JOHN FRANK AND THE "LAW PROFESSORS' BRIEF"
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JOHN FRANK AND THE "LAW PROFESSORS'
BRIEF"
George Paul*
This essay honors the author's law partner, John P. Frank. To his friends
he was "John," and within the firm, "JPF." He was most often known,
powerfully, as "John Frank." And because of his impact, Lewis and Roca
has long been known nationally as "John Frank's firm," notwithstanding
that John was neither a founder, nor ever a name partner, and
notwithstanding the firm's other considerable national prominence.
John Frank accomplished so much in his day that anything short of a
full-scale biography is inadequate and unfair. But "accomplishments" are
not the focus here. Rather, we pay homage to a more elusive phenomenon:
that John's character, and his qualities as a human being, acted as wonderful
catalyst--drawing together large numbers of gifted lawyers, then uniting
them into partnership of high purpose.
John's recruits now stride in many places. Most continue in private
practice. Others have made their mark in the business world. An unusually
large number are dedicated to public service. This last group has populated
Arizona courts from Superior to Supreme; the Chief Judgeships of both the
Ninth and Tenth U.S. Circuit Courts of Appeal; a panoply of commissions
and committees; Arizona's Attorney General's Office; and the
Governorship of Arizona.
John had a white-hot intellect, to be sure, but he was infinitely more than
brilliant. John was unique, perhaps nationally unique-a Giant of a mind,
posing as country lawyer. His hallmark was a multi-faceted personal style:
first and foremost that of family man, but also that of gracious host; appeals
expert; opera buff; craps player; prolific author; world traveler; Lincoln
authority; fun-loving soul; creator of ritual-and friend of true character.
John helped build a firm of mutual respect and interconnectedness, a
place rich in quality and tradition. He is proof that reality is largely created
by the mind, and that each spirit imagines his world before living it. In this
regard, John's greatest and most lasting lesson, in his long and varied
professorship, is that one man can lead such a sumptuously rich life.
Rather than tick off cases, books, clients or credentials, this essay
focuses on a single cause adopted by John while young. One can learn
much about an advocate, indeed, by studying the causes he champions.
* Partner, Lewis and Roca, Phoenix, Arizona.
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John developed into the leading appellate advocate of the Southwest. This
is a story of his nascent brilliance in his specialty; his trademark academic
approach; and perhaps above all, his intellectual audacity. This is the story
of how a lawyer in his 20s led an important charge, in a constitutional epic,
which unfolds from the time before the Civil War, to the present-and
beyond.
I. JOHN P. FRANK AND A PROFESSOR'S ASSIGNMENT OF A LIFETIME
While a junior professor first at Indiana and then at Yale Law School,
John dedicated himself to fighting an insidious evil. This was the living
reincarnation of slavery: the segregation of the races. The phenomenon
was culturally ingrained and enforced by terror. But much worse, it had
been legitimized by the high court of the land.' It is hard to imagine a more
worthy cause than opposing such a system in the mid-twentieth century, and
John played a pivotal role. He was chief collaborator in what is arguably the
most important of the U.S. Supreme Court briefs' 2addressing desegregation
in the United States-the "Law Professors' Brief.
It was the constitutional issue of the century. And the work was a
national team effort, remarkable in that it self-consciously held itself out as
the unified voice of the progressive law professors of the United States.
Among the authors (the brief had almost two hundred signatories) were a
future Dean of Harvard Law School; a future Attorney General of the
United States, later President of the University of Chicago; a future U.S.
Solicitor General; and as chief laborer: John Frank. The case, for all
practical purposes, nailed shut the coffin on "separate but equal."
The Law Professors' Brief was filed in a Texas case called Sweatt v.
Painter,3 rightfully considered by Southern politicians to be the most
important case to the South since the Civil War. And the success of the
argument set off a legal explosion by which "separate but equal" came
crashing down. The event was of mammoth importance, affecting the lives
of hundreds of millions, and, in ways, is still unfolding.
Thus, to pay homage to John, so many times the historian in his multiple
life roles, here is the unfolding saga of his most important case: Sweatt v.
Painter, the annihilation of "separate but equal," through which
constitutional modernity emerged. The ruling in the case laid the
1. See Plessy v. Ferguson, 163 U.S. 537 (1896).
2. Brief for Appellant, Sweatt v. Painter, 339 U.S. 629 (1950). The Law Professors'
Brief is found in its totality at http://www.lrlaw.com/news.asp.
3. 339 U.S. 629 (1950).
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groundwork for the most important of our national and international norms:
"equality under law," known also as "equal rights."
II. HISTORICAL CONTEXT
John had a passion for history, and was an expert on the political aspects
of the Civil War. Whether that interest was borne of his research in this
case, or preceded it, is unknown. But perhaps it is no accident that the Law
Professors' Brief adopted a meticulously historical perspective, examining
in detail the private legal careers of U.S. Senators of the period. To
understand how we came to have "equal rights," we must first therefore
examine a personal drama, which intertwined the lives of a few key
nineteenth century personalities. These were practicing lawyers, whose
words and actions came to result in constitutional change, but only after
their actions had been interpreted by other lawyers, a full century later.
Thus, to fully appreciate Frank's role and legal approach in the Law
Professors' Brief, one must travel back to the month of May 1856.
A. The Kansas-NebraskaAct and the Demise of Slavery
Just two years earlier, the Kansas-Nebraska Act had made slavery a
possibility for the Territory of Kansas. 4 According to the Act's provisions,
it was up to the settlers of the new territory to vote on slavery in a
plebiscite.
The Act had been pushed by four powerful Southern Senators, known as
the "F Street Mess" which included South Carolina Senator Andrew Butler,
and Missouri Senator David Atchison.5
Soon a virtual civil war erupted. Two competing governments strove for
recognition, and pro-slavery forces from Missouri repeatedly stormed in to
do violence against free-minded farmers. Senator Atchison from Missouri
encouraged such activity, and even participated.6 Events came to a head
when in May 1856, a pro-slavery judge instructed a grand jury to indict
members of the free-state government in Lawrence for treason.7 Eight
hundred Missourians, deputized as a "posse," poured into Lawrence. They
demolished newspaper offices, burned the hotel and the home of the
Governor, and plundered shops and houses in what was instantly termed the
4. Kansas-Nebraska Act, ch. 59, 10 Stat. 277 (1854).
5. JAMES M. MCPHERSON, BATTLE CRY OF FREEDOM: THE CIVIL WAR ERA 122 (1988).
6. Id.
7. Id.at 148.
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"Sack of Lawrence." 8 It was the most inflammatory9
event yet in the two
year pressure-cooker, known as "Bleeding Kansas."
