Separate But Equal: Brown v. Board of Education

• Separate But Equal: Brown v. Board of Education [2 video urls]…1

• U. S. Supreme Court Slaughter-House Cases [text + url]…2

My comment about the excerpt from “U. S. Supreme Court Slaughter-House Cases”…3

My comment about “... and of the State wherein they reside”…4

My comment about “... the child would be an alien”…4

My comment about “... when the wife by marriage” [urls]…4

• Separate But Equal Partial Transcript of the TV Movie (1991) [selected text]…5

Separate But Equal is the 1991 TV movie the Brown v. Board of Education decision of the 1953 United States Supreme Court which ended race segregation in education in the United States. Based on Richard Kluger’s book Simple Justice, the TV movie won the 1991 Emmy for best miniseries,.

After the Separate But Equal transcript excerpts are transcript excerpts of the Brown v. Board of Education (1954) opinion written by Chief Justice Earl Warren, found on archives.gov. This is followed with excerpts of 1) Re-enactment Script – Brown v. Board of Education Re-enactment, 2) History – Brown v. Board of Education Re-enactment, and 3) Brown v. Board of Education Podcast, all found on uscourts.gov.

These are the names of the persons portrayed on “Re-enactment Script…Re-enactment”: 1) Student Greeter, 2) Linda Brown, 3) Homer Plessy, 4) Charles Hamilton Houston, 5) Oliver Hill, 6) Constance Baker Motley, 7) Dr. Kenneth B. Clark, 8) Dr. Mamie Clark, 9) Thurgood Marshall, 10) Thurgood Marshall Closing Argument Reader, 11) Chief Justice Earl Warren.

These are the cases in “History…Re-enactment”: After the Plessy Decision info are the cases: 1) Pearson v. Murray (Md. 1936), 2) Missouri ex rel Gaines v. Canada (1938), 3) Sweat v. Painter (1950), 4) McLaurin v. Oklahoma Board of Regents of Higher Education (1950), 5) Brown v. Board of Education (1954, 1955).

Dialogue Transcript Info

After this introduction are dialogue transcript excerpts of the 1991 movie made 38 years after the 1953 Supreme Court desegregation case Brown v. Board of Education which held that the 1896 Plessy v. Ferguson doctrine of ‘separate but equal’ in education was not constitutional, and that “separate but equal” anything, education, water fountains, restaurants, motels, etc., was not the moral original intent of the framers of the Fourteenth Amendment. An example of original intent is Attorney Thurgood Marshall’s question for Gladys Hampton: “Do you believe there is such a thing as separate equality”?

Sidney Poitier is NAACP attorney Thurgood Marshall (elevated to the Supreme Court in 1967), the attorney for plaintiff Harry Briggs. Richard Kiley portrays new Chief Justice Earl Warren, former Governor of California who was not a lawyer. Burt Lancaster portrays John W. Davis, a very respected South Carolina defense attorney who lost to Thurgood Marshall.

Two part YouTube movie source #1

Part 1 – 1h 36m → https://www.youtube.com/watch?v=B8LWjV8-xac

Part 2 – 1h 38m → https://www.youtube.com/watch?v=41r7BnfCzMM

Two part YouTube movie source #2 (the transcript excerpts are from these urls)

Part 1 – 1h 36m → https://www.youtube.com/watch?v=lwS-mjLkq3k

Part 2 – 1h 38m → https://www.youtube.com/watch?v=wLX3mNmSxtY

Viewers will notice two things: 1) the original intent focus of the NAACP attorneys, and 2) the original intent focus of the South Carolina attorney on what was ‘implicit’ in the 1868 Fourteenth Amendment. The NAACP attorneys prepared their case against separate but equal by looking at the original intent of the framers who wrote the language of the amendment, and South Carolina defense attorney John Davis tells the Justices of the Supreme Court that separate but equal was implicitly intended. How did attorney Davis know in 1953 what was

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intended in 1868? Well, because separate but equal was being practiced on the day the Fourteenth Amendment was ratified as revealed by the fact that whites and blacks were already separated in Washington D.C. schools. Attorney John Davis relates that history in his dialogue in Part 2 @ 18m 55s and Part 2 @ 34m 48s.

Question: If “separate but equal” was implicit in 1868, what was implicit, separate or equal? Good question, right? Maybe it means separate equality? If so, what does that mean?

As the movie shows, the social evil of separate but equal came to be identified by new Chief Justice Warren as a moral evil that had to be addressed. My observation is that the moral evil was the point of view of former California Governor Warren who had never been a lawyer when he was nominated by President Eisenhower and confirmed by the U. S. Senate as the new Chief Justice of the Supreme Court to replace Chief Justice Fred Vinson after his heart attack and death. Would the decision of the Court have been different if the social evil had not been replaced by the moral evil of non-lawyer and former Governor Warren? As Justice Felix Frankfurter says at Part 2 @ 38m about the elevation of Earl Warren as Chief Justice, “Mark, this is the first solid evidence I’ve ever had that there is a God in heaven”.

Of course, Chief Justice Earl Warren’s moral original intent conclusion in the 1953 Brown v. Board of Education decision had nothing to do with the 1787 implicit meaning of ‘born’ in “natural born Citizen” in Article II Section 1 clause 5 (5 paragraphs below from part 2 @ 1h 30m 05s) . My reason for recommending this dramatized account of the rejection of ‘separate but equal’ 57 years after the 1896 Plessy v. Ferguson decision by the U. S. Supreme Court is to point to the court of public opinion aspect in the 1953 search for the original intent of the 1868 Fourteenth Amendment by the NAACP attorneys led by Thurgood Marshall, and that they expected the original intent of the framers of the amendment would support their position that the Supreme Court’s 1896 Plessy v. Ferguson ‘separate but equal’ (separate equality) decision was not moral and was not constitutional.

My contention is that ‘separate but equal’ (‘separate equality’) was not the explicit or implicit original intent of the ‘equal protection’ clause of the 1868 Fourteenth Amendment. The ‘original intent’ for the 1865 Thirteenth Amendment freed slaves was only citizenship, and definitely, obviously and absolutely irrefutable, it was implicitly only singular U. S. citizenship of only one nation. How do we in 2000s America know that? Well, because ONLY singular U. S. citizenship was implicit in the word ‘naturalized’ in the opening clause of the 1868 Fourteenth Amendment: “All persons born or naturalized in the United States ... are citizens of ...”. Also implicit in “... born ... naturalized ...” is only singular U. S. citizenship with ‘equal protection’ and definitely not only singular U. S. citizenship and ‘separate but equal’. That makes sense, right?

The best original intent source which the NAACP team found was Republican abolitionist Thaddeus Stevens and his quote related to the equal protection clause in the Fourteenth Amendment. Listen in video Part 2 @ 51m 25s: “Where any state makes distinctions between different classes of individuals, Congress shall have the power to correct such discriminations in inequality. No distinction will be tolerated in this purified Republic but what rose from merit and conduct”.

To make the TV movie Separate But Equal pertinent to the original genesis implication of ‘born’ in “natural born Citizen” in Article II and the use of the original intent defense by both the plaintiff and defense attorneys in Brown v Board of Education, and also the moral original intent conclusion of new Supreme Court Chief Justice Earl Warren who wrote the decision, there are two questions (see below after the Slaughter-House Cases quote about the purpose of the Fourteenth Amendment) for “natural born Citizen” new meaning neobirthers who ignore original genesis and original birther John Jay and reject his 1787 “natural born Citizen” original genesis implicit intent of only singular U. S. citizenship of only one nation.

That is the reason that the neobirthers also reject the assertion that only singular U. S. citizenship of only one nation was the implicit original intent of Representative John Bingham, the lead author of the 1868 Fourteenth Amendment, and Senator Jacob Howard, the author of the first words in the first sentence of Section 1, “All persons born or naturalized in the United States ... are citizens of ...”, words written with the implicit original intent of only singular U. S. citizenship to permanently protect the 1865 Thirteenth Amendment freedom of the former slaves, words affirmed by the Court in the 1873 Slaughter-Houses Cases, “... all the negro race who had recently been made freemen …”.

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U. S. Supreme Court Slaughter-House Cases

United States Supreme Court

83 U. S. 36 Slaughter-House Cases

Error to the Supreme Court of Louisiana

Argued: January 11, 1872

Reargued February 3-5, 1873

Decided: April 14, 1873

→ http://en.wikisource.org/wiki/Slaughter-House_Cases/Opinion_of_the_Court

→ http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=83&invol=36

[...snip...] “The first section of the [1868] fourteenth article, to which our attention is more specially invited, opens with a definition of citizenship - not only citizenship of the United States, but citizenship of the States. No such definition was previously found in the Constitution, nor had any attempt been made to define it by act of Congress. It had been the occasion of much discussion in the courts, by the executive departments, and in the public journals. It had been said by eminent judges that no man was a citizen of the United States, except as he was a citizen of one of the States composing the Union. Those, therefore, who had been born and resided always in the District of Columbia or in the Territories, though within the United States, were not citizens. Whether this proposition was sound or not had never been judicially decided. But it had been held by this court, in the celebrated Dred Scott case, only a few years before the outbreak of the civil war, that a man of African descent, whether a slave or not, was not and could not be a citizen of a State or of the United States.

“This decision, while it met the condemnation of some of the ablest statesmen and constitutional lawyers of the country, had never been overruled; and if it was to be accepted as a constitutional limitation of the right of citizenship, then all the negro race who had recently been made freemen, were still, not only not citizens, but were incapable of becoming so by anything short of an amendment to the Constitution. To remove this difficulty primarily, and to establish a clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States, and also citizenship of a State, the first clause of the first section was framed. ‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.’ “

[My comment about the excerpt from “U. S. Supreme Court Slaughter-House Cases”]

An obvious conclusion which can be extrapolated from the short excerpt from the Slaughter-House Cases language is that the 1865 Thirteenth Amendment freed slaves were, in essence and in effect, 1868 Fourteenth Amendment citizens with only singular U. S. citizenship of only one nation, and, of course, only one state (citizenship in two states is obviously incoherent, as is ‘singular’ citizenship in two nations), with the common sense implication that future caucasian and negro ‘citizens’ would be only U. S. citizens with only singular U. S. citizenship and would be recognized as “citizens of the United States and of the State wherein they reside”, only by birth on U. S. soil, only to one U. S. citizen, ‘singular’.

What does ‘singular’ mean for an 1868 to 2024 child born to only one U. S. ‘citizen’ parent? It means that only one = singular = only one citizen parent = only a “citizen” child = not eligible to be president. However, if born to two U. S. citizen parents “citizen” = a “natural born Citizen” child = eligible to be president.

An additional implication is that if both parents were not U. S. citizens the child would be an alien, well, at least for 30 years, from 1868 until the 1898 United States v. Wong Kim Ark Supreme Court fiat (‘because we said so’) ‘opinion’ which ‘naturalized’ (an Article I responsibility) by ‘opinion’ (an Article III responsibility) as a U. S. ‘citizen’ a child who was born on U. S. soil to parents who were aliens who had not naturalized before a child was born.

