American RadioWorks presents “Thurgood Marshall Before the Court,” a documentary on the story of Thurgood Marshall's remarkable career before he joined the Supreme Court, when he was the nation's leading civil rights lawyer.
Thurgood Marshall became the first African American named to the United States Supreme Court, but his most significant legal victory came when Marshall was on the other side of the bench, arguing the landmark Brown v. Board of Education case. On May 17, 1954, the U.S. Supreme Court outlawed racial segregation in American schools. The ruling was the high point of a long campaign Marshall led to tear down the walls of segregation.
[Content warning: Audio contains offensive language]
Awarded:
2005 American Bar Association Silver Gavel Award, Radio category
Transcripts
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SPEAKER: American Public Media.
DEBORAH AMOS: From American Public Media, this is an American Radioworks documentary. Thurgood Marshall, Before the Court. I'm Deborah Amos.
THURGOOD MARSHALL: Education is not the teaching of three R's. Education is teaching to live together with fellow citizens.
DEBORAH AMOS: Before the sit-ins and freedom marches, lawyer Thurgood Marshall led a 30-year campaign to desegregate America's schools.
SPEAKER: It was incendiary, the idea of little Black boys in school with little white girls.
SPEAKER: Do you think the Negro students ever will get in here?
SPEAKER: I don't know how long they'll live after they do get in here.
DEBORAH AMOS: Marshall's big victory came 50 years ago in the Supreme Court's Brown v. Board of Education ruling.
SPEAKER: What they did was make segregation illegal.
DEBORAH AMOS: Thurgood Marshall is best known as the first African-American on the US Supreme Court. But his earlier work as a civil rights lawyer changed history. In the coming hour, Thurgood Marshall, Before the Court. First, this news update. From American Public Media, this is an American Radioworks Documentary. Thurgood Marshall, Before the Court. I'm Deborah Amos. In 1967, Thurgood Marshall became the first African-American named to the United States Supreme Court.
But his most significant legal victory came when Marshall was on the other side of the bench, arguing the landmark Brown v. Board of Education case. On May 17, 1954, the US Supreme Court outlawed racial segregation in American schools. The ruling was the high point of a long campaign Marshall led to tear down the walls of segregation. Marshall died in 1993 at the age of 84.
In the coming, hour Stephen Smith of American radioworks presents the story of Thurgood Marshall's remarkable career before he joined the Supreme Court when he was the nation's leading civil rights lawyer.
STEPHEN SMITH: When Thurgood Marshall was born, times were as bad as they'd ever been for African-Americans since slavery. It was 1908. That year, there were 89 reported lynchings of Black people from Oxford, Georgia, to Abraham Lincoln's hometown of Springfield, Illinois. One Southern state after another had passed an extensive series of Jim Crow laws to fence off African-Americans from the rest of society.
LEON LITWACK: That meant really rigid segregation of Blacks and whites in almost every conceivable situation in which they might come into social contact.
STEPHEN SMITH: Historian Leon Litwack.
LEON LITWACK: That is from public transportation, from the workplace, hospitals, the public parks and schools, from separate textbooks to Jim Crow bibles for Black witnesses in court. New Orleans went so far as to adopt an ordinance segregating Black and white prostitutes.
STEPHEN SMITH: Thurgood Marshall liked to tell people he was born way up South in Baltimore, Maryland. In his later years, Marshall told an interviewer that racial segregation in Baltimore could be as harsh as anywhere in the deep south.
THURGOOD MARSHALL: In the department stores downtown, a Negro was not allowed to buy anything off the counters. They were told to get the hell out. Another thing I remember very well was that there were no toilet facilities available to Negroes in the Downtown area. And one day, I had to go. And the only thing I could do was get on the trolley car, try to get home, and I did get almost in the house when I ruined the front door steps.
STEPHEN SMITH: Thurgood Marshall never forgot the bitter humiliations of growing up in Jim Crow Baltimore. But he also thrived there. Marshall and his older brother Aubrey had educated, determined parents. Their mother Norma was strong and protective. She worked as a schoolteacher. Their brash outgoing father Willie was a waiter and a railroad porter who taught his boys to be proud of their race.
THURGOOD MARSHALL: He was blond and blue eyed. And he could have passed for white. A lot of times, he would get in a big fight because somebody would think he was white. Say, I would do something good. And my father would say, well, that's very Black of you. You'd always heard that's very white of you. Well, you understand what he was saying.
STEPHEN SMITH: Like many gifted and ambitious Black people of his generation, Marshall learned when the time was right to fight racism and when to keep cool. Karen Hasty Williams, Marshall's goddaughter, says these were lessons he carried into adulthood, like the time 16-year-old Thurgood needed money for college.
KAREN WILLIAMS: He went to get a job, working as a Porter on the railroads. And the white conductor who was interviewing him said, OK, boy, you can have this job. Here's your uniform, put it on. And Marshall came back, and he was tall and lanky. And he said, but, sir, these pants are too short.
And the response was, boy, it's easier for me to get another nigger than to get another pair of pants. If you want the job, you wear the pants. He said, I took the job and I wore the short pants because I knew I needed the money to go to school. But he said, he did not want another generation to have people make that kind of a comment.
STEPHEN SMITH: In 1930, Thurgood Marshall graduated from Lincoln University, a prestigious Black college in Pennsylvania. While at Lincoln, Marshall married Vivian Burey. He wanted to go to law school at the University of Maryland in Baltimore. But African-Americans weren't allowed. So Marshall commuted by train to all Black Howard University an hour away in Washington, DC.