B. The Crime Against Kansas
During the time this lawlessness had mounted, Massachusetts Senator
Charles Sumner had built up enormous emotion, which ultimately spewed
forth on the Senate floor. The result was a two-day speech, delivered
simultaneously with the Sack -of Lawrence. ' ° Sumner called his address
"The Crime Against Kansas," and it was offered to a packed United States
Senate on May 19 and 20, 1856.11
Sumner's speech is one of the most important in the history of the
Senate. To give flavor, in its most quoted passage, Sumner compared "F
Street Mess" member, Senate Judiciary Chairman Senator Butler, to Don
Quixote:
The Senator from South Carolina has read many books on
chivalry, and believes himself a chivalrous knight, with sentiments
of honor and courage. Of course, he has chosen a mistress to
whom he has made his vows, and who, though ugly to others, is
always lovely to him; though polluted in the sight of the12world, is
chaste in his sight. I mean the HARLOT--SLAVERY.
C. Southern Reaction
Southerners took offense, particularly a South Carolina Congressman
and relative of Butler, Preston Brooks. 13 He laid in wait for Sumner, 14
approaching him with stealth as he was writing letters at his Senate desk.
Brooks brought with him a cane-with 5
a gold knobbed head-the type used
to discipline dogs on plantations.'
After the Senate had adjourned and the place had emptied out, Brooks
attacked Sumner, cracking him in the back of the skull. Sumner was beaten
8. Id.at 149.
9. See id.
10. Id.
11. Id.
12. Senator Charles Sumner. See text of major portions of speech at
http://www.iath.virginia.edu/seminar/unit4/sumner.html (emphasis added).
13. MCPHERSON, supra note 5,at 150.
14. DAVID DONALD, CHARLES SUMNER AND THE COMING OF THE CIVIL WAR 293-94
(1960).
15. MCPHERSON, supra note 5, at 150.
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approximately 30 times in the head with the cane, while trapped in his desk
unable to defend himself.1617 Brooks then withdrew, but only after Sumner
had been seriously injured.
But far more troubling to the North than the personal conduct of Brooks
was the editorial and public reaction of the South. The Richmond Enquirer
opined:
[Brooks' act was] good in conception, better in execution, and best
of all in consequences. The vulgar Abolitionists in the Senate are
getting above themselves.... They have grown saucy, and dare to
be impudent to gentlemen! . . . The truth is, they have been
suffered to run too long without collars. They must be lashed into
submission.18
Such a reaction was typical and stunned the North. Many had tried to
empathize, or rationalize the Southern socio-economic system. After all,
had not the author of the Declaration of Independence, Thomas Jefferson,
owned a host of slaves? But such approval of this attack, on a cultural
level, changed Northern hearts in a historical turning point. Perhaps
Southern society was incompatibly foreign after all.
Preston Brooks, his attacker, died the next year, in 1857. But doggedly,
Sumner recovered from Brook's caning, and was re-elected Senator from
Massachusetts. It was as if fate were coming around to set things right.
This is because one of the principal authors of the Fourteenth Amendment
was none other than Charles Sumner, who drafted it amidst this backdrop of
political and racial turmoil.
D. The Emergence of Separatebut Equal
Yet, while the rules of equality were written in 1866, the interpretation of
those rules lay fallow for 80 years underneath a quagmire of court opinions
designed not to interpret the Constitution or its underpinnings, but rather
designed to uphold a struggling nation recovering from the devastation of
civil and social warfare. Ultimately, in the creative synthesis that
characterizes the best of both law and history, John Frank would work
primarily with the career of Charles Sumner when he and his collaborators
set forth the legislative history of the Fourteenth Amendment. But first,
16. Id.
17.DONALD, supra note 14, at 296-97.
18. WILLIAM E. GIENAPP, THE CRIME AGAINST SUMNER: THE CANING OF CHARLES
SUMNER AND THE RISE OF THE REPUBLICAN PARTY 222 (1979) (quoting RICHMOND ENQUIRER,
June 9, 1856).
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these archeologist/lawyers of the 1940s would have to free the Constitution
from the entrenchment of "separate but equal."
9
1. Plessy v. Ferguson'
As former slaves were trying to enter the larger Society, the United
States Supreme Court created a new form of bondage-more subtle
perhaps, but pernicious in its disingenuousness. In Plessy v. Ferguson, the
Court ruled that "equal protection of the laws" could nevertheless be
harmonized with discrimination, and thus condoned segregation of the races
by state action. 20 "Separate but equal" became the law of the land.
For the first half of the twentieth century, therefore, African-Americans
could not expect equal legal treatment. This assured their evolution into an
economic underclass. Plessy gave validity to a sophisticated system of
segregation, America's version of apartheid, often called "Jim Crow" after a
caricature of the 1830s. The caste system became so accepted, and so
second nature, that it pervaded social thought, infecting conscious and
subconscious prejudices. This is well known and remains one of our
nation's greatest challenges.
Under the U.S. Supreme Court's apartheid regime, blacks were excluded
from markets and other areas of social interaction. This regime encouraged
a laissez faire about intimidation. Blacks were taught they were inferior in
subtle and subconscious ways. Most controlling of all, to keep them from
power they were denied the keys to power-they were excluded from
schools.
Looking back, it all seems as fantastic as the notion of slavery itself. Jim
Crow, like a parasite, leeched into the fabric of society for decades,
infecting institutions with increasing force each generation. The Court was
chief facilitator, ruling that equal protection nevertheless permitted
discrimination based solely on the race of a human being.