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Since 1787 the singular U. S. citizenship of both parents determined the singular U. S. citizenship of their child. Since 1787 females were naturalized by marriage until this way of naturalizing females was ended with the 1922 Cable Act. The common law from 1787 to 1922 allowed for the unity of citizenship and allegiance of the two married parents to pass to a child when the female was naturalized by marriage and automatically acquired the U. S. citizenship of the male. The singular U. S citizenship of both parents passed to a child by birth, alone resulting in “unity” and continuity of citizenship and allegiance. The common law of ‘unity’ and ‘continuity’ was implicitly understood since 1787 for eligibility to b e president, and, since the 1868 Fourteenth Amendment, applicable to the children of all persons “… born or naturalized in the United States ...” and “… subject to the jurisdiction ...” of the United States and the state in which they reside. Obviously the two words, ‘subject’ and ‘jurisdiction’, meant being a ‘citizen’ of the state of residence and the ‘Union”. Since 1868 the two words were not a reference to a future 1898 Supreme Court fiat (‘because we said so’) ‘opinion’ citizen. The Supreme Court essentially, with an ‘opinion’, naturalized Wong Kim Ark as a “citizen” with eligibility to vote and, as neobirthers assert with a straight face, also eligible to be president. [End of comment]

[My comment about “... and of the State wherein they reside”]

The Supreme Court in the 1898 U. S. v. Wong Kim Ark fiat (‘because we said so’) ‘opinion’ naturalized an alien child when the Court by fiat opined that a child born on U. S. soil was a U. S. citizen even though born to two parents who were not U. S. citizens. This decision should be corrected by the Congress or by the Legislatures of the ‘several States’ with an amendment and returned to the original genesis intent of the 1868 framers of the Fourteenth Amendment of citizenship being acquired either by naturalization oath on U. S. soil or by birth on U. S. soil to at lease one U. S. citizen. Of course, for eligibility to be president, birth would need to be to two U. S. citizens. The 1898 Supreme Court fiat (‘because we said so’) ‘opinion’ which has produced the nonsense of ‘birthright citizenship’ should also be corrected so that when citizenship is acquired at birth on U. S. soil to only one (1868-2000s) U. S. citizen parent, or born on U. S. soil to zero (1898-2000s) U. S. citizens, then the child is not eligible to be president. That makes sense, right? [End of comment]

[My comment about “... the child would be an alien”]

A further implication of the 1868 Fourteenth Amendment language, which implicitly referenced only singular U. S. citizenship by both birth and naturalization. The purpose of the 1868 language was to clarify who is a U. S. citizen and how does a person become a citizen, not who is and how does a ‘citizen’ become a “natural born Citizen” with eligibility to be president. Presidential eligibility still requires only singular U. S. citizenship according to Article II, so dual citizenship could not be the implicit intent of framers Rep. John Bingham and Sen. Jacob Howard, the senator who authored the words of the first sentence, “All persons born or naturalized in the United States ... are citizens ...”. [End of comment]

[My comment about “... when the wife by marriage”]

Here are two sources from 1933 and 1998 about the citizenship rights of women.

1) American Citizenship Rights of Women (1933)

→ http://loc.gov/law/find/hearings/pdf/0014160126A.pdf

2) Women and Naturalization (1802-1940), Prologue Magazine (Summer 1998, Vol. 30, No. 2)

Part 1: → http://www.archives.gov/publications/prologue/1998/summer/women-and-naturalization-1.html

Part 2: → http://www.archives.gov/publications/prologue/1998/summer/women-and-naturalization-2.html

Question #1

Who can not go to the Supreme Court asking for presidential eligibility protection under the original genesis and implicit intent of the 1868 Fourteenth Amendment equal protection clause?

Answer #1

(1a) Persons who claim presidential eligibility who were born with dual citizenship ‘at birth’ on U. S. soil to one or zero U. S. citizen parents (one = Sen./Pres. Obama; zero = Sen. Rubio, Gov. Jindal, Gov. Haley).

(1b) Persons who claim presidential eligibility who were born with dual citizenship ‘at birth’ on foreign soil to one or two U. S. citizen parents (one = Sen. Cruz; two = Sen. Lowell Weicker in 1980).

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Maybe Congress should pass a statute to clarify that the original genesis implicit intent of the word ‘born’ in “natural born Citizen” in Article II can be honored by having the two U. S. citizen married parents, who may be simply visiting a foreign country for a few months, to sign a declaration of intent to return by a certain date (a maximum of 10 months) and they wish to maintain singular U. S. citizenship for a child who may be born on foreign soil so that the child can maintain singular U. S. citizenship and presidential eligibility. Birth to two U. S. citizens who may be temporarily on foreign soil should not count against a child for presidential eligibility. A declaration of intent to return to the United States would be a common sense accommodation for honorable U. S. citizens. Until Article II is amended by the Congress or the Legislatures of the ‘several States’ as mentioned in Article V, these seven points for eligibility to be president prevail:

1) ONLY singular U. S. citizenship

2) ONLY by birth alone

3) ONLY on U. S. soil

4) ONLY two U. S. citizens

5) ONLY married

6) ONLY to each other

7) ONLY before a child is born

Question #2

Who does not need to go to the Supreme Court asking for presidential eligibility protection under the ‘equal protection’ clause of Amendment 14?

Answer #2

Persons who claim presidential eligibility because they know that they were born with only singular U. S. citizenship by birth alone on U. S. soil to two U. S. citizens married only to each other. [End of comment]

Separate But Equal: Partial Transcript of the 1991 TV Movie

1953 Brown v. Board of Education

Part 1 @ 7m 10s

[Set in the home of Harry Briggs, in the living room while Mrs. Briggs is with Harry Briggs, Jr. while he is doing his homework at the kitchen table.]

Attorney Harold Boulware/Leonard Jackson

What we have here Mr. Briggs, a petition to the Clarendon County Board of Education. It says, that you, being the father of Harry Briggs, Jr., age twelve, who wants school bus transportation to be furnished, maintained and operated of the Public School District No. 26 of Clarendon County for the said use of said child and other Negro school children similarly situated.

Reverend J.A. Delaine/Ed Hall

If they use tax money to give bus service to the white children, they have to give it to us too.

Attorney Harold Boulware/Leonard Jackson

The Fourteenth Amendment to the Constitution states that each citizen is guaranteed equal protection under the law.

Tommy Hollis/Harry Briggs Sr.

Will this go to court?

Attorney Harold Boulware/Leonard Jackson

It could.

Tommy Hollis/Harry Briggs Sr.

Well, I don’t guess I spent three years in the United States Navy to keep the world safe for Jim Crow.

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Part 1 @ 13m 45s

[The local religious leader is a Principal of a segregated Negro school who simply wanted the local school district to provide a school bus for his students. A lawyer of the New York NAACP has come to South Carolina to talk with the Reverend’s parishioners. This conversation is taking place in a church, speaking to the people about getting enough of the local parents of school children to sign a petition to go to court to stop unequal treatment for elementary school children. Eliminating race segregation in public schools was added later.]

Thurgood Marshall/Sidney Poitier

What happened to Harry Briggs happens wherever we go. Putting one man out front is risky. They’ll find a way to disqualify him, or to scare him off. If there are twenty people here in Summerton who are willing to sign a complaint against the school board, we will bring a case here. Your county spends a hundred and seventy-nine dollars a year for every white child and only forth-three dollars for each colored child. That’s not equal and that means it’s against the law. Pure and simple.

Our reverend at our church back home used to say he liked to think that when the Lord created him, he did not do it on a Saturday when he was tired out and didn’t have much to work with. He said he preferred to think the Lord created him early Monday morning when he had the best materials to work with and all the energy he needed. What our reverend was saying is that we are equal to anyone on the face of the earth, and the Constitution of the United States says the same thing. Fourteenth Amendment: “No State shall deny any person the equal protection of the law.” They added that amendment to give our folks a fair chance.

Woman in audience

Mr. Marshall, the law don’t mean much down here.

Thurgood Marshall/Sidney Poitier

We just finished a case where they wouldn’t admit a colored man into the law school of the University of Texas. The Supreme Court in Washington said that they had to let him in because there was no equal facility in Texas. Now we all know what these dog house schools mean to the future of our children. That’s why the NAACP has started test cases in the courts in Kansas and Virginia, and we’re willing to bring a case here in South Carolina but we can’t do it without you. If twenty tax paying people sign up we will come down here.

Reverend J.A. Delaine/Ed Hall

Mr. Marshall, what we need to know is what chance there is of it working.

Thurgood Marshall/Sidney Poitier

There will be hostility, and probably reprisals, but the law is on our side.

Part 1 @ 19m 10s

[A call from Rev. Delaine in South Carolina to Thurgood Marshall in his law office in New York]

Reverend J.A. Delaine/Ed Hall

Mr. Marshall, I want you to know I’m starting tonight. I’m going after those petitions.

Thurgood Marshall/Sidney Poitier

Good luck, Reverend.

[Speaking to a lawyer in the law office]

Bob, we’ve got to start digging out everything there is on South Carolina schools.... Public schools.... Clarendon [County]. Preacher down there is going to try to get enough signatures for a case.

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[A lawyer in the NAACP law office]

Success in a couple of university graduate schools is one thing, Thurgood, when we go after public schools, we’ve got to be sure it’s the right time and the right place.

Thurgood Marshall/Sidney Poitier

That preacher’s got guts.

Part 1 @ 29m 40s

[In the NAACP law office]

Lawyer #1

Sixty-six signatures. This will make a strong case.

Lawyer #2

To ask for equal school facilities or to end segregation?

Lawyer #1

I thought we decided that. The NAACP policy says we’re going to fight segregation head on.

Lawyer #2

It doesn’t say when, and it sure doesn’t say South Carolina. Separate but equal is the law of the land. When we demand equal we are asking for what the law gives us. If we demand an end to segregation we are challenging the law of the United States.

Lawyer #1

Do you want to go one by one to every school district in the south, trying to get the judges to force them to make the colored schools equal?

Lawyer #2

It’s the beachhead strategy. Make them spend so much making their schools equal that they finally cave in and integrate.

Lawyer #1

Do you know how many segregated school districts there are in this country?

Lawyer #3

Eleven thousand, one hundred and seventy-three.

Lawyer #1

Each case costs money, and even if we win every one of them it’ll take forever.

Lawyer #2

When we challenge segregation head on, we have to do it in the right place. Deep south is not the right place. White people down there are terrified of the idea of their little white girl going to school with little black boys. Thurgood, let’s wait for a border state. Wait till our Topeka case is ready. We’ve got a chance in Kansas.

Lawyer #1

We always say we’re going to fight segregation head on, and then we step back.-7-

Lawyer #2

Sue for equal schools and you’re up against a little school board. Sue to desegregate and you’re challenging the sovereign state of South Carolina.

Lawyer #3

If we limit our case to equal schools, we end up in Judge J. Waties Waring’s court. He’s pretty good. He can rule for equal schools by himself.

Lawyer #4

Thurgood, if we challenge segregation head on, we challenge the state law. That would have to be heard by a three judge court.

Lawyer #1

When we file our brief, do we backtrack or do we challenge the principle of segregation?

Thurgood Marshall/Sidney Poitier

We can go with a two string bow. Put the challenge to segregation as a matter of principle, but focus the attack on the inequality of the Clarendon County school system. Make them live up to their precious but separate but equal.

Part 1 @ 38m

Judge J. Waties Waring/William Cain

Mr. Marshall, you are prepared to present evidence that the school facilities of the plaintiffs are not equal to those afforded white students?

Thurgood Marshall/Sidney Poitier

We are your Honor, extensive evidence.

Judge J. Waties Waring/William Cain

On page seventeen of your brief, you raise a different question: The separate schools cause continuing deprivation and harm to Negro children and should be discontinued. Correct? State constitution and laws of South Carolina are clear on that. Public education must be segregated by race. The statute says any person having one-eighth or more Negro ancestry shall attend college school. Correct?

Thurgood Marshall/Sidney Poitier

Correct, your Honor.

Judge J. Waties Waring/William Cain

But if you ask to discontinue separate schools, you are challenging the legality of the South Carolina statute that separates education by race.

Thurgood Marshall/Sidney Poitier

Our goal here is to get equal schools.

Judge J. Waties Waring/William Cain

Mr. Marshall, your brief raises the constitutional issue of segregated schools, so it must be addressed. Court procedures prohibit a single judge from declaring a state law to be in conflict with the Constitution of the United States. For that a three judge court is required.

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Defendant lawyer Josiah C. Tulley/Graham Beckel

If the court please, the Plessy Ferguson case decided by the Supreme Court of the United States in 1896 established the principle of separate but equal. Since then, the right of the states to have laws separating the races has been upheld seven times by the Supreme Court. Segregation is legal. There is no reason to cover that ground again.

Judge J. Waties Waring/William Cain

Mr. Marshall, do you believe separation of schools is consistent with the Constitution of the United States?

Thurgood Marshall/Sidney Poitier

I do not sir, but for now, we simply wish to obtain relief for children under the existing system. We are asking for equal schools.

