The NAACP's Legal Strategy against Segregated Education, 1925-1950

Mark V. Tushnet

• Publisher: The University of North Carolina Press
• Year: 2012
• ISBN:
  9780807882955
• Topic: Politics & International Relations
• Subtopic: Civil Rights in Politics
• Index: Politics & International Relations

The NAACP's fight against segregated education--the first public interest litigation campaign--culminated in the 1954 Brown decision. While touching on the general social, political, and economic climate in which the NAACP acted, Mark V. Tushnet emphasizes the internal workings of the organization as revealed in its own documents. He argues that the dedication and the political and legal skills of staff members such as Walter White, Charles Hamilton Houston, and Thurgood Marshall were responsible for the ultimate success of public interest law. This edition contains a new epilogue by the author that addresses general questions of litigation strategy, the persistent question of whether the Brown decision mattered, and the legacy of Brown through the Burger and Rehnquist courts.

1. Setting the Course: The Grant from the Garland Fund

The NAACP was founded in 1909 by a biracial group desiring to counter an increase in white violence against blacks throughout the country. Its founders believed that existing tactics for black advancement neglected issues of civil and political rights and reflected too moderate a position on economic issues. In addition to conducting lobbying efforts and publicity campaigns, the NAACP soon established a legal redress committee. Its legal activities included responses to white violence, such as legal defense and resistance to the extradition of blacks accused of interracial violence. Several cases supported by the NAACP reached the Supreme Court, where they were presented by the association’s president, Moorfield Storey, a former president of the American Bar Association. The NAACP’s cases included Buchanan v. Warley, which held unconstitutional municipal ordinances requiring residential segregation, and Moore v. Dempsey, which overturned a conviction of a black obtained in a mob-dominated proceeding. These cases, and other activities associated with the courts, strengthened the NAACP’s commitment to obtaining and solidifying the political and civil rights of blacks, and the cases attracted new supporters with similar commitments.¹

Reflecting both an accurate view of the organization’s prior activity and its aspirations for the future, the Annual Report for 1926 gave “legal victories” pride of place in the foreword. “[F]or the present,” the report said, the courts, especially the federal courts, “where the atmosphere of sectional prejudice is notably absent,” would provide the best avenue to protect the rights of blacks. Legal victories in the cause of civil rights had the advantage of being “definite” and “clear-cut” and could be “built upon.” The report treated “increasing attention to law” as “a new development” for the NAACP. No longer simply sources of propaganda, legal cases “represent[ed] advances as concrete as any.” The report emphasized that these gains were achieved at an “exceedingly low price,” because “the foremost lawyers” contributed their services free or at extremely low rates. “The legal work of the Association, therefore, constitutes a definite benefit at a cost almost negligible, whose value the Negro and the friends of justice may easily determine for themselves.”² From 1925 to 1930 the NAACP gradually began to develop a plan for coordinating litigation, as its leaders saw the opportunity to obtain a substantial grant from a left-wing foundation, the American Fund for Public Service, founded by Charles Garland.

While he was an undergraduate at Harvard College in 1919, Garland inherited over one million dollars from his father. Garland had become convinced of the need for radical change in the United States. Initially he wanted to refuse the inheritance as unearned and tainted money. The executors of the estate objected, arguing that doing so would cause legal difficulties. Roger Baldwin suggested to Garland that he accept the bequest and turn it to good purposes.³ After settling approximately $200,000 on his wife,⁴ Garland created the American Fund for Public Service in 1922, giving it $800,000 then and later transferring to it a $500,000 bequest he received from his grandfather.

The Garland Fund, as it was generally known, was designed to disburse its entire capital for the support of “new or experimental agencies.” Its focus was left-wing but not rigidly sectarian. Among its incorporators were Norman Thomas; Robert Morss Lovett, a liberal professor of English at the University of Chicago;⁵ and Roger Baldwin. Its board of directors included Scott Nearing, an antimilitarist who had been a socialist candidate for Congress; Rabbi Judah Magnes, a prominent Jewish liberal; William Z. Foster, a labor organizer who had joined the Communist Party of the United States shortly after it was founded in 1921; and James Weldon Johnson, then the secretary, or executive director, of the NAACP. Elizabeth Gurley Flynn, a prominent labor organizer who later joined the Communist party, served as an important staff member. The fund’s first donation went to provide food for striking miners, and in response to an attack by the American Federation of Labor in 1923, the fund issued a statement of its policy, indicating that it gave its money for “producers’ movements” and “the protection of minorities,” with priority given to research, publication, workers’ education, and experimental enterprises.⁶

