Thurgood Marshall (32 page)

“Amos told Thurgood and me that if we joined the lodge he could get some money for us. And we dearly needed money at that time,” Oklahoma City branch president James Stewart said. “So I joined the lodge, and so did Thurgood. From then on we got a substantial contribution from the Masons.”

Marshall had enough money to turn his attention back to the University of Texas Law School case. Even after the six-month grace period given by the courts, Texas officials had not built their Jim Crow law school, and Heman Sweatt’s suit had new life.

As he had done in the
Sipuel
case, Marshall brought in law professors and deans from around the country to testify the Jim Crow school had not even a semblance of the quality of the University of Texas. And to show that law school integration would not cause riots, Marshall had Donald Murray come from Maryland to testify about his experiences breaking the racial barrier there. But Marshall never had much of a chance with Judge Roy Archer on the bench. “Judge Archer was not insensitive to politics,” said Joe Greenhill, the deputy attorney general who defended Texas in the case. At one point the judge told Greenhill, “Sweatt’s got two chances, slim and none.”
¹⁰

The climactic moment came when Sweatt testified he would never go to a segregated law school, even at a newly proposed $3 million Jim Crow facility. Sweatt told the judge that any segregated school was inherently unequal. Under intense cross-examination from the Texas lawyers, the NAACP plaintiff was unflappable. Greenhill, who later became chief judge of Texas’s state supreme court, walked over to Marshall during a break to compliment him on his preparation of Sweatt. In his typical style Marshall had befriended the opposing counsel.

“I thought it was a masterful job,” Greenhill told him. “Well, you know we woodshed our witnesses pretty well,” Marshall responded. “Matter of fact, I expected him to do well. We went out early this morning and filled him full of gin.”

The courtroom also became a theater of race relations as white law students from the University of Texas crowded in to hear the arguments. Black Texans, many of them from the local NAACP, were in court, too. When bailiffs told one Texas law student not to sit in the black seating section, the student refused to move unless a black person told him to get
out. Soon blacks and whites were seated together all over the courtroom. The drama took another turn when white students began booing as their own dean testified that segregation was necessary to ensure a quality education for white students.

Despite the NAACP rooting section, Archer again ruled against Sweatt. Marshall had expected to lose, but to hear Archer’s ruling nonetheless hurt. He always held hope that judges, even southern judges, would rise above the pressure and the racism and rule fairly. Just after the decision, Marshall confided to his fellow lawyer Jim Nabrit that he was going to curse out the judge. “I told him to take it easy,” Nabrit later said. Marshall said nothing.

As the NAACP legal team walked out of the court, their faces looking long with disappointment, Nabrit saw Marshall lingering behind, standing over in a corner and mumbling. Out of concern he called to him and Marshall slowly walked over. Nabrit asked him if he was okay. “I told you I was gonna tell that judge what I thought of him, and I just did,” said Marshall.
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The NAACP appealed Judge Archer’s ruling in February 1948 and again lost. The state court said that the separate-but-equal standard was satisfied by the Jim Crow law school for black students.

Marshall’s battles in the Lone Star State, however, were not limited to the courts. Carter Wesley, publisher of the
Houston Informer
, the leading black newspaper in Houston, began regularly attacking the New York lawyer in his columns. In his frenzy for integration, Wesley said, Marshall was undermining black schools and especially black colleges.

Wesley’s argument reflected a major divide among black Americans over whether school integration or equal funding for black schools should be the NAACP’s priority. Marshall and Charles Houston had pushed a pro-integration resolution through the 1947 NAACP convention in Washington in an attempt to shut off people like Wesley. The landmark resolution mandated that NAACP lawyers bring only suits that asked for full integration: “The NAACP cannot take part in any legal proceeding which condones segregation in public schools or which admits the validity of segregation statutes.”
¹²

But several local black leaders, including Wesley, objected. These NAACP members feared that demands for integration might anger white state officials and lead them to cut back already meager funding for existing black schools. If that happened black students would be hurt by the NAACP’s risky strategy.
¹³

“Is it the NAACP’s position that it will take no action to better the educational lot of Texas Negroes except [to] fight for admission of Negroes to non-segregated schools?” Wesley asked in one heated column. He also suggested that there were “communists” in the NAACP and called the civil rights group “cuckoo” for its lack of interest in getting more financial support for segregated, all-black schools.