Judge J. Waties Waring/William Cain

You have already taken the position Mr. Marshall. You climb up on that horse, you can’t climb back down. I’ll expect you to refile, bringing the issue of school segregation clearly before the three judge court.

Part 1 @ 41m 5s

Lawyer #1

In the Chinese language, the symbol for misfortune is the same as the symbol for opportunity. Let’s make this our opportunity. How can we prove that segregation is unfair to our client?

Thurgood Marshall/Sidney Poitier

Harold, what would you do if a car runs into your client’s car?

Lawyer #2

I would try to prove damage to my client and his car.

Thurgood Marshall/Sidney Poitier

How?

Lawyer #2

I’d put expert witnesses on and they testify as to how much damage was done, doctors, police, auto mechanics, whatever.

Thurgood Marshall/Sidney Poitier

That’s what we have to do here. Show that our clients are irreparably damaged by being forced to attend these dog house schools.

Lawyer #2

Their mind’s are what’s damaged. It isn’t easy to prove something we can’t see.

Lawyer #1

Thurgood, Ken Clark.

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Part 1 @ 43m 33s

[Ken Clark, a social psychologist and an educator, puts four dolls on the table, two white and two black. He asks the children, age six to twelve, different questions individually]

[Clark to a boy #1]

“show me a white doll” [the boy points to a white doll]

“show me a colored doll” [the boy points to a black doll]

“show me the doll that you like best” [the boy points to a white doll]

“which doll is most like you” [the boy points to a black doll]

[Clark to a girl #1]

“show me a white doll” [the girl hands him a white doll]

“show me a colored doll” [the girl hands him a black doll]

“show me the doll that has a nice color” [the girl hands him a white doll]

“show me the doll that looks ugly” [the girl hands him a black doll]

[Clark to a boy #2]

“show me a white doll” [the boy points to a white doll]

“show me a Negro doll” [the boy points to a black doll]

“which doll is an ugly doll” [the boy points to a black doll]

[the boy says to Clark]

“that one, that’s the nigger”

Part 1 @ 47 m

[People at a movie theater purchase tickets and enter the door for the ‘Colored Balcony’—a news reel announcer talks about recruitment efforts to enlist whites and blacks to fight communism in Korea to promote freedom over slavery, KKK activity in South Carolina to promote white supremacy, and the anti-segregation case in Clarendon County, South Carolina]

Newsreel announcer

… lawyers for the National Association for the Advancement of Colored People have attacked the South Carolina law that segregates school children by race. A three judge federal court will hear the complaint filed by parents of the colored children of the Scotch Branch School.

Part 1 @ 49m 40s

[Charleston, South Carolina courthouse—May 28, 1951]

Court Judge #1

The plaintiffs call W. B. Springer

Thurgood Marshall/Sidney Poitier

You, Mr. Springer, are Clarendon’s Superintendent of Schools.

W. B. Springer

I am.

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Thurgood Marshall/Sidney Poitier

It is true, is it not, that Negroes in Clarendon County attend one group of schools and people who are not Negroes attend other schools.

W. B. Springer

That is true.

Thurgood Marshall/Sidney Poitier

Why is that true?

W. B. Springer

I couldn’t answer that exactly. You’d have to ask the children why none of them ever ask me to go to one school or another.

Thurgood Marshall/Sidney Poitier

Isn’t it a fact that you do it because of the state law?

W. B. Springer

It’s the law; separate but equal.

Thurgood Marshall/Sidney Poitier

And you enforce the segregation law.

W. B. Springer

I do. I know nothing but the law.

Thurgood Marshall/Sidney Poitier

Isn’t it true that you spend three times as much on each white child’s education as each Negro child?

W. B. Springer

We have sixty odd Negro schools and about a dozen white schools. In the rural white schools we spend less than the city white schools.

Thurgood Marshall/Sidney Poitier

Is it not true that you spend a hundred and seventy-nine dollars on each white student and forty-three dollars on each Negro child?

Josiah C. Tulley/Graham Beckel

If it please the court.

Court Judge #1

What is it Mr. Tulley?

Defendant lawyer Josiah C. Tulley/Graham Beckel

The defendants, the school board of Clarendon County, wish to concede that inequality exists in the schools of this district. They found this out from investigating authorities.

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Court Judge #1

Mr. Tulley, you can do that when you make your opening statement.

Josiah C. Tulley/Graham Beckel

Your honor, I thought if we were to concede this point it would eliminate the need for lengthy testimony to prove inequality. When we discovered the inequality in Summerton’s colored schools, Governor Burns proposed legislation for a state sales tax that would generate seventy-five million dollars for school construction. Now, I have here architects drawings of proposed additions and improvements to the Scotch Branch School. Now, we urge the Court to allow the state reasonable time to...

Josiah C. Tulley/Graham Beckel

Your Honor, what we see here is an attempt by the defense to prevent us from developing our case. For us to prove South Carolina’s segregation statutes are unconstitutional, we must be permitted to present evidence showing that our clients are damaged as a result of these laws. We have gone to great expense to bring expert witnesses here.

Court Judge #2

The state seems to be dealing with the problem.

[Speaking to Court Judge #1]

There’s no need for us to be tied up here listening to experts.

Court Judge #3

Isn’t there a larger question before us? Is the state’s segregation law constitutional?

Court Judge #1

No, I think we outta hear this evidence. Mr. Marshall, you may continue with your witnesses.

Plaintiff Witness Dr. Kenneth Clark/Damien Leake

I am a social psychologist and educator. I have degrees from Howard University and Columbia.

Robert L. ‘Bob’ Carter/Cleavon Little

Is it true you conducted scientific measurements in Clarendon County to determine the effect of segregation on Negro school children?

Dr. Kenneth Clark/Damien Leake

Yes.

Court Judge #2

I can’t hear the man.

Court Judge #1

Speak up Mr. Clark.

Robert L. ‘Bob’ Carter/Cleavon Little

Please describe, Dr. Clark, the results of your investigation.

-12-

Dr. Kenneth Clark/Damien Leake

When Negro children were asked to choose between the white dolls and the brown dolls, and to say which was the nice doll, sixty-five percent said the white doll was the nice doll. Every one of our tests shows an unmistakable preference for the white doll and a rejection of the brown doll. These children in Clarendon County, like other human beings who have been subjected to an obviously inferior status have been irreparably harmed. The result is a confusion in the child’s concept of his own self-esteem. This leads to a desire to resolve this basic conflict by withdrawing.

Robert L. ‘Bob' Carter/Cleavon Little

Do you believe this policy of segregation has any effect on the white children?

Dr. Kenneth Clark/Damien Leake

Yes. It causes moral confusion. The child who is part of the segregating group sees the same people who teach him democracy, brotherhood, love of his fellow man, also teach him to segregate and discriminate.

Court Judge #1

Your witness Mr. Tulley

Josiah C. Tulley/Graham Beckel

Dr. Clark, how many white children were in your classroom when you went to school?

Dr. Kenneth Clark/Damien Leake

None.

Defendant lawyer Josiah C. Tulley/Graham Beckel

Has anyone ever described you inferior?

Dr. Kenneth Clark/Damien Leake

No.

Josiah C. Tulley/Graham Beckel

No more questions.

Plaintiff Witness Dr. David Krech/Jon DeVries

Legal segregation of education is the single strongest factor in causing harmful effects on the physical, emotional and financial status of the Negro child.

Robert L. ‘Bob’ Carter/Cleavon Little

How does this happen Dr. Krech?

Dr. David Krech/Jon DeVries

The state harms an individual when it sets him apart because of the color of his skin. Legal segregation causes the Negro to feel that he is different and inferior to the white man.

Robert L. ‘Bob’ Carter/Cleavon Little

Your testimony is that it can cause a false feeling of inferiority.

Dr. David Krech/Jon DeVries

The sad thing is that the white man has reason for his prejudice. Our studies have show that the Negro is inferior to the white man. We have seen...

-13-

Robert L. ‘Bob' Carter/Cleavon Little

Doctor, are you saying there are biological differences between Negro people and white people?

Dr. David Krech/Jon DeVries

No sir. I know of no psychologist who would maintain that there is a fundamental, biological difference. What I am saying is that the Negro can become inferior because of the practices of segregation and consequences.

Robert L. ‘Bob’ Carter/Cleavon Little

Are you saying that segregation can cause permanent damage to the individual?

Dr. David Krech/Jon DeVries

I am, sir.

Robert L. ‘Bob’ Carter/Cleavon Little

I have no further questions.

Defendant lawyer Josiah C. Tulley/Graham Beckel

Professor Krech, are you a native of South Carolina?

Dr. David Krech/Jon DeVries

No sir.

Josiah C. Tulley/Graham Beckel

Have you ever lived in one of the states that has legal segregation?

Dr. David Krech/Jon DeVries

No sir.

Josiah C. Tulley/Graham Beckel

Has your legal name always been Krech?

Dr. David Krech/Jon DeVries

No sir.

Josiah C. Tulley/Graham Beckel

What was your name originally sir?

Dr. David Krech/Jon DeVries

Krechevski.

Josiah C. Tulley/Graham Beckel

Were you born in the United States of America?

Dr. David Krech/Jon DeVries

No sir.

-14-

Josiah C. Tulley/Graham Beckel

Where in fact were you born?

Dr. David Krech/Jon DeVries

I was born in Poland.

Josiah C. Tulley/Graham Beckel

No further questions.

Josiah C. Tulley/Graham Beckel

Mr. Crow, would you describe the position to which Governor Burns recently appointed you?

E.R. Crow/Edward Seamon

I am Director of the South Carolina State Educational Finance Commission.

Josiah C. Tulley/Graham Beckel

Your responsibility?

E.R. Crow/Edward Seamon

I’m in charge of the new program to make colored schools equal to white schools. We’re expecting an appropriation of seventy-five million dollars.

Josiah C. Tulley/Graham Beckel

And what have you got for the schools in Clarendon County?

E.R. Crow/Edward Seamon

Sir, we’ve allocated five hundred thousand to Clarendon County alone.

Court Judge #2

Mr. Crow, when will these new facilities be ready for the children?

E.R. Crow/Edward Seamon

We hope some of them will be ready by the beginning of the next school year.

Thurgood Marshall/Sidney Poitier

Your honor, the Fourteenth Amendment to the Constitution of the United States, an amendment ratified in 1868 by all the states, including South Carolina, guarantees rights in the present, not at some time in the future.

Court Judge #1

The Court’s familiar with the Constitution, Mr. Marshall.

Thurgood Marshall/Sidney Poitier

Mr. Crow is talking about remedies that are in the future.

Court Judge #1

The Court’s action may depend on whether the state is making good faith efforts to improve the condition of these people. Go on Mr. Tulley.

-15-

Josiah C. Tulley/Graham Beckel

Do you think it would be a mistake to force children to attend racially mixed schools?

E.R. Crow/Edward Seamon

I don’t think you could keep things peaceful

Josiah C. Tulley/Graham Beckel

So, you believe mixing the races would make the situation worse?

E.R. Crow/Edward Seamon

In my opinion, it would cause chaos. Lead to the elimination of public schools in most, if not all, the counties in this state.

Thurgood Marshall/Sidney Poitier

Mr. Crow, this new state commission of yours, are there any Negroes on it?

E.R. Crow/Edward Seamon

No.

Thurgood Marshall/Sidney Poitier

Are there any Negroes employed by your commission?

E.R. Crow/Edward Seamon

No sir.

Thurgood Marshall/Sidney Poitier

Mr. Crow, how much study have you done on the question of racial tension?

E.R. Crow/Edward Seamon

I have observed conditions and people in South Carolina all my life, but I haven’t studied racial tensions as such.

Thurgood Marshall/Sidney Poitier

Then how do you draw your conclusions as to what would happen if the schools are mixed?

E.R. Crow/Edward Seamon

‘Cause I know what people say.

Thurgood Marshall/Sidney Poitier

You are speaking of white people.

E.R. Crow/Edward Seamon

Mainly.

Thurgood Marshall/Sidney Poitier

You say the public schools would be eliminated if integration were ordered.