19. 163 U.S. 537 (1896). Homer Plessy was white in appearance but known to have a
black great-grandmother. Id. at 541. When he refused to leave the "whites only" portion of a
railroad car in Louisiana, he was forcibly removed and arrested. Id. He then sued under the
Fourteenth Amendment, claiming denial of equal protection. Id. The Court held that the
Fourteenth Amendment did not forbid discrimination, and segregation in public
accommodations, notwithstanding its rule that "[no] state ... shall deny to any person.., the
equal protection of the laws." Id. at 548.
20. Id. at 537.
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2. The Gaines Case
Perhaps irresistibly, history returned to Missouri, land of Senator
Atchison of the F-Street Mess. And again, it was a law school that was
implicated. Lloyd Gaines had graduated from Lincoln University and
applied to the University of Missouri Law School. He was denied
admission to the state institution, merely because of his race. His suit was
styled Missouri ex rel. Gaines v. Canada.2 1
Missouri's policy was that it had every intention of giving Gaines what
white citizens received. It would either build him a law school, or more
likely, send him to a fine school out of state, with taxpayer's money. 22 It is
hard to believe that "straight-faced" arguments could be made to keep a
citizen out of a state institution by sending him away-almost as in exile-
to another state's school, merely because of skin color.
But in 1938, the NAACP was not yet ready to challenge Plessy v.
Ferguson in a frontal assault. 23 The explicit argument in the Supreme Court
was that the Court should be more rigorous in living up to the words
separate and "equal.' ,,24 In short, Gaines deserved a separate law school in
Missouri every bit as good as the white law school there. 25 Thus, in 1938,
the U.S. Supreme Court was given an opportunity to re-endorse separate but
equal, this time explicitly in education. It held that the issue was not what
other states provided by way of education for Missouri's black citizens, but
what Missouri provided for them within the state. 26 The Gaines decision
thus required Missouri to provide a separate school of law for blacks, equal
to its school for27
whites. This had huge ramifications, which would be
exploited later.
Then, in 1939, Lucille Bluford was denied admission to the University of
Missouri and brought a case in the U.S. District Court for the Western
District of Missouri. 28 The federal court declared, however, that it was not
21. 305 U.S. 337 (1938).
22. Id. at 346.
23. In the attack on segregation, there was an initial victory in the Maryland state
court in Pearson v. Murray, 182 A. 590 (Md. 1936). Donald Murray, an Amherst
Graduate, wanted to attend law school at the University of Maryland. Id. The trial court
victory by Charles Houston, Dean of Howard Law School, and a prot g ,young Thurgood
Marshall, was upheld by Maryland's higher court. Id. at 594. The decision was well-
reasoned, but the state court victory in Pearson was isolated, and occurred in the least
partisan of the "Jim Crow" states.
24. Gaines, 305 U.S. at 337. But see discussion infra at III.B.l.a.
25. RICHARD KLUGER, SIMPLE JUSTICE 212 (1980).
26. Gaines, 305 U.S. at 349-51.
27. See discussion infra Part III.B. l.a.
28. Bluford v. Canada, 32 F. Supp. 707, 708 (W.D. Mo. 1940).
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reasonable for Missouri to keep and maintain black schools, in idleness, on
the mere chance someone might one day apply. 29 A plaintiff had to serve
notice she wanted to exercise her rights, and apparently give the state time
to comply. 30
The synthesis emerging from Missouri's two 1930's cases was: (1)
"separate but equal" remained intact, and indeed had been reinvigorated by
being injected into education; (2) a state could not delegate to another, but
had to accord "separate but equal" treatment itself; and (3) a right to
"separate but equal" protection would not be considered until a request had
been made to a state by the citizen, with the state having an opportunity to
respond. This recently endorsed "separate but equal," refined by "request
trigger," was to become Jim Crow's defense in the next phase of
litigation-the stage addressed by the Law Professors' Brief. But before
anything more was possible, social evolution was necessary, and it was
provided by world war.
III. SOCIAL EVOLUTION
Through World War II, society morphed into a new phase. The legal
battle against discrimination was put on hold during the war effort, as were
so many other things. But during wars, societies evolve at many times their
normal rate, twisting and turning in non-linear fashion. African-Americans,
of course, served in the War and, indeed, what were we fighting for
anyway? The evil of racial superiority ideas had been proved dramatically
by the Nazi death camps and totalitarianism.
A. The Viability of Maintainingthe Status Quo
About this time a new, more sophisticated sociological awareness
bubbled up into national consciousness. The awareness is marked, in part,
by Gunnar Myrdal, economist and professor at the University of Stockholm,
who authored the 1944 blockbuster, An American Dilemma: The Negro
Problem and Modern Democracy,31 one of the seminal socio-economic
works of the century. Myrdal approached the issue empirically, with the
view of a cultural anthropologist, but was not "neutral" about the ethics at
stake. Regarding educational issues, the gap in per-pupil expenditures
29. Id.at 711.
30. Id.at710-11.
31. GUNNAR MYRDAL, AN AMERICAN DILEMMA: THE NEGRO PROBLEM AND MODERN
DEMOCRACY (1944).
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between schools was detailed meticulously. 32 And in an area relevant to the
Gaines decision, one of Myrdal's primary conclusions about education was
that discriminatioh was made financially possible by segregation.33 True
"equality" in a segregated system would be financially ruinous for the
southern states to continue. 34 The book's cultural conclusion was that given
the dynamics in America, there was a self-reinforcing perpetuation to the
Negro's plight. Myrdal's book was gobbled up by thinkers everywhere.
This type of "sociological realism" was to become critical in a new kind
of post-war constitutional litigation. It brought "legal realism" to its highest
level. Law, now, could be forced to examine itself in a mirror, and to
acknowledge that it was a particularly powerful subsystem of culture-the
one that could direct its own evolution. Society became more "self aware"
after the war, as did law, working as society's rule-making brain.
Exploitation of the new institutional "self-awareness" was perhaps the great
accomplishment of the constitutional litigation of the later 1940s and 1950s.
B. Missouri Again: Harry Truman
Missouri once again played a role, this time through the Office of the
President. Indeed, Harry S. Truman is perhaps the most underrated of all
U.S. Presidents in the field of civil rights and race relations. He addressed
the NAACP's annual meeting in June 1947 and, indeed, was the first
president to do so. His Justice Department fought for equal housing. He
established a Commission on Higher Education and a Committee on Civil
Rights 35-all this from one of Missouri's "favorite sons." But Truman's
progressive post-war attitude, and other emerging forces of modern-day
society, sparked "reaction."