There, Marshall met a man who would change his life, law professor Charles Hamilton Houston.
CHARLES HOUSTON: He was a graduate of Amherst and Harvard, very brilliant, very decent person, but a very hard man.
DAVID WILKINS: He was unyielding, on these students learning how to do it exactly right.
STEPHEN SMITH: Law Professor David Wilkins.
DAVID WILKINS: He brooked no quarter with any mistake of punctuation, of procedural regularity, of form because he knew that if you were to give the white judges the slightest excuse for dismissing your case or dismissing you as being incompetent, they would do so.
STEPHEN SMITH: There were few Black lawyers in the 1930s. And most of them handled routine legal matters like wills and real estate. Charles Houston used his classroom like an anvil, pounding out a generation of exceptional Black attorneys for a courtroom crusade against segregation. Marshall was his top student.
DAVID WILKINS: Well, I think anybody who ever met Thurgood Marshall would say he was a born leader. I mean, first of all, he was just a physically imposing man. He was probably 6'3", drop dead gorgeous, with a booming voice, a towering intellect, and a fierce determination to pursue and succeed at whatever task was before him.
STEPHEN SMITH: Marshall started helping his mentor fight legal cases while still a student. Charles Houston left Howard University in 1934 to become chief lawyer for the National Association for the Advancement of Colored People, or NAACP, the nation's leading civil rights organization. Soon after, he recruited Marshall. Law Professor Larry Gibson says the two made an unlikely duo.
LARRY GIBSON: Charles Hamilton Houston was a fairly formal person. Thurgood Marshall was a loud, liquor-drinking, chain-smoking, take-life-easy- sort of person I mean, they seem to have been the quintessential odd couple. But what they had in common is they both were brilliant. They both were willing to work hard. And they both were courageous.
STEPHEN SMITH: On top of courage, one of Thurgood Marshall's gifts was his good nature. Marshall disarmed courtroom opponents with an easy manner, then clobbered them with the exhaustive legal preparation learned from Charles Houston.
CHARLES HOUSTON: He used to tell stories of white Southern judges who started out calling him boy, and eventually, complimented him on the excellence of the way in which he presented the case.
STEPHEN SMITH: David Wilkins says Marshall was also a brilliant storyteller, a skill he used in the courtroom to win over white judges and juries. Few recordings of Marshall's storytelling survive. But in this tape from the 1960s, Marshall told an NAACP meeting about the organization's early days when he and others had to appeal to the struggling group's bookkeeper Mr. Turner to cover the most basic expenses.
DAVID WILKINS: And Turner would take out his books and he'd find that he had $40,000 in this fund, $30,000 in this one, which owed 20,000 to this one, and 10 to this one, and 50 to this one. And he loved bookkeeping. He loved it. And when he'd get through with all those figures, one of us would say, but, Mr. Turner, what we want to know is, how much cash do you have in that safe back there? It's all $16.
STEPHEN SMITH: In the late 1930s, the NAACP was still a tiny organization with huge plans. The group had been founded in 1909 by W.E.B Dubois, and a group of liberal whites. Their cause, to fight segregation, lynchings, and other violence against African-Americans. Southern courts and policemen offered little protection for Black people. In the 1940s, white journalist Ray Sprigle of Pittsburgh posed as a light skinned Negro for a month of travel to learn what life was like on the other side of the color line.
RAY SPRIGLE: That in the Deep South, any Negro can be and all too frequently, is murdered by any white man for any or no reason with the almost inevitable certainty that the white murderer will go scot-free. Quite frequently, they're hanged for killing white men, never for killing Negroes.
STEPHEN SMITH: On the other hand, historians say, Southern Blacks were frequently tried for a crime they didn't commit if they weren't lynched first. Thurgood Marshall and Charles Houston traveled the South in the '30s and '40s demanding equal rights in local courtrooms. Marshall always kept a pamphlet of the US in his suit pocket the way another man might carry a Bible.
His aim was to use the constitution to strike down every Jim Crow law. But Marshall also knew when to leave it tucked away.
RANDALL KENNEDY: Once he talked about going someplace and having to change at a train station somewhere in the deep South.
STEPHEN SMITH: Law professor Randall Kennedy.
RANDALL KENNEDY: He gets off one train and he's waiting for the next train to come, and the Sheriff says, boy, no colored man has seen the sun set in this town and lived to tell about it. So you better hope that train you're waiting for comes. Marshall said that he could have reached into his pocket and read the constitution to this representative of law and order or he could be quiet, and get out of town, and live to fight another day. And he took the latter course. And he was happy to leave and he was happy to fight another day.
MICHAEL KLARMAN: There's this one famous case from Hugo, Oklahoma.
STEPHEN SMITH: Law Professor Michael Klarman.
MICHAEL KLARMAN: And Marshall talks about the schoolchildren who had been released from school for what the trial judge somewhat perversely called this gala event when this Black person who might have been falsely accused was on trial for his life. And Marshall said those schoolchildren got a constitutional law lesson that they never got in school.
SPEAKER: Memo to the office from Thurgood Marshall, Hugo, Oklahoma, trial of WD Lyons.
STEPHEN SMITH: In 1941, Marshall went to rural Oklahoma to defend a Black farmhand accused of shooting a white couple and their little boy, then setting their house on fire.
