Jack Greenberg was 27 years old when he helped argue the Brown vs. Board of Education cases before the U.S. Supreme Court. He succeeded Thurgood Marshall as head of the NAACP Legal Defense Fund, where he worked for more than 30 years. He is a professor of law at Columbia University. His memoir, Crusaders in the Courts, was published in a new edition this month.
Gilbert Holmes, dean of the University of Baltimore School of Law, is a graduate of the New York University School of Law. He has served on the law faculties of Texas Wesleyan University, Southern Methodist and Seton Hall.
At the invitation of The Sun, Mr. Greenberg and Mr. Holmes met May 12, 2004, just days before the 50th anniversary of the Brown vs. Board of Education decision, to discuss its legacy.
The transcript begins with an interview with Mr. Greenberg, then Dean Holmes joins the conversation. The interviewer is Sun reporter M. Dion Thompson.
Mr. Greenberg: "Brown was filed as a case to integrate schools, and for a long while it didn't do that simply because of massive resistance. You had about a hundred congressman and senators denouncing the Supreme Court, and all kinds of other resistance. You had violence. There were economic sanctions against people ...Then it went into decline...I don't think anybody thought it would follow that trajectory. But at the same time a great many things happened that we had not foreseen.
"Brown was a catalyst for the creation of the Civil Rights movement. It didn't do it all by itself, but there's no better evidence of that than (that) the first Freedom Ride was scheduled to end in New Orleans on May 17. The Freedom Riders were essentially paying homage to Brown. And you talk to Civil Rights demonstrators and, yeah, they had Brown in mind. Rosa Parks was an official of the NAACP and they drank and breathed Brown. But more important, the Montgomery bus boycott came to a successful conclusion when the Legal Defense Fund, our office, filed a law suit to enjoin the enforcement of the Montgomery segregation laws. We won that case. And the entire Supreme Court opinion consisted of quote, Brown vs. Board of Education, unquote. ?
"Brown was the catalyst to the Civil Rights Movement, and out of the movement came the Civil Rights Act, which changed everything. Public accommodations integrated almost immediately. Voting took a little longer. But we went from a situation where black voting in the South, in the areas where black population was greatest, was 2 percent to 8 percent, and now we have 39 black congressmen and the mayor of many a large city is black. So, it would be crazy to say Brown did it, but on the other hand, it wouldn't have happened without Brown. People who disagree with that are always going to disagree.
"I always view Brown as a school case, and I also view it as a catalyst to the Movement, the Civil Rights Act and so forth. But I never really had a full appreciation for what it meant to American social politics until last year, last summer, when I went to Eastern Europe and participated in a discussion of the integration of Roma gypsies into the public schools in Eastern Europe. They were highly segregated. ? I was just so astonished. I went to Bulgaria to see what was happening in terms of the integration of schools.
"The cases that led up to Brown came out of a campaign that was led by Charles Houston, based on a study that he had been done by Nathan Margold. And, the Margold Report considered this very question ? and this was in the late 1920s, the early 30s: Should we go to equalize schools, or should we go to integrate? And he did a study of what would happen.
"The law was separate but equal, and what he found to no surprise is that it was not equal, it was not even remotely approaching equal.
"And, so Houston considered: Should we file some cases to equalize the schools? He didn't have to file a case to establish the principle that they should be equal, because the principle was there. You had to file cases to really make them do it. And he said, 'Well, we have enough money to file about seven cases, maybe not enough money to file 70 cases. And he said maybe we would win a lot of them, but then would be the problem of actually wringing the money out of the school districts. The court does not print money. You've got to get it from the legislature. And he thought you would have a hard time doing that. Well, that was an absolutely valid perception.
"The next point is, even if you did get the funding, that is not what black kids need. To go to school in a segregated environment is, sometimes, maybe unavoidable. Now, in particular because of residential segregation, it is widely unavoidable, but all the evidence shows that an integrated education is superior to a segregated one, the grades and the scores, but even more than that, the social networking that comes out of an integrated education.
