Lawyer Who Argued Against Brown Had No Regrets

The outcome of Brown v. Board of Education cemented the American government’s condemnation of institutionalized segregation. How, then, could a man argue on behalf of a state that made “separate but equal” a matter of official policy, even as he himself acknowledged that the tide of public morality was flowing away from it? How could he reconcile his personal disgust with segregation with the task of defending its enabler? How could he sleep?

Utah Valley University History Professor David Wilson says there would be no regrets, no shame, no embarrassment. It was just a job. And Wilson would know, the assistant attorney general for the state of Kansas who argued on behalf of his employer before the United States Supreme Court in that fateful case, was Paul E. Wilson, his father.

Opinion in Brown v. Board of Education of Topeka, 08/31/1951

“Of course he was happy to take the case,” David says from his office in UVU’s Liberal Arts building, surrounded by stacks of kitschy memorabilia and American history books. “It had nothing to do with segregation. It had to do with a 36-year-old lawyer who was something of a hayseed getting to argue in front of the Supreme Court.” One book chronicling the case called the elder Wilson, who went on to have a distinguished legal career and became a law professor at the University of Kansas as “by Eastern standards… a hayseed.” The characterization didn’t chafe Paul Wilson, though, as the arguments he gave before the highest court in the land were the first he had ever made in an appellate court after spending years operating a tiny, rural practice.

In 1998, not long before his death, Paul Wilson returned to the Supreme Court chambers to reminisce and relive the great case at the invitation of the Supreme Court Historical Society. His introduction at that event – from no less than Supreme Court Justice David Souter — painted a glowing picture of a man who, at the end of the day, was a consummate professional and dedicated litigator.

“What do we make of the lawyer who argued not the cause that history has made popular, but the cause that it has so signally marked as unpopular?” Souter asked.

The judge posited that such a lawyer would “reconcile his duty to put client’s best foot forward with his duty to serve the court” and have “respect for reasonableness and respect for truth.” “When judges dream,” he said, “they dream of lawyers who look at their job as Professor Wilson has described.”

That description, which Souter quoted from Wilson’s book on the case “A Time to Lose: Representing Kansas in Brown v. Board of Education,” describes Wilson’s duty to separate his personal feelings from his professional duty.

“As a human being applying personal standards of conscience and rationality, I felt that the position of the state of Kansas was indefensible,” Wilson wrote. “At the same time, I did not regard my personal view and bias as relevant. The issue was one of law. Brown afforded me an opportunity that few lawyers of my generation have enjoyed: The privilege of supplying info to the Supreme Court of the United States to be considered in deciding one of the most important cases in American judicial history.”

The younger Wilson said it was never an emotional stumbling block for him to grow up in the household of a man who was asked to defend segregation policies. He knew a father who was a member of the American Civil Liberties Union, the National Association for the Advancement of Colored People and was the head of what David called one of the “more liberal” households in Kansas at the time.

“I really didn’t know much about it growing up,” David says. “I did know that he was active in Head Start programs and housing projects in Lawrence (Kan.) when there were civil rights questions.”

Instead of the case relegating him to infamy, it provided Wilson with the chance to rub shoulders with some of the era’s finest litigators, including South Carolina attorney and one-time presidential candidate John W. Davis, who acted as the lead attorney for the defense in the Brown lawsuit. In fact, when Wilson was inducted into the Supreme Court Bar, it was Davis who sponsored him.

Wilson only entered the high court once more – for his 1998 presentation – but his reflection on the importance of Brown v. Board of Education and his role in it crystallized later in his career. He clung to the “naïve belief that, in the long run, history is just,” and that his role was that of a lawyer doing his duty to represent his client in the light of the law. Nothing more, nothing less.

“That the court found the arguments of my adversaries more favorably than mine does not, in my view, reflect unfavorably on my character or the quality of my advocacy,” he wrote. “The lawyer takes his cases as they come to him. He creates neither the facts nor the law. His job is to see that the forum is right, the issues are properly drawn and that the court is fully and fairly informed as to his client’s view of the facts and his understanding of the law. I did those things as well as I could.” ###

January 14, 2010 For Immediate Release. For more information: David Wilson (801) 863-6916. University Marketing & Communications: Erin Spurgeon, (801) 863-6807
Written by: Alex Strickland (801) 863-6351