Baldwin became the chief administrator of the fund. It is therefore important to sketch the development of his general political views, because they affected his actions at the Garland Fund. He had started his career as a social worker in St. Louis in 1906, and had quickly become deeply involved in civic reform activities. He met Emma Goldman, the noted anarchist, in 1908, and, as his friendship with her deepened, his political views moved leftward. By the time the United States entered World War I, Baldwin had become a staunch adherent of left-wing causes. In 1917 Baldwin moved from St. Louis to New York to work with the American Union Against Militarism, intending to support its efforts to secure a negotiated peace. Just after he began to work with the union, though, the United States declared war on Germany. Baldwin found that he had to devote most of his time to defending the rights of antiwar activists and those of conscientious objectors to the recently instituted draft. He created a Bureau for Conscientious Objectors, later renamed the Civil Liberties Bureau, as a department of the Union Against Militarism. The bureau’s activities were in some tension with the aims of the union; its defense of opponents of the war made it difficult for the union to lobby effectively for a negotiated peace. Within a few months the tension had become so great that the union and the bureau formally separated. Baldwin became the director of the National Civil Liberties Bureau in October 1917. The bureau supported conscientious objectors and radical opponents of the war, such as members of the Industrial Workers of the World who were being prosecuted for obstructing the war effort.⁷

Baldwin’s opinions on how people on the left could use the law were thus shaped by his increasingly radical views and by his experience with law as a method of defense. He brought those views with him to the Garland Fund, and held them throughout the period of his involvement with it. In 1918 Baldwin explained that he could not support the Socialist party because it sought to use political methods to overthrow capitalism; he favored economic methods and noted with approval that the more radical Socialist Labor party “resorted to political means only to prevent the other side from using the power of the state against them.” The Civil Liberties Bureau was reorganized in late 1919 and 1920. Baldwin, who had just finished a prison term for his refusal to be inducted, was willing to join the newly named American Civil Liberties Union as its director. But he insisted that the ACLU board agree that “[t]he cause we now serve is labor.” The ACLU would seek “1) those directly engaged in the labor struggle . . ., 2) those who by their writing and speaking are close to labor problems, and 3) those who stand on general principles for freedom of expression.” Writing in 1934 as a strong supporter of the Soviet Union, Baldwin explained, “I champion civil liberty as the best of the nonviolent means of building the power on which worker’s rule must be based. If I aid the reactionaries to get free speech now and then, if I go outside the class struggle to fight against censorship, it is only because those liberties help to create a more hospitable atmosphere for working-class liberties.”⁸

For Baldwin, then, the law was to be used instrumentally and defensively. One final aspect of Baldwin’s views can be found in his opposition to the adoption of the Wagner Act, which put the force of national law behind labor’s effort to unionize industrial workers. He appears to have regarded the entire New Deal as designed to “protect . . . the propertied classes as against other classes.”⁹ By making the capacity of the working class to organize dependent on the power of a state ultimately controlled by the capitalist class, the Wagner Act would deprive the working class of power it might achieve by self-mobilization. A movement that relied on exercises of state power on its behalf could not achieve real power; instead of replacing the existing structures of power with new ones and redistributing power from the state to the people, it would only ratify the power of the state as a whole. Baldwin’s attraction to the instrumental and defensive use of law, and his concern about the disempowering consequences of affirmative uses of law, affected the Garland Fund’s responses to requests from the NAACP for financial assistance.

The NAACP received several early grants from the Garland Fund, including $3,365 in 1925 to pay for advertisements that were part of the NAACP’s antilynching campaign. During 1924 and 1925, the NAACP negotiated for a more substantial grant. Writing at the suggestion of Johnson, Moorfield Storey, the president of the NAACP, requested a grant to defray legal expenses incurred in the defense of Ossian Sweet, who had been charged with murder when a member of a white crowd was killed during a mob attack on Dr. Sweet’s new home in a white neighborhood of Detroit.¹⁰ Storey, referring to “the nation-wide fight against segregation,” noted that membership fees were insufficient to support the four pending cases that the NAACP thought were most important: the defense of Dr. Sweet, two challenges to racially restrictive zoning and covenants, and the ongoing attack on the white primary in Texas. The fund agreed to give the NAACP $5,000 and pledged up to $15,000 to match other donations to a legal defense fund. Within seven weeks, the NAACP raised $15,000, and it received over $20,000 from the Garland Fund shortly thereafter.¹¹ In fact, from 1925 to 1929, the NAACP received over $31,500 from the fund, making it the fund’s third largest recipient of grants. Although the first and second on the list were labor-oriented groups, the NAACP received slightly more for defense work than the fund gave for labor defense.¹²

In addition to its grants for legal defense, the NAACP received $5,000 from the Garland Fund to support investigations of the financing of black schools in the South. The money was used to pay for studies of Georgia, Mississippi, North and South Carolina, and Oklahoma, and to subsidize the publication of the results in The Crisis, the NAACP’s magazine. These articles marked the first explicit connections among the Garland Fund, the NAACP, and the fight against discrimination in education. The available records do not indicate that the grant represented the conscious initiation of a long-term program. Rather, it seems likely that it was conceived of in the first instance as a subsidy to The Crisis, a journal always in need of financial assistance, and secondarily as an important contribution to a campaign to publicize the connection between the educational and economic positions of blacks. As the NAACP came to focus on education litigation, the articles served as an important background for and resource in discussions that eventually were concerned with long-range plans. The articles appeared between September 1926 and July 1928. They were serious academic reports, unlike an earlier, more journalistic article on black schools in Florida. The article on North Carolina in May 1927 stated that the subsidy for publication had been exhausted and that future articles would be “in curtailed form without an exhaustive presentation of facts and figures,” which would make them “perhaps more readable.”¹³

