The Yale Law Journal


Equal Justice-Same Vision in a New Day

01 Sep 2006

No single narrative can capture the complexity of what Mack concedes was a “plural, heterogeneous civil rights movement” in the pre-Brown era. Mack’s revisionist narrative is no exception. With his focus on the intraracial work of Charles Hamilton Houston and other leaders of the black bar during this period, Mack obscures the antecedents of a court-centered legal liberalism that were apparent from the beginning of the modern civil rights movement. Mack is correct to point out that Houston and others worked to educate a generation of black lawyers who could assist black businesses and meet the everyday legal needs of their communities. However, these leaders always recognized the inherent limits of intraracial work. True progress on the intraracial front demanded an attack on de jure segregation—and the black bar always considered litigation an important weapon in that battle. The seeds of legal liberalism were evident in an aspect of the pre-Brown record that Mack largely ignores: the NAACP’s litigation strategy during the interwar period. This litigation history demonstrates that civil rights lawyers saw the courts as an agent of social change as they worked to implement a strategic plan that would lead to Brown.

During the period discussed by Mack, the years surrounding the end of World War I in 1918 and the beginning of World War II in 1939, the NAACP affirmatively engaged in court-based rights advocacy. In 1917, the NAACP successfully challenged a city ordinance mandating segregated housing in Buchanan v. Warley resulting in a Supreme Court decision that the ordinance was an unconstitutional deprivation of property rights. In 1923, the NAACP was involved in Moore v. Dempsey, a case in which the Supreme Court held that a trial of black men dominated by an angry white mob was a violation of due process. Additionally, in 1926, the NAACP represented a white homeowner who contracted to sell her property to a black family in violation of a racial covenant in Corrigan v. Buckley. Such cases are just a small sample of legal actions brought and defended by civil rights lawyers during the pre-Brown era.

Further evidence of court-based rights advocacy can be found in the strategic litigation plan developed by the NAACP “to give the Southern Negro his constitutional rights, [and] his political and civil equality.” Around 1925, the NAACP first outlined a legal campaign that included a strategy against educational segregation by filing taxpayer suits to secure court orders to equalize spending on black and white schools. In 1930, on the advice of Houston, the NAACP retained Nathan Ross Margold to coordinate the legal campaign. Margold determined the taxpayer suit strategy to be impractical given the number of suits required in thousands of school districts across the country year after year. As an alternative, Margold developed a 218-page litigation plan in 1931. He proposed a twofold litigation strategy: (1) “boldly challenge the constitutional validity of segregation if and when accompanied irremediably by discrimination” due to the lack of a state statute obligating school officials to comply with Plessy v. Ferguson; and (2) rely on Yick Wo v. Hopkins to challenge facially neutral state segregation laws that denied equal protection because of unequal application by school officials. Hence, Margold’s plan was thoroughly laced with court-based rights advocacy and became the bedrock of the NAACP legal strategy toward Brown.

When Margold became Solicitor of the Department of the Interior in 1933, Houston took over as special counsel to the NAACP and continued to direct the organization’s litigation efforts. Building on Margold’s plan, Houston implemented

a three-prong strategy: first, to solidify a nationwide network of African-American lawyers to file ‘test case’ litigation against segregation practices; second, to build precedential support for a direct constitutional attack against segregation through this carefully targeted litigation; and third, to organize local black communities in broad, unified support of legal, political, and social action against ongoing discriminatory practices.

Houston recruited a number of former students, including Thurgood Marshall, to participate in the network and execute the strategy. Houston and the pre-Brown team secured significant courtroom victories culminating in the desegregation decisions.

If the Mack narrative were true, it would suggest that the lawyers of that era were shortsighted and lacked a clear vision of the end goal for equal justice in America. Instead, during the interwar period, Charles Houston and other pre-Brown lawyers mapped a multipronged strategy to achieve Brown. That strategy combined the use of successive legal openings created by litigation, the innovative use of social science, and collaboration with civil rights organizations linked to varied sectors of society.

As Mack observes, the way we construct civil rights history affects the way we lawyer today. Toward that end, it is essential to keep the goal and history of structural reform litigation in focus. Today, many progressive organizations, such as the Equal Justice Society, continue to follow the vision of Houston’s plan to combat the right-wing assault on the civil rights established during the Brown era. For us, Brown still stands as a call for equal justice; and as Thurgood Marshall explained during oral argument before the Supreme Court: “ [E]quality means getting the same thing, at the same time and in the same place."

Eva Paterson is the President, Kimberly Thomas Rapp is the Director of Law and Public Policy, and Johnson Lee is a Legal Intern at the Equal Justice Society. The authors are coordinating litigation, communications, and social science strategies for enduring social change and racial justice. EJS is a national nonprofit organization of scholars, advocates, and concerned individuals dedicated to changing the law through progressive legal theory, public policy, and practice.

Preferred Citation: Eva Paterson et al., Equal Justice—Same Vision in a New Day, Yale L.J. (The Pocket Part), Nov. 2005,