Brown v. Board of Education and the Role of the Lawyer
By Brian K. Landsberg

The author, Brian K. Landsberg, worked for the Civil Rights Division of the United States Department of Justice from 1964 to 1986 before joining the faculty of the McGeorge School of Law. In 1993, Professor Landsberg took a six-month leave of absence to accept a Clinton administration appointment to the No. 2 post in the Justice Department's Civil Rights Division, where he was an Acting Deputy Assistant Attorney General. Professor Landsberg is the author of Enforcing Civil Rights: Race Discrimination and the Department of Justice. Professor Landsberg served on the planning committee for the Judicial Council of California's symposium on the Fiftieth Anniversary of the Brown v. Board of Education decision, which will be held on May 17, 2004 at the Sacramento Convention Center. This article is adapted from a lecture that Professor Landsberg gave in January at a McGeorge MCLE seminar. Professor Landsberg's research assistant, Jennifer Gore, provided invaluable research help for this article.

The litigation leading up to Brown followed the classic adversarial mode. Lawyers for the plaintiffs mounted massive evidence to prove that state enforced segregation of the races was inherently discriminatory. Lawyers for the defendants relied on the 1896 Supreme Court decision in Plessy v. Ferguson, which had upheld segregation of the races in public transportation. The cases had been hard fought and well argued, for the most part. The plaintiffs litigation team was led by Thurgood Marshall, a skilled trial lawyer and appellate advocate. John W. Davis, former Solicitor General of the United States and former Democratic candidate for President, was the most prominent lawyer for the defendants. The lawyers faced no ethical dilemmas. Most of the lawyers for the defendants were convinced not only of the legality of racial segregation of the public schools, but of the practical and moral correctness of segregation. There was at least one exception. The Topeka School Board decided not to defend racial segregation, on the ground that it was imposed on the schools by state law, not local choice. Therefore the Board thought it was the duty of the Attorney General of Kansas to defend the case in the Supreme Court. The Supreme Court asked the Attorney General of Kansas to present its views at oral argument. Attorney General Fatzer of Kansas thought he was duty bound to defend Kansas law, but was reluctant to take on the case himself. So ten days before oral argument, he turned defense of Topeka's school segregation over to an assistant attorney general named Paul Wilson, who had never made an appellate argument in any court before.

From a professional responsibility perspective, the Topeka case raises a number of issues. Did the Kansas Attorney General truly have a responsibility to defend a state statute that the trial court had said had a detrimental effect on African American children? If he did have such a responsibility, did he abandon it when he assigned the case to Paul Wilson? Wilson did turn out to do a competent job in the Supreme Court. But in his book about the episode, titled A Time to Lose, he noted:

Does the duty to zealously represent a client require a lawyer to make an argument he thinks is indefensible? Suppose he meant it was morally indefensible, but legally defensible?

At the argument on remedy, in Brown II, the ugly surfaced. Lead counsel for the defendants was now S. Emory Rogers. At oral argument Chief Justice Earl Warren asked whether Rogers' client would comply with whatever decree was handed down. Rogers responded that it "depends on the decree handed down." Warren pressed him: "But you are not willing to say here that there would be an honest attempt to conform to this decree, if we did leave it to the district court?" Rogers: "No I am not.... I would have to tell you that right now we would not conform...." ¹ Was Rogers simply being honest? Was his answer a threat designed to convince the Supreme Court not to order immediate desegregation? Would such a threat be permissible under the rules governing attorney conduct? Rogers' co-counsel, Robert McC.Figg, did not threaten non-compliance. Instead, he simply argued "I think if you ordered the trustees tomorrow to comply or else, that that would destroy the public school system of South Carolina." ² Similarly, the lawyer for North Carolina, appearing as amicus curiae, informed the Court that if the public schools of the state were ordered to desegregate, "those schools will be in the gravest danger of abolition." ³

The issues of the lawyer's role multiplied after Brown II ruled that desegregation was to proceed with all deliberate speed. It was clear that school systems were legally obliged to abandon racial segregation. The decision left two major areas of ambiguity: exactly what steps must the school systems take, and when must they take those steps. Walter Dellinger, a prominent white lawyer, tells the story that on May 17, 1954 he was in junior high school in North Carolina, when the principal came in and whispered a few words to his teacher. Dellinger's teacher then turned to the students: "Children, next year you will be going to school with colored children." Yet a dozen years later the schools of North Carolina remained mainly segregated.

