goals, the 
number of well-trained blacks available for 
professional and economic leadership 
positions can be diminished. This will 
weaken the entire black community.

It is a misperception to understand this 
problem as the problem of blacks. As 
mentioned, civilization cannot survive 
without the adequate preparation of 
children. While blacks are being most 
adversely affected by social policies that do 
not meet neighborhood, family and child 
development needs, all Americans are 
being affected. The resultant frustration, 
anger, disillusionment, dependency and 
crime— and the reaction to it— can 
adversely affect us all. As more and more 
young people are affected in each 
generation, our civilization can go into 
gradual decline and decay.

James Comer

33



James L. Curtis, M,D. is Assistant Dean of 
Cornell University Medical College.

Bakke and Health Care for 
Blacks
Medical practice and health care have been 
more tightly racially segregated than 
public schools in the United States, and 
just as Brown in 1954 opened up the lower 
grades, it is a matter of urgent need that 
our colleges, graduate, and professional 
schools be opened up equally to black 
Americans.

First and foremost when it comes to 
health, so long as the average black family 
has only 60 percent of the annual earnings 
of other families, black families can 
purchase fewer life necessities and will 
understandably be at greater risk of 
developing many physical and mental 
disorders. And yet, because of the 
structural inequity which is built into our 
racially segregated society, blacks have 
only one-fifth as many physicians as their 
population ratio would require, even if 
they had only average health care needs.

We must face the fact that we are far 
from having arrived at a color-blind way 
of life, as is seen from the finding that 
85 percent of a black physician’s patients 
are black, and over 90 percent of all 
patients seen by whites are white. It is not 
surprising, therefore, that for the average 
white Medicaid patient, $560 per year was 
spent for his medical care on a national 
average, while the black Medicaid 
recipient equally entitled to complete 
medical care had only $321 per year 
average expenditure. This comes about 
not only because black physicians are not 
available, but also because prior denial of 
equal postgraduate training has created

a situation where only one half as many 
black physicians have become specialists. 
And as well, there are the continuing 
racial barriers to access to many high- 
prestige hospitals and clinics, some of 
which still subtly exclude both black 
physicians and patients alike.

An important beginning just in 
the recent decade has been made in 
desegregating American medical 
education: three times as many blacks are 
entering medical school and graduating 
than ever before; they are now attending 
all the medical schools and not just 
Howard and Meharry; they are entering 
postgraduate training programs as often as 
their peers; and they are already making 
a real contribution to the health care of 
black people and to the health of the 
nation as a whole. This is why the Bakke 
case raises one of the most crucial medical 
and moral issues of our time. Until we are 
a color-blind country, we must insist on 
race-conscious and numerically based 
(goals and timetables) remedies to our 
racially-caused health problems. While the 
Court has allowed some race-consciousness 
in admissions programs, that decision falls 
short of a bold endorsement of these 
programs within the meaning of the 
Equal Protection Clause.

James Curtis

Dorothy Height is President of the National 
Council of Negro Women.

Seeing how much Americans can 
accomplish in the face of very great odds 
has greatly strengthened my education. I

speak as one who has known 
discrimination both because of race and 
sex. The 1954 Supreme Court decision in 
Brown v. Board of Education was a boon to 
the confidence of those who had to struggle 
against discrimination. We knew 
discrimination was wrong. To have our 
convictions vindicated by the highest court 
in the land gave new life to our aspirations 
and filled us with hope.

And I believe the greatest gains are yet 
to come. It required the incisive skills of 
UDF attorneys and scholars in a wide 
diversity of fields to translate legal 
principles into realities. Without their 
efforts the prospects of progress and 
redress for an entire generation of 
minority citizens and women would have 
been dismal indeed. But new problems 
emerge. Our responsibility now is to go 
forward to solve them and to achieve new 
gains.

The National Council of Negro Women 
has worked closely with the Fund’s 
Division of Legal Information and 
Community Services. Together we did a 
study of the school lunch programs 
mandated by Congress. We found that the 
gulf between Congressional intent and the 
actual performance in the schools was 
enormous and exceedingly harmful to 
children of low-income families. There 
have been steady improvements since then 
that would scarcely have been possible, 
had it not been for the rigorous fact­
finding and incisive reporting that the 
Fund provided. The LDF is a great, active 
national asset.

Dorothy Height

34



Since Brown continued...

Public Accommodations & 
Demonstrations

Brown decision wording was confined 
to public schools. Its ultimate effect was 
to outlaw all forms of state-imposed 
segregation. In 1955 the Supreme Court 
upheld the Fourth Circuit Court of 
Appeals ruling against Baltimore’s 
segregated bathing beaches and other 
public recreation facilities, and reversed 
the Fifth Circuit’s upholding of the 
Atlanta separate-but-equal golf course. It 
relied on Brown when striking down 
Montgomery, Alabama Jim Crow laws 
regarding buses in 1956.

Boynton v. Virginia, the first sit-in 
case, began in 1959 when a law student 
refused to leave the white section of the 
Richmond Trailways bus terminal 
lunchroom, and was convicted of 
trespass. In 1960 the Supreme Court 
ruled that the prohibition against racial 
bus segregation applied to food service 
on an interstate trip.

After four North Carolina Agricultural 
and Technical College freshmen refused 
to leave the Woolworth lunch counter in 
Greensboro several days running, other 
students joined them. Soon sit-ins 
became a national movement. The LDF 
represented thousands of defendants in 
prosecutions that posed novel property 
law and right-of-protest questions. 
Between 1961 and 1968 the Supreme 
Court decided more than 40 sit-in 
appeals. In virtually every case, the Fund 
won vindication for the demonstrators.

It became the legal arm of the civil 
rights movement. The first three sit-in 
victories came with the Supreme Court 
reversal in Garner, Briscoe, and Hoston 
of Louisiana convictions where trial 
records did not prove disturbance of the 
peace. In 1963 the Supreme Court 
decided a series of LDF sit-in appeals 
from Alabama, Louisiana, North and 
South Carolina, stating that the 
convictions violated the Fourteenth 
Amendment. Its 1964 ruling in Bell v. 
Maryland was on the ground of 
abatement, noting that the state had 
passed a law making it illegal to deny 
restaurant service because of race.

Two weeks later Congress passed the 
1964 Civil Rights Act. The first test of

the Act’s Title II came when the LDF 
filed Willis v. The Pickrick Restaurant. 
After a Federal Court held proprietor 
Lester Maddox in contempt for not 
serving Negro customers, and the 
Supreme Court refused a stay, he sold 
the restaurant. In the 1964 decision of 
Hamm v. City of Rock Hill the Supreme 
Court voided convictions of South 
Carolina and Arkansas sit-ins. Dissents 
by Justices Black, Harlan, Stewart, and 
White, however, showed growing 
reluctance to countenance nonviolent 
demonstrations. Hamm did rule, 
however, that sit-in demonstrators could 
not be prosecuted for seeking equal 
access to places of public accommo­
dation, wiping out thousands of 
prosecutions.

The LDF served as principal counsel 
to Dr. Martin Luther King, Jr. from the 
Montgomery bus boycott through his 
years as head of the Southern Christian 
Leadership Conference up to his assassin­
ation in Memphis in 1968. LDF lawyers 
represented Congress of Racial Equality 
(CORE) Freedom Riders, Student Non- 
Violent Coordinating Committee 
(SNCC), in its work to register black 
voters, and the Poor People’s Campaign.

Dr. King’s obedience to a 1962 Federal 
District Court injunction postponed a 
scheduled march in Albany, Georgia. 
Although the U.S. Court of Appeals 
vacated it four days later, the delay bred 
lack of confidence in the Albany black 
community and SNCC workers. The city 
remained as segregated as ever. In 
Birmingham black leaders were denied a 
parade permit to march on Good Friday 
and Easter Sunday, 1963. State circuit 
judge William A. Jenkins issued an 
injunction against Wyatt T. Walker, Dr. 
King, Ralph Abernathy, Fred 
Shuttlesworth, A. D. King, and 133 
other named persons to prevent the 
march without a permit.

They marched on Good Friday, were 
arrested, and jailed.

Dr. King issued “A Letter from 
Birmingham Jail” on April 16, 1963 in 
reply to eight white clergymen whose 
call for an end to the demonstrations had 
been in the press. From the 8,000 word 
text:

“One day the South will recognize its
real heroes. They will be the James

Merediths, courageously and with a 
majestic sense of purpose, facing 
jeering and hostile mobs and the 
agonizing loneliness that characterizes 
the life of the pioneer. They will be 
old, oppressed, battered Negro 
women, symbolized in a 72-year-old 
woman in Montgomery, Alabama, 
who rose up with a sense of dignity 
and with her people decided not to 
ride the segregated buses, and 
responded to one who inquired about 
her tiredness with ungrammatical 
profundity: ‘My feets is tired, but my 
soul is rested.’ They will be young 
high school and college students, 
young ministers of the gospel and a 
host of the elders, courageously and 
nonviolently sitting in at lunch 
counters and willingly going to jail for 
conscience sake. . . ”
Judge Jenkins found the defendants 

guilty of criminal contempt. He sen­
tenced each to a $50 fine and five days 
in jail. Protests continued. After over
3,000 had been arrested the County 
Sheriff had to use the Birmingham 
football stadium to hold them.

Business and civil rights leaders, with 
help from Burke Marshall of the U.S. 
Justice Department’s Civil Rights 
Division, made an agreement. It called 
for desegregating lunch counters, rest 
rooms, fitting rooms, and drinking 
fountains within 90 days; the hiring of 
Negroes in jobs previously denied them 
within 60 days; the release of jailed 
demonstrators, and a biracial committee 
to begin some communication between 
black and white people of the city. The 
LDF appealed the ministers’ sentences; 
Chief Judge Elbert Tuttle of the Fifth 
Circuit Court of Appeals restrained the 
Birmingham Board of Education from 
expelling over 1,000 students who had 
been arrested during the demonstrations.

In August 1963 Dr. King delivered his 
“ I Have a Dream” address in the March 
on Washington where more than 200,000 
people showed their support for new 
civil rights laws. In September a bomb 
thrown into the Birmingham Baptist 
Church basement killed four little Negro 
girls at Sunday school. In November, 
President Kennedy was assassinated in 
Dallas. In his first address to Congress 
as President, Lyndon Johnson said, “No

35



memorial oration or eulogy could more 
eloquently honor President Kennedy’s 
memory than the earliest possible 
passage of the civil rights bill for which 
he fought so long.” In spite of 
opposition, in February the House 
passed a bill in some respects stronger 
than the Justice Department had drafted. 
In June the Senate invoked cloture to end 
a filibuster and voted a version the 
House accepted. On July 2 President 
Johnson signed the 1964 Civil Rights 
Act.

However, the legal battles to vindicate 
the methods of Dr. King and his 
supporters took years to resolve. In 
November 1965 the Alabama Court of 
Appeals ruled in Shuttlesworth v. 
Birmingham that the parade-permit 
ordinance used to try to prevent marches 
was unconstitutional, concurring with 
LDF arguments: the ordinance had given 
city officials unfettered discretion to 
regulate peaceful expression of views, 
and had been applied in a racially 
discriminatory way.

More than 27 months after receiving 
briefs in Walker v. Birmingham, the 
Alabama supreme court issued its 
December 9, 1965 opinion. It upheld 
contempt convictions of Dr. King and 
seven other ministers and quashed them 
for three.

The Fund’s petition to the U.S. 
Supreme Court for review in Walker 
consisted of two parts. One described 
Birmingham segregation on the eve of 
the 1963 demonstrations, showing that 
the campaign to hold peaceful demon­
strations was just. It told in detail the 
efforts to comply with the permit 
requirements and the arbitrary admini­
stration of the permit ordinance. The 
section on reasons for granting the writ 
stressed that Walker raised important 
questions of constitutional law under the 
First and Fourteenth Amendments that 
Alabama courts had decided wrongly.

Norman Amaker, Leroy Clark, and 
James M. Nabrit III of the Fund staff 
drafted the petition, anticipating 
objections of “ adequate state ground” 
and the 1947 Mineworkers precedent 
commanding respect for court 
injunctions that they did not minimize. 
“ First Amendment freedoms may be 
destroyed if citizens may be punished for

disobeying ex parte injunctions which 
violate the First Amendment,” they 
wrote, “Plainly, the power to enforce 
unconstitutional law is the power to 
govern unconstitutionally.” As for 
“ adequate state ground,” they asserted 
that applicability on a First Amendment 
conflict was so vital it could not turn 
“ solely on the basis of local practice or 
procedure.”

On October 10, 1966 the Supreme 
Court granted review of Walker v. City of 
Birmingham.

The LDF brief, filed in January 1967, 
was written primarily by Professor 
Anthony G. Amsterdam of Stamford 
Law School and Fund Associate Counsel 
Jim Nabrit. The Justice Department filed 
a friend-of-the-court brief. Written by 
Thurgood Marshall (then Solicitor 
General), Assistant Solicitor General 
Louis Claiborne, and Civil Rights 
Division Chief John Doar, it argued:

“ the unconstitutionality of the 
underlying ordinance, the plain 
invalidity of the ex parte injunction 
based on the ordinance, the practical 
unavailability of prompt relief, and the 
ultimate effect of a prior restraint upon 
rights guaranteed by the First 
Amendment all should prevent 
applying the Mineworkers precedent 
to bar challenging the injunction’s 
constitutionality.”

The case was argued in the Supreme 
Court by Jack Greenberg, the LDF’s 
Director-Counsel, in March 1967.

Justice Potter Stewart read the 
Supreme Court’s 5-4 decision on June 
12, 1967. It upheld the contempt 
conviction against Reverend Walker, Dr. 
King, and their colleagues, holding that 
the petitioners “ could not bypass orderly 
judicial review of the injunction before 
disobeying it.”

There were three biting dissents. Chief 
Justice Earl Warren wrote:

“ I do not believe that giving this 
Court’s seal of approval to such a 
gross misuse of the judicial process is 
likely to lead to greater respect for the 
law than it is likely to lead to greater 
protection for First Amendment 
freedoms.”

Justice Douglas added:
“ Courts as well as citizens are not free

‘to ignore all the procedures of the 
law,’ to use the Court’s language. The 
‘constitutional freedom’ of which the 
Court speaks can be won only if 
judges honor the Constitution.”

Justice Brennan said that in April 1963 
“ Birmingham was a world symbol of 
implacable official hostility to gain civil 
rights, however peacefully sought.” Had 
the ministers tried to get the injunction 
dissolved before holding their 
demonstrations, as the Court’s majority 
insisted they should have done, it could 
have dealt a crippling blow to their 
chance of arousing community support 
for their attack on Birmingham 
segregation. “To preach ‘respect for the 
judicial process’ in such circumstances,” 
Brennan continued, “ is to deny the right 
to speak at all.”

But the final chapter was to be written 
in 1969 when the Supreme Court ruled 
in Shuttlesworth v. Birmingham that 
Birmingham’s parade permit law was 
unconstitutional. Thus after Dr. King’s 
death the lawfulness of the 1963 Easter 
march was established.

Selma and the 1965 
Voting Rights Act

In early 1965 Dr. King spearheaded a 
voter registration drive in Selma, 
Alabama. Before it was over, that effort 
involved people from all over the U.S., 
of all ages, from all economic levels.
One woman was to be murdered. 
Thousands were jailed. When it was 
over, Congress passed the Voting Rights 
Act. The crusade had started earlier.