SPEAKER: Several officers took turns beating him that night. But he refused to admit to anything. He was taken to the court prosecutor's office where 10 or more officers took turns beating him with a special type of blackjack known as a nigger beater. Defendant made the confession the next morning. When we walked into court, word went around that a nigger lawyer from New York was on the case.
We put on evidence to show that the confessions were secured by force and violence.
SPEAKER: He could cross-examine white sheriffs on a footing of equality and trap them in lies. And the people in the audience had never seen anything like this because they had no occasions in their life where a Black person could accuse a white person of lying. And it was a risky enterprise.
THURGOOD MARSHALL: I did all of the cross-examining of the officers because we figured they would resent being questioned by a Negro. And they would get angry, and this would help us. It worked perfect. They all became angry at the idea of a Negro pushing them into tight corners and making their lies so obvious. Boy, did I like that. And so did the Negroes in the courtroom. Law enforcement officers now know that when they beat a Negro up, they might have to answer for it on the witness stand.
STEPHEN SMITH: The jury found WD Lyons guilty but only imposed a life sentence instead of the death penalty. For an innocent Black man tried in a Southern court for killing whites, life in jail was still a victory. For Marshall, it was an excellent case to appear ordinary the way to the US Supreme Court and one that could raise money for the cash strapped NAACP.
THURGOOD MARSHALL: This case has enough angles to raise a real Defense Fund if handled properly. We have been needing a good criminal case. And we have it. Let's raise some real money. Thurgood.
STEPHEN SMITH: Although the appeal eventually failed, the Lyons case was not a total loss Law Professor Michael Klarman says Marshall used this and other criminal cases in the South to build NAACP membership. Marshall also used the publicity to show the true face of segregation to America. His audience included the nine justices of the US Supreme Court.
MICHAEL KLARMAN: Here was the worst aspect of Southern Jim Crow. This was not quiet segregation or disfranchisement. You were taking people who were clearly innocent and sentencing them that to death after trials that were a joke. And this was going to appall even a justice who didn't care about disfranchisement and segregation. It's one thing to segregate someone. It's something else to essentially lynch them.
STEPHEN SMITH: Thurgood Marshall combined the high-profile criminal cases with a lengthening string of court victories against segregation laws themselves. He and his legal team won case after case at the US Supreme Court. By 1950, Thurgood Marshall was the most famous Black leader in America. People started calling him Mr. Civil Rights.
DEBORAH AMOS: This is Deborah Amos. Coming up after a short break, Marshall leads the D-day battle against Jim Crow.
SPEAKER: Marshall appreciated, as few of us did, that this was one of the crossroads of history and that this was his time.
DEBORAH AMOS: You're listening to Thurgood Marshall, Before the Court, from American Radioworks. Our program continues in just a moment from American Public Media. This is Thurgood Marshall, Before the Court, a documentary from American Radioworks. I'm Deborah Amos.
For more than half of the 20th century, the American South was a rigidly segregated society. Blacks were barred from many public places.
THURGOOD MARSHALL: Listen now to the results of a hidden recording machine and a Negro's experience. First, in a restaurant.
SPEAKER: I think I had a cup of tomato juice.
SPEAKER: You know we don't serve colored people here.
THURGOOD MARSHALL: In a bus.
SPEAKER: Get back there in the back.
SPEAKER: What do I have to do, you want me to get off?
SPEAKER: Get back there where I told you to get off this bus. Don't give me no more lip, boy.
THURGOOD MARSHALL: In the filling station.
SPEAKER: Fill it up, boy.
SPEAKER: Give him a five gallons of that, please.
SPEAKER: All right. Where are you going, boy?
SPEAKER: I'm going to the restroom.
SPEAKER: I'm sorry, we don't have restrooms here for colored.
SPEAKER: Well, I, don't care about colored restroom. I just want to go to one.
SPEAKER: Well, you won't use the one here. There's a law in this state.
DEBORAH AMOS: Nowhere were segregation laws more entrenched than the public schools. To fight those laws, Thurgood Marshall and the NAACP took on a notorious 1896 Supreme Court decision called Plessy v. Ferguson, an African-American named Homer Plessy had challenged a Louisiana law requiring separate train cars for Blacks and whites. The Supreme Court ruled against Plessy and cemented the devastating separate but equal doctrine.
That allowed states to exclude Black people from public places as long as they had access to equal segregated facilities. But as American Radioworks producer Stephen Smith explains, separate was rarely equal.
STEPHEN SMITH: In the first half of the 20th century, caricatures of African-Americans were an everyday part of the nation's culture.
SPEAKER: Aunt Jemima.
STEPHEN SMITH: Many whites believed that Black people were somehow inferior and didn't really mind being treated as second class citizens.
SPEAKER: Smiling happy Aunt Jemima, famous for her secret recipe pancakes, waffles, and buckwheat. Let's have a Down South saying, Aunt Jemima.
JEMIMA: Well, folks, says that the more happiness you gives other folks, the more happiness you get.
STEPHEN SMITH: But times were slowly changing. After World War II, nearly a million Black soldiers returned from the fight against Nazi racism. Civil rights activism surged. African-Americans increasingly spoke out on the radio against bigotry at home.
SPEAKER: There will never be complete equality until the courts and America abandon the myth of separate but equal accommodation.
SPEAKER: I should say that the Negro hopes that Americans stop giving lip service to Christianity, stop giving lip service to democracy.
SPEAKER: If you ask me, I think democracy is fine. But I mean, democracy without that color line.
SPEAKER: It's pretty hard for a soldier to go out on the field of battle and then come back home and find segregation where he can't even take a drink of water.
