The Fading Line

(See Cover)

"If one race be inferior to the other socially, the Constitution of the United States cannot put them on the same plane"

--From the majority opinion of the U.S. Supreme Court in Plessy v. Ferguson, 1896.

"But in the view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste system here. Our Constitution is color-blind."

--Associate Justice John Marshall Harlan, dissenting in the same case.

At the stroke of noon, one day last week, Chief Justice Earl Warren strode through the red velour draperies that hang behind the long mahogany bench of the U.S. Supreme Court. As the Chief Justice and his eight associates took their places, Earl Warren's broad, friendly face broke into a quick smile. He beamed at Mrs. Warren, who had arrived from California the night before and was sitting among the spectators nearest the bench. For 65 minutes the court went through routine business. But in spite of the Chief's pleasant demeanor, there was an air of tension in the marble-columned courtroom.

The Supreme Court was about to hear final, oral arguments on one of the most momentous issues to come before the court in its 164-year history, perhaps the most important question that ever came before a Chief Justice so early in his tenure. The crucial question: Should segregation in the public schools be abolished?

"The Key of History." As the arguments began, every seat (300) in the world's most important courtroom was occupied. Negro lawyers sat next to white lawyers. Negro reporters sat next to white reporters. Negro spectators sat next to white spectators. But the fact that the color line has not been erased in the U.S. was soon apparent.

Speaking for the National Association for the Advancement of Colored People, Thurgood Marshall, eminent Negro constitutional lawyer, told the court that the defenders of school segregation were asking for "an inherent determination that the people who were formerly in slavery . . . shall be kept as near that stage as possible." Said the big, deep-voiced Thurgood Marshall: "Now is the time . . . that this court should make it clear that that is not what our Constitution stands for."

On the other hand, John W. Davis, dean (80) of the nation's constitutional lawyers, arguing for segregation, maintained that separate schools are not only constitutional but often better for the Negroes. Representing the state of South Carolina, the white-haired Davis told the court: "Recognize that for 60 centuries and more, humanity has been discussing questions of race and race tension . . . Disraeli said, 'No man will treat with in difference the principle of race. It is the key of history.' "

Through eleven hours of argument, the nine Justices were studies in intense interest. Earl Warren, his bulk (6 ft. 1 in., 215 Ibs.) dominating the bench, sat erect in the high-back chair that had been used by the late Chief Justice Vinson (Said Warren to a court official who asked him if he wanted his own specially built chair: "Pshaw, that one's plenty good enough for me!"). Occasionally he asked a quiet question to clarify a point. Associate Justice Felix Frankfurter, as if playing pizzicato violin to Warren's cello, turned and twisted in his specially built chair, fired quick, needling questions at the attorneys, sent messengers scurrying for law books. All of the nine men behind the long bench, unlikely to agree, knew that they faced a decision that could well be a landmark in the history of race relations.

Opposite the Pawn Shop. While eminent legal minds considered the great issue, Spottswood Thomas Boiling Jr., 14, sat with the all-Negro sophomore class in Washington's new Spingarn High School, quietly tending to his studies. Spottswood Boiling's name will go down in history with the segregation cases, for he is one of the plaintiffs. His case is a resume of the issues involved.

Its history began one day in 1950, when Spottswood and eleven other Negro children, with a police escort and a battery of lawyers, went to Washington's shining new John Philip Sousa Junior High School. The spacious brick-and-glass school, facing a carefully groomed golf course in southeast Washington, is in a solid residential district. It has 42 bright classrooms, a fine 600-seat auditorium, a completely equipped double gymnasium, a playground with room enough for seven basketball courts and a softball diamond.

Some of the classrooms were empty, but the principal, Miss Eleanor P. McAuliffe,* refused to admit the Negro children. She had to refuse. District of Columbia officials interpret a law, passed by Congress in 1862, as requiring segregated public schools.

