Except for dismantling the legal regime of slavery, the Civil War had little effect on the legal rights of African-Americans or cultural attitudes toward them. The Supreme Court ignored the equal protection clause in Plessy. And, in The Civil Rights Cases, 109 U.S. 3 (1883), it invalidated the reconstruction acts, thereby emasculating congress' power to pass legislation protecting blacks.

The 10 precepts of slavery were often still practiced through Jim Crow laws and black codes and in social structures. Charles' Carroll's influential book, The Negro a Beast, published in 1900, heralded the dawning of a new century of racial hatred. Paul Berringer, Chairman of the faculty at the University of Virginia, told the Southern Education Ass'n meeting in Richmond in 1900 that the "Negro's learning ought to be limited to a Sunday-school training," since his principal function in life was as a "source of cheap labor for a warm climate; everywhere else he is a foreordained failure, and as he knows this he despises his own color."

Jim Crow laws mandating racial segregation behan proliferating in the wake of Plessy. Every public accommodation, from restaurants and bars to theaters and restrooms, were marked so that blacks and whites would know which facility they should use. The federal government got on the bandwagon under the Wilson Administration, officially requiring segregated facilities in some executive agencies. Wilson explained that "segregation was not humiliating but a benefit" for blacks.

Jim Crow laws were validated by the Supreme Court in Berea College v. Kentucky, 211 U.S. 45 (1908). There the Court held that all contact between the races could be outlawed by the state.

Berea College was a private bi-racial school. The State of Kentucky found this to be anathema, so it passed a law requiring classes for blacks to be conducted at least 25 miles away from classes for whites. The state Supreme Court upheld the statute:

The National Negro Conference was held on May 31, 1909 at Cooper Union University in New York City. Over 1,000 scholars, intellectuals, and activists attended. Du Bois set the tone for the conference: the three-pronged pitchfork -- disenfranchisement, restrictions on education, and curtailment of civil liberties -- was humiliating the Negro and imposing on him "a new slavery." By the end of the conference, the attendees had agreed to create a nationwide civil rights organization. The organization was not officially named until its second annual convention in 1910 -- the National Association for the Advancement of Colored People. Du Bois was offered the chairmanship, but declined. Instead, he took the title of director of publicity and research. As such, he founded and published for 24 years the NAACP's magazine, The Crisis. It was often said that the editorial office of The Crisis was the headquarters of the civil rights movement in America.

From the start, the principal goal of the NAACP was elimination of the legal regime of racial subordination. Because subordination was linked to segregation, and segregation to the legal doctrine of "separate but equal," the NAACP had to destroy the constitutional doctrine that Plessy established. The prinicipal strategy of the NAACP during this period was to use litigation as an instrument of legal reform, sometimes called "institutional reform litigation."

The NAACP's first foray into litigation was lead by its national president, Moorfield Storey, who handled the group's cases for free. They had their first victory in Buchanan v. Warley, 245 U.S. 60 (1917), which held that residential segregation laws violated the Civil Rights Act of 1870. The triumph was short lived. In Corrigan v. Buckley, 271 U.S. 323 (1926), the Court approved privately enforced racial covenants. This was affirmed a year later in Gong Lum v. Rice, 275 U.S. 78 (1927).

After Storey died, the NAACP turned to Charles H. Houston, a graduate of Harvard Law School (doctorate in laws) and protégé of Felix Frankfurter. In 1929 Houston was made Dean of Howard Law School, where he turned that institution into a first rate school for black scholars. Among his best students, and 1933 valedictorian, was Thurgood Marshall.

Howard Law School became a living laboratory where civil rights law was invented by teamwork. They worked oin real breifs in real cases. Houston's task was to translate the realization of racial caste and second class citizenship into action-oriented learning. The whole University geared up along those lines.

Charlie Houston nominated Nathan Ross Margold, a european-born Jew, to become legal director of the NAACP. He, along with Houston, developed the NAACP's initial campaign to end Jim Crow and segregation in America. The story of the NAACP campaign is instructive to modern social movements and, accordingly, is discussed in contemporary literature. One prominent book, The NAACP's Legal Strategy Against Segregated Education,1925-1950, by Mark Tushnet of Georgetown Law School (1987), is especially important to understanding the campaign. Several passages are excerpted here.

The principal purpose of the Margold report, completed in 1931, was to provide a litigation strategy to end segregated education. The report ran to 218 legal-sized pages. After a brief introduction, about one hundred pages were devoted to an analysis of legal routes by which segregation in schools could be challenged. If separate schools were attacked, it should be done outside the South — for example, in "parts of Pennsylvania…and certain sections of the Southwest." He thought it "would be worst [sic] than futile" to challenge separate schools in the Deep South. Margold presented a perceptive legal analysis, which rested on political judgments. He argued that a direct attack on separate schools was both legally and politically possible. A legal technician, he mentioned publicity only in the context of white concerns. Unlike those who developed the NAACP's earlier proposals, he did not think of the lawsuits as a means of galvanizing the black community.

The report began with the observation that, as a matter of law, it was relatively easy to demonstrate that disproportionate expenditures on black schools violated the law. But developing the proper remedy for that violation would be difficult. Margold found that southern states had a wide range of statutory schemes regulating expenditures. Some states required equal expenditures; the apparent remedy, in most of these states, was an action for mandamus, an order from the state courts directing state officials to comply with clear law. Indeed, Margold argued that in these states no remedy from the federal courts was available, because, he said, noncompliance with state law does not violate the federal Constitution. A second group of states left apportionment of funds to the discretion of various officials; there, unequal expenditures could not be remedied in state courts, but a federal remedy was available. The final group required a "fair and equitable division" of funds. In these states, both state and federal remedies might be available, but establishing a right to relief would be difficult because the statutes appeared to authorize a variety of defenses; for example, Margold believed that in the third group of states, a school board might prevail by showing that the costs of, running black schools were lower than those of running white schools or that the cost of living for black teachers was less than that for white teachers.