SPEAKER: I says let's get together and kill Jim Crow today.
STEPHEN SMITH: For Thurgood Marshall and the NAACP, killing Jim Crow meant using the postwar momentum to uproot one state segregation law after another. These challenges generally lost in lower courts, then the NAACP would appeal to the US Supreme Court, where they won a series of crucial victories. By 1950, the high court had overturned state segregation laws in voting, housing, and transportation.
But Jim Crow was hardly dead. Marshall's goddaughter Karen Hasty Williams and civil rights lawyer Elaine Jones say the NAACP's legal Defense Fund had yet to strike directly at the 21 states that segregated their public schools.
KAREN WILLIAMS: To a segregationist the most valued prize were their little children, they wanted to be sure there was no invasion of African-Americans coming into the White classrooms where their little children were being taught. It was incendiary. The idea of little Black boys in school with little white girls. I mean, that's the way our nation's mind was.
SPEAKER: The main thing that people fear down here is intermarriage.
STEPHEN SMITH: A South Carolina teenager explained her parents fears.
SPEAKER: 20: It's not that they afraid of their children sitting next to the other children because they're not. I think it's morality. After being in New York, I can see what they mean because I have seen-- at least, I know five couples who were married Negroes and whites. And I know that's one thing they fear.
STEPHEN SMITH: Segregationists also saw the public schools as a crucial training ground. According to law Professor Michael Klarman.
MICHAEL KLARMAN: White Southerners really believe that if you teach youngsters the doctrine of white supremacy, by the time they're adults, they'll probably never give it up. But if at an early age, they go to school with Black people and they see Black people being treated as equals, they might internalize that there really aren't inherent racial differences.
SPEAKER: Mr. Thurgood Marshall.
THURGOOD MARSHALL: Well, the biggest job to end race and caste as determining factor in this country is to do as a friend of mine says, cross the river, from the White to the Negro section of the town. The best way to cross the river and to bring people together of different racial groups would be in the public school system. That would be the best way to do it.
STEPHEN SMITH: The river between Black and white schools had always been wide. The inequality between them, deep. The poor conditions in Black schools were easy to see in this 1930 documentary.
SPEAKER: Public schools such as this have always been inadequate for the Negro. And the method of providing education has always been unjust. Black and white are taxed equally. And yet, for every dollar spent on the education of a Negro child, $5 are spent on the education of a white. Negro children go to segregated--
STEPHEN SMITH: 20 years later, Southern Black schools were still in bad shape.
SPEAKER: Is your school a wooden structure?
SPEAKER: Yes. It's wood.
SPEAKER: Is any part of it brick or stone?
SPEAKER: No, sir.
SPEAKER: Do you have an auditorium?
SPEAKER: No, sir.
SPEAKER: Do you have indoor drinking fountains?
SPEAKER: No, sir.
SPEAKER: What do you use?
SPEAKER: Water pumps and water buckets.
SPEAKER: Is there a desk for each child?
SPEAKER: No.
SPEAKER: Do you have teachers for every grade?
SPEAKER: No, sir.
SPEAKER: Do you have indoor toilets?
SPEAKER: No, sir.
STEPHEN SMITH: By the early '50s, the press and the American public were paying more attention to the plight of African-Americans in the South. Historian Adam Fairclough says pressure was also growing from outside the United States.
SPEAKER: The Cold War made America's race problem an international issue. The United States was now posing as the defender of the free world.
SPEAKER: Now America's town meeting of the year, Mr. George V--
SPEAKER: The communists have been hitting us in our weakest point, which is our treatment of the Negroes, and the practice of segregation all through India, all through Southeast Asia.
SPEAKER: Every time there was a lynching, the Soviet Union would publicize this. Its representatives in the United Nations would get up and scold the United States. Racial segregation was an embarrassment.
STEPHEN SMITH: Beginning in 1950 the NAACP, sued in 10 states and the District of Columbia, challenging the constitutionality of school segregation. Five of those cases arrived at the Supreme Court two years later. They were collectively called Brown v. Board of Education, named after plaintiff Oliver Brown of Topeka, Kansas.
In a radio interview, Thurgood Marshall explained that segregation was unlawful not only because Black schools were inferior to white ones but because segregation itself injured Black children.
THURGOOD MARSHALL: It's impossible to give equal educational facilities within a segregated school system for this reason, that reputable scientists, child psychiatrist, child sociologists, anthropologists, without exception, are completely agreed that where we have imposed racial segregation, there is definite harm to the minds of the segregated group. This is not theory. This is actually proven, accepted scientific knowledge.
STEPHEN SMITH: Actually the science was not so widely accepted, even within the NAACP. Some of Marshall's most trusted colleagues doubted that social science would help their legal argument. The studies had been done by psychologist Kenneth Clark who tried to measure the effect of segregation on African-American schoolchildren using Black and white dolls.
Author Richard Kluger, he asked Black kids, particularly to pick out the doll that they liked best, the one that they thought was the good doll and the one they thought was the bad doll. And the Black children would invariably reach for the white doll as the good doll and the Black doll would be the bad one, pretty moving and shocking. And Marshall was persuaded that this would affect the court.
THURGOOD MARSHALL: When these tests were made, they, to me, proved what I knew all along is that the average Negro had this complex that was built in as a result solely of segregation. When I'd go into these towns, I would go down where the poor Negroes were and talk to them. And I remember talking to this poor fella in a pool room. And he said, the lawyer, you got anything to do with this business of when you come back after you die?
