The evolution of the NAACP’s legal approach for equality The evolution of the NAACP’s legal approach for equality Mark Tuchnet - The NAACP’s Legal Strategy against Segregated Education, , Chapter 2. By Tom Kiely Competing Legal Strategies:

Early Legal Victories

Buchanan v. Warley (1917) Ordinance forbidding sale of real estate based on race = violation of 14 th Amendment

Moore v. Dempsey (1923) Habeus Corpus must be acknowledged in District Courts to avoid mob-dominated verdicts.

= Shift in strategy Legal success

Financing – Garland Fund

Funds Beginnings Charles Garland Harvard Law Student Receives $1million Creates fund to combat inequality

Board of Directors James Weldon Johnson o Executive Director of NAACP

Board of Directors Roger Baldwin o Founder of ACLU

Grants: Garland => NAACP 1930 Request $300, – 1929 $31,900

Competing Ideologies

Equality through education / litigation Equality through economics VS

Walter White’s Proposal Support legal battles in the South aimed at unequal, education funding

White’s Reason 1) Would drive up cost of education 2) Would create multiple appeals 3) Would bring national attention to racist education allocation of public funds

White’s Conclusion 1)Expensive dual schooling would force de-segregation 2)Multiple appeals would create federal legislation 3)Black community would mobilize / be empowered

Execution of White’s plan

Nathan Margold Appointed by White to spearhead NAACP’s legal campaign Recommended by fellow Frankfurter protégé, Charles Hamilton Houston Created detailed legal plan in May, 1931 to combat racial inequality

Margold Report Drew primarily from 3 previous Supreme Court rulings o Plessy v. Ferguson o Oklahoma o Yick Wo v. Hudson

Plessy v. Ferguson (1890) Man of mixed race was denied access to white car on train. Verdict – Equal protection in 14 th amendment guarantees political equality, not social equality. Importance to Margold – Though not explicit, ‘separate but equal’ ruling o Louisiana statute demanded the ‘but equal,’ not the Supreme Court o Only allowed segregation that was reasonable and enacted in good faith o Massachusetts education case cited in decision

Oklahoma (1914) Black people were not offered dining or sleeping cars on Oklahoma railroad. One argument of which was that it was not economically feasible to have them. Verdict – Segregation was upheld, however, argument that fiscal concerns could allow state to deny constitutional rights was held without merit. Importance to Margold – Court said that number of people being discriminated is irrelevant, constitutional rights are personal ones. Therefore, a ‘defense of compensating inequalities was unavailable.’

Yick Wo v. Hopkins San Francisco statute mandated a permit to any person wanting to use hand laundries in a wood facility. Though race-neutral, permits were handed out to significantly greater numbers of whites than Chinese. Verdict – Administering of these permits was unconstitutional. Importance to Margold – A statute did not have to explicitly state equality to require it.

Margold’s Theory Equal spending litigation would be endless and difficult Re-direct attack to challenge separation of schools, not just inequality. Focus on 3 facts o 1) State law required separate schools o 2) Allocation to schools was unequal o 3) State remedies unavailable Coupled with a white-ally campaign, this strategy would enable the most growth and meet the least resistance.

Margold’s Conclusion “Segregation coupled with discrimination resulting from administrative action permitted but not required by state statute, is just as much a denial of equal protection of laws as is segregation coupled with discrimination required by express statutory enactment.”

Post- Margold Report

Transition Money ran dry from Garland Fund 1) Lack of payment from previous loan 2) Depression 3) *Unwillingness to utilize more money on work related causes Walter White believed race mattered o Wanted a black man to defend black causes.

Charles Hamilton Houston Chose to replace Margold as head of NAACP Legal Team Had built up Howard Law School as farm system for elite, black lawyers

Houston Era Strategy Began hiring black lawyers to help lead the black fight. More than just symbolic. Houston reverted back to a mobilization – heavy legal strategy to litigate in an effort to organize the black community.