Separate But Equal Doctrine Is Basically Unsound and Unrealistic
Thurgood Marshall. Donald Murray, and Charles H. Houston
NAACP & the Ada Sipuel Case
In the 1930’s. Charles Hamilton Houston, special counsel for the NAACP, instituted a strategy for challenging segregation in education through the courts. These major cases in the years before 1951, paved the way for Brown v. Board of Education.
Missouri ex rel. Gaines v. Canada (1938)
The University of Missouri refused to admit Lloyd Gaines to its law school because it believed the school was only for whites. It was common for the state to send black students to neighboring states for courses of study not offered in the black schools. Since Missouri did not have a separate and equal law school for African Americans, the U.S. Supreme Court ruled Gaines must be allowed to attend the University of Missouri Law School.
Sipuel v. Board of Regents of the University of Oklahoma (1948)
When Ada Lois Sipuel was denied entry to law school, the University set up a “class” overnight with 3 instructors, 3 classrooms, and separate access to the law library at the state capital. The U.S. Supreme Court ruled this was illegal, and she was finally allowed to enroll.
McLaurin v. Oklahoma State Regents for Higher Education (1950)
The U.S. Supreme Court ruled that George W. McLaurin, a student who was required to eat and study at separate tables, must be treated the same as white students. Chief Justice Fred Vinson said in the ruling that separate accommodations denied McLaurin “his personal and present rights to equal protection of the laws” under the 14th Amendment. Continuing, Vinson said “McLaurin must receive the same treatment…as students of other races.”
Sweatt v. Painter (1950)
This case was an important predecessor to Brown v. Board of Education, because the U.S. Supreme Court decided 9-0 that the “separate but equal” doctrine established in the Plessy case was unworkable and ultimately doomed.
Murray v. Maryland (1936)
The first of such state cases was that of Donald Gaines Murray, a graduate of Amherst College (Amherst, MA), who unsuccessfully applied to the law school of the all-white University of Maryland. Supported by the NAACP through his counsel, Charles Hamilton Houston, Murray claimed the right to admission under the equal protection clause of the 14th Amendment. Judge Eugene O’Dunne of the Baltimore City Court issued a writ of mandamus on June 25, 1935 ordering the school to admit him. Murray, the first and only black in his class, entered the law school in 1935, from which he graduated a few years later, seemingly without overt racist incidents. The Maryland Court of Appeals upheld O’Dunne’s order In January 1936
Ada Lois Sipuel Fisher, first African-American to attend and graduate from the OU Law School. (photo left)
Sipuel v. University of Oklahoma 332 US 631 (1948) Ada Lois Sipuel, a black, was denied admission to the law school of the University of Oklahoma and thereupon promptly requested legal assistance from the NAACP, which filed a petition in the Oklahoma courts requesting an order directing her admission.
The petition was denied on the grounds that the Gaines decision did not require a state with segregation laws to admit a black to its white schools. Further, the Oklahoma courts maintained that the state itself was not obligated to set up a separate school unless first requested to do so by blacks desiring a legal education. The decision was affirmed by the Supreme Court of Oklahoma.
- The U.S. Supreme Court, however, reversed this decision, and held that the state was required to provide Blacks with equal educational opportunities as soon as it did so for whites.
Sipuel v. University of Oklahoma (1948) and McLaurin v. Oklahoma State Regents for Higher Education (1950)
Despite the Plessy separate but equal precedent, schools and colleges for blacks and whites were nowhere near equal. Black schools were poorly funded, resulting in few books and mediocre teachers. In the 1930s the issue of the inequality between black and white colleges was brought to light in a series of cases, beginning with the Gaines case. Lloyd Gaines, an African-American, had been refused admission to a law school in Missouri because of his race. The Supreme Court ruled that a state offering legal education for whites must offer it to blacks as well, but did not specify that it must be in the same facility.
In 1948 Marshall argued the case of Ada Sipuel, who had been denied admission to the University of Oklahomas law school, before the Supreme Court. He had lost in the Oklahoma state court, which had ruled that although there was not a law school for blacks in Oklahoma, the Gaines precedent did not require a state with segregation laws to admit black students to the white law schools. Marshall appealed to the Supreme Court, where he also questioned the continuing influence of Plessy: Beyond that [the immediate issue of the lack of legal educational for African-Americans in Oklahoma], the petitioner contends that the separate but equal doctrine is basically unsound and unrealistic and in the light of the history of its application, it should now be repudiated.1 The Court gave a short decision holding that the state had to provide equal education opportunities for blacks as soon as these facilities were available to whites, and did not mention Plessy.