I said, are you talking about reincarnation? He said, I don't know what it is. They said when, I come back, I don't care whether it's a man, woman, or a dog, or a cat, let it be white.
STEPHEN SMITH: The doll studies were part of a vast legal, historical, and psychological body of research the NAACP lawyers toiled over. One said, preparing the Brown case was like launching the D-day invasion of Normandy with Marshall as commanding General. Richard Kluger.
RICHARD KLUGER: He was not a great legal scholar but a man who was terrifically skilled at bringing together a bunch of the best brains he could find. And there were plenty from law professors and others to figure out how to approach the Supreme Court most effectively.
WILLIAM TAYLOR: Thurgood had this kitchen cabinet that he would convene on important cases or important--
STEPHEN SMITH: Lawyer William Taylor worked for Thurgood Marshall at the NAACP, where Marshall convened cabinet meetings with subadvisors that included historian John Hope Franklin and Attorney William Coleman.
WILLIAM TAYLOR: To outward appearances, those were the most disorganized meetings, almost out of hand. They would start-- they would start about 5:00 on a Friday. And they'd go until about maybe 2:00 Monday morning.
SPEAKER: I never have seen anyone work any harder.
WILLIAM TAYLOR: And there may be about 20 or 30 people in the room from Chicago, people from Harvard.
SPEAKER: Until around midnight, Thurgood would say, well, we'll have a half hour break. And I would break for my room at the hotel. When I'd get up the next morning, he would be there.
WILLIAM TAYLOR: The food was good, the drinking was good, and Marshall could tell great stories. When the meeting was over, Thurgood had accomplished his purposes. He had gotten the three, four, five ideas that would help him in making the argument and deciding what the strategy would be.
SPEAKER: I think that Marshall appreciated, as few of us did, that this was one of the crossroads of history, times at which maybe he could have some impact, which he had never had and would not have ever again, and that this was his time.
STEPHEN SMITH: The Supreme Court arguments for Brown took place in December 1952 and again one year later. The chief lawyer for the Southern states was the formidable John W. Davis, a former Democratic Congressman and presidential nominee. At 79 years old, Davis had taken part in 250 Supreme Court cases, more than anyone else in the 20th century.
The 44-year-old Thurgood Marshall had been in on 15 Supreme Court cases and won 13 of them. There are no tape recordings of the Brown arguments. But Supreme Court transcripts show that Marshall was firm and plainspoken.
THURGOOD MARSHALL: I got the feeling on hearing the discussion yesterday that when you put a white child in a school with a whole lot of colored children, the child would fall apart or something. Everybody knows that is not true. The same kids in Virginia and South Carolina, and I have seen them do it. They play in the streets together. They play on their farms together. They go down the road together. They separate to go to school. They come out of school and play ball together. They have to be separated in school.
STEPHEN SMITH: When the stately silver haired John W. Davis took the lectern, he dismissed the Doll studies as weak and trivial. He also claimed that Southerners, white and Black, preferred segregation.
JOHN DAVIS: Is it not the height of wisdom that the manner in which the young should be educated shall be left to those most immediately affected by it and that the wishes of the parents, both white and colored, should be ascertained before their children are forced into what may be an unwelcome contact.
STEPHEN SMITH: Davis reminded the high court it had upheld the separate but equal doctrine repeatedly.
JOHN DAVIS: This court has spoken in the most clear and unmistakable terms to the effect that segregation is not unlawful. It is a little late after this question has been presumed to be settled for 90 years, it is a little late to argue that the question is still at large.
STEPHEN SMITH: In his closing argument, Marshall reminded the justices of all the laws separating Blacks and whites the court had already struck down.
THURGOOD MARSHALL: You can have them voting together. You can have them not restricted because of law and the houses they live in. You can have them going to the same state university, the same college. But if they go to elementary and high school, the world will fall apart? And we submit the only way to arrive at that decision is to find that, for some reason, Negroes are inferior to all other human beings.
The only thing it can be is an inherent determination that the people who were formerly in slavery, regardless of anything else, shall be kept as near that stage as is possible. And now is the time we submit that this court shall make it clear that is not what our constitution stands for.
STEPHEN SMITH: The justices gave their answer 5 months later on May 17, 1954. Chief Justice Earl Warren wrote the opinion, which suggested that the doll studies had some effect in persuading the court that segregation was psychologically harmful to Black children. Warren read from the bench, we conclude that in the field of public education, the doctrine of separate but equal has no place. Separate educational facilities are inherently unequal.
The decision was unanimous, a surprise to many in the courtroom. When the session was over, Thurgood Marshall turned to his colleagues and said, we hit the jackpot. There was a big party at NAACP headquarters in New York that night. Thurgood Marshall and his team reveled in their historic victory. But there were still huge problems to solve. The Supreme Court did not say in its ruling when or how the South should desegregate its schools. The justices put off that decision for a year.
RICHARD KLUGER: Well, it was one thing to reach a judgment on principle. But there was concern at the same time as to how are we going to do this, if we do it in a way that's too abrupt, too harsh, too confrontational, the South will rise up and really oppose us, there could be violence for we don't know how long, and the country would be thrown into chaos.
STEPHEN SMITH: Richard Kluger, author of Simple Justice, A History of the Brown Decision says Marshall understood the court's dilemma but urged the justices to set a firm deadline for desegregation.
RICHARD KLUGER: The Blacks led by Marshall argued, if we have a constitutional right to equal schools, we have that right now. And you can't stall us on this. You've got to move ahead.