Margold argued that lawsuits aiming at a remedy whose direct effect would be to equalize expenditures would be too complex. Mandamus would have to be brought against each official responsible for expenditures, and Margold anticipated difficulties with finger-pointing defenses, in which each defendant would claim that someone else was responsible for what had happened. In addition, because the suits would have to challenge an exercise of discretion after the fact, mandamus was retrospective, making it necessary to start over each year. This, Margold said, would lead to an "appalling" number of lawsuits. Finally, his analysis of state law led him to conclude that mandamus in state courts probably could not succeed. Most states required only equal apportionments among but not within counties, and it was the allocation between black and white schools in each county that was the NAACP’s concern.

Margold therefore concluded that the idea of using mandamus in state courts as the vehicle for the attack on segregation was misconceived. He argued that the campaign should focus, instead, on three easily proved facts: that state law required separate schools, that expenditures were obviously unequal, and that state remedies were in practice unavailable. "We have, in a word, a case of segregation irremediably coupled with discrimination." In this light, the campaign should seek, in effect, simple declarations of unconstitutionality rather than orders directing that expenditures be equalized. Once those declarations were obtained, state officials could decide whether to equalize expenditures or to desegregate the schools. In a passage central to his argument, Margold wrote:

Charles Houston had been consulting extensively with the NAACP while he retained his position at Howard Law School. Houston was appointed to the staff of the NAACP as special counsel in May 1934. By October, Houston concluded that the available funds required that the legal effort be concentrated. It should try to "(1)…strengthen the will of local communities to demand and fight for their rights; [and] (2) to work out model procedures through actual tests in Court." Thus, with Houston’s appointment, the legal campaign once again became part of a broader conception of community mobilization.

Walter White, president of the NAACP, explained Houston's appointment. "A colored lawyer with the dignity, ability and tact of Mr. Houston would encounter far less hostility than a white lawyer." What mattered was race. In the early 1930s, the NAACP began actively to recruit black lawyers to its Legal Committee in order to stimulate membership activity in the branches, to demonstrate the advance of the race into areas previously dominated by whites, and to respond to pressure from black lawyers seeking recognition for their own achievements. August Meier and Elliott Rudwick have carefully detailed the gradual displacement of white attorneys by blacks in the NAACP's work. Prominent white lawyers played the major role during the 1920s, in part because there were too few black attorneys with enough experience and standing in white courts to do the difficult job of changing the law through advocacy. As the NAACP began to take an increasingly prominent place in the organizational life of the black community, this situation became increasingly difficult to sustain politically. The leadership of the black community wanted the organizations that served the community to represent it as well, and the best representatives would themselves be black. The NAACP’s leaders believed that a litigation effort directed by black lawyers would be responsive to black concerns, because there would be no need to educate the lawyers on the issues that blacks might be sensitive to, and that black lawyers would show to blacks and whites that white prejudices were unfounded.

The emergence of a new generation of lawyers facilitated the transition within the NAACP. A small number of brilliant young black lawyers — Houston, William Hastie, Leon Ransom — became available in the late 1920s to assist the NAACP. In the early 1930s, the NAACP moved to recruit the new black elite lawyers. This expansion, which occurred just when the NAACP was acquiring a legal staff, transformed the Legal Committee. Headed by Arthur Spingarn since 1913, the Legal Committee in the 1920s was an important resource for the NAACP. In his capacity as assistant secretary of the NAACP, However, Spingarn and the Legal Committee were consulted less frequently about NAACP litigation after Houston became special counsel. The Legal Committee became an honorific organization. Two changes thus occurred. The legal work was transferred from Spingarn and the largely white Legal Committee to the black NAACP staff, and the Legal Committee itself acquired more black members.

The Margold Report had emphasized a direct challenge to segregation. This shift reflected the NAACP’s attempt to appropriate for the organization the idea of systematic planning to accomplish social change through litigation. The replacement of Margold with Houston reflected the confluence of other organizational concerns. As White's comments make clear, race pride played a part, as did the simple availability of such men as Houston and Hastie. They were extraordinarily talented lawyers, who would have been attractive to any openminded client. Houston's appointment was one of a series of events in the black legal community in the 1930s that both expressed and symbolized the belief within that community that the interests of blacks would best be advanced by blacks. By placing a black man as talented and vigorous as Houston in the position of special counsel, the NAACP strengthened its position in the black community.

The Margold Report had focused on the unequal expenditure of funds for black and white elementary and secondary schools. It had suggested that attacking unequal expenditures would destroy segregation directly, if the states chose to equalize spending by merging the systems, and indirectly, if the states were forced to bring the black separate schools up to the level of the white schools at so great a cost as to make segregation a fiscally intolerable policy. Yet through the 1940s the NAACP’s national staff became involved in only a few cases involving inequality of facilities in elementary and secondary schools.

In light of the Margold Report, it is initially surprising that the NAACP engaged in so little activity involving elementary and secondary facilities until the late 1940s. The issue has three parts: why was there so little activity before 1950, why did elementary and secondary cases suddenly become central in 1950, and why at that time did the NAACP challenge segregation directly instead of seeking to equalize facilities? These questions do not deny that from the start the NAACP wished to attack segregation in elementary and secondary education. Rather, they ask why it took so long to bring the challenge, and why the challenge ended up taking the form that it did.

