The Arguments for Segregation

Each saw their state's particular issues around segregation as different from the others. Some asserted that segregation was an issue of states' rights. Still, others described segregation as an almost benevolent system, offering Black and white students a "safe" learning environment removed from the growing racial tension across the country.

The case of Brown v. Board of Education of Topeka, Kansas, was up first. But no one from the school board in the suit agreed to argue the case. In fact, by the time of the Supreme Court hearing, the board had already voted to abolish segregation. So the Court requested that the state's young assistant attorney general, Paul Wilson, step in to defend Kansas's segregation law.

In his memoir A Time to Lose, he later wrote that arguing for segregation before the Supreme Court was an "unsought, unplanned, and unearned brush with history."

Still, when he stood before the court on December 9,1952, to rebut points raised by the NAACP's Robert Carter, Wilson's argument quickly boiled down to three things: first, school boards in Kansas had the right to make their own decisions regarding separate facilities for Black students; second, as long as schools were equal in every measurable respect, the school board was not violating the Constitution; and third, there just weren't enough Black students in the state to even make it a big deal.

Justice Felix Frankfurter asked Wilson directly. So what would happen if Kansas were required to integrate its schools?

Wilson said that at the time, just four percent of people living in Kansas were Black. Justice Robert H. Jackson asked more about that.

Wilson went on to say that ever since more Black people had arrived in places like Topeka as part of the Great Migration, the state had only required the larger cities to segregate their schools. Kansas was one of four states where segregation was optional, while 17 states required it. He urged the court to consider how long segregation had been acceptable law.

Justice Harold Burton interjected:

Wilson went on to say that by all objective measures, the white and Black schools in Kansas were equal in terms of facilities and the quality of teaching. And in Kansas, as opposed to the other defendants in these cases, that may have been true. So Wilson focused on a question that would become central to the Brown decision: Does segregation itself cause harm to Black children?

While the case in Topeka, Kansas, was already primarily resolved when it appeared before the Supreme Court, the case of Briggs v. Elliott in Clarendon County, South Carolina, was the opposite. The stakes were high, and one of the best-known lawyers in the country, John W. Davis, volunteered to argue, for free, South Carolina's right to segregate students by race. Defending Briggs was his one-hundred-fortieth Supreme Court argument. He had been a member of Congress, Solicitor General of the United States, and the Democratic nominee for President in 1924. Thurgood Marshall said of John W. Davis, he "was the greatest solicitor general we ever had. You and I will never see a better one. He was the greatest."

Davis was a strong defender of segregation, and the leaders in South Carolina gave him carte blanche to craft his argument as he pleased. Davis' opening remarks began with a "slippery slope" caution.

Davis was known for getting to the point when addressing the court. He said the state had already fixed up schools for Black children to match the facilities for white students - a highly debatable claim.

When the court resumed on Day 3, John Davis resumed his argument: was South Carolina's segregation allowed under the equal protection clause of the Fourteenth Amendment? Davis said the amendment's framers could not have imagined the modern desire for school integration. Justice Burton asked Davis to clarify.

At which point, Justice Felix Frankfurter jumped in:

Davis then also questioned expert testimony presented by the NAACP in its brief. It contained research by social scientists to prove segregation's harmful effects on the psyche of Black children. It included one of the best-known studies of racial differences, the Doll Test, developed by psychologists Kenneth and Mamie Clark. The researchers offered young Black children the chance to play with four dolls - two white, and two Black. The majority of Black children chose to play with the white dolls. The Clarks understood this as a sign that Black students felt inferior. Much of what was in the report had been presented as evidence in the lower court cases, including South Carolina's so John W. Davis was practiced in finding ways to discredit the findings.

In concluding his argument, Davis reiterated that state legislatures know what's best for their people.

And with that, the great John W. Davis rested his case. On Wednesday, December 10th, 1952, the Court heard arguments in Davis v. County School Board of Prince Edward County, Virginia.

Lower courts had found that the Black schools in Prince Edward County were inferior to the white schools and ordered what it called "an equalization program." However, the court upheld the "separate but equal" doctrine, saying simply that segregation was beneficial for both white and Black students.

Virginia's Attorney General J. Lindsay Almond, a prominent lawyer from Richmond, was joined by T. Justin Moore to defend the state's position. Moore - who was born and raised in Louisiana - went first.

Moore described how Virginia was improving the Black high school in Prince Edward County. In fact, any delay on the state's part was only due to the county being smaller, poorer, and having more Black residents than the rest of the state. When J. Lindsay Almond, Virginia's Attorney General, joined Moore in defending segregation, he warned that integrating classrooms would destroy the Virginia public school system. Chief Justice Vinson jumped in with a question.

Almond closed his argument with a plea to the justices to allow Virginia to keep educating its residents as it saw fit.

"This onward sweep." Although Almond is talking about Virginia specifically, for the lawyers defending states' right to segregate schools, an onward sweep is what they hoped to maintain. That afternoon, the justices had a little more time in their schedule, so they began to hear the arguments in Bolling v. Sharpe. The case involved a group of Black parents in Anacostia, a neighborhood of Washington, DC, who wanted the District to allow their children to attend the newly opened John Phillip Sousa Junior High School.

Of the five cases comprising Brown v. Board of Education, this case - Bolling v. Sharpe - was different from the rest. It was based in Washington, D.C., which is not a state. Congress itself had established the District's segregated school system around the time that the same Congress enacted the Fourteenth Amendment, and the 14th Amendment only applied to states, not the District.

Early on the third day of arguments, Milton Korman stepped up to the advocate's lectern to defend D.C.'s segregation policies. His argument soon entered territory that today sounds shockingly condescending:

Korman goes on, eventually asking the justices to permit him to read from an earlier Supreme Court decision - but he won't say the name of the case until after he reads this passage:

Korman's reference to the infamous Dred Scott decision of 1857 was a major mistake on his part. The 7-2 ruling in Dred Scott determined that enslaved people were not U.S. citizens, a decision it took the Fourteenth Amendment to fix. Dred Scott drove the nation further apart and helped spark the Civil War.

Overall, not a helpful reference point for someone arguing in favor of segregation. The final case of the five was Gebhart v. Belton. Delaware had only one high school for all of its Black Students - Howard High School. Delaware's attorney general, Albert Young, defended segregation on the afternoon of Thursday, December 11th.

Albert Young was right. Plus, Delaware schools were already integrating after a lower court ruling. Young said the state just needed more time. And it would get it.

Three days of arguments had ended in December 1952. Yet the justices' decision would not be handed down for another year and a half.