-16-

E.R. Crow/Edward Seamon

They would be abandoned.

Thurgood Marshall/Sidney Poitier

You believe that white people would abandon their schools if forced to integrate?

E.R. Crow/Edward Seamon

Yes.

Thurgood Marshall/Sidney Poitier

You think white people would deprive their own children of an education?

E.R. Crow/Edward Seamon

I didn’t say they’d do that.

Thurgood Marshall/Sidney Poitier

You said they would abandon the schools. Maybe I misunderstood you?

E.R. Crow/Edward Seamon

I don’t think the legislature would continue to appropriate money for public schools if segregation is eliminated.

Thurgood Marshall/Sidney Poitier

Do you think you are qualified to testify as to what the legislature of South Carolina would do in the future?

E.R. Crow/Edward Seamon

I know what people say.

Thurgood Marshall/Sidney Poitier

You know there has been peaceful integration in certain graduate schools elsewhere in the deep south?

E.R. Crow/Edward Seamon

That’s a different matter. Those were older people, and just a very few I might add.

Thurgood Marshall/Sidney Poitier

Indiana has outlawed segregation entirely.

E.R. Crow/Edward Seamon

The ratio between the races is very different in Indiana.

Thurgood Marshall/Sidney Poitier

Suppose the ratio here was ninety-five percent white and five percent Negro. Would that cause you to change your opinion?

E.R. Crow/Edward Seamon

It would not.

-17-

Thurgood Marshall/Sidney Poitier

Then the ratio of Negroes has nothing to do with it. Your opinion is based on the fact that you have all your life believed in the segregation of the races. That is the real basis of your opinion. Isn’t it?

E.R. Crow/Edward Seamon

That wouldn’t be all.

Thurgood Marshall/Sidney Poitier

Would that be part of it?

E.R. Crow/Edward Seamon

I suppose that would be part of it.

Thurgood Marshall/Sidney Poitier

Thank you, sir, Mr. Crow.

Part 1 @ 1h 2m 25s

Court Judge #1

Mr. Tulley, you may make your final argument.

Defendant lawyer Josiah C. Tulley/Graham Beckel

[Addressing the Court]

Your Honor’s will remember that the very same Congress that passed the Fourteenth Amendment in 1868 also passed the law that set up segregated schools in Washington, D.C. Since then, seventeen state legislatures have passed laws requiring segregation in public schools. Now, this practice of separate but equal has been repeatedly upheld by the Supreme Court of the United States, most notably in a unanimous decision in 1927 by a court which included former President William Howard Taft as Chief Justice, and such distinguished Associates as Lewis Brandeis and Oliver Wendell Holmes. It cannot be persuasively argued that these great American jurists, the Congress of the United States and the seventeen state legislatures were acting in ignorance of the Constitution, or knowingly defying it’s meaning over so long a period. Segregation is legal in education so long as it’s equal.

Court Judge #3

Mr. Tulley, you have come here and admitted the facilities are not equal. Now, the law does call for equality, does it not? Isn’t the surest way to achieve equality to admit the colored children to the superior white schools?

Josiah C. Tulley/Graham Beckel

No sir. The problems of race, if your Honor pleases, will not be solved by force, but rather by the slow process of community experience and mutual good will, and any ruling by the Court must take into account the fact that school facilities cannot be built overnight. All we’re asking is time.

Part 1 @ 1h 4m 20s

-18-

Thurgood Marshall/Sidney Poitier

[Addressing the Court]

There is no factual dispute before this court. Negro schools are conceded to be unequal. What is at issue is the law. Separate but equal has been the law of the land for many years, but the Supreme Court has ended segregation in southern graduate schools without any negative consequences. This is progressive development of the law.

In South Carolina all the state officials are white. All the school officials are white. This is not just segregation, this is exclusion from the group that runs everything.

The Negro child is made to go to an inferior school. He is branded in his own mind as inferior, which set up in his mind a road block that prevents him from ever feeling he is equal. You can teach such a child citizenship, you can teach such a child the constitution, but he knows that for him it isn’t true.

Your Honor, we have shown that lasting damage is done the Negro children every day that Clarendon County operates it’s school system in violation of the law. The defense asks for time. Time for the slow process of community experience. I know of no statute that allows anyone to walk into court and ask for time to stop doing something which is unlawful. If the Negro children of Clarendon County are entitled to any rights as American citizens, they are entitled to those rights now, not at sometime in the future. Now is the time for the Court to act.

Part 1 @ 1h 7m 43s

[Set in the home of Court Justice #3—J. Waties Waring/William Cain, he and his wife are sitting at a table playing a card game]

Mrs. Waring

Have you decided?

Judge J. Waties Waring/William Cain

Just a second.

Mrs. Waring

I mean, about the school case.

Judge J. Waties Waring/William Cain

I’ve decided one thing. Everybody around here does a lot of talking about the Negro problem, but what we have is a white problem.

Mrs. Waring

How will the court rule?

Judge J. Waties Waring/William Cain

Judge Parker’s the one you’re gonna have to keep your eye on. He’s a little cagey...

[A window is broken by a rock and a KKK cross is set on fire on the front yard grass]

-19-

Part 1 @ 1h 9m 9s

Court Judge #1

When separate schools are maintained for Negroes and whites, educational facilities, the educational facilities and opportunities must be equal. The defendants have admitted that such facilities for colored pupils in school District No. 22 are not equal. The plaintiffs are entitled to a mandatory injunction requiring equal facilities be afforded the colored children. The plaintiffs also ask that we order that Negroes be admitted to white schools. The Court believes that one of the great virtues of our constitutional system is that it leaves to the states the solution of local problems. It is well settled by the Supreme Court that there is no denial of equal protection of the laws in segregating children if the children are given equal facilities. Therefore, an injunction to abolish segregation is denied.

Court Judge #3 Judge J. Waties Waring/William Cain

I had hoped that this Court would take the view that there must be no suppression of the rights of any of our citizens because of their skin, and I had hoped that this Court would have made a clear cut declaration that the state of South Carolina should follow the meaning of the Constitution of the United States and not deny equal protection, but since the majority of this Court feels otherwise, I dissent. The plaintiffs have shown courage in presenting this case in the face of the age old pattern of the way of life practiced in South Carolina since, and as a result of, the institution of human slavery. It has been shown here that the humiliation to young children of being set aside as unfit to associate with others of different color has had an evil and warping effect which will remain with them forever. Despite the ruling of the majority of this Court, segregation can never produce equality. It is an evil that must be eradicated.

Part 1 @ 1h 12m 20s

[Set in a cab]

Thurgood Marshall/Sidney Poitier

You know J. A., sometimes I get very weary trying to save the white man’s soul.

Robert L. ‘Bob’ Carter/Cleavon Little

Thurgood, that Court just told the people of the United States of America that segregation is legal. We’ve got a whole damn mountain to climb.

Part 1 @ 1h 14m 30s

[Set in the NAACP law office]

Office Manager

Gladys Hampton, the Detroit Advocate, she wants to know what you’re going to say to the Negro educators tomorrow night. Did you see her editorial?

Thurgood Marshall/Sidney Poitier

No.

[Reading from the editorial]

This defeat should give pause to the NAACP strategists for it only strengthens the Plessy v. Ferguson doctrine of separate but equal. The welfare of the Negro people should not be the exclusive province of a handful of lawyers. Bob, where are we on the school case in Topeka?

Robert L. ‘Bob’ Carter/Cleavon Little

We take the Brown case to court next week.

Thurgood Marshall/Sidney Poitier

Peanut, we getting anywhere in Virginia?

-20-

Peanut

If driving three-hundred every week on bumpy roads is getting somewhere. I was in Prince Edward yesterday. Those kids are as brave as I’ve seen, but you know how tough Virginia’s gonna be Thurgood.

Thurgood Marshall/Sidney Poitier

What about Delaware Jack?

Jack Greenberg/John Rothman

Got superior expert witnesses. Judge Sikes is tough but he’s fair.

Thurgood Marshall/Sidney Poitier

And Washington, D.C.

Robert L. ‘Bob’ Carter/Cleavon Little

Jim Nabrit is going his own way. He’s challenging segregation head on, no reference at all to making separate schools equal.

Thurgood Marshall/Sidney Poitier

Bob, I want you to prepare an appeal on the Clarendon case. I want it ready just in case we decide to go to the Supreme Court.

Peanut

In case?

Robert L. ‘Bob’ Carter/Cleavon Little

Thurgood, we have got to go?

Jack Greenberg/John Rothman

Look, we all know what is right and what’s just. I’m worried about the timing. Chief Justice Vinson and the current lineup of justices on the court raise a lot of questions.

Lawyer #1

May I tell you guys something else? We are way out in front of our constituency..

Peanut

We have got to decide something.

Gladys Hampton/Cheryl Lynn Bruce

There are many of us across the country who are convinced you are in error. We are very concerned about the leadership of the NAACP. Against the advice of many of us you decided to make a bare bones challenge to the legality of segregation in South Carolina, and you got a bare bones answer. You went for a home run and struck out. The favorable Supreme Court decisions in the graduate school cases show us the path to success. By working within the Plessy decision, using separate but equal, we can win cases, and with each victory many children’s lives become better. Mr. Marshall, my great fear is that you will take the South Carolina case to the Supreme Court. It’s one thing to lose in South Carolina, quite another to lose in the Supreme Court. We should be pursuing equality in public schools, a goal within our reach.

-21-

Thurgood Marshall/Sidney Poitier

Do you believe there is such a thing as separate equality?

Gladys Hampton/Cheryl Lynn Bruce

I am not in favor of separate anything, but I want to win.

Thurgood Marshall/Sidney Poitier

There are those who believe that if we don’t challenge the legality of segregation head on, we will continue to get the same thing we have been getting all these years, separate but never equal.

Gladys Hampton/Cheryl Lynn Bruce

But to do that is to put at risk all of the progress that we have made.

Thurgood Marshall/Sidney Poitier

Unfortunately Miss Hampton, there are no easy answers. Everything we do involves risk.

Part 1 @ 1h 21m 10s

[Set at the dining room table, the Gov. of South Carolina and lawyer Davis are having lunch]

Governor James F. Byrnes/John McMartin

John, I’m up here to ask your help on behalf of the south you love. The Clarendon County school case has become a problem.

John W. Davis/Burt Lancaster

The NAACP seems to be keeping you folks on your toes.

Governor James F. Byrnes/John McMartin

I’m prepared to confess to past sins. Some of our schools are a disgrace. We’re going to spend seventy-five million dollars to bring those schools up to snuff. We will live up to the equal in separate but equal, but an order to integrate our schools coming down from Washington would cause chaos. You can’t ask people to change overnight. Feelings are too deep. The case may go before the Supreme Court.

John W. Davis/Burt Lancaster

Well surely the NAACP must know that the Supreme Court is not likely to give them the decision they want.

Governor James F. Byrnes/John McMartin

We’ve got to be prepared. You’ve done great service at the bar for your country. Your talents may be required once more.

John W. Davis/Burt Lancaster

Jim, I’ve argued a hundred and thirty-eight cases in that court.

Governor James F. Byrnes/John McMartin

This case could be more important than any of the others. More important than any case of our generation. It challenges the right of the states to make their own laws. John, if this case goes to the Supreme Court I’m going to need you.

-22-

Part 1 @ 1h 25m 55s

[April 1952, Washington D.C., Howard University, 20th Anniversary of the Journal of Negro Education]

Speaker #1

There’s a great deal to be said for separate Negro schools. Is this not better than making our boys and girls like doormats to be trampled, spit upon and called niggers? I say it’s time we stop peering through white schoolhouse windows like orphans on Christmas eve. Let us make our schools equal and excellent. The courts can be counted on to give us equal schools, but they cannot be counted on for desegregation.

Speaker #2 Robert L. ‘Bob’ Carter/Cleavon Little

We don’t know that.

Speaker #3

The only way to find out is to ask the Supreme Court. Now, what troubles me is what will they do when we ask them to repudiate or reaffirm the Plessy decision and separate but equal?

