Maryland and Brown vs.
Board of Education
By Raymond Daniel Burk
During May, we marked 50 years since the U.S. Supreme Court announced its
decision in Brown vs. Board of Education, which declared an end to
legally-sanctioned segregation in our nation’s public schools. That ruling
will be fittingly remembered for fueling the civil rights movement that
ultimately brought an end to the stain of Jim Crow and finally eradicated
state-enforced racism in America.
Hopefully, the recent anniversary of Brown will be remembered not merely
as a legal milestone but as a reason to make us all mindful of the
historic struggle that led to it and the dreams of what might yet be
accomplished a half-century later by a rekindling of the spirit that made
The road toward a nation in which the law became truly colorblind passed
through many venues – from trains and buses to libraries and tennis
courts, from beaches and parks to elections and real estate covenants. But
it was in the context of educational opportunity that the brilliant legal
strategy of law school dean, the passionate advocacy of a future Supreme
Court Justice and the enlightened vision of a Baltimore trial judge came
together to lend an irreversible momentum to the cause of civil rights.
It took the devastation of our horrific Civil War to finally rid our
country of the dark legacy of having practiced race-based slavery, but it
did not by any means create a nation in which all citizens were equal
before the law. The 14th Amendment, adopted in 1868, was intended to
guarantee equal protection of the laws to all Americans without
abridgement by the States. But State-sanctioned segregation (which had
long existed throughout the country and not just in the States of the
Confederacy) would persist and indeed become even more entrenched.
This reality was accurately reflected in the 1896 ruling of the Supreme
Court in Plessy vs. Ferguson, which sustained a Louisiana law requiring
“equal but separate accommodations” for white and black railroad
passengers. The Court observed that the 14th Amendment “could not have
been intended to abolish distinctions based upon color, or to enforce
social, as distinguished from political equality, or a commingling of the
races upon terms unsatisfactory to either.”
Such was the state of the law when Thurgood Marshall was born in Baltimore
in 1908. When he graduated from Lincoln University with honors and designs
on a legal career, his hometown law school was not an option. The
University of Maryland School of Law in Baltimore did not admit
African-Americans. Instead, Marshall attended Howard University Law School
At Howard, Marshall met and came under the influence of the school’s dean,
Charles Houston, the first full-time legal counsel for the National
Association for the Advancement of Colored People (NAACP). Upon
graduation, Marshall would join Houston in the NAACP’s legal efforts to
promote equal opportunity.
Houston devised a plan to seek equality in graduate and professional
education by forcing states to comply with the equal but separate
requirement of Plessy vs. Ferguson. He envisioned requiring states to
choose between building and funding expensive separate institutions that
were truly equal or admitting blacks to the existing schools.
This legal strategy brought Houston and Marshall to Baltimore in 1935 on
behalf of Donald Murray, an African-American resident of the City who was
a graduate of Amherst College and met all admissions requirements of the
University of Maryland School of Law, except that his skin was not of the
required color. While anticipating that the state courts would affirm the
University’s policy, Houston and Marshall saw the case an opportunity to
possibly bring the issue to the Supreme Court.
Much to their surprise, however, Judge Eugene O’Dunne of the Baltimore
City Court sided with Donald Murray. He found that the University had
denied him equal protection – there being no state law school for blacks,
let alone an equal one – and issued a writ of mandamus compelling his
admission. Judge O’Dunne’s ruling was nothing less than a legal bombshell
in the battle for racial equality, receiving widespread national
It was the State that took the case on appeal, arguing that segregation in
education was permissible and was, indeed, the law of the State. Houston
and Marshall argued that segregation itself was inherently unequal.
In early 1936, the Maryland Court of Appeals issued its unanimous opinion
in Pearson vs. Murray, affirming Judge O’Dunne’s decision and requiring
Donald Murray’s admission to the law school. Perhaps the most succinct
statement that the time for racial justice had arrived came from the
opinion’s author, Chief Judge Carroll T. Bond: “Compliance with the
Constitution cannot be deferred at the will of the state. Whatever system
it adopts for legal education now must furnish equality of treatment now.”
Charles Houston and Thurgood Marshall would build on their Maryland
accomplishment until Houston’s death in 1950, reaching the Supreme Court
with cases out of Missouri, Oklahoma and Texas that methodically decimated
the doctrine of separate but equal in graduate and professional education.
Marshall would ultimately win 29 Supreme Court cases in furtherance of the
cause of equality, including Brown. But none was more significant than the
one rendered in a Baltimore trial court in helping give voice to the law
to carry out the true meaning of our nation’s creed.
Endowed with right, the law endured the struggle for the implementation of
Brown, and the extension of its vision of inherent fairness beyond public
school classrooms and into the American way of life. That effort
continues, and it is here that we can find inspiration in names like
Houston, Marshall and O’Dunne who correctly saw that the rule of law is
our nation’s gift to humanity, that we are all enriched by having made a
top-flight legal education available to someone like Donald Murray, and
that there are no limits to what we have to gain through the doors we have
the capacity to open in the name of justice.
Raymond Daniel Burke is a partner in the Baltimore law firm of
Freishtat, Burke, Mullen & Dubnow, LLC.