SPEAKER: Well, would you favor a very gradual integration or do you think it ought to be done right away?
THURGOOD MARSHALL: Well, the question is to what you mean by right away.
STEPHEN SMITH: A few months after the Brown ruling, Thurgood Marshall went on a radio program with American Teenagers.
THURGOOD MARSHALL: Believe it or not, I am for the gradual approach. But there's a difference as to what we mean by gradual. I think 91 years since the Emancipation Proclamation has been gradual enough. Most people who want gradual truly don't want it at all.
HERMAN TALMADGE: We have had separate social system in the South for many hundreds of years.
STEPHEN SMITH: Stalwart segregationists like Governor Herman Talmadge of Georgia warned that Southerners might just ignore the Supreme Court's ruling whatever timeline the court imposed.
HERMAN TALMADGE: The only thing they could do would be to call on the President of the United States to enforce it. The only way he could enforce it would be with troops and bayonets and come down there and round up 3.5 million Georgians and put them in concentration camps, and compel them to do something against their will.
STEPHEN SMITH: On May 31, 1955, the court ordered schools to desegregate with all deliberate speed. But the ruling set no firm date for segregation to end. Some states began passing laws to sidestep the Supreme Court's command, others vowed to close their public schools entirely rather than to segregate. Time and again, Marshall said he expected common sense to prevail.
THURGOOD MARSHALL: And I just do not believe that the citizens of any state are of such bigoted minds that they would be willing to abolish the school system that they have spent in some instances, 70, 80 years to build up.
STEPHEN SMITH: Two days after the Supreme Court order, Marshall telephoned an old friend, a Secretary transcribed the call as Marshall laid out the next steps in the NAACP campaign.
THURGOOD MARSHALL: We're going to go state by state, that's what I hope. For example, we're going to treat Georgia one way, we're going to treat Maryland another way. Virginia, we're going to bust wide open. Those white crackers are going to get tired of having Negro lawyers beat them every day in court. They're going to get tired of it.
STEPHEN SMITH: Marshall was wrong. White segregationists would take a very long time to tire. In fact, they were just getting started.
DEBORAH AMOS: I'm Deborah Amos. You're listening to Thurgood Marshall, Before the Court. Coming up, massive resistance desegregation in the White South.
THURGOOD MARSHALL: Do you think the Negro students ever will get in here?
SPEAKER: I think they'll get in here. But I don't know how long they'll live after they do get in here.
DEBORAH AMOS: Major funding for American Radioworks is provided by the Corporation for Public Broadcasting. Additional support for this program came from the National Endowment for the Humanities, the Southern Humanities Media Fund, and Kohnstamm Communications, a public relations firm committed to achieving results through media relations campaigns that help build brands and increase sales. On the web at K-O-H-N-S-T-A-M-M dot-com.
To hear extensive interviews with Thurgood Marshall, see his letters and photographs and much more, visit our website at americanradioworks.org. Our program continues in just a moment from American Public Media. This is Thurgood Marshall, Before the Court, a documentary from American Radioworks. I'm Deborah Amos.
THURGOOD MARSHALL: American Negroes, they have been taken in by the NAACP and the Communist cause. And we must fight.
DEBORAH AMOS: It was called massive resistance.
SPEAKER: We got-- I believe in a nigger having equal rights in their own schools.
DEBORAH AMOS: Across the South, whites led by politicians and school boards defied the Supreme Court's 1954 order to desegregate America's schools with all deliberate speed.
SPEAKER: We do not intend to have integration under any circumstances in Mississippi, period.
SPEAKER: Mr. Thurgood Marshall.
THURGOOD MARSHALL: I think the nation is most certainly ready for the integration. Is ready to--
SPEAKER: Let's show the nigger he's in the Sunny South. Come on, boys.
DEBORAH AMOS: Violent mobs and an ambivalent President Eisenhower tested Thurgood Marshall's deep faith in the American justice system.
SPEAKER: Do you think the Negro students ever will get in here?
SPEAKER: I think they'll get in here. But I don't know how long they'll live after they do get in here.
DEBORAH AMOS: The lead crusader for school desegregation remained calm and confident.
THURGOOD MARSHALL: Every social step that's been made in this country to better conditions of minority groups, there have been people who have threatened violence. The beautiful part about our country in every such instance, violence has not taken place.
DEBORAH AMOS: In 1957, massive resistance reached its peak in Little Rock, Arkansas. In the final part of our program, Stephen Smith of American radioworks describes Marshall's last big fight for the NAACP Legal Defense Fund.
SPEAKER: This is Little Rock Central High School, approximately two hours before the school is scheduled to open its doors for the fall semester.
STEPHEN SMITH: Little Rock, Arkansas, seemed an unlikely place for a racial standoff. By September 1957, the school board had carefully selected nine Black students to integrate the all white central high school. Local officials expected a smooth start. But the night before school opened, Arkansas Governor Orval Faubus suddenly announced he would block what he called forcible integration. Faubus claimed that whites and Blacks were arming for battle.
ORVAL FAUBUS: One story reported that a gang of Negro youths purchased knives while another group waited outside.
SPEAKER: When Arkansas Governor Orval Faubus moved in national guardsmen to prevent the integration of Little Rock Central High School.
SPEAKER: In front of the school there, you can see perhaps a couple of hundred students waiting to see if the colored students do show up.
SPEAKER: The minute they walk in, we walk out.
SPEAKER: Suddenly, there was a shout. They're here, the niggers, the niggers, the niggers are here. They're coming. They're coming.