Amos T. Hall, resident counsel for NAACP; Thurgood Marshall, attorney from New York NAACP office; Dr. H.W. Williamston, state president of the Oklahoma NAACP; with Ada Lois Sipuel Fisher, first African-American to attend the OU Law School (right)
George W. McLaurin attends his first class at the University of Oklahoma under segregated conditions. The lecturer is Professor F.A. Balyeat, of the College of Education (left)
In 1949 Ada Sipuel was finally admitted to the law school in Oklahoma. The University established a law school just for her – in a roped off section of the state capitol in Oklahoma city, where they assigned three instructors to teach her. She suffered this treatment until Marshall won the McLaurin case in 1950. George McLaurin was a sixty-eight year-old African-American with a masters degree in education pursuing an Ed.D. at the University of Oklahoma. He, like Sipuel, was segregated within the school itself; he was required to sit at a special table in the classroom, library, and cafeteria because of his race. Marshall lost the case in the local court but appealed immediately to the Supreme Court. Unanimously, the Supreme Court declared that black students must receive the same treatment as the white students and that the schools could not be segregated. This greatly improved the situation in colleges, but not necessarily in lower schools. The Court again skirted the issue of overturning Plessy, but it was to be resolved five years later, in Brown v. the Board of Education of Topeka.
* * * * *
By Howard Ball
Thurgood Marshall’s extraordinary contribution to civil rights and overcoming racism is more topical than ever, as the national debate on race and the overturning of affirmative action policies make headlines nationwide. Howard Ball, author of eighteen books on the Supreme Court and the federal judiciary, has done copious research for this incisive biography to present an authoritative portrait of Marshall the jurist. Born to a middle-class black family in “Jim Crow” Baltimore at the turn of the century, Marshall’s race informed his worldview from an early age. He was rejected by the University of Maryland Law School because of the color of his skin. He then attended Howard University’s Law School, where his racial consciousness was awakened by the brilliant lawyer and activist Charlie Houston. Marshall suddenly knew what he wanted to be: a civil rights lawyer, one of Houston’s “social engineers.” As the chief attorney for the NAACP, he developed the strategy for the legal challenge to racial discrimination. His soaring achievements and his lasting impact on the nation’s legal system–as the NAACP’s advocate, as a federal appeals court judge, as President Lyndon Johnson’s solicitor general, and finally as the first African American Supreme Court Justice–are symbolized by Brown v. Board of Education, the landmark case that ended legal segregation in public schools. Using race as the defining theme, Ball spotlights Marshall’s genius in working within the legal system to further his lifelong commitment to racial equality. With the help of numerous, previously unpublished sources, Ball presents a lucid account of Marshall’s illustrious career and his historic impact on American civil rights.
* * * * *
NAACP Legsl Defense Fund Memorandum
TO: Charles Houston
FROM: Thurgood Marshall
RE: Ada Sipuel
DATE: September 10, 1946
Recently, I had the opportunity to interview Ada Sipuel, who has been rejected from the University of Oklahoma Law School, ostensibly because of her race. I strongly recommend that we pursue litigation on behalf of Miss Sipuel and seek her admission to the University of Oklahoma Law School. I recommend this action based on the following conclusions:
- The facts of Miss Sipuel’s case are favorable and her liabilities as a client or witness are manageable.
- Miss Sipuel has both the character and commitment for a protracted case such as ours.
- Miss Sipuel shares our goals.
- The nature of her case and the remedies we seek fit well within the precedents we established in Gaines v Canada, 305 U.S. 337 (1938).
I also believe that, if we are able to frame the issues properly, we should seek to overturn Plessy with this case. Such a scenario is risky and I do not propose it lightly. Much will depend on the groundwork we lay in the lower courts. The basis and the reasoning for my conclusion follow.