1. The Post-War Cases
As the Truman Administration and social change were preparing the
way, NAACP "strategizing" became intense as World War II drew to a
close. The organization could wait no longer to attack the "separate but
equal" doctrine of Plessy, as modified by Gaines. And attacking segregated
education was the key to the civil rights struggle. The NAACP chose
among its several fronts the State of Oklahoma.
32. Id. at 338-43.
33. Id.at341.
34. See id. at 341-42.
35. Truman emphasized the importance of the Committee by indicating that the
Committee's meetings would be held in the Cabinet Room. See KLUGER, supra note 25, at 250.
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a. The Sipuel Case36
The first case in which the idea of "separate but eqyal" was attacked
started on January 14, 1946, when NAACP officials'appeared in the office
of the President of the University of Oklahoma with Ada Lois Sipuel who,
like Gaines, desired to study law.
Sipuel's case is too complicated to discuss here fully. It is notable
because many in the NAACP had favored separate but equal, but with more
money for black schools. This was the first case in which the NAACP
explicitly attacked separate but equal in the Supreme Court. No longer was
the argument that it was more resources in a separate infrastructure that was
constitutionally required to achieve equality. The argument had evolved-
the very act of segregation was a denial of equal protection.
The Sipuel case was the first attack, and accordingly, the arguments had
not yet been refined. In the words of a commentator, the NAACP's brief to
the Supreme Court in Sipuel was "somewhat loose and unfocused[,] ...
37
better in its polemics than its logic."
Accordingly, on January 12, 1948, a mere four days after oral argument,
the Court ruled enigmatically that Sipuel was:
[E]ntitled to secure legal education afforded by a state institution..
. . The State must provide it for her in conformity with the equal
protection clause of the Fourteenth Amendment and provide it as
soon as it does for applicants of any other group.
The judgment of the Supreme Court of Oklahoma is reversed and
the cause is remanded to that court for proceedings not
inconsistent with this opinion.38
The national papers ran headlines. The New York Times, which had
reporters at the argument, announced: "Supreme Court Orders Oklahoma to
Admit a Negro to Law School., 39 But there were problems. First, the
remand was for proceedings "not inconsistent with this opinion," but the
opinion was one page and didn't offer much.40 Next, it cited the Gaines
case, which certainly had not struck down "separate but equal," but had
41
refined it.
36. Sipuel v. Bd. of Regents of Univ. of Okla., 332 U.S. 631 (1948) (per curiam).
37. See KLUGER, supra note 25, at 259 (citations omitted).
38. Sipuel, 332 U.S. at 632-33 (citation omitted).
39. GEORGE LYNN CROSS, BLACKS IN WHITE COLLEGES 47-48 (1975).
40. Sipuel, 332 U.S. at 632-33.
41. Missiouri ex rel Gaines v. Canada, 305 U.S. 337, 348 (1938).
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In response, the politicians created an instant law school in Oklahoma
City at the state capitol.42 It had a desk or two, for Miss Sipuel "and others
similarly situated. 43
'
But there were no others. Interestingly, over 1000
professors and students at the University staged a protest over the tactics of
the Attorney General. 44 One law school professor said, "it is a fake, it is a
fraud, and . . . .I think it is indecent. '45 The New York Times ran an
editorial on January 15, 1948, stating that:
If the United States is to stand before the world as an exemplar of
equality of rights . . .then it would be well if we set our own
records straight. It seems to us that the language of the Fourteenth
Amendment must be tortured out of common meaning to make
segregation practices in education anything except
unconstitutional .46
An angry Thurgood Marshall returned to the Supreme Court and argued
the university had defied the mandate.47 But the Court was not ready to
"walk the walk." It held, a mere month after the apparent victory, that "[i]t
is clear that the District Court of Cleveland County did not depart from our
mandate. The petition for certiorari in Sipuel v. Board of Regents, did not
present the issue whether a state might not satisfy the equalArotection
clause ...by establishing a separate law school for Negroes."' 8 Justice
Rutledge dissented, 49 but the time was simply not right, nor the factual
record established, for the Court to consider: what makes for a law school
anyway? Is it the books, the desks, the professors, or the other students?
What is to be the meaning of equal protection in the post-war world?
50
b. The McLaurin Case
The game was in full swing now that people knew the rules. The next
major move came in Oklahoma two weeks after the first Sipuel opinion and
42. KLUGER, supra note 25, at 259.
43. Id.
44. Id.
45. Id. at 269-72.
46. CROSS, supra note 39, at 51-52 (quoting an editorial from the New York Times dated
January 15, 1948).
47. KLUGER, supra note 25, at 260.
48. Fisher v. Hurst, 333 U.S. 147, 150 (1948) (Sipuel was now using her married name,
Fisher.).
49. Id. at 151 (Rutledge, J., dissenting). Justice Rutledge complained about the "overnight
law school." Id. In Rutledge's opinion, the mandate plainly meant "that Oklahoma should end
the discrimination practiced against petitioner at once, not at some later time, near or
remote .... [T]he equality required was equality in fact, not in legal fiction." Id. at 151-52.
50. McLaurin v. Okla. State Regents for Higher Educ., 339 U.S. 637 (1950).
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the immediate countermoves by the Oklahoma politicians. This was the
application, on January 29, 1948, of six African-Americans, each'to a
different school. 51 What was the state to do? Build entirely separate
university systems? The strategy was compelled by Gaines, and by the
endorsement of Gaines in Sipuel. It followed the findings of Myrdal and
other theorists that the only way to segregate was to shortchange the
disfavored class.5 2 With a friendly university administration, yet subject to
inappropriate Jim Crow laws, the NAACP hammered away at the
University of Oklahoma as a major front in this total, social war. It
eventually concentrated on one particular case out of the new six.
This was the strange case of George W. McLaurin, a gentleman who
wanted to attend graduate school in education.53 This time, the Oklahoma
Attorney General advised the University to educate McLaurin, but to do so
in a segregated setting, such as in a separate classroom, where the races
54
could not mingle.