SPEAKER: Elizabeth Ann Eckford missed the rendezvous with the other eight and so had to go it alone.
SPEAKER: They didn't touch her, but they crowded all around her, screaming and nigger. She's trying to get into our school.
STEPHEN SMITH: After several harrowing moments, a white woman stepped in to help 15-year-old Elizabeth Eckford escape. Arkansas guardsmen used bayonets to block the other Black students from entering Central High. Thurgood Marshall, the man who had won the 1954 Brown ruling outlawing segregation flew to Little Rock.
He found a Black community under siege but determined and organized. Lois Petrillo's daughter Melba was one of the nine. Mrs. Pattillo told an interviewer about threatening phone calls they often got.
SPEAKER: When they'd call me and said, we're going to come and get her and hang her, I'd said, well, come right on. I'm waiting for you. And maybe sometimes I would hang up the phone trembling. But I told them to come right on because I'm waiting for you.
SPEAKER: Do you have anything to protect yourself with?
SPEAKER: My mother was there she knew which gun she was supposed to man, my son knew which one he was supposed to man, and I knew which one I was supposed to man. Meanwhile, we had a plan to escape for Melba.
STEPHEN SMITH: For two weeks, Melba Pattillo and the other Black students waited to get into Central High as Marshall fought for them in federal district court and as the white mob surrounding the high school grew.
Thurgood Marshall soon realized he needed reinforcements and called on President Dwight Eisenhower to intervene. There was reason to doubt the president would help. Eisenhower's ambivalence about integration had been apparent since his first comments on the Brown decision in 1954.
MICHAEL KLARMAN: He was quoted as saying, in the summer of 1956 and the summer of 1957, that there was no set of circumstances under which he would use federal troops to enforce a school desegregation order.
DEBORAH AMOS: Law Professor Michael Klarman.
MICHAEL KLARMAN: That pretty much meant to white Southerners that they could never be forced to do what they didn't want to do because, ultimately, the court order doesn't mean anything unless there's a federal army behind it.
STEPHEN SMITH: While Eisenhower kept his distance, a federal court ordered Faubus to remove the guardsmen and let the Black students into Central High. On September 23, Faubus relented. Now with a police escort, the Little Rock Nine filed into school.
SPEAKER: We've just got a report here on this end that the students are in.
STEPHEN SMITH: The crowd at Central High School, men in work shirts, gray haired church women, girls in checkered dresses erupted in violence. Local police hustled the Black students out of the school. The mayor of Little Rock telegrammed Eisenhower for help. The president was still reluctant to endorse integration but saw the crisis as a challenge to federal authority.
On September 24, 1957, President Eisenhower spoke from the White House.
DWIGHT EISENHOWER: I have today issued an executive order directing the use of troops under federal authority to aid in the execution of federal law at Little Rock, Arkansas. Mob rule cannot be allowed to override the decisions of our courts.
SPEAKER: The latest word from Little Rock at the moment. The Army has escorted nine Negro students into Central High School in Little Rock.
SPEAKER: For several weeks, the nine Negroes were shepherded through crowds of demonstrators by bayonet wielding troops, finally, the situation calmed somewhat. But it was never what one could call normal. It wasn't until the end of the school year that President Eisenhower was finally able to withdraw the troops.
STEPHEN SMITH: Citing fears of another year of racial upheaval, the Little Rock School board tried to suspend integration at Central High School. Thurgood Marshall fought back, asking the US Supreme Court to convene a special session to settle the crisis. The court agreed. Lawyers for the Little Rock School board said they were unsure whether the Supreme Court's Brown ruling applied to Arkansas schools.
On September 11, 1958, Marshall appeared before the nine justices and his argument was recorded on tape.
THURGOOD MARSHALL: Education is not the teaching of three R's, the education is teaching of the overall citizenship. To learn to live together with fellow citizens. And above all, to learn to obey the law.
RANDALL KENNEDY: He speaks to the justices in a very non-legalistic way.
STEPHEN SMITH: Law professor Randall Kennedy.
RANDALL KENNEDY: You get the sense that he is essentially telling these people, listen, I'm right. I've got truth on my side now here's what you've got to do I don't know of any more horrible destruction of principle of citizenship than to tell young children that those of you who withdrew rather than to go to school with Negroes. Come back, all is forgiven. You win. And therefore, I'm not worried about the Negro children at this stage.
I worry about the White children in Little Rock who are told, as young people, that the way to get your rights is to violate the law and defy the lawful authorities. I'm worried about their future. I don't worry about those Negro kids' future. They've been struggling with democracy long enough. They know about it.
STEPHEN SMITH: With unusual speed, the justices issued a brief unanimous opinion. Little Rock schools had to obey the Supreme Court and integrate immediately. Arkansas Governor Orval Faubus responded to the Supreme Court ruling on September 15, 1958.
ORVAL FAUBUS: I have ordered closed the senior high schools of Little Rock in order to avoid the impending violence and disorder, which would occur.
STEPHEN SMITH: Two weeks later, the citizens of Little Rock voted to close all their schools rather than integrate. It took a year of court battles and political turbulence before the schools reopened. Historian Adam Fairclough.
ADAM FAIRCLOUGH: The Little Rock crisis sent a very mixed message. Overall, I think, it was a very discouraging message.
SPEAKER: We like Faubus, a governor of courage and right.
