May 2019 Law Wise

PUBLISHED BY

LAW WISE Coordinators:

onorable Bethany J. Roberts, Chair, LRE Committee; H Anne Woods, Public Services Director; Nicolas Shump, Law Wise Editor; & Patti Van Slyke, Journal Editor

MAY 2019 • ISSUE 5

Greetings from the Kansas Bar Association (KBA).

Welcome to this fifth edition of Law Wise for the 2018-2019 school year.

IN THIS ISSUE Clients Willing to Stand Up for Their Rights The Road to Brown v. Board...........................1 Setting the Stage: Earlier Court Cases................ 2 Separate But Equal.......................................... 3 Brown v Board in Larger Context.................... 4 Lesson Plan 1: Brown v. Board of Education Grades 6-12 (from iCivics)............................... 6 Lesson Plan 2: Mendez v. Westminster Grades 9-12 (from Teaching Tolerance and the Southern Poverty Law Center)........................ 8 Terrific Technology for Teachers..................... 10

Photo by Ryan Purcell

“Clients Willing to Stand Up For Their Rights” The Road to Brown v. Board of Education The title of this introduction comes from the words of Jack Greenberg, part of the NAACP Legal Defense Fund team on the Brown case. Many individuals—even before becoming clients—had to assert their rights and the rights of their children regarding the educational opportunities in their communities. Within a period of approximately twenty years, several cases involving both Mexican-Americans and African-Americans emerged, challenging not only societal norms, but long-existing precedents and doctrines—most notably the “Separate, but Equal” doctrine promulgated by the 1896 Supreme Court decision Plessy v. Ferguson.

This issue of Law Wise will explore a few earlier cases that helped pave the way for the Brown decision. These earlier cases dealt with educational opportunities for Mexican-American students in both Texas and California. A lesser-known phenomenon occurring mostly in the American Southwest was the segregation of Mexican-Americans in education, housing, employment, and in other ways in society. Growing up in the Mexican barrio of Topeka, Kansas, this author’s mother remembers only being able to attend the movie theater on certain days On a national level, Mexican-Americans faced similar discrimination to African-Americans living in the Jim Crow South. According to the Death Penalty Information Center, “From 1846 to 1870, more than 100 men and women were hanged on the branches of the notorious “Hanging Tree” in www.ksbar.org/lawwise

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Goliad, Texas. Many were Mexicans or Mexican Americans and many were killed by lynching.”

A 2015 New York Times op-ed column by historians William D. Carrigan and Clive Webb notes “From 1848 to 1928, mobs murdered thousands of Mexicans, though surviving records allowed us to clearly document only about 547 cases.

These lynchings occurred not only in the southwestern states of Arizona, California, New Mexico and Texas, but also in states far from the border, such as Nebraska and Wyoming.” Though the lynchings declined in the 1920s due mainly to pressure from

the Mexican government, racist attitudes persisted in many of these areas, making the plaintiffs’ decision to assert their civil rights a bold and potentially dangerous move.

An unfortunate legacy of racial discrimination in the United States is how widespread it was and how it affected various communities of color throughout the nation’s history. Law Wise will explore how a significant period in American legal history fundamentally changed society for the better, and some of this change occurred right in the Kansas state capital in Topeka.

Setting the Stage: Earlier Court Cases on School Segregation

ALVAREZ V. LEMON GROVE (1931) This 1931 case would influence the Mendez plaintiffs in their case fifteen years later. The Alvarez plaintiffs challenged the segregation of Mexican-American students in Lemon Grove, a community east of San Diego. The petition for this case noted the following, On January 5, 1931, Jerome T. Green, principal of the Lemon Grove Grammar School, acting under instructions from the school trustees, stood at the door and admitted all pupils except the Mexican students.

Principal Green announced that the Mexican children did not belong at the school, could not enter, and instructed them to attend a two-room building constructed to house Mexican children.

Historian Joan Moore explained the rationale behind this de facto segregation.

