Barbara was working with Bob at the time preparing for trial in a school segregation case against the Springfield, Massachusetts, public school board, so she was completely up to date on the case law I would need to know for the appeal. She told me to read Bob’s latest Supreme Court win in the Prince Edward County, Virginia, school case along with two other cases: a Long Island, New York, district court win and Bell v. School City of Gary, the Indiana case that was lost at trial and on appeal before the U.S. Court of Appeals for the Seventh Circuit on October 31, 1963. After reading those decisions, I reread the 1954 Brown v. Board of Education decision as well as the very weak Supreme Court follow-up decision in 1955, which was called Brown II. That second decision provided instructions to the federal trial courts about how Brown should be applied, signaling that the NAACP’s work would not be easy, as the justices only required school boards to desegregate with “all deliberate speed” and instructed judges to be respectful of the problems that Southern school boards faced. Translated into lay language, the Court said, No rush. Barbara was a big help. I was filled with doubt. Although I didn’t fully understand the scope of Bob’s goal with the Northern campaign, I understood that he wanted to expand Brown to the North.
Bob told me to press the concept that segregation no matter what its cause resulted in damage to a child’s self-esteem that was unlikely ever to be undone. This formulation came directly from Chief Justice Warren’s original Brown opinion, and Bob, who had seen the need for the underpinning psychological evidence in that case, wanted the courts to adopt that concept in the North. Under his approach, it didn’t matter whether a school board intended to segregate its children by race, and it didn’t matter if there were a few white children enrolled at a black school or a few black children in white schools. What should matter, he argued, was the harm done to black children by segregation. In short, Bob wanted to move away from having to prove that school boards intended to segregate children. Given the number of school systems in the country, having to prove intent would require endless litigation that could go either way depending on whom the judges believed. The goal was to create a broader standard for integration that could be applied quickly and effectively anywhere in the country.
When I read the Prince Edward County decision, however, I found nothing to support Bob’s theory. Prince Edward County was wedded to the Jim Crow laws that required school segregation. Its school board had tried to avoid integration by shutting down the county’s public schools and offering to pay parents to send their kids to so-called private schools, which would segregate black and white children by creating racially separate schools. Intent, or de jure segregation, was obvious by the very nature of the plan, and the Supreme Court decision made clear that that was the key ingredient. By contrast, in Bell v. School City of Gary, the Indiana federal appeals court unequivocally found that unintentional, or de facto, segregation caused by a neighborhood-school plan did not violate the Constitution. While the Cleveland case was in the sixth circuit of the federal court system, the Bell decision was in the seventh, so it would not bind the sixth-circuit judges. But that court could look to the Bell decision for guidance, and there were judges from Kentucky as well as Ohio and Michigan who sat on the sixth circuit. So depending on which judges heard our case, and their mind-sets, it could follow the lead of the seventh circuit and uphold Judge Kalbfleisch’s decision. As I worked to outline our Cleveland brief, it seemed to me that intent would be crucial, but Bob wanted me to argue only the impact of segregation and the psychological result. I turned to Barbara and Maria, and they agreed we should include an intent argument. So I wrote a draft for Bob’s review that contained both his theory—with its goal of expanding Brown to include impact as a determining factor—as well as an argument based on the intent to keep children as segregated as possible.
The next thing I knew Bob stuck his head out of his office.
“Now, Lewis,” he semiscolded, “that’s not what I wanted. You should be arguing only our theory that it is the effect of