The Carl J Christensen Civil Justice Endowed Fund was established at BYU Law School for the purpose of promoting a civil justice system that is open and fair to all participants—particularly individual litigants—whose participation is crucial to the rule of law and the maintenance of a free and democratic society.
In 1894, the Supreme Court issued its infamous opinion in Plessy v. Ferguson, holding that racially segregated public facilities were constitutional so long as they were “equal.” Six decades later, future Supreme Court Justice Thurgood Marshall and other attorneys for the National Association for the Advancement of Colored People (NAACP) concluded that the time was right to challenge Plessy v. Ferguson’s “separate but equal” endorsement of racial segregation. …
In October 1968, the State of Wisconsin filed charges against the Yoders and two other Amish families for violating a Wisconsin law requiring that all children attend public school until age 16.…
Since the Industrial Revolution, manufacturers have incorporated asbestos into countless products because of the strength of its fibers and its natural resistance to heat. In October 1969, former insulation installer Clarence Borel filed suit against Fibreboard and ten other asbestos insulation manufacturers in a Texas federal court, claiming that the defendants’ products had caused him to develop asbestosis and mesothelioma—a form of cancer strongly associated with chronic asbestos exposure.…
Trial Court Strategy Produces Supreme Court Success
Brown v. Board of Education of Topeka
In 1894, the Supreme Court issued its infamous opinion in Plessy v. Ferguson, holding that racially segregated public facilities were constitutional so long as they were “equal.” Six decades later, future Supreme Court Justice Thurgood Marshall and other attorneys for the National Association for the Advancement of Colored People (NAACP) concluded that the time was right to challenge Plessy v. Ferguson’s “separate but equal” endorsement of racial segregation. Marshall and his colleagues challenged segregation laws in public schools in five separate jurisdictions. For each of the cases, the NAACP’s attorneys attacked segregation using a different strategy. They employed different legal arguments, appealed to different historical evidence, and cited different psychological studies to the courts. Knowing they faced an uphill battle to prevail in trial courts that would consider themselves bound by Plessy v. Ferguson as precedent, the NAACP’s attorneys structured their trial strategies with an eye toward getting one or more of the cases to the Supreme Court. As they expected, all of the plaintiffs lost at trial. But the NAACP’s “failures” at the trial level of those five cases formed the foundation of Marshall’s ultimate triumph. The Supreme Court consolidated all five cases on appeal, and the name of one of those cases—Brown v. Board of Education—remains one of the most significant legal decisions in U.S. history. In that landmark 1954 case, the Supreme Court ruled unanimously that racial segregation of children in public schools was unconstitutional. The trial strategies employed by Thurgood Marshall and his NAACP colleagues paved the way for a decision that continues to reverberate today.
NAACP supporters gather at the Prince Edward County Courthouse in Virginia to commemorate the 7th anniversary of Brown v. Board. Though Brown was a landmark legal victory, the decision did not end racial segregation overnight. NAACP leaders chose this rally location, in part, because Prince Edward County had closed its public schools for five years rather than integrate in response to Brown. (Getty images/Bettmann)
The South Carolina and Kansas Cases: Psychological Harm and the Fourteenth Amendment
In the South Carolina case, NAACP lawyers Thurgood Marshall, Robert Carter, and Spottswood Robinson argued that segregated schools caused psychological harm to black children and violated their rights to equal protection under the Fourteenth Amendment to the United States Constitution. They employed ground-breaking social science testimony and evidence from some of the nation’s leading child psychologists, including the famous doll study demonstrating that segregation injured the self-esteem and psyches of African-American children. See Kenneth B. and Mamie P. Clark “Racial identification and preference among negro children.” reprinted in E.L. Hartley (Ed.) Readings in Social Psychology. New York: Holt, Rinehart, and Winston (1947).
Notwithstanding this evidence, two of the three judges on the South Carolina trial court panel found that the Supreme Court’s decision in Plessy v. Ferguson was binding precedent. They thus held that “separate but equal” facilities were constitutional. Judge Julius Waties Waring dissented, stating, “I am of the opinion that all of the legal guideposts, expert testimony, common sense and reason point unerringly to the conclusion that the system of segregation in education adopted and practiced in the state of South Carolina must go and go now. Segregation is per se inequality.” Briggs v. Elliott, 98 F. Supp. 529, 548 (1951).
In the Kansas case, NAACP attorneys Charles Scott, John Scott, Charles Bledsoe, Robert Carter, and Jack Greenberg also argued that segregated schools violated the Fourteenth Amendment and psychologically harmed black students. The three-court panel of judges in that case conceded that a policy of segregation was harmful to the education of Topeka’s black children. However, they ultimately ruled unanimously that Topeka’s segregated black and white schools were comparable enough to make Topeka’s segregated school system constitutional under Plessy.