"That is not to say you can't have an absolutely first-rate all-black school. There are a few such examples, but I think the term people use is 'can you bring that to scale?' Is that something you can have as a nationwide thing? In a particular school with highly dedicated teachers, those aren't aberrations, but can you sustain that on a national basis?"
Interviewer: "You mention earlier that one thing you all were surprised at was the arc of integration, where you have zero, then you have a peak in the early '80s, then tailing back off. Surprised because you thought it would be a continual upswing."
Mr. Greenberg: "Well, I want to tell you, we were like, five lawyers, with maybe a couple dozen people we worked with on an ad hoc basis. We weren't sitting around trying to predict the future. We were doing the best we can with the circumstances. So, if somebody said to one of us at that time, what do you think is going to happen? ? Nobody anticipated the Civil Rights Act would be passed. Nobody anticipated then there would be Title VI. If somebody said, 'What do you think will happen?' I would have said: The same thing would happen that happened on the university level. In retrospect I would have thought that the elementary and high schools would have moved along like the universities, a little bit at a time ? the difference being that parents of elementary and high schools are tied to a place of residence, and parents of university students are not. You have people coming from all over to go to a university. But tied to a residence, then you're tied into residential segregation, the whole city-suburb."
Interviewer: "So, you think integration would have been more incremental, more gradual."¶
Mr. Greenberg: "Yeah, and by gradual, I mean very gradual. I don't think you can do it all, just because of the residential segregation. I don't see it. Now, the small towns and the rural areas of the country are pretty well integrated because they don't have dense, wide, dense areas of all black and all white.
"Since Brown, it's all moved off into the political sphere. You're not going to get a court decision saying what you're going to do, you're going to get the Congress, or the state legislature, or the City Council deciding. It's not the same thing with this whole gay marriage thing: The court decided it, now it's all up to the legislatures.
"One of things that's clear: There was not a place in the South where a black could get a Ph.D. There was one black medical school. There were no black law schools: Now there are 10,000 black law students. Ole Miss is now well integrated.
"It transformed the particular values of the country. It gave rise to equal rights for women, gays, Hispanics, elderly people, handicapped people. The whole notion of equality has become pervasive. It transformed the status of black people."
Mr. Holmes: "Certainly it opened the doors. I liked what you said. It opened the doors to people thinking about equality in ways that they really hadn't thought of before, and all the different movements that have sort of spun off it. It certainly opened the door for opportunity. People dreamt about opportunities, but they weren't able to manifest them. I think of my being dean of a law school as the offshoot of Brown.
"The other side of the legacy is that it also demonstrated how deep-seated some of the racial animus in the country was in terms of the reaction to Brown."
Mr. Greenberg: "Oh, yeah, the massive resistance."
Mr. Holmes: "The massive resistance. And I wouldn't say Brown set the stage, but a lot of that resistance did manifest itself with the riots of the '60s and the flight from the urban centers."
Mr. Greenberg: "Well you had the riots before the '60s, in the '60s and in the '90s. And there was racial animus before Brown, during Brown and after Brown."
Interviewer: "Was anyone surprised by the massive resistance, by the Southern senators and congressmen?"
Mr. Greenberg: "I was not surprised that the Southern states were opposed to integration, but I was surprised by the violence."
Mr. Holmes: "I don't think anybody could have predicted that it would have been that fierce."
Mr. Greenberg: "They got up and they argued in the Brown case that blacks were inferior, that blacks were diseased, whites wouldn't go to school with them, and things like that. The lawyer from one state said to the court: 'I can tell you that we're never going to send our children to school with black kids.' And (Chief Justice) Warren said, 'I want you to tell me you'll make an honest effort to integrate the schools.' And he said, 'Keep honest out of it.' That's a quote. (laughter) And Warren said, 'No. Put it back in.' You knew there would be resistance, but I didn't think there would be things like Little Rock, or Meredith."