No Southwestern state upheld legally the segregation of Mexican American children, yet the practice was widespread. Separate schools were built and

maintained, in theory, simply because of residential segregation or to benefit the Mexican child. He had a “language handicap” and needed to be “Americanized” before mixing with Anglo children. His presence in an integrated school would hinder the progress of white American children.

While much of the public opinion attempted to paint these students as “aliens” or Mexican nationals, the parents noted in their suit that 95 percent of the students were American citizens. With San Diego Judge Claude Chambers presiding, the case was decided on March 30, 1931. Judge Chambers ruled in favor of the plaintiffs. According to Robert R. Alvarez, Jr.: The conclusion of law refuted each claim made by the school board and the court demanded an immediate reinstatement of the children. The separation was indeed deemed a segregation and the court ruled that the school board had no legal basis on which to segregate the children. California law did not authorize or permit the maintenance of separate schools for the instruction of pupils of Mexican parentage, national-

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ity and or descent. The children were legally entitled to enter the regular school building and receive instruction on the basis of equality with all other children.

This case proved to be influential for Mexican American students and parents. The year prior, a case had been filed against a school district in Del Rio, Texas. A district court ruling granted an injunction against the school district’s segregation of these Mexican-American students. On appeal to the Texas Court of Appeals, the Court agreed the district did not have power to segregate students on the basis of ethnicity, but did allow the district to segregate on the basis of language deficiencies of the Mexican-American students. An appeal to the U.S. Supreme Court was denied on grounds of jurisdiction.

MENDEZ V. WESTMINSTER SCHOOL DISTRICT (1946) This case originated in Westminster, California. Gonzalo Mendez, a local tenant farmer, attempted to enroll in his children at Main Street School, which he had attended as a child.

By this time, however, the boundaries had changed, and de facto segregation forced Mendez to send his children to Hoover Elementary, exclusively for Mexican-American students. In response, Mendez and several other parents, aided by the League of United Latin American Citizens (LULAC), filed a lawsuit against four school districts in Westminster, Santa Ana, and other communities in March 1945. The case became known as Mendez v. Westminster School District (1946).

The Mendez case had several connections to the Brown decision nearly a decade later. The plaintiffs and their attorneys used social science research to build their case. Legally, the strategy was to use the 14th Amendment to invoke civil rights

protections. Finally, Thurgood Marshall played a role in the legal proceedings. The Mexican-only schools did not have the resources found in the white-only schools, a violation of the “separate, but equal” doctrine. Furthermore, to help mostly Spanish-speaking students adapt to an English-speaking world, students suffered corporal punishment for speaking Spanish, even on the playground. At the time, it was not uncommon to see signs stating “No dogs or Mexicans allowed.”

When the Mendez family filed its lawsuit, LULAC recommended the hiring of civil rights attorney David Marcus.

LULAC proved invaluable in underwriting the cost of this defense. During the trial, the Garden Grove superintendent made certain claims regarding these Mexican-American students. “Mexicans are inferior in personal hygiene, ability and their economic outlook. Youngsters need separate schools because of their lack of English proficiency.” To counter this prejudice, Marcus called experts in social science to rebut this type of testimony. Judge Paul McCormick ruled in favor of Mendez. He claimed he “found no justification in the laws of California, and furthermore, it was a clear denial of the equal protection clause of the Fourteenth Amendment.”

The Mendez case proved influential in several respects. First, this was the first time a federal court ruled “that the segregation of Mexican Americans in public schools was a violation of the state law.” Second, Thurgood Marshall and the NAACP filed an amicus curiae brief in this case. Marcus’ strategy influenced how Marshall and the NAACP would attack segregation laws in the Brown case. Third, the California legislature passed the Anderson Bill of 1947, “a measure that repealed all California school codes mandating segregation.” Governor Earl Warren, future Supreme Court Chief Justice on the Brown case, signed the bill into law.

Separate but Equal Ferguson upheld the law which eventually reached the Supreme Court in 1896.

