3.6.2 Old South (1920-1965): Cracks in the Color Line


Delaware and Maryland:  Cracks in the Jury Color Line

Lee v. State – Maryland, 1932 (161 A. 284); Bailey v. Commonwealth – Virginia, 1950 (62 S.E.2d 28)

  • Exclusion of blacks from juries by custom, if not law, was a common practice in the Old South as well as other parts of the South.  But the region put up less resistance than other Southern states (see § ___) after the U.S. Supreme Court issued repeated warnings that exclusion by custom was as unconstitutional as exclusion by law. 
  • In Lee, Maryland’s highest court held, shortly before the U.S. Supreme Court did, that testimony of local officials that they did not consider race in selecting jurors was not enough:  the fact that no blacks had served on juries in a __% black county was sufficient to make a case of discrimination without more.  When the issue first came before Virginia’s supreme court in Bailey, nearly two decades later, the Virginia court agreed.

Only the white men appear to have been looked to for jurors.  The evidence, with the long, unbroken absence of negroes from the juries selected, seems to show an established practice, confining selections to white men as effectually as if such a restriction were prescribed by statute.  And the ct has concluded that this, under the authorities, amounts to unconstitutional exclusion of negroes.” – Chief Judge Carroll Bond, in Lee


“Equal Means Equal” in the Old South

Pearson v. Murray – Maryland, 1936 (182 A. 590); Durkee v. Murphy – Maryland, 1943 (29 A.2d 253); Parker v. University of Delaware – Delaware, 1950 (76 A.2d 225); Belton v. Gebhart – Delaware, 1952 (87 A.2d 362, 91 A.2d 137)

  • The NAACP viewed the border states as promising locations for its “equal means equal” campaign and it scored some of its most important successes there.  Its most famous early victory came in 1938, when the U.S. Supreme Court ordered Missouri to either open its state law school to black students or create a truly equal black law school (see § ___).   But two years earlier, the NAACP had been even more successful in Maryland:   in Pearson it persuaded that state’s supreme court to reach the same result without any need for help from the federal courts.   
  • Unlike courts in Missouri and other Southern states, Maryland’s court did not allow state officials time to create a new law school:  because the state had prepared no plan for such a school, the court ordered that the state university law school be opened to black students  immediately. 
  • The Maryland court was not prepared to force too much integration, however.  In Durkee, a case decided after Pearson, it rejected an effort to integrate Baltimore’s municipal golf courses.  The court adhered to Plessy, echoing the past refrain of many Southern courts that segregation was a proper exercise of the police power to reduce racial tension.  The court indicated that although segregated facilities had to be substantially equal, the equality need not be perfect.
  • Twenty years after Pearson, in the early 1950s, Delaware’s supreme court followed Maryland’s lead in Parker, and in Belton it issued a similar order requiring admission of black students to Wilmington’s public schools.  Chancellor Collins Seitz refused to give school officials time to improve black schools in order to comply with Plessy:  he became the first Southern state judge to suggest the time had come to repudiate the Plessy doctrine and hold that segregation was unconstitutional.  Two years later, in Brown, the U.S. Supreme Court granted his wish.    

"To [give the state time to create a “separate but equal” school] is to say to such a plaintiff:  ‘Yes, your Constitutional rights are being invaded, but be patient, we will see whether in time they are still being violated.  To postpone such relief is to … say that the protective provisions of the Constitution offer no immediate protection.” Chancellor Collins Seitz, in Gebhart

Olney, Maryland. Showing a Negro how to vote at the polls on election day

"Showing a Negro how to vote at the polls," Olney, Maryland, 1942 - courtesy Library of Congress







 - Larger images available only at The Library of Congress

Donald Murray and his attorneys Charles H. Houston and Thurgood Marshall, 1938 - courtesy NAACP and Library of Congress

“The requirements of equality of treatment may be refined too far … the effort to avoid any conflict which might arise from racial antipathies … is a common need to be faced in regulation of public facilities in Maryland …. There can be no question that, unreasonable as such antipathies may be, they are prominent sources of conflict, and are always to be reckoned with … Separation of the races is normal treatment in this state.” – Chief Judge Carroll Bond, in Durkee