Comment #1 from the audience — Gladys Hampton/Cheryl Lynn Bruce

That’s what many of us have been saying all along. The NAACP should not be reaching for glory. If Mr. Marshall takes us to the Supreme Court at the wrong time, he is taking us over a cliff. Provoking a negative ruling that could last another generation.

Robert L. ‘Bob’ Carter/Cleavon Little

Wait a minute, let me ask a question. Law students, how many of you went to segregated schools; segregated colleges; segregated law schools? Here we are, citizens of the United States of America. How can we continue tolerate a segregated society? We must attack segregation head on.

Comment #2 from the audience

Mr. Marshall, I know I speak for many of us. Let’s not risk the setback that a negative Supreme Court ruling would represent. Let’s push hard in the lower courts. We can gain victories and gain more credibility for our cause, and we won’t come up empty.

Thurgood Marshall/Sidney Poitier

Can I promise you success? Is that the question? Can I promise you victory? The answer is no, but, do you want to continue dancing to the tunes of the Jimmy Burn’s of the world? Do you wish to wait for the great leaders of the south to decide when it is time to grant democracy’s rights to your children’s children, or to their children’s children? This is 1952 [pounding the podium when each word is spoken]. Three hundred years, since our fore fathers and mothers were brought to this land as cargo on slave ships. Nearly one hundred years since the Emancipation Proclamation. If there is a problem about community attitude and getting people to obey the law, let the Supreme Court worry about it. Let the Supreme Court take the blame if it dares to say to the rest of the world, yes, American democracy rests on a legalized caste system. The NAACP has taken a decision to fight to strike down segregation, and we will go where we said we will go. Let the Supreme Court decide.

Gladys Hampton/Cheryl Lynn Bruce

[Whispered to a friend in the audience]

Do you know the difference between doctors and lawyers? Doctors can bury their mistakes.

-23-

Part 1 @ 1h 32m 10s

[Set in the law office of lawyer John W. Davis/Burt Lancaster — his daughter Julia has come to try to dissuade him from taking the South Carolina segregation case for the defense]

Julia Davis/Hallie Foote

I’ve been thinking. Father, I don’t think that you should take the segregation case.

John W. Davis/Burt Lancaster

Why is that?

Julia Davis/Hallie Foote

I think that times are changing, and times will have to change in the south too.

John W. Davis/Burt Lancaster

Times are always changing Julia.

Julia Davis/Hallie Foote

If you take the case it will appear that you are against the Negro.

John W. Davis/Burt Lancaster

[Reading the text written on a memento from a previous case]

I treasure this: To John W. Davis from a grateful people for his efforts in fighting the cause of human rights. From the Negroes of West Virginia and the nation. Sudden integration could turn out to be the worst thing for the cause of the Negro.

Julia Davis/Hallie Foote

Even if true that is not a very popular position.

John W. Davis/Burt Lancaster

Oh, nonsense Julia. I’ve defended giant corporations and I’ve defended Eugene V. Debs, Socialist Labor leader charged with inciting a right at a coal miner’s strike in West Virginia, Alger Hiss, Bob Oppenheimer. Popular? In fifty years I’ve never taken a case because it was popular or unpopular. I choose my cases based on the law. The law guides me.

Julia Davis/Hallie Foote

What kind of law is this?

John W. Davis/Burt Lancaster

The framers of the Constitution understood, correctly, the greatest protection for human freedom was local autonomy, the government close to the people. This case challenges the right of the states to make and enforce their own laws. If segregation is to be outlawed it must be done by an Act of Congress or an amendment to the Constitution. I believe it’s wrong for nine men in Washington to tell a man in South Carolina who his daughter ought to sit next to in school. I’m going to take this case Julia, and I’m going to win it.

Part 2 @ 35s

[December 1952, Clarendon County, South Carolina in a movie theater – A newsreel announcer says that General Eisenhower has been elected President; Dr. Ralph Bunche has won the Nobel Peace Prize, the first Negro to win the award; the Supreme Court case]

-24-

Newsreel Announcer

The Supreme Court of the United States will hear cases from five states to decide whether school segregation is legal. The South Carolina case was filed by sixty-two parents in Clarendon County. South Carolina Governor James F. Burns announced that the nation’s foremost trial lawyer, John W. Davis, will argue the case before the Supreme Court.

Part 2 @ 3m 50s

[Set in the home of Thurgood Marshall]

Mrs. Marshall

John W. Davis.

Thurgood Marshall/Sidney Poitier

The lawyer’s lawyer. In law school I used to cut classes, take the bus over to the Supreme Court and watch him. He was the greatest Solicitor General we ever had. I used to sit there and say to myself, will I ever—and every time I’d have to answer—no, never.

Mrs. Marshall

Why does a man of his stature take their side?

Thurgood Marshall/Sidney Poitier

The man has lived with the law for fifty years. He must believe those fellows at the Supreme Court will see it his way.

Mrs. Davis

Well, you know what I think? I think you’re the best lawyer in America, and that Carter, Greenberg and Hill are not far behind.

Thurgood Marshall/Sidney Poitier

Well, we’ll find out soon enough.

Part 2 @ 6m 18s

[Set in the NAACP office]

Friend #1

Some say that Felix Frankfurter is the key man on the court.

Thurgood Marshall/Sidney Poitier

There are nine key men. Peanut, why don’t we get our new man to fill the gentleman in?

Lawyer #1—Peanut

Bill Coleman clerked for Justice Frankfurter during the 1948 term. The first colored man ever chosen as clerk. He knows the justices. Bill, will you give the gentleman a sense of how the court stacks up?

-25-

Lawyer #2—William Coleman/Jeffrey Wright

Chief Justice Vinson, he plays poker two nights a week with President Truman. Some say he’s better at setting Major League batting averages than legal precedence. Vinson is a passive leader of a divided Court. One result, less than half unanimous decisions this year as ten years ago. Vinson relies heavily on legal precedent. He’s reluctant to overturn established law.

Tom Clark, Texas, conservative, votes with Vinson ninety percent of the time. His own state of Texas has a thousand segregated schools.

Justice Stanley Reed, Kentucky. In some ways he’s still a small town, southern lawyer. Says he opposes discrimination against Negroes, but his solution could be equal schools, not desegregation. These two we can count on.

William O. Douglas is the youngest member of the Court; Hugo Black the oldest. The strongest defenders of individual liberties on the Court. These two, we have to worry about, Jackson and Frankfurter.

Robert Jackson was appointed to the Court by Roosevelt in 1941, and still upset when Truman passed him over when he made Vinson Chief Justice.

Do you know what stare decisis means?

Friend #1

Yesterday’s decision shall govern today’s decision?

Lawyer #2—William Coleman/Jeffrey Wright

Exactly. Jackson believes that precedence are a force for stability, so like coral reef, the law becomes a structure of fossils. Felix Frankfurter, the finest intellect on the court. A Jew, born in Europe, he knows discrimination. He used to say to us, how we feel is not important, it’s the law that matters.

Friend #1

Is this Davis fellow as good as his reputation?

Lawyer #2—William Coleman/Jeffrey Wright

They call him the lawyer’s lawyer.

Part 2 @ 12m 22s

[December 9, 1952, Washington D.C., Supreme Court]

Chief Justice Fred Vinson

Case No. 101, Harry Briggs, Jr. et al. against members of Trustees of School District No. 22, Clarendon County, South Carolina et al.

Mr. Marshall.

Thurgood Marshall/Sidney Poitier

[Addressing the Court]

Mr. Chief Justice. May it please the Court, my colleagues will address the Kansas, Delaware, Virginia and District of Columbia cases. I will speak on behalf of Harry Briggs, Jr. and the Negro children of the town of Summerton who have raised their attack on the validity of the South Carolina code which reads: it shall be unlawful for pupils of one race to attend the schools provided for persons of another race.

In the lower courts we produced unchallenged experts who testified that segregation damages the personality of Negro children and destroys their self-respect.

If Ralph Bunche, this nation’s distinguished Ambassador to the United Nations were assigned to South Carolina, it would be the will of the people that his children go to a Jim Crow school. No matter how great anyone becomes, if he happens to be a Negro, his children are relegated to that school. Yet this Court is being asked by the defense to uphold the segregation law of South Carolina.

-26-

Under our form of government, the only testing ground as to whether or not individual rights are violated by the majority is here in this, the Supreme Court of the United States. The Court must weigh the rights of the Negro children against the public policy of the state of South Carolina, and if that policy violates those rights then this Court, reluctant or otherwise, is obliged to say that that policy has run up against the Fourteenth Amendment to the Constitution which guarantees all citizens equal treatment under the law. We therefore respectfully urge that the judgment of the District Court be reversed, and the children’s rights be affirmed.

Justice Stanley Forman Reed/Mark Hammer

Is it fair to say that the South Carolina legislature set up segregated schools to avoid racial friction?

Thurgood Marshall/Sidney Poitier

Yes sir.

Justice Stanley Forman Reed/Mark Hammer

Does the legislature weigh the advantage of maintaining law and order against what might be a disadvantage to the segregated group?

Thurgood Marshall/Sidney Poitier

I think that the legislature should, Mr. Justice Reed, but I think we have to bear in mind that, as far as I know in these states, that there is not a single Negro legislator doing the weighing. The only point before this Court is the law as it was applied in Clarendon County. All we are asking is that the state imposed racial segregation be stopped and that the County School Board be instructed to work out a solution.

Justice Felix Frankfurter/Mike Nussbaum

What kind of a solution?

Thurgood Marshall/Sidney Poitier

They could assign children to schools on any reasonable basis.

Justice Felix Frankfurter/Mike Nussbaum

You mean we would have gerrymandering of school districts?

Thurgood Marshall/Sidney Poitier

Not gerrymandering Mr. Justice Frankfurter. The new district lines would simply have to be drawn on a natural basis without regard to race or color.

Justice Felix Frankfurter/Mike Nussbaum

It would be important to me to have you spell out exactly what would happen if this Court reverses and the case goes back to South Carolina.

Thurgood Marshall/Sidney Poitier

What is important is that we get the principle established. Segregation by race is not legal. It is impossible right now to say precisely how it will work.

Justice Felix Frankfurter/Mike Nussbaum

I think it’s important to know before one starts out, where he is going.

-27-

Thurgood Marshall/Sidney Poitier

I would like to reserve the remainder of my time.

Part 2 @ 18m

[Set in a restaurant near the Supreme Court]

Reverend J.A. Delaine/Ed Hall

I was watching Chief Justice Vinson very carefully. His face, I don’t like the expression in his eyes. How did we do?

Robert L. ‘Bob’ Carter/Cleavon Little

I think we made a number of points very effectively.

Thurgood Marshall/Sidney Poitier

The truth is fellas, I wasn’t very good.

Jack Greenberg/John Rothman

Frankfurter is thorny; hardly let’s a man finish a sentence.

Thurgood Marshall/Sidney Poitier

An experienced lawyer is prepared for that. I let myself get bogged down in details. The one thing I wanted to do was find a way to talk about the principle, convince them segregation is morally wrong, that there is no such thing as separate equality.

Part 2 @ 18m 55s

[Set in the Supreme Court]

John W. Davis/Burt Lancaster

[Addressing the Court]

Says counsel for the plaintiff: we have the uncontradicted testimony of expert witnesses that segregation is fretful for both colored and the white races. Now, there are experts and there are experts. Let me read a sentence or two from W. E. B. Du Bois, the great Negro educator: I have seen wise and loving colored parents take infinite pains to force their little children into schools where the white children and white teachers despise and bully the dark child. Now such parents want their children to fight this thing out, but dear God, at what a cost. Dr. Du Bois concludes: We shall do better by putting the children in schools where they are wanted than by thrusting them into a hell where they are ridiculed and hated.

Let me come now to what is the crux of this case. That is the meaning and interpretation of the Fourteenth Amendment to the Constitution of the United States. Your Honor’s have said it is your duty, I quote: To place ourselves as nearly as possible in the condition of the men who framed the instrument. Now what was the condition of those who framed the instrument? I will tell you. The resolution proposing the Fourteenth Amendment was proffered by Congress in June of 1866. One month later the same Congress established separate schools for the races right here in the District of Columbia, and from that good day to this, Congress has not wavered in that policy. So, clearly, the Congress does not believe that the Constitution speaks against segregated schools.