In 1963 demonstrators began to protest 
the fact that fewer than one out of every 
100 black residents of Dallas County— 
where Selma is— were on the voting 
rolls. Hundreds were arrested and 
convicted. The LDF worked to appeal 
their convictions, and get them out of 
jail. Through the summer of 1964 a voter 
registration drive was organized, with 
further arrests, and LDF interventions. 
When Dr. King announced, at a mass 
meeting on January 2, 1965, plans for an 
all-out campaign to register blacks, LDF 
attorneys still were seeking Federal court 
dissolution of a 1964 Dallas County 
Court injunction forbidding civil rights 
activity.

36



Dallas County Sheriff James G. Clark 
and his deputies used sticks and cattle 
prods to brutalize demonstrators and 
corral black people, seeking to register, 
into the alley of the courthouse so they 
would enter through the back door. In 
the first three months of 1965 more than 
3400 people were arrested. On one 
February day the Sheriff and his deputies 
took 165 Negro youngsters on a forced 
march through the countryside. From 
three to nine LDF lawyers were in Selma 
and neighboring counties where scarcely 
any Negro voted, constantly trying to 
use court actions for protecting peaceful 
protests.

Voter registration was processed at a 
snail’s pace. To persuade the Federal 
government to act, the civil rights 
workers set out on a march from Selma 
to Montgomery, the capital of Georgia. 
On March 7, 1965, 500 marchers half 
way over the bridge to the state highway 
were driven back by the Sheriff’s 
deputies, lashed with bullwhips, tear 
gassed, and clubbed. 16 blacks were 
seriously injured, 40 others given 
hospital treatment. John Lewis of SNCC 
had his skull broken.

At Atlanta Dr. King said he would 
lead a Selma-to-Montgomery march 
within 48 hours. On March 9 Federal 
Judge Johnson, Jr. heard an LDF suit to 
enjoin Governor Wallace and other 
officials from interfering with the march; 
he enjoined further demonstrations until 
a hearing two days later. When Attorney 
General Nicholas Katzenbach appealed 
by telephone to Dr. King to hold off until 
after the court hearing, the latter 
answered, “Mr. Attorney General, you 
have not been a black man in America 
for three hundred years.”

The next day Dr. King led 1,500 
marchers, black and white from all over 
the nation, across the bridge. When they 
reached a police barricade Dr. King 
halted them, began a prayer, and called 
for a return to the church from which 
they set out.

On March 17 Judge Johnson ended 
five days’ intense testimony—with the 
U.S. Justice Department joining the 
LDF injunction suit of Hosea Williams et 
al v. Honorable George C. Wallace— at 
which Jack Greenberg and a team of 
LDF staff and cooperating lawyers

presented plans for the peaceful five-day 
march. The Judge issued the order 
granting permission, directing the 
governor to give affirmative protection to 
the marchers. After his review of how 
Negro voting registration had been 
prevented and the police brutality against 
demonstrators, he stated that “ in this 
case, the wrongs are enormous.”

Sunday morning March 21st, 3,000 
marchers left Selma protected by 1,800 
U.S. Army military police. On March 
25th some 20,000 people from all over 
America arrived in Montgomery and left 
their petition for Governor Wallace— 
who refused to see them— and 
disbanded.

The march made history. President 
Johnson went before a joint session of 
Congress to ask for aiew voting rights 
laws. Congress passed the 1965 Voting 
Rights Act on August 6th. It soon 
brought the time when black men and 
women were elected to public office in 
every state in the South.

Poverty and Consumer Law
The LDF’s staff of full-time attorneys 

in New York rose from a dozen in 
1963, when it was second only to the 
Department of Justice in the number of 
Supreme Court cases, to 25 lawyers in 
1968.

Two 1967 developments helped. We 
established our National Office for the 
Rights of the Indigent with a three-year 
Ford Foundation grant. NORI supplied 
research and test-case litigation to private 
and legal aid society lawyers serving 
poor people. The Fund formed its 
Division of Legal Information and 
Community Service with Rockefeller 
Foundation support. Under the direction 
of Jean Fairfax, it set up regional offices, 
forming community action committees 
to educate minorities and poor people 
about rights assured by new legislation. 
The Division also worked to coordinate 
community work with the LDF legal 
program and to monitor government 
agency programs designed to help 
minorities and the poor.

Far-reaching changes affecting large 
numbers of poor people resulted.

In early 1969 the U.S. Supreme Court 
decided Thorpe v. Housing Authority, of

the City of Durham (N.C.). Mrs. Joyce 
Thorpe received an eviction notice the 
day after the McDougal Terrace Tenants’ 
Association elected her its president. Fair 
procedures before attempted eviction, 
the Court said, are mandatory— thus 
protecting 2,300,000 low-rent public 
housing tenants.

The Court declared on June 9, 1969 in 
Sniadach v. Family Finance Corp. that 
Wisconsin’s wage garnishment law 
violated the Constitution, withholding 
wages without proving the existence of a 
debt. Mrs. Christine Sniadach, 23. a 
white Milwaukee woman, was earning 
$65 a week. The finance company 
forced her employer to withhold half her 
pay, claiming that her former husband 
owed $420. Laws in 17 states, permitting 
creditors to tie up half a person’s wages 
before proving debt, were thus struck 
down affecting, according to Department 
of Labor estimates, at least 100,000 
workers annually who were fired because 
of garnishments.

On March 27, 1972 NORI-LDF 
lawyers won an important victory with 
the Supreme Court decision in Hawkins 
v. Town of Shaw, Mississippi, ordering 
that municipal services must extend 
equally to black residential areas where 
rutted dirt roads, no drainage sewers, 
and sparse street lighting stood in 
dramatic contrast to well-paved, brightly 
lighted streets in white neighborhoods. 
The Court recognized that “ the arbitrary 
quality of thoughtlessness can be as 
disastrous and unfair to private rights 
and to public interest as the perversity of 
a willful scheme.”

Today, the plaintiff, the black 
carpenter Andrew Hawkins, and his 
neighbors enjoy the same good streets 
with fire hydrants, traffic controls, water 
and sewer lines as do white townspeople. 
The principle of equal rights to municipal 
services has led cities as large as 
Knoxville and Memphis and hundreds 
of smaller communities to rectify 
longstanding disparities.

LDF-filed suits were a factor. An 
action on behalf of the Boxtown-Walker 
community brought in 1973 against the 
City of Memphis resulted in a mid-1976 
out-of-court settlement so that black 
neighborhoods have regular garbage 
collections, a new fire station and sewer

37



system. The 1975 filing against the City 
of Ocilla, Georgia, resulted in the city 
getting $159,000 in federal money to 
pave streets and install sewers. Recently 
an LDF-assisted suit for a citizens 
association against Fairfax County, 
Virginia, was settled before trial when 
defendants agreed to pave and approve 
90 streets at a cost of more than $1 
million.

Some municipal services cases go on 
and on. Grievances of black residents in 
Mound Bayou against Bolivar County, 
Mississippi nearly reached settlement, 
but will go to court because of inferior 
quality of paving the country offered.
The suit against Sanford, Florida begun 
in 1974-75 reached agreement. The city 
will use revenue sharing funds for 
equalization of street paving.

The Division of Legal Information and 
Community Service provided staff for 
the School Lunch Study by Church 
Women United, the National Council of 
Catholic and Jewish Women, and the 
National Branch of the Y.W.C.A. Its 
1968 report, “Our Daily Bread,” 
exposed widespread neglect of poor, 
malnourished children. The new law 
Congress passed in 1970 adopted study 
recommendations intended to benefit 10 
million needy youngsters. The Division 
still monitors performance.

Its 1971 study of Title I of the 
Elementary and Secondary Education 
Act, “ Is It Helping Poor Children?” 
documented wide misuse of federal 
money provided specifically for children 
of low-income families.

Employment
The federal Equal Employment 

Opportunity Commission, mandated by 
Title VII of the 1964 Civil Rights Act, 
was designed to conciliate. For years it 
had no power, scant staff and budget— 
a feeble instrument with awesome 
responsibilities in a realm of national life 
rife with injustice.

After receiving a complaint, the EEOC 
had two months to find facts. If it found 
probable cause, it attempted conciliation. 
When conciliation failed the injured 
employee had 30 days to sue. Without 
authority to enforce recommendations 
and grossly understaffed, the EEOC fell 
further behind increasing work loads.

In the first 18 months of EEOC, the 
LDF filed 1,800 employee complaints.
In 1967 it had 40 Title VII cases in 
nine states on its docket. The EEOC 
submitted friend-of-the-court briefs 
in support of LDF suits and, in 
some instances, asked the Justice 
Department to file suits against specific 
discriminatory patterns or practices. Yet 
the U.S. Department of Justice, with 
sizeable staff and resources, showed no 
sign of keeping pace with the Legal 
Defense Fund in employment litigation. 
Some major gains:
® The first Title VII case argued in the 

Supreme Court was brought by LDF 
and concerned equal rights for 
women. Phillips v. Martin Marietta 
Co. (1971) made it illegal to refuse 
employment to a woman with pre­
school age children unless the same 
standards applied to men in similar 
circumstances.

•  Griggs v. Duke Power Co. (1971), 
argued by Jack Greenberg, presented 
the prototype of a personnel system 
that kept black workers in the dirtiest, 
least paid jobs. Chief Justice Warren 
E. Burger wrote the unanimous 
opinion. It made illegal required high 
school diplomas and I.Q. scores for 
laborers seeking promotion to coal 
handler. Tests for hiring and promotion 
had to be related to the job in question, 
with burden of proof on the employer.
In Griggs, too, the Fourth Circuit 
Court of Appeals outlawed the system 
that compelled blacks seeking 
promotion to forfeit all seniority 
earned in menial jobs.

•  McDonnell-Douglas Corp. v. Green 
(1973) established reasonable 
standards of evidence to prove racial 
discrimination in employment.

•  In Albermarle Paper Co. v. Moody the 
Supreme Court sustained back pay 
awards for wages lost as a result of 
discrimination. It ruled that minority 
workers need not prove bad faith of 
the employer to qualify for back pay. 
Justice Stewart said the thrust of the 
Act concerns “ the consequences
of motivation, not simply the 
motivation.” Employers.may not use 
tests that screen out black applicants 
unless “professionally acceptable” 
methods show they are job-related.

•  The Supreme Court decision in 
Franks v. Bowman Transportation Co. 
(1976) entitled workers denied jobs 
because of race to retroactive seniority 
benefits.
In lower federal courts, Jenkins v. 

United Gas Corporation won the basic 
right of a plaintiff to file a class action, 
seeking relief for himself and all 
employees similarly discriminated 
against. Quarles v. Philip Morris, Inc. 
(1968) ordered equal pay for equal work 
and the right to promotion with no loss 
of seniority. Burrell v. Kaiser Aluminum 
(1968) permitted suits when the EEOC 
did not investigate a complaint in 
reasonable time. Clark v. American 
Marine Corp. (1969) ordered job 
vacancies to be made known to all 
employees and training programs made 
accessible. Lee v. Cone Mills (1969) 
required that black women be hired on 
the same basis as white women.

Federal Em ploym ent Discrim ina­
tion. In 1972 Congress added Section 
717 to Title VII of the 1964 Civil Rights 
Act. This gave federal employees the 
same remedies against job discrimination 
that people who work for private 
employers have— with one gigantic 
hitch. The federal civil servant must first 
exhaust administrative remedies through 
the Civil Service Commission’s 
byzantine obstacle course that has proven 
historically insensitive to the rights of 
minorities and women.

Until December 1975 the Civil Service 
Commission actually did not permit 
federal agencies to process complaints 
advanced by individuals on behalf of 
minority groups.

The first breakthrough came in Barrett 
v. Civil Service Commission. The 
Federal District Court in the District of 
Columbia ordered the Commission to 
allow class actions. The suit, on behalf 
of all blacks and women working at the 
NASA Space Center in Houston, 
charged that only 3.7 percent of 
employees were black, pre-employment 
tests lacked validity, promotions 
relied wholly on supervisors’ hunches, 
merit promotion plans were a farce, 
job classifications segregated, and blacks 
were assigned to dead-end positions.

38



Barrett is one of three suits against 
NASA’s race and sex discrimination.
It will affect 25,000 employees in 
Alabama, Florida and Texas. In time 
there can be equal employment 
principles in the entire federal service.

States, Counties, Cities: Shipp v. 
Tennessee Employment Service 
exemplifies the Fund’s strategy to initiate 
suits that can exert a multiplier effect. 
This state employment service makes
50,000 referrals a year. Two out of three 
clients are black. Argued before the 
Sixth Circuit Court of Appeals, we 
charged discrimination in referrals, in 
selecting employees, and illegally 
providing services to employers who 
discriminate on the basis of race.

We still monitor Johnson v. City of 
Albany. Georgia. The LDF sued in 1972 
on behalf of 200 black workers fired 
after protesting unequal pay and seeking 
to organize a union. After four years the 
court decided there was substantial 
discrimination in every city department. 
A settlement was agreed to, awarding 
$515,000 in back pay for 800 persons. 
The ruling required the setting of 
specific hiring and promotion goals.

At this writing 27 non-federal public 
employment cases are pending in a 
dozen states. Among them are state 
departments of corrections, health, and 
police; two county civil services, city 
boards of education and welfare, port 
authorities of New York and South 
Carolina; Atlanta, Cleveland, Detroit, 
Houston, and Louisville police 
departments, Houston and Milwaukee 
fire departments.

At last count, the LDF had recovered 
slightly more than $11 million in back 
pay for about 2,500 employees who had 
suffered discrimination in employment.

Voting Rights
LDF efforts to get black access to the 

ballot were closely intertwined with 
voter.registration efforts of civil rights 
activists across the South in the early 
1960s. Its defense of 1,000 Dallas 
County, Alabama citizens protesting 
denial of voting rights in Williams v. 
Wallace was central to Martin Luther 
King, Jr.’s campaign in Selma. Our suit

persuaded the Federal District Court to 
enjoin Governor George Wallace from 
interfering with the march from Selma to 
Montgomery.

The national concern over Dallas 
County brutality was a central factor in 
obtaining passage of the 1965 Voting 
Rights Act by the Congress.

Overseeing the Voting Rights Act’s 
practical enforcement has required 
numerous court actions. In 1966 the 
Fund argued Gray v. Main in Federal 
District Court when black candidates for 
office in Barbour, Bullock, and Macon 
(Alabama) counties lost to more white 
voters than were alive. It took federal 
District Court action to prevent the 
striking of 62 Negroes from Louisiana’s 
LaFourche Parish list. In West Feliciana 
Parish we sued on behalf of a Negro 
whose life, and the lives of his family, 
were threatened if he ever again tried to 
register.

In 1967 an LDF suit resulted in a 
federal court order to Perry County, 
Alabama— where the number of white 
voters had multiplied-after passage of the 
1965 Voting Rights Act— to reduce its 
surplus.

In 1969 the Supreme Court struck 
down the Virginia law requiring new 
voters to go into the election booth with 
an election official, depriving them of 
their secret ballot. When Congress 
renewed the Act in 1970, it was amended 
to include three New York Counties 
because over two million blacks, Puerto 
Ricans and other minority citizens were 
faced with the same conditions as the 
primarily Southern states affected by the 
1965 law. The LDF brought the 1972 
case of NAACP v. New York to the 
Supreme Court after the federal D.C. 
District Court had granted New York 
exemption from the amended Act.

In 1975 the U.S. Supreme Court ruled 
in East Carroll Parish (Louisiana) v. 
Marshall that lower courts may not order 
the use of multi-member districts. This 
reaffirmed the Chapman v. Meier 
principle that one-person, one-vote is 
best achieved through the use of single­
member districts. The Court also 
extended that rule in Wallace v. House, 
in which LDF action resulted in 
sweeping away the Ferriday, Louisiana, 
system.