Holding separate classes, in different rooms, presented logistical
difficulties, and possibly to highlight the absurdity of the situation, the
university complied with the political directive in halfway fashion. It
segregated McLaurin by having him sit in the same classroom as the others,
55
but in an anteroom, and with a cordon separating him and the whites.
Students greeted him, and soon the cordon was knocked down. 56 He did
57
have a segregated eating area, restroom, and a special place in the library.
Many photographs were taken, 58 and this unusual form of discrimination,
taking place in an educational psychology class no less, was used as great
fodder by the press, in public opinion, and by the constitutional litigants to
prove the psychological factors involved.59
c. TurningPoint: The Sweatt Case and the Law Professors' Brief
At the time Heman Sweatt applied to the University of Texas Law
School in February of 1946 (two weeks after Sipuel applied at Oklahoma),
there were 7701 white lawyers in Texas, and 23 black lawyers. Sweatt
51. Id. at 638.
52. Id. at 639.
53. Id.
54. See CROSS, supra note 39, at 89-92.
55. KLUGER, supra note 25, at 268.
56. Id.
57. CROSS, supra note 39, at 93-95.
58. Id. at 94-95.
59. Interview with John P. Frank, Lewis and Roca, LLP. (1999).
60. KLUGER, supra note 25, at 260.
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was a letter carrier, 6 1 and his case, like Sipuel's and McLaurin's, was a test
case administered by the NAACP.
One of the reasons Sweatt was so pivotal was that Texas tried harder
than Oklahoma had to provide .educational facilities for blacks-not for any
desire for equality, probably, but for fear its segregated system was
threatened, and possibly because of greater resources. Texas appropriated
$3 million 1947 dollars for black universities, and in response to Sweatt's
suit, appropriated $100,000 to establish a black law school.63 The law
school for blacks had at least a modicum of substance, unlike Sipuel's
school. Accordingly, because of the seeming compliance with the law of
the land, the Gaines dynamic would be more severely tested in Texas than it
had been in Oklahoma.
The crux of the matter was whether post-World War II America would
choose: (1) separate, yet truly "equal" financial appropriations for blacks in
education and elsewhere, or (2) no separation at all as the means of equality.
At the time Sweatt was litigated, this choice had yet to be made by the
Supreme Court, and by the nation. It all seems preordained now, but it was
then quite unresolved. There had been increasing momentum to achieve
equality through increased appropriations for separate facilities: Gaines,
Bluford, Sipuel, and Texas' substantial appropriations. Thus, the mammoth
importance of the Sweatt v. Paintercase.
IV. THE GENESIS OF THE LAW PROFESSORS' BRIEF
As the twentieth century unfolded, it became apparent that radical
constitutional surgery was necessary in the United States. 64 Heroes were
necessary. There is a long list of heroes, and John Frank is one. He stepped
into the first, and greatest, of his historic roles at a critical time. When
Heman Sweatt applied to law school, John Frank was just 28 years old and
had just started working at Indiana as a young professor, fresh from
government service. John had met Thurgood Marshall while at Indiana.
The two had conferred on a case John and the Dean of the Law School were
handling, involving segregation of blacks at restaurants in Bloomington,
particularly a black athlete named Talieferro. Talieferro was welcome on
the school's athletic fields, but was denied service at local restaurants. A
suit was filed, and, around the same time, John and Lorraine Frank met
Marshall at a party in Indianapolis.
61. Id.
62. Seeid.at261.
63. Id.
64. See generally Plessy v. Ferguson, 163 U.S. 537 (1896).
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The Indiana suit's activities focused on a soda fountain shop named "The
Book Nook., 65 The case was finally settled at 3:00 a.m. in the morning,
and its terms were confirmed the next day when Talieferro was sent in by
Frank to order a milkshake. 66 The successful milkshake order was observed
by two student witnesses, 67 one of them a daughter of Justice Rutledge of
68
the Supreme Court, who was at time writing his dissent in Fisherv. Hurst
about "equality in fact, not in legal fiction."' 9
Thus, Frank and Marshall began a collaboration, which included not only
Sweatt, but also Brown v. Board of Education70 and other projects.
Marshall also knew Yale Law School Professor Thomas Emerson, a liberal
"New Dealer" who had seen fast-paced action in a host of Washington
agencies in the 1930s before coming to Yale. 7'
McLaurin, in the meantime, was not going well. In August 1948, after
losing at the trial level, McLaurin had immediately appealed to a special
three-judge federal District Court. 72 Judge Alfred P. Murrah presided (the
same Murrah for whom the Murrah Federal Building in Oklahoma City was
later named).73
On Monday, November 22, 1949, the three-judge Murrah panel handed
down its shattering McLaurin decision:
The Constitution. .. does not authorize us to obliterate social or
racial distinctions which the state has traditionally recognized as a
basis for classification for purposes of education and other public
ministrations. The Fourteenth Amendment does not abolish
distinctions based upon race or color, nor was it intended to
enforce social equality between classes and races .... It is the
duty of this court to honor the public policy of the State in matters
relating to its internal social affairs quite74as much as it is our duty
to vindicate the supreme law of the land.
The tide was turning the wrong way in the fall of 1949. This decision
came shortly after the disastrous Sipuel decision by the Supreme Court,
65. Letter from Lorraine Frank, wife of John P. Frank, to George Paul, Partner, Lewis and
Roca, LLP (Jan. 9, 2003) (on file with author).
66. Id.
67. Letter from Lorraine Frank, wife of John P. Frank, to George Paul, Partner, Lewis and
Roca, LLP (Jan. 8, 2003) (on file with author).
68. 333 U.S. 147 (1948).
69. Id. at 152.
70. 347 U.S. 483 (1954).
71. KLUGER, supra note 25, at 275.
72. Id. at 267.
73. McLaurin v. Okla. State Regents for Higher Educ., 87 F. Supp. 525, 527 (1949).
74. Id. at 530-31.
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holding that the. plaintiff had not even presented the "separate but equal"
issue. According to the McLaurin Court, a black man could be forced by
a state to sit in a special area, eat in a separate cafeteria, have a segregated
place in the library, and attend to functions in his own restroom. 76 The
McLaurin court had ruled that the Fourteenth Amendment "[did] not
abolish distinctions based upon race." 77
The NAACP now needed an all-out assault. The worst case scenario
was that McLaurin and Sweatt would both turn out as had Sipuel, or the
Murrah decision below in McLaurin. For those who wanted to strike down
"separate but equal," the stakes could be no higher.
