Nearly 70 years after the U.S. Supreme Court decided Brown v. Board of Education of Topeka, the historic ruling on school desegregation is still being debated, and some aspects of it are, in a sense, still being litigated.
Last fall, the justices and advocates argued over the nuances of Brown as the court considered two major cases about the use of race in college admissions. Now, a group of descendants of the plaintiffs in one of the companion cases that made up the Brown decision would like to see a simple but symbolic change to the record of the case.
Those affiliated with that companion case, out of South Carolina, are preparing to ask the high court to rename the historic case. Instead of Brown v. Board of Education, they plan to ask that the decision be known going forward as Briggs v. Elliott, the caption of their case filed in 1950.
“For historical correctness, it needs to be said which case came first,” Nathaniel Briggs, 75, the youngest son of South Carolina lead plaintiff Harry Briggs, said in an interview.
The South Carolina lawsuit was the first filed in a trial court among the group of cases the NAACP Legal Defense Fund pressed to attack K-12 school segregation in the 1950s. And it was the first of that group to reach the Supreme Court’s docket, in 1951.
Thomas S. Mullikin, a Camden, S.C., lawyer who is drawing up the petition that will ask the court to make the change, said the descendants and other supporters of the idea are realistic about whether such a change would alter how the Brown cases are referred to in the public consciousness.
“We’re not naive enough to think that all history books are now going to say, ‘It’s not Brown v. Board of Education, it’s now Briggs v. Elliott,’” Mullikin said. “I’m not delusional, but I feel strongly that this was a piece of history that was stolen from these folks. I think the court could do it. It would be the right thing to do.”
Briggs, who lives in New Jersey, said, “Everywhere I’ve gone in my life over the last 50 years, people talk about Brown but not about the first case from South Carolina.”
“I think the people there got shortchanged,” he said.
South Carolina case reached high court docket first
There is some historical complexity surrounding the docketing of the cases, as well as a number of theories about why the justices may have gone out of their way to name the decision for the case from Kansas. The Supreme Court in 1952 granted review of desegregation cases from Delaware, Virginia, and the District of Columbia in addition to those from Kansas and South Carolina.
It’s true that Briggs v. Elliott was the first lawsuit of that group to be filed. The Rev. Joseph A. De Laine, an African Methodist Episcopal minister who was principal of the all-Black Scott’s Branch School in Summerton, part of the Clarendon County public school system, initially sought a school bus to serve students who walked as far as five miles to the school.
Harry Briggs, a Navy veteran and service station attendant, became the first to sign on as a plaintiff in the suit that would be filed by NAACP Legal Defense Fund director Thurgood Marshall. The suit initially sought better equalization of resources under the then-prevailing standard of the Supreme Court’s 1896 Plessy v. Ferguson decision, which upheld “separate but equal” railroad cars for Black passengers and was used by some 20 states that required or permitted segregating schools by race.
Historical accounts seem to agree that U.S. District Judge Julius Waties Waring of Charleston nudged Marshall on a secondary argument cited in the suit, one that directly challenged the “separate but equal” principle. That effectively turned the case from one seeking equalization of resources for Black schools to one seeking desegregation. And because that meant the suit was challenging South Carolina’s segregation law under the 14th Amendment’s equal-protection clause, the case was shifted to a three-judge federal district court.
That court ruled 2-1 to reject the challenge, with Waring writing a dissent that said, “Segregation is per se inequality.”
Following federal procedures for decisions from three-judge district courts, the Legal Defense Fund appealed directly to the Supreme Court in July 1951. Meanwhile, in December of that year, the Clarendon County school district filed a report with the local federal court on its equalization efforts. The district, and the state, had conceded during the trial that Black schools were not equal to white schools, and they hoped their efforts to increase resources would suffice to avoid desegregation.
The three-judge federal court forwarded the report to the Supreme Court, since the appeal was pending there. But the high court promptly sent the case back to the district court.
In an unsigned “per curiam” opinion on Jan. 28, 1952, the high court said, “Prior to our consideration of the questions raised on this appeal, we should have the benefit of the views of the District Court upon the additional facts brought to the attention of that court in the report which it ordered.”
Justices Hugo L. Black and William O. Douglas, two appointees of President Franklin D. Roosevelt who were early advocates for overruling Plessy, dissented from the order. The court said they found the factual questions “wholly irrelevant” to the constitutional issues presented by the case, which they would have set for argument.
So, Briggs v. Elliott was back in South Carolina.
A matter of docketing
In the meantime, the appeal of Brown v. Board of Education arrived at the high court in December 1951. A three-judge court in Topeka had ruled unanimously against the case for which Oliver L. Brown was the lead plaintiff on behalf of his daughter Linda C. Brown. Most historical accounts, including Richard Kluger’s comprehensive 1975 history of Brown and the companion cases, Simple Justice, say Brown topped the list simply because he was the lone man among the plaintiffs.
After the South Carolina court denied further relief in Briggs, the Legal Defense Fund again appealed that case to the Supreme Court, where the clerk’s office docketed the case after the Brown appeal rather than put it back at the head of the line.
In June 1952, the Supreme Court granted the direct appeals in Brown and Briggs and set the cases for argument that October. Brown had docket No. 8 for that term, Briggs No. 101.
Other courts would soon rule in the Virginia case, Davis v. County School Board of Prince Edward County; the District of Columbia case, Bolling v Sharpe; and the Delaware case, Gebhart v. Belton. (The Delaware case was the only one of the five where desegregation advocates won in a lower court. Those cases had docket Nos. 191, 413, and 448, respectively.)
The Supreme Court consolidated the cases and postponed arguments until December 1952. At the end of that term, however, the court was still struggling with the cases and ordered another round of oral arguments, asking the parties to file new briefs addressing whether the Congress that adopted the 14th Amendment intended to bar school segregation.