What happened? Although schools in Topeka, the District of Columbia, and some border states abandoned the official separation of the races, the whites of the deep South strongly resisted compliance with Brown. This was a time for the legal profession to stand up for compliance with the law. Sadly, that's not what happened. I want to start with the ugly, then turn to the bad, and end with the good. My purpose is not to engage in Monday morning quarterbacking or to paint Southern white lawyers as bad or ugly. Instead, we must recognize that they were regular folks trying to make a living, and we must ask what lessons their often misbegotten actions hold for today's lawyers.

THE UGLY
Attorneys are to zealously represent their clients, and some did no more than that. But others were complicit in helping their clients violate the law or violated the law themselves. For example, George Wallace, a graduate of the University of Alabama Law School, achieved statewide notoriety by defying a federal court order to turn over voter registration records to the Civil Rights Commission, when he was a state court judge. In 1963, when he was inaugurated as Governor of Alabama, the schools of the state remained totally segregated. In his inaugural address, he defiantly proclaimed: "I draw the line in the dust and toss the gauntlet before the feet of tyranny, and I say, 'Segregation now! Segregation tomorrow! Segregation forever!'" ⁴

Most notoriously, another lawyer, Governor Ross Barnett of Mississippi, took a similar stance with deadly consequences. Faced with a federal court order to admit James Meredith to the University of Mississippi, Barnett displaced the normal university officials and personally denied Meredith admission. When federal marshals deployed to enforce the federal court order, Barnett gave a speech at an Ole' Miss football game that essentially led to a riot the next day, in which 2,500 students and others attacked 400 federal marshals. Two persons were killed. It took the United States army to restore order.

The organized bars of Alabama and Mississippi did nothing to discipline Governors Wallace or Barnett for their disregard for the law, despite the canons of professional ethics then in force, which required lawyers to assist in maintaining the integrity of the legal profession.

In every time of intense public controversy, there will be lawyers who abuse their positions, defy the law, and employ demagoguery to advance their careers. The bar has a duty in those circumstances to rise to defend the integrity of the law.

THE BAD
Most lawyers are, of course, not the governor of a state. Most would not defy a lawful court order. In the wake of Brown many lawyers were called upon to react to the decision. I am speaking of lawyers who drafted laws, lawyers who represented school boards, lawyers who were asked to represent African-American children seeking a desegregated education, and lawyers who participated in public discourse about the Brown decision, and the organized bar. The Brown decision was unpopular among Southern whites, who held all political and judicial positions in the Deep South because blacks were still largely excluded from the franchise. The problem that confronted the bar was how lawyers should respond to litigation or to requests for representation from black parents. In short, what are the responsibilities of lawyers with respect to unpopular litigation?

I spent several years litigating race discrimination cases in the deep South. With only rare exceptions, my opponents represented their clients ably and fairly in court. My relations with opposing counsel were good. They were almost always courteous. Discovery acrimony was minimal. They were like lawyers anywhere, except for that extra veneer of the Southern gentleman [for they were all men]. While George Wallace and Ross Barnett were unprincipled scoundrels, most of the lawyers of the South were not like that. It is the fact that they were lawyers like you and me, trying to do their best for their clients, that makes their story so relevant to us today. We must each ask: how would I act if asked to represent an unpopular client? If defending a client against an unpopular plaintiff? How would I treat a "friend" who has taken on an unpopular representation?

It must at some point have seemed clear to many lawyers that the Brown decision would have to be implemented. What advice should they give their clients? The public stance of most school boards was one of resistance. But, as The Canons of Professional Ethics of 1908, still in effect in the 1950's, provided, a lawyer is supposed to give independent advice. ⁵ A lawyer could well have told the legislature or the school board: we can delay desegregation for many years, and we can drag out the process of desegregation when it does come, but eventually the schools must be desegregated. The longer the delay, the more the eventual problems of implementation of the school desegregation decree. Moreover, failure to desegregate violates the law of the land. As public officials, you should obey Brown even if you disagree with it. This is not what happened.