A. The "Committee"
For added firepower, a special organ was formed, primarily through
Marshall's communications with Professor Emerson. 78 It was called "The 79
Committee of Law Teachers Against Segregation in Legal Education."
The task was to throw the nation's top legal talent at the issues, now all
converging in a mammoth day of decision occasioned by the combination
of McLaurin and 80
Sweatt, which were to become companion cases at the
Supreme Court.
The weapon of a special committee of law professors was shrewd.
Indeed, for reasons of diplomacy, professors could afford to be more blunt
with the Court than could appellants. The idea was to file an amicus brief,
not just another chiming in with the NAACP's position, "but rather an 81all-
out assault on Plessy and a full-scale denunciation of segregation itself.",
John Frank helped organize the Committee while still at Indiana, in the
spring of 1949. As catalyst, Frank wrote friend Charles T. McCormick,
then Dean of the Texas Law School at issue in Sweatt, about the case, in
April of 1949:
I am cast at the moment in the role of damn Yankee trouble maker
since I have participated in the formation and functioning of the
Committee of Law Teachers Against Segregation in Legal
Education .... [T]o the extent that my participation in this activity
places me on the opposite side from you in a law suit-if it does-
75. Fisher v. Hurst, 333 U.S. 147, 150 (1948).
76. McLaurin v. Okla. State Regents for Higher Educ., 87 F. Supp. 525 (1949).
77. Id. at 530-31.
78. KLUGER, supra note 25, at 275.
79. Id.
80. Id.
81. Id.
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I am personally sorry. In82all other respects, this is a fight in which
it is a joy to participate!"
Frank's letter indicated that by the spring of 1949, the Committee only had
about 50 members, 83 and that the briefing was well advanced. McCormick
answered that "I am interested to know that you have tossed a brief into the
ring in the Sweatt case. This is a free fight and anybody is welcome.... Be
sure and send me a copy 84of your brief, which I know will be a trenchant and
effective piece of work.",
That summer, the Frank family moved to New Haven, so that John could
teach at Yale. 85 He continued his work on the Sweatt brief in the fall of
1949, which was filed in January of 1950. The lead name was that of
Thomas I. Emerson. The next was that of John P. Frank. A young Erwin
N. Griswold had involvement. He later distinguished himself as longtime
Dean of Harvard Law School and U.S. Solicitor General. Edward Levi,
later U.S. Attorney General, and then President of the University of
Chicago, was also involved. In total, there were seven listed authors.
In short, the Law Professors' Brief was authored by a "dream team" of
talent. The gravity of the cause seemed to attract a brilliance of minds. The
50 names of the springtime had mushroomed up to 187 law professors from
around the country by the time the brief was filed. The history books assert
the brief was primarily the brainchild of John Frank.
B. The Importance of the Law Professors' Briefin Constitutional
History
The Law Professors' Brief was a remarkable piece of advocacy. As
discussed in Part I, it was designed to be the first all-out assault on "separate
but equal." Its importance is reflected perhaps nowhere better than in its
terse, Summary of Argument:
The basic position of this brief is that segregated legal education in
the state institutions of Texas violates the equal protection clause
of the Fourteenth Amendment.86
82. Letter from John P. Frank, to Charles McCormick, Dean of University of Texas at
Austin Law School (Apr. 5, 1949), available at http://www.law.du.edu/russell/lh/
sweatt/ctn/ctm2-6.htm (last visited Feb. 26, 2003).
83. Id.
84. Letter from Charles McCormick, Dean of University of Texas at Austin Law School,
Indiana University, to John P. Frank (Apr. 8, 1949) available at http://www.law.du.edu/
russell/ Ih/sweatt/ctm/ctm2-5.htm (last visited Feb. 26, 2003).
85. Telephone Interview with Lorraine Frank, wife of John P. Frank (Jan. 14, 2003).
86. Law Professors' Brief, at 2.
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The first argument took a historical approach to the history of the Equal
Protection Clause. "Argument I"8 7was "The Equal Protection Clause Was
Intended To Outlaw Segregation."
1. Equal Rights
The brief introduced its first point rhetorically, stating that "[t]he
Thirteenth Amendment took Negroes out of the class of slaves. Section
One of the Fourteenth Amendment was intended to insure that they not be
dropped at some half-way house on the road to freedom. It sought to bring
the ex-slaves within the8 8circle of the truly free by obliterating legal
distinctions based on race.
With meticulous research, the argument then laid the historical genesis
of the "equal protection" clause at the foot of Charles Sumner, the same
man who had been caned by Brooks in the Senate:
It was one thing, and a very important one, to declare as a political
abstraction that "all men are created equal." And quite another to
attach concrete rights to the state of equality. The Declaration of
Independence did the former. The later was Charles Sumner's
outstanding contribution to American law. 89
The briefs writers had researched the private legal career of Sumner.
They explained that Boston had established a segregated school for black
children in the 1840s, the legality of which was challenged in Roberts v.
City of Boston.90 The brief noted that counsel for Roberts was none other
than Charles Sumner, scholar and lawyer, whose resultant oral argument
was widely distributed among abolitionists as a pamphlet. 91 Quoting from
Sumner's argument in the Massachusetts case of the 1840s, the Law
Professors' Brief suggested the intent of the framers of the Equal Protection
Clause in the Fourteenth Amendment:
Sumner contended that separate schools violated the
Massachusetts State constitutional provision that "All men are
created free and equal." He conceded this phrase, likes its
counterpart in the Declaration of Independence, did not by itself
amount to a legal formula which could decide concrete cases.
Nonetheless, it was a time-honored phrase for a time-honored idea
and, in a broad historical argument, he traced the theory of
87. Law Professors' Brief at 4.
88. Id. at 4-5.
89. Id. at 5.
90. 59 Mass. (5 Cush.).