Ada Sipuel has lived in Oklahoma her entire life. Her father is a Baptist minister and a staunch anti-racist. Ada grew up hearing about the evils of segregation in church and at the dinner table. Her determination to attend an all-white law school is very much a product of her family’s commitment. Miss Sipuel graduated summa cum laude from the State College for Negroes in Langston, Oklahoma. Her major was Political Science. When she graduates from law school, she wants to practice law in Oklahoma, using the legal system to fight the pervasive bigotry in that state. I teased her, asking why she would not attend Howard, where all the finest civil rights lawyers go. She was adamant: she wants an Oklahoma legal education, studying Oklahoma law, developing the Oklahoma legal connections she will need to practice in her home state.
Miss Sipuel has other good reasons for wishing to stay in Oklahoma. Her father lives there and she wants to be near him. He is a widower, and though he is in good health, he may need her help in later years. Just as important is the moral strength she draws from her family. Her father hates segregation and so does she. In a long, frustrating court battle, this may prove to be crucial. Finally, there is her ambition: she hopes to eventually abolish segregation in Oklahoma.
To that end, Miss Sipuel completed her application for the University of Oklahoma Law School and hand-delivered it to the Dean of Admissions. He grudgingly admitted that she had outstanding academic qualifications — “for a Negro” — but that she could not attend the school. He explained that Oklahoma law makes it a misdemeanor for any school to teach Negroes and Whites in the same classroom, punishable with a $500 fine for each offense.
Help, however, was on the way. The Dean said that Oklahoma was creating a “Negro Law School” by roping off a small section of the State Capitol building for a classroom, and drafting a few black lawyers to teach there. She could attend that school whenever it was ready.
Miss Sipuel does not want to attend this putative Negro Law School. She wants to attend “a white law school,” and “go to class with white students.” She is uninterested in a “separate but equal” law school, not only because she “hates segregation” but also because she would suffer from her inability to form the intellectual and professional relationships which make all the difference in a lawyer’s career. She told me emphatically that she does not want the NAACP to seek “substantially equal” facilities for her. If we want to sue Oklahoma to admit her to the law school, we could not have a more tenacious client.
Only one liability mars this otherwise ideal client. Since she was rejected from the law school, Miss Sipuel has worked as a clerk in the Post office in Langston. The job is unsuited for a woman of her intelligence and education and she despises it. A long, painful lawsuit might mean staying in her job for years. She is not sure she can stand this, and not merely because of the boredom.
Her boss is white. He is less educated that she is. Since she began working at the Post office, he has made comments about her race, her sexuality and her physical appearance. This infuriated her and she told him what she thought of him. He retaliated by putting several negative employee reports in her file. She is worried that these reports will come out at trial, embarrassing her and hurting her case. Overall, Miss Sipuel seems to be an intelligent and resourceful woman. The possible danger of the employment reports is far outweighed by her assets as a client.
Client’s Goals and Concerns
As discussed above, Miss Sipuel’s goals are very much those of the NAACP. She wants to attend Oklahoma State University; we want her to go there, too. She is willing to endure the years of hardship which this case will entail. However, at the end of those years, she wants some assurance that she will actually attend the University of Oklahoma Law School.
To achieve her goals, the NAACP must do three things: first, get her the ruling she needs; second, implement the ruling; and third, press for more sweeping changes. We could do all these things piecemeal. But I believe that a strategy which combines the three actions will be better for Miss Sipuel and the NAACP. This strategy is outlined below.
Negro law students are entitled to “substantially equal” educational facilities as those provided for white students in the same state. The much we established in State of Missouri et rel. Gaines v. Canada, 305 U.S. 337 (1938), and in Pearson v. Murray, 169 Md. 478 (1936). If the state cannot provide those facilities, it must admit Negro law students to its all-white schools. Gaines, 305 U.S. at ____.
This case is explicitly covered by the reasoning in Gaines and Pearson. The facts bear this out. Like Lloyd Gaines, Miss Sipuel applied to her state law school. Like Gaines, she was turned down because of her race. Like Missouri, Oklahoma has “plans” to establish a law school for Negroes. Applying this reasoning, Oklahoma is required to provide a legal education for miss Sipuel; they must provide it now, not at some indeterminate point in the future; and the facilities for her and others like her must be “substantially equal” to those for white students.
