This year marks the 50th anniversary of Brown v. Board of Education, which propelled NAACP attorneys such as Thurgood Marshall, Spottswood Robinson and Oliver Hill into the public eye. Once hailed as heroes, they and the other civil rights lawyers of the 1920s-1960s have since come under criticism from scholars who argue that the civil rights movement wasted resources by concentrating on litigation for political and civil rights. Instead of assuming that they could transform society through litigation, critics argue, the lawyers would have been wiser to focus on grassroots organizing, public opinion and economic rights.

In a program in the "New Scholarship in Race and Ethnicity" series created by the Division of U.S. Studies, Professor Kenneth Mack drew on newly uncovered archival material to assert that the criticism is misplaced and that the attorneys involved in the movement both fought for economic rights and encouraged organizing outside of the courtroom. He pointed to the debate that raged throughout the 1930s among the attorneys who would argue Brown, motivated in part by the Scottsboro trials of 1931.

The Scottsboro trials involved nine young black men accused of raping two white women in Scottsboro, Alabama. The NAACP, fearing that the men were guilty, initially stayed out of the case. The radical International Labor Defense (ILD), however, leaped to their defense and brought in Clarence Darrow as their attorney. In contrast to the NAACP, the ILD preferred strategy was to expose the systemic discrimination in the courts by employing the tactic of "mass defense": staging mass demonstrations and using theatrics as well as legal argumentation in the courtroom. When eight of the black youths were sentenced to death, the ILD labeled the trials a legal lynching. It coordinated with communist parties around the word to spur international interest in the defendants' plight and stage mass demonstrations.

While the Scottsboro case was still pending, it and the question of whether the NAACP's focus on the courtroom was wise dominated the 1931 convention of the National Bar Association (NBA). (The NBA had been organized earlier by African-American lawyers shut out of the American Bar Association because of their race.) There, Clarence Darrow delivered a speech arguing that no black person could get a fair trial in the United States and that the NAACP's reliance on the white legal system and the neutrality of judges was doomed to failure. While Darrow's message was one of hopelessness, others at the convention spoke enthusiastically about adopting "a doctrine of struggle, a doctrine of fight" that would go beyond the courtroom to unite black and white workers. The ensuing debate resulted in a resolution calling upon NBA members to use all "lawful methods" to fight cases such as Scottsboro. "Lawful methods" implicitly included protests outside the courtroom, and the resolution therefore staked out a position somewhere between the NAACP's reliance upon litigation and the ILD's preference for grassroots organizing.

In the ensuing years, spurred by the Depression, the NAACP turned its attention in part to fighting discrimination against African Americans in labor unions and employment. Charles Houston, a leading black NAACP lawyer, saw the integration of labor unions – rather than reliance on litigation alone – as the key to transforming American society. By the 1940s, Professor Mack found, the NAACP was utilizing a combination of litigation and qualified mass defense. The recent critique of NAACP attorneys, in other words, not only is inaccurate but was in fact prefigured by the civil rights attorneys' own debates.

Daniel Ernst noted that his or her profession is a major aspect of any lawyer's personal identity. The question for the lawyers of the civil rights era was how best to perform what they saw as their social and political role while fulfilling their responsibility to represent their clients. Knowing that they needed white allies in the courts if they were to serve the interests of their clients, NAACP lawyers initially adopted a strategy that Ernst called "the politics of respectability." Litigation was an organizational tactic, designed to achieve both respect for the lawyers and justice for their African-American clients. With the economic downturn of the 1930s and the continuation of rampant discrimination in the courts, the NAACP lawyers, more and more of whom were themselves black, realized that they had to adopt additional methods.

Robert Gordon commented that the civil rights lawyers faced the important question of how best to organize themselves as a public interest bar. All lawyers work in context: they need clients; they must interact with other attorneys and with judges. In the 1930s, as Ernst indicated, NAACP and other "cause" attorneys adopted the strategy of working within the legal system as one that would serve both themselves and their clients. As Gordon reminded the audience, however, it was a strategy that depended on the benevolence of the white system. Benevolence in turn was affected by geography. Playing by the legal rules might work in northern courtrooms; it could not do so in those of the Deep South, and the civil rights attorneys gradually came to realize that. Their horizon, Gordon asserted, was widened as well by the New Deal, which brought political and economic ideas previously considered radical in from the cold. Black lawyers consequently realized they could cooperate with hitherto scorned labor lawyers on economic issues in order to achieve meaningful racial justice.

A concern with economic justice, along with a mainstreaming of what previously had been regarded as overly radical tactics and a recognition that public opinion had to be mobilized before racial justice could be expected from courts and legislatures, became the new hallmark of the civil rights lawyers. That development, the commentators agreed, has been made clear for the first time by Professor Mack's important research, which will permanently alter the way legal historians tell the story of the civil rights movement and the members of the bar who were so central to it.

This event was made possible and co-sponsored by the
Damon J. Keith Law Collection of African-American Legal History.

Prof. Mack's article is available here, courtesy of the Journal of American History.

Philippa Strum, Director, Division of U.S. Studies (202) 691-4129