In 1890, Louisiana passed a new law establishing railroads to provide “equal but separate accommodations for the white and colored races.” Historian C. Vann Woodward noted African-Americans traveled freely on the railroads until the 1880s. Florida became the first state to pass a law segregating railroads. Mississippi, Louisiana, Texas and other states passed similar laws.

The African-American community in New Orleans decided to challenge this new law. In an act replicated some sixty years later by Rosa Parks, Homer Plessy on June 7, 1892 refused to move from a seat reserved for whites. Plessy described himself as “seven-eighths Caucasian and one-eighth African blood.”

Nevertheless, under the “one drop rule,” Homer Plessy was considered “black.” After his arrest, the local judge John H.

On May 18, 1896, the Court upheld the Louisiana law and similar statutes passed throughout the American south. Justice Henry Brown wrote “We consider the underlying fallacy of [Plessy’s] argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”

Furthermore, the Court ruled that the protections found in the 14th Amendment applied only to political and civil rights, not social rights such as transportation.

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Only Justice John Marshall Harlan dissented in the Plessy case. Having been a former slaveholder, Harlan initially opposed the constitutional rights given to African-Americans with the 13th-15th Amendments to the U.S. Constitution.

The actions of groups like the Ku Klux Klan changed Harlan’s mind. In his dissent, Harlan wrote, “The arbitrary separation of citizens on the basis of race while they are on a public highway is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds.”

Three years later, the Court ruled that segregated schools were constitutional as well.

This decision rolled back rights and advances African-Americans had made in the aftermath of the Civil War and the passage of the 13th, 14th, and 15th Amendments. With the Plessy v. Ferguson decision, segregation became legal throughout the United States. With the rise of Jim Crow laws throughout the American south, segregation became the law of the land until the landmark decision nearly 60 years later in Brown v. Board of Education.

Brown v. Board in Larger Context

Photo by Ryan Purcell

Though Linda Brown and Topeka are famous for the historic Brown v. Board of Education Supreme Court decision, there were numerous other students and cases involved in this challenge to the Separate but Equal doctrine.

In fact, cases in several states were combined in the Brown v. Board of Education case. These states and decisions included Belton v. Gebhart in Delaware, Briggs v. Elliott in South Carolina, Davis v. County School Board of Prince Edward County in Virginia, and Bolling v. Sharpe in Washington, D.C. Barbara Johns a 16-year old high school student organized a walkout of her fellow students to protest their inferior school. Johns’ activism led the NAACP Legal Defense Fund to file the first case in Virginia.

BELTON V. GEBHART In the early 1950s, African-Americans in Delaware could attend only one high school in the entire state — Howard High School, located in Wilmington. For parents and students living in Claymont, a Wilmington suburb, this meant students had to travel twenty miles round trip every day. In their com-

mute, they passed by Claymont High School, a much nicer public school for white students.

In March of 1951, eight African-American parents approached attorney Louis Redding to explore their legal options. Redding advised for the parents to ask the state to allow their children to attend Claymont High School. This request was denied.

Redding mounted a legal challenge and the Delaware Court of Chancery directed the school to immediately admit AfricanAmerican students. On appeal, the Delaware Supreme Court affirmed the decision. Since there were two appeals from Delaware before the Supreme Court, the Delaware Attorney General advised the school officials to not admit African-American students until the resolution of those cases.

BOLLING V. SHARPE Though historically Washington, D.C. had a large AfricanAmerican community from its founding, the nation’s capital did not serve as a model for race relations and remained mired

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in racial segregation in the middle of the twentieth century.

Though President Truman had integrated the military a few years earlier, in 1950, schools were still segregated in Washington, D.C.

South Carolina for New York never to live in South Carolina again.

DAVIS V. COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY

On September 11, 1950, Gardner Bishop took 11 AfricanAmerican high school students to view John Philip Sousa, a new junior high school recently opened for white students.

While on his tour, Bishop asked the school to admit these visiting students. The school declined to admit these students.

After his visit, Bishop approached an attorney, Charles Houston, to request a facility equal to Sousa.

