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After Brown. the law was on his side, but the Florida Supreme Court wasn't

Published May 16, 2004

TALLAHASSEE - May 17, 1954, was a day that changed countless lives, none more so than those of Joseph W. Hatchett, Leander Shaw and Peggy A. Quince.

Hatchett and Shaw, now retired, would become the first and second African-American justices of the Florida Supreme Court. Quince, still serving, is the third. That day began the long revolution that would lead them there.

On Monday, they will participate with the court in ceremonies marking the 50th anniversary of Brown vs. Board of Education, the U.S. Supreme Court decision that declared racial segregation in American public schools to be unconstitutional.

Quince was in first grade in a segregated Norfolk, Va., school when her father told her the news; it meant, he said, that she could attend any school she wanted to. But Norfolk schools were still segregated when she graduated 12 years later.

Hatchett recalled recently how the news that May 17 "electrified" the campus of Florida A & M University here, where he was a senior about to graduate. But it never crossed his mind that he or any other black Floridian could become a judge. "They would have put me in a straitjacket," he said.

Compliance came slowly to Florida. Its determination to keep its universities segregated gave civil rights lawyers what one called "our first brush with massive resistance." In 1960, when Hatchett and Shaw, both graduates of Howard University's law school in Washington, took the Florida Bar examination together, the manager of the Miami hotel where the test was given would not let them stay there or eat lunch with the white candidates.

* * *

On May 17, 1954, the Florida Supreme Court was no place for anyone to suggest that black people would someday wear its black robes. It is doubtful that any institution in the South was more resolutely racist. No Southern court fought desegregation longer or harder.

The senior justice was Glenn Terrell. Appointed in 1923, he would serve until 1964, the longest tenure ever. Campaigning successfully for the state Senate in 1914, he had advocated "eliminating the Negro as a political factor." That had already been accomplished through the device of Democratic primaries restricted to whites. Nonetheless, Terrell sponsored a constitutional amendment requiring literacy and property tests. Though a "grandfather" clause would exempt most whites, even they voted against it.

Sharing the Supreme Court bench with Terrell was another of Florida's legendary racists, John E. Mathews Sr., who as a state senator in 1947 had ranted for two hours in unsuccessful support of his bill to preserve the white primary by repealing all state laws concerning primaries.

A 1954 bond validation case gave the court the opportunity to denounce Brown. Writing for himself, Chief Justice B.K. Roberts and three others, Terrell approved the bonds despite their intended use to build segregated schools. Calling Brown "a great mistake," Terrell warned that it would be "a tragedy to attempt to enforce it" before Southern attitudes changed. "To homogenize Topsy, Little Red Riding Hood and Mary who carried her little lamb to school is going to be slow and tedious," Terrell said.

Mathews dissented, saying the segregation clause of Florida's Constitution meant that Florida's schools should be shut down.

The Florida court could do nothing to stall public school desegregation because the U.S. Supreme Court was entrusting that to the federal district courts. Desegregation was to take place with "all deliberate speed," an unfortunate phrase inspired in part by Florida Attorney General Richard Ervin's brief, which cited public opinion statistics in warning hyperbolically of a "tornado which would devastate the entire school system."

But the Washington court had not taken the Florida Supreme Court out of the loop with regard to the universities. Virgil Hawkins, a black man who wanted to study law at the University of Florida, became the scapegoat for Terrell and his wrathful colleagues.

* * *

Hawkins, a preacher's son from Lake County who had dreamed of becoming a lawyer to fight the multitude of large and small injustices that Florida blacks suffered, was public relations director of Bethune-Cookman College at Daytona Beach when he applied to the University of Florida law school in 1949.

Four other blacks applied with Hawkins to UF graduate programs. All were refused. They sued a month later in the Florida Supreme Court for an order requiring the UF to admit them. Only Hawkins would stay the long, discouraging course.

Florida offered to send them out of state, as other Southern states were doing, a practice the U.S. Supreme Court had already ruled unconstitutional. The Board of Control voted to establish a segregated law school at FAMU, as Texas had done in a similar situation. Meanwhile, Hawkins could be admitted, but only temporarily, to the University of Florida. In 1950, in the first of its six rulings on the Hawkins case, the Florida Supreme Court told him it was that or nothing.

