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we Ranklm 342 GALLEY3 Created on 4202005 12 32 PM Last Printed 752005 9 12 AM BEHIND THE BROWN DECISION A CONVERSATION WITH JOHN HOPE FRANKLIN John Hope Franklinquot I was born in a village in Rentiesville Oklahoma on the sec 0nd of January 1915 My mother was a schoolteacher and my father was a lawyer They had met in Tennessee where they both were in college and after a period of time they married and moved to Oklahoma It was still lndian territory of course it be came a state in 1907 y father sought to practice law in Rentiesville but in a vil lage that had not much more than a hundred people the practice of law was not a very viable and promising profession And so in 1921 after consultation with my mother he decided to move to Tulsa Oklahoma where he could perhaps attract more clients and make a decent living for us He moved there in February 1921 We were to move in June after school was out after my mother completed her teaching and my sister and I had finished our school year We were all packed and ready to go and then we didn t hear from him And we didn t hear And we didn t hear Eventually after several days my mother read in the newspaper that there was a terrible race riot raging in Tulsa and that there were many casualties She was not certain that my father had survived 2005 John Hope Franklin All rights reserved Dr John Hope Franklin spoke in February 2004 at both a Stetson University College of Law Symposium on Brown 1 Board ofEducation and at a community orum sponsored by the University of South Florida in collaboration with the City of St Petersburg Fla the St Petersburg Chapter of the NAACP and the St Petersburg Bar Association These comments are a synthesis ofhis remarks at the two events including material shared in both presentations and expanded comments from one event or the other The community forum included an opportunity for members of the audience to ask questions and some of those questions and Dr Franklin s responses are included as well Dr Raymond Arsenault John Hope Franklin Professor of Southern History at the University of South Florida introduced Dr Franklin at both events and moderated the discussion at the com munity forum we Ranklm 342 GALLEY3 Created an 4202005 12 32 PM Last Printed 752005 9 12 AM 424 Stetson Law Review Vol 34 After a few days she heard from him directly and he said that he was unharmed but that what he had accumulated and used as resources to bring us thereithe home and his moneyi were gone up in smoke He could barely nd the houseithere was no house He was fortunate in having the good luck not to be harmed himself but he pointed out that he didn t have any money at all and didn t have any resources He had his good health And he was going to spend the next period of time trying to help his clients who had their property destroyed So he sued the city he sued the State of Oklahoma and he sued the insurance compa niesiall to no avail at that time But he was steadfast and de terminedipracticing law in a tent for several months He was able to carry forward a program of trying to get black citizens of the community to rehabilitate themselves develop their self respect self esteem so that they could move forward We didn t get a chance to move to Tulsa until four years later 1925 at which time we were once more together never to be separated except at death I went to school in Tulsa and nished high school there in 1931 I then went to Fisk University determined to become a law yer and to go back to Tulsa and to assist my father I did not rec ognize the fact that l was vulnerable on several accounts not the least of which was the impression that could be made on me by my teachers One young white professor at Fisk University was the chairman of the history department He was only twelve years older than I was I was sixteen and he was twenty eight He made an impression on me from which I never recovered l was so taken up by what he was talking about that I forgot that I had gone to college to study to become a lawyer and soon declared that l was going to be a historian That was the one thing I wanted to do with my life I ve never regretted it and I went on to study history at Fisk en I graduated from Fisk we were still virtually bankrupt back in Tulsa and I didn t have the money to go to Harvard And the same white professor Theodore Currier went down to the bank in Nashville Tennessee and borrowed 500 and put it in my hand and said money should not keep you out of Harvar With that I took the train and went to Harvard and studied there in due course and in five years completed my work with a PhD degree we Ranklm 342 GALLEY3 Created on 4202005 12 32 PM Last Printed 752005 9 12 AM 2005 Behind the Brown Decision 425 I set out on a career of research and teaching writing and trying my best to correct some of the wrongs as I understood them in the history of the United States And so in my rst book The Free Negro in North Carolina1 I sought to set the record straight with respect to the whole question of whether or not all blacks in this country were slaves and whether or not all blacks in the South were slaves And that was not so And I tried to establish that Then I was asked to write a book called From Slavery to Freedom A History ofAfrican Americans I did not want to do it I never had a course in African American history And I had other writing plans other research plans But I went on and was per suaded by thousands of dollars dangling before me So I wrote From Slavery to Freedom It has gone through as you probably know eight editions innumerable printings and is I hope a valuable book that people can use I was not certain in 1935 or 41 when I got my PhD or even in 45 or 46 that I could do more than write history And then I was called upon in 1947 not merely to go to Howard University as a full professor but more importantly to involve myself in an entirely new venture namely to serve as an expert witness in a lawsuit There had already been some lawsuits in which an effort was made to get blacks into institutions of higher education but they had all oundered really without much success But in 1947 the rst year that I taught at Howard Univer sity I met Thurgood Marshall He was in and out of Howard Uni versity helping to shape the new program for civil rights courses at the law school and indulging in his customary social activities with his colleagues former teachers and so forth In the course of our discussion when I rst met him he said I think what we ought to do now is try to get some sense of what we can accom plish by starting out in a single case That case turned out to in volve Lyman J ohnson3 a young black high school history teacher in Louisville and a graduate of Kentucky State College for Ne 1 John Hope Franklin The Free Negro in North Carolina 179071860 UNC Press 1943 2 John Hope Franklin amp Alfred A Moss Jr From Slavery to Freedom A History of African Americans 8th ed Alfred A Knopf2003 3 Johnson v Bd ofTrastees ofU Ky 83 F Supp 707 ED Ky 1949 we Ranklm 342 GALLEY3 Created an 4202005 12 32 PM Last Printed 752005 9 12 AM 426 Stetson Law Review Vol 34 groes who wanted to do some graduate work in history and so he applied to the University of Kentucky The University of Ken tucky responded by rst turning him down and refusing to admit him on the ground that he was not eligible not being a white per son and secondly suggesting that whatever he wanted in the way of graduate studies he could get at Kentucky State College for Negroes Well he had been there He knew better So he de clined to be led into this activity by the of cials of the University of Kentucky And so Lyman Johnson went to the NAACP Legal Defense Fund and said I want your assistance Thurgood Marshall grabbed this with great alacrity and said I will be happy to take the case And he took it Now it involved first proving that Lyman Johnson was ca pable of doing graduate work Secondly that the graduate work that he was seeking was not at Kentucky State College for Ne groes And thirdly pointing out that the only place he could get that training in the state of Kentucky was at the University of Kentucky And so they sued the University of Kentucky Then Marshall asked me to serve as the expert witness in the case mainly that person who was trained in the eld of history and could very carefully examine the two institutions to see the extent to which the Kentucky State College was not quali ed to provide the graduate education that Johnson was requiring I loved that because it was in a sense doing something in the legal area and a chance to do penance and make amends for my ne glect of the legal profession in the rst place I thought it was go ing to be wonderful for me to go out there and do the research and to prove that Lyman Johnson ought to be admitted to the Univer sity of Kentucky and not Kentucky State College which after all was quite an inferior institution by any standards And so I went to Kentucky 1 had iends at the University of Kentucky some of whom I had met in graduate school some of whom I met in Raleigh North Carolina when l was waiting on my own doctoral dissertation They were very enthusiastic about our venture despite the fact that they were teaching at the Uni versity of Kentucky They thought it ought to be open to blacks And so they helped me as much as they could in gathering infor mation I cannot tell you how important it was for me to have the association with the members of the faculty at the University of we Ranklm 342 GALLEY3 Created an 4202005 12 32 PM Last Printed 752005 9 12 AM 2005 Behind the Brown Decision 427 Kentucky And they were saying Here s what we have at the University and here s what they don t have over in the State Col lege for blacks By the time the case opened before Judge H Church Ford the federal judge in Frankfort I was ready I was loaded I couldn t wait to get on the