From "Novel Expert evidence in federal civil rights litigation" by Gordon Beggs (The American University Law Review, 45, 1995)
In the consolidated cases known as Brown v. Board of Education, federal civil rights litigation came of age. The case, which heralded great change in constitutional law, public schools, and the fabric of society, also introduced the civil rights field to the debate regarding the use of novel forms of scientific proof as evidence.
At trial in Brown's consolidated case Briggs v. Elliott, the National Association for the Advancement of Colored People (NAACP) presented dramatic testimony by Professor Kenneth Clark of the City College of New York.Professor Clark performed innovative psychological tests utilizing dolls to identify harms inflicted on the plaintiff children due to segregation. Professor Clark described the tests and his conclusion in response to questioning by Robert Carter of the NAACP:
A. I made these tests on Thursday and Friday of this past week at your request, and I presented it to children in the Scott's Branch Elementary school, concentrating particularly on the elementary group. I used these methods which I told you about--the Negro and White dolls--which were identical in every respect save skin color. And, I presented them with a sheet of paper on which there were these drawings of dolls, and I asked them to show me the doll--May I read from these notes? JUDGE WARING: You may refresh your recollection. THE WITNESS: Thank you. I presented these dolls to them and I asked them the following questions in the following order: "Show me the doll that you like best or that you'd like to play with," "Show me the doll that is the 'nice' doll," "Show me the doll that looks 'bad'," and then the following questions also: "Give me the doll that looks like a white child," "Give me the doll that looks like a colored child," "Give me the doll that looks like a Negro child," and "Give me the doll that looks like you." By Mr. Carter: Q. "Like you?" A. "Like you." That was the final question, and you can see why. I wanted to get the child's free expression of his opinions and feelings before I had him identified with one of these two dolls. I found that of the children between the ages of six and nine whom I tested, which were a total of sixteen in number, that ten of those children chose the white doll as their preference; the doll which they liked best. Ten of them also considered the white doll a "Nice" doll. And, I think you have to keep in mind that these two dolls are absolutely identical in every respect except skin color. Eleven of these sixteen children chose the brown doll as the doll which looked "bad." This is consistent with previous results which we have obtained testing over three hundred children, and we interpret it to mean that the Negro child accepts as early as six, seven or eight the negative stereotypes about his own group. . . . Q. Well, as a result of your tests, what conclusions have you reached, Mr. Clark, with respect to the infant plaintiffs involved in this case? A. The conclusion which I was forced to reach was that these children in Clarendon County, like other human beings who are subjected to an obviously inferior status in the society in which they live, have been definitely harmed in the development of their personalities; that the signs of instability in their personalities are clear, and I think that every psychologist would accept and interpret these signs as such. Q. Is that the type of injury which in your opinion would be enduring or lasting? A. I think it is the kind of injury which would be as enduring or lasting as the situation endured, changing only in its form and in the way it manifests itself. MR. CARTER: Thank you. Your witness.
Professor Clark's testimony, while founded on scientific principle, carried great emotional power, and therefore caused vigorous debate among the litigants and scholars as to its import. NAACP counsel Thurgood Marshall, arguing on behalf of plaintiff schoolchildren, asserted the broadest inference that could be drawn from results of these tests: they proved actual harm done by segregated schools. Thus, minority schools violated the Fourteenth Amendment because they could not satisfy the separate but equal standard announced by the Court in Plessy v. Ferguson. Other NAACP lawyers, like many civil rights practitioners who would follow in their footsteps, struggled with the meaning of the novel scientific evidence that they were attempting to develop. One historian subsequently reported that Professor Clark's tests using the dolls were "the source of considerable derision" among plaintiffs' attorneys. William Coleman, a former clerk for Supreme Court Justice Felix Frankfurter, acknowledged, "Of all the debunkers, I was the most debunking. . . . I thought it was a joke." Professor Clark, who also served as principal advisor on the expert testimony for the school desegregation cases, was well aware of the controversy. He recalled:
Thurgood [Marshall] kept his options open. He played the role of conductor beautifully. It was clear that Bob Carter was the most persistent, consistent advocate of the involvement of the social scientists at the trial level. Bob was way out on the limb, pretty much by himself. Most of the other lawyers felt this approach was, at best, a luxury and irrelevant. Thurgood Marshall didn't tip his hand, except that he did let Bob and me go ahead with the dolls.
John W. Davis argued on behalf of the defendant school officials.60 Davis chose to attempt to undermine the doll tests'
stature as scientific evidence by invoking a sarcastic style of argument. He pointed out that Professor Clark purported
"to speak as an expert and informed investigator."61 From an "intensive investigation" and "thoroughly scientific test,"
Professor Clark reached the "sound conclusion" that the plaintiffs suffered harm in their development.62 Calling the result
"sad," Davis declaimed that the court was "invited to accept it as a scientific conclusion."63 In concluding, however,
Davis attempted to turn Professor Clark's published research64 in the defendantís favor by pointing out that a greater
percentage of black children in northern schools preferred the white doll, thought the white doll was nice, and thought
the black doll was bad.65 He declared, "Now these latter scientific tests were conducted in nonsegregating states, and
with those results compared, what becomes of the blasting influence of segregation to which
Dr. Clark so eloquently testifies."
The Court ordered reargument of the cases67 and did not issue its opinion until May 17, 1954.68 Holding that racial segregation of children in public schools was a per se violation of the Fourteenth Amendment, the Court found that segregation "generates a feeling of inferiority as to their status in the community that may affect the childrens' hearts and minds in a way unlikely ever to be undone."69 Noting the consistent findings in the Kansas70 and Delaware71 decisions that segregated schools injured the plaintiffs and denied them equal educational opportunities,72 the Court concluded that "[w]hatever may have been the extent of psychological knowledge atthe time of Plessy v. Ferguson, this finding is amply supported by modern authority."