Spottswood Boiling went, instead, to Shaw Junior High School for Negroes. It is an old, dingy, unsanitary, ill-equipped building across the street from The Lucky Pawnbroker's Exchange. Built in 1902, and used as a white school until 1928, Shaw has an L-shaped playground too small for a ball diamond, a welding shop turned into a makeshift gymnasium, a science laboratory fitted out with a Bunsen burner and a bowl of goldfish.

The contrast between the two schools was clear, but even if Shaw had been just as good a school as Sousa, the parents of Spottswood Boiling and his friends would not have been satisfied. They were attacking something deeper than disparity of facilities. Their target was the principle of segregation. Said Spottswood's widowed mother, Mrs. Sarah Boiling, a $57.60-3-week bookbinder for the Federal Government's General Services Administration: "I think that to know how to deal with all people you've got to start as a child in school. In school you learn to get along . . . Colored people learn to get along with white people, white people get to understand colored people, or they would if they went to school together as children."

The Negro children's attempt to enter Sousa Junior High School was a maneuver carefully planned by the Consolidated Parent Group, an organization of Negro parents headed by a barbershop owner who once paid a $10 fine for taking his three-year-old daughter into a white playground in Washington. The other four cases before the court, from South Carolina, Virginia, Delaware and Kansas, were brought about in much the same manner by the N.A.A.C.P. The legal technicalities in the lawsuits differ somewhat from case to case,* but the aim is the same: mixed schools.

Two Men & a Cause. The issue that brought the name of Spottswood Boiling before the U.S. Supreme Court is in no sense new. Where and how the Negro should be educated has been in dispute in the U.S. ever since Thomas Jefferson wrote that "all men are created equal." Before the Civil War, teaching a slave to read was a crime punishable by imprisonment in some Southern states. But after the war, there was a crusade to raise the freed slave's status. It was led by two white men: Thaddeus Stevens of Pennsylvania and Charles Sumner of Massachusetts.

Stevens, a stony-faced, crippled son of a Vermont village shoemaker, was the crude but effective pleader for the Negro in the U.S. House of Representatives. Sumner, a master orator who succeeded Daniel Webster in the U.S. Senate, carried the Negro's banner there. They were the spiritual leaders of the "Radical Republicans," whose pro-Negro stand was far beyond that of Abraham Lincoln. In 1866, when President Andrew Johnson vetoed a bill to expand the Freedmen's Bureau (an agency to aid and educate former slaves), Stevens rose in the House and called the North Carolina-born President "an alien enemy, a citizen of a foreign state." In the Senate, Sumner cried that Johnson was "an insolent, drunken brute, in comparison with which Caligula's horse/- was respectable."

Fighting for their cause with such vehemence, Sumner and Stevens pushed the 14th Amendment to the Constitution, passed in 1866, providing that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens." They rammed through the reconstruction acts of 1867, which established military governors over ten Southern states and set the terms on which the states would be readmitted to the Union. Among their terms: suffrage for Negroes and ratification of the 14th Amendment.

What Kind of Equality? The Negro's status rose dramatically. But the rise stopped suddenly in 1877, largely as the result of politics. The electoral votes in the election of November 1876 were so close and the charges of fraud so numerous that the election was thrown into Congress. Republican leaders knew that the doubtful votes of South Carolina, Florida and Louisiana would elect Republican Rutherford B. Hayes over Democrat Samuel Tilden. Spokesmen for the G.O.P. and for Southern Democrats met and made an agreement. The Southern states would throw their electoral votes to Hayes, and his Administration would grant concessions to the South. Among those concessions : 1) troops would be withdrawn, and 2) the states would be permitted to establish their own policies toward the Negro. Hayes got just enough (185) electoral votes. The troops were withdrawn.