In many ways all these questions have a single answer. Facilities cases posed extraordinarily delicate political problems for the NAACP. Because the problems of internal politics were so severe, decisions about elementary and secondary cases were postponed for a few more years. By 1950, the decisions could not be put off, nor did Marshall want to postpone them further. He had used the period to lay the groundwork for a direct attack on segregation by demonstrating to various constituencies that the direct attack was an attractive though not costless choice. Successes in university cases that reached the Supreme Court, for the first time in nearly a decade, played an important part in that demonstration, as did a sense that the general political climate was receptive to a direct attack. Further, though some of Marshall’s constituencies were hesitant about directly attacking segregation, other important elements in the NAACP had been urging the strategy on Marshall for several years. All things considered, the timing, and to a lesser degree the substance, of the direct attack decision appear to have been most significantly affected by organizational politics.

Marshall’s position, then, was that relief in the form of equalization of facilities was subsumed under the request for an end to discrimination, and would be acceptable as a fallback position. But he rejected equalization as the sole form of relief to be sought, because that would implicitly accept the position that segregated schools were legally tolerable and could be made equal in fact. Marshall seems to have had the better of the argument, and indeed it was later noted that the basic desegregation cases were developed in ways that "left all options open," and that "some of these cases look suspiciously akin to the old equality approach with the direct challenge thrown in." But it was not just the contest with Wesley for leadership in the black community that led Marshall to tell the Texas Conference of Branches of the NAACP that "[i]t no longer takes courage to fight for mere equality in a separate school system," and that the NAACP would not seek to enforce segregation statutes. The reality of the litigation process meant that the difference between equalization and the direct attack could not be blurred once the cases moved past the stage of pleading, and it was certain that, given a choice, school boards would equalize rather than desegregate.

These ideological concerns were augmented by organizational factors. Investigating inequalities was likely to be time-consuming, especially in systems where black schools might be as good as white ones in some respects — for example, by having been constructed more recently — but worse in others — for example, in lacking laboratory facilities. The salary equalization cases had shown how serious a drain on the NAACP’s limited resources one fact-laden case could be, and how difficult it was to use such a case as a lever in securing victories in other cases. Marshall explored these problems by reproducing what he had done in the 1930s. In late 1947 he arranged to pay a young Virginia lawyer, Spottswood Robinson, for a one-year effort to establish a litigation program for elementary and secondary schools… When the year ended, Robinson had explored the situation in seventy-two districts, and had "active" cases at some stage in thirty-eight. But by October 1950, three years after the program began, Robinson reported that only three of fifty-one active cases were in court. The reasons were obvious: as Robinson reported to Marshall in a memorandum apparently solicited as part of Marshall’s effort to persuade doubters that the direct attack was preferable to equalization litigation, the cost of a single equalization case in which only two schools were compared was $5,000. Investigation required substantial investments of attorney time, and, as Robert Carter pointed out, whereas equalization cases had to proceed school district by school district, the direct attack would require only a single case for each jurisdiction. If, as Marshall desired, a concentrated attack leading to real progress were to occur, it would have to take the form of a direct attack. The NAACP lacked the resources for any other course.

The national staff had been expanded, but this, instead of making more attorneys available for the time-consuming equalization cases, actually increased the pressures for the direct attack. The staff at first consisted of Houston and Marshall. Houston resigned as special counsel in 1939 and became the most important member in a sort of "shadow" staff that conducted occasional investigations and litigation. Typically, Marshall supervised the investigation and did the litigation himself. As, he had before 1939, Marshall handled most of the salary equalization cases after he succeeded Houston. But for some time after 1939, Houston, though not formally on the NAACP staff, litigated a number of important graduate school challenges. By the mid-1940s Houston's direct contributions to litigation had substantially diminished, but his place was taken by a number of salaried staff lawyers. The expansion of the staff, which included at various times Milton Konvitz, Edward Dudley, Robert Carter, Marian Wynn Perry, Franklin Williams, and Constance Baker Motley, allowed Marshall to claim that "we are now in a position to broaden out our legal program."

The new attorneys enthusiastically favored the direct attack…. Though the pressures to attack segregation directly were strong, they were partially offset by others. One was a diffuse sense that the direct attack was premature; the NAACP had not, after all, secured a major school decision from the Supreme Court since the Gaines case in 1939. More important, black teachers and principals, who had provided the primary support for the litigation until then, were extremely nervous about the direct attack strategy. A study of the 1950 Who’s Who in Colored America indicated that educators, including those in elementary and high schools, formed the main professional group in the southern black leadership. Their sense of southern mores and some painful experiences had shown them that the jobs of all black teachers, not just those of a few who took active part in litigation, were threatened by the direct attack. They knew that southern whites would not tolerate a situation in which black teachers, especially men, taught white children, especially girls. The threats did not materialize until after the decision to pursue the direct attack was made, but by the end of 1951 it was clear that these fears were "one of the greatest factors contributing to opposition to integrating the public schools" within the black community….

These countervailing pressures could have resulted in organizational paralysis. It is true that the choice between equalization and direct attack was postponed from 1945, when the issue surfaced, to 1950. But the period was not one of paralysis. Rather, it gave Marshall the time to use his skills as brilliantly as he ever did throughout the campaign. He combined a consistent rhetorical commitment to the direct attack with a conscious strategy of temporizing. The delays were used to prepare the organization for the direct attack decision that Marshall preferred all along.

In late 1945 Marshall expressed concern to Walter White about "our inability to get cases started on the equalization of educational opportunities in, the South." The lawyers were available, the cases were important, and they were easy to win. He suggested that a planning conference be held. In May 1946 the lawyers met in Atlanta for an informal review of procedures. Although much of the discussion focused on the university cases, it did explore the, theoretical problems entailed by seeking a general injunction rather than the elimination of specific inequalities. By the end of the year Marshall was able to write Carl Murphy a letter that combined support for the direct attack with reasons for delay: "Frankly, and confidentially, and just between the two of us, there is serious doubt in the minds of most of us as to the timing of an all-out attack on segregation per se in the present United States Supreme Court. We are now working on the problem of having a complete study made of the evil of segregation to demonstrate that there is no such thing as "separate but equal" in any governmental agency....When this is complete, it might then be possible to make an all-out attack. However I do not know how long it will take to complete this study. . .