The 1908 Canons also forbade lawyers to "render any service or advice involving disloyalty to the law...." ⁶ Nonetheless, the lawyers of the South created the legal structure of massive resistance to Brown. They dredged up the discredited doctrine of interposition from pre-Civil War days, declaring the Brown decision null and void. Governor Coleman of Mississippi, a noted lawyer who later served on the United States Court of Appeals, admitted that interposition was, in his words, legal poppycock, but signed the state's interposition law anyway. ⁷ Southern legislatures enacted law after law, designed to prevent implementation of Brown. One segregationist said "As long as we can legislate, we can segregate." The Attorney General of Georgia conceded: "We might as well be candid. Most of the laws will be stricken down by the Courts in due course." ⁸ Were these actions a form of avoidance or of evasion of the law? To my mind, they constituted evasion: lawyers advising clients not to comply with settled law.

School board lawyers played a dual delay game. First, take no steps toward desegregation until some brave black parent files suit in federal court. Second, once the case has been filed, delay, delay, delay. For example, African-Americans in Dallas filed a federal court action seeking school desegregation in 1955. Not until 1957 did they get a desegregation order. But three years later they were still waiting for the school board to offer a desegregation plan. In May of 1960 the board proposed to begin desegregation in September of the following year, with the first grade, and to desegregate an additional grade each year, with the process to be completed in 1973. ⁹ This pattern of evasion and delay ultimately led courts to award attorneys fees to the plaintiffs in some desegregation cases, even before federal legislation authorized attorney fee awards. For example, in one case, the United States Court of Appeals for the Fourth Circuit said:

Thus, the legal tactics of defense counsel led to increased costs for their clients, delay of constitutional rights of the plaintiffs, and discredit for the legal profession.

The Brown decision was accompanied by a perverse form of affirmative action: the only southern lawyers to take on desegregation cases were African-Americans. Southern white lawyers simply would not represent plaintiffs seeking enforcement of Brown. This refusal did not violate the Canons of Professional Ethics, which reflected no concern for the need for representation of the poor or unpopular party in civil litigation. ¹¹ It is, however, somewhat inconsistent with the subsequent ABA Model Code and Model Rules. ¹² The white bar not only did not represent African-American plaintiffs in school desegregation cases; it also threw up numerous barriers to plaintiffs counsel, including pretextual disbarment proceedings. The publisher of the Atlanta Constitution noted in 1961:

The attitude of the white bar made it very difficult for African-Americans to find a lawyer in cases challenging racial segregation. The difficulty was compounded by the very small number of African-American attorneys. The entire state of Mississippi had but three black lawyers. But for the willingness of northern lawyers, white and black, to come South, it would have been impossible for African-Americans to bring school desegregation suits. But the Southern states passed laws designed to outlaw organizations such as the National Association for the Advancement of Colored People [NAACP] that employed lawyers to bring these suits. The Supreme Court, in striking down the Virginia law, said:

The Court also noted:

Even the state bar journals joined the monolithic opposition of the Southern white bar to Brown. It was, of course, understandable that they would devote considerable space to articles about the case. However, they consistently presented only the segregationist viewpoint and rejected articles defending Brown. ¹⁶

The Southern white bar was put to the test and failed it miserably. It provides a road map of what the bar should not do. Many of the resulting decrees stripped local school boards of much of their discretion, a discretion that could have survived had their lawyers given sound advice to follow the law. I do not want to suggest that lawyers were duty-bound to accept Brown as correct. They were certainly free to criticize the decision and even to seek to overturn it. However, as lawyers they had to recognize that the Court was unlikely to overrule this unanimous decision, especially after the Court reaffirmed the case in 1958 in the Little Rock case. Not only did the Southern bar disserve African- American parents who needed legal services; they disserved their school board clients and the public at large.