Hawkins sued again. Denied again, he appealed to the U.S. Supreme Court, which turned him down because he still didn't have a final judgment from the very clever justices of the Florida Supreme Court. On his third trip to Tallahassee, in June 1952, the Florida court finally refused him flatly. This time the U.S. Supreme Court agreed to review his case and others like it. "The judgments are vacated," it said of Hawkins and the others, "and the cases are remanded for consideration in light of the Segregation Cases decided May 17, 1954."

That should have been clear, but the Florida court remained evasive and defiant. By a 5-2 vote, it ordered Hawkins to resubmit his issues with emphasis on "conditions that now prevail." Meanwhile, a special master, Circuit Judge John A.H. Murphree, would take testimony at Gainesville on how Hawkins might be received at the university. Sitting with the Supreme Court on special assignment, Murphree had been one of the judges signing Terrell's screed in the bond validation case.

Hawkins went back to the U.S. Supreme Court, which had already ordered the University of Texas to admit a black law student. On March 12, 1956, it ordered Hawkins admitted to UF. "As this case involves the admission of a Negro to a graduate professional school, there is no reason for delay. He is entitled to prompt admission under the rules and regulations applicable to other qualified candidates," the court said.

The news hit during an intense governor's race in which segregation had become the only issue, so far as Gov. LeRoy Collins' challengers were concerned. The Hawkins decision panicked even Collins, a moderate segregationist who eventually would become liberal on civil rights. He asked the U.S. Supreme Court for permission (it was denied) to let him argue in person for rehearing. He promised to ask for legislation if necessary. "We will continue to wage this fight by all legal and peaceful means," he said. "We will not surrender in our battle to protect our state's customs and traditions."

Neither would the Florida Supreme Court. Its last act of brazen defiance came in March 1957, when a majority opinion by Justice B.K. Roberts pronounced it "unthinkable" that the U.S. Supreme Court would actually intend to tell his court that it "does not have the right to control the effective date of its own discretionary process." Murphree's report, he said, predicted massive withdrawals and boycotts by white students if Hawkins were admitted. There would be violence, causing a "critical disruption of the university system." Hawkins would be admitted only when Florida was ready, not before.

Again, it was 5-2. "It is a fundamental truth," complained Justice E. Harris Drew in dissent, "that justice delayed is justice denied."

Roberts' opinion, however, had not been sufficiently sulfurous for Terrell, who spoke his mind in a memorable concurring opinion:

". . . (S)egregation is as old as the hills. The Egyptians practiced it on the Israelites; the Greeks did likewise for the barbarians; the Romans segregated the Syrians; the Chinese segregated all foreigners; segregation is said to have produced the caste system in India and Hitler practiced it in his Germany, but no one ever discovered that it was in violation of due process until recently . . ." (Emphasis supplied.)

* * *

Hawkins went back to Washington once again, but the Earl Warren court was exhausted. It sent Hawkins to a segregationist federal district judge, Dozier DeVane, who continued to stall Hawkins. The Board of Control, meanwhile, stiffened the entrance requirements past the point where Hawkins was able to pass them.

In June 1958, nine years after filing his application, Hawkins gave up. He sacrificed his own ambition to the cause, stipulating that if DeVane ordered Florida's graduate schools to accept all qualified black applications he would withdraw his. The UF law school admitted its first black student three months later. There was no disorder, no boycott, no mass exodus by whites.

Hawkins' family had suffered. To save his wife's Lake County teaching job, they had to pretend to be separated and then divorced. Many nights, she drove furtively to Daytona Beach to visit him. A niece, Gloria Barton, rode along. "My job," she said in a recent interview, "was to keep her awake."

Lake County Sheriff Willis McCall, a particularly notorious racist, jailed Hawkins' nephew as a rape suspect. That was too much for Collins, who intervened. McCall let the nephew go and framed a mentally retarded white youth, Jesse Daniels, who was railroaded into a mental hospital for 14 years. Freed eventually by court order, Daniels was compensated by the Legislature.