The Board of Directors and the Annual Conference of the NAACP endorsed Marshall’s position in 1948. The board stated, "it is our policy that the N.A.A.C.P. will not undertake any case or cooperate in any case which recognizes or purports to recognize the validity of segregation statutes or ordinances; the N.A.A.C.P. will likewise not participate in any case which has as its direct purpose the establishment of segregated public facilities."

During the 1940s the black community in the District of Columbia sued to force the school board to permit blacks from an overcrowded junior high school to attend white schools with vacant seats. When the school board designated two white schools as "annexes," black parents pointed out that students in shop classes had to travel between the junior high and the annexes, and so did not receive an adequate or "equal" education. Their children began a student strike that lasted over a month. The parents turned to the possibility of litigation, and approached Charles Houston, then in private practice. The parents were uncertain about the wisdom of a direct attack on segregation, and agreed with Houston’s suggestion that they sue for equalization of facilities. The parents had no organized connection to the NAACP. Houston conducted the lawsuit independently of the NAACP legal staff, and the suit was supported by fund-raising within the black community. Over a powerful dissent by Judge Henry Edgerton, the District of Columbia court rejected the parents' lawsuit. Houston died a few months later, and the parents asked James L. Nabrit, a law professor at Howard, to continue the litigation effort. Nabrit refused to assist in equalization litigation, but offered to bring a direct challenge to segregation. That lawsuit, which like the Kansas one was supported by the NAACP national office, was filed in early 1951.

By that time the NAACP lawyers had gained substantial experience in conducting complex desegregation litigation. The national office could coordinate four major lawsuits in South Carolina, Virginia, Kansas, and Delaware, essentially simultaneously. Different lawyers from the national staff could supervise one of the lawsuits — Marshall in South Carolina, Carter in Kansas and South Carolina, Jack Greenberg in Delaware. Talented local counsel such as Robinson in Virginia, Redding in Delaware, and Nabrit in the District of Columbia could handle substantial parts of the litigation. Further, the framework of the sociological argument had already been constructed for the law school cases. The lawyers understood that expert testimony on the social and psychological effects of segregation was useful, and they had developed a network of academic experts who could provide that testimony. They had only to substitute a few experts in child psychology for a few experts in the legal profession, and the structure of the desegregation cases would be complete.

Thus, once the initial difficulties in mobilizing communities to support a direct attack on segregation had been overcome, the desegregation cases flowed relatively smoothly. A few minor tactical issues remained to be worked out. For example, Marshall believed that Judge J. Waties Waring of South Carolina would be sympathetic to the direct attack, for Waring had ruled in favor of black plaintiffs in some earlier cases, including a challenge to South Carolina’s failure to provide a law school for blacks. Other federal judges who might hear a South Carolina case were likely to be much less sympathetic. Federal statutes allowed a single judge to decide certain constitutional claims, but required that a panel of three judges hear suits seeking to enjoin the operation of state statutes. Marshall therefore attempted to persuade Judge Waring that the South Carolina lawsuit was not really an attempt to enjoin segregation. When that failed, as Marshall surely expected it would, he tried the case before a three judge court.

The direct attack lawsuits shared two characteristics. First, they included substantial amounts of testimony from social psychologists. Perhaps because of the uncertain scientific status of social psychology, or because its conclusions are frequently at odds with common sense, the testimony of these witnesses was more controversial than the expert testimony in the previous cases had been. This testimony attracted a great deal of attention after Brown, which cited some of its foundations — though none of the testimony itself — celebrated footnote. Yet the Court’ internal discussions in Sweatt strongly suggest that the testimony of the social psychologists had little direct impact on the outcome in Brown. Instead, it provided part of a general climate of opinion sympathetic to the claims made by the NAACP.

Second, the facts in the cases undermined efforts to leave open the issue of equalization versus desegregation. In South Carolina and Virginia the facilities were conceded to be unequal, but the states claimed that their legislatures had started substantial programs to upgrade black schools; they argued that an injunction was therefore unnecessary to guarantee equality. In Kansas the facilities were nearly enough equal to make it futile to focus the litigation on material inequality. As lawyers the NAACP’s attorneys would have preferred to leave the question of material inequality open, because that would have expanded their tactical options. But as activists they were content with the lawsuits as they had been framed.

Each lawsuit proceeded at its own pace. Not unexpectedly the cases in Kansas, Virginia, and South Carolina went against the NAACP; in Delaware the court held that the facilities were substantially unequal and ordered desegregation rather than equalization. In November 1951 the NAACP asked the Supreme Court to review the Kansas case. The Court refrained from acting on the request until June 1952. In the meantime the Court asked the trial court in South Carolina to consider the implications of a reported equalization effort. After the trial court adhered to its original position, the Supreme Court accepted the appeal of that case on the same day that it agreed to review the Kansas case.

The justices plainly knew of the scope of the NAACP’s attack. In October 1952, shortly before the Kansas and South Carolina cases were to be argued in the Supreme Court, the Court accepted the Virginia case for review and postponed the other arguments until all three could be heard together. Then the justices directed the clerk of the Supreme Court to contact the lawyers in the District of Columbia case, and asked that they seek immediate review in the Supreme Court, bypassing the court of appeals. After the petition for review before judgment in the court of appeals was filed, the Court granted it in early November and added the Washington case to those already set for argument. Three days later the Delaware attorney general sought review of his case. The four other desegregation cases were scheduled to be argued in early December. The Court's clerk asked the Delaware authorities to accelerate their appeal, but the state’s attorney general wanted to follow the normal timetable, which would have given him more time to prepare. Nonetheless, the Court did accelerate the process. When it accepted the Delaware case for review on November 24, 1952, the Court scheduled argument for December 11, immediately after the other four cases would be argued. It allowed the parties in the Delaware case to file their formal briefs after the argument.

