Book Excerpt: Before Brown v. Board of Education

Root and Branch: Charles Hamilton Houston, Thurgood Marshall and the Struggle to End Segregation, Rawn James Jr., 2010

In 1935, Thurgood Marshall and Charles Hamilton Houston’s fraternity, Alpha Phi Alpha, had been working on plans to file a lawsuit to integrate the University of Maryland. Led by its assistant general counsel Belford V. Lawson Jr., Alpha Phi Alpha had asked for and received help from the NAACP’s Washington chapter in conducting research and searching for a suitable plaintiff. Although Lawson was a prominent and respected lawyer, Marshall believed his dean would better handle the case.

Neither Maryland nor the university had laws or rules mandating that the college be segregated. The university’s racist administration excluded African Americans as a matter of policy. That the case was winnable accentuated the imperative that it be won. Nine black applicants had been rejected between 1933 and 1934, nine potential plaintiffs from whom Lawson soon would have his client. Swarmed with work at the law school and for the NAACP, however, Houston had not responded to Marshall’s entreaties about filing a case against the university.

By the opening months of 1934, Thurgood’s tone had become stressed: “Dear Charlie, Trust you had a good Christmas, etc. I hate to worry you so much about this University of Maryland case. When are we to get together on it? Things are very slow just now and I would like very much to get started as soon as possible.” A few months later Alpha Phi Alpha allocated sufficient money to try the case. As Lawson began to wind down his preparations, Marshall implored Houston: “What about the University of Maryland case? B.V. Lawson has been writing me and seems to think that the fraternity is going to try the case along with the local branches of the NAACP. I am up a tree as to just what is going to be done.”

As if sensing his fraternity brother’s anxiety, Lawson invited Marshall to a strategy planning session in Washington. Houston was in Augusta, Georgia on an NAACP mission. Marshall reached him by telegram. “ATTEND LAWSON’S MEETING,” Houston replied by wire. “GET FACTS BUT BE CAREFUL ABOUT COMMITMENTS.” Marshall would be more than careful; he refused to commit himself or the NAACP’s Baltimore chapter to Lawson’s case because he did not want to be a sailor on Lawson’s ship and his Baltimore branch was irked that the Washington branch would file suit in Maryland. Intra-organizational politics it was, but Marshall’s primary concern was that the case be won. Belford Lawson was a formidable attorney but he was not Thurgood’s Dean Houston. Truth be told, as far as the younger attorney was concerned, Lawson was no Thurgood Marshall either. Marshall disregarded Houston’s advice and respectfully declined to attend the meeting.

A week after his Washington strategy meeting, Lawson identified his plaintiff. Donald Gaines Murray was an eminently qualified recent graduate of Amherst College and the scion of a widely respected Baltimore family. He wanted to attend the University of Maryland School of Law. Lawson agreed to represent him and would proceed without the NAACP.

Or so he thought. With an impeccable plaintiff now identified, Houston gave Marshall the word; the NAACP would try the case. Lawson’s intentions and efforts were laudable but, even supported by the nation’s oldest black fraternity, he was outmatched in resources and experience. Houston and Marshall took over the case, Murray signed to be their client, and Lawson angrily became one of the first activists to learn of Houston’s and Marshall’s resolute belief in both the cause and their superior ability to affect its victory.

Nearly every biographical account of Thurgood Marshall’s life describes him as lead counsel for the plaintiff in Murray v. Maryland. This nearly unanimous misrepresentation ignores Marshall’s own account. “I worked the case out on the ground and I drew the pleadings since there was some intricate old Maryland common law involved, but outside the legwork I did very little. The court presentation was [Houston’s] doing. The fact is, I never was chief counsel in a case that Charlie took part in.” The Chicago Defender concluded its trial report with this note: “Assisting Attorney Houston in the Maryland University case was Attorney Thurgood Marshall of Baltimore.” These accounts buttress the recollections of others who practiced with Houston; Old Ironshoes was not a lawyer given to second chair. When time came for appeal, Houston instructed Marshall to “be sure to look up biographical data on all the judges of the Court of Appeals with special reference to the places and schools where they took their education. [Houston was] anxious to know how many attended unsegregated schools.” Such was the sort of detailed preparation that would see Marshall to and through where Houston by now believed he could go.

