The mythology here was that the Supreme Court’s assertedly delicate role as constitutional arbiter must be played cautiously, deferentially, and remote from grim realities such as racism. In shirking its constitutional responsibility, the Court also turned its back on earlier decisions that, in the process of upholding racial discrimination, had invalidated state laws that overrode private transportation companies’ decisions to discriminate. Yes, the Court had already been down this road. Only when the path beckoned toward recognizing the constitutional right did it call a halt.
The candid admission that the Court was backing away from its duty is even more surprising because Justice Frankfurter wrote the opinion. He had, as a Harvard professor, co-authored a scathing study of ethnic discrimination and injustice in the Sacco and Vanzetti case.13 In a later decision, West Virginia State Board of Education v. Barnette,14 he began his dissenting opinion by saying that he “belongs to the most vilified and persecuted minority in history.” In Watts v. Indiana,15 he wrote: “There comes a point where this Court should not be ignorant as judges of what we know as men.” Among the things he knew as a man was that he worked in one of the most racially segregated cities in the United States.
Here is some of the background against which the Pullman case was decided—or not decided. In 1869, the Reconstruction legislature of Louisiana passed a statute forbidding racial discrimination in transportation within the state. The case arose because a steamboat company plying the Mississippi River had separate accommodations for white and African American passengers. The statute applied even to the intrastate portion of interstate journeys.
In Hall v. DeCuir,16 the Supreme Court held the statute unconstitutional because it interfered with the business of federally regulated interstate transportation. The Court noted that Congress had not seen fit to forbid racial segregation, and therefore the transportation companies were free to discriminate if they wished to do so. The Court held:
1. State legislation that interferes with an interstate carrier’s conduct of its own business violates the commerce clause. (Note that in Pullman, that is exactly what Texas was doing.)
2. The transportation company is constitutionally protected when it adopts “reasonable rules and regulations,” including those based on race. This holding was based on deference to the transportation company’s judgment about the social consequences of white and non-white passengers sharing cabins on board.
In Pullman, the Court could have cited Hall, and said that Texas had to stand down. But it chose instead to first see the real issue—racism—and then to refuse to address it.
THE LAST GASP OF “SEPARATE BUT EQUAL”
In Sweatt v. Painter,17 the Supreme Court held, unanimously, that a makeshift “Texas Law School for Negroes” did not provide equal, though separate, legal education.
Heman Sweatt applied to enter the University of Texas School of Law in 1946. He was denied admission because the Texas state constitution mandated segregated public education. No law school in Texas admitted African Americans. The NAACP, whose lawyers included Robert Carter and Thurgood Marshall, sued in state court. At the state’s request, the court continued the case for six months. The state then established the “School of Law of the Texas State University for Negroes” and claimed that it was substantially equal to the UT Law School.
By the time the case reached the Supreme Court, in 1950, the civil rights movement had been active for decades. The NAACP was founded in 1909; the struggle against racism had begun earlier than that. More recently, President Truman had desegregated the armed forces. The state’s Supreme Court brief18 was written as though none of these things had happened. It was as though written on the inside walls of the lawyers’ minds. It was a voluntary petition in intellectual bankruptcy, repeating the mythology of racial separation. The brief relied on cases denying equal protection to aliens, and approvingly cited the Japanese internment cases. Concluding, the state argued:
The foregoing cases argue themselves. They demonstrate that this Court has uniformly held that the states may furnish education to their white and Negro citizens at separate institutions so long as substantially equal facilities are offered both groups. Petitioner has cited no case to the contrary.
The state assembled a litany of opinions about segregation. Sweatt’s lawyers had combed the sociological and political literature of the past decade. Their 123-page brief19 adumbrated the ideas that were to be presented and would carry the day in Brown v. Board of Education.
The state’s brief quoted Charles W. Eliot, who was president of Harvard College from 1869 to 1909. Eliot had spoken approvingly of segregated higher education in the American South:
Perhaps if there were as many Negroes here as there, we might think it better for them to be in separate schools. At present Harvard has about 5,000 white students and about 30 of the colored race. The latter are hidden in the great mass and are not noticeable. If they were equal in numbers or in a majority, we might deem a separation necessary.
Sort of like rice pudding, I suppose. A few raisins do not dominate, nor destroy the essential white rice character of the pudding. Too many raisins, and there is a risk that they will take over. Better they should be removed into a raisin pudding. You might leave a few raisins, to serve the white rice and remind it of its dominance.
The state should have done what good lawyers do: check out their witness. On several subjects, Eliot was out of step with all reasoned opinion.20 He opposed having a college football team and tried to abolish football, baseball, basketball, and hockey at Harvard. Rowing and tennis were, he thought, clean sports. As for baseball, Eliot remarked:
Well, this year I’m told the team did well because one pitcher had a fine curve ball. I understand that a curve ball is thrown with a deliberate attempt to deceive. Surely this is not an ability we should want to foster at Harvard.
Eliot spoke about race in Atlanta in 1909. The New York Times reported his views at the time: “The negro cannot be expected to be ready for all phases of civilization, when he is a few decades removed from the time when he first began to enjoy civilization as a free man. After 500 or 1,000 years we may expect more substantial growth.” Dr. Eliot had forgotten that the “civilization” that African Americans had joined was the very one that had maintained the very uncivilized institution of slavery.
Turning to the evidence at trial, the state quoted the testimony of Charles T. McCormick. He was dean of UT Law School from 1940 to 1949, and was nominally dean of the segregated law school. The Law School for Negroes had four professors, who were faculty members of UT Law School and who taught part-time at the segregated school. It had a couple of classrooms and a small library in downtown Austin. As Sweatt’s brief pointed out:
The law school of the University of Texas had a moot court, legal aid clinic, law review, a chapter of Order of the Coif, and a scholarship fund. None of these were present or possible in the proposed Negro law school, and Charles T. McCormick, dean of the two law schools, testified that he did not consider these to be factors material to a legal education but rather that they were “extraneous matters.”
McCormick’s views were echoed by D. A. Simmons, a prominent Texas lawyer who had been chairman of the American Judicature Society and president of the American Bar Association. The Supreme Court’s unanimous opinion penetrated the myth:
Moreover, although the law is a highly learned profession, we are well aware that it is an intensely practical one. The law school, the proving ground for legal learning and practice, cannot be effective in isolation from the individuals and institutions with which the law interacts. Few students and no one who has practiced law would choose to study in an academic vacuum, removed from the interplay of ideas and the exchange of views with which the law is concerned. The law school to which Texas is willing to admit petitioner excludes from