Our suit against Shreveport, 
Louisiana, brought in 1976 a district 
court order that the city must revise the 
method of electing the five-member 
Commission Council that denied the 32 
percent black population representation 
in local government. We negotiated the 
Florence, South Carolina settlement that 
restructured its elections to assure blacks 
a chance to serve as officials.

In 1977, the LDF won a voting rights 
case that upheld New York State 
redistricting that assured blacks and 
Puerto Ricans an effective vote.

At this writing, two LDF suits against 
Mobile, Alabama’s at-large city elections 
have been argued before the Supreme 
Court and await decisions. In City of' 
Mobile v. Bolden, challenging at-large 
elections of three city commission 
members, the District Court decision 
ordered its replacement with a mayor 
chosen at large and nine council 
members from single-member districts. 
The Fifth Circuit Court upheld this, as if 
did lower court findings in Williams v. 
Brown against racially discriminatory 
school board elections.

Administration of Justice
The chief concerns of the LDF with 

our system of criminal justice since the 
time of Brown have been fair treatment 
of accused members of minorities, 
capital punishment, and prison 
conditions. LDF won the landmark 
Supreme Court decision in Fikes v. 
Alabama in 1957 holding that a coerced 
confession used to convict a defendant is 
unconstitutional. Turner v. Fouche won 
the Court’s definitive ruling that blacks 
can bring federal suits to end racial 
discrimination in selecting juries and the 
1970 Williams v. Illinois rule that a poor 
person may not lawfully be sent to jail 
because of inability to pay a fine when 
anyone with money can pay and remain 
free.

In lower courts 15 LDF cases in 1967 
challenged all-white juries in five 
Southern states. Jefferson County. 
Alabama, reconstituted its jury rolls as a 
result of Jones v. Wilson. Six key cases 
upheld rights to freedom on bail while 
court procedures determine the merits of 
cases.

39



Patton v. Mississippi (1974), Sims v. 
Georgia (1967), and Alexander v. 
Louisiana (1972) overturned criminal 
convictions by challenging 
discrimination in the composition of 
juries.

Capital Punishment
Beginning in the late 1960s anti­

capital punishment lawyers, led by the 
Legal Defense Fund, devised and 
implemented a strategy designed to 
prevent the execution of all persons on 
death row and to abolish capital 
punishment. Earlier cases involving 
blacks, such as the Scottsboro cases, 
posed issues of right to counsel, jury 
discrimination and forced confessions, 
among others. But lurking in the 
background of each case was the 
awareness that what was at stake was 
not merely justice, not just the legal 
standards that evolve out of new 
situations, not simply the number of 
individuals affected, but the irreversible 
fact of death.

This strategy against the death penalty 
followed an earlier effort in the 
mid-1960s directed against racial bias in 
southern rape cases. To develop the 
claims of cruel and unusual punishment 
and the denial of equal protection in the 
application of the death penalty for 
rape, LDF began a search for statistics 
that might isolate the racial factor. 
Previously, the courts had been 
unpersuaded by the fact that, of 455 men 
executed since 1930 for rape, 405 (90 
percent) were black. The problem was 
presented to Professors Anthony 
Amsterdam and Marvin Wolfgang who 
designed a study to inquire into every 
possible ground that a jury might 
consider in deciding between death and a 
lesser sentence. During the summer of 
1965, a team of 35 law students searched 
the records of 2,500 cases. In the results, 
subjected to rigorous statistical analysis, 
race alone stood out as the constant 
factor in distinguishing cases in which 
the death penalty was chosen over a 
lesser sentence.

The results of the study were 
introduced by the LDF in several cases 
including Maxwell v. Bishop involving 
an Arkansas black sentenced to die for

rape. In 1967 the Supreme Court ordered 
the U.S. Court of Appeals to hear his 
appeal. The final chapter in this matter 
was written in the 1977 Supreme Court 
decision in LDF’s case, Coker v. 
Georgia, when it declared the death 
penalty for rape of an adult to be in 
violation of the Eighth Amendment’s ban 
on cruel and unusual punishment.

In 1968— which was to become the 
first year in U.S. history without an 
execution— the LDF convened the 
National Conference on Capital 
Punishment. Having raised the claims of 
racial discrimination in the application of 
the death penalty for rape, it was not 
possible to assert them on behalf of 
some defendants and not others: the 
issue might be resolved conclusively in 
any case. It was not possible to ignore 
the prejudices, other than racial, that 
cause a jury to impose a death sentence 
on any person for any crime; too often 
race and other prejudices interlock.

To end racism in capital punishment 
the effort had to become one against 
capital punishment as such.

The first important Supreme Court 
review of issues unrelated to race was in 
Witherspoon v. Illinois in 1969. It 
outlawed death-scrupled juries, the 
selection of only those jurors who 
approve capital punishment, denying 
defendants trial by a cross-section of the 
community. It wiped out the death 
sentence of as many as 100 defendants. 
LDF filed a friend-of-the-court brief in 
the case.

The Supreme Court decided LDF’s 
case of Furman v. Georgia in 1972. By 
then LDF cases had obtained California 
and New Jersey state supreme court 
decisions eliminating death sentences in 
their states. The 5-4 Furman decision, 
enunciated in separate opinions by 
all nine justices, found that capital 
punishment violates the Eighth 
Amendment ban against cruel and unusual 
punishment as most state laws are 
arbitrarily applied. Some of the opinions 
reviewed the relationship between being 
sentenced to death and race and poverty. 
The decision spared the lives of 
approximately 630 death row prisoners 
nationally. There followed 35 new state 
laws that are still being tested in more 
than 100 cases in over half the 50 states.

In 1976, the Supreme Court said that 
executions are not inherently cruel and 
unusual. It sustained Florida, Georgia 
and Texas capital punishment laws 
because theoretically they give juries and 
judges the choice between death and life 
in prison after considering unique factors 
in each case. The Court declared 
Louisiana and North Carolina laws 
unconstitutional because they require 
death for particular crimes; these three 
decisions spared the lives of 
approximately 370 condemned prisoners.

In 1978, the Supreme Court declared 
the death penalty statute of Ohio 
unconstitutional in Lockett v. Ohio, an 
LDF case, thereby sparing the lives of 
100 men and women on Ohio’s death 
row. Sandra Lockett, a young black 
woman with no prior criminal record, 
had been sentenced to die for 
participating in a robbery in which a 
shopkeeper had been killed; Ms. Lockett 
had been outside the store in a car during 
the robbery, and had no involvement 
with the actual killing. The prosecutor 
had allowed the actual killer to turn 
state’s evidence and receive a life 
sentence in return for his testimony 
against Ms. Lockett. The Ohio law was 
invalidated because it prevented the 
sentencing judge from considering any 
of the most significant mitigating factors 
in Ms. Lockett’s case.

Altogether, the 1972, 1976, 1977 and 
1978 decisions of the Supreme Court on 
the subject of capital punishment— most 
of them LDF cases— have spared the 
lives of approximately 2,000 men and 
women— a group that was 
overwhelmingly impoverished and 
disproportionately black.

LDF has continued its legal battle to 
prove that the death penalty is applied 
arbitrarily and discriminatorily even in 
the states whose statutes have been 
upheld by the Supreme Court. Recent 
statistics establish that approximately 
90% of the death sentences in these 
states resulted from cases in which white 
persons were the victims. The death 
penalty is rarely used when blacks are 
the victims. Although the Supreme 
Court declined to hear this argument at 
this time when it denied review in the 
Case of Spinkellink v. Wainwright on

40



March 26, 1979, LDF will continue to 
press the claim in all available forums.

Prison Reform
For well over a decade the LDF has 

been a leader in litigation that is bringing 
the rule of law to the country’s prisons.
It began in the late 1960s with a series of 
cases establishing the principle that 
prisoners have rights under the U.S. 
Constitution. Lawsuits attacked local jail 
conditions. Some resulted in the early 
precedents that established the right of 
pre-trial detainees to decent treatment 
consistent with the presumption of 
innocence.

LDF suits against jail conditions in 
Arkansas and Toledo in 1971, Dallas and 
Baltimore in 1972, and Boston in 1973, 
blazed a trail that has led to lawsuits by 
others which ordered the closing or 
renovation of such notorious big-city 
jails as the Tombs in New York City, 
Cook County Jail in Chicago, and the 
Hall of Justice Jail in Los Angeles.

It brought Haines v. Kerner up to the 
Supreme Court in 1972, establishing the 
rights of prisoners to get a hearing in 
federal courts on complaints they write 
themselves (getting such a hearing for an 
aged, disabled Illinois convict who 
attacked solitary confinement as unfair 
and barbaric discipline). Victory in 
Preiser v. Rodriguez in 1973 beat back 
prison authorities’ challenge of this 
principle without having to waste months 
or years awaiting state court action on 
their claims. In 1974 the Supreme Court 
also ended California State Prison’s 
censorship of prisoners’ mail in 
Procunier v. Martinez.

Finney v. Hutto saw the Supreme 
Court uphold the District court ruling 
that Arkansas prisons shall not hold 
inmates in solitary confinement longer 
than 30 days, and declared the entire 
state prison system unconstitutional. In 
May, 1975 the LDF also obtained a 
federal court order in Costello v. 
Wainwright requiring the state of Florida 
to reduce its prison population first to 
“emergency” and then to “ normal” 
capacity. In space designed to hold
7.000 inmates, the prison houses about
16.000 in tents, converted warehouses,

and cells so crowded that many must 
sleep on the floors.

Ever since 1973 when the LDF filed 
Guthrie v. Ault it has been at work to 
change Georgia State Prison conditions 
at Reidsville, the largest penitentiary in 
the state. In a facility built for 1,800 
prisoners, it then held more than 3,000 
and is now down to 2,150. Through 
mediation a court-approved agreement 
required the prison to desegregate dining 
and living conditions. After episodes 
of violence and killings, there was 
resegregation that resulted in still further 
violence and more murders.

Four consent decrees call for a prison 
law library, procedures to review use of 
force by staff against inmates, an end to 
guards carrying pick handles, the right 
of Black Muslims to receive literature, 
ministers to hold services, and eat pork- 
free diets.

The last consent decree calls for 
vocational, academic and rehabilitation 
programs, a library for prisoners on 
death row, limits to prison populations, 
fans installed in dormitories, continued 
affirmative action in hiring guards, and 
for additional security.

Ruiz v. Estelle, on behalf of all Texas 
prisoners, began seven years ago. Now 
on trial in the U.S. District Court at 
Houston, the issues are severe 
overcrowding; unsafe working conditions 
on prison farms and in factories; denial 
of due process in disciplinary measures 
and of access to courts and legal counsel; 
prisoners living amid brutal physical 
assaults from other inmates, prison 
guards, and inmate-guards called 
“building tenders,” and medical 
treatment—even minor surgery— 
peformed by untrained inmates. Trial 
began in October, 1978, and is expected 
to last into the Summer of 1979.

Division of Legal Information 
and Community Services

To multiply the benefits obtained from 
court decisions and to amass factual 
documentation for future victories 
require more than law suits. The LDF 
Division of Legal Information and 
Community Services, headed by Jean 
Fairfax, works closely with coalitions of

professional and minority community 
oganizations.

The Division pursues non-legal 
remedies, monitors enforcement by 
federal agencies responsible for state 
and local compliance with legislation 
and court decrees, publishes research 
and conducts public education so that 
communities are informed of their rights 
and organize to fight for them.

The Legal Defense Fund’s ability to 
represent large numbers of clients in 
class action suits is augmented by 
the Division’s staff, working from 
California, Washington, D.C., New 
York and North Carolina. It relies on the 
Division to keep plaintiffs apprised of 
the status of prolonged litigation. An 
urgent priority now is compliance by six 
southern state public college systems 
with decrees in Adams v. Califano, 
originally filed in 1970, but still short 
of desegregation in 1979.

41



Anthony Amsterdam is Professor of Law at 
Stanford University.

The Struggle Against 
The Death Penalty
To get sent to prison, you have to be found 
guilty; to get sentenced to death, 
you have to be hated, feared, despised. 
Vengefulness dominates death cases and 
respects no civil rights. Race prejudice, 
violations of civilized procedure, and the 
death penalty run together.

LDF has defended death cases since the 
Scottsboro Boys’ days. Early decisions 
were won because defendants’ confessions 
were brutally extracted, or blacks were 
excluded from juries.

In 1965, LDF challenged the death 
penalty directly, arguing that it was used 
discriminatorily against blacks and 
persons convicted of crimes with white 
victims, and was a Cruel and Unusual 
Punishment. The arguments are related: 
death is so cruel a punishment that the 
public tolerates it only for an outcast few, 
condemned by racial and other hatreds 
that distort common conscience.

Major Supreme Court victories were 
won in 1972, 1976 and 1978, striking 
down forms of capital punishment as 
particularly arbitrary or merciless. In 
1977, LDF obtained a ruling abolishing the 
death penalty for rape. These and other 
cases saved more than 2000 men and 
women from electrocution or gassing.

LDF has undertaken to defend all death- 
sentenced persons who cannot secure 
other counsel. It continues to develop 
the arguments being used to attack the 
death penalty in cases nationwide. A small 
staff is now spread perilously thin by the 
effort to save some 500 condemned

persons. Nevertheless, LDF has succeeded 
in preventing all executions except one (a 
suicide) since 1967.

We believe that every execution marks a 
death of fairness and humanity, a defeat of 
reason and compassion by irrationality 
and prejudice. We are not alone. Although 
opinion polls show a crime-frightened 
public favoring capital punishment by 
a 70-30 margin, the figures are exactly 
reversed— 70 percent opposing the death 
penalty— in our black communities.

Anthony Amsterdam

William Sloane Coffin is Senior Minister of 
Riverside Church. He was Chaplain of Yale 
University and Williams College.

Sit-Ins and Freedom Rides
My earliest first-hand exposure to the 
Legal Defense Fund was in June 1961 when 
it represented me, other ministers and 
faculty people at our trial in Montgomery, 
Alabama, where we were charged with 
disobeying laws requiring segregated 
restaurants. Three and a half years later it 
was still defending us when the U.S. 
Supreme Court heard arguments in our 
case.

In April 1961, a student at Chapel Hill 
described to me a sit-in he had recently 
been part of:

“The five of us came in and sat down on 
what empty stools there were. Pretty 
soon the man behind the counter slipped

out. In the mirror I could see the crowd 
begin to gather on the sidewalk outside. 
Then the other folks on the stools began 
to go out whether they had finished or 
not, and without paying, seeing there 
was no one left to pay. The five of us 
moved together for a little warmth. Then 
in the mirror I was relieved to see the 
police. But no sooner had they appeared 
than they disappeared, deliberately.
That was the signal. The crowd began to 
come in. You could just smell their 
anger. Some of them began to shout 
insults into one of my ears while from 
the other side a guy starts to blow 
cigarette smoke into my eyes. I’m 
gripping the counter. Then the guy with 
the cigarette puts it out on the back of 
my hand. I think I’m going to faint. 
Then I feel a knee in the middle of my 
back, then an arm around my neck. 
Someone is pulling my hair, hard. Pretty 
soon I’m on the floor, trying to stay 
curled up in a ball. They were really 
kicking us. When we were practically 
unconscious, the police reappeared and 
arrested all five of us lying on the 
ground for disturbing the peace. In jail 
they roughed us up some more, just for 
good measure.”

