[This post is for anyone who, likes me, teaches Shelley v. Kraemer, in a first-year Property class and has wished for a note on the decision of defendants' counsel to litigate their racial identity in the two companion cases, Sipes v. McGhee and Hurd v. Hodge. DRE]
When summarizing the proceedings in Sipes v. McGhee, the Detroit branch of the litigation that reached the U.S. Supreme Court as Shelley v. Kraemer, Chief Justice Vinson observed that the petitioners "were found by the trial court to be Negroes" (SM 140). In the companion case, Hurd v. Hodge, arising in the District of Columbia, the Chief Justice similarly noted that the petitioners James and Mary Hurd were "found by the trial court to be Negroes," even though James Hurd had maintained that he was "not a Negro, but a Mohawk Indian." Therein lies a tale: the decision by Charles Hamilton Houston and other lawyers affiliated with the National Association for the Advancement of Colored People (NAACP) to force White property owners to prove the racial identity of the litigants in racially restrictive covenant cases.
Charles Hamilton Houston was born in Washington, D.C., in 1895, the year of Frederick Douglass's death. His father, William LePré Houston, was also a lawyer. The son of formerly enslaved parents, William Houston had attended the Howard Law School in the evening while working as a clerk in the Post Office Department. His son Charles attended the prestigious M Street High School (later renamed Dunbar High School) and then Amherst College, where, as the only Black student in his class, he graduated Phi Beta Kappa and valedictorian. He was teaching English at Howard University when the United States entered the First World War in 1917. He joined the Army and, after officer's training, served as a second lieutenant in the field artillery. His own treatment and the treatment of Black enlisted men appalled and outraged him. As he later wrote:
The hate and scorn showered on us Negro officers by our fellow Americans convinced me that there was no sense in my dying for a world ruled by them. I made up my mind that if I got through this war I would study law and use my time fighting for men who could not strike back.After his return from Europe, Houston entered the Harvard Law School, where he became the first African American to serve on the Harvard Law Review and graduated cum laude. Dean Roscoe Pound encouraged him to stay on for an additional year to earn an S.J.D. His thesis was on a topic of administrative law, "Notice and Hearing as a Condition Precedent to Governmental Action" (1923). Pound also arranged for him to spend the next academic year studying law at the University of Madrid.
Houston then returned to Washington and started practicing law with his father at 615 F Street, NW, across the street from what is now the Capital One Arena. His practice was mostly trusts and estates, debt collection, landlord and tenant disputes, personal injury cases, some real property suits, and some criminal cases, including the widely noted defense of George Crawford, a Black man tried for murder in Loudon County, Virginia in 1933. Starting in 1924, he taught law at night at the Howard Law School. From 1929 to 1935 he served as Howard's vice dean and then dean. Between 1935 and 1940, he headed up the National Association for the Advancement of Colored People's team of litigators, which included his student Thurgood Marshall, who succeeded him when Houston returned to private practice. His best-known civil rights cases include the White primary case Nixon v. Condon (1932); the second Scottsboro case, Norris v. Alabama (1935); the duty of fair representation case Steele v. Louisville & Nashville Railway Co. (1944); and Hurd v. Hodge. He died of a heart attack at the age of 54.
Houston was present when, in June 1945, the NAACP called the nation's leading civil rights lawyers to Chicago to plan a campaign against racially restrictive covenants. William H. Hastie, later judge of the U.S, Court of Appeals for the Third Circuit; Spottswood Robinson III, later chief judge of the U.S. Court of Appeals for the D.C. Circuit; Thurgood Marshall, later Associate Justice of the U.S. Supreme Court; and lawyers litigating against the covenants in Detroit, St. Louis, and Los Angeles attended. "Every conceivable opportunity of attack was suggested," wrote the political scientist Clement Vose, "and the advantages of aggressiveness in and out of the court room were pointed out." Houston, "the most respected lawyer present," argued at length that litigation provided an opportunity to undermine the assumptions of White homeowners. "We use the Court as a forum for the purpose of educating the public on the question of restrictive covenants because, after all, the covenants reflect a community pattern," he explained. The enforcers of racially restrictive covenants would try to "narrow the issues as much as possible," but Houston urged lawyers for the Black defendants to "broaden the issues just as much as possible on every single base, taking nothing for granted. We must make it just as difficult as possible for the plaintiffs. . . . The first thing I recommend is to deny that the plaintiffs are white and the defendants are Negroes." Houston elaborated:
Every time you draw these plaintiffs in and deny that they are white, you begin to make them think about it. That is the beginning of education on the subject. In denying that your defendants are Negroes, you can go on to the question of standards of race. There are many people who cannot give any reason why they are white. They don't have any standard about Negroes either.On May 28, 1945, just days before Houston spoke, two Black lawyers affiliated with the NAACP, Francis Morse Dent and Willis M. Graves, Jr., had contested the racial identity of Orsel and Minnie McGhee, the two defendants in Sipes v. McGhee. When opposing counsel, Charles Chockley, asked the plaintiff, Benjamin Sipes, "Can you tell from looking at these people whether they are colored people or white people?" Dent rose. "If the court please, I must object to that," he said. "The only person qualified to testify as to race would be someone who is an expert in that field." Chockley disagreed: "I believe the man can testify in accordance with the average individual of ordinary intelligence that they can tell the difference between a white man and a negro, and I think he has a right to testify for whatever his testimony may be worth." The trial judge allowed the question. Sipes then testified that Mr. McGhee "appears to have colored features" and that Mrs. McGhee apparently was of mixed race.