Marshall responded with increasingly personal anger. In a speech at the Texas state conference of NAACP branches in 1947, he publicly belittled Wesley. Marshall said one
Informer
column “obviously written by editor Carter Wesley” supported a “return to the days of Booker T. Washington” and separate, all-black schools.

“It no longer takes courage to fight for mere equality in a separate school system,” Marshall told the large crowd gathered on a humid Friday night in Denison, Texas. “I think everyone knew that when the state legislature in Texas agreed to advance more than $3 million for a Jim Crow University there would be Negroes who would be willing to sell the race down the river in order to either get jobs in the school, or to determine who should build the school, or to determine where the school should be built, or any other method whereby the individual could get personal gain.”

A sweat-drenched Marshall told the crowd the NAACP was not going to stop demanding integration because of Carter Wesley. “When you realize that Negroes have been fighting for equality in separate schools for more than eighty years and have not obtained a semblance of equality,” he said, it made no sense to ask for more segregation. He concluded that Wesley was just looking for “the easy way out” by asking whites for “Jim Crow Deluxe.”

Marshall ended the speech with a fist-pounding statement: “We are convinced that it is impossible to have equality in a segregated system, no matter how elaborate we build the Jim Crow citadel and no matter whether we label it the ‘Black University of Texas,’ ‘The Negro University of Texas,’ ‘Prairie View Institute,’ or a more fitting title, ‘An Apology to Negroes for Denying Them Their Constitutional Rights to Attend the University of Texas.’ ”
¹⁴

Marshall returned to New York, where his legal team got busy preparing to argue the
Sweatt
case before the Supreme Court. Charles Houston gave his advice and even sent a catalog from the new Jim Crow law school. Houston wrote, “This may be introduced as evidence of equality of opportunity.… It would appear as if we had a new Columbia
University in Houston, but my Atlanta friend tells me that this is all a paper set up of fairy tales in place of actual offering.”
¹⁵

Houston also pulled strings to get the Justice Department to file a brief with the Supreme Court supporting Sweatt. The administration’s brief said Sweatt’s case was significant because it tested “the vitality and strength of the democratic ideals to which the United States is dedicated.” Most important, the brief also argued that segregated state law schools were part of a pattern that harmed black citizens and asked that the separate-but-equal doctrine be overturned.
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Hundreds of people stood in line for hours outside the Supreme Court hoping to get a seat to hear the case argued in April of 1950. Those who were lucky enough to get in saw Marshall make an emotional argument, asserting that Sweatt had a right to attend the state law school without regard to how white segregationists might feel or objections from blacks. “The rights of Sweatt to attend the University of Texas cannot be conditioned upon the wishes of any group of citizens,” Marshall told the justices. “It matters not to me whether every single Negro in this country wants segregated schools. It makes no difference whether every white person wants segregated schools. If Sweatt wants to assert his individual, constitutional right, it cannot be conditioned upon the wishes of every other citizen.”

Price Daniel, the attorney general of Texas, responded by quoting Abraham Lincoln as saying that blacks and whites should be free but live separately. As a practical matter, Daniel told the justices, if Sweatt were admitted to the law school, then blacks would have to be admitted to swimming pools, grammar schools, and hospitals. “All we ask in the south,” he said, “is the opportunity to take care of this matter and work it out [ourselves].”
¹⁷

While waiting for a ruling in the
Sweatt
case, Marshall was hit with a shock. Charles Houston died of heart failure in Washington. They no longer spoke every day, but his impact on Marshall was still great. Their relationship had evolved from that of mentor and student to professional confidants, but Marshall remained heavily dependent on the fifty-five-year-old Houston, both as a legal mind and as a friend. “Thurgood … didn’t make any moves without [either] Houston [or] Hastie,” remembered Constance Baker Motley, who had joined the NAACP Legal Defense Fund’s staff in 1945.
¹⁸

