SIMPLE JUSTICE

EXCERPT

Pages 259-265

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SIMPLE JUSTICE Pages 259-265

The spurs of Texas are upon you

…The South began to talk about setting up regional graduate and professional schools for colored students only, real ones well equipped and staffed and paid for on a shared basis by the segregating states. It seemed a possible solution to the dilemma posed by Gaines. For if or when the Supreme Court went beyond its holding in Sipuel and insisted that separate graduate schools had to be really equal in educational value, the South would have to spend millions it could ill afford to preserve Jim Crow education – or let the blacks into the law schools and engineering schools and the rest, and there would be no end of it. For the moment, though, the Court had spared the South from any major policy decision, and the region dug in, ready to repulse the next Negro assault.

The sovereign state of Texas had been so displeased by remarks of Homer Rainey, president of the University of Texas, to the effect that more generous educational facilities ought perhaps to be provided for the state’s colored population, that he was tossed out of his job. A former head of the U.S. Office of Education, Dr. Rainey had no doubt acquired his un-Texan notions by moseying around the federal corral for too long. In his place, the university’s board of regents picked Theophilus Shickel Painter, who would shortly win a place in history by being sued by a black mailman who wanted to become a lawyer. At the time, there were 7,701 white lawyers in Texas and 23 black ones. One more of the latter could hardly have mattered, except that this letter carrier, who bore the unfortunate name of Heman Marion Sweatt, wanted to get his legal education at the all-white university’s big law school in Austin, by far the best one in that part of the country. Sweatt applied in February 1946, a few weeks before Ada Sipuel did in Oklahoma, and was similarly rejected on racial grounds. But the outcome of his case, after a fight of more than four years in four different courts, would be very different from hers.

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At first, the district court in Travis County, where Austin was located, seemed to promise justice to Heman Sweatt. After the first hearing there in June of 1946, the judge gave the state six months to establish a law school at colored Prairie View University, an academic hovel that offered college credit for mattress making, broom-making, and other minimal vocational skills, or it would have to admit Sweatt to the white law school at Austin. The colored school, formerly known as Prairie View State Normal and Industrial Colleges for Negroes, was a university in name only, so designated by a state with a fetish for giantism and a reluctance to acknowledge it was treating its gifted young blacks as intellectual lepers. In response to the court order, the state stuck with the fiction that Prairie View was a university, rented a few rooms in Houston, about forty miles southeast of the Prairie View campus, hired two black lawyers to serve as its faculty, and called the arrangement the Prairie View law school. The Travis County District Court, reconsidering Sweatt’s case in December as scheduled, found that the makeshift arrangement in Houston provided substantial equality to the Negro applicant despite its deficiencies in a few areas, such as the absence of a student body, a trained faculty, and a library.

By the time Sweatt’s complaint was heard by the Court of Civil Appeals the following March, the Texas legislature had shown that it had a heart as big as all outdoors by appropriating three million dollars to create a new, “first class” Texas State University for Negroes. Of the total, $100,000 was to go at once to the establishment and maintenance of a law school. The Houston excuse for a law school was abandoned and a new and better one was temporarily created in downtown Austin in an office building eight blocks away from the University of Texas Law School and just across the street from the state capitol. It consisted of three smallish basement rooms, three part-time faculty members who were first-year instructors at the Texas law school the rest of the time, and a library of 10,000 books plus access to the state law library in the capitol. Classes were to begin for Heman Sweatt on March 10, 1947, if he chose to attend.

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Sweatt chose instead to go back to court. Before the appeals judge, both parties agreed that a trial should be conducted in Travis County Court to determine if the one-man law school offered true equality. Since the same court had previously held that the makeshift school in Houston had met the test, the outcome of a full-dress hearing seemed foreordained. But Thurgood Marshall was building a record for the scrutiny of the only court in America that ultimately mattered. To do so, he had to fight on whatever ground was available.

He came loaded for bear to the humid, crowded courtroom in Austin. “I think we’ve humored the South long enough,” Marshall told the New York Post’s Texas stringer in a dispatch for consumption up North, “and it’s only by law suits and legislation that we’ll ever teach reactionaries the meaning of the Fourteenth Amendment .... This is going to be a real showdown fight against Jim Crow in education.” He was thirty-nine by then and smoking two packs of cigarettes a day. The pressure on him was constant. His duties as he defined them drew him regularly outside the courtroom to rally community support for whatever case he was arguing and for the larger goals of the NAACP Nearly 2,000 white university people showed up at such a mass meeting in Austin in mid-May just before the Sweatt trial began, by way of demonstrating support for Marshall’s efforts. A temporarily all-white NAACP branch, the only one in the country, had been launched on campus and enlisted 200 dues-paying members. At the giant rally, the young ex-GI who was president of the student body stood and said he thought democracy and Christianity ought to be practiced as well as preached at the university, and that no Negro who entered it would be mistreated or ostracized. His view won roaring approval and was seconded by the widely admired J. Frank Dobie, the state’s leading man of letters, chairman of the university’s English department, and the closest thing in Texas to Mr. Chips.