In the 1940s, to graduate from high school, African-American students had to attend private academies. K-8 education in Virginia remained under the supervision of county school boards. Prince Edward County had a reputation for progressive views and policies regarding the public schooling of African-American students.

When Houston suffered a heart attack, another attorney took over the case and decided to reject the equalization strategy and simply challenge segregation. Both Houston and the new attorney, James Nabritt, worked independently of the NAACP. In 1951, Nabritt filed Bollig v. Sharpe in U.S. District Court. Spottswood Thomas Bollig served as the plaintiff and had been one of the students taken by Gardner Bishop to visit John Philip Sousa Junior High the year before. Although independently, the case did not succeed, it too became part of the Brown v. Board of Education decision a few years later.

In 1947, the Robert Moton School added grades 9-12. Prior to the Moton School, African-Americans students graduated after completing the 11th grade. As the only school to offer the 12th grade, students came from surrounding areas to attend the Moton School. However, the school could not adequately serve the student population. Rev. Francis Griffin served as the President of the local NAACP chapter and also the Chair of the Moton School PTA. Griffin and Principal M. Boyd Jones requested a new facility. When the school authorities failed to act, it led to the protest by Barbara Johns in 1951.

BRIGGS V. ELLIOTT

On April 23, Johns and 117 students protested the conditions of the current facility. They requested a new facility with indoor plumbing. The NAACP coordinated this strike with the students, who eventually received a pledge from NAACP attorney to meet with the students. The students agreed to return to school on May 7, 1951.

A meeting between two African-American ministers, Rev. James Hinton and Rev. J.A. DeLaine led to South Carolina’s challenge to school segregation. Hinton served as the president of the South Carolina NAACP and DeLaine worked as a school teacher. DeLaine taught at St. Paul Rural Primary school and ministered to several African Methodist Episcopal (AME) churches in Clarendon County. Unfortunately, many of these schools were not close to where the students lived.

Though they paid taxes for the school buses, African-American students were not allowed to ride on these buses. That decision resulted in students having to walk eight miles to school.

Initially, DeLaine tried to secure buses for these AfricanAmerican students. When authorities denied his request, DeLaine attempted a letter-writing campaign to convince state education officials to help these students. When this campaign failed, DeLaine appealed personally to District Superintendent L.B. McCord, a fellow clergyman. McCord refused to consider DeLaine’s request, a decision that led to the legal challenge in March of 1948 with the assistance of Thurgood Marshall, but the case was dismissed on a technicality.

The case was filed in federal court under the name of ninthgrade girl named Dorothy Davis as Davis v. County School Board of Prince Edward County. The U.S. District Court ordered equal facilities, but refused to allow African-American students to attend white schools while the African-American schools were equalized. After the Brown v. Board decision, county officials throughout Virginia closed public schools from 1959 to 1964. Another court challenge led to the court to compel the board of supervisors to not only reopen these schools, but to desegregate them as well.

Rev. DeLaine mounted a second legal challenge to be argued by the NAACP. The South Carolina court ruled against the NAACP request to end racial segregation. The court pushed for the equalization of schools. Unsatisfied the NAACP appealed to the Supreme Court and Briggs v. Elliott joined the Brown decision. The plaintiffs in the South Carolina case, Harry and Eliza Briggs, faced backlash which led to them losing their jobs. Feeling they had no alternatives, the Briggs left

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Lesson Plan 1:

Brown v. Board of Education (from iCivics) Grades 6-12

Overview: Different Races, Different Schools- In 1950 and 1951, black parents and students in several states got tired of laws that required children of color to attend separate schools from white children. For decades, many states had kept blacks and whites segregated, or separated from each other based on their race. In 1896 in a case called Plessy v. Ferguson, the Supreme Court had said this segregation was constitutional as long as the separate facilities for blacks and whites were equal. In some places, schools for black children were run-down and lacked things like gyms or cafeterias. In many places, there were school buses for whites but not for blacks. Parents had to send their kids across town to school when there were schools right in their own neighborhoods. But the closer schools were for whites only. With the help of the National Association for the Advancement of Colored People (NAACP), parents and students decided to challenge the Plessy decision. In Topeka, Kansas, Oliver Brown and several other parents tried to enroll their children in the closer, whites-only schools. They were rejected. In the other states, peoples’ efforts to get better facilities for black schools were ignored.