91. Law Professors' Brief at 6.
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equality from Herdotus, Seneca, Milton, Diderot and Rousseau,
philosophers of eighteenth century France.
At this point Sumner made his major contribution to the theory of
equality. He noted that the French Revolutionary Constitution of
1791 had passed beyond Diderot and Rousseau to a new phrase:
"Men are born and continue free and equal in their rights." Using
a popular French phrase in English for the first time, Sumner
referred to "egalit6 devant la loit," or equality before the law. The
conception of equality before the law, or equality "in their rights,"
was a vast step forward, for this was the first occasion on which
equality of rights had been made a legal consequence of "created
equal. ' 92
The brief then traced the currents of pre-1866 intellectual history relating
primarily to Sumner, an influential member of the committee that authored
the Fourteenth Amendment, but also involving the Civil Rights Act of
1875, 93 which involved most of the same people. The result was a brilliant
exegesis. Egalit6 devant la loit. Equality before the law. Equal rights. It is
a concept now touted the world over, used in the de-colonization struggles
of the 1950s, 1960s, and 1970s. Noble abstraction, authored by slave-
owning Jefferson, was given legal meaning through the Law Professors'
Brief.
2. The Brutal Dose of "Legal Realism"
The remainder of the argument was nothing if not audacious, and one of
the principal reasons the brief was conceived as an entirely separate weapon
from the NAACP's arsenal. Here the "Committee," made up of several
former U.S. Supreme Court Clerks (Frank clerked for Black, for example),
showed its intimate knowledge of the Supreme Court as an institution by
piercing through the Court's intellectual machinations with a brutal legal
realism.
The brief strongly suggested that the Court had been intentionally
dishonest in Plessy v. Ferguson.94 It argued that the majority made an
92. Law Professor's Brief at p. 5-6.
93. 18 Stat. 335 (1875).
94. See Law Professors' Brief at 21 (The Law Professors' Brief stated that Mr. Justice
Brown's argument was his assumption that segregation is not a white judgment of "colored
inferiority." Furthermore, "[t]his would be so palpably preposterous as a statement of fact that
we must assume Justice Brown intended it as a legal fiction .... Why should the Court have
adopted this legal fiction?").
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artful, yet intentional "pretense" in its opinion. 95 The pretense was that
segregation was anything other than discrimination. 96 The brief stated
contrary to the assertions of Plessy, just like confinement of the Jew to the
ghetto, the exclusion of the lowest castes in India from temples, or the
slightly more refined separate schoolroom, 97
segregation was clearly a
judgment and enforcement of inferiority.
Everyone knew this. The Supreme Court knew it. So why be dishonest
and pretend otherwise?
And here the brief demanded an institutional "self-awareness" which
marked perhaps a new watershed in constitutional advocacy. The Supreme
Court, the amicus brief assumed sub rosa, was ultimately an institution
setting policy. Stating its conclusions with a self-confidence that needs no
supporting authority, the Brief argued that the Supreme Court, in Plessy,
had de facto overruled the Fourteenth Amendment.98 "The Court chose to
overthrow the Fourteenth Amendment, not for caprice, but for reasons of
policy," was the introduction to the assumption that the Court is one of our
most political of 99
institutions, notwithstanding its role as protector of
individual rights.
The purported policy was the decision in Plessy that the Supreme Court,
indeed any court, was simply not able to enforce an equal protection
clause. 100 The generous offering was that the Court must have thought itself
too weak to intervene in something so powerful as cultural forces giving
rise to segregation. It must have, the Brief suggested, concluded it would
make things worse.1 The Court had assumed in Plessy that things would all
10
work out in time.
Evidence of the sort introduced in Sipuel and Sweatt was then presented
that things had not worked out between 1896 and 1949. Things were worse,
much worse, and the writings of Myrdal, the Civil Rights Committee, and
the full socio-economic approach discussed above was submitted, with
record citations. The conclusion was "that the majority in Plessy v.
95. Law Professors' Brief at 21.
96. Id.
97. Id.
98. Id.
99. Id.
100. This was the diplomatic attribution of the policy judgment by the Court, charitably
focused on by the authors of the Law Professors' Brief. Certainly, there is evidence it was one
of Plessy's policy judgements. But there is also evidence in the writings of the Justices of 1896,
artfully ignored in the Brief, that they too had been infected by prejudices of the time. See, e.g.,
Plessy v. Ferguson, 163 U.S. 537, 551 (1896) (If "enforced separation of the two races stamps
the colored race with a badge of inferiority, . . . [it is]
solely because the colored race chooses to
put that construction upon it.").
101. Id.
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Ferguson greatly over-estimated the practical 10 2
difficulties of eliminating
segregation through governmental action."
In short, the brief highlighted that so long as it defined itself as helpless,
the Court was a co-conspirator, allowing state governments to organize
society contrary to constitutional norms. 10 3 Such dynamics could be
ignored no 04 longer. It was time to enforce the law of the land, the brief
concluded. 1
Here, we see another lasting effect of the Sweatt case. It marked the
beginning of the Supreme Court's evolution from a position of self-imposed
powerlessness in equal protection, to that of an institution defining itself as
having the power to issue remedies with broad cultural impact. The federal
judiciary, in a few years, was issuing and enforcing remedies city and
statewide. The twin cases of McLaurin and Sweatt therefore mark a mini
"rebirth" of the Supreme Court and federal judiciary as the ultimate
governmental institution in our Society. This is something we now take for
granted. But it need not have been so. The Dixiecrats were reacting and
garnering support. And even after the Court brought everything to an
explicit head just a few years later, there were still civil rights struggles
necessary to give life to the law.
The Law Professors' Brief was not the only brief filed in Sweatt v.
Painter.10 5 The litigants filed theirs and the NAACP's brief was no small
achievement. Eleven southern states all filed a "Brief of the States of
Arkansas, Florida, Kentucky, Georgia, Louisiana, Mississippi, North
Carolina, Oklahoma, South Carolina, Virginia and Tennessee, Amici Curiae
in Support of Respondents." So far, it was a group of law professors
against eleven states and the litigants.
