Civil Rights Lawyer Jack Greenberg

DATE May 10, 2004 ACCOUNT NUMBER N/A
TIME 12:00 Noon-1:00 PM AUDIENCE N/A
NETWORK NPR
PROGRAM Fresh Air

Interview: James T. Patterson discusses his book, "Brown vs. Board
of Education: A Civil Rights Milestone and its Troubled Legacy"
TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

May 17th will mark the 50th anniversary of Brown vs. Board of Education, the
Supreme Court decision that declared state-sanctioned segregation of the
schools to be unconstitutional. This decision overturned Plessy vs.
Ferguson, the 1896 decision that legally sanctioned Jim Crow laws by saying
that separate but equal facilities were acceptable. The challenge to school
segregation was mounted by the NAACP's Legal Defense and Educational Fund,
which was headed by Thurgood Marshall. Marshall later became the first
African-American Supreme Court justice.

In the early '50s, before the NAACP's challenges, 17 states required racial
segregation of public schools. Four others permitted local districts to
impose it. Brown is a landmark decision in the history of civil rights. But
50 years after the ruling many of our schools and our neighborhoods are still
divided by race, even though they are not officially segregated.

My guest, James T. Patterson, is the author of "Brown vs. Board of Education:
A Civil Rights Milestone and its Troubled Legacy." He's a professor emeritus
of history at Brown University.

Brown vs. Board of Education wasn't just one family's challenge about the
schools. There were actually five cases covered in that decision. Can you
give us an overview of what those five cases were and why there were five
cases that were argued?

Professor JAMES T. PATTERSON (Brown University; Author, ""Brown vs. Board of
Education: A Civil Rights Milestone and its Troubled Legacy"): Yeah, there
were five cases, as you say. They involved the best known, which was the
Topeka, Kansas, case. That's where Linda Brown, the little black girl, is
the Brown of Brown vs. Board of Education. And she lived in a mixed race
neighborhood. But because of segregation in Topeka effecting only elementary
schools--there was not segregation in the middle schools or the high school.
She was in an elementary school, a child age of seven. She wanted to be able
to go to her neighborhood school. Instead she was bussed--parents didn't want
bussing--to an all-black school quite a distance away and was much more
inconvenient and dangerous and cold and so forth. That was the essence of the
Kansas case.

Then there was one in the District of Columbia. There was one in South
Carolina. There was in the southern part of the state of Virginia. And there
was one in Bloomington, Delaware, area. So there were these five cases, and
they were all amalgamated. They were heard by federal district judges in 1951
and '52. And then they went to the Supreme Court amalgamated in December of
1952. The court couldn't make up its mind. It decided to rehear the cases in
the fall of 1953, and this was finally done in December of 1953 for the second
time. By this time Earl Warren had become chief justice because the former
chief justice, Fred Vincent, had died in September of 1953. And the court
finally made its decision, as you know, on May 17th, 1954.

GROSS: What was the NAACP's approach to arguing this case and for arguing
against Plessy vs. Ferguson, the decision that sanctioned legal segregation?

Prof. PATTERSON: Well, the main constitutional argument was that segregation
violated the 14th Amendment to the Constitution, which was ratified during the
period of Radical Reconstruction in 1868. And the most famous aspect of
that amendment is that no state may deprive a person of life, liberty or
property without due process or deny people the equal protection of the laws.
So at the heart of the argument was this constitutional argument. There were
also arguments used, as you know, by Thurgood Marshall and the other lawyers
that segregation was damaging psychologically to black children. And that was
used particularly in the Kansas case leading up to the Brown case and in
Delaware.

Not all of the lawyers in the NAACP and in the Legal Defense Fund thought much
of the argument. And later on, when you got into a `Black Power' phase of the
civil rights movement, there was a lot of rejection of this on the part of
blacks, who said, `There's nothing wrong with us psychologically. We're tough
enough to deal with segregation. We've been dealing with all kinds of
oppression for several centuries. And this research is inaccurate.' But it
was used in the Brown cases, and it was also cited--DeClark's'(ph) research
was cited in the famous Footnote 11 of the Brown vs. Board decision written
by Earl Warren.

GROSS: When Brown was first brought to the Supreme Court, the chief justice
was Fred Vincent. By the time it was actually argued, the chief justice was
Earl Warren; Fred Vincent had died. Did that change the dynamic within the
court?