Lawyers for the NAACP Legal Defense and Educational Fund, Inc. in 1957. (Left to Right) Louis L. Redding, Robert L. Carter, Oliver W. Hill, Thurgood Marshall, Spottiswood W. Robinson, James M. Nabrit, Harold Boulware, and Charles Scott. (NAACP Archives/ NAACP Legal Defense and Educational Fund)
The district court opinion demonstrates the power of Supreme Court precedent in lower courts. Years later, one of the three judges in the Kansas case remarked, “We weren’t in sympathy with the decision we rendered. … If it weren’t for Plessy v. Ferguson, we surely would have found the law unconstitutional. But there was no way around it—the Supreme Court would have to overrule itself.” See Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality 425 First Vintage Books ed. (New York: Vintage Books, 2004) (quoting Judge Walter A. Huxton, author of the district court opinion).
Thurgood Marshall built on this foundation during his Supreme Court oral argument stating, “The Negro child is made to go to an inferior school; he is branded in his own mind as inferior. …You can teach such a child the Constitution, anthropology and citizenship, but he knows it isn’t true.”
The Virginia Case: Discrimination and Equal Protection Under the Fourteenth Amendment
Acting in his capacity as Executive Director of the NAACP Legal Defense and Educational Fund, Thurgood Marshall directed NAACP staff attorneys, Oliver Hill, and Spottswood Robinson to look for a case in Virginia to challenge segregation directly. Shortly after learning that African-American students in Farmville, Virginia were planning a strike to protest poor school conditions. Hill and Robinson traveled to the town and convinced them to instead file a lawsuit challenging the segregation law. The Virginia suit claimed that segregation in public schools constituted discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment which prohibits states from “deny[ing] any person within [their] jurisdiction equal protection of the laws.” Compared to the Kansas and South Carolina courts, the judges on the Virginia court were not as sympathetic to the plaintiffs’ claims. The Virginia trial court unanimously upheld Farmville’s segregation, relying heavily upon testimony from the State’s expert witness challenging the NAACP’s arguments about the harmful effects of segregated education. That witness claimed that blacks were intellectually inferior to whites. He therefore argued that it was in everyone’s best interest to separate the races. The Virginia panel unanimously rejected the students’ request stating, “We have found no hurt or harm to either race.” Davis v. County School Board of Prince Edward County, 103 F. Supp. 337, 340 (E.D. VA 1952).
The Delaware Cases: Harm Based on Inferior Education and the Fourteenth Amendment
Black students in Delaware were required to endure long commutes to dilapidated schools that didn’t offer the same courses or opportunities as closer white schools. In two cases, NAACP attorneys, Louis Redding and Jack Greenburg, argued that segregated schools had led to inferior education for black children, which harmed them and violated the Fourteenth Amendment’s guarantee of equal protection of the laws. The court in Bulah ruled that black students were receiving an inferior education and must be admitted to white schools; however, they declined to strike down the principle of separate but equal from Plessy, saying that responsibility belonged to the U.S. Supreme Court.
The Washington, D.C Case: Denial of Due Process in the Fifth Amendment
The African-American population in Washington, D.C. doubled between 1930 and 1950 resulting in serious overcrowding in the schools. Black schools were forced to have multiple shifts, eroding the quality of education, while some white schools remained half empty. James Nabrit, Jr., and George Hayes, acting on behalf of Spottswood Bolling, Jr., a 12-year-old black student who was denied admission to a white school near his home, sued the president of the D.C. Board of Education. Nabrit and Hayes argued that racial segregation was unconstitutional because it denied black children due process of law as guaranteed by the Fifth Amendment. The trial court dismissed the case on the basis that separate but equal remained the law of the land.
The Supreme Court’s Consolidation of School Segregation cases in Brown
Appeals for each of the school segregation cases named above were filed in the Supreme Court in 1951. Just three days before the scheduled argument for Brown, the Court announced that the case would be combined with the other segregation cases that had been appealed, and argument would be rescheduled. After the first round of arguments in 1952, the Supreme Court ordered all five cases to be reargued in the 1953 term. In the interim, Chief Justice Fred Vinson, one of the four justices who originally voted to uphold segregation, died of a heart attack. President Eisenhower appointed Earl Warren to take Vinson’s place as chief justice. Thurgood Marshall used the arguments made at trial and offered the findings of the trial courts that would have struck down segregation laws if not for the standard set by Plessy v. Ferguson. In May 1954, the Supreme Court issued its unanimous decision, overturning the separate but equal principle of Plessy and declaring racially segregated schools unconstitutional. This decision, written by Chief Justice Warren, helped establish the precedent that the “separate but equal” doctrine had no place in public education because segregation was “inherently unequal” and citizens were being “deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.” Brown, 347 U.S. 483, 495 (1954).
Trial Court Testimony Makes the Difference
Wisconsin v. Yoder
In October 1968, the State of Wisconsin filed charges against the Yoders and two other Amish families for violating a Wisconsin law requiring that all children attend public school until age 16. The Amish families objected to the law on religious grounds, arguing that forcing Amish children to attend public high schools would both harm Amish children psychologically and ultimately undermine or destroy the Amish religious community. The defendants presented expert testimony at trial from two witnesses—an academic expert on Amish society and an education expert—who supported these arguments and testified that the Amish generally succeed in preparing their high school age children to be productive members of the Amish community.