witness stand and say what I thought was the discrepancy between University of Kentucky and Ken tucky State College for Negroes Several members of the faculty of the University of Kentucky and several of cials including the president were put on the witness stand rst to show how the University of Kentucky was not all that good anyway Marshall found they were pleading that they were not nearly as advanced as had been claimed After all they were not that much better and Kentucky State College for Negroes would provide adequate facilities and Lyman Johnson could do just as well going to Kentucky State College for Negroes At the recess following the opening of the trial Marshall said to his colleaguesinot to me I didn t count I m not a lawyerihe said to his legal colleagues I am sick and tired of people carrying on like this and I m going to go back after recess and I m going to ask the Judge iwithout putting any witnesses on the stand at all he was going to ask the judgeil to order that Lyman Johnson be admitted to the University of Kentucky We re just playing just playing games And his colleagues said Are you sure you want to do that He said Yes I m certain That s what I m going to do in this case It s what I m going to do in all cases from here on I m just sick and tired of this 7 of this play acting And so when he went back into the courtroom when the recess was over and it was Mar shall s time to speak he said Your Honor may I respectfully request you to direct a verdict in favor of my client Lyman Johnson and order the University of Kentucky to admit him forthwith This is because the Uni versity of Kentucky has not only not made a case they do not have a case to make And I m going to ask you to open the Uni versity of Kentucky and admit this young man to the Univer sity of Kentucky And Judge Ford said I m going to do just that And then he said I m ordering the University of Kentucky to admit Lyman Johnson forthwith And then he turned to the officials of the we Ranklm 342 GALLEY3 Created an 4202005 12 32 PM Last Printed 752005 9 12 AM 428 Stetson Law Review Vol 34 University of Kentucky and said You ought to be ashamed of yourselves You ve been boasting about the superiority of the Uni versity of Kentucky in every respect Now you come here this morning and say it s not all that good and that the Kentucky State College for Negroes is just as good He said It s patently untrue We all know it And therefore in the next term Lyman Johnson must be admitted to the University of Kentucky Well that broke up the case There I am sitting with all my papers ready to vindicate my having neglected the legal profes sion in the rst place and make amends to my father and all my family for being just a historian and not a lawyer That was a frustration that I could accept in view of the fact that it was a remarkable victory for Thurgood Marshall and the Legal Defense Fund And it helped to shape what the strategy would be from that point on and would make it possible for the Legal Defense Fund to proceed with its long range program of opening up not only the graduate schools not only the colleges but the secondary and elementary schools as well I wanted to celebrate but it was dif cult But I did join them in celebration of this firstiand very notableivictory of Lyman Johnson I can only add this in this case namely that many years later when the University of Kentucky conferred on me an honorary degree the University cited my role in the case of Lyman Johnson as at least one of the reasons why they were happy to confer on me an honorary degree pointing out that I had been instrumental in the desegregation of the University of Kentucky And that was enoughiprobably not enoughibut that was one of the factors that moved them to invite me to receive an honorary degree Lyman Johnson never did get his PhD at the University of Ken tucky but I got my honorary doctorate DR ARSENAULT John Hope perhaps you could talk about the very important years between the Lyman Johnson case and the cases that led up to your second chance to be a lawyeriin 1953 the next time you worked with Thurgood Marshall JOHN HOPE FRANKLIN Well within the next few years the NAACP led by Thurgood Marshall proceeded with its legal ac tions against various states particularly in the area of higher we Ranklm 342 GALLEY3 Created an 4202005 12 32 PM Last Printed 752005 9 12 AM 2005 Behind the Brown Decision 429 education And so they used the experiences that they had accu mulated in an earlier case the Maryland case4 and in this casei the Lyman Johnson caseito press the University of Oklahoma and later the University of Texas to open their graduate and pro fessional facilities to African Americans I make that point because after all the Legal Defense Fund had had some question of how direct and how forcefully they could go in the direction of demanding the desegregation of schools This is before Sweatt against Painter5 lt s before Ada Sipuel against the University of Oklahoma6 So this is the strat egy that was developed for Brown7 and for all the other cases And it s 1 think well to understand that this strategy which would go through Sipuel and through Sweatt against Painter was developed in Kentucky in 1948 And it would become the strategy that would be used even in the secondary school cases Brown and the others in 1953 and 54 The background of this is very important from the strategy that was developed and that would become the strategy in the 40s in the 50s and in the 60s It s very important to understand it as developing that early And so in the cases of Ada Sipuel against the University of Oklahoma and Heman Sweatt against the University of Texas the juggernaut began to roll lt rolled most successfully in those two instances And in 1948 and 1950 the University of Oklahoma and the University of Texas were open wide to the admission of African Americans It ought to be said here that there were some efforts to post pone the inevitable particularly by trying to establish a separate but equal graduate school at the University of Oklahoma the University of Texas and various other places for blacks But they were not successful And in the Sweatt case it became quite clear that there could be no substitute for the admission of African Americans to the regular graduate programs for Marshall was able to establish the fact that it was not merely the training that one got but what distinguished an institution like the University 4 Pearson U Murray 182 A 590 Md 1936 5 Sweatt U Painter 210 SW2d 442 Tex Civ App 1948 reU d 339 US 629 1950 6 Sipuel U Bd ofRegents of U of Okla 180 P2d 135 Okla 1947 reU d 332 Us 63 1 1948 7 Brown U Bd ofEduc of Topeka 347 Us 483 1954 supplemented 349 US 294 1955 we Ranklm 342 GALLEY3 Created an 4202005 12 32 PM Last Printed 752005 9 12 AM 430 Stetson Law Review Vol 34 of Texas law school was the experience of rubbing shoulders with persons who would later be your opponents in the courtroomithe persons who would later be your colleagues in the courtroomi nothing was a substitute for that And so that by 1950 or 51 it was quite clear that in higher education there was no substitute for the integration of races in those institutions So Oklahoma and Texas and later Georgia8 and others be came open at the level of collegiate and professional education And so this is the great triumph in the movementito open up education generally And there was one very very important area left Namely public schools Therefore Thurgood Marshall began to think of the possibility of opening up those schools to everyone This in volved the renunciation of the idea of separate but equal and the embracing of the notion that only one kind of school would be equal and that was one school for all races and that was a big step In 1951 52 and 53 Marshall brooded over these subjects Meanwhile in various states individuals were taking the stepiat rst a tentative stepiand then the bold step of pressing their colleges pressing their states First equalize educational opportunity And then to equalize it not by separate schools but by one school for all children That was a big leap It was taken very tentatively and with some misgian and some criticism really in some quarters But by 1953 Marshall was determined that there was no substitute for integrated schools That there could be no new equality in separate schools So he challenged the very powerful argument that had been set forth in the decision of 1896 Plessy U Fergusonf before the Supreme Court of the United States It es tablished the doctrine that you could have separate facilities and public accommodations and transportation and education without them being the same As long as they were separate they could be equal and as long as they were equal they could be separate That was what the doctrine of Plessy U Ferguson sancti ed by the Supreme Court from 1896 when Plessy was decided and in 8 Holmes U Dunner 191 F Supp 394 MD Ga 1961 Opening the University of Georgia to African Americans 9 163 US 537 1896 we Ranklm 342 GALLEY3 Created an 4202005 12 32 PM Last Printed 752005 9 12 AM 2005 Behind the Brown Decision 431 1953 when we were on the threshold of a very new daring and risky venture before the United States Supreme Court DR ARSENAULT Perhaps you could tell us the speci cs of how you came to become directly involved in preparation of the Brown decision when the cases came together Perhaps you could also talk if you will John Hope about some things you and l have talked about before the notion of con tingency of contingent events of unexpected developments in the historical equation of things happening that you couldn t foresee I m thinking here of course of Chief Justice Vinson JOHN HOPE FRANKLIN Well the cases the ve cases that were involved in what eventually came to be the Brown decision in 1954 had come up from Delaware10 the District of Columbia11 Virginia South Carolina13 and Kansas14 The