Prof. PATTERSON: Yes. The sudden and unexpected death of Chief Justice
Vincent in September, 1953, who died very suddenly in his Washington hotel
apartment, definitely changed the situation. Vincent had been appointed by
Truman to the Chief-justiceship in 1946. He prior to that time had been a
very prominent Kentucky congressman and then a leading administrator during
World War II and then Truman's secretary of the Treasury. They were very
close friends, Truman and Vincent were. But Vincent turned out to be a very
unsuccessful chief justice. His colleagues, for the most part, did not feel
very respectful toward him. He was unable to heal serious personal rifts
among the judges or to bring to the court any sort of unified approach to a
number of cases. Many people blame him for that, but these were difficult
times.

At any rate, Vincent was not in favor of overturning Plessy. So at the time
of his death, most historians think that if the court had been forced to
decide Brown vs. Board in 1952, when they first heard it, or if they had to
decide it in 1953, when they reheard it under Vincent, most might have
expected a 5-to-4, maybe a 6-to-3 majority in favor of overturning
segregation. And some people weren't even sure they could get a majority.

What Warren did--and he was a very genial, politically astute and highly
motivated opponent of segregation--from the time he came on the court in
October, 1953, as Eisenhower's appointee, until the decision was finally read
in May of 1954 was to work very hard to make this the first important decision
of his tenure and to achieve, if possible, unanimity among the justices, so
that a decision against segregation would have the force of a unanimous court.
That was felt to be very important at the time. And Warren really did work
wonders. It's not often historians would say that or attribute so much
importance to the role of a single individual in history, but I believe and
most historians believe that he deserves the credit for having done that.

GROSS: Chief Justice Earl Warren wrote the decision. What do you think are
the most inspiring parts of the decision he wrote?

Prof. PATTERSON: Most people then and since do not regard it as an inspiring
piece of writing. It was a very short decision, as Supreme Court decisions
go, only 11 pages. The Miranda decision involving criminal rights, for
instance, in 1966 was many, many times longer than that, 60-odd-something
pages, I think. Forget exactly what. Warren wanted to keep it simple. He
wanted to focus on public education and not denounce racism in general or deal
with the question of de facto racial segregation in the non-Southern states.
He didn't want to say anything that would blame the South or single white
Southerners out as being particularly racist. So there are no, really, sort
of, you know, bell-ringing, earth-shattering phrases in there that people tend
to cite.

He focused, rather, upon the growth of public education over time in the
United States and argued that public education was just about the most
important thing a person needed to get on in life and went on to say that in
the field of education, segregation was wrong. And then he--of course, the
footnotes did say some things concerning the psychological disadvantages. But
it's not a inspiring decision in terms of its language.

GROSS: Do you think he intentionally...

Prof. PATTERSON: There are no famous--sorry to interrupt you. I think he
did, yes, intentionally want to keep it simple and keep it non-inflammatory.

GROSS: The court handed down the decision on Brown V. Board of Ed in 1954,
but in '55 the court handed a related decision. Why did the court have to go
back to Brown V. Board of Ed again a year later?

Prof. PATTERSON: Yes. The Brown decision in 1954, unlike most Supreme Court
decisions, left unsaid the very key questions as to when and under what
circumstances its decree against racial segregation in the schools should go
into effect. I say this is unusually because usually the court, when it makes
a decision, says, `Look, what you people have been doing is wrong,' if that's
what they decide, `and you've got to fix it.' But the fact that they didn't
was one sign of the tension that had existed in the court. We don't have any
evidence to suggest that this was any kind of conscious deal that Warren was
able to strike in order to achieve unanimity. But it's clear that the court's
unanimity was facilitated in 1954 because Warren made it clear that the court
would not, in fact, in 1954 decide when and under what circumstances the
desegregation would be carried out. Instead, he made it clear that they would
rehear the case later that year and issue a decision sometime in 1955, which
would, in fact, decide how this would be implemented.

And as you know, in May, 1955, a year later, they issued the so-called
Brown--Roman numeral--II, Brown vs. the Board of Education II, which decided
that desegregation of the public schools, where school segregation had been
mandated by law--this should be carried out with all deliberate speed. This,
as you also know, was a vague and, as far as most blacks, like Thurgood
Marshall, were concerned, very unsatisfactory resolution of this issue because
it didn't establish any deadline. The NAACP people had hoped for a deadline
of the opening of the school year in 1955-'56 or, at the latest, the opening
of the school year '56-'57. Court did not establish any specific date. And
this, therefore--or so it's thought--encouraged further Southern white
resistance, although I would have to say and others would say I think that
whatever the court had decided in 1955, there would have been and there was
fierce resistance to school desegregation.