And here, Harry Truman again showed his influence. His Justice
Department, led by Solicitor General Philip Perlman and the Civil Rights
specialist, Philip Elman, weighed in for Petitioners. 1° 6 The U.S.
government filed an amicus on behalf of Sweatt, and this no doubt had
impact on the Court.
C. The Adoption of the SociologicalArgument
Perhaps the key to the Sweatt decision, and the reason for its great
importance in the constitutional history of desegregation, is that it is the first
102. Law Professors' Brief at 25.
103. See Section II of Law Professors' Brief at 22.
104. Law Professors' Brief at 22.
105. 339 U.S. 629 (1950).
106. Kluger, supra note 25, at 276.
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school decision to explicitly acknowledge the sociological realities of
segregation.
One of the Court's justices was Truman's newly-appointed Texan, Tom
Clark. Ironically, Clark had assembled a bleak civil libertarian record as
U.S. Attorney General. He personally supervised the "relocation" of
Japanese-Americans in wartime. 10 7 He disseminated lists of allegedly
"subversive" groups, given no chance to challenge a smear label. The
Sweatt case concerned admission of a black man to Clark's own state law
school, the University of Texas.
In his bench memo on the case,1 0 8 the first Texan on the Supreme Court
acknowledged that since the cases arose in "his" part of the country, he
thought it proper and helpful for him to express some views concerning
them:
Acquaintance is important in the professions and segregation
prevents it, thus depriving the Negro of many state-wide
opportunities. These and other reasons are those which I am sure
have led all but nine of the States to abandon the "separate but
equal" doctrine at the graduate level.
I join with those who would reverse these cases [McLaurin and
Sweatt] upon the ground that segregated graduate education denies
equal protection of the laws. . . . If some say this undermines
09
Plessy then let it fall, as have many Nineteenth Century oracles.'
The Supreme Court opinion in Sweatt was decided on June 5, 1950. It
adopts the sociological arguments set forth in the Law Professors' Brief:
What is more important, the University of Texas Law School
possesses to a far greater degree those qualities which are
incapable of objective measurement but which make for greatness
in a law school. Such qualities, to name but a few, include
reputation of the faculty, experience of the administration, position
and influence of the alumni, standing in the community, traditions
and prestige. It is difficult to believe that one who had a free
choice between these law schools would consider the question
close.
107. See Korematsu v. United States, 323 U.S. 214 (1944).
108. Justice Clark's bench memo can be found on the University of Denver's website,
Sweatt v. Painter: Archival and Textual Sources, maintained by Professor Thomas D. Russell.
Justice Clark's Bench Brief, Sweatt v. Painter, 339 U.S. 629 (1950) (No. 44), available at
http://www.law.du.edu/russell/lh/sweatt/docs/clarkmemo.htm.
109. Id.
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Moreover, although the law is a highly learned profession, we are
well aware that it is an intensely practical one. The law school,
the proving ground for legal learning and practice, cannot be
effective in isolation from the individuals and institutions with
which the law interacts. Few students and no one who has
practiced law would chose to study in an academic vacuum,
removed from the interplay of ideas and the exchange of views
with which the law is concerned.
We hold that the Equal Protection Clause of the Fourteenth
Amendment requires that petitioner be admitted to the University
of Texas Law School. The judgment is reversed and the cause is
remanded for proceedings not inconsistent with this opinion." 0
D. Aftermath
This was a huge decision: a great victory in desegregation. Indeed,
together with its companion case McLaurin, Sweatt was, besides Brown,
perhaps the most important school desegregation case ever. Given the
reasoning of Sweatt-its reliance on social facts and the idea that
government cannot treat people differently even if to do so is subtle and
psychological-the dominos were falling down.
John Frank continued to consult with Thurgood Marshall on the Brown
case, which would extend the same ideas from the graduate school to the
larger realm of society. The reasoning behind Sweatt made the Brown
holding a fait accomplis. In schools, human beings interact. There is an
"interplay of ideas and exchange of views .... ,,11 This is no more true in a
law school than in college, or high school, or in any school. The pretense
about segregation, about government affording equal rights notwithstanding
segregation, had been exposed.
V. CONCLUSION
Strange connections work in mysterious and wonderful ways. The
connections among people, particularly lawyers, have been recognized by
the Supreme Court, and indeed were held to require a destruction of
"separate but equal" in law schools.
110. Sweatt, 339 U.S. at 634, 636.
111. Id. at 634.
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Lewis and Roca is fortunate that John P. Frank did not, like his fellow
authors of the Law Professors' Brief, go on to be Dean of Yale or Harvard,
or Attorney General, or perhaps Solicitor General (but I know he was
tempted). He is John Frank, sui generis, existing in a unique world of
accomplishment, in a world he created for himself. It was far more
gratifying having had him here with us, in the "highly learned" yet
"intensely practical" profession of law. As the other contributors to this
tribute note, John's character and qualities extended far beyond the
courtroom walls and into all facets of the legal community.
John, we salute you.
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EDITOR'S NOTE
On Thursday, November 7, 2002, the Arizona State University College
of Law hosted a tribute to Jack E. Brown to announce the creation of an
endowed chair in his honor. Jack E. Brown was a founding partner in the
prominent Phoenix law firm of Brown & Bain. His focus and expertise in
technology related litigation earned him the sobriquet "Dean of the high-
tech bar." After graduating from Harvard Law School, he clerked for
Charles Wyzanski of the United States District Court for the District of
Massachusetts. Mr. Brown clerked for Chief Justice Charles C. Bernstein
of the Arizona Supreme Court and worked as an associate at Evans, Kitchel
& Jenckes prior to setting out on his own. He was one of the founding
members of the Arizona State University College of Law's Law Society and
served as a member for over twenty-five years, including several years as
president. He taught at the law school and played a major role in both the
Indian Legal Program and the Center for Law, Science and Technology.
Arizona Supreme Court Justice Ruth McGregor, the event's featured
speaker, commented on recent developments in Arizona state constitutional
law. College of Law professor Paul Bender and Paul Eckstein, of Brown &
Bain, offered additional comments and analysis. Their individual
comments have been reformatted for presentation in the Arizona State Law
Journal.
HeinOnline -- 35 Ariz. St. L.J. 264 2003You can also read