The Court's extraordinary actions in the Washington and Delaware cases signaled its determination to dispose of the segregation issue as it was then framed. Discussions among the justices in the 1950 cases had shown that they were ready to abandon the "separate but equal" doctrine. They still needed time to figure out what remedy should be used: immediate desegregation nationwide, prompt desegregation with minor adjustments for peculiar local conditions, or gradual desegregation to take account of anticipated resistance. When the Court rejected the "separate but equal" doctrine in its first decision in Brown v. Board of Education on May 17, 1954, it rescheduled the cases for argument the following fall, on the issue of remedy. By deferring the question that it found most difficult, the Court opened up a different phase in the litigation campaign and in the nation’s experience with the issue of race.
 
 

B. Lessons Learned  (Reading for Sept. 9)

The NAACP’s litigation effort illustrates the dimensions of litigation as a social process. A group of people discover that they agree that something is wrong. They formulate their grievance in light of what they have learned over the course of their lives. They discuss matters with their lawyers, and the grievance may be reshaped. They present their claims, and discover that a remedy will not be immediately forthcoming, and that the remedy may provide some of them with what they want while depriving others of what they already have. Their opponents respond, sometimes by settling the dispute, sometimes by changing their behavior to make it harder for the plaintiffs to win. However the courts respond to a lawsuit, the problem is not resolved. Settlements and decrees must be enforced. Often the locus of controversy shifts from the courts to the legislatures, as prevailing plaintiffs seek more effective relief, or as losing plaintiffs seek to get some relief from someone. Thus the social process of litigation begins well before a lawsuit is filed and ends well after a judgment is entered.

By seeing litigation as a social process, we may consider whether the analysis of the NAACP’s litigation activities from 1925 to 1950 supports broader conclusions. These conclusions can be grouped under three headings: the meaningfulness of characterizing the litigation as the execution of a previously developed plan, the implications of the issue of planning for a more general view of public interest litigation, and the relative importance of internal and external influences on the events. The discussion of the third topic will lead to some speculations about the larger consequences of the litigation effort.

Most commentators on the NAACP’s litigation have seen the campaign as a combination of strategic planning and successful implementation. Because the NAACP's litigation ended so spectacularly with the decision in Brown, it has been hard to resist two temptations: the first is to see the outcome as the obvious product of plans that had been laid many years before, and the other is to take the campaign as a model for public interest law generally. Thus, viewing the campaign in the light cast by its results, Richard Kluger tends to tell a story of unproblematic success: that the campaign was rationally and without fundamental error designed to maximize the chance that the NAACP would win. In a more analytical study, which explicitly treats the NAACP campaign as a "forerunner…to the public interest firms" of today, Prof. Robert Rabin similarly presents it as a process guided by rational planning. He describes it as originating in "a strategic plan for cumulative litigation efforts aimed at achieving specified social objectives." A final example can be drawn from a report by the Council for Public Interest Law on financing public interest law. Its brief historical section summarizes the NAACP’s "institutional model" as one that used a full-time salaried staff that would not handle routine or defensive cases but would take "an active role in the strategic accomplishment of goals," and that relied on membership for financial support, and its plan as one that developed incremental victories that could be followed up by a network of affiliated local attorneys.

These approaches seriously overestimate deliberate design as a characteristic of the NAACP campaign. The campaign was animated by a continuing and always self-conscious dedication to the destruction of the constitutional support for segregation. Further, participants repeatedly characterized their efforts as the execution of a plan. But the contents of that "plan" changed with some frequency. Only between Alston in 1940 and the initiation of the university lawsuits in 1945 was there an extended period of relatively consistent strategic activity, and even during that period the nature of the salary equalization suits changed dramatically as the NAACP lawyers had to develop responses to newly instituted merit pay systems.

The NAACP and the lawyers associated with it identified several targets. Racial subordination was enforced in part by lynch law and other forms of terror, so the NAACP devoted major efforts to securing the enactment of a federal antilynching law. Lynch law sometimes took the form of kangaroo courts, so the NAACP sought to hold the states to constitutional requirements, well established by 1909, according to which the process of selecting jurors could not discriminate against blacks. Jim Crow laws in transportation and residential segregation by ordinance and private agreement were other elements in the system of racial subordination, and the NAACP acted against them, too. In addition, the NAACP tried to enforce the right to vote by attacking systems of primary elections from which blacks were excluded. Thus, the attack on school segregation was only part, of a much broader effort. The NAACP was never committed to destroying school segregation because it was central to the system of racial subordination. Rather, school segregation was just one of many targets, and it became an increasingly attractive one as precedents dealing with schools accumulated precisely because the NAACP had been litigating school cases for nonstrategic reasons. But destroying any of the various targets would help undermine the system that the NAACP wanted to eliminate.

The NAACP thus identified not a single target but a group of generically described evils — school segregation, lynch law, Jim Crow laws — and directed its efforts at those broadly defined evils. The areas narrowed the NAACP’s concerns somewhat by specifying where to look for opportunities to attack the legal basis of racial subordination. Within the general areas, though, the NAACP’s efforts were not systematic or strategic. Instead, the organization attacked what might be called targets of opportunity. The history of the NAACP’s litigation strategy repeatedly discloses, within the broad commitment to a legal attack on racial subordination, proposals made by planners who were removed from implementation of the plans, the abandonment of those plans in favor of others that reflected the NAACP’s internal organizational constraints, decisions altered because of preferences of the staff, and negotiations over plans with constituencies having diverse interests.