Southern states immediately began returning to the "Black Codes," pre-14th turning to the "Black Codes" Amendment laws designed to keep the Negro in a status not far removed from slavery. There came to power in the South politicians such as "Pitchfork Ben" Tillman, governor and later Senator from South Carolina, who publicly proclaimed that the Negro was biologically inferior to the white man. When "inoculated with the virus of equality," said Tillman, the Negro became "a fiend, a wild beast, seeking whom he may devour."

Along the rutted road back from Pitchfork Ben's heyday, a great argument has developed about just what kind of equality Congress and the state legislatures meant to give the Negro through the 14th Amendment. Its language seems sweeping enough, but many lawyers are impressed by the fact that it contains no specific declaration on segregation. That point has become important in the cases now before the Supreme Court.

Last spring, after reading the briefs, the high court asked the attorneys to study and discuss whether the framers and ratifiesr of the 14th Amendment meant to abolish segregation in the schools. The court got three answers. Thurgood Marshall, for the N.A.A.C.P., said that was clearly the intention. John W. Davis, for South Carolina, said that was clearly not the intention. Assistant U.S. Attorney General J. Lee Rankin said that the evidence was inconclusive, but that on other grounds, the U.S. Government favored an end of segregation.

Can Separate Be Equal? The U.S. Supreme Court has never spoken directly on the subject of segregation in the public pre-college schools. The decision that has long been used by Southern states as the guide on segregation is Plessy v. Ferguson, a transportation case. It arose on June 7, 1892, when Homer Adolph Plessy bought a ticket on the East Louisiana Railroad, from New Orleans to Covington, La. Plessy, seven-eighths white and one-eighth Negro, took a seat in the white coach on the segregated train. When he refused to move, he was taken off and jailed. The case reached the Supreme Court in 1896, and the court ruled that Louisiana's law, calling for "equal but separate" facilities on trains, was constitutional. The majority opinion held that Negroes were equal to whites "civilly and politically," but not "socially."

At higher educational levels, the separate but equal doctrine has been considered by the Supreme Court. The first major case came in 1938, when the Supreme Court ruled that Negro Lloyd Gaines should be admitted to the University of Missouri Law School because he could not find equal facilities anywhere else in .his state. This and other similar cases that followed opened the doors of many graduate and professional schools to Negroes.* But none of the cases reached the level or the principle involved in the present cases. The Negro spokesmen maintain that even if physical facilities are the same, social and psychological factors make a basic difference. Their contention: "separate" can never be "equal."

"One Law for All." To this first historic case of his tenure, the new Chief Justice of the U.S. brought a well-illustrated attitude of racial tolerance. Earl Warren grew up in Bakersfield, in California's San Joaquin Valley, where segregation was unknown. At the University of California, one of Warren's good friends was a Negro named Walter Gordon ("We used to box a bit together," Gordon recalls). A boxing, wrestling and football star (All-America, 1918), Gordon later coached Warren's son James at the university. In 1944 Warren appointed Gordon a member of the State Adult Authority, which sets all prison terms and grants all paroles.

Not long after he became governor of California in 1943, Warren laid down a rule: "I don't want to hear of any of my department heads refusing to hire anyone for reasons of race, color or creed." Among Warren's own appointments was Edwin L. Jefferson, the first Negro ever named to California's Superior Court. To each of the California legislative sessions, from 1945 through 1953, Warren proposed, in one form or another, a state agency to assure fair treatment of all races. The proposal was rejected each time, but Warren personally stuck to the stand he had taken as a candidate for Vice President in 1948: "We must insist upon one law for all men . . . Anything that divides us or limits the opportunities for full American citizenship is injurious to the welfare of all."

Last year Warren volunteered a view on a race problem when residents of an all-white neighborhood of South San Francisco forced a Chinese family to move out (TIME, Feb. 25, 1952). Warren wrote the family: "I am not at all proud of the action of the people in the neighborhood of your new home . . . I agree with you it is just such things that the Communists make much of in their effort to discredit our system."