people who were instrumental in bringing these suits were risking their lives lit erally their lives And they not only lost in many cases their jobs they lost moreitheir churches were fire bombed Their homes were attacked Their children sometimes were set upon It was a very very dangerous situation And I watched all this with interest and I watched it I must say with growing personal involvement At the time I went to Washington DC as the professor of history of Howard University in 1947 I became more and more involved publicly involved in problems relating to segregation and the like With my own personal and professional life I was put in a position constantly of seeing what was going on and I became involved in it in a very special way In 1950 l was invited to be a visiting professor at Harvard University an unheard of development and I accepted it with great pleasure I was honored I had received my graduate de grees there I went up there and I taught for a summer And there 10 Gebluirt U Belton 91 A2d 137 Del 1952 a d sub nom Brown 349 US 294 11 Bolling U Sharpe 347 US 497 1954 supplemented sub nom Brown 349 US 294 The lower court s opinion was not reported 12 Dans U County Sch Bd ofPrince Edward County Va 103 F Supp 337 ED Va 1952 reU d sub nom Brown 349 US 294 13 Briggs U Elliott 103 F Supp 920 DSC 1952 reU d sub nom Brown 349 US 294 14 Brown U Bd of Educ of Topeka 98 F Supp 797 D Kan 1951 reU d 349 US 294 we Ranklm 342 GALLEY3 Created an 4202005 12 32 PM Last Printed 752005 9 12 AM 432 Stetson Law Review Vol 34 were students at the university who were most cordial and acted as though they were interested in my becoming more than a visit ing professor But by the time I had nished teaching there and had gone backiwas brought backito Howard University I real ized that if I was ready to go to Harvard Harvard was not ready for me to come there And so I tried to forget Harvard University In 1952 I was invited to be the visiting professor at the Uni versity of Wisconsin at Madison I went there and taught for a semester and by the end of the semester I was sure that Wiscon sin was not as ready for me as I was ready for Wisconsin And I went away In the summer of 53 I was invited to teach at Cornell Uni versity and at Cornell University I walked into my class one day and students were passing among themselves a sheet of paper I was curious as to what they were doing but I didn t ask them But they were sensing the fact that maybe I was suspicious And in order to make certain that they were straight with me and that they were not doing something that I would frown upon one of them came to me at the end of the class and said You might be interested in knowing what we were doing when you came in He said We were circulating a petition asking the Department of History to invite you to be a member of the department And I thanked him And I walked away And I left knowing that I wasn t going to be invited to Cornell They were not interested in having a regular slot lled by an African American They just weren t ready for it That s ready in quotation marks in case you want to know And it s about that timeiand I m giving you that background in order for you to see how I might be impatient with these peo pleil m just about sick and tired of going around preaching for a call as we sometimes call it And after that I was not going to preach for the cause anymore And it was at the end of that sum mer that I got a call from Thurgood Marshall He asked me what I was going to be doing in the fall I had been at Guggenheim in the rst part of the year to the University of Madison Wisconsin in the second part of the year and Cornell University in the summer When he asked me what I was going to be doing in the fall I told him There s nothing else I m going to do in the fall except go back to Howard University and teach And he said You know what else you re going to be doing I said Oh no we Ranklm 342 GALLEY3 Created on 4202005 12 32 PM Last Printed 752005 9 12 AM 2005 Behind the Brown Decision 433 He said You re going to be working for me And I said Doing what He said Doing what you ve done before You ve got to work and help to shape the argument in a case And then he told me of the re argument in Brown and what I had to do And then as only Thurgood Marshall could put it he threat ened me in a way that I knew that l was going to be in danger if I didn t accept his invitation or his command So I said All right and I decided to join forces with him I joined Thurgood Marshall in the late summer of 1953 as sort of the director of the nonlegal research program trying to provide answers to questions that had been raised by the United States Supreme Court15 These five cases had been argued earlier 15 The Court asked for briefs and oral argument addressing the following questions 1 What evidence is there that the Congress which submitted and the State legisla tures and conventions which rati ed the Fourteenth Amendment contemplated or did not contemplate understood or did not understand that it would abolish segre gation in public schools 2 If neither the Congress in submitting nor the States in ratifying the Fourteenth Amendment understood that compliance with it would require the immediate aboli tion of segregation in public schools was it nevertheless the understanding of the framers ofthe Amendment a that future Congresses might in the exercise oftheir power under section 5 of the Amendment abolish such segregation or b that it would be within the judicial power in light offuture conditions to con strue the Amendment as abolishing such segregation of its own force 3 On the assumption that the answers to questions 2a and 13 do not dispose ofthe issue is it within the judicial power in construing the Amendment to abolish segre gation in public schools 4 Assuming it is decided that segregation in public schools violates the Fourteenth Amendment a would a decree necessarily follow providing that within the limits set by normal geographic school districting Negro children should forthwith be admit ted to schools oftheir choice or b may this Court in the exercise of its equity powers permit an effective grad ual adjustment to be brought about from existing segregated systems to a system not based on color distinctions 5 On the assumption on which questions 4a and b are based and assuming fur ther that this Court will exercise its equity powers to the end described in question 400 a should this Court formulate detailed decrees in this case b if so what speci c issues should the decrees reach39 C should this Court appoint a special master to hear evidence with a view to recommending speci c terms for such decrees 1 should this Court remand to the courts of rst instance with directions to frame decrees in this case and if so what general directions should the decrees of this Court include and what procedures should the courts of rst instance follow in arriving at the speci c terms ofmore detailed decrees Gebfulrt U Belton 345 US 972 9727973 1953 we Ranklm 342 GALLEY3 Created an 4202005 12 32 PM Last Printed 752005 9 12 AM 434 Stetson Law Review Vol 34 that term and when the term was over there was no decision handed down Everybody was waiting in the summer of 53 for the Supreme Court to hand down its decision and it didn t Instead it asked a number of additional questions that were largely histori cal questions And only historians or people trained as historians could answer those questions What were the intentions of the framers of the Fourteenth Amendment regarding segregation in public schools What was the intent of the persons who voted for the Fourteenth Amend ment at the various conventions state conventions state legisla tures regarding segregation in the public schools Did they think that the Fourteenth Amendment outlawed segregation or not Those were questions that both sides the plaintiffs and the defendants in those cases were faced with As to how they would answer I can only say that the members of the legal staff of the NAACP Legal Defense Fund were simply petrified Frightened out of their wits they didn t know what to do And that was why Thurgood Marshall was soliciting not only my support or my as sistance but the assistance of large numbers of others nonlegal researchers in history political science sociology psychology and whatnot Now one of the remarkable things that happened about this time was that theithe Chief Justice of the United States had died Died in his sleep Fred Vinson of the State of Kentucky Now I had met the Chief Justice I m not name dropping here I just had met him My father wantediwanted more than anything in the world in his lifeito be admitted to practice before the United States Supreme Court He didn t have any cases to go before the Court he just wanted to say that he had been admitted to practice And so he was presented by a lawyer from Tulsa who had credentials to practice and the lawyer recommended my fa ther to be admitted to practice before the United States Supreme Court I went that day And I was never more proud than I was to see my father stand up and to see Chief Justice Vinson welcome him to the Court and invite him to bring his cases to the Court My daddy had no cases to bring to the Court but he was welcome there That s the occasion on which I met Chief Justice Vinson He died shortly after that and a new judge was appointed by President Eisenhower A man who had never been a judge He me Ranklm 342 GALLEY3 Created an 4202005 12 32 PM Last Printed 752005 9 12 AM 2005 Behind the Brown Decision 435 had been Attorney General and Governor of the State of Califor nia but not a judge He had no legalino judicialitraining at all That was Earl Warren who now became the Chief Justice of the United States Supreme Court Warren was anxious to bring Brown to some kind of resolu tion and so the case was to be reargued This is when I entered and tried to do something along