Virgil Hawkins went to Boston, where he drove a cab, waited on tables and did other odd jobs to finance a degree from the New England School of Law in 1964.

But Florida refused to let him take its bar examination because the New England school was not accredited until after he had graduated. He had reached the dead end of a long, bitter road.

Or so it seemed until the Florida Supreme Court, in 1974, ordered Ben Ervin, the brother of Justice Richard Ervin (the former attorney general) admitted to the Bar without having to retake the examination. He had flunked it four times. The pretext was that but for the Korean War, Ervin would have attended the University of Florida law school in time to be automatically licensed under what was called a "diploma privilege."

Hadn't Hawkins wanted to attend Florida even earlier? Didn't he have thousands of pages of evidence to prove it? Hadn't he earned the same break as Ben Ervin?

Of course he had, and in 1976 the Florida Supreme Court admitted him to the practice of law. He was nearly 70 years old.

There was more intrigue to that decision than the court wanted known. Digging deep into Florida archives, Harley Herman, a white lawyer in Lake County, found early drafts in which the majority intended only to let Hawkins take the Bar exam. But there was now a black justice on the court, Joseph Hatchett, who thought Hawkins deserved to be admitted outright just like Ben Ervin. He wrote a blistering 12-page dissent that detailed "the injustice members of this Court once willfully wrought" with their "lawlessness on the part of men sworn to uphold the law." One of those lawless men, B.K. Roberts, was still there. The majority gave in to Hatchett, who diplomatically withdrew his dissent. Soon after, Roberts retired. President Jimmy Carter appointed Hatchett to the 5th U.S. Circuit Court of Appeals.

* * *

The Hawkins saga would not have a happy ending. He was unprepared for the sole practice he attempted. He made ethical mistakes, in a criminal case for which he wasn't even paid, that led to the court putting him on professional probation. After a second series of violations, in which he mishandled his nephew's guardianship, Hawkins faced disbarment and resigned. "When I get to heaven," he told the court, "I want to be a member of the Florida Bar."

"What he was feeling inwardly, he kept to himself," Barton said. "Outwardly he was jolly, and he would make you laugh, tell jokes all the time."

"I know what I did. I integrated schools in Florida. No one can take that away from me," he said a few months before he died of a stroke in 1988.

Only three white people attended Hawkins' funeral. Herman and his wife were two of them. The white lawyer began a campaign to rehabilitate Hawkins' reputation. It would virtually destroy Herman's Lake County practice - he is now with an Orlando firm - but on his petition the Florida Supreme Court eight months later restored Hawkins posthumously to membership in the Florida Bar. Among the reasons: ". . . so that the errors in judgment made by Hawkins in his unsuccessful attempt to begin to practice law as a man in his seventies, do not overshadow the value of his service to humanity . . ."

"This decision sets no precedent," said the court, "because it is unique." According to Herman, only one other lawyer in the history of the world was readmitted posthumously to the profession of law: Mahatma Gandhi.

Leander Shaw took part in the unanimous decision. Two years later, the court's tradition of rotation by seniority made him the first black chief justice of the Florida Supreme Court.

Collins and Hawkins had never met. But on the day the Supreme Court restored Hawkins to good standing in the Bar, the former governor thanked Herman for filing the petition.

That year also, the Legislature named the University of Florida's third-year law clinic, whose students represent indigent clients, "The Virgil Darnell Hawkins Civil Legal Clinic." Florida State University named a collection of law books for him. In 1999, at a formal ceremony, the court apologized for its "great mistake" in having kept him out of the Florida law school. In May 2001, following a unanimous vote by the Faculty Senate, the University of Florida gave Hawkins its first posthumous degree.

* * *

They will be remembering all this at the Florida Supreme Court Monday, where the portraits of Terrell, Mathews, Roberts and all other former justices will bear silent witness from the walls. There's no picture of Hawkins in that gallery, but no one who ever knew him doubts that he will be watching too.

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