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 It is one of the most celebrated handshakes in American history. George E. C. Hayes, on the steps of the Supreme Court, congratulating fellow attorney James M. Nabrit on a legal victory that would rock the nation. Between them stood Thurgood Marshall, chief counsel for the NAACP’s Legal Defense Fund. This image of the triumphant plaintiffs in Brown v. Board of Education, and the victory it stands for, have assumed center stage in both popular memory and scholarly assessments of the civil rights movement. As a result, civil rights legal history has become the story of how African-American communities, and the lawyers and organizations that supported them, struggled to overturn Plessy v. Ferguson, attack de jure segregation, produce the triumph in Brown, and effectively implement Brown’s anti-discrimination mandate. What has been lost by this focus on the Brown litigation is another story: A story about how civil rights leaders melded community action and labor and consumer activism with race-based rights litigation. Recent revisionist scholarship has made that loss even more poignant by criticizing the presumed court-based, race-focused, and rights-centered politics that produced Brown as irrelevant, or as a setback for the civil rights movement.
The alternative story begins in the era between the First and Second World Wars. The interwar period was, in many ways, the formative era for modern civil rights politics. During that period, a well-educated group of African-American lawyers were admitted to the bar, took over the NAACP’s local and national litigation, and secured the initial Court precedents that are thought to have laid the groundwork for Brown. If there is any period where the roots of a court- and race-centered strategy for attacking de jure segregation should be found, it should be here. Yet those antecedents are largely absent.
The African-American civil rights bar leaders did not begin the period with the conviction that litigation was the primary engine of social change. Rather, they subscribed to a professional consciousness that I call “race uplift.” Race uplift had two strands. One strand focused the African-American lawyers’ energies on constitutional law and civil rights legislation. The other strand focused the lawyers’ professional energies on internal work within black communities rather than on attacks on segregation. During the 1920s, this latter strand of uplift often predominated. To take the most prominent example (contrary to the traditional scholarly accounts) when Charles Houston began his famous transformation of Howard Law School into the institution that would train Thurgood Marshall and other leading civil rights lawyers, his aims were directed more toward communities than the courts. Houston did not think he was training his students to be primarily civil rights litigators. He thought that he was making them better at the everyday work of lawyers within local African-American communities. Much of that work would be intraracial—building up black businesses and meeting everyday needs for legal services.
Race uplift, however, was not simply the choice of intraracialism over integration, or community action over litigation. These distinctions have appeared in the revisionist scholarly literature, but they would have been foreign to the black lawyers of the interwar era. Lawyers like Charles Houston saw no conflict between their emphasis on intraracial professional work and their opposition to segregation: They thought that intraracial work was a means of eventually breaking down the legally constituted barriers that separated African-Americans from the mainstream of American life.
In addition to blending intraracial community action with litigation, the civil rights bar also incorporated the economic politics that animated the legal realists and the New Deal lawyers into their own cause. In fact, the leaders of the civil rights bar spent the 1930s developing a critique of private labor market discrimination, which emerged alongside their well-known challenges to de jure segregation. At crucial places, that critique was aided by legal realism, which pushed them to supplement their formal deployment of rights-based litigation with an attention to the structural sources of social and economic inequality. Charles Houston’s “social engineering” approach to reform lawyering, for instance, grew out of his exposure to Roscoe Pound and Felix Frankfurter’s social engineering ideas at Harvard, as well as pedagogical ideas that were inspired by the Yale and Columbia realist professors. Like their white realist counterparts, many of the black lawyers would be drawn into a sustained engagement with the New Dealers’ attempt to regulate the private labor market in the public interest.
Houston’s brand of legal realism, with its attendant focus on structural economic inequality, would shape one of the principal civil rights causes of the decade—the struggle to legitimize the use of pickets and boycotts against businesses located in black neighborhoods that hired few black employees. The boycotted businesses mobilized labor-injunction doctrine and turned to the courts for injunctive relief against the boycotters. In response, the civil rights lawyers immersed themselves in the two sets of labor law doctrines available to the boycott movement lawyers. One set was individualist and hostile to union activity; the other more solicitous of collective action in the labor market. At a crucial moment, Houston’s social engineering ideas helped the boycott movement lawyers choose the collectivist over the individualist doctrine. The collectivist doctrine had ideological content and helped the civil rights lawyers begin to sympathize with labor union politics.
Realist-influenced ideas also led civil rights bar leaders to critique race discrimination by private employers. Harvard law graduate John P. Davis, for instance, criticized New Deal labor market regulations as validating race discrimination by private employers and giving it the sanction of positive law. Davis’s critiques grew out of his exposure to Felix Frankfurter’s ideas at Harvard and his friendship with fellow Frankfurter student William Hastie. Davis’s arguments would soon be taken up by the other civil rights bar leaders, and by the mid-1930s they would become mainstream within civil rights politics. Raymond Alexander and other black bar leaders would later expand on these ideas, arguing that all private employers who relied on significant amounts of direct or indirect state aid should be made subject to nondiscrimination mandates.
By the beginning of the 1940s, lawyers like Raymond Alexander and Charles Houston were arguing that the future of civil rights politics lay in a fusing of desegregation litigation with collectivist labor politics. They imagined desegregation litigation as only one strand in a plural, heterogeneous civil rights movement.
These alternate histories of the civil rights movement are important to Americans today, and in particular to lawyers and others interested in the use of law to promote progressive social change. History is often as much about imagining a better future as it is about imagining the past. History can inspire, instruct, and shape one’s course to pursue a particular line of social activism in the present. For many, the struggle to achieve and implement Brown has served as one of these inspirational episodes. Yet the focus on Brown has also narrowed our vision of past and future possibilities. Revisionists have deployed the idea of Brown as an irrelevant, or disempowering moment as a counterpoint to imagining a better future. I have argued instead that the seeds of a better future can be found in an engagement with a past that is as full of liberatory, as well as constraining, potential as any imagined progressive future.
Kenneth W. Mack, Assistant Professor of Law at Harvard Law School, is currently working on a book entitled, Representing the Race: The Transformation of Civil Rights Lawyering and Politics, 1920-1955, which will be published by Harvard University Press.
Preferred Citation: Kenneth W. Mack, The Myth of Brown?, Yale L.J. (The Pocket Part), Nov. 2005, http://www.thepocketpart.org/2005/11/mack.html.
Read the full-length print version of Rethinking Civil Rights Lawyering and Politics in the Era Before Brown, as published in The Yale Law Journal here.
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