Biracism, though, was not applauded over at the state capitol. To hold the segregationist line, the state dispatched to the Travis County court Attorney General Price Daniel, who would subsequently serve as United States Senator for three years and governor of Texas for eight and prove a white-supremacist throughout all of them. His family owned land and the newspaper in the town of Liberty in easternmost Texas not far from Louisiana. “That’s Deep South,” notes Ronnie Dugger, a founder of the liberal Texas Observer, a political weekly published out of Austin. “Daniel was an ally of racists and a states’-rights man all the way. The most you could say for him was that he was not a real good hater.”

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Throughout the five-day trial of Sweatt v. Painter, Price Daniel was a tiger. He objected every time Marshall or his two associates, James Nabrit, Jr., and Dallas attorney W. J. Durham, blinked too hard. He went after the NAACP witnesses as if they were cattle rustlers. And he had schooled his own witnesses so well that Marshall met resistance every inch of the way. Marshall put heavy pressure on the dean of the law school, the law librarian, and other officials, but all contended they were doing right by any black law-school applicant. After Sweatt himself testified that “I don’t believe equality can be given on the basis of segregation” and he had therefore refused to enroll at the basement law school set up to meet his application. Daniel charged that this view represented an about-face from Sweatt’s original willingness to attend the Prairie View “law school” in Houston, a position he had taken in a deposition at the first court hearing in mid-1946. Daniel tried to blame the change on Thurgood Marshall’s entry into the case as agent provocateur, but Sweatt fended him off, saying he had not understood that Prairie View’s law school would necessarily be segregated. Daniel kept pressing the point, over the objections of Sweatt’s local counsel, Durham. Finally, Marshall objected with vehemence. He cited a 1942 case, conducted by Charles Houston to desegregate the University of Missouri School of Journalism, in which “the Attorney General of Missouri put up the same type of smokescreen to the effect that the case wasn’t the plaintiff’s case but belonged to a public organization . . . .” The court in Missouri ruled, “. . . if the appellant has the legal right and actually expects to attend the university, her motives for doing so are immaterial.” The Travis County judge, Roy C. Archer, agreed. But Price Daniel persisted:

. . . our purpose here is not to show his [Sweatt’s] motive for wanting to attend a law school. Our purpose is to lead up to a connected chain of events motivating him not to attend the separate school that has been offered to him, and, therefore, showing bad faith ....

He pushed Sweatt to admit that the NAACP was paying most of the costs of the case. When Durham objected that such a line of questioning was “completely immaterial,” Daniel opened up again:

I want to prove as to what was said and done about that matter about finances for the case, for the purpose of showing that the National Association for the Advancement of Colored People had as much control and management of this case . . . as he does himself, and that they have the further purpose of following that up with a concerted program to boycott this law school and keep other students out.

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Clearly, Texas was vulnerable in its claim of having established an equal law school for blacks if no students had enrolled in it. And here was this incendiary Marshall and his colored advancement group doing their utmost to discourage Negroes from attending the bargain basement of American law schools.

The judge’s willingness to let such diversionary and demagogic remarks be sprayed around his courtroom burned Marshall up. But he never lost his grip. James Nabrit, his co-counsel in the Sweatt trial, recalls: “He had the rare ability to know when and where to draw the line in his fervor. He was fuming over the judge in Austin, and he said to me before court began one morning, ‘I’m gonna tell that judge what I think of him today.’ I told him to take it easy. He said nothing in court, but after the case was over and we were all heading for the cars, there was Thurgood standing over in the corner apparently muttering to himself. When he came back to join us, I asked him what that was all about, and he said, ‘I told you I was gonna tell that judge what I thought of him – and I just did.’ He could do that. Once I was with him in a case in Louisville, and the attorney general of Kentucky kept calling our client by his first name, which was Lyman. Thurgood got up and said he resented it in behalf of his client and that everyone else in court was referred to as `Mister’ with his surname. The point was made and heeded until a little later the judge himself said, ‘What did Lyman say to that point?’ When I asked Thurgood later why he hadn’t protested a second time after the judge had done that, he said, ‘I was talkin’ to the judge, too, the first time.’ In court, he would fight with everything at his disposal, but he didn’t waste his effort. And he finally didn’t really care if the whites much liked him or not. He was trying to sell his wares, but he was less cold-blooded about it than Charlie Houston or Bill Hastie or myself. In his somewhat more offhanded way, he’d fight for every chip.”

Marshall fought now by bringing into court a string of experts who branded the state’s basement law school for blacks as a subterfuge. Earl Harrison, dean of the law school at the University of Pennsylvania, asserted: “. . . a very important facility of a modern law school consists of one’s classmates. In other words, it isn’t enough to have a good professor. It is equally essential that there be a well-rounded, representative group of students in the classroom to participate in the . . . discussion which centers around previous decisions of the courts.”