Up until now, however, the Supreme Court has not ruled on what “substantially equal” means. If they decide that the roped-off portion of the capitol satisfies that standard, we will have succeeded in setting back Miss Sipuel’s cause for a couple of decades.
We have four separate goals:
1. We want a favorable reading of Gaines; that is, one which includes Miss Sipuel in its scope.
2. We want the court to rule that the Oklahoma misdemeanor statute violates the Equal Protection Clause; preferably on its face, but at the very least, as applied to Miss Sipuel.
3. We want the court to rule that whatever law school Oklahoma sets up, it cannot possibly be “equal”: the intangible benefits of reputation, classmates and experienced professors are impossible to provide in a hastily-assembled Negro law school. We want a court order stipulating that Miss Sipuel be admitted at once to the University of Oklahoma Law School.
4. We want the court to admit that, in Oklahoma, as well as in the rest of the country, a system which forcibly separates Negroes and whites cannot promote equality.
In other words, we want the court to overrule Plessy v. Ferguson. 163 U.S. 537 (1896).
Despite the dismal state of the Oklahoma state courts, we are better off there than in Federal District Court. This, as you must know, is because of the doctrine announced in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941): (1) when there are both federal and state claims before a federal court; (2) the case involves a sensitive area of state social policy; and (3) the state law at issue is unclear, the District Court may decline to hear the claim. This can result in severe delays for the plaintiff. Here, a state misdemeanor statute is at issue. It presents a tempting excuse for any federal court — District, Circuit, or even Supreme — to decline jurisdiction. We should bite the bullet and file in state court.
We will bring our claims directly under the equal protection clause of the Fourteenth Amendment. We should seek the following relief:
- a declaration that the State of Oklahoma’s inability to provide legal education for Miss Sipuel violates the Equal Protection clause of the Fourteenth Amendment;
- an injunction ordering the President of the Oklahoma School of Law to admit Miss Sipuel forthwith;
- in the alternative, an injunction ordering the State of Oklahoma to establish a “substantially equal” law school immediately;
- a declaration that the Oklahoma misdemeanor statute which makes it a crime for students of different races to be taught together violates the Equal Protection clause of the Fourteenth Amendment;
- an order enjoining the Governor from enforcing the statute against Miss Sipuel or any other student similarly situated.
I am fully prepared to lose on all of these counts. The government of Oklahoma is implacably racist. In 1915, the Supreme Court struck down Oklahoma’s “grandfather clause” in Guinn v. United States, 238 U.S. 347 (1915). The Oklahoma legislature turned around and passed an almost identical law, which it enforced for twenty more years. If we lose outright in the trial court, then we appeal every ruling, all the way to the Supreme Court.
However, the court may take what it thinks is “the path of least resistance”: refusing all of our claims except the one to establish a “Negro law school.” Once the school is established, Miss Sipuel should refuse to attend, citing inequality of facilities. We go back to court, seeking a contempt order against the Oklahoma Chancellor of Schools for violating the injunction. When the judge refuses to enter the order, we appeal that, plus all our other claims. The evidence will be all too plain: what Oklahoma offers its Negro law students is not equal.
At the contempt hearing, we will have to offer evidence of the gaping inequalities between the “Negro Law School” and the state law school. We will need experts on legal education, successful lawyers who have graduated from the state law school, and students who are still there. These witnesses can testify to the “intangible” benefits of a law degree which bears the imprimatur of the state. I fully expect to lose both here and in the Oklahoma Supreme Court, setting the stage for a Supreme Court argument on equality of facilities.
If, on the other hand, the trial court does not order Oklahoma to establish a separate law school, we will have to settle for a replay of Gaines, unless we decide to go after Plessy on this case. Either scenario offers us an opportunity to do so. I discuss the Plessy strategy below.
The Supreme Court
Our goals will not truly come into focus until we reach the United States Supreme Court, as follows:
1. Replicating Gaines. This is the easiest part of our task. The facts of Gaines are nearly identical to this case, with one or two important exceptions.
2. Invalidating the Oklahoma “mixed-race classroom” statute. This is where push comes to shove in our case. If the statute is upheld, then Miss Sipuel cannot attend the law school of her choice. However, to invalidate the statute, the Court may have to overrule Plessy. Whether they do this will depend on the issue we present to them.