Justice William O. Douglas/John C. Vennema

What is your answer, Mr. Davis, to the suggestion that the Constitution is a living document? It must be interpreted in relation to the facts at the time it is interpreted.

-28-

John W. Davis/Burt Lancaster

My answer to that Mr. Justice Douglas is that changed conditions do not expand the language that the framers of the Constitution put, and it is inconceivable that the Congress which passed the Fourteenth Amendment would have forbidden the states to employ an educational plan which Congress itself was employing in the District of Columbia. No Court, I respectfully submit, is justified in ignoring that. And over the years this Court has spoken in most clear and unmistakable terms to the effect that segregation is not unlawful.

In Plessy versus Ferguson, and six subsequent cases, the doctrine of separate but equal has been upheld. So your Honors, I might ask, why should this be a matter of great national policy? Is it not a fact, the very strength and fiber of our federal system is a local self-government? I respectfully submit, there is no reason why this Court or any other should reverse the findings of ninety years.

Part 2 @ 22m 5s

[Set walking out of the Supreme Court, down the steps]

Governor James F. Byrnes/John McMartin

Masterful job. You did us proud. How do you see it?

John W. Davis/Burt Lancaster

Six to three, maybe five to four. In the language of the famous General: You’ve got them and they’ll never get home.

Part 2 @ 22m 33s

[Set in the NAACP office during a Christmas party]

Thurgood Marshall/Sidney Poitier

Well, Bob, I guess it’s out of our hands.

Robert L. ‘Bob’ Carter/Cleavon Little

The lives and hopes of so many millions rest in the hands of those nine men. When do you think they’ll come down with a decision?

Thurgood Marshall/Sidney Poitier

Months, not weeks. I let myself get tangled up in their questions. Caught in the underbrush. Davis, he makes it sound like pages of history.

Robert L. ‘Bob’ Carter/Cleavon Little

Come on Thurgood, it’s Christmas.

Part 2 @ 25m 35s

[Set in office of Justice Frankfurter at the Supreme Court building]

Frankfurter Clerk Mark Baldwin/John Ottavino

Here are the notes on the Fourteenth Amendment for the Clarendon matter. May I ask how it’s going?

Justice Felix Frankfurter/Mike Nussbaum

You may, but knowing if you do that the deliberations of the Justices are privileged you may not expect a reply. (sigh) Stuck in the mud; no leadership.

-29-

Frankfurter Clerk Mark Baldwin/John Ottavino

The Chief?

Justice Felix Frankfurter/Mike Nussbaum

(sigh)

Part 2 @ 26m 16s

[Set in Supreme Court conference room]

Justice William O. Douglas/John C. Vennema

It’s very simple for me. The state cannot classify people by color for education.

Justice Hugo Black/Tom Aldredge

I’m with Douglas; prepared to desegregate.

Justice Stanley Forman Reed/Mark Hammer

I see it differently from Black and Douglas. You have to look at the achievements of the Negro people; the remarkable progress that’s been made since the deprivations of slavery to today. I believe that in time that the states, as this progress continues, will themselves lower the barrier. Meanwhile, the Plessy decision, with its separate but equal doctrine, is the law of the land. It has been for half a century. I see no compelling reason for overturning it now.

Justice Tom Clark

I agree with Reed. We were not appointed to this Court to make the law. We’re here to interpret it. I’m comfortable with the precedent before us. Doesn’t stare decisis mean that the Court doesn’t change its mind just because some new Justices come along?

Justice William O. Douglas/John C. Vennema

The colored children in South Carolina, Kansas, Delaware, Virginia and the District of Columbia appeal to this court claiming that segregation denies them equal opportunity. We can’t wear blinders. The states’ segregation laws must be struck down.

Justice Stanley Forman Reed/Mark Hammer

I simply do not agree that the framers of the Fourteenth Amendment intended to bar segregation in schools. It doesn’t say that. It says equal protection.

Justice Robert Jackson/Henderson Forsythe

What about the Congress? It’s their job to take this on and save us from becoming a nine man school board for the entire country.

Justice Felix Frankfurter/Mike Nussbaum

I’m concerned over the effect on the country if this Court should put forward a divided decision.

Justice William O. Douglas/John C. Vennema

Felix, we have issued split decisions before and the Republic has survived nicely.

Justice Felix Frankfurter/Mike Nussbaum

Of course we have, but this is an explosive issue. Some governors have stated publicly that they would resist an order to desegregate. It would be a catastrophe if this Court put forward a decision it can’t enforce.

-30-

Chief Justice Fred Vinson

Perhaps Felix’s warning should lead us into a direction of caution when it comes to overturning precedents which have been continuously upheld by the Court. We can move on to other matters and revisit the school cases at another time.

Part 2 @ 28m 50s

[Set in Justice Frankfurter’s office]

Frankfurter Clerk Mark Baldwin/John Ottavino

It just seems so clear cut to me. Segregation is wrong so the Court votes to ban it. Bang.

Justice Felix Frankfurter/Mike Nussbaum

Yes Mark, a moral question, and a legal question, and what else?

Frankfurter Clerk Mark Baldwin/John Ottavino

Nothing else.

Justice Felix Frankfurter/Mike Nussbaum

Wrong. It’s also a political question.

Frankfurter Clerk Mark Baldwin/John Ottavino

The Supreme Court is above that. That’s why Justices have lifetime appointments.

Justice Felix Frankfurter/Mike Nussbaum

That doesn’t keep Justices, some Justices, from being concerned about the political effect of what they do, including this Justice. If we come down with a five to four decision to desegregate, or if we come down with a six to three decision to uphold separate but equal, there will be the majority opinion and one, two or three dissenting opinions. Judges like to put their spoon in the pie. After six conferences we are still split. A divided Court will send a terribly confused signal to the country. It could have massive opposition whichever way the decision goes.

Frankfurter Clerk Mark Baldwin/John Ottavino

So, what happens?

Justice Felix Frankfurter/Mike Nussbaum

We need a kochleffel. A cooking spoon that stirs things up.

[A ‘kochleffel’ is a cooking spoon, as for soup. By extension, a person who stirs up trouble; meddler, busybody]

Part 2 @ 30m 5s

[Set in the Supreme Court conference room]

Chief Justice Fred Vinson

Now we should turn our attention to the school cases.

Justice William O. Douglas/John C. Vennema

I do believe it’s time to cut the cards and deal.

-31-

Justice Stanley Forman Reed/Mark Hammer

I know where I stand.

Justice Felix Frankfurter/Mike Nussbaum

I’ve been thinking. The Fourteenth Amendment is at the heart of this question.

How can we be sure what the intent of the amendment is unless we know what was in the mind of the Congress that framed it in 1865 and the state legislatures that ratified it? Did they intend for it to forbid segregated schools? We are being asked to make what could be the most important judicial decision of this century, and we are doing it without all the facts.

I propose that we ask council on both sides to come back and reargue the case, focusing on this question, what evidence is there that the framers contemplated, or did not contemplate, that the Fourteenth Amendment would abolish segregation in the public schools. With that information we would be able to make a sound judgment.

Chief Justice Fred Vinson

Excellent, excellent.

Part 2 @ 32m 30s

[Set in the NAACP office]

Thurgood Marshall/Sidney Poitier

[Speaking on the phone to Professor Franklin]

Do you know what else you’re going to be doing? You’re going to be working for me. I need the best historians and constitutional scholars. The Supreme Court wants to know what those white men were thinking a hundred years ago when they passed the Fourteenth Amendment.

Robert L. ‘Bob’ Carter/Cleavon Little

Thurgood, Bob Mendes is coming in from Chicago. He knows the 1865 debates by heart.

Thurgood Marshall/Sidney Poitier

Alice, telegrams to all our supporters. Tell them the Supreme Court has deferred judgment, we have to reargue the case, and we need emergency funds. Tell them, you know how to word it. Tell them we need money bad.

Jack Greenberg/John Rothman

Thurgood, when the Fourteenth Amendment was ratified there were thirty-seven states.

Thurgood Marshall/Sidney Poitier

Did you reach Henry Steele Commager?

Peanut

He’s not available. At Oxford for the summer. He sent this message: I greatly fear your premise is wrong. The framers of the amendment did not, as far as we know, intend that it should be used to end segregation in public schools. I strongly urge you to consider dropping that particular argument because it weakens your case.

Thurgood Marshall/Sidney Poitier

Bob, get to Horace Bott, he’s the best scholar of political strategies of that time.

-32-

Any of you guys know anybody who will give us money? Get to work on them. We’ve got bills, offices, travel, telephones. If they shut off our telephones we are out of business, and there are a lot of people who would like to see our doors slammed. I’m like General Patton, the best tanks money can buy but no gas to run them.

Can I help you?

Visitor

I’m Black. Charles Black from Austin, Texas. I’m here to help. I’m a professor and a lawyer, and I can write a little. They said you needed help.

Thurgood Marshall/Sidney Poitier

Yes. They called me about you. Find the professor some sit down space. We could use all the help we can get.

Part 2 @ 34m 48s

[Set in the John W. Davis law office]

John W. Davis/Burt Lancaster

You can report to the Honorable Governor, Mr. Tulley, that I have assigned two of the brightest men of our firm to lead the research, Mr. Straight from Harvard, Mr. McPherson from Yale.

Mr. Marshall seems to have fallen on hard times, soliciting our partners.

Josiah C. Tulley/Graham Beckel

The Attorney General of South Carolina has asked his counterparts in thirty-seven of the states that concern us to research their state archives at no expense to us.

John W. Davis/Burt Lancaster

The research will show that the states were determined to retain the right to shape their schools to fit their particular region. Now the Marshall people will be looking for something specific. Something that shows that Congress intended for the Fourteenth Amendment to prohibit separate schools, and they won’t find it.

Part 2 @ 38m

[Set at the Marshall supper table, Thurgood is speaking to Mrs. Marshall]

Thurgood Marshall/Sidney Poitier

We’ve got the best professors and historians from all around the country, and thanks to Howard University and Charlie Houston, our lawyers are as good or better than the Ivy League boys. And I will have a second chance to argue this case. Like the old saying: I’m a man of peace but I adore a riot.

Part 2 @ 38m 36s

[Set in the conference room of the NAACP]

Professor Kelly

Ming and I think the real key lies in the exconfederate states in the south. It was a condition of their rejoining the Union after the Civil War that they adopt the Fourteenth Amendment. Congress insisted on it.

Mr. Ming

Not one of these states put a single word about school segregation in their new state constitution. Now we believe that this proves that they understood that Jim Crow schools were outlawed by the Fourteenth Amendment.

-33-

Jack Greenberg/John Rothman

They had to toe the mark in order to get back into the Union.

Charles Black

But some of those states turned around and put in segregated schools a year after the Fourteenth Amendment was ratified.

Robert L. ‘Bob’ Carter/Cleavon Little

And they’ve been operating segregated schools ever since. Professor Kelly, I’m not sure your argument holds water.

Thurgood Marshall/Sidney Poitier

Back to the books boys. I’m sure if we give them a little more time, Mr. Kelly and Mr. Ming will come up with something more solid.

Radio news report

[Setting is still in the conference room, the radio is turned on for the news about the Chief Justice]

The family spokesman said the cause of death was a massive heart attack suffered at approximately three-fifteen this morning at his apartment in Washington. The Chief Justice was sixty-three years old.

Justice Felix Frankfurter/Mike Nussbaum

[Set in the office of Justice Frankfurter]

Mark, this is the first solid evidence I’ve ever had that there is a God in heaven.

Part 2 @ 42m 22s

[Set in NAACP conference room]

William Coleman/Jeffrey Wright

I can’t help but thinking that Vinson’s successor will be better for us.

Thurgood Marshall/Sidney Poitier

The devil you know is better than the devil you don't know.

Peanut

I watched General Eisenhower testify in Congress against desegregating the Army below the platoon level. I don’t think President Eisenhower is going to be looking for a civil rights Chief Justice.