Houston had encouraged the direct attack approach Marshall had employed in the
Sweatt
case. He wrote to Bob Carter, the number-two
man in the NAACP’s legal office, that he was pleased to see an aggressive Marshall arguing that segregation was wrong even if the state said they could build separate and “equal” schools for blacks. “These education cases are now sufficiently tight so that anyone familiar with the course of the decisions should be able to guide the cases through,” Houston wrote, reaffirming his support for abandoning the Margold plan’s strategy. “You and Thurgood can proceed without any fear of crossing any plans I have.”
¹⁹
But before Houston could see if the direct attack plan would work in the
Sweatt
case, he died at Freedman’s Hospital, a few blocks from Howard University’s main campus.

At the funeral William Hastie, governor of the U.S. Virgin Islands and Truman’s nominee for the U.S. Third Circuit Court of Appeals, stood in the pulpit of Rankin Chapel on the Howard campus looking over a distinguished group of mourners. There in the pews on Wednesday, April 26, 1950, were Thurgood Marshall, Walter White and Roy Wilkins, cabinet officials, and two Supreme Court justices—Hugo Black and Tom Clark. “He guided us through the legal wilderness of second-class citizenship,” said Hastie in a tear-filled eulogy for Houston. “He was truly the Moses of that journey. He lived to see us close to the promised land.”
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Houston had laid the groundwork for the NAACP’s legal fight for integration. It was Marshall’s turn to take the crusade to the next level. Marshall had lost his greatest mentor, the man who had for twenty years nurtured him and guided his development as the nation’s top civil rights lawyer. “Whatever credit is given him is not enough,” Marshall told reporters.
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Houston’s advice to Marshall had paid off. The bold new strategy that he had encouraged resulted in the Supreme Court’s stunning unanimous decision in June 1950 in favor of Sweatt. Chief Justice Fred Vinson, a hard-nosed Truman Democrat, wrote the opinion: “We cannot find substantial equality in the educational opportunities offered white and Negro law students by the state.… The University of Texas Law School is far superior.… A law school, the proving ground for legal learning and practice, cannot be effective in isolation.… Anyone who has practiced law, would not choose to study in an academic vacuum, removed from the play of ideas and the exchange of views with which the law is concerned.”
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Vinson’s decision included an idea that caught the attention of NAACP lawyers. He said that a school’s alumni, its prestige and influence,
and its history were all to be considered when comparing it with any other school. By that standard, no makeshift Jim Crow school could ever be presented as a facility “equal” to a long-standing state school.

The ruling meant that for the first time in American history an all-white school was being compelled to admit a black student
despite
the separate-but-equal laws. The lawyers at the NAACP saw the decision as a sea change in the high court’s thinking on school segregation. Marshall called Sweatt to tell him the good news. “We won the big one,” he said. In the future, Marshall told him, Texas was going to have to “age law schools like good whiskey.”
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News of the
Sweatt
victory sent the NAACP office into full-throttle celebration. “Thurgood, he’s a party man,” Constance Baker Motley later said. “You would not have to have much of an excuse for him to throw a party. I mean, that’s the kind of person he was. So anytime we won a case, people came by because they knew there was a party going on there, no question about it.”

Sweatt started law school in the fall of 1950 and ran into a string of racist incidents and tough breaks. When he first applied to the school, Sweatt had had to deal with suggestions that the real reason he wanted to go there was to meet white women. In
The Texas Ranger
, the University of Texas student magazine, Sweatt wrote: “I want to get a legal education at the university, not a wife,” noting he was already married.
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After he began attending the university, a cross was burned next to his car and his tires were slashed. During the same time he broke up with his wife and became ill. By the end of his second year, Sweatt had flunked out. He later got a degree in social work and remained in Texas.