If the military metaphor referring to a litigation campaign is helpful, the campaign was conducted on a terrain that repeatedly required changes in maneuvers. Sometimes changes were required because the planners had relied on a stability in their environment that proved to be lacking, and sometimes because those implementing the plans had their own needs and priorities, which became clear only after some actions had begun. Thus, salary equalization litigation became transformed in part because southern school boards responded to attacks on salary schedules that explicitly discriminated against black teachers by developing equally discriminatory merit systems that did not refer expressly to race. Needs internal to the NAACP led to the shift from the Garland Fund proposal to the Margold Report to Houston’s approach, and may have played a decisive role in the abandonment of equalization litigation in favor of a direct attack on segregation.

These adaptations, particularly to the extent that they resulted from internal organizational influences, raise questions about the practice of public interest law in general. One question frequently raised in discussions of public interest law is, to what extent are litigation campaigns independent of the wishes of a defined group of clients? The professional relationship between lawyer and client has its basis in the fact that the lawyer acts on behalf of a client. Lawyers who use litigation only to advance their personal goals, rather then the goals of their clients, are usually thought, to act unethically. Answering the question about the independence of the NAACP lawyers requires that a couple of careful distinctions be drawn. First, one must distinguish potential clients who desired to attack segregation through litigation from those who did not, either because they preferred other modes of attack or because they preferred to avoid disrupting a set of accommodations on the issue of race that they found satisfactory. Second, in regard to the group preferring litigation, one must separate those who desired the direct attack on segregation from those who preferred to continue the effort to equalize facilities.

It distorts the inquiry in important ways to frame the first distinction as involving a broad choice between litigation and other modes of attack. The NAACP was not the only organization in the black community, and the obvious resolution of the question of how to attack segregation was the one that was finally reached. Different types of organizations would engage in different types of activities. Because of their varied histories and ideological commitments, organizations in the black community had what might be called comparative advantages in different spheres. The NAACP could carry out litigation, the National Negro Congress could engage in direct political action, and the Urban League could concentrate on generating jobs for blacks by persuading leading white employers to provide them. If each type of activity could contribute to the advancement of black interests, allocating efforts on the basis of comparative advantage was an entirely sensible way to maximize the chance that the black community as a whole would benefit. Reaching this outcome was, of course, not easy. The leaders of each organization undoubtedly wanted personal recognition as leaders of the black community. It was hard for a person like Walter White to be generous to his competitors, and Roy Wilkins engaged in a running feud through the early 1940s with Lester Granger, the executive director of the Urban League. These difficulties, though, would have had little significance for the black effort unless one organization came to dominate the competition and thus eliminated the popular basis on which other groups drew for support. Such domination may have occurred briefly in the late 1940s, when the NAACP’s litigation campaign appears to have pushed other forms of mobilization aside. Yet that was a time when it may have been proper to devote more resources to a single activity for a short period.

The NAACP’s litigation effort raises a second issue about its basis in the black community. Some blacks, usually called accommodationists, opposed nonevolutionary changes in the system of race relations in the South. They therefore opposed any active efforts to alter that system. Clearly the NAACP’s litigation could not satisfy those elements in the black community. Two factors diminish the significance of accommodationist opposition in an assessment of the NAACP’s activities as a form of public interest law. First, with few exceptions state defendants presented as effectively as they could be presented the arguments that accommodationists had. Even where the nominal defendants, such as the presidents of some segregated universities, may have tacitly supported desegregation, their lawyers had close ties to the dominant segregationist elements in the white community. In an era when few were embarrassed when whites made assertions about what was good for blacks, defendants may have represented accommodationist interests fully. Second, as we have seen, successful litigation required strong support from the community. University desegregation was thwarted in North Carolina by the strength of the accommodationist elements there, and the opposition of Wichita teachers to the direct attack forced the NAACP to shift its attention to Topeka. It overstates the matter only slightly to say that the NAACP lawyers simply could not win their lawsuits unless they represented the majority of the black community.

Principles of comparative advantage, and the impact of community division on the prospects for success, thus seem sufficient to alleviate whatever concern there might be about the representativeness of the NAACP in its choice of litigation as against other activities. In 1935 that was the only issue. Du Bois had asked whether blacks should try to use the courts at all. Once that question was answered, primarily by the principle of comparative advantage, there was at that time nothing else to discuss. By the late 1940s the issues became more complicated, as plausible alternative strategies of litigation became available. In pursuing the direct attack, how free were the NAACP lawyers of control by clients?

Every case had a real client with whom the NAACP lawyers had personal contact. These clients were volunteers in the sense that they usually initiated the contact with the lawyers. Of course, the NAACP and its lawyers made it widely known, through speeches to community organizations, through The Crisis, and through general publicity, that the lawyers were available to assist people who wanted to challenge segregation. In this sense they were looking for clients. But the available evidence includes many instances of clients such as Walter Mills and Lucile Bluford stepping forward in response to general invitations, and no instances of an NAACP lawyer approaching a potential client on an individual basis uninvited. For internal organizational purposes, perhaps to bolster their own sense of being in control of things, the NAACP lawyers often said that they were trying to find plaintiffs. Their activities were far more efforts to educate the community than attempts to solicit clients.

Just as they did not solicit clients, the NAACP lawyers did not dominate their clients’ decisions except by educating them. In part, this occurred because the lawyers had little to offer clients. Formally speaking, they offered clients chances to increase their salaries or to attend better graduate schools. But those rewards were attended by so much difficulty that, on balance, the material incentives for becoming a plaintiff were extremely small. Teachers would be harassed by their employers and, especially as settlement negotiations advanced, might find themselves in conflict with other teachers over the terms of the settlement; applicants to graduate schools would have their life plans disrupted by the delays of litigation and would occasionally have difficulty in finding work during the indefinite interval between suing and attending school. In addition, to the extent that a person wanted material gains from litigation, a serious "free rider" problem intervened. Why should a teacher volunteer for an equalization suit when the benefits would accrue to all teachers? Why not wait until someone else assumed the obvious burdens? Thus, as Melvin Alston said, it made little sense to become a plaintiff in the hope of securing material gains. Rather, clients had to be in the fight as a matter of principle, and people who undergo serious strains for matters of principle are likely to be rather aggressive sorts, both in initiating contacts with lawyers and in dealing with their attorneys once litigation begins. Lucile Bluford and Ada Sipuel are only the most dramatic examples among the NAACP’s plaintiffs; they were women who knew what they wanted and surely would not have acquiesced in legal maneuvers with which they disagreed.

