Judge Carter and the Brown Decision

Patricia Sullivan

The OAH will commemorate the fiftieth anniversary of Brown v. Board of Education with a plenary ses sion on March 26, 2004, featuring Judge Robert L. Carter, a primary architect of Brown. Carter will reflect on the legacy of the Supreme Court decision that launched the modern civil rights movement, and participate in a discussion with Derrick Bell, John Hope Franklin, Lani Guinier, and Charles Ogletree, who will serve as moderator.

Brown v. Board of Education was a crowning achievement in Robert Carter’s illustrious career with the National Association for the Advancement of Colored People. From 1944 through 1968, Carter played a leading role in crafting and litigating the major cases of the civil rights era. While counsel for the NAACP, he argued and won twenty-one of twenty-two cases before the United State Supreme Court. Since 1972, Robert Carter has served as a federal district judge for the southern district of New York.

Born in Careyville, Florida, in 1917, Robert Carter was a child of the Great Migration. His family moved north to Newark, New Jersey, shortly after his birth. When he was just a year old his father died, leaving his mother with eight children to support. Annie Martin Carter went to work as a domestic worker and presided over a loving and close-knit family, which supported the educational ambitions of the youngest child. “My desire for education,” Carter recalled, inspired him in his early years.

At the age of sixteen, Carter enrolled in Lincoln University in Pennsylvania. His first experience of a predominantly black educational environment was a deeply rewarding experience, both personally and intellectually. In the fall of 1937, he entered Howard University Law School. During his second semester he visited the Supreme Court for the first time to hear former Howard Law School dean Charles Hamilton Houston argue and win the first NAACP school case to reach the Supreme Court, Missouri ex. Rel Gaines v. Canada, regarding Lloyd Gaines’s application to attend the University of Missouri Law School. Carter’s memory of this civil rights milestone is punctuated by a revealing episode: Supreme Court Justice James McReynolds swirled his chair around and turned his back to Charles Houston during his presentation to the court.

Carter contemplated an academic career. Upon receiving his law degree from Howard, he attended Columbia University and earned an LLM degree before being drafted into the army in 1941. The virulent racism he experienced in the Army Air Force set him firmly on his life course. “It made a militant of me,” Carter explained, “and instilled in me a fierce determination to fight against racism with all my intellectual and physical strength.” When Thurgood Marshall offered him a job with NAACP legal staff upon his release from the army in 1944, he eagerly accepted.

Working as Marshall’s chief legal assistant, Carter conceptualized legal strategy and supervised the preparation and filing of briefs for the NAACP’s frontal assault on Jim Crow during the postwar years. As one associate put it, “Bob Carter was the keel and Thurgood was the wind.” His work in developing a sharp-edged litigation program was complemented by extensive work in the field. He tried cases in every state of the former Confederacy, and his experiences in the courtroom deepened his appreciation of the unique role played by black civil rights lawyers in the segregated South. The trials, he explains, were a form of public theatre, which afforded southern blacks an opportunity to see black lawyers in a position of authority, cross-examining and challenging white officials. After trying a teacher’s salary case with Constance Baker Motley in Jackson, Mississippi, he learned that scenes from the trial were reenacted in barbershops, beauty parlors, and bars throughout the black community.

In 1950, the NAACP shifted from a strategy designed to compel equalization of facilities and resources to an all-out challenge to enforced racial segregation. This was a leap into uncharted legal waters, and demanded fresh approaches. Robert Carter looked to contemporary social science and found psychological and sociological studies demonstrating the deleterious effects of segregation. Here, he believed was the key to successfully challenging Plessy v. Ferguson, and he recruited the young sociologist, Kenneth Clark, to aid the NAACP legal team in pursuing this approach. This became the pivot on which a unanimous court ruled on May 17, 1954 in Brown v. Board that “separate educational facilities are inherently unequal.”

Brown initiated a decade of heightening black protest and the escalation of white massive resistance, which aimed to crush civil rights protest and drive the NAACP from the South. In countering these attacks, Robert Carter argued and won three major cases. NAACP v. Alabama, which secured First Amendment protection for civil rights organizations, preventing the enforced disclosure of the identity of NAACP rank and file members; NAACP v. Button, which validated the right of the organization to encourage and sponsor litigation challenging the constitutionality of Jim Crow laws and procedures; and Gomillion v. Lightfoot, which struck down the gerrymandering of Tuskegee, Alabama, and paved the way for the court to enter the “political thicket” of voting and electoral procedures and issue its “one man, one vote” decision.

While the final assault on Jim Crow went forward in the South, Carter began working to expand the interpretation and application of the court’s mandate, namely “to establish through constitutional doctrine equal educational opportunity for black children in real life.”

After becoming general counsel of the NAACP in 1955, he developed and led an innovative legal campaign against northern-style school segregation and racial inequality. He and his associates sought, with little success, to expand the application of Brown, arguing that whenever school assignment policies or organization produced inferior education of black students, whether intentional or not, that was a violation of the law. While waging a broad fight for equal educational opportunities in northern public schools, Carter and his small staff also challenged job and housing discrimination, and secured a National Labor Relations Board ruling outlawing craft union segregation as an unfair labor practice.

Following his departure from the NAACP in 1968, Carter became a partner in the law firm of Poletti, Freiden, Prashker, Feldman and Gartner and remained active in public affairs. With Floyd McKissick, he was a cofounder of the National Conference of Black Lawyers. In 1972, on the recommendation of Senator Jacob Javits, Richard Nixon appointed Carter to the federal bench.

Robert Carter has just completed an autobiography that will be published by the New Press. While his life story reflects the major changes in race relations that transpired in the last century, he remains intent on keeping attention focused on the persistence of inequity and discrimination in American society. He has advocated cross-racial coalitions of African Americans and other disadvantaged groups as “essential to reform the democratic process in the country and advance the struggle for civil rights and racial justice in the twenty-first century.”

In taking stock of Brown, Carter observes that it failed to achieve its primary purpose—to guarantee equal educational opportunity for African American children. But the larger meaning of Brown continues to resonate. It will, he writes, “always stand at the highest pinnacle of American judicial expression because in guaranteeing equality to all persons in our society as a fundamental tenet of our basic law, it espouses the loftiest values.”

Patricia Sullivan is an associate professor of history and African American studies at the University of South Carolina. She is writing a history of the NAACP.