A Sick Feeling. Earl Warren's own views on the race question do not necessarily indicate that he will vote to ban segregation in the schools. Some lawyers who are against segregation nevertheless maintain that each state should have the right to fix its own educational policies. In weighing such questions of law, Warren can call on wide experience as a prosecutor and administrator, but little background in private law practice, and no previous service on the bench. He was in private practice for just three years after he graduated from law school, and once admitted that court appearances terrified him. Said he: "I'd get on a streetcar, and I'd be so tense I would hope the car would be wrecked on the way to the courthouse."

Later, as a deputy city attorney for Oakland, deputy and district attorney for Alameda County (Oakland, Berkeley, Alameda) and attorney general of California, he showed no signs of terror in or out of court. He was a relentless prosecutor, convicted an average of 15 murderers a year, chased grafters out of office and into prison. But he drew no particular joy from his victories in criminal cases. Said he: "I never heard a jury bring in a verdict of guilty but that I felt sick at the pit of my stomach."

As governor, Warren greatly improved the caliber of the California bench by appointing well-qualified judges. Always a practical man rather than a philosopher, always busy as an administrator, Warren never expounded a full-bodied philosophy of law. Los Angeles Attorney Robert Kenny, opposing Warren for the governorship in 1946, charged: "He never had an abstract thought in his life."

The fact that Warren was neither a legal philosopher nor an experienced judge-did not deter Attorney General Herbert Brownell Jr. and President Eisenhower after they had finished combing the list of prospects for a successor to the late Chief Justice Fred M. Vinson last fall. They knew that Warren had been highly successful as an administrator of the second most populous and fastest-growing state, and that the court needed an administrator almost as much as it needed a strong legal philosopher.

Walks at Midnight. Sitting as Chief Justice of the U.S. is a basic change in Earl Warren's life. A hearty, friendly man who likes people, Warren used to travel up and down the State of California, meeting people, handling dozens of administrative problems through a large staff. Suddenly, he was behind a desk in an office full of law books. Warren found that he liked the new opportunity for reflection and analysis. To offset the confining nature of his work, the Chief Justice often walks for two or three miles before going to bed about midnight.

Temporarily, his family stayed behind in California. He found himself forced to eat in restaurants, which he hates to do. Said the Chief Justice: "I've never been so lonely in my life."

At the court, Warren moved in with a friendly and casual air. When he takes a breather from work at the neat desk in his oak-paneled office, he often strolls through the building greeting surprised employees with a hand outstretched and a self-introduction: "I'm Earl Warren." Said one guard: "He shakes more hands in one day than many other Justices do in five years."

When he wants to discuss a point with another Justice, he doesn't call the Associate in. He telephones and asks: "I've got a point to check with you. May I come over?"

One Hand Tied. Warren writes most of his own notes and memorandums (and the one opinion he has written so far) with a yellow lead pencil on standard, yellow, lined legal pads. He writes with his right hand, although he is naturally a left-hander (he was once a southpaw outfielder on a sandlot baseball team). When he was a schoolboy, a teacher tied his left hand behind him and forced him to write with his right. This practice, long condemned as psychologically disturbing, has left no noticeable scars on the Chief Justice of the U.S.

The other Justices have considered their new chief and have reached a favorable opinion. It might be summed up: he has made a good start. Perhaps the best illustration of this came the day that Warren dared to rephrase a question asked in open court by Justice Frankfurter. Old hands around the court tensed; one does not say "in other words" to peppery Felix Frankfurter. But Justice Frankfurter, accepting Warren's paraphrasing, said: "Precisely, yes, yes . . ."

It is much too early for anyone to tell what kind of Chief Justice Earl Warren will be. Only time will reveal that. He is neither a philosopher like Oliver Wendell Holmes nor a master of his fellow men equal to Charles Evans Hughes. But he has a good mind, a wealth of practical experience and success in administering the law, a feeling for the human side of a case and boundless energy.

