South Carolina plaintiffs seek to correct civil rights record
Americans might recognize Brown v. Board of Education as the title of the 1954 landmark Supreme Court decision that made racial segregation under the “separate but equal” doctrine unconstitutional.
What most surely do not know is that the name might have resulted from a clerical error and should have been Briggs v. Elliott. That was the first desegregation case submitted both to a federal district court and to the Supreme Court — by a group of courageous citizens in Clarendon County, SC, nearly 70 years ago.
Three people related to the original case have filed a petition with the Supreme Court to change the name from Brown to Briggs. They are Nathaniel Briggs, son of one original plaintiff, Harry Briggs, as well as Beatrice Brown Rivers and Ethel Brown Marshall, two survivors who were children when they signed a key letter in the case in 1949.
The series of events that put Briggs in second place behind Brown is complicated and confusing, to say the least. Suffice it to say that the case that became Briggs started as a federal lawsuit in 1947, the first of its kind in the United States in the 20th century. It went to the Supreme Court in 1950, while Brown was filed in 1951 and decided in 1954. That’s the basic chronology. The problem for Briggs began when the Supreme Court remanded the case back to the South Carolina federal court seeking information on a specific point — whether $750,000 promised by then-governor and former Supreme Court justice James F. Byrnes to rectify school transportation inequality was adequate to resolve the greater issue of racial inequality.
At the time, 30 school buses were available to the white children in District 26, but there were none — as in zero — for the Black children. Plaintiff Levi Pearson’s children had to walk nine miles each way to school and home every day. The case failed because Pearson allegedly didn’t pay taxes in District 26. (He didn’t have the receipt.) The court ruled that Pearson had no legal standing to sue.
Enter future Supreme Court justice Thurgood Marshall, then the lead counsel for the NAACP, who answered the $750,000 question in the negative. Accepting the advice of US District Judge J. Waties Waring of Charleston, he retooled the Briggs case into a constitutional challenge to the “separate but equal” doctrine. Marshall got a local ministerturned-activist, the Rev. Joseph DeLaine, to find 20 parents to sign on as plaintiffs, and the rest is history, as they say.
On May 28, 1951, Marshall, Robert Carter and Spottswood Robinson brought the case before a three-judge panel, including Waring, at the federal courthouse in Charleston. The court ruled that the plaintiff was entitled to relief but denied an injunction to abolish segregation. In his dissent, Waring wrote: “Segregation is per se inequality.”
The hitch is that when Briggs was subsequently returned to the Supreme Court, it was docketed behind Brown. It is understandable, given their history, that Briggs’s son and the other two petitioners feel stiffed by the secondary “et al” status.
The new Briggs case, filed in November by lead attorney Tom Mullikin of Camden, SC, has cleared the first hurdle toward a possible hearing before the Supreme Court. It is among submissions that the justices are scheduled to review on Jan. 5 to decide which, if any, qualify to be heard.
The case seems clear enough. There’s no debating that Briggs was the first lawsuit to challenge the “separate but equal” rule, four years before Brown was decided. There’s also no debating that the white minority in Clarendon County punished its Black citizens, who made up two-thirds of the county’s population, for trying to improve education for their children. The Black principal of the Black high school was fired and replaced by a man who had no college degree. Black citizens were denied credit by white-owned businesses and banks — and terrorized by a resurgence of the Ku Klux Klan with burnings, intimidation and at least one mysterious death.
Today, it’s hard to imagine how bad things were in Clarendon County, which was considered the most racist place in South Carolina and possibly the nation. The school that the children were walking to was a boardand-tar, one-room building without plumbing.
Once Marshall became involved in the Briggs cases, acts of retribution escalated. The white population must have had a sense of what was coming, and ugly turned uglier. For his trouble in recruiting plaintiffs, DeLaine was fired from his church, and Klansmen set fire to his home. When the African Methodist Episcopal Church transferred him to Lake City, SC, he faced the same hostilities as before, forcing him eventually to leave the state — for good.
Such events underscore Mullikin’s argument that the misnumbering of the Briggs appeal “diminished the rightful place in history of these courageous families.”
But Mullikin, a mountain climber, might have encountered his most daunting summit with this case. The granting of relief from judgment is extremely rare, as he points out in his brief. Moreover, two constitutional lawyers he hired to review his case were not encouraging. “No way” was how they put it. That is, there’s no way the court is going to hear the case, much less change the name of one of the most important civil rights decisions in the history of American jurisprudence.
But they could. And they should.