Because material incentives to sue were slight, ideological incentives had to be available. But precisely because the plaintiffs’ incentives were ideological, the NAACP lawyers could not dominate their choices. The plaintiffs came forward because they saw the congruence between their views and those publicized by the NAACP lawyers. The fact that ideological congruence was needed at the start served to screen out potential plaintiffs with whom the lawyers would disagree, and, as the South Carolina law school case suggests, when disparities in views became apparent, the plaintiff tended to abandon the lawsuit. The lawyers therefore could not have imposed, and did not need to impose, decisions on their clients.

In addition, the initial phases of the litigation campaign involved suits on behalf of well-educated blacks, who could be expected, to, and usually did, take great interest in their lawsuits. When decisions had to be made, the lawyers could easily present their clients with the options and explain their significance. By educating the clients in the law, the lawyers could persuade them to do what the lawyers thought best. In situations where the educators have no power to make their students worse off if the students reject the lessons, persuasion by education is not usefully thought of as domination. This sort of education occurred repeatedly, even on such technical issues as the choice between injunctive and mandamus relief, as some of the activities after the Alston decision indicate.

The best examples come from later stages in salary suits, when Marshall frequently had to explain why proposed settlements were not as good as those the teachers could secure if they held firm. I have sometimes spoken of this process as "keeping the teachers in line," but it was one of persuasion by a respected and informed attorney. Most of the disputes were over the period during which equalization was to be accomplished; Marshall persuaded teachers to insist on shorter rather than longer periods; and settlements that were more favorable along the only relevant dimension were in fact routinely reached. Here once again the extraordinary character of Thurgood Marshall played a crucial part. Though no adequate biography of Marshall has yet been written, there is enough information available to tell us that Marshall was a charismatic figure in the black community. He loved its institutions, and his deep commitment to the community was evident in his manner of dealing with black people as well as in his more public actions.

There is, of course, a sense in which Marshall and the legal staff had and exercised power on these issues. The staff had expertise in the area of segregation litigation and occasionally discouraged potential litigants who wanted to assert claims other than those favored by the staff. Even though the staff did not have a monopoly on the relevant areas of the law, such threats obviously reduced, and in some instances may have eliminated, the range of possibilities open to potential litigants. In addition, Marshall had built up a fund of respect in the community, on which he could draw to overcome hesitancy among possible dissidents. To say this is to say only that the NAACP lawyers participated in the political life of their community. What matters is not the inevitable, that lawyers have a kind of power with respect to their clients, but the variable, what disciplines them in the exercise of the power they have. Marshall's educational efforts show that he was indeed subject to the discipline of his constituency.

The argument as to facilities suits and the direct attack on segregation elaborates these points by introducing the fundamental importance of community organization. The NAACP had always been an organization whose black membership was drawn from the middle class. In facilities suits, the lawyers were not dealing with a clientele composed exclusively of well-educated blacks, but with entire communities. However, within each community, the leadership was likely to be relatively sophisticated, and the process of generating support for the lawyers' decisions through community education would occur in two steps, from the lawyers to the leadership to the community as a whole. The problem of representativeness is linked to the existence of community organization, too. There always existed a range of views within the black community on questions involving litigation to end segregation. In that sense, the NAACP could not fairly purport to articulate the views of a united community. But until the lawyers had to face the direct attack decision, they could fairly say that what they did, in fact, exhausted the community demand for litigation. For those in the community who thought that a litigation strategy was desirable, the NAACP’s strategy was uncontroversial; thus, no one fell outside the range of what the NAACP lawyers did.

Thurgood Marshall’s exchanges with Carter Wesley show that by the late 1940s the NAACP legal staff could no longer identify their views with those of all in the black community who were interested in litigation. The staff therefore had to choose which segments of the community to represent, and the form that the choice took is significant. The lawyers did not go into communities where they would have faced substantial internal dissent; that is, they regarded black communities, more than individual blacks, as arrayed along a continuum measured by the degree of support for their preferred direct attack strategy, and they sued only in those communities where the degree of support was high. For organizational reasons, the legal staff always pressed the branches to support the litigation, and frequently would not pursue a case unless the local branch joined it. Although there was no guarantee that even a local branch represented the views of the community as a whole, certainly there was no better evidence then available.

There were two important aspects of their situation that made it likely that the NAACP lawyers represented a majority of the black community. Despite the way it may seem in retrospect, the national NAACP staff and the lawyers on the NAACP’s Legal Committee were not the only lawyers available to the black community, although they probably were the best ones. Other lawyers could represent black communities desiring services the NAACP lawyers might refuse to supply. In addition, the NAACP lawyers were members of the black community and as a result were sensitive to its wishes. The evidence, summarized in what follows, strongly suggests that the NAACP lawyers did in fact represent the larger portion of the black community.