with a large number of nonlegal researchers From students from Yale to Alfred Kelly of Wayne State University to Herbert Gutman to Kenneth Clark the psy chologist to John Davis the political scientist at City College And so forth We were all to work on these questions and try to provide the answers for them DR ARSENAULT If you could please talk about what it was like to work with Thurgood Marshall and maybe also talk about Earl Warren on the unanimity question JOHN HOPE FRANKLIN All right So I m on the job to work for Thurgood Marshall I started in late August And despite the fact that I had a full teaching load at Howard University the chair of the department was gracious enough to arrange my teaching load so that l was free by noon on Wednesdays every week So I had from Wednesday until Sunday to serve my second master namely Thurgood Marshall And I would leave on the trainino ying in those days I would leave on the train shortly after noon on Wednesday and get up to New York and be there shortly after dinnertime Then I would check in at the hotel we had regular reservations And I would go around the corner to Thurgood s of ce where there would always be a number of other people Lawyers were there Nonlawyers were there All workingitrying to answer these questions As an aside I observed something On one of the trips up to New York I went on a Friday This was before Pope John XXII had through the Vatican Council suspended certain rules with respect to the observance of Friday as a fast day I knew by that time to go to the dining car at the time it opened and l was ready to move in and be seated Well those of you who can remember back in the days when there were diners you know that there were four seats at each table And I would go over and sit at one of those tables The din we Ranklm 342 GALLEY3 Created an 4202005 12 32 PM Last Printed 752005 9 12 AM 436 Stetson Law Review Vol 34 ing car would ll up and people would be standing No one would come and sit at my table No one I didn t worry about that If they wanted to fast by standing up that was their problem And it interested me that at times they would come in and well I didn t rush to eat I took my time And then some people would be eating and then leaving They would vacate the tables across from me And then I would hear the conversations that ran something like this on this Friday afternoon The waiter would come show the menu and ask them what they wanted And I re member one person said Well I can t have meat This is Friday This person was fasting This great Christian was fasting in com memoration of the crucifixion of our Lord Jesus Christ But he couldn t sit by me You see he wasn t that much of a Christian He just was observing the fact that he couldn t eat meat And I suppose that he couldn t sit by black meat anyway Well that showed me told me a lot about where we were and how far we had to go People were that particular about their own lives and were that deep in the most remarkable manifestation of prejudice But I didn t worry about it then I worried about what I had to do when I got to New York When l d arrive in New York either that day or any day Thurgood Marshall was in his of ce working I never saw a man work as hard as he worked He was always there I don t care what time I arrived When I went the next morning he was there And he sometimes most of the time ate a snack at his desk and worked in the afternoon worked into the night And there were people around him like Spottswood Robinson16 Oliver Hill17 Con stance Motley18 and other lawyers And there we wereithe nonlegal research staff in the roomiworking on papers and pre paring seminars to conduct for other lawyers 16 Richard Kluger Simple Justice The History of Brown v Board of Education and Black America s Struggle for Equality 197 5757578 Vintage Books 1975 noting that Robinson later became a federal judge and describing his participation in arguing Brown before the Supreme Court 17 Id at 128 describing Hill as a leader ofthe NAACP legal ght in Virginia and his role as the rst AfricanAmerican to serve on the Richmond Virginia city council 18 Id at 273 638 760 describing her as havingjoined the staff ofthe NAACP Legal Defense Fund in 1945 as a law clerk passing the bar in 1948 and staying at the LDF for twentyfour years she was a member of Marshall s inner circle and later became the rst AfricanAmerican woman to serve as a federaljudge me Ranklm 342 GALLEY3 Created an 4202005 12 32 PM Last Printed 752005 9 12 AM 2005 Behind the Brown Decision 437 And it was an enormous task For we did not know really where to turn at rst except to do research And we all worked and did the research Worked in the Archives worked in the li brary worked in the Supreme Court library Trying to get some view some notion of what the framers of the Fourteenth Amend ment had in mind with respect to segregation in the schools And what the other persons participants legislators and constitu tional authorities had in mind with respect to this question of segregation in the schools Very very dif cult Very veryivery nearly impossible to find out what this was And Thurgood never permitted us to speculate on how the case was going to come out Not ever Not ever We were not al lowed to mention the fact that the judges are going to do this or the judges might do this No no no You just take that away Just work and try to develop an argument that would make it impossi ble for the judges to do anything but decide in favor of Linda Brown and the others in the case And so that s the way it was Sometimes after working all day and into the evening around midnight he would say How about a fifteen minute break And I would break away to the hotel I knew that if I was going to work the next day I couldn t work all night But he could and did He would be there in the morning when I got there I never arrived at the of ce before him and l was always there early in the morning We had to write papers We had to run seminars We had to do various things to shore up the lawyers and their arguments to provide them data to give them information about the intent of the framers of the Fourteenth Amendment to the extent that we could nd that information and the other people who were in volved in ratifying the Fourteenth Amendment I m not at all cer tain that we succeeded in providing grist for the mill as it were or tangible hard information about the intent of the framers of the Fourteenth Amendment But I think we did something that was very important We gave the lawyers a sense of security in dealing with the philosophical problems You could see that self con dence rising in the lawyers from week to week They got to the point where they could quote Thad we Ranklm 342 GALLEY3 Created an 4202005 12 32 PM Last Printed 752005 9 12 AM 438 Stetson Law Review Vol 34 deus Stevens19 on the oor of the House of Representatives Or they could quote Charles Sumnerz0 on the oor of the Senate And they could improviseat least improviseiwhat these members were thinking and saying and doing And so we had the feeling that even if we didn t nd the smoking gun as it were with re spect to intent we gave the lawyers a sense of con dence that made them stand up tall when they got to the arguments in the Supreme Court And that they would be able to do as well as the opposition the defendants Meanwhile not only were we trying to nd information on these subjects but we were also trying to find out whether or not the opposition was doing any kind of research and studying what we were doing And we didn t nd that they were doing it We even had the notion that if there were papers or maga zines or volumes in the Archives or in the Library of Congress or in the State Department that we might just check them out and keep themijust in case the other side might want the same ma terials The astounding thing is that we never found that the opposi tion requested any materials that we knew they would need to discuss these questions of intent or whatever the legislatures and the Congress were thinking and doing and saying about these matters They never did And that persuaded usiand this is the thing Marshall would never let us doito think that they weren t working the way we were working and that we could mow them down with information that we had and they didn t have and that we had and we were going to try to keep them from getting But we later realized that they were not interested in that kind of research and effort That John W Davis21 and his team were going to wing it as it were They were going to make these eloquent statementsihe would even shed a few tears in his ar guments But he was not going to bother with the kind of research 19 Id at 46747 describing Stevens as a founder 0fthe Republican Party and a driv ing force behind Reconstruction legislation in Congress in 1866 20 Id at 50 referring to Sumner as Thaddeus Stevens comradeinarrns through the early stages of the Reconstruction drive and as the director of the legislative ght leading up to passage 0fthe Civil Rights Act of 1875 21 Id at 5257529 describing Davis s background as a lawyer and statesman includ ing service as Solicitor General 0fthe United States Ambassador to England and as hav ing participated in more cases heard by the Supreme Court than any other lawyer in the twentieth century we Ranklm 342 GALLEY3 Created an 4202005 12 32 PM Last Printed 752005 9 12 AM 2005 Behind the Brown Decision 439 that we were doing And so it was sort of one sided in that re spect But what is I think important here is to recognize the fact that the strategies in this case as well as in succeeding cases would be shaped byinot so much by the law as by the prospect offbeing able to extend the law beyond the courtroom and into the community So that all along I think the Court was thinking about the consequences of Brown And all along the legal staff had to think more in terms of the consequences of