Although the trial court acknowledged that the Wisconsin law infringed on Amish religious freedom, it nonetheless upheld the defendants’ convictions, finding that the Wisconsin statute was a “reasonable and constitutional” exercise of government power. The case came before the United States Supreme Court. Chief Justice Burger’s majority opinion rejected the convictions on First Amendment grounds, relying heavily upon the uncontested expert testimony that the defendants presented at trial. Though many acknowledge the important role Yoder continues to play in protecting religious freedom, few appreciate just how important the trial proceedings—and particularly the introduction of expert testimony—were to the ultimate outcome.
Amish men walk toward the Supreme Court building in Washington on Dec. 8, 1971.
They observed oral arguments in Wisconsin v. Yoder. (AP Photo/John Duricka)
Trial Court Judgment Changes the Nation
Borel v. Fibreboard Paper Products Corporation
Since the Industrial Revolution, manufacturers have incorporated asbestos into countless products because of the strength of its fibers and its natural resistance to heat. In October 1969, former insulation installer Clarence Borel filed suit against Fibreboard and ten other asbestos insulation manufacturers in a Texas federal court, claiming that the defendants’ products had caused him to develop asbestosis and mesothelioma—a form of cancer strongly associated with chronic asbestos exposure. Borel died from his disease before trial, but trial attorney Ward Stephenson obtained a wrongful death verdict on behalf of Borel’s widow. Stephenson successfully argued that defendants’ asbestos-based insulation was an “unreasonably dangerous” product because the defendants failed to warn users about the health risks associated with its use.
After the United States Court of Appeals for the Fifth Circuit affirmed the trial court’s judgement in 1973, the floodgates opened for asbestos litigation nationwide. The award in Borel paved the way for hundreds of thousands of asbestos-related claims. It also prompted an Environmental Protection Agency investigation and ultimately led Congress to pass statutes prohibiting the use of asbestos in schools and other public buildings.
Although the Borel case is, in some ways, just a routine application of established legal principles, it is difficult to overstate its impact on U.S. products liability law. As an indirect result of Borel, asbestos manufacturers and their insurers have paid over $70 billion to satisfy asbestos-related claims in the United States.
Workers removing asbestos. (Getty image/Bermau)
Clarence Borel was an industrial insulation worker from 1936 to 1969, during which time he was exposed to heavy concentrations of asbestos dust. As a result of that prolonged exposure, Borel contracted asbestosis, which led to mesothelioma, a form of lung cancer. In October 1969, Borel sued several asbestos manufacturers in the United States District Court for the Eastern District of Texas (“the trial court”), arguing that the manufacturers should be held strictly liable for his injuries because asbestos was an unreasonably dangerous product and the manufacturers had not provided adequate warning of the danger it posed.
Borel died in June 1970, before the case came to trial, and his widow, Thelma Borel, was substituted as plaintiff. The jury found that the defendants were strictly liable for Borel’s injuries and awarded Thelma Borel $79,436.24. The trial court reduced the award by the amount Thelma had received in a pre-trial settlement with four of the defendants and entered a judgment for $58,534.04 ($390,000 in 2020 dollars).
The remaining defendants in the lawsuit appealed the trial court’s judgment to the United States Court of Appeals for the Fifth Circuit, arguing that the trial court had not properly instructed the jury on the strict liability claim. The Fifth Circuit rejected the defendants’ arguments and affirmed the trial court’s judgment.
The judgment in the Borel case paved the way for lawsuits by hundreds of thousands of plaintiffs claiming asbestos-related injuries[1] and by plaintiffs claiming property damages related to the cost of asbestos abatement in public buildings, including city government buildings (see, e.g. City of Greenville v. W.R. Grace Co., 827 F.2d 975 (4th Cir. 1987)) and public schools (see, e.g. Dayton Independent School District v. United States Gypsum Co., 682 F. Supp. 1403 (E.D. Tex. 1988)). The decision in Borel also prompted investigation of and reporting by the Environmental Protection Agency on the dangers of asbestos in public schools, led to the passage by Congress of the Asbestos School Hazard Detection and Control Act in 1980, and resulted in asbestos abatement in public buildings across the United States. The effects of the Borel decision continue today.
Vacant houses at Eglin Air Force Base, Florida posed a health hazard due to asbestos exposure dangers. (U.S. Air Force Photo/Airman Anthony Jennings)
[1] By 2002, “[m]ore than 730,000 plaintiffs had filed personal injury claims, often against multiple defendants for asbestos-related injuries and a total of $70 billion had been paid by defendants and insurers.” Borel v. Fibreboard Paper Product Corporation, Texas State Historical Association, https://tshaonline.org/handbook/online/articles/jrb01.