Before Brown v. Board of Education was filed in 1951, at least eleven lawsuits challenging unequal physical facilities at elementary and secondary schools were brought in Arkansas, Texas, North Carolina, Virginia, and Missouri. This figure compares favorably with the number of reported decisions in salary equalization cases. The national NAACP staff became involved in four additional facilities suits, in Texas, North Carolina, Kansas, and Tennessee. Further, as we have seen, the legal staff offered to review pleadings and briefs in equalization cases that might be brought in North Carolina, consistently the most conservative constituency that the NAACP had, though one cannot be too confident that the staff would have welcomed a request even for that limited assistance. Even the lawsuits in which the NAACP national staff did not participate were influenced by the NAACP experience. The lawyers in seven of the eleven non-NAACP lawsuits had significant past contact with the NAACP legal campaign. Unaffiliated lawyers may not have been as able as the NAACP lawyers, and could not draw on the staffs resources. Indeed, the lawyers without NAACP experience were less successful in these equalization cases than those with it. But apart from the difficulties involved in investigating at the site (which local lawyers could do more easily than NAACP staff could), facilities equalization cases were relatively straightforward. Even more dramatic, Carter Wesley, the most vocal advocate of facilities litigation, was a lawyer with significant experience in constitutional litigation from the white primary cases. He presumably was available for those communities in Texas which were less convinced of the desirability of a direct attack on segregation than were the NAACP’s staff and Legal Committee. The fact that Wesley did not mobilize any communities for facilities cases suggests that he did not speak for a significant portion of the black community anywhere in the country. That is, because the NAACP lawyers knew that there were at least a few lawyers who were available for facilities suits, they could be reasonably confident that, when no such suits were brought, the black community taken as a whole did in fact prefer the direct attack to equalization litigation.

The fact that the present study was written primarily on the basis of evidence in the papers of the national office of the NAACP reduces, though it does not eliminate, the significance of the absence of requests for assistance in facilities equalization cases. Yet when the available items of evidence are considered together, it seems significantly more likely than not that the NAACP’s legal staff, in pursuing the direct attack, was acting in accordance with the desires of a broad segment, and perhaps more, of the affected class.

Probably more important, the NAACP lawyers were themselves part of the community they sought to represent. They could not, of course, identify their personal preferences with those of their constituents. But the lawyers were part of a relatively dense network of community organizations — churches, newspapers, social fraternities — that rather effectively exerted discipline on them. For example, when political differences broke out between the teachers in New Orleans and the NAACP branch, a prominent black newspaper editor served as the intermediary between the disputing elements and communicated the political problems to the national staff, thus informing the lawyers of what had to be done if the suits were to continue. The editor,, Donald Jones, later became a member of the NAACP staff. Similarly, Roy Wilkins had been the managing editor of the Kansas City Call before he joined the NAACP staff; Lucile Bluford was one of his successors. That the NAACP was only one of many organizations in the black community therefore not only supported the use of comparative advantage in allocating activities to different groups; it also contributed to that same comparative advantage by bolstering the lawyers’ sense that they were indeed in tune with the community’s values.

The network of community groups played another equally important part in the litigation campaign. The pattern of successes and failures provides support for the hypothesis that community support was not just ethically desirable but an essential condition of success. If the hypothesis is correct, it also makes less pressing the questions about the lawyers’ domination of the clients’ choices; if they wished to succeed, the lawyers could not afford to strong-arm the clients into supporting the lawyers’ decisions. Even if the lawyers individually did not care about the community’s wishes, which, of course, they did, they had to persuade, not coerce, their clients if they were to win. The arrangements for paying the fees of affiliated attorneys also made it important for the staff to persuade their clientele, at least so long as the staff thought it important for both practical and ideological reasons to retain the ability to farm cases out to local lawyers. It is a nice example of real world constraints on behavior supporting ethical action.

Aside from the pattern of results, there are reasons that make plausible the hypothesis that success depended on community support. The teachers' associations, for example, provided the names of potential plaintiffs, some emotional support when individual plaintiffs were harassed, and material support by promising a year’s salary to plaintiffs, like Aline Black, who were fired. Similarly, black fraternities provided money for plaintiffs in the graduate school cases to pursue their educations while awaiting the outcomes. And, of course, Lucile Bluford was employed by a, black newspaper. In contrast, several plaintiffs in graduate school cases lost interest when they found that local groups did not support them. In this light, perhaps Lloyd Gaines’s disappearance can be attributed to the relative isolation of the Missouri litigation from community groups in 1938. Another set of examples of the importance of community support is provided by North Carolina, where divisions within the black community aborted both graduate school and salary cases whenever the NAACP tried to get them started.

Community organizations, then, were useful, though perhaps not absolutely essential, in generating plaintiffs and keeping them satisfied while the litigation proceeded. They also performed important tasks directly related to the litigation. Parents in the Baltimore County case collected information about their children’s performance on entrance examinations; the teachers’ associations compiled data on salary disparities and counseled members on ways to deal with their employers that would not prejudice the litigation. Occasionally, as in several law school cases, the NAACP lawyers could take the time to investigate the conditions of the separate graduate programs, drawing in those cases on their own knowledge of what mattered in a law school. But in general they lacked the resources to do the detailed investigation that was necessary to litigate any lawsuit well. The "outline of procedures" sent to the branches quite rightly emphasized the importance of preliminary investigation, which had to be done in the field and which could not be done by the national staff or by affiliated attorneys, who had their fee-generating practices to take care of. A dedicated individual might have done the work, but it was precisely such an individual who was likely to be a community leader; indeed, investigating some incident could serve as an activity that would itself foster organizational growth. For example, in Atlanta and Baltimore the branches used surveys comparing the quality of facilities at black and white schools as tools for stimulating interest in the organization.

The investigating group might have been a fringe element in a broader community opposed to litigation, but the NAACP did not face that problem during the period covered by the present study. In fact, the national staff had reasons to try to guarantee that the groups on which they relied for work in the field were broadly representative. A case could be litigated well, to a favorable judgment, with only some community support. But litigation does not end with the judgment. A decree must be written, which calls for extensive negotiation over details like timing, and, once the decree is entered, compliance must be monitored. Divisions within the local community seriously impeded negotiations over the terms of decrees and settlements in salary cases throughout the South, for school boards knew how to treat such divisions for what they were — indications of weakness in the negotiating position of the NAACP lawyers. Where differences over compliance arose, defendants who had lost could play on the divisions to gather support for the claim that they had fully complied with the decree.