Brown As we shaped the case we were shaping the post Brown strategies and approaches And in that sense I think that the Legal Defense Fund was in a position to proceedito participate ininot only in Brown 122 but in Brown 1123 and in subsequent years DR ARSENAULT I wonder if you could tell the story of your reaction when the decision came down on May 17 1954 Do you remember the speci cs of that period JOHN HOPE FRANKLIN Well we were not ableithat is the nonlegal research staff was not ableito hear the arguments be fore the Court We didn t rate that high You can imagine the demand for tickets for the people who wanted to hear the arguments The lawyers of course got tickets and their associates got tickets But we didn t rate high enough to get tickets And so we didn t get to hear the arguments They gave us copies of the briefs and we were pleased espe cially if they had a footnote in one of the briefs or some reference that might have indicated that we had contributed something to the writing of the briefs But we didn t hear the arguments When the arguments were made in December of 1953 the lawyers were just told rest assuredly that the only thing they could do was to wait until the spring of 1954 Perhaps toward the end of that term of the Supreme Court And so I suppose we thought perhaps the Court was going to hand down the decision in June That s the last week before the Court breaksibefore it takes the holidayifrom July 1st to Octo ber 1st And so we really weren t ready for the decision And on the afternoon of May 17 1954 l was sitting in my of ce My wife 22 347 US 483 1954 23 349 US 294 1955 we Ranklm 342 GALLEY3 Created on 4202005 12 32 PM Last Printed 752005 9 12 AM 440 Stetson Law Review Vol 34 who was a librarian at Springarn High School called me and said Have you heard what the decision is I said No She said Well the Supreme Court handed down its decision today And I said What was the decision And she said Linda Brown can go to an integrated school in Topeka Kansas And I got out in the street I m sure And I think it can be said that there was dancing in the streets in Washington DC and a number of other places We felt for the moment that maybe the long and hard work in which we had been engaged was worthwhileithat at long last we had come to the end of a very wonderful roadiand that the Su preme Court had declared that separate schools are inherently unequal and therefore unconstitutional It was a sweet momen tous historical decision And if we had just a fraction to do with bringing about that decision we could not be anything but grate ful for it And we all were immensely grateful lmmensely moved I don t know how many of you have seen that marvelous pic ture of George Hayes and Thurgood Marshall and James Nabrit standing before the Supreme Court that day arm in arm obvi ously just ecstatic with joy It was a wonderful occasion And although I was not there and could not have been there I nevertheless rejoiced with them in this triumph of which we all felt we were a part DR ARSENAULT John Hope can you remember when you ac tually read the decision and had a chance to react to the fact that the decision was unanimous Did that shock you Did you know anything about Earl Warren s intent behind the scenes to make sure that the decision was unanimous JOHN HOPE FRANKLIN No I did notil did not know any thing about that l was surprised that the decision was unani mous Despite the fact that Marshall would not permit us even to speculate whose sideiwhat sideiwhich justice was going to be 24 Behring Center National Museum of American History Separate Is Not Equal Brown v Board of Education httpMamericanhistorysiedubrownpdfunit328 photographhayes20marshall20nabritpdf accessed July 21 2004 George Hayes was general counsel at Howard University Kluger supra 11 16 at 578 Nabrit developed the nation s rst lawschool course in civil rights while on the faculty at Howard Id at 127 The two men shared the oral argument in Bolling U Sharpe the District of Columbia case consolidated with Brown Id at 578 we Ranklm 342 GALLEY3 Created an 4202005 12 32 PM Last Printed 752005 9 12 AM 2005 Behind the Brown Decision 441 on that sort of thing we all guessed Maybe it would be Felix Frankfurter He was so technical and so particular we thought he s just got to be cranky and he wouldn t go along As a graduate student at Harvard 1 audited some of Frank furter s courses And when he was appointed to the United States Supreme Court there were a bunch of us who wanted to see him on his last day lecturing We were going to be there witnessing history And sure enough we were there when Professor Warren came down and informed him Frankfurter was sitting in the front row He was harassing a student who was trying to make a report He wouldn t let the stu dent say two words before he would interrupt him Frankfurter was short and very feisty and an extraordinary genius But he was hard on the students And then when Warren came downiwe saw Dr Warren come in the door in this amphitheater And he was looking around He was looking for Frankfurter We suspected that he was coming with a message that Frankfurter had been confirmed by the United States Senate to be on the Supreme Court And so we justiwe held our breath really And nally Warren got down to him and handed him a note And after that Frankfurter really didn t bother that student anymore He just sat there And then when the student nished he got up to make his farewell ad dress We were all sitting there listening to his farewell address That s a long way of saying that we already knew something about Justice Frankfurter And we were fairly certain that he was not going to go along Not that he was in favor of segregation but he was just that technical you know We knew that he was We didn t think it would be unanimous But it was And I didn t know anything about the effort the very careful effort that Chief Justice Warren was making to persuade his col leagues that the decision had to be unanimous I would learn that much later And I think he was right it had to be unanimous You couldn t have a divided court on something so momentous and so delicate and serious It would be hard enough with a unanimous decision And to have one that was split would be disastrous Tragic And so we just celebrated and were awed by the unanimity of the Court But we did not know that unanimity would not be me Ranklm 342 GALLEY3 Created an 4202005 12 32 PM Last Printed 752005 9 12 AM 442 Stetson Law Review Vol 34 enough and that the decision would be attacked before it was n ished And it was attacked every day in every way by such large numbers of people Not all of them in the South but most of them in the South condemning the United States Supreme Court and calling for utter and complete resistance Those of you who are old enough to remember the late 1950s know how dif cult it was to open up even one all white schoolhouse even to one young black person And so the decision was a great one but it was not univer sally well received And that happened on the 17th of May 1954 And I m afraid that it continued for decades and decades and dec ades DR ARSENAULT I don t want us to end before you talk for just a minute or two about the relationship between Brown I the deci sion of May 17 1954 and what we sometimes call Brown 11 the implementation decision which came more than a year later on May 31 1955 Can you recall your sense of things Did you expect an implementation decision that would de ne what the rst deci sion really meant and what the timetable would be And when the decision came down did you think that perhaps in a year or two there might actually be a desegregation of the public schools in the South particularly in the Deep South JOHN HOPE FRANKLIN Well I can only say that I thought that the Supreme Court decision was a Supreme Court decision It had to be obeyed I didn t knowil didn t knowiyou could defy the highest court in the land I didn t know you could turn your back on the Chief Justice and tell him to go jump off the pole or something I didn t know that I thought you had to obey the law And that was not merely because I was the son of a lawyer but also because I had studied constitutional law myself I thought judge made law was as good as any other kind of law and that you wouldn t dareiyou wouldn t dare defy the United States Supreme Court I was mistaken Bitterly mistaken Tragically mistaken Completely mistaken And I stood in awe when the Southern Manifesto was issued that year That the other expressions of de ance and rejection could be so absolute and so disrespectful So I didn t eXpect there to be this kind of resistance Not because I thought they were in we Ranklm 342 GALLEY3 Created an 4202005 12 32 PM Last Printed 752005 9 12 AM 2005 Behind the Brown Decision 443 capable of resisting but because I thought the American people had too much respect for the law And I simply was mistaken DR ARSENAULT Do you think that might re ect the fact that you had lived in Oklahoma and in Washington DC If you had spent most of your life in Mississippi or Alabama perhaps in the Deep South would you have been more pessimistic And can you also comment on how the Court came up with its doctrine of with all deliberate speed whether there was any kind of deal made in the rst decision that the justices would wa ter it down in the second decision Give with the right hand and take back with the left JOHN HOPE FRANKLIN Well I don til don t really know I do have the feeling that the Court in May 1954 expected its deci sion to be obeyed I think that Chief Justice Warren wanted to believe that the American people were law abiding He might have had some misgivings about it but having been elevated to that exalted position his rst time ever to be a judge I think he felt that the weight of his position was so powerful that you couldn t do anything but obey him It must have comeil don t know whether it came