(Note to readers, regarding Meredith: In 1962, African-American James Meredith arrived to register at the University of Mississippi. A hostile crowd massed and then rioted; two people died, hundreds were injured. In 1966, as Meredith led a Civil Rights march, he was shot and wounded.)
Mr. Holmes: "Or even things like Boston."
Mr. Greenberg: "But you can't change the role of racism. It's unfortunate , but you can't."
Interviewer: "Success was in creating this level of opportunity, this conciousness of racial equality and opportunity that heretofore wasn't present in society?"
Mr. Greenberg: "No, not at all."
Mr. Holmes: "Like I said, the dreams were there, but the manifestations, the manifestations were limited, they were all blocked. So you could say it uncapped the dreams. Would you agree with that Jack, that it uncapped the dreams?"
Mr. Greenberg: "Oh, yeah. It made things possible. A lot happened. Remember: A black person couldn't get a Ph.D. in the South before 1954."
Interviewer: "Talk about resegregation for a moment."
Mr. Holmes: "I mention the flight issue because what happens in the cities is that the middle class, predominantly white, and black as well, leave the city and that is what creates the level of segregation in the cities that we have, which is as much economically based as racially based, but has its origins in the lack of opportunity that has been around in this country for centuries, for a very long time."
Interviewer: "And the criticism that Brown's advocates suffered from naivete?"
Mr. Greenberg: "People didn't really expect all the opposition, and didn't even really think about what constituted integration. Marshall talked about just getting the black kids to go to the white schools. And when you stop to think about that, that was not integration ? People never really thought about a lot of that. People say, 'what do you think about it, what do you think?' Then you come up with the right answer. But you didn't ask the question. We just wanted to get rid of segregation."
Mr. Holmes: "(It was) naivete, to think it would be a panacea. I think that kind of naivete is good. I don't take it as a criticism because there was an optimism to it, there was a hope to it. We often want to downgrade naivete. It's not a bad thing."
Interviewer: "Where do you think we'll be 50 years from now?"
Mr. Holmes: "Maybe we ought to count 25, since that's what Justice (Sandra Day) O'Connor said." (Note to readers: "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today," Justice O'Connor said in 2003 as she announced the Supreme Court's 5-4 decision affirming the University of Michigan Law School's stance that racial diversity is necessary at institutions of higher learning. )"
Mr. Greenberg: "I think it was 25 years since Bakke."
Mr. Holmes: "That's right 25 years from Brown to Bakke. Bakke to now."
Interviewer: "So, what do you see on the horizon?"
Mr. Greenberg: "Well, I don't know. One thing that has developed is a large, substantial, effective and prosperous black middle class. That never existed before. You had the doctor and the lawyer and the undertaker. The lawyers that I knew weren't very prosperous. You had the newspaper publishers like in Baltimore, Carl Murphy. You had the Mitchell family, but that was about it. Now you have quite a substantial black middle class and you've got to balance that off with the unemployed and the low income and the low wealth.
"And my favorite statistic -- it's not my favorite because I like it, it's my favorite because it's just so striking: A black man in Harlem has the life expectancy of a man in Bangladesh. So, that's the downside.
" The upside is that you do have a large number who are going to college and universities and this vibrant middle class."
Mr. Holmes: "I agree that there is definitely a vibrant and growing middle class, and the black middle class as a group I think still hasn't figured out how to use the power that it has garnered, the monetary power, the voting power and the like. We still haven't figured that one out, yet. So, 50 years from now, maybe we will have figured that out so that middle class can become a real force for addressing the issues of the lower-income black community. But that to me is the challenge."
Mr. Greenberg: "But that assumes that it's going to want to address the challenges of the lower class."
Mr. Holmes: "Well I think that to some extent, it may even become necessary...the situation with the lower-income black community is such that, like it or not, it reflects on all of the black community. So that the black middle class has a self-interest, although I don't think we have even looked at that. So 50 years from now, it's economics, it's employment. It's much more of those issues, opportunities, to avoid people going into the drug trade and down other paths. And that to me is a bigger challenge because it's harder to identify what to do about it."