GROSS: I'll confess I don't really understand what the court meant by `all
deliberate speed.' I don't know whether that means, `Make it snappy,' or,
`Deliberate. Take your time. You know, do what you need to do. Don't worry
about speed.'

Prof. PATTERSON: Well, you're not the only one who doesn't understand it
because, of course, `deliberate' means `with deliberation, take your time.'
And `speed' means quickly. It was a very unclear and vague and unhelpful
phrases. Thurgood Marshall put on a good face at the time and said, `Well,
this isn't so bad.' But later on he realized what some people realized at the
time; that the phrase `all deliberate speed' was so vague that it permitted or
encouraged Southern resistance to school desegregation. Much later he used to
tell his law clerks that he finally understood what `all deliberate speed'
meant. It meant `S-L-O-W.' And that's exactly what did happen. But as I
said before, I don't know that if the court had said, `OK, do it tomorrow,'
or, `Do it this year,' I think the resistance would have been as fierce and as
overwhelming as it was.

GROSS: My guest is James T. Patterson, author of "Brown vs. Board of
Education: A Civil Rights Milestone and its Troubled Legacy." We'll talk
more after a break. This is FRESH AIR.

(Soundbite of music)

GROSS: If you're just joining us, my guest is James Patterson. He's a
professor emeritus of history at Brown University and author of the book
"Brown vs. Board of Education: A Civil Rights Milestone and its Troubled
Legacy."

OK, so after Brown vs. Board of Education, when the Supreme Court made it
illegal to segregate the schools, there were attempts in Congress to get
around that. What did some congressmen try to do to get around Brown V. Board
of Ed?

Prof. PATTERSON: The most famous effort by the Congress was the so-called
Southern Manifesto, which was signed in March of 1956 by, I think, 101 of the
Southern representatives--this was a huge majority of the Southern
representatives--and by 19 of the 22 Southern senators, all Democrats, of
course, at that time, in the so-called Solid South. The only senators who
didn't sign were Senator Al Gore Sr. of Tennessee, Estes Kefauver of
Tennessee and Lyndon Johnson of Texas. All three of these people had national
aspirations either to be presidential candidates or vice presidential
candidates, in the case of Gore. All the rest, however, signed it.

What the manifesto said was that the South would use all legal means to
contest this bad decision. So it was a formal statement on the part of
Congress that encouraged local people in the South to think that their
representatives and senators would be behind them when they resisted
implementation of the decision.

GROSS: I'd like to mention that Strom Thurmond, who went on to have a very
long career in Congress...

Prof. PATTERSON: Yeah.

GROSS: ...was one of the people who signed the Southern Manifesto.

Prof. PATTERSON: That's right.

GROSS: What's an example of one of the dodges that the Southern Manifesto
helped, quote, "legitimize"?

Prof. PATTERSON: One of them was so-called pupil placement laws. As you
know, education is profoundly a local matter in the United States. It's
predominantly supported by local taxes and run by local school officials.
Sometimes there's a little bit of state aid, but it's never been much. And at
that time there was no federal aid to speak of. So the implementation of
Brown or non-implementation of it was left to local school officials and local
political officials. And they would design these so-called pupil placement
tests, and they would bring kids in during the summer or before the start of a
school year and give them these tests, from which they deduced that certain
kids should go to school X and certain kids should go to school Y. And with
remarkable consistency what these, what these tests did was end up placing all
the black kids in black schools and all the white kids in white schools, just
as had always been the case. Maybe they might offer a tiny bit of token
desegregation; that is to say admitting a very small handful, two, three,
five, black kids to a white school so that they could say, `Look, we're not
violating the law. We've desegregated.'

But there were other things. After that, in the '60s, a major means of
avoiding the implications of the Brown decision was so-called freedom of
choice plans. And what this meant was that parents were told that their kids
had freedom of choice. They could go to whatever school they wanted to in
their districts. But, in fact, what happened all the time, or almost all the
time--and there were a few exceptions; there were token desegregation, some of
these cases--was that the black parents didn't dare send their kids, and many
black kids didn't want to dare to go, to the all-white schools. And virtually
on white parents ever chose under freedom of choice plans to send their kids
to black schools. So the freedom of choice plans had the same impact as the
pupil placement laws, which is to say no desegregation.

