|Margold Report (1931)
- The NAACP's strategy to reverse Plessy would make an end run on segregation before
a direct assault:
- Attack segregation as now provided and administered, staying close to the Court’s own precedents but finding areas of the law which they have chosen to ignore.
- Once victories had been accomplished, then assert that separate schools could never be equal because of the stigma segregation imposes on black children.
- “If we boldly challenge the constitutional validity of segregation if and when irremediably accompanied by discrimination, we can strike directly at the most prolific sources of discrimination.”
- Contrast with the Socialist position (Roger Baldwin of ACLU) which favored union of white and black workers to break down segregation.
- The Garland Fund was established to finance a “large scale, widespread, dramatic campaign to give the Southern Negro his constitutional rights, his political and civil equality…” Taxpayer suits
were urged to assure equal schools in the Deep South.
- Nathan Margold’s advice (Harvard Law School, associate of Felix Frankfurter)
o Margold criticized Garland’s strategy because it would require bringing suits in the thousands against school districts and then the suits would have to be brought again and again, year after year.
o He recommended that the NAACP “boldly challenge the constitutional validity of segregation if and when accompanied by discrimination…” but not attack segregation under any or all circumstances.
o He argued that the question of equal schools had not yet been confronted directly by the court. This attack would address all state schools that habitually failed to provide equal educational facilities for Negroes as discriminatory.
o Margold pinpointed the state funding allocation practice which did not specify the proportion of the division of funding for whites and blacks as unconstitutional. It could be shown that school officials in segregating states had been operating under open-ended statutes which should have but did not charge them with providing equal
funding for both black and white schools.
Yick Wo v. Hopkins
(1886) San Francisco laundry law had been struck down because it granted power to public officials with no guidelines for its application. The court had had argued that power without guidelines for its application: opens opportunities for abuse wherein fair laws can be applied unjustly to minorities: a violation of equal protection clause of the 14th Amendment
o Charlie Houston’s variation on the Margold theory: target graduate schools- the arena in which whites were most vulnerable and least likely to respond with anger. Educational facilities for blacks were neither separate nor equal, just non-existent. The states would have to build separate graduate schools or admit blacks to existing ones.
Murray v. Maryland
Missouri ex. rel. Gaines v. Canada (1938);
Sipuel v. Oklahoma State Board of Regents
Sweatt v. Painter (1950);
McLaurin v. Oklahoma State Regents for Higher Education