DAVE DAVIES, HOST:
This is FRESH AIR. I'm Dave Davies in for Terry Gross. Jack Greenberg, the last surviving attorney to argue the cases that led to the 1954 Brown versus Board of Education school desegregation decision, died Wednesday in New York. He was 91. Greenberg was part of a civil rights team assembled by Thurgood Marshall. When Marshall was appointed to the federal bench, Greenberg took over as director of the NAACP Legal Defense Fund. Greenberg was involved in more than 40 civil rights cases before the Supreme Court, and he helped represent Dr. Martin Luther King when he was jailed in Birmingham, Ala., in 1963. His 1994 memoir, "Crusaders In The Courts," recounts his 35 years working with the Legal Defense Fund. Terry spoke to Jack Greenberg in 1994 and again in 2004. We'll start with their first conversation. They began with the question why were the courts so important in the early days of the civil rights movement.
(SOUNDBITE OF ARCHIVED BROADCAST)
JACK GREENBERG: Blacks couldn't vote in the South. They were kept out of the Democratic primary, which was the only election that really counted in the South. The Legal Defense Fund in 1944 won some cases called the white primary cases, but Southern states engaged in all kinds of stratagems to keep blacks out. So there was absolutely no political power. It was impossible to even to pass an anti-lynching bill. There was talk about armed revolution, but that would be suicidal. And so the only place to turn was the courts, and black lawyers, led by a man who only could be called a genius, Charles Hamilton Houston, who then recruited Thurgood Marshall who'd been a student of his at Howard Law School, began a campaign which led to Brown against Board of Education.
TERRY GROSS, HOST:
Last week was the anniversary of Brown versus Board of Education, the Supreme Court decision that overturned legalized segregation in the schools. You worked on that case. How did you decide to take on Plessy versus Ferguson, the Supreme Court decision which upheld legalized segregation?
GREENBERG: Well, you had to do that. If you didn't overrule Plessy against Ferguson, then segregation would be constitutional and legal throughout the United States. That case was decided in 1896 and said the states might segregate at will, and all the Southern states and some northern states and cities did as well. So unless you overrule Plessy against Ferguson, you would be like South Africa with apartheid before the release of Mandela. We had to do that.
GROSS: When you took on Brown versus the Board of Ed, did you have a sense of what the risks would be if you lost?
GREENBERG: We felt that if we lost, it would be a catastrophe, that segregation would be embedded into American life for a long, long time, a generation at least, maybe several generations. We had no idea of what would happen if we won. We knew that it would be better. We knew there would be some integration. We knew it would be a long struggle. Thurgood, at one point, said in a conference that in the state of Georgia we would have to go county by county, and there are 100 counties in Georgia. And that was true of all the Southern states.
GROSS: Were you afraid you would lose?
GREENBERG: No, we never - we never anticipated that we would lose. It's not that we knew we would win. We just went ahead on the assumption we would win. It was like being in the second world war where I fought. You just went ahead and did what you had to do and you had faith. I don't mean an active, energetic faith but just an assumption that you would win.
GROSS: What was the main legal argument you built the case on?
GREENBERG: We used a spectrum of arguments. We used a whole series of arguments. We argued first that the most primitive level that black schools were inferior to white schools in their physical facilities. The black schools were often tarpaper shacks and had hand-me-down books and outhouses, and this was quite common throughout the South. And so because the schools were unequal, black kids had to be admitted to the white schools. And actually, on that basis, I won one of the five school segregation cases in the trial court in Delaware. So that was a viable theory, but that would not have struck down segregation forever because, theoretically, they could equalize the schools to claim they were equal and they could go segregate again or continue to segregate where they'd done that. We claimed also that since schools' inequality of the kind I've just described were so pervasive and that always accompanied segregation - reaching for an old doctrine that I won't bother to describe to you in any detail now - that if segregation is always accompanied by inequality, then the segregation is unconstitutional. So that was another argument we made. And then the argument that ended up being cited by the Supreme Court was that because segregation stigmatized black children and interfered with their ability to learn and to develop relationships, which were important in the educational process and in life, segregation was per se an inequality. And so we used that whole broad range of doctrine.
GROSS: You write that you didn't realize it at the time, but Brown versus Board of Education marked the end of the phase of the civil rights movement where all the important victories were won in court. Why was that the end of that period?