GROSS: In the early years after Brown V. Board of Ed, the South and people in
the South called many people in the North hypocrites because the North
actually had a lot of segregated schools, but they were segregated not because
of legally mandated segregation. They just, because of geography and race and
class and all of those issues, ended up being segregated. Can you talk a
little bit about what that argument was like in the '50 and '60s?

Prof. PATTERSON: Yes. Yes, as you say, many white Southerners and people
generally resented being singled out as more racist than Northern whites,
where de facto segregation based upon residential segregation. And I should
point out that they had a point because the de facto segregation was not
always or necessarily or usually accidental. Northern districts for many
years had established school districts, the siting of new schools when they're
built, transportation routes and various other ways to ensure, in many cases,
a minimum of mixing between whites and blacks in the schools. So de facto
segregation was, in some ways, the result of legal and official and political
decisions. It was not just accidental. So the South had a very good point
there.

GROSS: I want to read the quote that you end your book with, and this is a
quote from Jack Greenberg, who was one of the NAACP lawyers who argued Brown
V. Board of Ed. And the quote is: "Altogether school desegregation has been
a story of conspicuous achievements flawed by marked failures, the causes of
which lie beyond the capacity of lawyers to correct. Lawyers can do right,
they can do good, but they have their limits. The rest of the job is up to
society." Why did you want to end your book on Brown V. Board of Ed with that
quote?

Prof. PATTERSON: Well, I agree with it. It reflects what I've already
mentioned; that litigation is what I would call a necessary strategy, as part
of civil rights improvements in this country. You have to have the law on
your side. And the Brown case was very important as a constitutional
precedent, which overruled, as least insofar as schools was concerned, the
Plessy decision. But litigation is slow. More than litigation was needed to
get The Civil Rights Act passed in 1964 and the Voting Rights Act in 1965. It
involved a civil rights movement and direct action. Without this kind of
grass-roots, powerful, local, political pressure, without mobilization,
without organization, without moral passion going beyond the courts, it's
difficult to get a whole lot accomplished in race relations. That's what
Greenberg meant; that's what I mean.

GROSS: James Patterson, thank you so much for talking with us.

Prof. PATTERSON: Thank you.

GROSS: James T. Patterson is a professor emeritus of history at Brown
University. His book is called "Brown vs. Board of Education: A Civil Rights
Milestone and its Troubled Legacy."

In the second half of the show we'll hear from Jack Greenberg, who I just
quoted. I'm Terry Gross, and this is FRESH AIR.

(Soundbite of music)

(Announcements)

GROSS: Coming up, answering the Supreme Court's tough questions. We talk
with Jack Greenberg, one of the lawyers who represented the families in Brown
vs. Board of Education. He succeeded Thurgood Marshall as director of the
NAACP Legal Defense and Educational Fund. The anniversary edition of his
memoir, "Crusaders in the Courts," has just been published.

(Soundbite of music)

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Interview: Jack Greenberg discusses the Brown vs. Board of
Education case and new edition of his book, "Crusaders in the
Courts"
TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

My guest, Jack Greenberg, is one of two surviving lawyers who argued the cases
that were combined in Brown vs. Board of Education. May 17th marks the 50th
anniversary of the Supreme Court decision which declared state-sanctioned
segregation of the schools to be unconstitutional. The lead lawyer on the
case was Thurgood Marshall, who then headed the NAACP's Legal Defense and
Educational Fund. In 1961, when Marshall left the group and became the first
African-American Supreme Court justice, Greenberg replaced him as head of the
LDF. He worked with the group for 35 years, then left to join the faculty at
Columbia Law School. He became dean of Columbia College. Greenberg's
memoir, "Crusaders in the Courts: Legal Battles of the Civil Rights
Movement," has just been published in a new edition.

Would you describe what your role was in Brown vs. Board of Education?

Mr. JACK GREENBERG (Author, "Crusaders in the Courts: Legal Battles of the
Civil Rights Movement"): OK. My role in Brown V. Board of Education started
when a lawyer in Topeka sent in a draft complaint to the offices of the NAACP
Legal Defense Fund for approval and asked for us to edit it, if anything had
to be done. And I did some considerable editing to it. I sent it back to
him. Actually at that point it wasn't called Brown. It was a bunch of names
in random order, and he alphabetized them. So B, with Brown, got up there at
the top, though I think it's amusing now and perhaps an irony that there were
two families named Brown in the case, Oliver Brown and Darlene Brown, neither
related to the other. And he named it Oliver Brown, which, of course, was not
strict alphabetical order, because Oliver was a man. And as...

