SIMPLE JUSTICE

EXCERPT

Pages 195-198

 

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SIMPLE JUSTICE                                                                    Pages 195-198

 

 

Thurgood Marshall learns his trade

 

 

Marshall brought a petition signed by leading county blacks to a regular ses­sion of the board of education meeting at Towson. The petition was flatly rejected. An appeal to the State Board of Education proved no more fruitful. After the Court of Appeals announced its decision in Murray early in 1936, Marshall was ready to act. But what relief action should be asked in behalf of the black seventh-grade girl Marshall had found to serve as plaintiff? There were three choices: (1) sue to force the county to equalize the black schools – a step that would likely require massive data to prove the inequalities, and even then the availability of Douglass High in the city might be held adequate for black needs; (2) sue to close the white high schools in the county until equal black facilities were provided – a course that had all the perils of the first alternative plus the unfavorable precedent of the Cumming decision by the Supreme Court in 1899; and (3) sue to gain the black plaintiff admission to the white high school nearest her home – in effect, the same remedy won for Donald Murray. Marshall chose the third course. In hindsight only, it was a blunder.

The case was heard in September in the State Circuit Court, where the judge ruled that the county board of education had the power to determine the basis upon which students might enter high school. Marshall went right to the Maryland Court of Appeals. Surely the state’s high court would see the analogy to Murray, in which it had ruled for the Negro plaintiff’s rights – and the county-high-school case was a far more flagrant instance of inequality. The appellate court mulled the case for months, and then in June of 1937 it ruled: Marshall had sought the wrong remedy. He should have sued not to gain admission of the plaintiff to the white high school but to require the county to pay her tuition to the colored high school in Baltimore without the obligation to pass an entrance examination. Whether the county should have provided a high school for African American children was not considered.

It was Thurgood Marshall’s first civil-rights loss. It was not a pleasing sensa­tion. There was too much else to do, though, to let it get him down. By then, he was officially Charles Houston’s assistant, plying between New York and Balti­more and points south.

In May of 1936, a few months after Murray had been resolved, Marshall had made a drastic appraisal of his financial situation and discovered, as he wrote Houston in New York, that “things are getting worse and worse.” He appealed to Houston and Walter White to see if there was any way he “could be assured of enough to tide me over, then in return, I could do more on these cases.”

 

 

 

 

 

SIMPLE JUSTICE                                                                    Pages 195-198

 

 

It could not have been an easy letter for so proud a man to write. But there was no point in deceiving himself: either he was to be a full-time, all-out civil-rights lawyer or he would be a lawyer who would do what he could on occasion to forward the race.

Houston and White talked it over. It was already becoming clear that Mary­land and then Virginia would be the critical laboratories for the NAACP campaign to overcome Jim Crow in the South. The two states were close to Washington, for one thing. They were relatively less hostile to black aspirations, for another. And the NAACP itself was making major strides in both places – an important consid­eration in seeking plaintiffs and community support for the legal drive for equal rights. Negro teachers in Maryland, for example, were proving receptive to the salary-equalization drive then shaping up under Marshall and Lillie Jackson. Houston was increasingly weighted down with other business in the New York headquarters; to have an alert and energetic younger man such as Marshall in the field, especially in the Maryland-Virginia territory where he was at home, made good sense. He was hired for $2,400 a year plus expenses.

It was like a finishing school for Marshall. His regard for Houston could occasionally border on dependency – a not unwise recognition by a young lawyer of his own callowness. And Houston never wearied of being the teacher. For all his skills as a lawyer, he was a teacher most of all. He could be a philosopher one moment and a meticulous technician the next, but at all points he was a pragmatist and taught his charges to be, too. He wrote Marshall, for example, to take pains not to antagonize his opposing counsel in the Murray appeal “because you may have to come back to him on this question of the judgment not conforming to the prayers. At the same time, I do not want any of our rights to be lost by default. Handle the matter diplomatically but I think that whatever you finally decide upon, you should put it in writing so as to have a record.”

Houston was compulsive in his work habits and preached them to assistants like Marshall and to Edward Lovett, who worked with him in his Washington law office. “He used to work like hell and way into the night,” says Lovett. “There was a certain minimum standard he set for himself and those who worked with him, and beyond that it was just a matter of polishing. But the trick was to get up to that minimum standard.” Another one-time assistant, Juanita Kidd Stout, remembers his advising her, “Regardless of how small a case may be, act as though it will end in the Supreme Court.” Spottswood W. Robinson III, who, like Mrs. Stout, eventu­ally became a federal judge, recalls that Houston helped train him as a young NAACP lawyer in Virginia. “One thing he taught me,” says Robinson, “was to read over the record the night before arguing a case, so I’d have all the facts and rebuttal arguments at my fingertips in the courtroom. He was always, without fail, doing that.” Robinson, who worked closely with him on several cases, was struck, too, by the perfectionist drive in the older lawyer. He remembers Houston labor­ing long in crafting his briefs for important cases; then he would park himself in the back room at his firm’s office at 615 F Street Northwest, clamp on a green eye­shade, arm himself with a container of freshly sharpened pencils and snub-nosed black crayons, and mark up his brief until it was disfigured nearly beyond recognition. Sometimes the process took all night – or several nights – but he would not quit until he felt he had something worthy of himself. Confidence was the crucial ingredient for Houston, and it was perhaps the most difficult lesson of all to teach young blacks in that period. He wrote one student: “The most important thing now, as fast as conditions are changing, is that no Negro tolerate any ceiling on his ambitions or imagination. Good luck and don’t have any doubts; you haven’t time for such foolishness.”