GREENBERG: Because while we continued to win important victories in court, a whole new phenomenon emerged and that was known as the civil rights movement. In 1960 - February 1, 1960, a date easy to remember - four black students sat-in at a Woolworth's lunch counter in Greensboro, N.C., and they refused to move unless they would be served. And that spread like wildfire all over the South. Then freedom rides began. That is, black people began sitting in the front of the bus where they weren't supposed to. And then Martin Luther King, who by then was a national figure, became even more prominent, leading marches in Birmingham and from Selma to Montgomery and elsewhere. And thousands and thousands of people, maybe tens of thousands, were involved in the movement, and our legal practice then changed so that we had to represent them. And we represented them in thousands of cases, and we won virtually every single case.
GROSS: So your work was led by the people who are leading the demonstrations. You weren't initiating what the court actually (inaudible)...
GREENBERG: That's all - that's right. Leading up to the decision in Brown, we plotted, we planned. If we took a case and it wasn't turning out right, we would drop it and take another one. We would shape the facts and pick and choose and so forth. But a bunch of kids wanted to sit-in. They didn't consult us in advance. They just sat-in, and we had to represent them. We didn't have to, but we felt there was a moral obligation and there was an obligation for the movement to represent them, and we did.
DAVIES: That's Jack Greenberg speaking to Terry Gross in 1994. Greenberg argued the 1954 school desegregation case Brown versus Board of Education in front of the Supreme Court. He died on Wednesday at the age of 91. In 2004, Greenberg made a return visit to FRESH AIR. Here's an excerpt of that conversation.
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GROSS: Would you describe what your role was in Brown versus Board of Education?
GREENBERG: My role in Brown v. Board of Education started when a lawyer in Topeka sent in a draft complaint to the offices of the NAACP Legal Defense Fund for approval and asked for us to edit it if anything had to be done. And I did some considerable editing to it. I sent it back to him. Actually, at that point, it wasn't called Brown. There was a bunch of names in random order, and he alphabetized them, so B with Brown got up there at the top. Though, I think it's amusing now and perhaps an irony that there were two families named Brown in the case - Oliver Brown and Darlene Brown. And he named it Oliver Brown, which of course was not strict alphabetical order, because Oliver was a man. And as a...
GROSS: (Laughter) That's a great paradox, yes.
GREENBERG: That's right. And I think as a result - partially as a result of Brown against Board of Education that would not happen again today.
GROSS: Was your goal - was the goal of Brown, in your eyes, to overturn Plessy versus Ferguson?
GREENBERG: The goal of Brown was far more than school integration. It was essentially to break up the entire racist system which rested on segregation. It was not just school integration. It was - I mean, you could not, for example, have integrated schools in a segregated society. It was self-contradictory, and the goal was to put an end to racial segregation. And the Supreme Court agreed with that because one week after the decision in Brown they handed down three or four decisions in which the opinion merely said Brown against Board of Education. And those decisions involved a beach and a golf course and a municipal theater, and the psychological effects of segregation had nothing to do with your ability to enjoy those places except that segregation itself was an impediment to living a full life.
GROSS: Were the plaintiffs in Brown versus Board of Ed harassed during or after the case? And if so, how were you affected by that?
GREENBERG: Some of the plaintiffs were very, very badly harassed. And in South Carolina, the homes burnt down, the credit was cut off, family - with the DeLaine family were the plaintiffs there. They were very badly harassed. Their lives were in danger. As to me, in those cases, no, I was not affected at all. In some other cases, I was in danger, though in almost all cases I was not aware of that till after I got my FBI files, you know, many, many years later.
GROSS: What did you learn from the FBI files?
GREENBERG: Oh, there were various white supremacist groups talking about killing, quote, "Jew Jack Greenberg" but they never got around to it I guess.
GROSS: Where were you when you actually heard the decision?
GREENBERG: I was in the office of the Legal Defense Fund at 107 West 43rd Street in New York. And Thurgood Marshall was in Washington, and he was in court when the decision came down, and he called me.
GROSS: And what did he say?
GREENBERG: He said we won. It was unanimous. And he was going to get the next plane and come up to New York.
GROSS: Did you celebrate on the night of the unanimous decision?
GREENBERG: As a matter of fact, we did not. That's about the only time we did not celebrate. We just were sort of, you know, in a bit of a fog. We were sort of stunned.
GROSS: Stunned by what?
GREENBERG: Well, just the immensity of the - of what it all meant. It was, you know, it was pretty staggering. It put an end to essentially something that the Civil War was unable to end.
DAVIES: Jack Greenberg was the last surviving attorney to argue the cases that led to the 1954 Brown versus Board of Education school desegregation decision. He died Wednesday in New York. He was 91. Coming up, David Edelstein reviews the new documentary "Tower" about the sniper shootings at the University of Texas in 1966. This is FRESH AIR. Transcript provided by NPR, Copyright NPR.