GROSS: Oh, that's a great paradox, yes.

Mr. GREENBERG: That's right. And I think partially as a result of Brown
against Board of Education, that would not happen again today. And then I was
trial lawyer in that case, along with Robert Carter. And then there was
another case in Delaware--two other cases in Delaware called Gephardt against
Belton. And I was the trial lawyer in that with a lawyer called Louis
Redding. And then the two of us argued that in the Supreme Court of the
United States. And we won those cases in the courts below.

GROSS: Now the Delaware case was the first decision that ordered black
children to be admitted to white schools.

Mr. GREENBERG: That's right, that's right.

GROSS: What was the argument that you made in the lower court in 1952?

Mr. GREENBERG: Well, it was the same argument we made in the other cases. We
argued that the schools were unequal in a physical sense, and the classrooms
weren't as good. Actually they had six grades in two rooms in one of the
Delaware cases. In another one of the cases, there wasn't even a black high
school in the town. The student had to travel to another town to go to high
school. But we also argued that segregation itself was unconstitutional; that
just the mere fact of setting people aside because of their race was
unconstitutional. And one of the reasons it was unconstitutional was that it
impaired and interfered with a black child's ability to learn it, label them
as a second-class citizen, and that didn't make him feel very good.

GROSS: Yes. You also brought up the psychological effects of segregation.

Mr. GREENBERG: That's right. Well, that's what I was referring to. We had
psychologists and a psychoanalyst, who'd examined the kids, testify in the
case. And he said that he came to the perfectly obvious conclusion that it
was harmful to their mental well-being to separate them on the basis of race.

GROSS: Help explain this to me. Although you won the case, the judge didn't
say that, well, segregation is illegal because, you know, Plessy vs. Ferguson
upheld the legal separation. So can you explain what the judge ruled

Mr. GREENBERG: Yes. You're correct.

GROSS: ...and how he was affected by Plessy?

Mr. GREENBERG: The case was based--I mean, our argument was two different
sorts. One is that the black schools were physically, measurably, visually
unequal to the white schools, and consequently there was an inequality, and
the black children should be excluded from the white school. Then there was
the argument that segregation itself was unconstitutional. No matter--even if
the schools are identical, it would be unconstitutional. And the judge, who
was, really, a very courageous, excellent, wonderful man, said, `Look, I think
segregation's unconstitutional, but I'm just a lower-court judge, and I don't
have the authority to overrule the Supreme Court of the United States. And so
I'm going to order these children admitted on the grounds that the schools are
physically unequal. We know that they're not permitted to do that. And as to
the rest, I leave that to the Supreme Court of the United States.'

GROSS: How was it decided to take the Topeka case, which you'd worked on, the
Delaware case, which you'd worked on, and three other cases pertaining to
school desegregation and combine them into one test case before the Supreme
Court?

Mr. GREENBERG: Well, I think that was, in large part, the Supreme Court's own
decision because--for example, the District of Columbia case had not even been
decided in the Court of Appeals. It was just there waiting argument in the
Court of Appeals. And the clerk of the United States Supreme Court called the
lawyer in the case, James Nabrit, and said, `If you will file a petition for
us asking the Supreme Court to review the case, even before it's been decided
in the Court of Appeals, we'll grant you that petition.' And he did that, and
the Supreme Court essentially plucked that case up out of predecision and took
it.

In our case, the Delaware case, we couldn't appeal because we had won, so we
were in a funny kind of position. We wanted to have it heard in the Supreme
Court, but you can't appeal a case that you've won. So we had a hope that the
attorney general of Delaware would appeal the case, and, happily, he did. But
he did at a point when the case would not have been heard that same year with
the cases. He did it so late that it would have been heard with the others.
And we filed a motion, what's called a motion to advance, to move our case
up very quickly, and the Supreme Court granted that. So it wanted to hear all
those cases together.

GROSS: What were the controversies within the NAACP and the larger civil
rights community about whether this was the best way to attack the cause of
civil rights and whether the schools were the best place to challenge Plessy
vs. Ferguson?