Armed with counsel, Murray applied to law school at the University of Maryland; the registrar promptly returned his application and accompanying fee. “President Pearson instructed me today to return to you the application form and the money order, as the University does not accept Negro students, except at the Princess Anne Academy.” Princess Anne Academy, on Maryland’s rural Eastern Shore, was more high school than university, and it had no law school. The State of Maryland, therefore, offered no legal education to its black citizens. There were no separate law schools by which even to reach the question of equality.

On April 20, the Washington Post reported, “Donald G. Murray, Negro graduate of Amherst College, filed mandamus proceedings [in Baltimore] today in an effort to compel the University of Maryland Law School to admit him as a student.” The complaint filed by Murray’s “Negro attorneys” asserted that “alleged refusal of the institution to accept Murray as a student was not supported by the law or the constitution of Maryland and it violated the fourteenth amendment to the United States Constitution.” The lawyers filed suit against university president Raymond A. Pearson, but the case would become famous as Murray v. Maryland.

It was Judge Eugene O’Dunne’s turn to be incredulous. In all his years on the bench the colorful jurist had seen many a law school professor move to have one of his students admitted to the Bar of the State of Maryland for the purpose of trying a case; pro hac vice was the term, meaning “for this particular occasion,” and a member of the D.C. bar, like Houston could be admitted to practice in Maryland for the purpose of litigating a specific case. This June morning in Baltimore City Court was the first time, however, that Judge O’Dunne had ever seen a newly minted lawyer move to admit his former law school dean pro hac vice. The meager courtroom crowd enjoyed a laugh at the judge’s observation, with the heartiest coming from veteran trial observer Willie Marshall, who arrived proud and early with Norma to watch their son’s first civil rights trial. The courtroom was nearly empty, however, because, as Marshall described it, “Negroes did not take more interest in the case because they felt it was hopeless.”

Houston rose to deliver the plaintiff’s opening statement. His deep voice resounded against the wooden chamber’s walls. Plaintiff Donald Murray had applied to the University of Maryland School of Law with an academic record far exceeding the school’s admission requirements. And the school had rejected him for the sole reason that it did not accept Negro applicants. The University of Maryland thereby violated the rights guaranteed to Murray by the Fourteenth Amendment to the U.S. Constitution. Neither state law nor the university’s charter enjoined Murray’s enrollment. Only the “race prejudice” of the school’s administration stood between Donald Murray and a legal education.

Maryland assistant attorney general Charles T. LeViness III rose to offer the defense’s opening statement. Before he uttered his first word, however, Judge O’Dunne had a question.

Was the plaintiff’s race the university’s acknowledged reason for rejecting his application?

Yes, your honor; it was a matter of public policy.

What did this public policy have to do with the state of the law?

Well, the State of Maryland presented its colored citizens with a sophisticated array of educational options, including a junior college and over two-dozen $200 scholarships for colored students to attend colleges outside the state.

Suppose, the judge wondered, a Negro student didn’t want to leave the state to pursue his studies?

LeViness bristled. Your Honor, one must be practical about these sorts of things. The State could not be expected to build a new separate graduate school every time a young Negro got the notion to become a professional.

Was the State willing to stipulate for the record that, but for his race, the plaintiff was qualified to be admitted to the law school?

Yes, your honor.

Houston and Marshall managed to mask their elation. Although his academic record should have placed it beyond dispute that Murray was qualified for admission to the law school, they had been prepared to spend hours litigating that very point. Murray’s qualifying for admission was a question of fact and if the court found that he was not qualified, then his case would be moot. That the state’s counsel conceded the point in the trial’s opening minutes was a welcome surprise.

Judge O’Dunne allowed the state to present its opening argument before instructing the plaintiff to call his first witness. Houston called his client, Donald Gaines Murray. The plaintiff stood about average height, shorter than both Houston and Marshall, and wore a tapered mustache similar to Thurgood’s. That he leaned back so comfortably on the witness stand was as much a testament to his self-assuredness as it was to his having been well-prepared by his attorneys.

How long had Mr. Murray lived in the State of Maryland?