as a greater shock to him than to me as he watched what was happening to his own decision and how disre spectful the people were and how much pleasure they took how they vowed to reject it One man said I would give my life before I let one black child into the school where my white child is Those were pretty strong words Now if there was some misgiving on the part of members of the Court I would say that it was on the part of the Chief Justice There might have been some who believed that well we didn t have to make some concessions or some effort or to modify or to mollify or to water down the unanimous decision with its un equivocal stand on segregating schools But if that was to happen it was to happen later Now there was enough though By the time what we call Brown II was handed down in May 1955 there was enough eX perience with Brown I that they knew it wasn t working It wasn t working Not well There was this blatant opposition to the Court And so the Court made out some specifics but when it said as a general rule that the enforcement of the law should go with all deliberate speediwith all deliberate speedithat could have me Ranklm 342 GALLEY3 Created an 4202005 12 32 PM Last Printed 752005 9 12 AM 444 Stetson Law Review Vol 34 meant go slowly now stopping for a while and not doing too much of anything What is deliberate speed lt s whatever you want it to be It s as slow as you want to go I think that gave the southern states and their leaders a kind of breathing spell which they used to be more creative than ever in eluding and avoiding enforcement of the law DR ARSENAULT One nal question before we throw it open to questions from the audience You know we ve been talking about the Brown decision The declaration by the Court in 1954 that de jure segregation was un constitutional and illegal In other words you could no longer seg regate school children by law The decision applied quite specifi cally to the South where the schools were segregated by law But of course we know that in many parts of the United States the schools and other institutions were segregated de facto by custom in fact But I wonder if you could just speak for a moment or two about your experience in 1956 when you accepted the chairman ship of the history department at Brooklyn College And perhaps what that told you about the dif culty or the complexity of the problem that Americans faced in terms of racial prejudice JOHN HOPE FRANKLIN The decision in Brown was handed down in 54 Brown II in 55 I went to Brooklyn College as chair man of the department in 1956 l was confused On the one hand here is Brown Here are Brown I and II Brown said something about desegregation in the public schools But here is the experi ence I had which showed the laws of the South with respect to desegregation and they weren t doing anything about it When I was made chairman of the history department of Brooklyn College it was an appointment so noteworthy that it made the front page of the New York Times My picture you know on the front page of the New York Times lmaginei imagineil just wanted to be a teacher I just wanted to teach school That s all You know there are all kinds of things that can be on the front page of the New York Times But here I am front and center on the New York Times Okay So I went to New York with my wife and my little boy he was four or ve years old And we got a place to stay temporar we Ranklm 342 GALLEY3 Created an 4202005 12 32 PM Last Printed 752005 9 12 AM 2005 Behind the Brown Decision 445 ily An apartment But we wanted to live in a house and I wanted to walk to work So not long after I got there we decided to live down near Brooklyn College It s one of the best residential sections of the whole city That s where we should be And I could walk to work And I went to the real estate dealers assuming that they were going to cooperate I couldn t get a real estate dealer in the entire city of Brooklyn to show me a houseito show me one houseinot one I then realized that the real estate dealers were not going to show me a house There were houses for sale So I was going to get one myself And so I began reading the New York Timesithe want ad section the classi ed section We began to drive through the streets especially down where we wanted to live And we finally found the house that we thought we d like to get And we couldn t nd a loan First my lawyer said Do you have any insurance I said Yes I have insurance I have a 25000 policy And I told him it was with a certain company He said Well our struggle is over They just appropriated a hundred million dollars to loan money to their clients to buy houses So you can go out and celebrate And he said What s the name of your insurance agent I gave it to him The next morning my insurance agent called me and said John Hope I hope you understand We ve done a lot for you peo ple I said What do you mean you people He said Well we ve just given so much We ve done so much for them I said You haven t done anything for me So he began equivocating on that But we just can t let you have the money he said You re skipping some blocks He said You live on Eastern Parkway and you want to go all the way down to New York Avenue He said That s a long way I said No no And he replied There s no black between Eastern Parkway and ihe named the street You can t go down there You have to take one step at a time he said But we ll try to get your money for you I said From where He said Well maybe another company we Ranklm 342 GALLEY3 Created an 4202005 12 32 PM Last Printed 752005 9 12 AM 446 Stetson Law Review Vol 34 I said Another company I said That s the company I ought to be insured with I said As of this moment you can consider my insurance policy canceled with your company Canceled And that was the beginning It s a long story I don t want to go through it As I said in my own autobiography I could have written a book while I was trying to nd a place for my family to stay In any case we nally found a house There s one thing I want to say after we couldn t get the loan from the insurance company my lawyer tried to get it from the bank There was not a bank in New York City including Harlem that would lend the money to us And I m not talking about some thing that would shake the national debt We re talking about 10000 Something like that Money I did not have I finally was able to get it because my lawyer s father was on the board of one of the banks And that s the way I got it Not through any merit but through knowing somebody who knew somebody Well that was the way the areaithe neighborhoodiwas kept white you see When we moved in there was not a black person in the school when my son went to school And not only that but they tried to run us out of the neighborhood after we moved in by harassing our son SiX years old I don t see how adults can hound a little boy That takes talent That takes some thing evil But they hounded him on his bicycle and when he walked down the street My wife dropped her career She said I have to be home for him when he comes in the afternoon I can t be away He s being treated like this I ve got to be here when he gets here to give him some kind of security And they harassed us by calling on the telephone at night during the night And by doing everything to make it unpleasant Not a person on that block not a person in that part of town didn t know who I was They had to know be cause I had been in the newspapersithe newspapers on the front page I had been on television and all these things It didn t mat ter We ve got to keep this neighborhood white And this is up North Up North When everyone talks about the South I say Well it s bad but the worst racial experiences I ve ever had were up North Up North We don t want to get snow down here either by saying we Rankin 342 GALLEY3 Created an 4202005 12 32 PM Last Printed 752005 9 12 AM 2005 Behind the Brown Decision 447 that But it s bad down here too It s worse than some places up North So if you can t find a place to live you can t put your kids in schoolibut they keep that neighborhood white and they keep the schools white And they keep the schools segregated They keep the schools unequal because they were not going to do as much for the ghetto schools as they do for the other schools They re simply not going to do it And that s what Warren had in mind when he said segregation is inherently unequal It is inherently unequal DR ARSENAULT I wonder if you can just say a word or two about that point You ve told me many times that as bad as it was in Brooklyn for you and your family the experience of Brook lyn College was quite different And of course that was kind of a catapult for you to eventually go to the University of Chicago JOHN HOPE FRANKLIN I certainly don t want to say that Brooklyn College was anything but cordial to me After all I was minding my own business at Howard University thinking I would never get a chance to leave there And all of a sudden I was invited to be not only a full professor at Brooklyn College but to chair the department at Brooklyn College and l was received warmly and cordially And indeed by the end of my second year I was regarded as a father gure not merely to the students but to most of those in my department who came to me for guidance adviceifor everythingiand who had me speaking at the funerals of their departed beloved ones and all the rest of it I had the most wonderful fruitful marvelous time as a professor at Brook lyn College But these people that I mentioned earlierithey were not at Brooklyn College They were with me in the neighborhood It was one of the most attractive communities in the cityiin the bor ough But I nally nally settled down and was fairly fairlyil think fairlyiwell accepted even by my neighbors DR ARSENAULT John Hope thank you so much for your re marks and for honoring us with your presence we Ranklm 342 GALLEY3 Created on 4202005 12 32 PM Last Printed 