THE GOOD
Despite the bad and the ugly, Brown and its aftermath became paradigms for the best that the legal profession has to offer. Any discussion of the positive side must begin with the National Association for the Advancement of Colored People and its Legal Defense Fund. Much has been written about the LDF's development of the strategy that ultimately convinced the Supreme Court to say that Plessy v. Ferguson, which had approved the doctrine of separate but equal, did not apply to public education; that decision was quickly extended to public parks and transportation and facilities. Charles Hamilton Houston, the Dean of the Howard Law School, inspired a generation of Howard law students to work in the public interest. His student, Thurgood Marshall, was initially the only legal staff member of the NAACP. The strategy that Houston and Marshall followed was to prove that the Southern school districts and university systems were not complying with separate but equal. They well understood that the law would follow if only they fully developed the facts. By 1948, the LDF had begun arguing directly that separate was inherently unequal. And by 1954 the edifice of separate but equal had already been substantially eroded in higher education cases and public transportation cases.

Looking back at the briefs filed in Brown, one is impressed with the legal talent that Thurgood Marshall was able to draw on: experienced African-American lawyers such as Spottswood Robinson, Constance Baker Motley, and Robert Carter all later became federal judges as did Marshall himself. A talented young white lawyer, Jack Greenberg, later succeeded Marshall to become the second head of the LDF. William Coleman, the first African American Supreme Court clerk, later became Secretary of Transportation. And Louis Pollak became Dean of Yale Law School and then a federal district judge. The white lawyers could have worked for the top Wall Street firms, but chose to work with the LDF, for very low wages.

This group of lawyers became the model for today's public interest law firms, and the pre-Brown strategy became the model for those who wish to use the law as a tool in the pursuit of public policy agendas. Not all agree that public interest law firms are a good thing. However, their existence has made it possible for individuals to obtain relief to which they were entitled under the law, and which they could not afford to pursue on their own. Public interest firms represent a spectrum of views and address a variety of issues, including civil liberties, civil rights, property rights, freedom of religion, the rights of victims of crime, defense of the environment, and health rights. In one way or another all these groups owe a debt to Thurgood Marshall and the LDF.

At the time of Brown the legal profession still operated under the regime of the 1908 Canons of Ethics. The Canons reflected the view that the main job of lawyers was to represent the interests of business. That, of course, is one very important job of lawyers. However, the Canons contained numerous road-blocks to representation of the poor and middle class, such as the requirement that contingent fees but no other fees be supervised by the court. ¹⁷ Canon 28 placed a large roadblock in the path of public interest lawyers:

Over time the work of the NAACP, often represented by elite white lawyers from the North, made it clear that this Canon should not be applied to public interest lawyering. ¹⁸ Thus, by 1969, when the Model Code of Professional Responsibility was adopted, DR 2-103(D) allowed non- profit public interest organizations to employ lawyers to provide legal services to members and beneficiaries of the organizations. And the current ABA Model Rules of Professional Conduct actually place a duty on every lawyer to provide legal services to those unable to pay. ¹⁹ Rule 6.1 also encourages lawyers to deliver services or contribute money to "groups or organizations seeking to secure or protect civil rights, civil liberties or public rights...." So the work of the NAACP led not only to a sea change in race discrimination law, but helped pave the way for a similar change in the rules governing the legal profession and public interest lawyering.

The Brown experience also revealed that public interest lawyers may face difficult ethical issues. While Brown required segregated school systems to remedy their discrimination, it did not spell out the details of how they were to do so. While the African-American parents were united in their opposition to the regime of racial discrimination, they did not all agree on the best method for remedying the discrimination. The Legal Defense Fund and the NAACP were based in New York, and although they used local attorneys in their cases, policy came from headquarters. It became easy for the lawyer in New York to forget that the client was not the organization but the parents in Birmingham or Baton Rouge or Macon.

At first the policy positions of the LDF did not cause great attorney-client conflict. Professor Derrick Bell tells the story of a visit from parents from Leake County, Mississippi, in 1961 when he was in Jackson, Mississippi as an attorney for the LDF. The parents complained that the school board had closed their black elementary school and planned to bus their children across the county to the other black elementary school. They wanted to sue the board to reopen the school. Bell advised them that LDF and NAACP would no longer bring such a suit, but that the organizations probably would be willing to help them bring a desegregation suit. A year or two later the group contacted him and said they were ready to bring the desegregation suit. ²⁰ In this instance, Bell could ethically decline to represent the group in its initial desire to bring a suit for relief that was contrary to LDF policy. He advised them of their rights, and ultimately their interests and the LDF's coincided.