A few days later in New Haven I met a 
close friend who had been my Divinity 
School classmate, John Maguire, then 
teaching at Wesleyan. John had followed 
the sit-ins even more carefully than I. He 
had been born and bred in Montgomery, 
Alabama. It angered him that, in the 
North, people felt segregation was a 
Southern problem that only Southerners 
could solve, while in the South, people felt 
that segregation was a problem only time 
could solve. Together we agreed that the 
students deserved a support they were 
sadly lacking, and that we might find an 
appropriate action to undertake together.

The opportunity for that action was 
waiting just around the corner. In April 
1961, Martin Luther King and other civil 
rights leaders visited Robert Kennedy at 
the Justice Department. In 1941 the 
Supreme Court had specifically ruled that 
trains could not be segregated if they 
crossed state lines. Five years later, 
segregation on interstate buses was also 
outlawed by the Court. After 1954, the 
Interstate Commerce Commission had 
banned separate washrooms and 
restaurants when they served interstate 
travelers, a decision that had specifically 
been upheld by the Court. Yet despite 
these many clear decisions, blacks 
traveling on interstate buses south of the

42



Mason-Dixon Line were still forced to sit at 
the back of the bus, to eat at separate 
lunch counters, drink at “colored” 
drinking fountains, and to use only 
“colored” washrooms.

The civil rights leaders wanted to know 
why the Interstate Commerce Commission 
couldn’t simply reaffirm the language of 
its charter so that desegregation in 
transportation could take place without all 
the litigation that had proved so time 
consuming in the educational field. 
Apparently Kennedy had replied that the 
ICC was probably the slowest moving of all 
regulatory agencies, and that even were he 
personally to appeal to its members, they 
undoubtedly would only initiate hearings 
sure to last three to four years. 
Understandably, the civil rights leaders 
were angered. So the Congress of Racial 
Equality decided to force the issue the 
following month by sending an interracial 
group on a bus ride through the South 
deliberately to test the facilities under ICC 
jurisdiction.

John Maguire and I organized the third 
Freedom Ride after Alabama Governor 
John Patterson had given mobs a free hand 
to overturn and burn the bus carrying the 
first riders to Aniston, then to turn on the 
riders with chains and clubs, rocks and 
fists. Our group was so small we could all 
fit into one car. With us were David Swift, 
the Lincolnesque head of Wesleyan’s 
religion department, and Gaylord Noyce, a 
professor of pastoral theology at Yale, who 
like John was a Southern white and like 
David, soft-spoken. George Smith, a black 
third-year law student who had been with 
me in Guinea the summer before on a 
Crossroads Africa trip, was about to take 
final exams but said “I’ll have time to 
study on the bus.”

We flew to Atlanta where Charley Jones 
and Clyde Carter, two black students from 
Johnson Smith Seminary in North 
Carolina, joined forces with us. So now we 
were four whites and three blacks.

We took a Trail ways bus to Montgomery. 
At the depot it looked as though the entire 
white population had gathered to get us.
“I never believed in nonviolence more than 
I do now,” said John. But he could smile 
because the crowd, armed and shouting 
curses, was held at bay by hundreds of 
Guardsmen with bayonets fixed.

Ralph Abernathy and Wyatt Walker of 
the Southern Christian Leadership 
Conference met us. Just as I got in the 
front seat next to Abernathy, a rock 
smashed the windshield. He never 
flinched. Surrounded by motorcycles our

two cars drove to Abernathy’s house in the 
black district of Montgomery, passing on 
the way the shattered windows of the First 
Baptist Church which was surrounded by 
Guardsmen.

Fred Shuttles worth, Wyatt Walker, and 
Bernard Lee escorted us to the bus depot 
where we would embark for Jackson, 
Mississippi. After buying tickets we still 
had a few minutes, so we all went to the 
lunch counter for a cup of coffee, all, that 
is, but Wyatt Walker who went to call his 
wife in Atlanta to tell her he’d be coming 
home that evening. Just as Ralph and I 
were disputing who should pay for the 
coffee, the heavy hand of Sheriff Mac Sam 
Butler descended on our shoulders.
“You’re under arrest for disturbing the 
peace,” he said.

Jail was to be a new experience for all in 
our group, and Ralph quietly explained the 
procedure. After we had been booked and 
fingerprinted we were told that bail would 
be $1,000 apiece. Each of us was allowed 
one telephone call. By the time I reached 
my wife Eva she had heard the news of our 
arrest over the radio. She was vastly 
relieved to know we were safely in jail.
Also she told me that the secretary of Yale 
and several faculty members had insisted 
on raising bail. Two days later, after 
posting bail, we were released.

Still under heavy escort, those of us 
returning to Connecticut were taken to the 
airport, where to our surprise we found 
General Graham, the head of the Alabama 
National Guard. He was civility itself. “I 
do hope you gentlemen will return to the 
South under more favorable conditions,” 
he said. We assured him we would, 
expressing the hope that such conditions 
would soon come about. In that Alabama 
airport, however, not even the most 
optimistic among us would have believed 
that 15 years hence blacks would lead the 
country in electing a former governor of 
neighboring Georgia President of the 
United States.

At our Montgomery trial I came to 
appreciate fully the competence and 
dedication of Legal Defense Fund lawyers, 
mostly young, black and white, men and 
women. Among them was Louis Poliak, 
professor of constitutional law at Yale Law 
School, who also argued before the 
Supreme Court when our case was 
combined with others involving sit-ins and 
demonstrations.

I did not then appreciate how much the 
LDF does with limited resources. Only 
after my defense against the charge of 
conspiring to counsel young men to refuse

being drafted for Vietnam was I given 
instruction. For my first trial a Boston law 
firm billed me $39,000— later reduced to 
$25,000. For the second, a New York firm 
charged $25,000. . The sky-high fees for 
the best lawyers contribute in a major way 
to a double standard of justice. When we 
consider how many hundreds of cases the 
LDF pleads, often for plaintiffs who lack 
friends who can pay the tremendous costs, 
the LDF is a bastion of cost-effectiveness- 
efforts to open new gains against injustice.

William Sloane Coffin

Charles V. Hamilton is Wallace Sayre Professor 
of Government at Columbia University. He is a 
member of LDF’s Board.

The Right to Vote
Over the last twenty-five years the 
franchise battle has developed from 
reasonably successful efforts to overcome 
racial obstacles to the right to register to 
vote to present efforts to guarantee the 
right to cast an effective vote. “Effective” 
refers to a vote not diluted by various 
administrative and legislative regulations. 
In a 1978 Supreme Court brief, the Legal 
Defense Fund argued against the at-large 
system for electing the Mobile, Alabama 
school board.
The election system in operation in Mobile 
utterly frustrates the purpose of the 
Fifteenth Amendment. In form blacks are 
able to mark and cast ballots, but in 
substance they are disenfranchised—

43



Despite the Voting Rights Act, and 
although at least one out of four Mobile 
voters is black. Brown v. Board of 
Education could not be implemented by 
resort to the ballot, but required instead 
resort to the federal courts.

The decades prior to the early 1960s 
were years of legal and political struggle to 
overcome grandfather clauses, white 
primaries, discriminatory voter 
registration tactics, discriminatorily 
administered literacy tests, and other 
practices aimed at depressing black voter 
registration. Virtually all those obstacles 
were defeated, with probably the most 
obstinate one still being economic 
intimidation.

But even as the registration figures have 
increased (for example, in Mississippi from 
6.2 percent black registration in 1961 to 
59.3 percent in 1971), the legal struggle 
continues against various efforts to 
minimize the effectiveness of a black 
electorate. Such efforts take various forms: 
at-large elections rather than election by 
districts; new, frequently restrictive, 
requirements for candidacy to office; 
changes in polling places; reapportionment 
and redistricting.

Section 5 of the Voting Rights Act of 
1965 requires changes from conditions 
existing prior to November, 1964 to be 
approved by the U.S. Attorney General or 
the federal district court in Washington, 
D.C. In 1978, Mr. Justice Thurgood 
Marshall wrote: “ . ..  in determining if an 
enactment triggers Section 5 scrutiny, the 
question is not whether the provision is in 
fact innocuous and likely to be approved, 
but whether it has potential for 
discrimination.”

Such a position recognizes that the many 
years of “systematic resistance to the 
Fifteenth Amendment” have not entirely 
abated.

Charles Hamilton

Patricia Roberts Harris is U.S. Secretary of 
Housing and Urban Development and a former 
member of LDF’s Board.

In the 25-year span since the Supreme 
Court’s decision in Brown, we have seen 
development of a substantial body of 
legislation designed to erase discrimination 
and assure for all Americans equal 
opportunity in all walks of life. But as we 
are painfully aware, we have a long way to 
go to abolish discrimination.

Today discrimination is even more 
prevalent, as the forms it takes have 
become more extensive and sophisticated in 
recent years. This was the conclusion 
reached by the nationwide survey of 
discrimination in housing, which measured 
rental and sales housing practices.

Thus, we must face the fact that ten 
years after Title VIII of the 1968 Civil 
Rights Act was signed into law, 200 years 
after the founding of this nation, and more 
than 100 years after the Emancipation 
Proclamation, discrimination not only 
persists, it is pervasive.

We have seen successive Executive 
Orders proclaiming equality, but we still 
have inequality.

Nevertheless, I am optimistic that 
discrimination will be conquered by the 
goodwill and work of the partnership of all 
elements of society and of government. As 
we continue the long pull, we must 
sharpen the focus and the tools we now 
have to end discrimination and I count the 
NAACP and the Legal Defense Fund as 
among the most important of those tools.

While housing has always been a 
priority for the Legal Defense Fund, it was 
the last Civil Rights issue to gain 
Congressional attention. It must now 
capture the most prominent concern and

commitment of all of the people— for until 
such time as we can assure every man, 
woman, and child in this country free and 
equal access to decent shelter in a suitable 
environment, not only will our work be 
undone, but also the other basic freedoms 
will be in peril.

President Carter’s statement 
commemorating the tenth anniversary of 
the signing of the National Fair Housing 
Law last April emphasized this overriding 
issue. He said, “The freedoms that we 
believe in, enjoy, and benefit from cannot 
be secure unless they are shared by all 
Americans. As long as equal opportunity is 
denied to one person, the promise of 
equality for all will be unfulfilled.”

Patricia Roberts Harris

Nicholas DeB. Katzenbach is General Counsel of 
International Business Machines Corporation.
He was U.S. Attorney General and Under 
Secretary of State. He is a member of LDF’s 
Board.

It was hot and dusty the day Governor 
Wallace stood in the “schoolhouse door”— 
and the day the University of Alabama was 
integrated by the admission of Vivian 
Malone and James Hood. I found the 
whole experience— the mass of reporters 
and nationwide TV, irritating.

In one sense it was a charade: The result 
was preordained. I had discussed with 
Robert Kennedy the necessity of letting 
Wallace posture in the door; there was no 
legal necessity. It was Kennedy’s feeling

44



that we had to allow Wallace his “show” 
because otherwise he might, in frustration, 
permit the high feelings of his law 
enforcement personnel to get out of control 
as they had when Mississippi was 
integrated by James Meredith. There was 
no agreement with Wallace that I know of; 
just a belief that we had to pay that price 
to insure non-violence. And peaceful 
integration of the University of Alabama 
could be helpful in other integration 
situations.

There were important differences 
between Ole Miss and Alabama. The 
Department of Justice understood the 
problems better; the Kennedys were more 
prepared to use military personnel if 
necessary; and, most important,
Chancellor Frank Rose had the courage 
and determination to integrate— really, not 
just symbolically— the University.

To me the single key factor in any move 
toward integration has been the genuine 
willingness of those in authority— whether 
they be governors, chancellors, school 
boards, or employers— to comply with the 
Constitution and laws voluntarily and in 
good faith. Frank Rose acted in that 
conviction, and the University is a far 
better institution today as a result— for 
whites and blacks.

Every now and then I see the University 
of Alabama play football on TV and I 
think of that June day. I bet Bear Bryant 
does too.

Nicholas deB. Katzenbach

James Vorenberg, former Executive Director of 
the President’s Commission on Law 
Enforcement and the Administration of Justice, 
is Professor of Law at Harvard University. He is 
a member of LDF’s Board.

LDF and Criminal Justice
The burdens of unfairness in criminal 
justice administration inevitably fall most 
heavily on blacks and other minorities and 
in many instances criminal sanctions have 
been used as a means of punishment for 
the assertion of equal rights. Legal Defense 
Fund lawyers have therefore frequently 
found themselves attacking unfair 
treatment, of individuals by police, 
prosecutors, courts and correctional 
agencies. From Powell v. Alabama in 1932 
in which the convictions and death 
sentences of the “Scottsboro Boys” were 
reversed because they were deprived of 
counsel to Hutto v. Finney in 1978 holding 
unconstitutional the Arkansas prison 
system’s use of “isolation cells,” an 
important part of protecting civil rights 
has been preventing or remedying abuses 
by criminal justice officials. And 
constitutional attacks have kept the 
criminal process from being used directly 
as a means to punish civil rights 
demonstrations.

LDF has been at the forefront of the 
campaign against capital punishment; its 
lawyers have argued in the U.S. Supreme 
Court the leading cases seeking abolition 
and have handled on a local level hundreds 
of appeals and motions of those facing 
execution.

A representative and unbaised jury to 
hear a criminal case and grand jury to 
decide on bringing charges are crucial to 
due process and unfair jury selection 
processes have been a target of LDF

litigation, as has unfair treatment of 
prisoners and denial to them of such basic 
rights as the exercise of their religion 
and of access to law books and other 
information they need to challenge their 
convictions.

James Vorenberg

Roger Wilkins is a columnist for T H E  N E W  
Y O R K  T I M E S .  He was formerly an Assistant 
Attorney General of the U.S. He is a member of 
LDF’s Board.

A couple of months ago, far south of 
Khartoum, 1 watched some tall, slender, 
very black Sudanese adolescents do a 
mating dance that seemed centuries old.
I felt an intense rush of identity with them 
and with my African past. It was so strong 
that I felt giddy, but that passed in a 
moment.

It passed because no matter how proud 
I may be of the Africa in me, my identity is 
clear: I am a black citizen of a multi-racial 
nation and my identity was forged not only 
at home, but also in the streets and on the 
playgrounds of that nation— and mainly in 
its schools.

The answer to the question, “Who am 
I?” is profoundly important to people who 
are going to live out their lives in a society 
in which the races co-exist uneasily. It is 
important to black people and it is 
important to white people and neither 
group can learn the full answer to that 
question in isolation.

45



I can still remember the false lessons 1 
learned on the busses I rode as a child in 
Kansas City, past the newer, nicer schools 
nearest my home to the much older black 
school that the law required me to attend. 
Newer was better, in my view as a five-year 
old kindergartner, and since the white kids 
had the newer school, they must be better, 
too. And, I can’t imagine that the white 
kids, seeing us being carted off into the 
distance on our yellow bus, could have 
inferred much that was positive about our 
identities.

1 think about those lessons often now 
when I look at young blacks moving into 
predominantly white corporations, 
financial institutions and law firms there 
to spend their lives in subtle and intimate 
struggles that will shape not only the 
approach of their corporation to the 
public, but taken en masse, may change 
the shape of the republic as well. The 
racial attitudes of much of this generation 
of the white supervisors of those young 
blacks are most likely to have been formed 
in schools where the races were isolated. 
Double woe then, to the young black who 
comes burdened by the myth of white 
superiority. But, woe as well to the 
corporation whose supervisors will not, 
in most cases, even be aware of their 
limitations in dealing with their fellow 
citizen subordinates who are black.