No doubt one of the first major entries that will be written on Chief Justice Warren's record is the court's action in the school segregation case. The decisions will directly affect some 12 million schoolchildren in at least 17 states* and the District of Columbia. The decisions may change the whole pattern of life in the South. In many nations where U.S. prestige and leadership is damaged by the fact of U.S. segregation, the court's action is awaited with intense interest.

In the South, some states have threatened to take drastic steps if the court bans segregation. South Carolina's Governor James Byrnes and his legislature already have on the books a "preparedness law" ready to abolish the public-school system. In Georgia, Governor Herman Talmadge and his legislature are also ready to turn the schools over to private organizations.

Many Southern states have been rushing to meet the separate-but-equal standard (South Carolina has allocated $84.3 million for new schools since April 1951, 68% of it for Negro schools), and in some districts Negroes now have the best schools. But most white leaders in the South are not ready to take the next step: desegregation.

No longer do the Southern defenders of segregation take their stand with Ben Tillman on the flat assertion of racial superiority. Nowadays they stress the "practical" consequences of mixed schools. Last week John W. Davis told the court that Clarendon School District No. 1 in South Carolina has 2,799 Negro and 295 white Children of school age. If these children are mixed, the schoolrooms will contain nine Negro children to each white child. Asked John Davis: "Would that make the children any happier? Would they learn any more quickly? Would their lives be more serene?"

One point that was obviously worrying the Supreme Court was the question of timing. If the court bans segregation, should the new principle apply immediately? Or should there be a transition period? Should the Supreme Court lay down specific time limits and rules? Or should it leave details to the lower courts? Both Justices Robert Jackson and Frankfurter mused on these points as the attorneys argued last week.

Jackson: I foresee a generation of litigation if we send it back with no standards . . .

Frankfurter (later) : I do not see how you can escape some of the things which worry my brother Jackson . . .

Jackson: They do not worry me; they will be worrying our children.

The Great Success Story. No matter which way Chief Justice Earl Warren and the eight Associate Justices decide these cases, the race problem will be there in some form to worry future generations of Americans.

There is no doubt that the color line in the U.S. is fading. Perhaps the wiping out of segregation in the armed forces is the greatest step in that direction in this generation. The very efforts made by the Southern states to avoid desegregation already provide much better education for Negroes. The American Negro's rise from slavery in less than a century is one of the greatest success stories the world has ever known. His rise will not stop, whether he wins or loses this case. He will either get mixed schools in the South, or else continue to migrate in vast numbers to the states where opportunity is more nearly equal.

* Seventeen states and the District have mandatory public-school segregation. Among the states are all of the Confederacy: Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, Texas and Virginia. The six other states on the list are Kentucky, Maryland, Missouri, Oklahoma, West Virginia and Delaware (the source of one case now before the Supreme Court). Some other states, e.g., Kansas, source of another of the current cases, permit school segregation by local option; the Kansas case before the court comes from Topeka.

* A sister of Lieut. General Anthony C. ("Nuts") McAuliffe, the World War II hero of Bastogne.

* The District of Columbia case arises under the Fifth Amendment, which limits the powers of Congress ("Nor shall any person be deprived of life, liberty or property, without due process of law . . ."). The state cases arise under the equal protection clause of the 14th Amendment, which limits the powers of the states ("Nor shall any State deny to any person . . .the equal protection of the laws").

/- Roman Emperor Caligula (37-41 A.D.) once bestowed a consulship on his horse.

* While there has never been an official ban on Negroes at the U.S. Military and Naval Academies, Annapolis admitted no Negroes from the 18703 until 1936 and West Point's record was only slightly better. The unwritten barriers were not broken until World War II. Now, the Military Academy has 23 Negro graduates and twelve Negro cadets, the Naval Academy three Negro graduates and nine midshipmen.

* Five of the 13 other Chief Justices of the U.S., including the great John Marshall, had no previous judicial experience.

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