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Marshall then moved to get on the record that state-imposed racial separation was both scientifically unjustifiable and socially destructive. His instrument was one of the best-known and most highly respected scholars in the nation – Robert Redfield, chairman of the department of anthropology and for a dozen years the head of social sciences at the University of Chicago. He had a doctorate in both anthropology and law and was perhaps the only scholar in America with such credentials. He had studied racial differences for twenty years. As soon as Marshall’s line of inquiry became clear, the attorney general of Texas was on his feet objecting “because this lawsuit involves only education in law and procedure.” Marshall, threatened with the loss of testimony of one of the aces in his deck, was determined not to let the issue be narrowed. More in ardor than in order, the sentences came tumbling out of him with a directness and a conviction that riveted his listeners. Lest there be any mistake about it, he said, Sweatt was challenging the constitutionality of the laws of Texas as they deprived him of admission to the white law school because of his race, and “we have a right to put in evidence to show that segregation statutes in the state of Texas and in any other state, actually when examined – and they have never been examined in any lawsuit that I know of yet – have no line of reasonableness. There is no understandable factual basis for classification by race, and under a long line of decisions by the Supreme Court, not on the question of Negroes, but on the Fourteenth Amendment, all courts agree that if there is no rational basis for the classification, it is flat in the teeth of the Fourteenth Amendment.” The judge relented.

Redfield proved a brilliant witness whose every word suggested a cool, considered judgment with great authority behind it. Were there basic differences in the learning abilities of the two races? Scholars in the field, the Chicago professor replied, had begun with “a rather general presumption . . . that inherent differences in intellectual ability or capacity to learn existed between Negroes and whites, and have slowly, and I think convincingly, been compelled to come to the opposite conclusion….” More to the point, Redfield declared that research results “make it very probable that if such differences are later shown to exist, they will not prove to be significant for any educational policy or practice” – such as segregation, which he said “prevents the student from the full, effective and economical coming to understand the nature and capacity of the group from which he is segregated.” Beyond that, “it intensifies suspicion and distrust between Negroes and whites, and suspicion and distrust are not favorable conditions either for the acquisition and conduct of an education, or for the discharge of the duties of a citizen.”

On vigorous cross-examination by Price Daniel, Redfield turned back the attorney general’s thrusts so well that his answers were sometimes stronger than they had been on direct examination. Thus, when Daniel asked him if he did not agree that segregation, long enforced in Southern localities, could be ended only “by a gradual change instead of forcing it upon the community,” Redfield said simply, “I think that all change should not come on any more rapidly than it is consistent with the general welfare.” Daniel thought he had an easy mark on his hands and moved in.

Q. Yes, sir. In other words, you will agree with the other eminent educators in your field . . . that it is impossible to force the abolition of segregation upon a community that had had it for a long number of years, in successfully obtaining the results that are best?

A. No, I don’t agree to that.

Q. Do you think the laws should be changed tomorrow?

A. I think that segregation is a matter of legal regulation. Such a law can be changed quickly.

Q. Do you think it has anything to do with the social standing in the community?

A. Segregation in itself is a matter of law, and that law can be changed at once, but if you mean the attitude of the people with respect to keeping away from people of another race, then perhaps I have another answer…. I think in every community there is some segregation that can be changed at once, and the area of higher education is the most favorable for making the change.

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A little later, Daniel thought he had a trump card to show that the articulate anthropologist’s views were dwarfed by far weightier authority.

Q. Doctor, are you acquainted with the Encyclopædia Britannica, the publication by that name?

A. I have a set. I don’t look at it very often.

Q. You are from the University of Chicago?

A. Yes.

Q. Is that publication now published under the auspices of that university?

A. Yes.

Q. Have you read the article therein on education and segregation of the races in American schools?

A. If I have, I don’t remember it.

Q. You don’t remember it. Have you written any articles for the Encyclopædia Britannica?

A. No, we are just beginning a revision of anthropological articles, and it seems there has to be a very drastic change.

Q. Do you know who wrote the articles in the Encyclopædia Britannica on the subject of higher education for Negroes and segregation?

A. I don’t remember such articles.

Q. Do you recognize the Encyclopaedia Britannica and the articles on such subjects as an authority in the field?

A. No, I do not.

Q. You do not?

A. No, Sir.

Off the witness stand, Robert Redfield persisted in opposing the state of Texas. “The courtroom was integrated at the beginning,” recalls Charles Thompson, who followed Redfield to the witness stand, “but then it began to get more crowded and the whites coming in later on couldn’t find room. A big white policeman – this fella must have been seven feet tall – came in and saw the whites standing against the wall and then started telling our people, ‘Come on now, you know better than that.’ It was a state court, remember, and so he began to segregate the audience to make room for the whites. But Dr. Redfield and the dean of Penn law school, they wouldn’t move when the fellow told them to. They said they wanted to stay right where they were – with us.”

A month after the trial ended, the court ruled against Sweatt. It would take the better part of three years before Sweatt v. Painter crawled up the judicial ladder to the Supreme Court of the United States. Heman Sweatt, meanwhile, continued his appointed rounds as a postman, and as the hands of history touched the midpoint of the twentieth century, Texas remained fastidiously Jim Crow.

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