One of the best compliments I ever 
received was paid a couple of years ago by 
a white man named Bill— now a high 
corporate executive— with whom I 
attended high school many years ago.

“You were the first black I ever went 
to school with— or even knew, for that 
matter,” he said. “I think that experience 
has stood me in better stead than anything 
else learned in those years.”

I responded: “And I learned that you 
weren’t superman. That was pretty 
valuable too.” In learning about the other, 
each of us learned something even more 
important about himself.

It seems to me, after twenty-five years, 
that that is still basically what Brown is 
about.

Roger Wilkins

46



Legal Talent

Michael I. Sovern is Provost of Columbia 
University and former Dean of its Law School. 
He is a member of LDF’s Board.

The twenty-five Civil Rights Legal 
Training Institutes the Legal Defense Fund 
held from 1966 through 1977 were a rare 
combination of intellectual trail-blazing 
and practice-rooted professional training. 
No single law school could have offered the 
depth and breadth of the lectures and 
workshops; or matched the motivation of 
the Institutes’ “students”— the front-line 
lawyers fresh from the courtrooms and 
bargaining tables where law for minorities 
and the poor was being made almost daily.

The Institutes were characterized by 
legal scholarship of the highest order: 
Mark DeWolfe Howe of Harvard on State 
Action; Dean Robert McKay of New York 
University on School Desegregation; Dean 
Albert Rosenthal of Columbia on 
Employment Discrimination; Dean Albert 
Sacks of Harvard on Class Actions; Paul

Bender of the University of Pennsylvania 
on the Supreme Court; Anthony 
Amsterdam and the late Herbert Packer 
of Stanford Law School on Criminal 
Procedure; Monrad Paulsen of Virginia 
and Cardozo on Searches, Seizures, 
Confessions and Juvenile Offenses. Paul 
Miller of Howard, Stephen Duke of Yale, 
William Van Alstyne of Duke, and Caleb 
Foote of the University of California 
at Berkeley brought unequalled 
concentration of talent to bear on 
Capital Punishment issues. And this is 
only a sample.

As new opportunities arose with 
enactment of federal Civil Rights 
measures, and public interest law 
developed along lines the Legal Defense 
Fund had created, the Institutes kept pace. 
Hundreds of attorneys in practice shared 
experience as they came to grips with 
emerging legal problems. Participants 
from the Voter Registraton Project, the 
Lawyers’ Committee for Civil Rights 
Under Law, Mobilization for Youth, the 
U.S. Department of Justice and the 
Commission on Civil Rights joined in 
deliberations concerned with, among 
others, Title II on Public Accommodations, 
Title VII on Employment, and Title VIII 
on Housing.

When there were mass arrests, when 
HEW revised school desegregation 
guidelines, when there were questions 
regarding state and local authority’s power 
to impose curfews and close down 
businesses, when new federal rules of 
evidence were introduced, lawyers’ urgent 
questions were asked and answers 
hammered into shape.

To make the most of expert witnesses, 
experienced attorneys demonstrated how 
best to examine authorities in education,

employment, and statistics. For civil rights 
attorneys setting up their own firms, there 
were clinics on law office management.

The Institutes provided ferment. They 
spread knowledge hard won in practice. 
From their productive collaboration, the 
Legal Defense Fund seeded important 
gains for thousands of beneficiaries in 
every section of the nation.

Michael Sovern

47



The Legal Defense Fund served as the legal arm of 
the Civil Rights Movement, defending thousands of 
demonstrators. Shown here are from left— Bayard 
Rustin, coordinator of the March on Washington; 
Jack Greenberg, director-counsel. Legal Defense 
Fund; Whitney M. Young, executive director, 
National Urban League; James Farmer, national 
CORE director; Roy Wilkins, executive director, 
NAACP; the Rev. Dr. Martin Luther King, Jr., 
president, Southern Christian Leadership 
Conference; John Lewis, chairman. Student Non- 
Violent Coordinating Committee; and A. Philip 
Randolph, international president, Negro American 
Labor Council.

48



The Fund’s ability to attack entrenched 
discriminatory practices proved effective 
because of incomparable support from 
cooperating attorneys, legal scholars, 
and authorities in many disciplines who 
augment staff efforts.

LDF cooperating attorneys carry 
forward the tradition that began when 
volunteer lawyers did all of the work. 
Often the exactly right plaintiffs for 
testing particular guarantees first 
appeared at offices of practicing 
attorneys who saw instantly that the 
cases warranted all-out Fund 
sponsorship.

Even when Thurgood Marshall and 
one secretary were the entire staff, he 
recruited a force with considerable 
experience. What a network they were, 
with Theodore M. Berry in Cincinnati; 
William H. Hastie and William T. 
Coleman in Philadelphia; Oliver T. Hill 
in Richmond; A. P. Tureaud in New 
Orleans; Earl Dickerson, Sidney A.
Jones and W. Robert Ming in Chicago; 
Carl Johnson in Kansas City; George M. 
Johnson, James M. Nabrit, Jr. and Frank 
D. Reeves in Washington, D.C.;
Z. Alexander Looby in Nashville; T. G. 
Nutter in Charleston, West Virginia; 
Sidney Redmond in St. Louis; and A. T. 
Walden in Atlanta.

Louis L. Redding of Wilmington is 
the cooperating attorney whose acumen 
helped make history in the Delaware 
school segregation cases. Arthur D. 
Shores of Birmingham is the cooperating 
attorney who nearly did not survive the 
turmoil there; one return for his pains 
was having his home destroyed by 
bombs. For a period, two colleagues 
gave so much of their time they served 
with modest retainers as LDF regional 
counsel: Spottswood W. Robinson, III in 
the Southeast, and U. Simpson Tate in 
the Southwest.

By the time the Fund had a legal staff 
of five it had even greater need for the 
cooperating attorneys. W. J. Durham of 
Dallas, and Amos T. Hall of Tulsa, were 
the lawyers to whom Heman Sweatt,
Ada Lois Sipuel, and G. W. McLaurin 
first went for help when they wanted to 
enter their state university graduate 
schools. .

Scholars and Leaders of the Bar
During the years that led up to Brown, 

faculty members of leading law schools 
actively helped plan and develop 
litigation strategy. Thomas I. Emerson, 
John Frank and David Haber at Yale,
Earl G. Harrison at the University of 
Pennsylvania, Walter Gellhorn at 
Columbia, Paul Freund, Erwin D. 
Griswold and Benjamin Kaplan of 
Harvard were active collaborators. When 
the Supreme Court heard Sweatt and 
McLaurin in 1950, 187 law professors 
joined in submitting a friend-of-the-court 
brief.

When U.S. District Court Judge Louis 
H. Poliak was professor of constitutional 
law and Dean at Yale Law School and 
later Dean at Pennsylvania Law School, 
he argued LDF sit-in and voting rights 
cases before the Supreme Court. Dean 
Albert J. Rosenthal of Columbia has 
been active on LDF Title VII cases 
concerned with employment 
discrimination and Professor Kellis E. 
Parker of Columbia has helped prepare 
the Geier case directed at policies of 
segregation of the Tennessee system of 
higher education.

Professor James Jones of the 
University of Wisconsin has lectured on 
employment discrimination at a Fund 
conference held jointly with the National 
Urban League and the Urban Coalition. 
Professor Harry Edwards of the 
University of Michigan School of Law is 
a consultant and collaborator.

Anthony Amsterdam of Stanford 
University is the spearhead who leads 
Fund work on capital punishment 
questions. Professor Charles L. Black,
Jr. of Yale continues to participate in 
several spheres of LDF planning in 
constitutional law.

Melvin Zarr, formerly of the LDF staff 
(now a law professor in Maine) told how 
Professor Amsterdam became intrigued 
when the State of Georgia petitioned the 
Supreme Court for a writ of prohibition. 
Georgia objected to cooperating attorney 
Howard Moore, Jr. of Atlanta having got 
the Fifth Circuit Court of Appeals to 
uphold use of an 1866 Congressional 
statute enabling demonstrators to be tried 
in federal rather than state courts. Zarr 
recalled:

“Amsterdam agreed, under Fund 
auspices, to prepare a response to 
Georgia’s petition. Amsterdam asked 
Jack Greenberg for help, and I was 
deputized.

“That involved spending the next 
three weeks in Philadelphia with 
Amsterdam. We would arrive in his 
office before nine and work at a 
feverish pace until after midnight... 
We turned out a sparkling one 
hundred-page document, and the 
Supreme Court denied Georgia’s 
petition.
“At the next Fund lawyers’ conference 
held in Atlanta in May 1964, a call 
from Mississippi came shortly before 
we were to return North. A large 
number of civil rights workers—the 
advance guard of the fateful 
Mississippi summer of 1964— had 
been arrested. This was our chance to 
build a successful removal case from 
the ground up, so we flew immediately 
to Jackson ... That night we worked in 
the old COFO (Council of Federated 
Organizations) office ... turning out 
removal petitions and all the legal 
paraphernalia that went with them.
“At this time we were fighting a paper 
war and were grossly unprepared. We 
had no secretaries and only a beat-up 
typewriter and mimeograph machine 
to work with. But Amsterdam rose to 
the occasion. Working semi-naked in 
the steaming one hundred-degree heat, 
he typed out the stencils, fixed the 
mimeograph machine, and ground out 
the papers. By 4 A.M., I decided to 
apply my hard-earned lesson and 
sought an hour’s rest... When I 
returned to the office, he had finished 
the job. We set off for Biloxi to find a 
federal judge. . . ”
In his book, “ Cruel and Unusual” , 

Michael Meltsner relates how Professor 
Amsterdam became a mainstay:

“To the overworked civil rights bar, 
Amsterdam was like the gift of a well- 
programmed legal computer; he vastly 
enlaged the Fund’s capacity to go to 
court and win.
“ In the critical mid-1960s, when 
massive black protests seemed likely 
to lead either to repression and defeat 
or to a new level of the struggle for an

49



America without institutionalized 
racism, he was rarely at home ... He 
could be found commuting between 
Jackson, Atlanta, and New Orleans, 
munching hamburgers in an airport 
coffee shop, or banging away on a 
portable typewriter in a waiting 
room...
“ ... he became increasingly involved 
in, and finally came to manage, the 
Fund’s growing docket of capital 
cases. Between 1965 and 1972 he 
spent no less than forty hours a week, 
every week of the year, representing 
capital case defendants.”

There is reciprocity as LDF staff 
members accept law faculty chairs. 
Professors Norman C. Amaker at 
Loyola, Leroy Clark at New York 
University, Robert Belton at Vanderbilt, 
Philip Schrag and Jack H. Himmelstein 
at Columbia, Charles H. Jones at 
Rutgers, Sheila Rush at Hofstra, and 
William L..Taylor (former U.S. 
Commission on Civil Rights executive 
director) at Catholic University,
Elizabeth Bartholet and Derrick A. Bell, 
Jr. at Harvard, Linda Green at Temple 
are some of the former Fund attorneys 
who now teach. Michael Meltsner is the 
new dean at Northeastern University 
Law School. Philip G. Schrag is on 
leave, working with the U. S. 
Disarmament Agency.

LDF cooperating lawyers are in public 
office. Henry L. Marsh, III is Mayor of 
Richmond, Ernest N. Morial is Mayor of 
New Orleans, while former staff 
attorneys, Frank E. White holds the 
position of Associate Director, Domestic 
Policy Staff, The White House and Drew 
S. Days, III now directs the Civil Rights 
section of the Department of Justice. U. 
W. dem on is an Alabama State Senator, 
William Randall is in the Georgia 
legislature, Laurence Jackson and 
Eugene Thibodeaux have been public 
prosecutors. Arthur McFarland is a 
South Carolina city judge, and Gabrielle 
Kirk MacDonald has been nominated for 
a federal judgeship in Texas.

Soon after Brown II, a roster of 
leading American social scientists, 
historians, educators, and other 
specialists who had consulted with—

and/or had testified for— the LDF 
numbered 77. Among those especially 
valuable as sources and collaborators 
were Professor Kenneth B. Clark of the 
City College of New York, Presidents 
Horace Mann Bond of Lincoln 
University and Charles S. Johnson of 
Fisk University, and Professor Alfred 
McClung Lee of Brooklyn College.
Dean Charles H. Thompson of Howard 
University, editor of the Journal of Negro 
Education, provided a flow of rigorous 
analysis.

The noted historian John Hope 
Franklin and the sociologist E. Franklin 
Frazier of Howard were consistently 
helpful, as were psychologist Otto 
Klineberg, Dean Whitney M. Young of 
the Atlanta University school of social 
work, later to become internationally 
famous as head of the National Urban 
League, Harvard professors Gordon W. 
Allport and Jerome S. Bruner,
Princeton’s Hadley Cantril, Drs. Hugh 
and Mabel Smythe of Brooklyn College, 
and scores more.

The calibre of LDF non-legal 
consultants and witnesses has exerted 
strong influence on court decisions in 
complex issues affecting schools, 
employment, housing, health, and other 
basic areas in the quality of life.

The Federal District Court decision in 
Swann ordered adoption of the busing 
plan devised by Dr. John A. Finger of 
Rhode Island College, who has since 
been chosen by courts to serve as their 
impartial arbiter, and has appeared as an 
LDF consultant.

LDF consultant Dr. Gordon Foster of 
the University of Miami drew up the 
plan that the District Court ordered used 
to desegregate Springfield, Illinois 
schools in 1976. He split the schools into 
four clusters.

Michael J. Stolee, Dean of the School 
of Education at the University of 
Wisconsin, testified in the Atlanta and 
Denver desegregation cases.

Dr. Richard S. Barrett, the industrial 
psychologist whose special expertise is 
test validation, has testified in a number 
of employment cases for LDF. Test 
validation is the process determining that 
a test performs some useful function and 
demonstrating ‘‘that the test is measuring 
what it is supposed to be measuring.”

With Dr. Barrett’s help, LDF pioneered 
in establishing the law which makes it 
illegal to use a test which has a disparate 
impact on blacks but does not predict 
ability to do the job.

Dr. John S. De Cani, chairman of the 
University of Pennsylvania’s department 
of statistics, has made analyses of 
discrimination in selection of juries. 
Professor Hans Zeisel, Emeritus 
Professor of Law and Sociology at the 
University of Chicago Law School, has 
reported on juror attitudes toward the 
death penalty. The demographer Karl E. 
Taeuber testified that desegregation need 
not cause white flight.

In the Detroit police case Patrick J. 
Murphy, head of the Police Foundation 
and former New York City Police 
Commissioner, voiced his conviction that 
public safety is strengthened with 
employment of black officers in 
responsible leadership posts. Alan 
Fechter, the Urban Institute labor market 
analyst now with the National Science 
Foundation, projected how many black 
lieutenants would be working if the 
affirmative action program had begun 
sooner, and had it been conducted in 
keeping with its own criteria.

In the Georgia prison case of Guthrie 
v. Ault, the Fund brought in Dr. Kenneth 
Babcock, the first chairman of the Joint 
Commission on Hospital Accreditation 
and prison health consultant to the 
Department of Justice; Dr. Edward 
Delayne Robinson of Boston University 
School of Medicine who directs 
treatment for drug abuse at the Charles 
Street Jail, and Donald Goff, warden of 
the New Jersey Juvenile Detention 
Center. As a result of these LDF 
consultants’ testimony the prison 
authorities made changes in conditions 
even before the first rounds of 
adjudication by the court.

Perhaps the largest infusion of trained 
legal talent to the leadership of the 
Fund’s cooperating attorneys came about 
with and through its own legal training 
programs.