On May 17, 1954, Chief Justice Earl Warren, who had joined the court after Fred M. Vinson died in the summer of 1953, announced the decision for a unanimous court that “in the field of public education, ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”
The decision reflects what appears to be new docket numbers for that 1953-54 court term, with Brown as No. 1, Briggs as No. 2, and new docket numbers for the other cases.
Warren announced a separate opinion for the District of Columbia case, holding that segregating schools by race in the nation’s capital, which was largely overseen by Congress and as a non-state was not covered by the 14th Amendment, violated the 5th Amendment’s due-process clause. The cases were argued again the next term on the remedies for bringing about desegregation, leading to the 1955 decision known as Brown II and its famous standard that states move “with all deliberate speed” to integrate.
Many theories, explanations for why the high court put Brown first
The forthcoming effort by those in South Carolina to rename the case will stress that Briggs v. Elliott was filed as a lawsuit before Brown, and that it was docketed that first time ahead of the Kansas case.
“Those facts are uncontroverted,” said Mulliken, the South Carolina lawyer. “We’re not accusing anyone of anything nefarious. Briggs was the first case filed in federal district court, and the first docketed at the Supreme Court.”
Mullikin plans to file a “petition for extraordinary relief” in the next few weeks. He said he consulted some Supreme Court scholars, who said, “No way.”
“We’re prepared to be told ‘no,’ but we’re going to ask the question,” he said.
Mark Tushnet, a retired Harvard Law School professor and former law clerk to Marshall on the Supreme Court, wasn’t one of the scholars Mullikin consulted, but he agrees with the others.
“It’s going to lose, but so what?” said Tushnet. “I don’t fault them for it.”
He believes the fact that the Briggs case was sent back to South Carolina and then later docketed after the Kansas case is the simple explanation for why the consolidated case became known to history as Brown v. Board of Education.
“The clerk clearly treated” the return filing of Briggs “as a new case and not as a revival of the first filing,” Tushnet said. “I think the real explanation is just bureaucratic.”
He is skeptical of other theories and explanations for why the court put Brown first.
One is that South Carolina Gov. James F. Byrnes may have lobbied members of the court to keep his state’s case from the lead spot. Byrnes served in the U.S. House and Senate, where he was a New Deal champion before Roosevelt appointed him to the Supreme Court in 1941. He served just one term before joining the administration, later serving as an aide to President Harry S. Truman and then U.S. Secretary of State. He was elected South Carolina governor in 1950.
Byrnes was an ardent segregationist who increased funding to help “equalize” Black schools as the pressure for integration built. But there is a lack of hard evidence regarding any influence he might have exerted on the justices, including the five still on the court with whom he had served.
The more convincing case is that the high court was sensitive to how the desegregation decision would play in the South, and all the other states and the District of Columbia were former slavery jurisdictions, while Kansas was both a Midwestern and a non-slave state.
Kluger had interviewed Justice Tom C. Clark for Simple Justice, and the Texan explained why the court consolidated several cases to address the issue and why it chose to put the Kansas case on top.
“We felt it was much better to have representative cases from different parts of the country, and so we consolidated them and made Brown first so that the whole question would not smack of being a purely Southern one,” Clark said.
Daughter of Oliver Brown has some thoughts about name change effort
When Cheryl Brown Henderson, the youngest daughter of Oliver Brown, heard about the South Carolina effort to change the name of the case, she phoned her friend Cecil Williams, a South Carolina photographer who had snapped photos of Thurgood Marshall when he arrived in Charleston to argue the Briggs case. Williams runs a civil rights museum in Orangeburg, S.C., and supports the name change effort.
“I absolutely sympathize with their struggles and their reasons for believing the case should be named for Briggs v. Elliott,” Henderson said. “I have worked over many years to educate the nation about all the cases.”
But Henderson, the president of the Brown Foundation for Educational Equity, Excellence and Research in Topeka, reminded Williams that there were earlier efforts in Kansas and in particular Topeka to eliminate separate schools before the Legal Defense Fund-led lawsuit that bears her father’s name.
“I wanted him to understand that Kansas was in the lead in desegregation cases,” she said. “I told Cecil that we’re not pushing back and saying they shouldn’t do this. But our struggles are very similar.”
The Brown Foundation’s website promotes a book, Recovering Untold Stories: An Enduring Legacy of the Brown v. Board of Education Decision, which highlights individual narratives from all five cases.
The Brown Foundation was instrumental, along with millions of dollars appropriated by Congress, in turning the formerly all-Black Monroe School in Topeka into a national historic site that was dedicated by President George W. Bush on the 50th anniversary of the decision in 2004.
The idea that the other cases and their significant schools had not received the same kind of attention motivated Congress last year to pass a law that expands the definition of the Brown v. Board of Education National Historic Site to include sites in South Carolina, Delaware, Virginia, and the District of Columbia.
U.S. Rep. James E. Clyburn, D-S.C., said on the House floor in April 2022 that besides the Monroe School site in Topeka, “the other communities involved in this historic effort have no National Park Service presence acknowledging their contributions. This legislation will right that wrong.”
Nathaniel Briggs notes that his father lost his job at the service station because of his involvement in the lawsuit. His family moved about a bit after the Brown decision before settling in New York City, where he first attended school with white children. He raised his own children in the 1970s in Teaneck, N.J., which he described as one of the first Northern communities to voluntarily desegregate its schools.
Briggs regularly returns to Summerton on the May 17 anniversary of the desegregation decision.
“These folks were risking everything they had to have access to equal education,” he said, referring to all the plaintiffs in the Briggs case. “They deserve more recognition.”