The reports included statistics on the disparities in per capita expenditures for white and black students, information on the differences in salaries paid to white and black teachers, and pictures of schools for white and black children. The report on Georgia, for example, showed an average per pupil expenditure of $36.29 for whites and $4.59 for blacks, and average teachers’ salaries of $97.88 per month for whites and $49.41 for blacks. Comparable figures for Hinds County, Mississippi, were $24.37 and $4.77 in per capita student expenditures; in Coahoma County, Mississippi, the average white teacher received $133.76 per month, and the average black teacher received $40.75. The disparities in North Carolina were smaller, which according to an editorial note made the article “much more pleasant reading than the earlier ones.” North Carolina, it said, was “without doubt the best” of the southern states, because of changes in attitude brought about through “missionary work . . . [by] a series of far-sighted and public spirited men.” Unlike the ratios of 8 and 5 to 1 reported for Georgia and Mississippi, the ratio of expenditures for white pupils to those for black pupils was less than 2 to 1. Similarly, teachers’ salaries in North Carolina averaged $98.20 for whites and $66.53 for blacks. Still, the salary structure reported at one level set the minimum for blacks at $100 per month and the minimum for whites at $133 per month. The report concluded that discrimination was probably increasing in North Carolina even as the absolute quality of black education was also improving. The report on South Carolina had none of these even slightly hopeful notes. Discrimination was marked and had increased in past decades. Unlike the situation in North Carolina, where the average class size in black schools was 30.5 pupils and that in white schools 26.3, in South Carolina black classes were on average slightly more than twice the size of white classes. The per capita expenditures on whites were $36.10 and on blacks $4.17, and in 1925 the average annual salary for white teachers was $885 and that for blacks $261.

W. E. B. Du Bois, the editor of The Crisis, used information on disparities in expenditures on education in his editorials throughout the 1920s. For example, in opposing a bill to provide federal aid to education on the ground that such aid would inevitably be distributed so as to enhance existing disparities in expenditures on black and white education, Du Bois printed a column of statistics on disparities to support his conclusion that the aid, administered by local authorities, would only make whites more effective racists. After the Garland Fund series ended, Du Bois’s editorial “Education” stated: “The next step before the National Association for the Advancement of Colored People is a forward movement all along the line to secure justice for Negro children in the schools of the nation. . . . In open defiance of the constitution . . . and of their own state laws, the funds dedicated to education . . . are systematically spent so as to discriminate against colored children and keep them in ignorance. . . . There must be a way to bring their cases before both state and federal courts.”¹⁴

These concerns, coupled with the successful relationship that had been established with the Garland Fund—a relationship of course solidified by Johnson’s presence on the board of directors of the fund—led to a more ambitious program. The course of interaction is unclear, but beginning in August 1929 and continuing through May 1930, the fund’s Committee on Negro Work—consisting of Johnson; Morris Ernst, a member of the NAACP’s Legal Committee; and Lewis Gannett, a literary critic active in the American Civil Liberties Union—developed a proposal to give the NAACP, with which the Committee on Negro Work had consulted, a sizable grant.¹⁵

In its earliest form, the committee’s proposal responded to the fund’s relatively traditional leftist concerns about working people by noting that blacks were the largest and “most ineffective bloc of the producing class.” The committee thought it would “waste time and money” to “conduct isolated test cases and isolated fights,” as the NAACP had been doing. Instead, it proposed “to finance a large-scale, widespread, dramatic campaign to give the Southern Negro his constitutional rights, his civil and political equality, and therewith a self-consciousness and self-respect, which would inevitably tend to effect a revolution in the economic life of this country.” Mentioning explicitly “equal rights in the public schools, in the voting booths, on the railroads, and on juries,” the draft proposal argued that “these rights must precede any real economic independence and unionization will be accelerated by such a campaign.” The draft suggested that between $214,000 and $229,000 be allocated to forty-five coordinated lawsuits, including eleven to be filed simultaneously—one in each southern state—challenging unequal spending on black and white schools. The lawsuits and the attendant publicity would, the committee said, “create the psychological conditions” for unionization.¹⁶

As the committee’s proposal worked its way through the Garland Fund, the subsequent drafts continued to stress the connection between litigation and the fund’s concern for unionization of workers. As submitted to the Garland Fund’s board, the proposal said that the rights it identified were “the necessary basis of any real economic in...