Robert L. ‘Bob’ Carter/Cleavon Little

I still say the odds are we get someone less wedded to the past than Vinson.

Jack Greenberg/John Rothman

The Times says Eisenhower may promote Justice Jackson into the center seat, name an associate in his place.

Thurgood Marshall/Sidney Poitier

The Republicans in the Senate will fry Ike if he tries to put a Democrat in the top spot.

Part 2 @ 42m 57s

[Set in law office of John W. Davis]

-34-

John W. Davis/Burt Lancaster

My spies tell me Foster Dulles can have it if he wants it. Second choice, New York's own, Governor Tom Dewey.

Governor James F. Byrnes/John McMartin

Were I you John I would fire my spies. I have it on good authority, and by good authority I mean fifteen feet from the Oval Office, that Ike made a deal at the Republican Convention. In return for delivering California, the first vacancy on the Supreme Court goes to California’s Governor.

Part 2 @ 43m 36s

[Set in the NAACP office]

Jack Greenberg/John Rothman

I’m afraid you were right. The new Chief Justice is the same man who uprooted 80,000 Japanese-Americans during the war, confiscated their property and sent them to internment camps.

Thurgood Marshall/Sidney Poitier

Boys, we’ve got to do what we’ve got to do. We’ve got to find something in the history that says we are right. Get Kelly, Ming and the others on eighteen hour shifts. We are not going to be sitting around worrying about whose sitting on the bench.

Part 2 @ 44m 15s

[Set in the law office of John W. Davis]

Mr. Straight/Ric Reitz

So far, nothing appears to pose a problem for our position. Mr. Davis, if I may ask, how does Governor Warren going on the Court affect things.

Josiah C. Tulley/Graham Beckel

The Post described him as the colorless manager of a team of all stars.

John W. Davis/Burt Lancaster

I would think very little, Mr. Straight. Separate but equal has been upheld by the Court seven times, and the fact there is a division within the Court should work to our advantage. There will be a great reluctance to overturn such an historic precedent on a close vote. Those men do not wish to create chaos.

Justice William O. Douglas/John C. Vennema

[Set in office of Justice Frankfurter]

It comes down to the fact that the man is a politician, not a jurist. He has never before sat on the bench, not even five minutes on a police court. No judicial philosophy.

Part 2 @ 46m 10s

[Set in NAACP office conference room]

-35-

Professor Kelly

We have studied the history. The Declaration of Independence had glowing language claiming that all men are created equal with the inalienable right to life, liberty and the pursuit of happiness, but the authors of the Constitution included no such statement. A concession to the fact that our young Republic tolerated human slavery. At the end of the Civil War, Congress passed the Thirteenth Amendment abolishing slavery, but it gave slaves no specific rights. The Civil Rights Act of 1866 followed and it was the cornerstone to the Fourteenth Amendment. We have probed the records and, frankly, we do not like what we find.

Mr. Ming

The Civil Rights Act was written with a no discrimination clause. The Congress removed it before it was passed, and nowhere in the debates on the Fourteenth Amendment do we find any statement that suggests that school segregation was an issue. We had hoped that abolitionist leaders like John Bingham and Thaddeus Stevens would have recorded their position on segregation in schools. Nothing.

Unnamed Lawyer #1

That bears out our studies. See, public education was in its early stages. To the newly freed slaves, education of any sort would have seemed a major step forward.

Professor Kelly

We also have to face the fact that Congress set up segregated schools in the District of Columbia, and has supported that practice up to this very day. All in all, it gives us very little in the way of favorable evidence to answer the Justices question about the intent of the Fourteenth Amendment.

Robert L. ‘Bob’ Carter/Cleavon Little

Al, isn’t there someway we could shape this history to make our case?

Professor Kelly

I’m all for the cause Bob, but I am an historian first.

Peanuts

But there’s gotta be some way to nail it down.

Mr. Ming

It’s difficult to be precise about what people thought about a century ago. So, I think our strategy should be to bypass the Court’s question, and argue this on broad humanitarian grounds. The fuel for the Fourteenth Amendment was a spirit of idealism and a sense of justice. The amendment meant what it said; equal protection. We believe we can win this by arguing the broad humanitarian approach. It is the moral position and we are a moral nation.

Thurgood Marshall/Sidney Poitier

Ok. Let’s write it up that way.

Thurgood Marshall/Sidney Poitier

[Set in the Marshall home later the same night]

What gives?

William Coleman/Jeffrey Wright

It will never work. The broad humanitarian approach. Frankfurter will smell it in a second. He’ll see it as evasive.

Thurgood Marshall/Sidney Poitier

It’s too general, isn’t it?

-36-

William Coleman/Jeffrey Wright

It’s a long shot.

Thurgood Marshall/Sidney Poitier

Where’s Kelly?

William Coleman/Jeffrey Wright

He’s going back to Detroit, morning train.

Thurgood Marshall/Sidney Poitier

Call him at the hotel. Try and catch him.

Part 2 @ 51m 25s

[Set in the NAACP office]

Professor Kelly

This is it!

Mr. Ming

We got it.

Professor Kelly

Thaddeus Stevens. Thaddeus Stevens in the debate on the floor of Congress when the amendment was first presented: [reading from a book]: Where any state makes distinctions between different classes of individuals, Congress shall have the power to correct such discriminations in inequality.

William Coleman/Jeffrey Wright

[Continues reading from the book]

No distinction will be tolerated in this purified Republic but what rose from merit and conduct.

Thurgood Marshall/Sidney Poitier

Place this on the front section of the brief.

Part 2 @ 52m 52s

[Set in the NAACP office]

Thurgood Marshall/Sidney Poitier

[Reading to Professor Black from the brief]

These infant appellants are asserting the most important claims that can be put forward by children. The claim to their full measure of the chance to learn and grow, and be inseparably connected, but even more important claim, to be treated as entire citizens of the society into which they have been born.

[Speaking to Professor Black, a Caucasian]

You understand. Professor, you are a Negro.

Part 2 @ 54m 50s

[December 7, 1953 – Washington, D.C. – Supreme Court]

-37-

John W. Davis/Burt Lancaster

[Addressing the Court]

In Clarendon School District No. 1, South Carolina, there are two thousand seven hundred and ninety-nine registered Negro children of school age. There are two hundred and ninety-five white children. The state has now provided those two thousand eight hundred Negro children with schools that are, as Mr. Marshall has so positively admitted, equal in every respect. In fact, because of their being newer, they may even be better than the schools of the two hundred and ninety-five white children. Now, who’s going to disturb that situation? If these children were to be reassorted under a mathematical basis you would have twenty-seven Negro children and three white children in each school room. Would that make the children any happier? Would they learn more quickly?

Your Honors cannot sit as a glorified board of education in the state of South Carolina or any other state. Nor, I respectfully submit, can this Court sit in the chairs of the legislature of South Carolina and mold its educational system. The state establishes the schools, it pays the funds, and it has the sole power to educate its citizens. The state of South Carolina does not come here in sackcloth and ashes. Its laws do not offend the Constitution of the United States. It is convinced that the happiness, progress and the welfare of these children is best promoted in segregated schools, and it would be a thousand pities that by this controversy it might be ordered to abandon what it has created.

I am reminded of Aesop’s fable of The Dog and the Meat. The dog with a fine piece of meat in his mouth crossed a bridge. He saw the shadow in the stream and he plunged into it and he lost both the shadow and the substance. Now, here is real education, not prophesied but present. Shall it be thrown away on some fancied question of racial prestige? It is not my part to offer advice to the appellants, and certainly not to the learned council. No doubt they think what they propose is best, but I entreat them to remember the age old motto that the best is often the enemy of the good.

Part 2 @ 57m 50s

[December 7, 1953 – Washington, D.C. – Supreme Court]

Chief Justice Earl Warren/Richard Kiley

Mr Marshall, you have five minutes for rebuttal.

Thurgood Marshall/Sidney Poitier

[Addressing the Court]

May it please the Court. The Fourteenth Amendment was put into our Constitution after one of the worst wars ever fought. The duty of enforcing the Fourteenth Amendment is placed upon this Court to make sure that the states, in administering their functions, disregard little pet feelings about race. The Negroes who are forced to submit to segregation are all American citizens who by accident of birth are a different color, and the color makes no difference, one way or another, in so far as this Court is concerned.

Harry Briggs, Jr. is guaranteed by the state some twelve years of education. There is no way you can repay lost school years, but they say leave it to the states until they work it out. I got the feeling, on hearing the discussion earlier, that when you put a white child in a school with a whole lot of colored children, the child would fall apart. Everyone knows that is not true. Those same kids, in Virginia and South Carolina, and I have seen them do it, they play in the streets together, they separate to go to school. They come out of school and play ball together, but they have to be separated in school. There must be some magic to it. You can have them going to the same state university and to the same college but if they go to elementary and high school together the world will fall apart.

The only way that this Court can decide this case in opposition to our position is to find some reason which gives the state the right to make a classification in regards to Negroes that they can make in regard to nothing else, and we submit, the only way to arrive at this decision is to find that for some reason Negroes are inferior to all other human beings. Nobody will stand in this Court and say that because they would have to justify it. It can only be one thing, an inherent determination that the people who were formerly in slavery shall be kept as near that condition as is possible. Now is the time, we submit, that this Court should make it clear that that is not what the Constitution of the United States stands for.

Thank you sir.

-38-

Chief Justice Earl Warren/Richard Kiley

Thank you Mr. Marshall.

Part 2 @ 1h 3m 53s

[Set in the office of John W. Davis]

Josiah C. Tulley/Graham Beckel

We concede Douglas and Black to the other side. Reed and Clark should vote with us. Jackson and Frankfurter are leaning towards our point of view, it’s judicial restraint. Now, that’s four, and we should pick up another vote from Minton or from Burton, or Chief Justice Warren.

Frankfurter Clerk Mark Baldwin/John Ottavino

[Set in Justice Frankfurter’s office]

How are you getting on with the new Chief?

Justice Felix Frankfurter/Mike Nussbaum

I’ve discovered that he listens, though he is untutored in the law.

Frankfurter Clerk Mark Baldwin/John Ottavino

Well, it could be argued that’s an ideal combination for a Chief Justice; open minded and flexible. Well, I hope you all get down to it. It’s not that tough a call, as I see it.

Justice Felix Frankfurter/Mike Nussbaum

For those who do not have to decide, it is easy. The humanitarian thing to do is to strike down segregation, but nothing presented to us, neither history or legal precedent, offers any help. I think Jackson wants to toss it to Congress. The authority for enforcing the Fourteenth Amendment….

Frankfurter Clerk Mark Baldwin/John Ottavino

Sir. Sir, if I may, the Negroes are the group for whom the Fourteenth Amendment was written. It’s for their protection, and since 1868 everybody else has come to this Court invoking the protection of the Fourteenth Amendment. Corporations and Chinese and aliens and everybody else come in and claim they’ve been denied equal protection of the laws. They come to the Supreme Court of the United States and you listen to them, and if you find that their rights have been violated, then you take care of them, but when the one group for whose protection the Fourteenth Amendment was written, the Negroes, come in and ask you for relief, Jackson wants you to say, yes, your constitutional rights have been violated, but don’t come to us, you go across the street, you ask Congress to give you relief. We’re not going to give you a damn thing.

Justice Felix Frankfurter/Mike Nussbaum

Mark, at Harvard I would have given you an ‘A’ for that.

Part 2 @ 1h 5m 53s

[Set in the Supreme Court conference room]

-39-

Justice William O. Douglas/John C. Vennema

Tempis fugit. I’m exactly where I was one year ago. I’m prepared to vote to desegregate, and if my vote should be in the minority I shall write as strong a dissent as I know how.

Justice Stanley Forman Reed/Mark Hammer

After reading over fifteen hundred pages, I have yet to discover a basis in the Constitution or the Fourteenth Amendment that allows us to order the states to do with their schools that which they do not wish to do.

Justice Hugo Black/Tom Aldredge

I was very taken by something Mr. Thurgood Marshall said: The only way this Court can decide this case in opposition to our position is to find that for some reason Negroes are inferior to all other human beings.