50



Scholars and Fellows
The Herbert Lehman Education Fund

“It meant a chance to get a quality 
education, and it means knowing all 
the time that there are those who care 
enough to give so that others may be 
educated.”
— an alumna who received a Herbert Lehman 

Education Scholarship, now an accountant in 
Oxford, Mississippi

The LDF had overcome segregation 
barriers to the public colleges and 
universities in the South, but financial 
barriers remained. To find money that 
would help black students attend newly- 
desegregated colleges, the Herbert 
Lehman Education Fund was initiated in 
1964. The Fund memorialized the name 
of former Governor and U.S. Senator 
Lehman who was one of LDF’s seven 
incorporators.

Since then well over 1,700 students 
have received scholarship awards. A 
recent sampling of less than two hundred 
of the graduates showed 92 attorneys 
and three judges, 15 in the medical 
profession, 12 professors, and 12 
corporate executives.

The Earl Warren Legal Training 
Programs: In 1954 there were 248
black members of the bar in all of the 
South. Mississippi had one.

The explosive growth of civil rights 
litigation after the Brown decision made 
the need for substantially more black 
lawyers imperative.

The Lehman Fund awarded some law- 
school scholarships in the 1960’s, but 
substantial increase demanded a more 
concentrated, intensive effort. In 1972 
the LDF established the Earl Warren 
Legal Training Program, Inc. With the 
former Chief Justice’s blessing, the 
Legal Defense Fund board of directors 
launched a two-pronged attack on the 
problem. •

•  Law School Scholarships. The
combined Herbert Lehman and Earl 
Warren programs have awarded nearly 
1,000 grants to law students at 81 
accredited law schools. The great 
majority who have completed their 
professional training now practice law 
in the South. They are an important 
reservoir of talent for elected and 
appointed civic office. Pursuing their

careers in cities and towns that in many 
instances have seen few black 
professionals, they earn respect of the 
white community while providing 
leadership among blacks and serving 
as models for youngsters.

•  The Earl Warren Fellows. The
Fellowship program selects a few law 
school graduates of highest promise each 
year. It brings them to the LDF office, or 
to a cooperating Fund attorney, for an 
intense one-year internship working on 
civil rights cases. Each Fellow is then 
given financial help to rent and equip an 
office and start a law library, and 
receives a diminishing income subsidy 
for three years.

This assistance enables the Fellow to 
accept civil rights cases that can drag on 
through numerous appeals and delays, 
most of them paying very little, if 
anything, to the attorney. LDF staff and 
cooperating attorneys stand ready to join 
the Fellow as Co-counsel when needed 
and advisable.
What does this support mean to the 
newly-fledged lawyer?

Arthur C. McFarland— who came 
back to Charleston, South Carolina in 
1974 as an Earl Warren Fellow and has 
since become a Municipal Judge—states: 
“ I had been out of law school less than a 
year, and there 1 was as an intern arguing 
a case in Federal Court with some of the 
best lawyers in the country. The 
experience really got me going. I said 
‘hey I’m on my way to being a top-notch 
lawyer.' The guys I graduated with were 
probably being stuck in some Wall Street 
firm’s law library.”
What does this mean to the white 
community?

One late afternoon in Little Rock, 
Arkansas in the conference room of the 
city school board four men—three of 
them white, one black—hunch intently 
over a large map that is crisscrossed like 
a crazy gameboard with vari-colored 
county lines, district lines, racial- 
residential lines.

The white men are School Board 
members. The black man is John Walker, 
a 1964 Yale Law School graduate, who 
came home to Arkansas as an LDF 
Fellow and kept the Board in court for 
seven years, demanding that it integrate

Little Rock schools. The years of shared 
arenas and bared passions have 
engendered a familiarity that is almost a 
camaraderie among them. Today they 
converse over the map, talking quietly 
about moving some of these kids across 
here, and taking these kids from over 
there ... their gestures like those of 
gamblers sliding a pile of chips.
Together they are trying to elaborate the 
formula, to perfect the plan, to achieve 
for the schools the greatest racial, 
economic, and social heterogeneity— 
a plan for which John Walker is 
given credit as the “ mastermind.”

What does this mean to the black 
community?

“There’s no question that we’ve 
created lots of job opportunities for 
blacks, just because people knew we’d 
sue if they didn’t open things up,” 
Walker explains during a brief recess 
during the deposition he is taking from a 
young white woman describing her rapid 
rise in a local bank’s hierarchy, the 
bank’s counsel sitting next to her. Walker 
is suing the bank.

“All the banks have hiring quotas now, 
and in the last few years their percentage 
of black employees has increased from 
just over one per cent to nearly 20 percent.

“ I believe that our work has helped 
create an attitude here among black 
people—that if white folks try to push 
them around they’ll sue,” he adds. 
“They’re coming to believe that the 
law can be their ally instead of their 
oppressor.”

There is no question that Joe Hudson 
has filled a void of leadership and 
expertise in Gulfport, Mississippi. As 
John Simmons, president of the Pearl 
River County NAACP, explains, “ Before 
Joe came to Mississippi, we had nobody 
to help us. We had all these issues we 
knew we had to deal with— all kinds of 
school things and voting projects—but 
we just didn’t know how to go about it. 
I’m a diesel mechanic ... I don’t know 
anything about ‘show cause’ orders.”

To the black community, Hudson is 
like a son, a father, a missionary, a 
warrior. He is the one who can 
effectively confront what is, and who 
can articulate what could be. As Dr.

51



Felix Dunn, a prominent black 
spokesman in Gulfport, explains it, 
“ We’re proud of that boy; he’s our rising 
star. He gives us hope because he knows 
how to deal with the system in s words, 
on its terms,.. they can’t throw him out 
the door.”

Hudson has provided free legal 
counsel to the major black civic clubs 
in the area, and his office often serves 
as a place to draft and polish a letter, 
resolution, or statement setting forth 
the positions of black organizations.

“These civic groups consist of good, 
civic-minded people, but they often lack 
the organizational or verbal skills to 
market their positions effectively,” 
Hudson says. “ I'm  trying to make them 
realize the tremendous potency of an 
organized group in achieveing social 
change.”

Hudson is perpetually involved in the 
issues of the area, serving on ad hoc 
committees to get a black on the school 
board, obtain legal services programs, 
develop minority business funding 
opportunities and affect school 
consolidation deliberations.

“ In general, I think of myself as 
the lawyer for these causes, not the 
spokesman,” Hudson explains. “People 
are tired of rhetoric, but nothing will 
ever get done unless someone is willing 
to be on the plodding end of things, to 
deal with the day to day drudgery of 
reform.”

Engaging in civil rights litigation 
is another way in which Hudson has 
assumed responsibility for the 
painstaking requisites of change.

The Earl Warren scholars and fellows 
have had an impact out of all proportion 
to their numbers. (The Earl Warren 
scholarship program has added more 
than 500 black lawyers to the legal 
community— 80 percent of them in the 
South— who now work in government, 
business, and general legal practice. 
Eighty-five Earl Warren Fellows now 
practice law throughout the South.)
As judges, assistant United States 
Attorneys, elected and appointed 
officials in policy-making posts— and 
in the day-in, day-out battle for the 
realization of rights—they provide 
important black leadership throughout 
the South.

52



The Legal Defense Fund as Model

When any person is treated unjustly, 
the rights of all people are vulnerable. 
Guarantees of opportunity for any 
American can be no more secure than 
their application to every citizen. As the 
Fund’s litigation campaign succeeded, 
the rights defined by courts in its cases 
had to apply to all.

Robert B . McKay, former Dean of 
New York University Law School, 
director of the Aspen Institute Program 
on Justice, Society and the Individual, 
has written that even though the 1954 
Supreme Court decision in Brown v. 
Board of Education “ was eloquent and 
straightforward,” even 

“ the clearest constitutional mandate is 
not self enforcing ... every step along 
the way, from the express ruling 
through various steps of legislative and 
administrative action, can and often 
does serve as a basis for challenge by 
opponents. If the guard is let down, 
the constitutional principle is again at 

' risk. To protect against this hazard 
requires commitment, competent 
personnel, and considerable financial 
resources.

“ Until at least the mid-1960s the 
NAACP Legal Defense and 
Educational Fund stood almost alone 
in this effort. Although the LDF, as 
it is popularly known, had as its 
principal mission the protection of 
blacks against all forms of racial 
discrimination, it recognizes that 
success in this work might well be 
jeopardized if it were not accompanied 
by efforts to secure protection for

other groups against whom 
discrimination was being practised 
on grounds of race, religion, ethnic 
background, or sex. Accordingly, the 
LDF has all along been a champion of 
all who suffer from discrimination.” 
From the Fund’s earliest years its 

lawyers took cases that sought justice 
for native Americans, Hispanics, and 
minorities other than blacks. In 1968, 
the LDF helped formulate plans for and 
secured funds to establish the Mexican- 
American Legal Defense Fund 
(MALDEF).

Fund staff attorneys took leadership in 
working closely with new organizations 
modeled after the LDF. Vilma Martinez, 
now the President of MALDEF, and 
Margaret Fung, of the Asian-American 
Legal Defense and Educational Fund 
were Fund colleagues; their statements 
appear in this publication.

The Puerto Rican Legal Defense and 
Education Fund opened its office in New 
York in mid-1972. It initiates many of its 
own cases and serves as co-counsel with 
the LDF and other public service law 
groups.

Marion Wright Edelman, one of the 
Fund’s first legal interns, founded the 
Childrens Defense Fund in 1973 to 
provide systematic, long-range advocacy 
for the nation’s children.

Michael Meltsner, former LDF 
assistant special counsel, served as 
co-director of Columbia Law School’s 
clinical Legal Assistance Resource; he is 
now Dean of Northeastern Law School; 
Elizabeth Bartholet and Deborah

Greenberg, former LDF lawyers, became 
directors of the Legal Action Center of 
the City of New York, launched by the 
VERA Institute of Justice; now with its 
own board of directors, the Center helps 
ex-addicts and former prisoners get 
fair treatment, and works on test 
cases limiting public employers’ 
discriminatory practices against former 
drug offenders. LDF cooperates with 
The Women’s Law Fund, organized 
in Cleveland in 1971 and works with 
other women’s rights groups to identify 
patterns of sex discrimination in public 
and private employment and advises on 
litigation programs. Under Jean Fairfax’s 
direction, the LDF’s Division of Legal 
Information and Community Services 
has convened national workshops 
seeking to increase the number and 
effectiveness of minority women 
lawyers.

Stirrings Elsewhere
President Carter’s International Human 

Rights Program has its roots deep in the 
historical values of our civilization. In 
more immediate terms it may be traced, 
of course, to the Brown decision which 
demonstrated to the world that human 
rights progress, under law, is indeed 
feasible. Regularly over the years 
lawyers and judges from around the 
world visit the office of the Legal 
Defense Fund to discuss our programs 
and policies, and learn whether they 
can be adapted to their own situations.

53



The British home office has sent a 
representative to study American race 
relations to see if what has been done 
here offers guidance for solving Britain’s 
growing racial problems. A great deal of 
this time was spent at LDF learning how 
private organizations litigate to effect 
social change. In 1978, Jack Greenberg 
visited South Africa and consulted on 
establishment of a public interest law 
firm, the Legal Resources Center, which 
is bringing test litigation involving labor, 
housing, consumer and pass law issues. 
Public interest law firms have been 
established in Kenya and Colombia.

At the 25th anniversary celebration of 
Brown v. Board of Education human 
rights advocates from Tanzania, India, 
Jamaica, the Sudan, South Africa and 
elsewhere will discuss what LDF’s 
experience means to them.

Vine Deioria, Jr. is Chairman of the Institute for 
the Development of Indian Law, author of 
“Custer Died for Your Sins” and “Behind the 
frail of Broken Treaties,” and former Executive 
Director of the National Congress of American 
Indians.

The Brown Strategy
Nearly a decade and a half ago the 
political leaders of the American Indian 
community met with Jack Greenberg to 
discuss the strategy employed by the LDF 
Fund in bringing about the historic Brown 
decision. Since that time a number of 
Indian legal organizations have been 
created to deal with the great mass of 
complex questions which make up the field 
of Indian law. Since we are still in the 
initial stages of exploring the parameters of 
this field our record of success is uneven 
but consistently aggressive in bringing 
questions to a degree of sharpness for 
resolution.

Looking again at the program of the 
Fund I am still impressed with the 
sophisticated blend of jurisprudence, social 
science, and law that produced the most 
fundamental decision in the history of 
American law. The careful analyses of 
questions of race, equality, and citizenship 
rights which composed the Brown strategy 
remain a goal for us yet today in resolving 
some of the pressing social issues of our 
generation. Rarely do we find today the 
ability to frame and understand basic 
political and jurisprudential problems 
which remain in the realm of half 
conscious ideas and prevent the realization 
of full legal rights for all citizens which 
Brown illustrates. That this program 
remains the premier instance of 
constructive social change is eloquent 
testimony to its philosophical and 
constitutional validity.

All groups benefitted from the Brown 
decision. Providing substance for 
constitutional phraseology which had long 
lacked an ability to protect human rights, 
the Brown decision produced an era of 
social progress and concern for human 
rights unprecedented in American history. 
Within this context of maturity substantial 
gains have been made by every identifiable 
minority in this country. It is therefore 
proper and fitting that on this anniversary 
we take heart from the successes of the 
past and see in them a command for move 
forward on the march to full social and 
political equality and opportunity for 
all people.

Vine DeLoria

Margaret Fung is Executive Director of the 
Asian-American Legal Defense Fund.

The twenty-fifth anniversary of Brown v. 
Board of Education provides an 
appropriate occasion to measure the gains 
achieved by racial minorities in America. 
For Asian-Americans, the most blatant 
forms of discrimination— the internment of 
Japanese-Americans during World War II, 
segregated schools for Chinese and 
Japanese, racially exclusionary 
immigration quotas, racial restrictions on 
citizenship— have been abolished.
However, other more subtle forms of 
racism persist, despite the widely-held 
misconception that Asian-Americans have 
risen above discrimination to success in

54



our society. As a result of the civil rights 
movement and the war in Vietnam, Asian- 
Americans have come to recognize the 
importance of dispelling myths about the 
Asian “model minority” and the need to 
draw attention to our society’s neglect of 
Asian-American concerns— especially 
those of the poor, the non-English-speaking 
and the newly-arrived immigrants.

Following the example of the NAACP 
Legal Defense Fund, the Asian-American 
Legal Defense and Education Fund 
(AALDEF) was founded in 1974 to protect 
the civil rights of Asian-Americans 
through community education programs 
and through litigation in the areas of 
employment, housing, immigration and 
alien rights. In addition, AALDEF has set 
up recruitment programs designed to 
increase the number of Asian-American 
attorneys; internship programs to train 
Asian-American law students for 
community oriented legal work; and a 
network of multilingual cooperating 
attorneys to insure that Asian-Americans 
have access to the courts. These programs, 
established with the encouragement and 
assistance of the NAACP Legal Defense 
Fund, represent only the first steps toward 
securing full participation for Asian- 
Americans in all aspects of our society. 
However, the NAACP Legal Defense Fund, 
with its impressive array of legal victories 
and innovative educational programs, has 
demonstrated the enormous impact that 
the law can exert to further equal rights 
for all racial minorities. Although 
AALDEF is still a young organization, we 
hope to confront the unique legal issues 
facing the Asian-American community 
with the same creativity and dedication 
that have consistently characterized the 
NAACP Legal Defense Fund’s efforts over 
the past four decades.

Margaret Fung

Father Theodore M. Hesburgh, C.S.M., 
President of the University of Notre Dame, 
served as Chairman of the U.S. Commission on 
Civil Rights.