I tried a case involving about 20 whites. All were in court. After the first day I had them up a tree. The next day one woman said, "We were discussing that last night." The more you shake them, the better off you are. If they make the definition [of race]–you can't do it on color or hair–make them admit it will not hold.
Dent did not call the McGhees to the witness stand. Indeed, in response to Chockley's question, he explained that Orsel McGhee was not present. (Presumably Minnie McGhee was not present either.) Instead, Dent called Norman Humphrey, a professor of Sociology and Anthropology at what is now Wayne State University. Humphrey testified that anthropologists distinguished between "three major races and stocks, Mongoloid, Caucasoid, and Negroid," based on a number of "structural features" not usually discernible by "an ordinary person." Skin color was not determinative of race; indeed, the professor explained, it "has been shown to be a very poor index because it is not well correlated with other features." In his cross-examination, Chockley had Humphrey admit that his testimony went only to "the purely scientific and academic approach" to race and that "the man on the street" commonly associated race with color. He then got Humphrey to acknowledge that "[i]t is commonly felt that Negroids are black," that "Mongoloids" were "commonly in ordinary language" referred to as "the ‘Yellow Race,'" and that "the Caucasoid is what is commonly considered to be the white race."
The trial judge did not discuss the McGhees' racial identity in his opinion, but his decree included the finding "that defendants, Orsel and Minnie S. McGhee, his wife, are not of the Caucasian race but are of the colored or Negro race." On appeal, the Michigan Supreme Court summarized the testimony on the issue and concluded, "The testimony of Sipes is sufficient to sustain this finding."
In Hurd v. Hodge, which began on October 9, 1945, Houston represented James and Mary Hurd who purchased a row house at 116 Bryant Street, NW, that was subject to a covenant forbidding sales to "any Negro or colored person." Houston denied that the plaintiffs were White and that the Hurds were "colored." As in Sipes, the plaintiffs testified about Hurd's physical features to explain why the Hurds were Black, and much like Dent and Graves, Houston countered with expert testimony—that of Monseigneur John M. Cooper of the Department of Anthropology at Catholic University--denying that readily observable physical characteristics were reliable guide to race.
But Houston went beyond the Detroit lawyers in presenting evidence on the defendants' particular racial identity. James Hurd testified that he was from the Smoky Mountains of North Carolina, where his mother and father "are considered as Mohawk Indians." He also said that he had "worked white jobs" and "held a union card in the Boilermakers Union, a white union." Further, Mary Hurd was living in "a white Italian neighborhood in New Jersey" when James met her. For her part, Mary Hurd testified that she did not know what her race was.
James had signed a letter in which he acknowledged that he and his wife "are of Negro extraction," but his seller had written it and James, reached at work, was too busy to read it before signing. Further, although James had checked the box beside "colored" on his application for a driver's license, he claimed to have done so only because it and "white" were his only two options, with no box for "Indian." James did not deny that he had acknowledged that he and Mary were Black in a conversation with one of the plaintiffs.
The District Judge, who observed the Hurds in court, found them both to be "Negroes" and upheld the covenants. By a 2-1 vote, a panel of the U.S. Court of Appeals for the District of Columbia affirmed without discussing the issue of racial identity.
[Sources. I relied heavily on Clement E. Vose, Caucasians Only: The Supreme Court, the NAACP, and the Restrictive Covenant Cases (University of California Press, 1959), including for quotations from Minutes of Meeting, “NAACP Lawyers and Consultants on Methods of Attacking Restrictive Covenants,” Chicago, Illinois, June 9-10, 1945, and parts of the record in Hurd v. Hodge not reproduced in the briefs in the D.C. Circuit. The transcript and briefs in Sipes v. McGhee are readily accessible through the digital publication, The Making of Modern Law: U.S. Supreme Court Records and Brief (Gale). On Houston, I relied on Kenneth W. Mack, Representing the Race: The Creation of the Civil Rights Lawyer (Harvard University Press, 2012); Genna Rae McNeil, Groundwork: Charles Hamilton Houston and the Struggle for Civil Rights (University of Pennsylvania Press, 1983). For insight into the current thinking of race and physical anthropology, I referred my students to Sabrina Imbler, “Can Skeletons Have a Racial Identity?” New York Times, October 19, 2021.]
[Update: As it happens, today’s SmartCILP brings word of John Bliss’s Rebellious Lawyers for Fair Housing: The Lost Scientific Model of the Early NAACP, Wisconsin Law Review 2021: 1433-1486