Before Brown: Charles H. Houston and the Gaines Case

In 1895 in Plessy v. Ferguson the Supreme Court announced the legal principle, separate but equal, that would guide American race relations for over half a century. For Charles Houston, the training of black lawyers was a key to mounting an attack on segregation. While at Harvard, Houston wrote that there must be Negro lawyers in every community and that the great majority of these lawyers must come from Negro schools. It was, he concluded, in the best interests of the United States - to provide the best teachers possible at law schools where Negroes might be trained. After graduating from Harvard Law School, Houston attained a teaching position at Howard Law School in 1924, which since its establishment in 1869 had trained three-fourths of the black lawyers in the United States. In October 1934, Houston recommended to the NAACP board that it concentrate its legal efforts on ending discrimination in education and focus first on segregation in the graduate and professional schools of state universities. The complete absence of graduate and professional opportunities in many states made the inequality dramatic and impossible to dismiss. This essay recounts the efforts of Houston on behalf of Lloyd L. Gaines to gain admission to the then segregated University of Missouri School of Law. Chief Justice Charles Evans Hughes announced the Court's decision in Missouri ex rel. Gaines v. Canada, Registrar of the University of Missouri on December 12, 1938. The Missouri Supreme Court had erred. Missouri had violated the right of Lloyd Gaines to the equal protection of the laws. The equal protection of the laws is a pledge of the protection of equal laws, Hughes declared. The obligation of the State to provide the protection of equal laws must be performed - within its own jurisdiction. The essence of the constitutional right is that it is a personal one. Gaines as an individual was entitled to have Missouri furnish within its borders facilities for legal education substantially equal to those which the State afforded for persons of the white race, whether or not other Negroes sought the same opportunity. The Gaines case was dismissed when he disappeared and failed to attend depositions on its enforcement. In the years before his death, Charles Houston continued to devote much of his attention to what he saw as the most critical battle of the time, the fight to integrate American schools. World War II had made blacks more militant and many whites more receptive to the idea of integration. By mid-1947, Houston decided the time was right for a direct, open, all-out fight against segregation. There is, Houston declared, no such thing as 'separate but equal.' Segregation itself imports inequality. Brown v. Board of Education of Topeka is justly considered a landmark in our history of constitutional jurisprudence. Missouri ex rel. Gaines v. Canada is largely forgotten. Gaines deserves better. Of the two cases, only the outcome of Gaines was in genuine doubt. The Court's language in Gaines - the first Supreme Court victory ever achieved by blacks in an education case - required that States prove Negroes had real and substantial equality of educational opportunities. That language, coupled with a shift in attitudes concerning racial issues brought on by World War II, made the Court's verdict in Brown all but inevitable.