Our country’s civil rights record made 
great improvements during the sixties, but 
progress slowed down and flattened out 
during the seventies. Twenty-five years ago 
in Brown v. Board of Education, the 
Supreme Court upheld the Fourteenth 
Amendment in the clearest possible way. 
Twenty-two years ago, Congress passed 
the first of two Voting Rights Acts. It 
is now fourteen years since it forbade 
discrimination in jobs, public 
accommodations, and virtually every 
aspect of life. Yet we are still reluctant 
to obey our own laws.

As a U.S. Commission on Civil Rights 
member from 1957 until 1973, I kept 
learning about, and helped make public, 
evidence of widespread noncompliance. 
North and South, city schools were and 
still are overwhelmingly segregated. 
Unemployment and job discrimination are 
still harsh facts of life for millions of black 
citizens. Decent housing for all remains an 
empty promise for many minorities.

The Commission is an advisory body. It 
lacks power to put recommendations into 
effect. By making facts known, it serves as 
a conscience. In 1967 we reported how, in 
our 20 largest cities, school segregation 
was severe and growing worse. In 1974 it 
told how in five states Chicano children 
need better schooling through bilingual 
programs, more Chicano teachers, and 
prohibition of at-large school board 
elections. The Commission also called for 
actions in housing that year; subsidies and 
zoning reforms allowing blacks to live in 
suburbs, real law enforcement by HEW

and the Justice Department, and state 
agencies with power to override barriers to 
open housing as a condition for HUD 
grants.

The late Vivian Henderson, President of 
Clark College, testified before another 
pertinent federal advisory Commission— 
appointed to study causes of riots after the 
murder of Dr. King. “No one can deny 
that Negroes have benefited from civil 
rights laws and desegregation in public life 
in one way or another,” he said, “The fact 
is, however, that the masses of Negroes 
have not experienced tangible benefits 
in a significant way ... There have been 
important gains. But the masses of 
Negroes have been virtually untouched 
by those gains.”

The white majority hears about court 
decisions, laws, the increase in black 
college enrollment, and the growing black 
middle class. It assumes, in ignorance, that 
problems are largely solved. The black 
minority sees laws unenforced, the dismal 
state of urban public schools, black youth 
unemployment as high as 50%, and knows 
that major problems still fester.

The Legal Defense Fund’s patient, 
relentless litigation is in large part 
responsible for fundamental strides 
forward. If we add to its resolute 
effectiveness with a renewed national 
commitment, the future for equal justice 
will visibly brighten.

Theodore Hesburgh

55



from each other; we make progress 
together.

Vilma Martinez

Vilma Martinez is President of the Mexican - 
American Legal Defense Fund.

Throughout the ten years’ work of the 
Mexican-American Legal Defense and 
Educational Fund (MALDEF), we have 
looked to the NAACP Legal Defense Fund 
as an important forerunner and an 
essential supporter.

Jack Greenberg, LDF’s Director- 
Counsel, played a critical role in 
MALDEF’s founding. He helped us obtain 
our First grants; he helped us to organize; 
and he served as an important advisor 
on our board.

LDF-sponsored civil rights legal training 
institutes held in Lake Tahoe and Bandera, 
Texas before MALDEF’s founding in 1968, 
served as important training tools for 
Chicano lawyers throughout the 
Southwest. For the First time, a broad 
range of Mexican-American attorneys were 
given the chance to discuss their common 
civil rights legal concerns and to gain 
valuable information about civil rights 
litigation techniques.

LDF-trained attorneys have served as 
valuable members of our staff and I, 
myself, received my first legal experience 
as an LDF staff attorney. Precedents and 
strategies developed by LDF’ have been 
useful to MALDEF and our joint efforts 
over the years have led to important 
reforms.

Today many of our concerns are 
identical: segregated schools, employment 
discrimination, at-large elections that 
minimize the minority vote, police 
brutality and other issues. Like LDF, we 
are at work to increase the number of civil 
rights lawyers among our people.

Victories won by either organization 
benefit the work of both. We draw strength

56



The Legal Defense Fund Today

“For Thurgood Marshall, the articulate, 
immensely brainy Coleman was a gem of special 
magnitude in the collection of superior intellects 
with which he was now surrounding himself.”

Richard Kluger in 
Simple Justice

William T. Coleman, Jr.
An ardent defender of civil rights, 
William T. Coleman, Jr. was one of the 
authors of the legal brief in Brown v. 
Board of Education. A summa cum 
laude graduate of the University of 
Pennsylvania, a magna cum laude 
graduate of Harvard Law School who 
had served as a Harvard Law Review 
Editor, Coleman was law clerk to 
Justice Felix Frankfurter. He has had 
a distinguished career in law, business 
and public service that includes being 
Secretary of Transportation and holding

advisory or consultant positions to five 
former Presidents of the United States. 
Today, he is a senior partner in the 
law firm of O’Melveny & Myers of 
Washington, D.C., Los Angeles, 
California and Paris, France. He is also 
Chairman of the Board of the NAACP 
Legal Defense and Educational Fund, 
Inc., on which board he has served for 
almost all of his legal career.

As Felix Frankfurter’s law clerk, he 
was the first black lawyer ever to clerk 
in the High Court. When Coleman 
left Frankfurter’s service, the Justice 
wrote him: “ What 1 can say of you with 
great confidence is what was Justice 
Holmes’ ultimate praise of a man: ‘I bet 
on him.’ I bet on you, whatever choice 
you may make and whatever the Fates 
may have in store for you.”

In addition to serving as President 
Ford’s Secretary of Transportation from 
March 1975 to January 1977, Mr. 
Coleman has been a member of the U.S. 
delegation to the 24th session of the 
United Nations General Assembly in 
1969; member of the National 
Commission on Productivity from 
1971-1972; member of the Price 
Commission from 1971-1973; consultant 
to the U.S. Arms Control and 
Disarmament Agency from 1963 
to 1975; senior consultant and 
counsel to the President’s Commission 
on the Assassination of President 
Kennedy in 1964; and a member of 
President Eisenhower’s Committee on 
Government Employment Policy from 
1959 through 1961. In 1965 he was

retained by Governor William Scranton 
of Pennsylvania to assist in 
removing racial restrictions at 
Girard College in Philadelphia.

Mr. Coleman also serves on the Board 
of Directors of I.B.M.. Pan American 
World Airways, PepsiCo., AMAX, Inc., 
the American Can Company, Chase 
Manhattan Corporation, INA 
Corporation, and the Philadelphia 
Electric Company. He is a trustee of 
the Rand Corporation, the Brookings 
Institution, the Philadelphia Museum of 
Art, of which he is also Vice President, 
and is on the Board of Overseers of 
Harvard University, is Vice Chairman 
of the Committee to Visit the Harvard 
Law School, a member of the Board 
of Overseers of the University of 
Pennsylvania Law School, and a 
member of the board of the Smithsonian 
Associates.

57



“ I feel there are very few people you meet in 
life that you would be willing to trust with 
everything you have ... I feel that way about 
Julius... ”

Dr. Raymond Wheeler, 
former President 

Southern Regional Council

Julius LeVonne Chambers
Julius LeVonne Chambers, often 

described as mild-mannered and serious- 
minded, has built an impressively active 
and eventful civil rights legal career. At 
12 years old he knew he wanted to be a 
lawyer. Until his college years, he 
attended segregated public schools.

Julius Chambers is President of the 
NAACP Legal Defense and Educational 
Fund. Prior to his election as the Fund’s 
President, he served as a member of the 
Fund’s Board of Directors. Chambers’ 
affiliation with the Legal Defense Fund 
dates back to the start of his legal career 
when he became the first of 89 interns 
given special training in civil rights law 
by the Legal Defense Fund. He is an 
honors graduate of the University of 
North Carolina Law School, where he 
was Editor-in-Chief of its Law Review. 
Among his many scholastic 
achievements are an LL.M. degree from 
Columbia University and Honorary 
LL.D degrees from North Carolina 
Central University and Johnson C. Smith 
University.

After Julius Chambers’ one-year 
internship in civil rights law with the 
Legal Defense Fund, he returned to 
North Carolina and established the law 
firm of Chambers, Stein and Ferguson.

North Carolina’s first interracial law 
firm. He filed numerous law suits to 
enforce compliance with civil rights law 
in his home state. He quickly became a 
force to be reckoned with as he argued 
and won cases in school segregation, 
employment discrimination and the 
exclusion of blacks from juries. He is 
best known for his role in the Legal 
Defense Fund’s fight to integrate 
Charlotte public schools. Chambers 
argued before the Supreme Court Swann 
v. Charlotte-Mecklenburg Board of 
Education, building on the groundwork 
of Brown v. B oard of Education. Swann 
was the first case to require dismantling 
of segregation root and branch. In 1971 
his office was gutted by fire. Terroristic 
attacks on Julius Chambers date back to 
1965 when his home and car were 
bombed while he and his family were 
asleep.

Julius Chambers has received many 
honors. Columbia University in 1971, in 
recognition of his civil rights leadership, 
awarded him the University Medal of 
Excellence.

“Greenberg has risen to become perhaps the 
most knowledgeable and successful civil-rights 
lawyer in America.”

Richard Kluger in 
Simple Justice

Jack Greenberg
No lawyer, still in active practice in 

the United States, has played as 
significant a role in the development of 
civil rights law as Jack Greenberg. A 
recent recognition of his contribution 
came in October 1978 when he was one 
of three recipients of the second 
Grenville Clark Award for public 
service.

The N ew  York T im es, in an editorial, 
commented on his achievement: “The 
Grenville Clark Prize has just been 
given to three men who in separate 
ways have fought the injustice of 
racism: the Rev. Theodore Hesburgh, 
president of Notre Dame University; 
Jack Greenberg, Director-Counsel of 
the NAACP Legal Defense Fund; and 
Sydney Kentridge, the South African 
lawyer who appeared for Stephen 
Biko’s family at the inquest into his 
death. The priest who speaks for a 
universal conscience, the American 
lawyer who works through a 
responsive legal system to end 
discrimination, the South African 
advocate who stands up to an 
overwhelming state: This year’s 
awards attest to the power of the 
committed individual.”

Its only previous recipient has been 
Jean Monnet.

58



In 1949, a year after graduating from 
Columbia University School of Law,
Jack Greenberg joined Thurgood 
Marshall as an associate and 
immediately began work on cases that 
integrated law schools and graduate 
schools (Sweatt v. Painter and McLaurin 
v. Oklahoma State Regents). In 1954, he 
was the lawyer who argued the Delaware 
portion of Brown v. Board of Education 
After Brown, he tried cases which struck 
down segregation in public parks, 
beaches and transportation and racial 
discrimination in voting, jury selection 
and criminal trials.

In 1961, when Thurgood Marshall was 
appointed to the U.S. Court of Appeals 
for the Second Circuit, LDF’s Board of 
Directors elected Jack Greenberg 
Director-Counsel, a post he has held 
since then. Soon after his election. 
Greenberg and the LDF staff were 
confronted with the legal challenges 
springing from the civil rights movement 
and represented thousands of civil rights 
demonstrators, including Dr. Martin 
Luther King, Jr., and now Ambassador 
to the United Nations, Andrew Young.

In 1967, Jack Greenberg established a 
coordinated national drive to abolish the 
death penalty because of its racially 
discriminatory impact. Since the effort 
began— with the exception of Gary 
Gilmore who wanted to die— it has 
resulted in a moratorium on executions.

The employment discrimination 
program developed by LDF has won 
landmark cases in the field—securing 
job rights for thousands of minority 
workers. In 1971, Greenberg argued and 
won Griggs v. Duke Power Company 
before the Supreme Court, guaranteeing 
black workers equal employment 
opportunities.

Jack Greenberg has developed the 
work of the Fund in other areas, 
including assertion of the rights of poor 
persons. He persuaded the Ford 
Foundation to establish the Mexican- 
American Legal Defense and 
Educational Fund, with a grant of $1 
million.

In 1972, LDF established the Earl 
Warren Legal Training program which 
has helped 1,121 black law students 
complete law school.

In August 1978 he was invited to 
Johannesburg, South Africa, where he 
met with lawyers interested in starting a 
public interest law firm. He advised 
them on practical issues of case 
selection, staffing, financing and 
budgets, and shared his experiences and 
thoughts on the viability of such a 
program. The firm has recently begun 
functioning.

Under Jack Greenberg’s leadership, 
LDF has grown from half a dozen 
lawyers to today’s staff of 25 who, 
working with a network of 400 
cooperating attorneys, handle 
approximately 1,000 cases.

“Yale Law School graduate James Madison 
Nabrit, I I ! ... had been weaned on the plans that 
brought The School Desegregation Cases to the 
Supreme Court__ ”

Michael Meltsner in
Cruel and Unusual

James M. Nabrit III
There was never any question that 

James M. Nabrit III would be a civil 
rights lawyer. As an undergraduate at 
Bates College in Lewiston, Maine, he 
wrote his thesis on school integration 
law. Three months after he entered Yale 
Law School in the Fall of 1952, he sat in 
the United States Supreme Court and 
listened to his father, James M. Nabrit,
Jr., argue the District of Columbia 
portion of Brown v. Board of Education 
and the companion cases.

In 1959 he joined Thurgood Marshall, 
Jack Greenberg, Constance Baker 
Motley and Elwood Chisolm who 
constituted the entire Legal Defense 
Fund legal staff. He began work 
immediately on cases that would result in 
significant advances in civil rights law.

Michael Meltsner. in his book “Cruel 
and Unusual,” describes some of the 
qualities that Jim Nabrit brought to LDF: 
“ an imposing technical skill” combined 
with “great prudence. At free-wheeling 
strategy sessions, Nabrit defined the 
limits of the possible ... his was the hard 
head that reminded all that nothing could 
be accomplished without craft.”

He participated in trials or appeals in 
school desegregation cases involving 
communities in North Carolina,

59



Louisiana, Arkansas, Florida, Georgia, 
Alabama and Tennessee— handling the 
appeal in the first U. S. Supreme Court 
decision banning racial segregation of 
public school teachers in Richmond, 
Virginia. In fact, he would spend a good 
deal of time in Virginia in the next few 
years working with Spottswood W. 
Robinson, III and Frank D. Reeves. 
Nabrit represented the first black 
children to actually gain admission to 
white public schools in Virginia in 1959.

The State of Virginia attempted to 
immobilize LDF with various provisions 
in the “ massive resistance” legislation 
passed after Brown. Nabrit successfully 
fought the state’s efforts to get a list of 
LDF’s Virginia contributors. At the same 
time, he was working on the sit-in and 
freedom-rider cases, over 40 of which 
went to the Supreme Court, virtually all 
of them won by LDF.

He participated in Simkins v. Moses 
Cone M emorial H ospital in which the 
Supreme Court invalidated the 
“ separate-but-equal” clause of the Hill- 
Burton Act and handled the trial and 
appeal of Lankford v. Gelston— the first 
case in which an injunction was issued 
against a city police force (Baltimore, 
Maryland) to enforce the Fourth 
Amendment prohibition against a pattern 
of illegal searches of homes. In all, he 
has orally argued 11 cases in the U. S. 
Supreme Court establishing principles 
and moving civil rights law forward in 
several areas. In education, he argued 
Monroe v. Board of Commissioners of 
Jackson, Tennessee, which established 
the principle of affirmative action for 
school desegregation plans; Swann v. 
Charlotte-Mecklenburg Board of 
Education in which Chief Justice Burger, 
writing for a unanimous Court, stated 
“ . . . bus transportation has long been a 
part of all public educational systems 
•and it is unlikely that a truly effective 
remedy could be devised without 
continued reliance on it.” ; and Keyes v. 
School D istrict No. 1, Denver, Colorado, 
the Supreme Court’s first non-Southern 
school decision which ordered 
desegregation of the entire Denver public 
school system.