 

 

 

 

 

SIMPLE JUSTICE                                                                    Pages 195-198

 

 

Thurgood Marshall thrived under the tutelage of Charles Houston. They worked closely for only a few years, but there was an immediate intimacy and understanding, born of their close association in the Thirties, whenever they worked together thereafter. “You have to understand that we had absolutely no money at all in those days,” Marshall recounts. When they were on the road, filing lawsuits in the courthouses of the South, “Charlie would sit in my car – I had a lit­tle old beat-up ‘29 Ford – and type out the briefs. And he could type up a storm ­faster than any secretary – and not with just two fingers going. I mean he used ’em all. We’d stay at friends’ homes in those days – for free, you understand. I think the whole budget for the legal office then was maybe $8,000 – that was for two lawyers and a secretary.” And when they could not find a friend’s home, they would put up at grimy hotels or something a little better if they could find it in the land of Jim Crow, and Houston and Marshall would jaw over bourbon about life and law far into the night. They were quite different as men and as lawyers. Where Houston was a private and somewhat remote man of deep intellectual fiber, Marshall was a con­stantly engaging extrovert who used ideas as stepping-stones down a path of ever-­widening possibilities. Where Houston was smart, Marshall was shrewd. Where Houston was a fine writer and superb draftsman of legal briefs, Marshall was gifted with the spoken word, full of humor or fire as the occasion demanded, whether in a courtroom or before a packed house of overalled black farmers in a remote church. They shared a largeness of stature – both were formidable-sized men, with Houston the shorter and stockier of the two – and gesture. Each was a firecracker of energy and dedication to the task they shared.

At first, and really throughout the two years they worked together as full-time NAACP lawyers, Houston was a taskmaster who expected Marshall to snap to when his orders came down. Houston’s manner was hortatory but never imperious, and Marshall did not feel himself a functionary with a law degree. Soon enough, he demonstrated his own skill as a leader and tactician with political savvy. In October of 1937, he made a swing through Virginia and North Carolina, mainly to line up plaintiffs for teachers’ salary-equalization cases; his field reports to Houston and Walter White were intelligence briefings on the state of black militancy wherever he had been. In Petersburg, Virginia, he noted simply, “No franchise questions in immediate vicinity. Negroes just do not vote.” Of South Boston, a town of about 5,000 in tobacco country just north of the Carolina border, he wrote:

 

. . . School situation is terrible. Principal of elementary school is gardener and janitor for the county superintendent of schools and is a typical uncle tom.

 

 

 

 

 

SIMPLE JUSTICE                                                                    Pages 195-198

 

 

New addition to high school at Halifax but not equipped. Elementary schools terrible. Question of voting has not arisen because so few register.

Spoke at mass meeting and stressed school questions and voting ques­tions. Negroes in this community very lax and inactive. President of [NAACP] branch fighting almost alone.

 

Regular meetings once or twice a year of all the NAACP branches, known as “the state conference,” had lapsed in Virginia, and Marshall urged their renewal despite the laggard ways of the state NAACP president. He suggested the session be scheduled simultaneously with the annual meeting of the black teachers’ associa­tion in the state, so that a joint committee of teachers and NAACP operatives could “handle the teachers’ salary case and at the same time start the conference with a definite program around this case. Virginia could be built up around this case.” In North Carolina, he encountered both hope and hostility. In Winston-­Salem, for example, he found that “only those Negroes are permitted to register who are ‘all right’ Negroes. Oth­ers are refused. No one will bring a case on the question. Had the president of the branch . . . call a meeting of his executive committee. Stressed the point to them and told them that they should start a program to break this down. We will have to keep behind this branch. Winston-Salem Negroes have money­ – they all work in factories and make good money. They have a bus company on the streets owned and operated by Negroes. Branch should be strong. They want a speaker for mass meeting but do not have the money. Winston-Salem should be one of the main spots for the franchise fight.”

Trying to organize teachers for the equal-pay fight, he ran into choppy waters. Those opposed to the move, Marshall reported, were claiming that the NAACP was a glory-seeking interloper and that North Carolina blacks could handle their own problems. Nevertheless, the state’s 6,000 black teachers were “tired of wait­ing” and wanted action from the NAACP “or anyone else.” Their main problem was a state teachers’ association “controlled by . . . leaders who give no considera­tion to the rank and file.” Marshall proposed a battle plan whereby the NAACP would stay out of the picture until teachers’ committees were set up around the state and funds collected to finance the salary case and support anyone fired as a result. The branches had all been contacted and would stand by, “ready to cooper­ate when the case breaks and to use the case” as a way to revive interest in their activities. “This procedure,” Marshall was sure after all his sub rosa talks, “is the only type that will work.”

Already he was shaping up as an accomplished guerrilla fighter.

 

 

 

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