Maryland Bar Bulletin
Publications : Bar Bulletin

July, 2004

Maryland and  Brown vs. Board of Education
By Raymond Daniel Burk

During May, we marked 50 years since the U.S. Supreme Court announced its decision in Brown vs. Board of Education, which declared an end to legally-sanctioned segregation in our nation’s public schools. That ruling will be fittingly remembered for fueling the civil rights movement that ultimately brought an end to the stain of Jim Crow and finally eradicated state-enforced racism in America.

Hopefully, the recent anniversary of Brown will be remembered not merely as a legal milestone but as a reason to make us all mindful of the historic struggle that led to it and the dreams of what might yet be accomplished a half-century later by a rekindling of the spirit that made Brown possible.

The road toward a nation in which the law became truly colorblind passed through many venues – from trains and buses to libraries and tennis courts, from beaches and parks to elections and real estate covenants. But it was in the context of educational opportunity that the brilliant legal strategy of law school dean, the passionate advocacy of a future Supreme Court Justice and the enlightened vision of a Baltimore trial judge came together to lend an irreversible momentum to the cause of civil rights.

It took the devastation of our horrific Civil War to finally rid our country of the dark legacy of having practiced race-based slavery, but it did not by any means create a nation in which all citizens were equal before the law. The 14th Amendment, adopted in 1868, was intended to guarantee equal protection of the laws to all Americans without abridgement by the States. But State-sanctioned segregation (which had long existed throughout the country and not just in the States of the Confederacy) would persist and indeed become even more entrenched.

This reality was accurately reflected in the 1896 ruling of the Supreme Court in Plessy vs. Ferguson, which sustained a Louisiana law requiring “equal but separate accommodations” for white and black railroad passengers. The Court observed that the 14th Amendment “could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the races upon terms unsatisfactory to either.”

Such was the state of the law when Thurgood Marshall was born in Baltimore in 1908. When he graduated from Lincoln University with honors and designs on a legal career, his hometown law school was not an option. The University of Maryland School of Law in Baltimore did not admit African-Americans. Instead, Marshall attended Howard University Law School in Washington.

At Howard, Marshall met and came under the influence of the school’s dean, Charles Houston, the first full-time legal counsel for the National Association for the Advancement of Colored People (NAACP). Upon graduation, Marshall would join Houston in the NAACP’s legal efforts to promote equal opportunity.

Houston devised a plan to seek equality in graduate and professional education by forcing states to comply with the equal but separate requirement of Plessy vs. Ferguson. He envisioned requiring states to choose between building and funding expensive separate institutions that were truly equal or admitting blacks to the existing schools.

This legal strategy brought Houston and Marshall to Baltimore in 1935 on behalf of Donald Murray, an African-American resident of the City who was a graduate of Amherst College and met all admissions requirements of the University of Maryland School of Law, except that his skin was not of the required color. While anticipating that the state courts would affirm the University’s policy, Houston and Marshall saw the case an opportunity to possibly bring the issue to the Supreme Court.

Much to their surprise, however, Judge Eugene O’Dunne of the Baltimore City Court sided with Donald Murray. He found that the University had denied him equal protection – there being no state law school for blacks, let alone an equal one – and issued a writ of mandamus compelling his admission. Judge O’Dunne’s ruling was nothing less than a legal bombshell in the battle for racial equality, receiving widespread national attention.

It was the State that took the case on appeal, arguing that segregation in education was permissible and was, indeed, the law of the State. Houston and Marshall argued that segregation itself was inherently unequal.

In early 1936, the Maryland Court of Appeals issued its unanimous opinion in Pearson vs. Murray, affirming Judge O’Dunne’s decision and requiring Donald Murray’s admission to the law school. Perhaps the most succinct statement that the time for racial justice had arrived came from the opinion’s author, Chief Judge Carroll T. Bond: “Compliance with the Constitution cannot be deferred at the will of the state. Whatever system it adopts for legal education now must furnish equality of treatment now.”

Charles Houston and Thurgood Marshall would build on their Maryland accomplishment until Houston’s death in 1950, reaching the Supreme Court with cases out of Missouri, Oklahoma and Texas that methodically decimated the doctrine of separate but equal in graduate and professional education. Marshall would ultimately win 29 Supreme Court cases in furtherance of the cause of equality, including Brown. But none was more significant than the one rendered in a Baltimore trial court in helping give voice to the law to carry out the true meaning of our nation’s creed.

Endowed with right, the law endured the struggle for the implementation of Brown, and the extension of its vision of inherent fairness beyond public school classrooms and into the American way of life. That effort continues, and it is here that we can find inspiration in names like Houston, Marshall and O’Dunne who correctly saw that the rule of law is our nation’s gift to humanity, that we are all enriched by having made a top-flight legal education available to someone like Donald Murray, and that there are no limits to what we have to gain through the doors we have the capacity to open in the name of justice.

Raymond Daniel Burke is a partner in the Baltimore law firm of Freishtat, Burke, Mullen & Dubnow, LLC.



Publications : Bar Bulletin: July, 2004

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