Jack Greenberg says of him: “He is 
indispensable at LDF. The depth of his 
knowledge, his good judgments, and his

profound dedication have made LDF the 
superb law firm it is.”

He has been Associate Counsel of the 
Legal Defense Fund since 1965.

National Officers

Chairman of the Board
W ill ia m  T . C o le m a n ,  J r  

President
J u l iu s  L e V o n n e  C h a m b e rs  

Vice President 
W ile y  A . B ra n to n

Secretaries
G e o r g e  D . C a n n o n  
C o n s ta n c e  L in d a u

Board of Directors

M rs . H e n r y  A a ro n  

M rs . F a r ro w  R . A lle n  

E le a n o r  S . A p p le w h a ite  

J o h n  T. B a k e r  

M rs . R o b e r t  S . B e n ja m in  

H e le n  L . B u tte n w ie s e r  

R a m s e y  C la rk  

W il l ia m  K , C o b le n tz  

O s s ie  D a v is  

P e g g y  C .  D a v is  

A d r ia n  W . D e W in d  

A n th o n y  D o w n s  

C h a r le s  T. D u n c a n  

M a r ia n  W rig h t E d e lm a n  

C h r is to p h e r  F. E d le y  

H e le n  G . E d m o n d s  

D a v id  E . F e l le r  

C la r e n c e  C ly d e  F e rg u s o n  

H . M in to n  F ra n c is  

N o rm a n  F ra n c is  

M a rv in  E . F ra n k e l  

Jo h n  H o p e  F ra n k l in  

A . G . G a s to n  

R o b e r t  W . G ilm o re  

C h a r le s  V. H a m il to n  

E lio t  H u b b a r d , III 
C a th e r in e  H u b e r  

F ra n k  N . J o n e s  

J e t ta  N . Jo n e s  

A n n a  J u l ia n  

H a r ry  K a h n

N ic h o la s  D e B . K a tz e n b a c h  

A m a ly a  K e a rs e  

R o n a ld  P. K le in  

L e w is  E . L e h rm a n  

Jo h n  G . L e w is ,  Jr.

G e o r g e  E . M a rs h a l l ,  Jr. 

R o b e r t  M c D o u g a l ,  Jr.

M rs . A lb e r t  W . M e rc k  

L . D . M il to n  

P au l M o o r e ,  Jr.

E . F re d e r ic k  M o r ro w  

Ja m e s  M . N a b r i t ,  Jr.

’Treasurer
L o is  C o w le s  

Director-Counsel
Ja ck  G re e n b e r g

Associate Counsel
Ja m e s  M . N a b r i t ,  I II

M rs . E ll io t t  M .
O g d e n , Jr.

E s te l le  M . O s b o rn e  

R o b e r t  S . P o tte r  

R o b e r t  H . P re is k e l 

H a r r ie t  R a b b  

M a x w e ll  M . R a b b  

F. F. R a n d o lp h ,  Jr.

M rs . S a m u e l  I . 
R o s e n m a n  

H a rv e y  C .  R u s s e l l  

B a y a rd  R u s t in  

W il l ia m  H . S c h e id e  

O rv i l le  H . S c h e ll  

B e rn a rd  G . S e g a l 

G e o r g e  S im k in s ,  Jr. 

M ic h a e l  I . S o v e rn  

A s a  T. S p a u ld in g  

S h ir le y  V e rre tt 

J a m e s  V o re n b e rg  

C h a u n c e y  L . W ad d e ll 

J o h n  W . W a lk e r  

W il l ia m  O . W a lk e r  

R o b e r t  C . W e a v e r  

M . M o ra n  W e s to n  

R o g e r  W ilk in s  

E . T h o m a s  W il l ia m s , Jr. 

C la u d e  Y o u n g

60



Staff*

Counsel
N e w  York Office 
Director-Counsel
Jack  G re e n b e rg

Associate Counsel
Ja m e s  M . N a b r i t ,  I II

First Assistant Counsel
C h a rle s  S te p h e n  R a ls to n  
L o w e ll D . J o h n s to n

Assistant Counsel
Jo e l B e rg e r  

J o h n  C h a r le s  B o g e r  

R o n a ld  L . E ll is  

D e b o ra h  F in s  

Ja m es C . G ra y , Jr.

B ill L a n n  L e e  

B e th  J o a n  L ie f  

C ly d e  E . M u rp h y  

P a tr ic k  O. P a tte r so n  

J u d i th  A . R e e d  

E r ic  S c h n a p p e r  

O. P e te r  S h e rw o o d  

S te v e n  L . W in te r  

N a p o le o n  B . W il l ia m s , Jr.

G a il J. W rig h t

Washington, D.C. Office 
Assistant Counsel
E la in e  R . Jo n e s  

B a r ry  L . G o ld s te in  

B re n t E . S im m o n s

Legal Division
D o n n a  S . G lo e c k n e r ,
Director of Library Services
M a rg a re t  A . G o n z a l e z ,  Clerk

Statisticians/Researchers
L e s te r  Jo n e s  

Jo s h u a  T an k e l 

M a rt in  L . M a d o r

Paralegals
C a ro l P a lm e r— New York 
N a n c y  H a r t-R u s s e l l  

Washington, D.C.

Executive Secretaries
N o rm a  M . L e w is  
L . M a r le n e  K o rn e g a y

Support Staff 
Secretaries 
New York
A y lm e r  A h jo h n  

Jo y c e  C . A le x a n d e r  

A u d re y  G . F le h e r  

D o r is  E . H e n d r ic k s  

M a rie  M . Is m a il

Je w e ll  J o h n s o n  

G lo r ia  Jo n e s  

D a p h n e  M c F a r la n e  

M a ry  M u rp h y  

G e r t ru d e  R e y n o ld s  

M o n ic a  Y . W a lla c e  

M a rc e lla  G . W il l ia m s

Washington, D.C.
K a re n  B la ir  

A va J. W in s to n

Division of Legal Information & 
Community Services
J e a n  E . F a ir fa x , Director
L o li ta  L iv in g s to n , Administrative Assistant
Ja m e s  S a n d e r s ,  Program Assistant

Deputy Directors 
A lle n  B la c k , J r .— San Francisco 
P h y ll is  M c C lu r e — Washington, D.C. 
R o b e r t  V a ld e r— North Carolina

Support Staff
Y v o n n e  C e c i le  A ld e n  

B e rn ic e  B e c k e r  

S u s ie  A . W e b b e r

Educational Programs
D r. Jo h n  W . D a v is  
Consultant,
Herbert Lehman Educational Fund 
Program
B u t le r  T. H e n d e r s o n  
Director,
Earl Warren Legal Training 
Program, Inc.

Support Staff
E d n a  S te w a r t ,
Coordinator of Grants &
Reports
Secretaries
S e re n a  D . H ilb e r ry  
E rn e s t in e  W ard

Development Staff
New York Office
B e tty  J. S te b m a n  
Director
R u fu s  W . S m ith  
Special Gifts/Bequests
Ja m e s  R . R o b in s o n  
Direct Mail
A n n e  T. D o w lin g  
Foundations/Public Information
M a lc o lm  W . R u c k e r  
Corporations
L o u is e  F r i l lm a n n  
G e n e iv e  B ro w n  
Special Events—
Brown 25th Anniversary Program

Regional Coordinators
C e c i lia  V an H . Iv e s  
Boston, Massachusetts
S te p h a n ie  L e e -M il le r  
Los Angeles, California
L in d a  K . S c h le if e r  
Philadelphia, Pennsylvania
V iC u r t is  H in to n  
Washington, D.C.

Support Staff
New York
M a e  L . B u s h  

T h e d a  Ja c k so n  

B e tty  S . K e n n e d y  

R e b e c c a  K e n n e d y  

M ild re d  S im o n  

J a c q u e l in e  S m o th e rs  

Boston 
Y v o n n e  F u lle r  

Los Angeles 
M a lis s a  S im p s o n  

H o w a rd  F is h m a n  

Philadelphia 
S u e  H . M o o re  

Washington, D.C.
S h ir le y  B e rg e n

Finance Department
A lf re d  A . L e w is  
Comptroller
P e te r  O . J u d d  
Assistant Comptroller
Support Staff
A r le n e  V. A rn o ld  
Head Bookkeeper
W illia m  D . L e a c h  
Bookkeeper
B r e n d a  A . C a p e rs  
Bookkeeper
E s m e  S h e r if f e  
Secretary to Comptroller

General Administration
Personnel
J e n n i f e r  R u tle d g e  
Manager
Iv a l in a  P asse  
Assistant

Office Services
A r le n e  W a lto n , Business Manager 
V elm a  B . H a r r i s ,  Switchboard Operator
T h e lm a  M . B a z in , Files Clerk 
E a rl  C u n n in g h a m , Utility Clerk 
O s c a r  F a m b ro , Utility Clerk 
E rn e s t in e  P ra t t ,  Legal Files Clerk 
C a ro l  C la re ,  File Clerk

'AS OF APRIL 1, 1979.



Financing Legal Redress

Needed: Gifts, Grants, and 
Bequests

In large part because of the Legal 
Defense Fund program, court actions 
that often require years to wind their way 
to final decision are no longer an 
exclusive luxury of the rich. But justice 
still costs money.

The LDF has managed to pay its bills 
through successive improvisations. It has 
been several times in such deep trouble 
there was serious doubt whether LDF 
attorneys would have the means to keep 
pace with rapidly expanded litigation.

In 1980 the Fund marks its 40th year.
In all that time it has been in constant 
need of instant money. More than 60,000 
contributors, of all races, in every part of 
the United States, provide about half of 
the current annual $4.5 to 4.7 million 
budget. Foundations furnish vital project 
grant support for specific program 
elements. Corporations making three- 
year pledges, through the 40th 
Anniversary Campaign, are a growing, 
essential source of assistance.

In some recent years the Fund was 
able to meet rising costs only by using 
the resources in its well-managed but 
steadily shrinking reserve fund. In 1977, 
for example, it had to sell $331,000 from 
this precious reserve.

Operations continue to be frugal. In 
employment cases it is normal for the 
Fund to be pitted against opposition 
counsel who receive as much per hour as 
LDF lawyers get per day.

Bequests, large and small, have served 
as the underpinning. Considering how 
faithfully many thousands of supporters 
have given to its work over the decades, 
the small number who provided for the 
LDF in their wills— fewer than 120— is 
surprising.

We invite friends who have not made 
such provision to consider doing so.

Key American civil rights victories 
brought about through Fund actions owe 
much to generous bequests from the 
inventor of xerography Chester Carlson, 
from Mrs. Randolph Compton, 
industrialist Fowler McCormick, and 
philanthropist Eliot Pratt. The late 
publisher George Backer, artist Russell 
Cowles, actor Edward G. Robinson, 
Harlem physician Richard H. Dobson,
Jr., novelist Edna Ferber, lawyer Walter 
Frank, Sidney Gerber of Seattle, Ms. 
Gladys Grant, and Amsterdam News 
publisher C. B. Powell are some of the 
friends who made sure that their 
thoughtfulness could continue.

All bequests to the Legal Defense 
Fund are allowed as charitable 
deductions under present federal and 
state laws.

Fund officers and members of the 
Board of Directors welcome inquiries 
and discussion with attorneys, 
investment counselors, and trust officers 
regarding contemplated bequests in the 
form of securities, real estate, current or 
new life insurance policies; charitable 
gift annuities, pooled income or 
charitable remainder trusts; collections of

art, stamps, coins, or other appraised 
memorabilia; patents, royalties, 
copyrights, mineral and oil leases, 
or other property.

62



Financial Needs
Budgetary Goals/
40th Anniversary Campaign/1978—1980

I f  th e  g o a ls  o f  th e  4 0 th  A n n iv e r s a ry  C a m p a ig n  a re  m e t, L D F  will be 

ab le  to  e x p a n d  th e  s c h o la rs h ip  a n d  fe llo w s h ip  p ro g ra m  an d  r e b u i ld  th e  
re se rv e  fu n d  w h ic h  w as g re a t ly  r e d u c e d  in  1977.

L eg a l a n d  A d m in is tr a t iv e  P ro g ra m

1978

1979

1980

$ 3 ,9 1 5 ,0 0 0

4 .1 6 0 .0 0 0

4 .3 1 5 .0 0 0

$ 1 2 ,3 9 0 ,0 0 0

H e rb e r t  L e h m a n  E d u c a t io n  F u n d  

(u n d e rg ra d u a te )

1978 ( 1 6 0  s c h o la rs h ip s )

1979  (1 7 5  s c h o la rs h ip s )

198 0  (1 9 0  s c h o la rs h ip s )

$ 2 2 5 ,0 0 0

2 4 5 .0 0 0

2 6 5 .0 0 0

7 3 5 .0 0 0

E arl W a rre n  L e g a l T ra in in g  P ro g ra m  

(g ra d u a te )

S c h o la r s h ip  P ro g r a m /1 9 7 8 -1 9 8 0 $ 3 ,8 8 8 ,0 0 0

F e l lo w s h ip  P ro g r a m /1 9 7 8 -1 9 8 0  

L a w y e r  T ra in in g
7 3 0 ,6 0 0

I n s t i tu te s /1 9 7 8 -1 9 8 0 3 1 5 .0 0 0
L eg a l S e m in a r s /1 9 7 8 -1 9 8 0 2 2 5 ,0 0 0
S e c o n d  a n d  th ird  y e a r  law  s tu d e n ts 1 6 8 ,0 0 0

$ 5 ,3 2 6 ,6 0 0

T O T A L $ 1 8 ,4 5 1 ,6 0 0



Earl Warren served as Chief Justice from 1953 
to 1969,

“I came here ... to say to those who support you with funds that their money could not 
be contributed to a better cause.

“ You have fought the good fight and have done so much of the time alone but always 
within the compass of our institutions. During almost half of that time, I sat on the 
Supreme Court listening to the arguments of your counsel; reading your briefs, and 
deciding the cases that never would have reached us for decision had it not been for 
your participation.

“I came to the Supreme Court... and on arrival found on my desk the briefs in Brown 
v. Board of Education and its companion cases. Only a few weeks later, 1 heard the 
arguments of your then counsel, later my colleague, Thurgood Marshall, and the 
counsel for the several States who were then defending the false doctrine of ‘separate 
but equal’ which had led millions of black Americans almost to the point of complete 
despair. During the following years there were few, if any, months in which cases were 
not presented either by Justice Marshall while counsel or by Jack Greenberg, James M. 
Nabrit III, or some other member of your legal staff. Every case they brought to us was 
an important one, and one that affected not only the black population but also every 
minority group in the nation...

“ In all our efforts, we should remember that constitutional protections are more likely 
to be lost through the indirectness of erosion than through an open assault.

It has been well said that the words of a constitution mean nothing unless some lawyer 
has the courage to stand up in a courtroom and fight to give them meaning. That is what 
you have been doing through the years . . . ”

Earl Warren
Chief Justice of the United States, 
Retired, in an address before the May 
15, 1970 Legal Defense Fund Institute on 
“The Crisis in American Justice.”

64





Concept, research, writing:
Henry & Elizabeth Urrows 
H. & E. Urrows 
Editor: Anne Dowling
Coordinator and Editorial Assistant: Geneive Brown 
Design: Andrea Marquez