752005 9 12 AM 448 Stetson Law Review Vol 34 Dr Franklin responded to several questions from the audience at the community forum including the following25 QUESTION Do you know of anyone in this nation who is black and who was against the forced busing of the schools and who argued that Negro schools were not producing scholars JOHN HOPE FRANKLIN Yes I know some African Americans who were opposed to the desegregation of schools who argued with some force that black children going to predominantly white schools would not get the kind of training or education they should get that there was low expectation of them And there fore they were not surprised that the children didn t perform well They d just let them sit there and not perform well There were black parents who felt that their children s self esteem would be destroyed by their going to predominantly white schools So yes I know a number of people who were like that But that s unfortunate What is also unfortunate is that a number of black teachers lost their jobs because they were regarded as redundant or not necessary because the schools were being united being desegre gated And the costithe pricegof desegregation is immeasurable lt s considerable It s a question of whether or not you believe that that s the only way to destroy the poison in our society As bad as it is segregation is poisonous Absolutely poisonous And if you don t have good intentions with desegregation it can end up dis astrous for a generation But the antidote to that is if you re going to send your chil dren to a desegregated schoolil don t care how good it isi parents have the responsibility themselves of making certain that the school lives up to what it s supposed to do You can t send your kids to any kind of school segregated or not without your per sonal and deep involvement in those institutions And if you re not involved then if there s a school where you ve got one little black child or the school has fty black children and one white child it s not going to be right unless the parents are getting in volved and making certain that their children are given the right 25 These are edited versions ofthe questions re ecting the essence ofthe questions asked rather than repeating the questioners statements ofpersonal introduction we Ranklm 342 GALLEY3 Created an 4202005 12 32 PM Last Printed 752005 9 12 AM 2005 Behind the Brown Decision 449 kind of treatment all the way around That their children will not have their self esteem destroyed by vicious teachers who think they can t do anything and who neglect them because they feel their responsibility is to train the white children and leave black children without any training By the same token we must be very very diligent and very very careful that our black students do what they re supposed to do Parents have to do that You can t leave it all up to the schools QUESTION Are the opportunities equal in Florida And if not how do we get there How do we make it equal JOHN HOPE FRANKLIN I hope you know that I m not a spe cialist on Florida education While I have some views some opin ions about it they re not based on sound research study and per sonal knowledge I am strongly of the opinion that af rmative action whatever it is has to be used with insight and discretion And it must not be regarded as a kind of make believe shift to elude or evade equality in every respect Af rmative action let me say is not new We ve always had it But until recent years it has never beeniwell blacks have never been the bene ciaries of affirmative action When I was a student when l was graduating from high school any white child could go to the University of Oklahoma but I couldn t You know any white child But not me And they were enjoying affirmative action They were enjoying preferential treatment All the other things you want to say that describe peo ple who oppose af rmative action they have been enjoying af rmative action all along There is nothing new or strange about it The new and strange thing about it is it gives blacks the oppor tunity to get training And they re entitled to have that training that opportunity just like anyone else is And I don t know whether Florida s governor is seriously in terested in making certain that every child in the State of Florida has an equal opportunityil m not sure If that s what he meansijolly for him Good But if he has something else in mind in his af rmative action then I d raise my eyebrows at least And maybe my voice too we Ranklm 342 GALLEY3 Created an 4202005 12 32 PM Last Printed 752005 9 12 AM 450 Stetson Law Review Vol 34 QUESTION Dr Franklin do you have any concerns or ideas about how President Eisenhower s decision in 1957 to nationalize the National Guard in Arkansas may have led to the successful implementation ofBrown I and Brown II JOHN HOPE FRANKLIN Well I don t think there s a question about it that when the City of Little Rock was opposed to admit ting African American students to Central High School and the whole city was driven by the controversy the only way it could be settled was for the President to intercede with the National Guard and to bring about some semblance of order if not peace in the city And to that extent I think he was probably right in doing it I hate to reach that conclusion because I think that the public school is no place for the National Guard On the other hand that s an expression of what I feel is death bed repentance on the part of President Eisenhower who had said earlier that the greatest mistake he made in his entire life was to appoint Earl Warren to be the Chief Justice of the United States Supreme Court So he was trying to keep the peace in Little Rock if noth ing else QUESTION As a parent and teacher I think of the problems that your son had to go through at such an early age How did you prepare him I teach eighth grade But children the things that happen to themiin the Ruby Bridges case in which this one little girl the whole year was in school by herself and the students going to Lit tle Rock and the horror and the terror that was put upon themi what did you say to your son to make him understand Was it important enough for him to go through the things and for our children to have gone through those things in the past Was it important enough to be terrorized for the results that we ve got ten What did you say to your son JOHN HOPE FRANKLIN Unfortunately my wife probably said more to him than I did She s no longer living I don t know all the things she said to him But you know we held his hand And I say that figuratively but you understand what I mean We held his hand And we gave him a sense of security That s what my wife did She wasn t going to work if she had to come home to a boy who had been destroyed by the neighbors we Ranklm 342 GALLEY3 Created on 4202005 12 32 PM Last Printed 752005 9 12 AM 2005 Behind the Brown Decision 451 Now fortunately she could afford not to work because I was working And I could make a living for the three of us But we as parents have to make sacri ces to protect our children And sometimes those sacrifices are great They ve got to be made I don t know what elseiwhen I say hold his hand you know I mean that in a gurative sense of giving him the strength to carry on and assuring him that he is somebody When I was six years old and we were thrown off a train and l was crying my mother told me You re as good as anybody there on that train and don t you waste your time crying You use your time to make certain that you prove to them and to the world that you re as good as anybody else My mother told me that when l was six years old And we certainly told our son that when he was six We told him even more because we were able to provide him with opportunities with alternatives and with opportunities that gave him strength and understanding of what the problem was And I say today I m proud of him the way he stands up tall He s six four anyway But he stands up tall and tells people off when ever there s a problem that he confronts He has the same atti tude position that we had when he was six And he has it now And he s fty one DR ARSENAULT I would like to recommend to you a book that John Hope edited with his son that his fatheriJohn Hope s fa therihad written26 It is a wonderful book about his father s life as a black lawyer an extraordinary story John Hope I wish you could talk about your sense of Thur good Marshall in his nal years about his sense of regret and sadness and how he seemed to experience a kind of bittersweet quality as he looked back over his life and career and the Brown decision JOHN HOPE FRANKLIN After Marshall went on the Court I had very little contact with him except by telephone and by corre spondence I shall never forget when he was writing the opinion in what turned out to be his dissent in the Bakke27 case He called 26 Buck Colbert Franklin My Life and an Era The Autobiography of Buck Colbert Franklin John Hope Franklin and John Whittington Franklin eds La St U Press 1998 27 Regents ofthe U ofCal l Bakke 438 US 265 1978 we Ranklm 342 GALLEY3 Created an 4202005 12 32 PM Last Printed 752005 9 12 AM 452 Stetson Law Review Vol 34 me one day and asked me to give him some references to start some research on some matters He didn t tell me what he was working on I simply deduced later that he was working on the dissent when I read his dissent and I knew his line of reasoning But when I called him and gave him the references back he said Thank you I said Why are you so glum I said Why talk like that He said Well if you knew what I knewiif you knew what I knowiyou d be glum too And the decision came down in the Bakke case that we now embrace But when the Bakke case was handed down we were not very happy with the decision the ma jority decision of the Bakke case We were not happy about it at all And Marshall was not happy at that point One other point When he was invited to