STEPHEN SMITH: Southern politicians looked at what happened to Governor Faubus. He was re-elected again, and again, and again. Faubus demonstrated resisting integration, defying the federal courts was a vote winner. And that was a profoundly frightening message for the NAACP because Faubus set the pattern for a certain type of Southern politician who would fight tooth and nail against integration.
STEPHEN SMITH: The pattern would be used by governors like Alabama's George Wallace and Mississippi's Ross Barnett. In his later years, Thurgood Marshall said he and his colleagues at the NAACP had underestimated white opposition to desegregation.
THURGOOD MARSHALL: I had thought, we'd all thought that once we got the Brown case the thing was going to be over. That was when we should have sat down and planned. The other side did. The other side planned all these delaying tactics they could think of.
STEPHEN SMITH: School districts across the South spent years delaying integration. Southern states also tried to crush the NAACP, firing government employees who belonged to the organization and publicizing membership lists to intimidate local activists. Meanwhile, a new generation of civil rights activists was emerging. Frustrated with the pace of slow moving lawsuits, they challenged segregation laws by disobeying them, rather than disputing them in court.
SPEAKER: Give us the ballots and we will transform the salient misdeeds of bloodthirsty mobs. Into the calculated good deeds.
STEPHEN SMITH: Thurgood Marshall and the NAACP defended many of the activists who were sent to jail for civil disobedience. But Marshall's heart wasn't in it. He said that, by the end of the 1950s, he'd outlived his usefulness as a civil rights lawyer. At the time, young activists like Julian Bond thought so too.
JULIAN BOND: Civil disobedience was something the NAACP frowned upon. Thurgood Marshall was, in a mild way, condemnatory of the sit-ins, this tactic of breaking the law. He believed so strongly in the law that he couldn't countenance people breaking the law in order to change a law.
STEPHEN SMITH: Thurgood Marshall began to draw away from the Civil Rights spotlight. He was in his 50s with two young boys by his second wife Cissy. His time as an advocate before the court was ending. Marshall was ready to shape law from the other side of the bench.
In 1961, President John F. Kennedy appointed Marshall to the US Court of Appeals. In 1965, President Lyndon Johnson appointed him Solicitor General. And in 1967 LBJ named Thurgood Marshall, the first African-American justice of the United States Supreme Court, where he served for 25 years.
Thurgood Marshall never witnessed the full integration of America's public schools. Today, racial segregation in schools is commonplace. But no longer by law viewed through the lens of Marshall's own expectations, the 1954 Brown ruling would appear to be a failure, Julian Bond.
JULIAN BOND: I say that's not the fault of the decision. That's the fault of the inability of the proponents to outfox the opponents. And it's the fault of the Congress, which was hesitant about this. It's the fault of presidents who never gave it their full blessing and sanction. It's the fault of many, many people. But it's not the fault of Thurgood Marshall and the NAACP. That decision is golden. What they did was make segregation illegal.
SPEAKER: It salvaged the great promise of freedom, and liberty, and equality made in the founding documents of our Republic, from the stench and stain and lies of first slavery and then Jim Crow.
STEPHEN SMITH: Law Professor, David Wilkins.
DAVE WILKINS: It was also the beginning of a whole new understanding of what American law and American society could be. It was the birth of the rights revolution.
STEPHEN SMITH: The 30-year courtroom crusade against segregation, Thurgood Marshall and his colleagues fought was the first of its kind in the United States. No one before had made such comprehensive use of the courts and to secure the rights of a group of citizens.
Later campaigns for the rights of women, minorities, and other groups have been modeled on the NAACP Legal Defense Fund.
Thurgood Marshall retired in 1991, nearly four decades after the Supreme Court's Brown ruling. Law Professor Randall Kennedy clerked for Marshall on the Supreme Court and knew the justice in his old age.
SPEAKER: I think he felt that people had sort of forgotten him. When you said civil rights revolution, people thought immediately of King, of the people in the streets. His generation, I think, he felt had really been eclipsed.
STEPHEN SMITH: Justice Thurgood Marshall died in 1993. He was 84 years old. Randall Kennedy and other former law clerks traveled to Washington to stand by the casket as Marshall's body lay in state at the Supreme Court building. It was a bitter rainy night. Kennedy feared that few people would show up.
I remember the cab driver letting me out the Supreme Court building was surrounded by people. You had to stand on line for a long time to pay homage to that casket and people did. People left all sorts of mementos. I remember very distinctly a person who brought the slip opinion Brown v Board of Education. It was sort of wrinkled you could tell, it was well thumbed. But it was the slip opinion of Brown and the person had written just, thank you.
DEBORAH AMOS: Thurgood Marshall before the court was produced by Kate Ellis and Stephen Smith. The editor was Deborah George. Production help from Sasha Aslanian, Misha Quill, Ocean Kaylan, and Ellen Getler.
Studio mixed by Stephen Smith, Craig Thorson, and Tom Mudge. Music by Sanford Moore, executive producer Bill Buzenberg. I'm Deborah Amos. For more on Thurgood Marshall's life, visit our website americanradioworks.org. You can hear interviews and speeches by Marshall, see photographs and rare film footage of Southern segregation. You can also order a copy of this program and sign up for an email newsletter about future programs. That's all at americanradioworks.org.
Major funding for American radioworks is provided by the Corporation for Public Broadcasting. Additional support for this program came from the National Endowment for the Humanities, the Southern humanities, media fund and kohnstamm communications a public relations firm committed to achieving results through media relations campaigns that help build brands and increase sales. On the web, at kohnstamm.com. American Public Media.