If Oklahoma has established a Negro Law School, then the Court can rule in one of two ways:
If the Court finds that the Negro Law School is demonstrably inferior to the State Law School, the Court can strike down the law by deeming it inconsistent with Oklahoma’s obligation to provide “equal,, education to Negroes. Under Yick Wo v. Hopkins, 118 U.S. 356 (1886), the Court may strike down a facially neutral statute which is applied in a discriminatory fashion. Rather than admitting that the statute is facially discriminatory, the Court may elect this softer path. They would not have to reach the larger philosophical question of whether “separate” can ever be “equal.”
If the Court finds that the Negro Law School is “substantially equal,” or that the evaluation of equal facilities should be left to the discretion of the states, then we go back to the drawing board and find another state. This is the scenario I fear most, because it leaves Miss Sipuel without a remedy. It is also the easiest decision for the Court to make, since it leaves Plessy untouched, while summarily upholding their previous ruling in Gaines.
If Oklahoma has not established a Negro Law School, then we will have to take what we can get: a replay of Gaines, and a dismissal of the statutory claim as unripe. I also fear this scenario. A Negro Law School can look pretty good to judges when they have never actually seen one. And since the Negro Law School cannot be evaluated, the Court cannot determine whether Miss Sipuel has been injured by the “mixed-race classroom” law.
3. Recognizing the “intangible benefits” of the University of Oklahoma Law School. Again, this is dependent on whether we actually have something to compare to the State Law School. Without an actual Negro law school in place, the Court can bypass the “substantially equal” question until it has more evidence. This once again raises the bifurcated trial scenario from the previous section.
If Oklahoma has established a separate law school, much of our success with this question will depend on the evidence we present in the lower courts, an issue which is dealt with above.
4. Overturning Plessy.
I do not suggest this lightly: Miss Sipuel’s case may present the best opportunity in a decade to overturn Plessy. Several factors favor a charge at Plessy, with a view to presenting our case to the Supreme Court during the 1948 term.
First, this is the best bench we will get for some time. Reed and Black voted with the majority in the Gaines case. Douglas, Murphy and Rutledge are all solid Roosevelt/Truman liberals. That alone is a majority. Frankfurter and Jackson will plead judicial restraint and vote against us. Burton is unpredictable. And nobody knows much about Frederick Vinson, the new Chief Justice, except that he is President Truman’s friend and a liberal Democrat. However, with Murphy and Rutledge threatening to retire, this maybe our last chance to plead major change before this Court. We could hope for a 6-3 vote in favor of overturning Plessy.
Second, the disadvantages of winning by a divided vote are largely offset by the advantages in enforcement. Harry Truman is a genuine anti-segregationist. If Vinson votes with us, the President will be enforcing a decision made by his own hand-picked Chief Justice. If we wait too long, Truman will be replaced by another chief executive, who may be far less interested in aggressively enforcing antisegregation rulings.
Third, the issue of the statute is a natural entry into the Plessy debate. If we can point to a demonstrably unequal law school for Negroes, then Ada Sipuel has a right to go to University of Oklahoma Law School. The only thing standing in her way is a Jim Crow statute which forbids her sole Constitutional remedy.
Finally, if we ask the Court to overturn Plessy, and they refuse, the worst case scenario is that we settle for a repeat of Gaines. We will not ask Miss Sipuel to put her entire life on the line for a larger cause. In fact the larger cause may get her more than she would ever get under a Gaines scenario.
I understand that there are arguments against the above action. The most serious is that, while all of our previous cases have focused on de-segregating graduate study, overruling Plessy would suddenly extend our gains to all schools, everywhere. This may be more than the Court is willing to do. If, however, they feel pushed beyond their limits, we can offer them judicial cover by making alternative pleas.
On balance, the factors above favor a direct attack on Plessy, if the circumstances are right. Those circumstances may or may not arise during litigation. We should be prepared for all of these different scenarios.
At present, our goals and Miss Sipuel’s are in conjunction, but at some point they may diverge. I explained this to Miss Sipuel, as well as our method of dealing with conflicts between the NAACP national strategy and our client’s interests, in accordance with Rule 1.7 of the model Rules of Professional Conduct. Specifically, if we have to diverge from Miss Sipuel’s goal — admission to the University of Oklahoma Law School — either temporarily or permanently, we will consult with her and try to get her consent. If she refuses, we may have to seek another client.