address the bar as sociation at its meeting in Honolulu in 1987 he sent me a copy of his speech a manuscript copy of his speech And he said What do you think of it And what should I do about it Is it all right And should I modify it in any way I read it And I sent it back to him I said Man go This is it This is a very good speech I wish I could be there to hear you de liver it In that speech Marshall had said that the Constitution was a awed document8 And it caused an uproar that he would dare as a member of the United States Supreme Court say that the Constitution was itself awed Well we knew it was awed It s full of aws It s full of ra cism It s full of all kinds of things that are un American But you would have thought that he had held it up and burned it in public or something like that because of the way the criticism came down on him Now by this time Marshall was a different man from when I knew him He wasiin his younger daysinot only handsome but gregarious and open in his personality and full of fun A hard talking cigarette smoking whiskey drinking kind of person A bon Uivant He loved life Enjoyed it 28 Thurgood Marshall Remarks Remarks of Thurgood Marshall at the Annual Seminar ofthe San Francisco Patent and Trademark Law Association Maui Haw May 6 1987 available at p quot 39 39 ispeechhtm accessed Oct 23 2004 we Ranklm 342 GALLEY Created an 4202005 12 32 PM Last Printed 752005 9 12 AM 2005 Behind the Brown Decision 453 But there are several things The first of which is that life on the Court is at best reclusive You have to beiyou can t go run ning around with all your buddies or hang out with the crowdi you can t go duck hunting I suppose You ve got to go and study law and write your opinions and talk with your clerks and get things straight So it s a rather lonely life Rather lonely And he wasihe got lonely Not only that but I should have said that his wife was dy ing when he was working on the Brown decision He married again and had two wonderful sons that gave him a little light late in his life In addition to being reclusive as a result of the kind of court that he had to sit on he was also standing on the sidelines look ing at all that was going on in what we might call aggressive ac tionsgdemonstrations sit ins the Freedom Riders the deliberate violations of law on the part of people to get things going And you know the more that happened the less people thought of Brown against the Board Sweatt against Painter McLaurin against Oklahoma and so forth They were just marching and jumping up and down and singing and carrying on and not re membering the sacri ces that people like Thurgood had made He risked his life daily All over the South So did Charles Houston30 So did Leon Ransom31 So did so many others like Bob Carter and Constance Motley32 They all risked their lives within the framework of the law pleading for justice and so forth Now they re almost forgotten He s almost forgotten Nobody is think ing about him Everybody is thinking about Martin Luther King and his crowd No denigration for what they were doingiwhat the King people were doingibut what I m trying to say to you is why Thurgood Marshall felt that life had passed him by whether he had been forgotten and sort of thrown away 29 Charles Lane Scalia Travel Sparks New Questions About Recusals Washington Post A2 Feb 9 2004 available at 2004 WL 55837390 describing socializing between Justice Scalia and Vice President Cheney which included a duckhunting trip at a time when Mr Cheney was a named party in a matter before the Supreme Court 30 Kluger supra 11 16 at 1057118 describing Houston s upbringing and achieve ments including his election to Phi Beta Kappa and selection as the rst African American to serve on the staff of the Harvard Law Review 31 Id at 127 introducing Ransom as a member 0fthe faculty at Howard University Law School having graduated rst in his class at Ohio State 32 See supra 11 18 introducing Motley as part of Marshall s circle we Ranklm 342 GALLEY3 Created an 4202005 12 32 PM Last Printed 752005 9 12 AM 454 Stetson Law Review Vol 34 And I ll never forget that interview I saw with him I just saw it on television I think he was just about to retire from the Court and somebody asked him why he was retiring He said I am just old I m old That s what he said So let me alone I m old And that s the kind of life he led as he approached his own end It wasn t a pretty picture at all And so as Brown goes down through the decades the man who s probably more important more responsible for shaping it and bringing it about in the first place was a man who didn t en joy what happened after Brown And I think that s one of the con sequences of Brown So unfortunate and somewhat tragic But that s the way the ball was bouncing in those days And I think that by the end of his life Thurgood Marshall wasn t at all certain that what he had done was a signi cant contribution de spite the fact that it was probably one of the most important con tributions that any lawyer had made to the development of our society QUESTION After fifty years we ve had a lot of court supervi sion intervention and desegregation In the last few years the courts have been moving towards unitary orders and withdrawing their active supervision of desegregation plans Can you look back and give us your impression as to the experience of on a general ized basis the African American student both educationally so cially and otherwise in this fty year period Society certainly has been served in a certain way by desegregation But what has it done to the student experience JOHN HOPE FRANKLIN Well we ve had pluses and minuses Some things that happened were good and some things that hap pened were bad I think it s rather remarkable that we have so many upstanding achievers outstanding achievers in the black community that they have been able to weather the storm as it were and to be very positive in their movements toward the fu ture and their own achievements I think it s really remarkable On the other hand it s not so remarkable that there are more black men in the penitentiaries than there are in colleges It s not so remarkable that millions and millions of young black men nd life in this country empty and not worth living They live on the edges in the lower economyithe illegal economy of drugs and the we Rankin 342 GALLEY3 Created an 4202005 12 32 PM Last Printed 752005 9 12 AM 2005 Behind the Brown Decision 455 like And it s not very wonderful that they are enshrouded in a sense of hopelessness and helplessness And it s not very wonderful when we see some comments about equality and then we argue that this country is color blind or is moving in a color blind direction when as a matter of fact we re not And when the victimsithe most serious victimsiof this movement are young black men We see it in St Petersburg We see it in Birmingham Ala bama We see it everywhere And that is a negation of everything we stand for Now if we believe that people are equal and that everybody has the same chance and there s no inevitable fallibility in human beings as such then how do we explain the lopsidedness of our society particularly when it comes to the disadvantages under which the majority the vast majority of black men labor And not a small number of black women labor too But this is one of the greatest tragedies of America And I for one simply am appalled by the fact that in 2004 we have vast numbers millions and millions of Americans who feel that life is not worth living and who feel hopeless and helpless Where is the equality Where is the equality of opportunity Where is the decency of this country Where is the caring of peo ple in this country We don t have to go to Iraq to do some mis sionary work We ve got plenty to do here I m not an isolationist at all Don t misunderstand me I ve spent much of my life trying to spread the Good Word all around the world I ve been around the world many times So I m not an isolationist But I do think that some of the tension talent and resources that are put in other parts of the world could be put here It would make us much stronger You knowireaching out to other placesiif we could say that we as Americans stand together work together and improve ourselves together and then we want to help the rest of the world And that s not happening QUESTION Dr Franklin in light of the widely publicized achievement gap between African American children and Cauca sian children do you see any merit within the thoughts of those African Americans who had concerns about desegregating schools we Ranklm 342 GALLEY3 Created an 4202005 12 32 PM Last Printed 752005 9 12 AM 456 Stetson Law Review Vol 34 JOHN HOPE FRANKLIN No I don t see the merit What I do see is the mistakes that we made when we moved away from seg regation and toward the desegregation of our institutions The merit is not in going back or holding back and becoming and remaining segregated The merit is in making desegregation work Making desegregation work That s where the merit is We didn t work to do it We haven t worked to do itinot hard enough We haven t pressed our government We haven t pressed our communities We haven t pressed our educational systems to stand up and do what they re supposed to do We can t say we re going to run back to our segregated insti tutions and think that that s going to get us anywhere I don t think so I have not lived all these years to want to go back I want to go forward I want to improve what we ve got I want to make over what we ve got if necessary But I don t want to go back to the ghetto I don t want to go back to segregation I don t want to go back to Jim Crow Any of those things And if you feel somewhat insecure in that that s because you re not seeing what an optimum condition could eXist so far as desegregation is con cerned so far as equality is concerned We ght for equality and not for some few crumbs from the table