Later, however, Bell notes, institutional positions sometimes diverged from what the local black community wanted. After the Supreme Court held that urban districts must bus in order to eliminate the vestiges of the prior unlawful dual school system, the LDF insisted on busing orders even when some parents preferred other remedies, such as upgrading educational quality in racially isolated schools. For example, community groups in Boston told the judge in the Boston desegregation case that they wanted the decree to achieve educational equity, which they defined as "the absence of discriminatory pupil placement and improved performance for all children who have been the objects of discrimination." The group added that they did not wish to "endure the dislocations of desegregation without reasonable assurances that our children will instructionally profit." ²¹

The Boston case was a class action on behalf of the African American children of Boston. Some parents wanted busing, as did the NAACP; other parents wanted educational equity. What is the lawyer to do in this situation? Perhaps class action law provides an answer: the court should recognize the existence of two subclasses of parents and allow each to participate. California State Bar Professional Conduct rules insist that the lawyer must exercise "independence of professional judgment" and that the organization may not interfere with the client-lawyer relationship. ²² It would seem that the way to avoid conflict is in the initial decision whether to undertake a representation.

Although in the early years after Brown the legal profession beyond the NAACP and LDF did little to promote the rule of law, in time the organized bar and individual lawyers did recognize the importance of ensuring compliance with Brown. In June of 1963 Bernard Segal, who practiced with a prominent Philadelphia firm, published an ad in the Birmingham, Alabama newspapers criticizing Governor Wallace's plan to defy court ordered desegregation of the University of Alabama. Forty-six lawyers signed the statement, calling for adherence to the rule of law. Later that month President Kennedy asked Segal and Harrison Tweed of New York to chair a Lawyers Committee for Civil Rights Under Law. At a subsequent meeting at the White House the President urged the 244 leaders of the bar in attendance "to use their training and influence to move the struggle for the protection of civil rights from the streets to the courts." ²³ I am biased in favor of the Lawyers Committee, as it is generally called, because I sit on its Board of Trustees. It has become an important vehicle for lawyers to promote the rule of law. By 1967 the Lawyers Committee had a staff of five full time lawyers, assisted by three or four different volunteers each month, in Jackson, Mississippi. ²⁴ Recognizing that white Mississippi lawyers would not take on civil rights representation, the President of the Mississippi state bar urged them to give Lawyers Committee attorneys "advice and informal help in gaining access to our courts...." ²⁵ In effect, the local bar recognized that if it would not meet the obligation of protecting the rule of law, it should welcome a responsible outside group of lawyers to do so. This default also heightened the need for Congress to create the Civil Rights Division of the United States Department of Justice, which brought civil suits that, in a different environment, might have been brought by private plaintiffs represented by local lawyers.

I am aware of two other strong statements from Southern lawyers in support of the rule of law. In 1958 sixty-three Little Rock lawyers published an ad saying that under the law the schools must be desegregated. And in 1963, after the bombing of the Sixteenth Street Baptist Church in Birmingham, in which four little girls were killed, a group of Birmingham lawyers issued a statement saying that even if one disagreed with the result in any case the Court's decision is the law and must be followed. ²⁶

Northern attorneys began in the early 1960's coming to the South to help civil rights groups in their quest for racial equality. As was the case with the NAACP and LDF lawyers, many faced both physical threats and legal barriers, especially application of the unauthorized practice statutes. For example, Richard B. Sobol of the Lawyers Constitutional Defense Committee was threatened with criminal prosecution. Moreover, the importation of northern lawyers who can stay for a month or two and then must return to their own practice does not solve the need for more permanent legal representation. A New York lawyer, Jack Oppenheim, tells the story of his brief stay in Sunflower County, Mississippi. A local African American civil rights leader had been arrested, probably because he was helping conduct a voter registration drive. The Chief of Police told Oppenheim that he could meet with the defendant in jail only if a local Mississippi lawyer accompanied him. Fourteen attorneys practiced in Sunflower County, all of them white. Although by 1964 the Mississippi bar had passed a resolution suggesting that its white members represent persons involved in civil rights controversies, if they could pay, none of the lawyers would agree to accompany Oppenheim to the jail. ²⁷

I should note that a few white Southern lawyers did take on civil rights representation. Those brave souls, unfortunately, were routinely harassed and often left the South when their legal practice dried up or when the death threats began to pose a danger to their families. For example Charles Morgan, Jr., a white Birmingham attorney who had represented a handful of civil rights defendants, gave a speech denouncing the community for the bombing of the Sixteenth Street Baptist Church, that had killed three little girls. The level of death threats after his speech led him to pack up and move his practice north.