Mr. GREENBERG: Well, at the time of the Brown case, there was some
controversy, but it was insignificant. There was the newspaper
journalist--slash--lawyer whose name was Marjorie McKenzie, and she wrote some
column saying we should have done it some other kind of way. Harry Ashmore
was the editor of the Little Rock Gazette, who was one of the few whites who
was pro-civil rights--thought we shouldn't bring the case because we would
lose it. But otherwise it was pretty much unanimous. And the real
controversy had existed as far back as the late '30s when W.E.B. DuBois and
those who disagreed with them, namely the NAACP and a man called Charles
Thompson, who was dean of the Howard University Graduate School of Education,
disagreed on whether or not they should go for integration or equalization.
And DuBois was in favor of equalization. But the integration forces won on
the grounds that equalization, A, would never be achieved, in which I think is
quite clear, and that, B, there's no such thing as being separate and equal
because you're marginalized, you're stigmatized, you're out of the mainstream,
and you can't possibly be equal.

GROSS: Was your goal, was the goal of Brown, in your eyes, to overturn
Plessy vs. Ferguson?

Mr. GREENBERG: The goal of Brown was far more than school integration. It
was essentially to break up the entire racist system which rested on
segregation. It was not just school integration. I mean, you could not, for
example, have integrated schools in a segregated society. It was
self-contradictory. And the goal was to put an end to racial segregation, and
the Supreme Court agreed with that because one week after the decision in
Brown, they handed down three or four decisions in which the opinion merely
said, `Brown against Board of Education.' And those decisions involved a
beach, a golf course and a municipal theater. And, you know, the
psychological effects of segregation had nothing to do with your ability to
enjoy those places, except that segregation itself was an impediment to living
a full life.

GROSS: My guest is Jack Greenberg. A new edition has just been published of
his memoir "Crusaders in the Courts." We'll talk more after a break. This is
FRESH AIR.

(Soundbite of music)

GROSS: My guest is Jack Greenberg, one of the lawyers who argued the cases
that were combined in Brown vs. Board of Education.

When you making your argument, what was the toughest question you were asked
by one of the justices?

Mr. GREENBERG: Well, the question really wasn't tough, and I gave the right
answer, but he wasn't satisfied at the time, Justice Frankfurter. You see,
we had won our cases in the court below, and we couldn't appeal. Of course,
you can't appeal something that you've won. So we had hoped the other side
would appeal. The other side did appeal. And we had not won our case on the
basis of the unconstitutionality of segregation. We'd won our case on the
basis that the schools weren't equal. Before the Supreme Court, I argued that
segregation was unconstitutional, and Justice Frankfurter said, `Well, why
didn't you cross-appeal?' Why didn't we appeal the fact that the court had
not ruled with us on the grounds of unconstitutionality of segregation rather
than just on the grounds of inequality.

Well, the reason we hadn't is if we had done that, the other side would have
30 days to answer, and then we would not have our case heard that term. I
tried to explain that, and I said, `Look, you can affirm the decision that
we've won below but affirm it on the ground that segregation is
unconstitutional, not from the--and don't have to treat that as a new and
separate ground.' And we went around and around with that. But in the end
that's what they did.

GROSS: Where were you when you actually heard the decision?

Mr. GREENBERG: I was in the office of the Legal Defense Fund at 107 West 43rd
Street in New York. And Thurgood Marshall was in Washington, and he was in
court when the decision came down. And he called me.

GROSS: And what did he say?

Mr. GREENBERG: He said, `We won. It was unanimous.' And he was going to get
the next plane and come up to New York.

GROSS: When you got a chance to actually read the decision, what did you
think of it and of the decision as written by Earl Warren? What did you think
of the writing?

Mr. GREENBERG: I thought it was wonderful, and I still do. And if I had to
nitpick, I'd pick a couple of little things that are not very important. But
there's an entire industry that has developed of lawyers and law professors
who write about what was wrong with Brown against Board of Education. There's
something about the academic calling which says that you have to find out
what's wrong with something. And there are whole books written about it and
articles and essays and collections and so forth. And there's even a book
which essentially is how I would have written Brown against Board of
Education better, and most of the people who contributed to that have written
it only longer.

GROSS: Brown was handed down in 1954. A year later the Supreme Court
justices issued a related decision, Brown II, in which they said that
desegregation of the schools should be carried out `with all deliberate
speed.' What did you think of that second decision, and how did you interpret
`with all deliberate speed'?

