Carl J Christensen
Civil Justice Initiative

The Carl J Christensen Civil Justice Initiative 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.

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, …

Trial Court Testimony Makes the Difference Wisconsin v. Yoder


Trial Court Judgment Changes the Nation Borel v. Fibreboard Paper Products Corporation

Trial Court Strategy Produces Supreme Court Success Brown v. Board of Education of Topeka

Trial Court Testimony Makes the Difference Wisconsin v. Yoder

Trial Court Judgment Changes the Nation Borel v. Fibreboard Paper Products Corporation


Crowd attends a NAACP rally at the Prince Edward County Courthouse in Virginia, marking the 7th Anniversary of Brown v. Board of Education. Like many Southern localities, Prince Edward County had engaged in “massive resistance” to the ruling and closed their public schools for five years rather than desegregate.  (Getty images/Bettmann)

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)

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 Educationremains 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.

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Psychological Harm and the Fourteenth Amendment: Briggs v. Elliott, 1951, Clarendon County, South Carolina, and Brown et al. v. Board of Education of Topeka, Kansas


Lawyers for the NAACP, 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 law as provided in the Fourteenth Amendment to the United States Constitution. The lawyers employed ground-breaking social science testimony from some of the nation’s leading child psychologists, including the famous doll study concluding that segregation negatively affects the self-esteem and psyche of African-American children. Clark, Kenneth B. and Clark, Mamie P. (1947) “Racial identification and preference among negro children.” In E.L. Hartley (Ed.) Readings in Social Psychology. New York: Holt, Rinehart, and Winston. In his concluding remarks, Thurgood Marshall stated , “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.”


Two of the trial court’s three-judge panel, found that, based on the Supreme Court’s decision in Plessy v. Ferguson, separate but equal facilities were constitutional and ruled against the plaintiffs.  Julius Waties Waring wrote in his dissenting opinion, “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 Kansas, 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 that the black and white schools were comparable enough to uphold the standard set in Plessy. Judge Huxman, one of the three judges in the 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.” Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality, First Vintage Books ed. (New York: Vintage Books, 2004), 425.


Discrimination and the Fourteenth Amendment: Davis v. County School Board of Prince Edward County, 1951, Virginia


At the request of Thurgood Marshall, Oliver Hill, and Spottswood Robinson agreed to look for a case in Virginia to challenge segregation directly. Students in Farmville, Virginia, organized a strike to protest poor school conditions. Hill and Robinson convinced the students to drop the protest and file a lawsuit challenging the segregation law instead. Hill and Robinson sought a judgement stating that segregation in public schools constituted discrimination in violation of the Fourteenth Amendment. The trial court upheld segregation as constitutional based on testimony from  the State’s  expert witness challenging the NAACP’s arguments about the harmful effects of segregated education. The expert witness testified that blacks were intellectually inferior to whites, and, therefore, it was in everyone’s best interest to separate the races. The three-judge panel in Davis 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).


Harm Based on Inferior Education and the Fourteenth Amendment: Bulah v. Gebhart and Belton v. Gebhart, 1951, Wilmington County, Delaware


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.


Denial of Due Process in the Fifth Amendment: Bolling v. Sharpe, 1951, Washington, D.C.


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).



Amishmen walk toward the Supreme Court building in Washington on Dec. 8, 1971. They observed oral arguments in Wisconsin v. Yoder. (AP Photo/John Duricka)

Amish children on the way to school. ( photo/Gadjoboy – [CC BY])

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 both would harm Amish children psychologically and would 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.


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Expert testimony at trial supported the families’ argument that sending their children to high school was contrary to the Amish religion and way of life. The children’s forced attendance would not only expose them to censure by the church community but also endanger their salvation. The trial court determined that Wisconsin’s law did interfere with the Amish families’ freedom to act in accordance with their sincere religious beliefs but also found that the requirement of high school attendance until the age of 16 was a reasonable and constitutional exercise of government power. The parents were convicted and fined $5 each.


In its decision in Wisconsin v. Yoder, the U.S. Supreme Court affirmed the rule set forth in Sherbert v. Verner (1963) that in cases alleging a violation of the Free Exercise Clause, courts are required to balance government interests and religious obligation. The Court found that the testimony presented at trial provided ample support for the Amish families’ claim that enforcement of the compulsory education requirement after the eighth grade would “gravely endanger, if not destroy the free exercise of their religious beliefs.” Yoder,  406 U.S. 205, 219 (1972). The Court also found the trial testimony sufficient to prove that the Amish community had an adequate alternative mode of continuing informal vocational education after eighth grade and, therefore,  Wisconsin had failed to show that its strong interest in protecting the public welfare and the physical and mental health of children would be adversely affected by granting the Amish an exemption to the compulsory formal education requirement.  See Yoder, 406 U.S. at 234.




Workers removing asbestos. (Getty image/Bermau)

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)


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.


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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.


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.

[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,