In sum, Brown v. Board of Education's importance extends beyond education, beyond racial discrimination, beyond legal principles. It also helps us better understand our duties as members of the legal profession.

FOOTNOTES

¹ Bernard Schwartz and Stephan Lesher, Inside the Warren Court, 94-5 (1983).

² Leon Friedman (ed.), Argument: The complete oral argument before the Supreme Court in Brown v. Board of Education of Topeka, 1952-55, 423 (1969).

³ Id., at 460 (argument of I. Beverly Lake).

⁴ James T. Patterson, Brown v. Board of Education: A Civil Rights Milestone and its Troubled Legacy, 95 (2001).

⁵ Canons of Professional Ethics, Canon 15 (1908), reproduced in Thomas D. Morgan & Ronald D. Rotunda (eds.) 2003 Selected Standards on Professional Responsibility, 677, 681.

⁶ Canons, supra, Canon 32, 685.

⁷ James W. Silver, Mississippi: The Closed Society, 61 (1964).

⁸ J. W. Peltason: Fifty-Eight Lonely Men: Southern Federal Judges and School Desegegation, 93 (1961).

⁹ Id., at 115-122.

¹⁰ Bell v. School Board, 321 F.2d 494 (4th Cir. 1963).

¹¹ See Alfred L. Brophy, Race, Class, and the Regulation of the Legal Profession in the Progressive Era: The Case of the 1908 Canons, 12 Cornell J.L. & Pub. Pol'y. 607 (2003).

¹² Model Code of Professional Responsibility Canon 2 ("A lawyer should assist the legal profession in fulfilling its duty to make legal counsel available"); ABA Model Rules of Professional Conduct, Rule 6.1 ("Every lawyer has a professional responsibility to provide legal services to those unable to pay."); but see Rule 6.2 ("A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as: .... (c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client.").

¹³ Quoted in Atlanta Constitution, June 15, 1961, p. 20, col. 4, cited in Daniel H. Pollitt, Counsel for the Unpopular Cause: The "Hazard of Being Undone", 43 N.C.L.Rev. 9, 16 (1964).

¹⁴ N.A.A.C.P. v. Button, 371 U.S. 415, 435 (1963).

¹⁵ Id., at 443.

¹⁶ See Marvin E. Frankel, The Alabama Lawyer, 1954-1964: Has the Official Organ Atrophied?, 64 Colum. L. Rev. 12143 (1964).

¹⁷ Canon 13. See Brophy, at 611.

¹⁸ Brophy, 624-5.

¹⁹ ABA Model Rules of Professional Conduct, Rule 6.1.

²⁰ Derrick Bell, Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation, 85 Yale L.J. 470, 476-7, n. 21 (1976).

²¹ Id., at 470.

²² California State Bar Professional Conduct Rules, Rule 1-600.

²³ Charles T. Lester, Jr., The History of the The Lawyers' Committee for Civil Rights Under Law 1963-2003, Lawyers Committee for Civil Rights Under Law web site, <http://www.lawyerscomm.org/aboutus/history.html> history, downloaded Jan. 19, 2004.

²⁴ Note, "Yankee Go Home"-Civil Rights Volunteer Attorneys and the Unauthorized Practice of Law, 53 Cornell L. Rev. 117 (1967).

²⁵ John H. Doyle III, Southern Justice, 37 Mississippi L. J. 428, 442 (1966).

²⁶ Pollitt, supra, at 16-17.

²⁷ Jack Oppenheim, The Abdication of the Southern Bar, in Leon Friedman (ed.), Southern Justice, 127, 130-31 (1965). Brown v. Board