Mr. GREENBERG: Well, I have to answer that in retrospect. The `all
deliberate speed' decision didn't merely say `all deliberate speed.' It said
some things that nobody would argue with. It said you have to make a prompt
and reasonable start. You can take only time to make administrative changes,
like, you know, draw up some new zone lines and reassign teachers and so
forth. You may not delay desegregation because of opposition to it; everybody
would agree with that. And then you should proceed with all deliberate speed.
That was put in there probably as a way of getting a couple of justices who
might have dissented from not dissenting; probably Reed and Jackson. And it
was thought it was worth doing that in order to get a unanimous decision. And
given the absolutely incredible opposition and massive resistance that had
occurred, there are those who think that if there were a couple of dissenting
opinions, it would have been worse. Well, we don't know, but there's pretty
good reason to believe that. So that's the justification for `all deliberate
speed.'

Did `all deliberate speed' slow things down? Well, after Brown came down, 101
congressmen signed something called a Congressional Manifesto; congressman
and senators did that, which they denounced the Supreme Court. All the
Southern states adopted something called resolutions of interposition and
nullification. It's pretty hard to know what that means, but it means they
sure didn't like that, and that's what they adopted on the eve of the civil
war. And I won't go into all the details, but they appropriated money to
fight the Brown decision, and they passed a constitutional amendment to close
public schools, so blacks went there. And they raised all kinds of procedural
and bureaucratic impediments; the black kids went to white schools. They
tried to disbar civil rights lawyers. They enjoined civil rights
organizations from functioning and so forth.

I find it hard to believe that if the Supreme Court had said `Desegregate
immediately,' they would not have done that. They would have done exactly the
same thing, maybe worse. And with that being the case, that's what slowed
down the integration of the schools. The schools could not integrate
themselves. They could not integrate in the face of opposition. There were
five lawyers at the Legal Defense Fund; they couldn't have done it without The
Civil Rights Act being passed. They weren't passed till '64.

So I think `all deliberate speed' did not slow things down. Now I have to say
there's some disagreement with that. Some people think that if the court
hadn't said `all deliberate speed,' a lot of places would have desegregated,
and it would have created a momentum. I just don't think so.

GROSS: Did you celebrate on the night of the unanimous decision?

Mr. GREENBERG: As a matter of fact, we did not. That's about the only time
we did not celebrate. We just were sort of, you know, in a bit of a fog; we
were sort of stunned.

GROSS: Stunned by what?

Mr. GREENBERG: Well, just the immensity of what it all meant. You know, it
was pretty staggering. It put an end to essentially something that the Civil
War was unable to end.

GROSS: Were the plaintiffs in Brown vs. Board of Ed harassed during or after
the case? And so how were you affected by that?

Mr. GREENBERG: Some of the plaintiffs were very, very badly harassed. In
South Carolina, the home was burnt down, the credit was cut off. The
DeLaine family was the plaintiffs there. They were very badly harassed.
Their lives were in danger. The plaintiffs in the Virginia case, I don't
know, but I think they probably were also. In Delaware, there was nothing
adverse that was done to them that I ever heard of; same with the District of
Columbia. And in Topeka, I don't believe anything was done. As to me and
those cases, no, I was not affected at all. In some other cases I was in
danger, though. Usually in almost all cases I was not aware of that till
after I got my FBI files, you know, many, many years later.

GROSS: What did you learn from the FBI files?

Mr. GREENBERG: Oh, there were various white supremacists groups talking about
killing, quote, "Jew Jack Greenberg." But then they never got around to it, I
guess.

GROSS: My guest is Jack Greenberg. A new edition has just been published of
his memoir, "Crusaders in the Courts." We'll talk more after a break. This
is FRESH AIR.

(Soundbite of music)

GROSS: My guest is Jack Greenberg, one of the lawyers who argued the cases
that were combined in Brown vs. Board of Education. His memoir, "Crusaders in
the Courts," has just been published in new edition.

Now in your new memoir, which has just been republished called "Crusaders in
the Courts," you write, `What had all our efforts achieved? By June, 1960, in
five states of the Deep South--Alabama, Georgia, Louisiana, Mississippi and
South Carolina--not a single black child attended an integrated school.'

Mr. GREENBERG: Right.

GROSS: `In Arkansas, Florida, North Carolina, Tennessee and Virginia, the
numbers of black children attending white schools ranged from 34 to 169.'

Mr. GREENBERG: Right.