Learning Objectives: • Describe segregation and the 14th Amendment “equal protection of the law” • Identify the main arguments put forth in the case.

• Describe the Supreme Court’s decision and analysis.

• Identify the impact of the Court’s decision.

Lesson Materials: The Argument Brown and the others argued that segregated public schools are not “equal” and cannot be made equal because keeping black and white students separate sends a message that the black students are inferior. Therefore, the very act of separating black and white students violates the 14th Amendment to the U.S. Constitution, which guarantees equal protection of the laws.

The Decision The Supreme Court agreed. In a complete reversal from its decision in the Plessy case, the Court said that the “separate but equal” doctrine “has no place” in public educawww.ksbar.org/lawwise

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tion. Separating children just because of race “generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” Segregation therefore deprived black students of equal protection of the laws under the 14th Amendment.

So What?-The court’s decision rejected the “separate but equal” doctrine the court had approved 58 years earlier in Plessy v. Ferguson. Now, all-white schools could no longer reject black students. Although the Court’s decision was aimed at K-12 public schools, the decision was also applied to colleges and universities. But not everyone was happy with the decision in Brown. In 1963, Alabama governor George Wallace spoke out against letting black students attend the University of Alabama. He stood in the doorway to block two black students from being able to register. The conflict ended when President Kennedy ordered the Alabama National Guard to the scene.

Lesson ActivityStudents will compose one or two paragraphs explaining the main issues in this case and the decision.

1. What case did this decision overturn?

2. What is the connection between Plessy v. Ferguson and school segregation?

3. What constitutional amendment and principle did the Court use in making their decision?

4. What tensions arose between state and national government after this decision?

5. Has the United States achieved desegregation of public schools in 2019?

Photo by Ryan Purcell

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Lesson Plan 2: Mendez v. Westminster

from Teaching Tolerance and the Southern Poverty Law Center Recommended for Grades 9-12

Overview: Mendez v. Westminster proved to be an important case in the fight against segregation in American schools. This lesson examines the impact of Mendez on discrimination throughout California.

Guiding Questions: 1. Did Mendez end segregation in California schools?

2. What justification(s) did the school district give for segregating Mexican students?

3. How did race impact the desegregation of schools in California?

Learning Objectives: • To gain insight into how judicial decisions are made.

• To better understand how the courts and legal system defined terms like race or ethnicity.

• To better understand how school districts attempted to justify segregation in the public schools.

Lesson Materials: • Did the Mendez case end segregation in California?- https://www.tolerance. org/sites/lt/files/2018-01/TT-Mendez-v-Westminster-California-Segregation-Documents-Handout-mb.pdf • Article on Mendez and other cases in May 2019 Law Wise.

• Plessy v. Ferguson- https://www.history.com/topics/black-history/plessy-v-ferguson • 14th Amendment- https://kids.laws.com/14th-amendment Lesson Activities: • Have the students brainstorm possible reasons why a school or school district would segregate students.

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Lesson Plan 2 continued

• • •

Determine if this separation would be temporary or permanent based on potential reasons for segregation generated by the class.

Review the main arguments and precedents set by the Plessy v. Ferguson case.

Have students write a 1-2 page reflection/decision on how laws like those in California were not consistent with the 14th Amendment.

About the Law Wise Editor: Nicolas Shump teaches courses in Creative Writing, Film, and Advanced Placement (AP) courses in Comparative Government and Politics, European History, Psychology, and U.S. Government and Politics for the Hybrid Learning Consortium (HLC) at The Barstow School in Kansas City, MO. He also teaches Discourse 100 at the University of MissouriKansas City (UMKC) where he is an MFA Student in the Creative Nonfiction Program. He is a columnist for the Topeka Capital-Journal and a Talk About Literature in Kansas (TALK) discussion leader for Humanities Kansas.