Justice Stanley Forman Reed/Mark Hammer

Hugo, nothing in the law tells us that we can tell South Carolina to abolish separate schools. This country has been making great strides in race relations. A careless decision here could halt that progress.

Chief Justice Earl Warren/Richard Kiley

How do you hear that happening Stanley?

Justice Stanley Forman Reed/Mark Hammer

If the American people feel that a bunch of liberals in Washington are forcing their social views on the states there will be profound resentment.

Justice Tom Clark

I’ve seen the race problem more closely than most of you. I’m concerned about the possibility of violence, massive resistance. What if we say desegregate and they refuse? Can we send the Army into South Carolina to enforce it. Send the Army into twenty states?

Justice Robert Jackson/Henderson Forsythe

I am surprised that the history provides so little in the way of legal footing for striking down segregation.

Justice Felix Frankfurter/Mike Nussbaum

I find I’m arguing with myself. My heart tells me segregation is wrong. The law tells me not to interfere with the states.

Justice Robert Jackson/Henderson Forsythe

I do not like the idea of segregation, but for a hundred years the south has had segregated school systems and this Court has told them it was legal. We can’t just turn on a dime and say tomorrow morning things will be different.

Justice William O. Douglas/John C. Vennema

Nor can we continue to say that in the United States of America all men are equal but that white men are more equal than others. For God’s sake, let’s decide the principle. We can remain flexible on how to implement it.

Justice Felix Frankfurter/Mike Nussbaum

Disaster. This Court is expected to be precise and clear.

-40-

Chief Justice Earl Warren/Richard Kiley

Felix, you say you’re arguing with yourself. Perhaps you’d prepare a memorandum outlining the issues and offering some suggestions as to where our choices lie.

Thank you gentlemen.

Justice Felix Frankfurter/Mike Nussbaum

[Speaking to Chief Justice Warren]

Our great civil libertarian is going to get us into soup. Douglas is so abrasive he makes conciliation and compromise even more difficult.

Chief Justice Earl Warren/Richard Kiley

He obviously feels very deeply.

Justice Felix Frankfurter/Mike Nussbaum

Douglas is a great humanitarian in the abstract, he just can’t stand people.

Part 2 @ 1h 12m 10s

[Set outside of the car in which the Chief Justice went sightseeing for the day with Mr. Patterson, his Negro aide – the Chief Justice, after sleeping at an Inn for the night, knocks on the car window in the morning to wake up Patterson]

Chief Justice Earl Warren/Richard Kiley

Mr. Patterson, why are you sleeping in there?

Mr. Patterson—Aide to Chief Justice Warren

Sir, I couldn’t find a place... [silence].

Sir, there’s no place within twenty miles a here where I... [silence].

Chief Justice Earl Warren/Richard Kiley

Let’s get back to Washington.

Part 2 @ 1h 12m 50s

[Set in the office of Chief Justice Warren]

Chief Justice Earl Warren/Richard Kiley

[He circles a paragraph on a page of the brief]

These infant appellants are asserting the most important claims that can be put forward by children, the claim to their full measure of the chance to learn and grow, and the inseparably connected but even more important claim to be treated as entire citizens of the society into which they have been born.

[Reading audibly] . . .to be treated as entire citizens of the society into which they have been born.

Chief Justice Earl Warren/Richard Kiley

[Set in the office of Justice Frankfurter]

Felix, this Court must vote to desegregate. I believe that this is a moral issue. One that goes deep into the soul of our nation. The more I ponder this, the more I believe the separate but equal idea is based on the concept that the colored race is inferior, and that those who sustain it must be willing to acknowledge that. Now, I believe my vote will make a majority of five. I will assign the writing of the opinion to myself. I hope to write it in a way that will bring others with me. What do I have to do to have you with me?

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Justice Felix Frankfurter/Mike Nussbaum

You’re a man from the hurly burly of public life Earl. I’m a man from the private world of a jurist. We both know what is right here, but to you it seems less complicated. Neither history nor legal precedent gives us reason, but there are times when the Court must be free to interpret the Constitution based on the changes in men’s feeling for what is right and just. The humanitarian goal will have to do, but if you force a sharply divided decision you will have accomplished no good. You must work to unite the Court.

Chief Justice Earl Warren/Richard Kiley

How Felix?

Justice Felix Frankfurter/Mike Nussbaum

Jackson, you must persuade him to vote with us and not to write a separate opinion. You must talk to him, convince him, and then, if you’re successful, Clark, he should follow. Stanley Reed will be the most difficult.

Chief Justice Earl Warren/Richard Kiley

Can Reed be turned?

Justice Felix Frankfurter/Mike Nussbaum

Only by you; but Jackson first.

Justice Robert Jackson/Henderson Forsythe

[Set outside, Warren and Jackson are walking]

If you write an opinion I will study it with an open mind.

Chief Justice Earl Warren/Richard Kiley

That’s all I ask.

Justice Robert Jackson/Henderson Forsythe

But an open mind cannot change my belief that this matter rightfully belongs with the Congress. Earl, you are looking for a congenial political solution to the problem.

Chief Justice Earl Warren/Richard Kiley

I’m looking for a way to do what I think we both believe is the right thing to do.

Justice Robert Jackson/Henderson Forsythe

The only possible way, in my view, to write a decision to end segregation with intellectual honesty is to argue that the majestic generalities of the Constitution have a content and a significance that vary from age to age. I don’t like it but you can try it.

Part 2 @ 1h 16m 55s

[Set in the home of Thurgood Marshall talking with Mrs. Marshall]

Thurgood Marshall/Sidney Poitier

Buster, the time I got the job as a waiter with Baltimore & Ohio, they handed me a uniform, white coat, black pants that fit real nice except they stopped just above the ankles, six inches too short. I went to the man in charge and I said: Sir, I need to have another pair of pants, these are too short. The man looked me over, and you know what he said? He said: Don’t you know it’s easier for me to get a shorter nigra than it is to get another uniform.

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Vivian ‘Buster’ Marshall/Gloria Foster

It makes me angry.

Thurgood Marshall/Sidney Poitier

That was a long time ago.

Vivian ‘Buster’ Marshall/Gloria Foster

I mean about getting sick. Changes are coming. Changes we never dared dream of, and I may not see them. I want to see the things we’ve worked for.

Thurgood Marshall/Sidney Poitier

You’ll see changes. You will see a different world, and you know something? You’ll know we made a difference.

Part 2 @ 1h 18m 52s

[Set in the home of Chief Justice Warren then in his Supreme Court office—‘nine copies’]

Chief Justice Earl Warren/Richard Kiley

If you will type this please. I will review it, then Mr. Patterson, if you will take it to the print shop and order nine copies. Only nine.

Justice Tom Clark

[Set in the office of Justice Clark]

May I guess why you’re here?

Chief Justice Earl Warren/Richard Kiley

[Chief Justice Warren does not speak as he hands his decision paper to Justice Clark]

Justice Tom Clark

I will vote to desegregate if, if the opinion gives the southern states time. We’re not dealing just with law, we’re dealing with a social revolution. It needs time.

Chief Justice Earl Warren/Richard Kiley

You read that Tom. It may need some refinement. I’d like to accommodate your view.

Chief Justice Earl Warren/Richard Kiley

[Set on a bench outside of the Supreme Court building speaking with Justice Stanley]

Stanley, I’ve written this opinion in a way which I hope will unite the Court.

Justice Stanley Forman Reed/Mark Hammer

There is a word that’s been on my mind, krytocracy, k-r-y-t-o-c-r-a-c-y. I checked it last night in the Oxford Dictionary. It says: government by judges. I do not want to see this Court travel outside its authority. It isn’t a question of what I would like to see but what the Constitution will permit me to see. Earl, understand this, I do not believe that Negroes are an inferior race.

Mr. Patterson—Aide to Chief Justice Warren

Sir, it’s Mr. Justice Jackson.

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Chief Justice Earl Warren/Richard Kiley

Yes

Mr. Patterson—Aide to Chief Justice Warren

Sir, they just took him to Walter Reed, a heart attack sir.

Justice Robert Jackson/Henderson Forsythe

[Set in Justice Jackson room at Walter Reed Hospital]

A little bout with one’s mortality has a way of focusing the mind. Since the end of the Civil War the United States has been hesitating between two worlds, one dead, the other powerless to be born. What you have written is quite remarkable. In very plain and understandable words it tells the nation what must be done, and why. I’m with you Earl.

Chief Justice Earl Warren/Richard Kiley

[Set in the Supreme Court conference room, only Chief Justice Warren and Justice Reed]

You’re all by yourself now Stanley.

Justice Stanley Forman Reed/Mark Hammer

The fact remains, this Court has been given no evidence that the nation knew a century ago that it was outlawing segregation [interrupted].

Chief Justice Earl Warren/Richard Kiley

Stanley, we have eight votes to desegregate. Each of us is concerned about history. Each of us is reluctant to overrule precedence, but we aren’t convinced that the law in this day and age cannot set Negro school children apart. Not in the United States of America.

Justice Stanley Forman Reed/Mark Hammer

This country has been making consistent progress in race relations. This decision could impede that progress, halt the march. A piece of paper cannot eradicate the fears and prides and prejudices of people. Earl, if this court tries to force the southern states to change overnight there will be resistance, litigation, disobedience and years of conflict. Believe me.

Chief Justice Earl Warren/Richard Kiley

Stanley, I’m a politician. I’ve worked for the people for over thirty years now. I’ve seen them in police stations, hospitals, unemployment lines. I’m convinced that the people will accept the ruling that fortifies their inner conscience. Let the backbone come from the Court and it’ll strengthen the moral backbone of the people who live in conflict. Stanley, a fully united Court will send a signal to this nation. I pray that you’ll see your way clear to join the majority.

Part 2 @ 1h 30m 05s

[Set in the Supreme Court. The movie transcript below is from five different paragraphs of Chief Justice Warren’s actual opinion found at caselaw.lp.findlaw.com:

→ http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=347&invol=483 ]

Chief Justice Earl Warren/Richard Kiley

These cases come to us from the states of Kansas, South Carolina, Virginia, and Delaware. They are premised on different facts and different local conditions but a common legal question justifies their consideration together.

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In approaching this question, we cannot turn the clock back to 1868 when the Fourteenth Amendment was adopted, or even to 1896 when Plessy versus Ferguson was written. We must consider public education in the light of its present place in American life. Only in this way can it be determined if segregation in public schools deprives these young plaintiffs of the equal protection of the laws.

In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it is a right which must be made available to all on equal terms.

We come then to the question presented. Does segregation of children in public schools solely on the basis of race, even though the physical facilities may be equal, deprive the children of the minority group of equal education opportunities? We believe, unanimously, that it does.

We conclude that in the field of public education that the doctrine of separate but equal has no place. Separate educational facilities are inherently unequal. Therefore we hold that the plaintiffs similarly situated, for whom the actions have been brought, are by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.

It is so ordered.

Justice Felix Frankfurter/Mike Nussbaum

[Justice Felix Frankfurter’s note to Justice Stanley Reed]

“Stanley, I am aware of the struggle in your conscience. As a citizen of the Republic, I feel deep gratitude for your share in what I believe to be a great good for our nation. Felix”

Part 2 @ 1h 34m 40s

[Set in the home garden of defense council John W. Davis]

Julia Davis/Hallie Foote

Father. The decision. For the plaintiffs. It was unanimous.

John W. Davis/Burt Lancaster

In the words of the General: We have met the enemy and we are theirs.

Julia Davis/Hallie Foote

I’m sorry father.

John W. Davis/Burt Lancaster

Someday I’m going to learn to accept good advice when it’s offered. There’s troubled times ahead. Looking at it philosophically, a unanimous decision is the best thing for the country.

Part 2 @ 1h 36m

[Voice of narrator]

In 1967 Thurgood Marshall was named an Associate Justice of the United States Supreme Court.

Vivian ‘Buster’ Marshall died of cancer the year following the Supreme Court decision.

Harry Briggs, Jr. never attended a desegregated school and never had an opportunity to go to college.

-45-