GROSS: When did it start to hit you that this monumental decision was not
having the kind of actual impact that you wanted it to?

Mr. GREENBERG: Well, I'm going to have to qualify your question a little bit
because Brown was more than a case about integrating schools, though it
certainly was in terms of that and it involved that. Brown was a case about
tearing the whole regime of segregation, and it didn't come down evenly across
the board. In some places it came down more; in some cases it came down
differently. And schools have been the last place to go simply not because of
the difficulty of integrating schools alone but, of course, of residential
segregation, which is a function of lots of different things. No, it was
obvious very early on that schools were going to be the most difficult thing
to do. And, actually, integration went up pretty high in North Carolina in
the mid-'80s and then went into a state of decline.

GROSS: What are your thoughts on seeing public schools, particularly
inner-city schools now--there are so many inner-city schools that are, you
know, nearly completely African-American and so many suburban schools that are
very white. You could argue that in a lot of ways school segregation still
exists.

Mr. GREENBERG: Well, that's right. This is a terrible, terrible tragedy.
What can be done about it? Well, there are some things that can be done about
it. For example, in Boston, there's a program called Metco, in which on a
voluntary basis Boston inner-city kids go to school in the suburbs. And it's
immensely successful. These kids almost all go on to college. They've all
ended up being successes in whatever they've tried to accomplish in life. And
it is so successful there's a waiting list of 13,000 to get into that program.
And there are a couple of other programs like that around the country. The
Leave No Child Behind Act has a provision in it which provides that if you are
going to a terrible school, you have a right to transfer to a better school.
But it doesn't allow you to transfer to a school outside of your district.
And if you look at my new edition, I propose that the law be amended to make
that possible.

GROSS: Now on the 50th anniversary of Brown vs. Board of Ed, I'd like you to
reflect for a moment about what you now think is the strength of the courts to
bring about social change in America and what are the limitations of the
courts' ability to create social change.

Mr. GREENBERG: Well, the courts can't do everything by themselves. They can
set a standard, they can give an impetus, they can prevent some bad things
from happening. But all Brown said was, you know, `You may not segregate the
schools.' It didn't say that you had to be virtuous, you had to care, you had
to make an effort to make things better. The courts, the Congress,
individuals--no single institution or approach to a problem can do it all by
itself.

And what Brown did was, though--the metaphor that I'd like to use: It was
like an icebreaker that went through a frozen sea, and it broke up the frozen
racial situation that we had in the United States. And it made the Civil
Rights Act possible, and it made possible a situation in which at the time of
Brown, there were two black congressmen, and now there are 40. There was no
black mayor of a major city; now every major city in the country at one time
or other has had a black mayor. It, I think, would have been absolutely,
completely unthinkable at the time of Brown or even 10, 15 years ago that
today the CEO of Time Warner, Citibank, Merrill Lynch, American Express are
all black. That's quite something. You've got to balance that off against
black unemployment being double that of white and black average income being,
you know, 60 percent of white. And the statistic that always blows me away is
that the longevity of a black male in Harlem today is that of a person in
Bangladesh. So the one way of putting it is the glass if half empty or half
full, but in 1954 the glass was completely empty.

GROSS: Thank you very much for talking with us.

Mr. GREENBERG: It's been my great pleasure.

GROSS: Jack Greenberg's memoir, "Crusaders in the Courts," has just been
published in a new edition. He's one of the lawyers who argued the cases that
were combined in Brown vs. Board of Education. May 17th will mark the 50th
anniversary of this Supreme Court decision, which ended state-sanctioned
segregation of the schools.

(Credits)

GROSS: I'm Terry Gross.

We'll close with a 1957 recording featuring the great guitarist Barney Kessel
accompanying Billie Holiday. Kessel died of brain cancer Thursday at the age
of 80. He'd been inactive since a stroke in 1992.

(Soundbite of song)

Ms. BILLIE HOLIDAY: (Singing) Day in, day out, the same old routine follows
me about, the same old pounding in my heart whenever I think of you. And,
darling, I think of you day in and day out. Day out, day in, I needn't tell
you how my days begin. When I awake, I awaken with a tingle, one possibility
in view; that possibility of maybe seeing you. Come rain, come shine, I meet
you, and, to me, the day is fine. Then I kiss your lips, and the pounding
becomes the ocean's roar, a thousand drums. Can't you see it's love? Can
there be any doubt when there it is day in and day out?
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