However, since our overall objectives are the same, I believe we are well within the model Rules if we forcefully argue for our strategy. See Model Rules of Professional Conduct Rule 1.3(a). We are not doing Miss Sipuel any disservice by bringing our expertise to bear on this matter.
I also assured Miss Sipuel that her communications with me were confidential but that I would have to share them with NAACP legal staff in order to prepare her case. See Model Rules of Professional Conduct Rule 1.6. She understands this and told me to do what I need to do.
Ada Sipuel as a Client/Witness
Miss Sipuel’s dedication and commitment are definite assets to our cause. Her education and background are impeccable. Nor is she likely to wilt on the witness stand. I have explained to her that the litigation is likely to be long and difficult, that there may be threats against her and her family, and that we may not ultimately get the remedy she seeks. She seems ready and willing to bear this, and her family is behind her. Nonetheless, I told her to give the matter some thought before committing. I will call her again within the week.
On the other hand, Miss Sipuel’s courage and determination could become a liability if we are not careful. She is a proud woman capable of flashes of anger, as evidenced by her run-in with her supervisor. She must learn to keep her cool when some white supremacist lawyer is trying to rattle her. She must resist the temptation to show that she is smarter than some ward-heeler judge in the trial court. Since these are skills I have had to learn myself, I will try to teach her.
Finally, the matter of the employment file is a potential time bomb. At first, I thought we should attempt to suppress the file — but this would probably fail in an Oklahoma courtroom.
So, I say we introduce the file, along with the sordid tale of her treatment at the hands of her supervisor. The story we tell is not the story of some uppity black postal clerk who won’t take orders. The story we tell is that of a young, intelligent woman trying to defend her virtue in the face of her brutish boss’s advances. Given white people’s obsession with young women’s chastity, this could play well in Oklahoma City. In any case, it is better than having the State lawyers spring it on us during cross-examination. If we tell our version of the story first, the opposition will have the burden of refuting it.
Last, if we want to continue having a healthy and dedicated client, we should see if we can help Miss Sipuel find another job. She loathes her position at the Post Office. If her supervisor finds out about this lawsuit, he is likely to step up his campaign of harassment, leading to more confrontation and more reports in the file. I am sure we know some black business leaders in Oklahoma who could offer her better employment. If we limit our involvement, this should not violate Rule 1.8 (e) of the Model Rules of Professional Conduct, which prohibits financial assistance to clients.
If we take the above steps and precautions, we can assure that Miss Sipuel will be a strong client who will stick out the litigation.
Our immediate action is to wait. I have not and will not tell Miss Sipuel of our immediate plans until she has spoken with her family. If she agrees to be our client, we should prepare an immediate filing in state court, requesting the relief detailed in Section X. At the same time, we should start contacting legal education experts to support our position in court. Once we know whether Oklahoma is establishing a separate law school, we can formulate the rest of our strategy. At all times, we should be prepared for contrarian action by the ever-resourceful white supremacists on the Oklahoma state legislature.
If we want to make a run at Plessy, we will have to pay particular attention to mobilizing massive shows of resistance. To this end, we should find out how much the faculty and students of the Law School support Miss Sipuel’s admission. Law schools are generally more enlightened places than state legislatures, and we should canvas the school to find out which way the wind is blowing. The spectacle of hundred of law students and faculty systematically violating the “mixed-race classroom” statute should wake up a lot of people.
Let me know your thoughts about our strategy, particularly with regard to Plessy. I look forward to seeing you back in Baltimore.
Source of Photos: Ada Lois Sipuel Fisher Collection Western History Collections University of Oklahoma Libraries
Chapter VI. “The Instruction of Negroes.” In Edgar W. Knight.. A Documentary History of Education in the South before 1860. Chapel Hill: The University of North Carolina, 1953
Chapter 10 “Up From Slavery: Educational and other Rights of Negroes.” In Edgar W. Knight and Clifton L. Hall. Readings in American Educational History. New York Appleton-Century-Crofts, Inc., 1951.
Many states had laws prohibiting the education of blacks; here black youngsters are turned away at the school door
update 30 December 2011