All his life. Murray answered his lawyer’s questions to describe his desire to become a lawyer, his academic record, and his attempts to gain admission to the University of Maryland’s law school. The testimony was purposely dry; with Murray’s testimony Houston was entering facts into the record that he deemed critical for the appeal already anticipated by everyone in the courtroom. His witnesses were mouthpieces for facts he wanted on the record and any witness reluctant to accept such a role was likely to express his truculence by being evasive or argumentative.

And so Houston called university president Raymond A. Pearson as a hostile witness, which in practical terms meant that Houston could “lead the witness”—ask him yes or no questions. Watching a masterful trial attorney like Charles Houston question a hostile witness was to watch a tomcat paw a cornered mouse.

The plaintiff Mr. Murray had applied through the proper channels and submitted all necessary paperwork for admission to the law school, hadn’t he?

Yes, he had.

And, just to confirm, had he been a white applicant, Mr. Murray would have been admitted?

In all likelihood, yes, but because Negroes were not eligible for admission to the University of Maryland. The State provided them with scholarships to out of state institutions.

These scholarships were not available when Mr. Murray applied to the law school, were they?

No.

In fact, the State created them only after Murray’s application was rejected, correct?

Yes.

And in fact the funds allocated for the scholarships had already proven insufficient to meet the demands of Maryland’s colored citizens?

Yes, but this was why the State offered higher education to Negroes at the Princess Anne Academy.

Did the two-year course at Princess Anne Academy for Negroes offer the same caliber of education as, say, just the first two years at the University of Maryland?

Yes, of course, and even the faculty members were comparable “in some instances.”

But wasn’t it true that the faculty at Princess Anne had only one instructor with a master’s degree and did not have even one professor with a doctorate degree?

Well, yes.

Was Dr. Pearson aware that the biology and chemistry lab at Princess Anne consisted entirely of one table, a few test tubes and a glass butterfly case?

Yes, he was.

Were these facilities adequate?

Of course they were.

They were?

Yes.

Then why did the University of Maryland’s science labs offer so much more sophisticated equipment to its students?

Because the University offered more advanced classes than did Princess Anne’s.

With that admitted Houston switched tacks and asked if Mexicans, Japanese, Filipinos and Indians were eligible for admission to the University’s law school.

Yes, they were.

Then why were members of the plaintiff’s race not admitted to the university?

President Pearson glared at his questioner. Negroes were not admitted because—he personally had no objection to their attending the university. It was not a matter of his imposing any sort of race prejudice on the school. It was a matter of state policy, you understand, beyond his control.

It was beyond his control even though he was president of the university and there was not a single law, rule or regulation requiring the exclusion of Negro applicants?

Yes. But this is why the State created the scholarships for them to attend out of state institutions.

The scholarships that were not created until after Mr. Murray’s application had been rejected.

Yes, those scholarships.

Houston dismissed the witness after a withering hour and a half examination. Next he called his colleague to the stand—Roger Howell, dean of the University of Maryland’s law school.

Houston squeezed from his fellow law school dean a series of valuable concessions. Yes, the University of Maryland’s curriculum focused on Maryland state law, which made it unique among the nation’s law schools. Of the school’s eighteen faculty members, twelve were judges or otherwise prominent Maryland attorneys. The school’s preeminence among members of the Maryland bar could scarcely be challenged.

Satisfied that his testimony elucidated the inequality between receiving a paltry scholarship to an out-of-state institution and studying law at the University of Maryland, Houston dismissed Dean Howell. He called several more witnesses, all state officials, who described in detail the inequalities in the education Maryland provided to its black and white citizens. With the latitude granted by Judge O’Dunne, Houston elicited testimony regarding race-based differences in teachers’ salaries, gross inequalities in the size and condition of the actual school buildings, and the fact that the school year for Maryland’s black students was one month shorter than that for white students, a fact that Houston’s young co-counsel knew first-hand….

Rawn James Jr. has been writing and practicing law in Washington, D.C. for 10 years. He is a graduate of Yale College and Duke Law School. Like Houston and Marshall, he is a member of Alpha Phi Alpha Fraternity, and lives with his wife and son a few blocks from the home where Houston raised his family.