He can be reached at nicshump@gmail.com

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• Topics you would like to explore; • Projects and lessons you have developed that you would like us to feature; • Questions you would like to ask an attorney or judge.

We look forward to hearing from you.

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Law Wise FAQs

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The Kansas Bar Foundation, with Interest on Lawyers’ Trust Accounts (IOLTA) funding, provides support for this publication. Law Wise provides general information about law-related matters of interest to teachers, students, and the public in Kansas, but does not provide any legal advice, so readers should consult their own lawyers for legal advice. For further information about any projects or articles, contact Anne Woods, public services director, (785) 234-5696. Law Wise is published by the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612-1806, during the school year.

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TERRIFIC TECHNOLOGY FOR TEACHERS

• Brown v. Board of Education: The Road to Justice https://www.nps.gov/brvb/index.htm

•

The website for the Brown v. Board of Education National Historic Site in Topeka, Kansas, administered by the National Park Service.

• Brown Foundation Collection http://etext.ku.edu/view?docId=ksrlead/ksrl.kc.brownfoundation.xml&chunk.id=&toc.depth=1&toc. id=&brand=ksrlead&route=ksrlead

•

The Kenneth Spencer Research Library at the University of Kansas has the Brown Foundation Collection covering material from 1970-2017.

• Charles S. Scott Collection http://etext.ku.edu/view?docId=ksrlead/ksrl.kc.scottcharless.xml&doc.view=print;chunk.id

Charles S. Scott and other members of his family served as attorneys for the Brown case, including some of the later Brown decisions too. This collection is also at the Spencer Research Library.

• Education: The Mightiest Weapon https://exhibits.lib.ku.edu/exhibits/show/education/kansas-african-american-school

A tremendous source of information regarding the educational environment and opportunities for African-American students prior to the Brown decision and information regarding the plaintiffs and lawyers associated with Brown.

• International Coalition of Sites of Conscience: Brown v. Board of Education https://www.sitesofconscience.org/en/membership/brown-v-board-of-education-national-historic-site/

Though the site is more devoted to their coalition, but it does feature Brown v. Board.

• Kansas Champion for Justice https://wayback.archive-it.org/3577/20170328171045/http:/liblamp.vm.ku.edu/spencer/exhibits/shorts/ scott/index.html

This is a link to an online version of a physical exhibit curated from the papers of Charles S. Scott now housed in the Charles S. Scott collection at the Kenneth Spencer Research Library.

• Lasting Impact of Mendez v. Westminster in the Struggle for Desegregation https://americanimmigrationcouncil.org/research/lasting-impact-mendez-v-westminster-struggle-desegregation

A site maintained by the American Immigration Council on the Mendez case for which Thurgood Marshall and the NAACP wrote an amicus brief for and which served as a model for some of the legal strategy used by the lawyers who filed and argued the Brown case.

• Recovering Untold Stories: An Enduring Legacy of the Brown v. Board of Education Decision https://kuscholarworks.ku.edu/handle/1808/27702 Sponsored by KU ScholarWorks, this has a brief introduction to the Brown case with a digital version of this book with stories from individuals involved in the cases consolidated in the Brown case.

• United States Civil Rights Trail https://civilrightstrail.com/attraction/brown-v-board-of-education-national-historic-site/

An interactive website that allows users to follow the Civil Rights Trail throughout the

United States with a major emphasis on the Brown decision.

• Paul Wilson Collection http://etext.ku.edu/view?docId=ksrlead/ksrl.kc.wilsonpaul.xml;route=ksrlead;brand=ksrlead;query=Bro wn%20v.%20Board&query-join=and

Paul Wilson served as an attorney for the Brown v. Board case before having a distinguished career as a Professor of Law at the University of Kansas. This collection is also at the Spencer Research Library.

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