Drop Everything and Emulate, IV

What a joy it has been blogging here at Concurring Opinions. I thank Dan Solove and the rest of the crew for the opportunity, and I thank the commenters for the great e-conversations that have followed my posts. For my last post, I want to enter the last installment in the Drop Everything and Emulate series.

shelley house plaque.jpg

In 1948, a graduate of an undistinguished and then defunct law school, whose parents had been born in slavery, stood before the Supreme Court and, against the urging of some of the greatest legal minds of the 20th century, made an argument that had been unanimously rejected by state and federal courts, including the Supreme Court: that court enforcement of private racially restrictive covenants constituted state action and, as such, was a violation of the Equal Protection Clause of the 14th Amendment.

Against all odds, he won, and Shelley v. Kraemer became a guidepost for the civil rights revolution that followed. Less than two years later, he was dead, and today is rarely remembered.


George Vaughn was born in 1885 in Kentucky. Little seems to be known about his early life. He earned an undergraduate degree from Lane College and a law degree from Walden University, both in Tennessee. Walden was founded by white missionaries as a school for African-Americans, but began to fail at about the time Vaughn attended, graduating just one law student in 1911. By 1925, Walden University was no more.

Vaughn served as an officer in the segregated army in World War I, then opened a law practice in St. Louis. In St. Louis, he became active in Democratic politics. He ran for one office – city alderman – and lost.

Vaughn attended a conference hosted by the NAACP regarding litigation strategies against racially restrictive covenants. (Leland B. Ware, Invisible Walls: An Examination of the Legal Strategy of the Restrictive Covenant Cases, 67 Wash. U. L. Q. 737 (1989). Ware’s excellent article is the source for much of the information that follows. If this was a law review article rather than a blog post, it would be full of ‘ids’ from here on out). Charles Houston and Thurgood Marshall urged the attorneys to challenge plaintiffs in such cases to prove that the defendants were Black, to introduce studies showing the sociological and economic effects of restrictive covenants, and to argue that the covenants were invalid under the common law doctrine of changed circumstances. They urged the attorneys not to rely on the enforcement-as-state-action argument, since it had failed repeatedly.

In 1945, an African-American man named J.D. Shelley bought a house on Labadie Avenue in St. Louis. The house was purportedly subject to a racially restrictive covenant that applied to the neighborhood (I say purportedly because, as Carol Rose has pointed out, the covenant was probably invalid as a matter of the common law of real covenants, for reasons unrelated to its racial restrictions). The neighbors sued to evict the Shelleys, and the Shelleys went to George Vaughn for help.

Vaughn used a strategy similar to the one urged by Houston and Marshall, but also raised the enforcement-as-state-action argument. He won at trial court on the ground that the restrictive covenant was defective as a matter of common law, but lost at the Missouri Supreme Court.

At the same time that Vaughn was bringing his case, other racially restrictive covenant cases were also proceeding, including Houston’s own case, Hurd v. Hodge, and one that Marshall would eventually take to the Supreme Court as a companion to Shelley, McGhee. The NAACP was attempting to coordinate the cases, hoping to pair the right case and the right attorney and take it to the Supreme Court. In the opinion of the NAACP, Shelley was not the right case, and Vaughn was not the right attorney. He was considered relatively unsophisticated, and some doubted his ability to persuade the Supreme Court.

Nonetheless, without consulting the NAACP, Vaughn filed a petition for a writ of certorari with the Supreme Court, which was granted. When a none-too-pleased Marshall found out, he quickly filed a petition in the McGhee case, which was paired with Shelley, as was Houston’s Hurd case.

At the Supreme Court, Vaughn argued first for the petitioners. Unlike Marshall and Houston, Vaughn didn’t focus his argument on economic and sociological data about the effects of racially restrictive covenants. He argued that court enforcement of them constituted state action. Racially restrictive covenants were, he told the Court, “the Achilles’ heel” of the American dream. He rapped his knuckles slowly on the table beside him and said, “the Negro knocks at America’s door and cries, ‘Let me come in and sit by the fire. I helped build the house.’” The question, from Vaughn’s viewpoint, was whether courts, as state actors, could hold the door closed.

Marshall is often credited with winning Shelley v. Kramer today, and perhaps justifiably so. His use of economic and sociological data to support Constitutional arguments became a hallmark of the civil rights litigation that followed, most famously in Brown v. Board of Education. But to me, it is Vaughn’s undaunted and courageous insistence that courts, too, were state actors bound by the limits of the 14th Amendment, that is the most powerful (and controversial, to this day) conclusion from the Shelley case.

I like introducing my students to Vaughn for so many reasons. Students at William Mitchell have often taken non-traditional paths to law, and they, like Vaughn, attend a school whose ‘ranking’ does not match its quality. He was a wise counselor for his community, a man to turn to in times of trouble. And his quiet insistence on basic principles helped launch a revolution in American law for which we all owe him a debt of gratitude.

You may also like...

3 Responses

  1. Frank says:

    Great post, and great idea for a series. Thank you for a terrific visit here.

  2. Patrick S. O'Donnell says:

    Thanks Mark for your informative, moving and inspiring posts: were I in law school I’d want to have you as one of my teachers (as it is, I’m old enough to have been one of yours!).

  3. Patrick S. O'Donnell says:

    Thanks Mark for your informative, moving and inspiring posts: were I in law school I’d want to have you as one of my teachers (as it is, I’m old enough to have been one of yours!).