How the Law Got Past ‘Separate but Equal’

Posted February 8, 2010 at 4:40pm

The landmark Brown v. Board of Education case is rightly looked at as a turning point in civil rights history. But as author Rawn James Jr. describes in his new book, so much happened before that decision was handed down.

“Root and Branch: Charles Hamilton Houston, Thurgood Marshall, and the Struggle to End Segregation” is the story of how the historic 1954 moment came to pass.

But this is not a dry collection of facts. James spent four years digging through documents and newspaper articles, putting together a compelling narrative. In fact, James refused to hire a research assistant because he wanted to immerse himself in the story and become familiar with every detail. That dedication caused him to essentially work two full-time jobs during those four years. By day, James was a senior trial attorney in the Navy’s Office of the General Counsel. On nights and weekends, he worked on his book.

As a writer, James said he benefited from penning a story that he “wanted to tell, and that needed to be told.” Despite already having been well-versed in civil rights litigation history, James said he was surprised to learn just how much behind-the-scenes work Houston and Marshall did to make headway in the judicial system.

Throughout the book, James demonstrates the approach the two lawyers took to break down segregation. Rather than attack the practice head-on, they called for its full implementation, knowing full well that most states would not be able to afford to establish “separate but equal” facilities for white and black people.

However, many young black lawyers at the time wanted to directly go after the injustice of segregation. According to James, Houston and Marshall often had to implore them to scale back, in order to strategize and take the cases that seemed most likely to be effective.

James describes Marshall’s early work with the National Association for the Advancement of Colored People as “legal evangelism.” He also chronicles the professional drama that his story’s two heroes faced. As the dean of the law school at Howard University, Houston insisted that his students not hold jobs while in school in order to be completely focused on their studies. But as his involvement in the civil rights movement increased, Houston began stretching himself thin. He was often away from the school, drawing criticism from students for doing the exact thing he had forbidden them to do.

James emphasizes the fact that he sees legal activism as something that comes less from “activist judges” than from activist lawyers and citizens. While Supreme Court justices “read some briefs and hand down a decision,” that cannot happen until enough regular people push to make a change and get the attention of lawyers willing to fight for the cause, he said.

Important as Brown v. Board of Education was, James said, it would never have been possible without the work of activists and lawyers in the years that followed the earlier Plessy v. Ferguson decision. That 1896 case established the “separate but equal” doctrine, and James said the behind-the-scenes work that went into overturning it often goes underappreciated.

James thoroughly tells that story, in a detailed but not off-putting away. His goal was to write something that would appeal to legal buffs and regular folks, and he certainly achieved that. James puts a humanizing face on a pivotal time that changed race relations in the United States.