Against all odds, this Black NJ lawyer helped ignite the civil rights movement | Stile

Oliver Randolph, the lone Black delegate to the New Jersey Constitutional Convention, had reason to worry after arriving more than an hour late to the Aug. 13, 1947, deliberations inside the Rutgers University gym.

Before his arrival, opposition had been building all morning to his bold plans to break Jim Crow’s chokehold over the Garden State's public schools and its National Guard.

Some colleagues, while sympathetic to his overall goal, were concerned that his approach was an overreach or redundant. The pushback threatened to defeat Randolph's long effort to forge a progressive and equitable blueprint for New Jersey’s growing Black population. He needed to act quickly.

After thanking the delegates for waiting — a train accident near Elizabeth delayed him from reaching New Brunswick at the session's start — the lawyer and former legislator went on the offensive, relying on a tactic he had used in political battles as a prominent Republican operative in Essex County in the 1920s.

He shamed them.

“The fact is that those discriminated against belong to a race, as you all know, of which a great many young men gave their blood and laid down their lives for this great cause of democracy," Randolph said, referring to the large numbers of Black servicemen who had fought in World War II. “I can’t believe that this convention — the convention which is taking such marvelous strides to present a product that will be a model — I can’t believe that we will allow discrimination in our public schools.”

Haggling continued over the next few days, but Randolph’s fierce appeal to the delegates' duty and their place in history clearly had turned the tide. By the end of the week, the convention ratified Randolph’s bold bid in a lopsided vote.

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The action would prove to be a major, historic triumph. Three months later, New Jersey voters ratified a modern constitution featuring a streamlined judicial system, a powerful new governor’s role and Randolph’s proposal, formally enshrined as Article 1, Paragraph 5:

"No person shall be denied the enjoyment of any civil or military right, nor be discriminated against in the exercise of any civil or military right, nor be segregated in the militia or in the public schools, because of religious principles, race, color, ancestry or national origin."

New Jersey, a state derided by African American leaders as the "Georgia of the North," was now stamped with distinction as the first in the nation that unequivocally outlawed segregation in both its schools and its National Guard.

Virtually overnight, the Garden State went from a backwater to a progressive exemplar of social justice. Since then, only two other states — Connecticut and Hawaii — have taken similar steps to include anti-segregation clauses in their constitutions, according to John Dinan, a professor of politics and international relations at Wake Forest University, who is an expert on state constitutions.

It was a remarkable feat: A lone Black man determinedly and successfully pursued racial equity roughly a decade before the civil rights movement.

“It took the force of will of someone like Randolph to recognize that the state was not living up to its possibilities," Elise Boddie, a former law professor at Rutgers University-Newark and a civil rights activist, said in an interview last year.

But more than seven decades later, New Jersey is far from realizing those possibilities. Since then, New Jersey public schools remain segregated in largely segregated communities, a reflection of the "white flight" suburbanization that took root after the war.

A lawsuit seeking to crack the segregated patterns has stalled in the face of resistance from the state's liberal governor, Phil Murphy. And the Legislature, controlled by Democrats — moderate-to-socially liberal Democrats, not the Jim Crow segregationists of Randolph's time — has shown little inclination to embrace the experimental aims of the lawsuit.

Still, much of the work we can suppose Randolph dreamed of doing is still undone. New Jersey's record on civil rights, equal rights and segregation has many boxes still to be ticked if Randolph's vision is to be realized. His efforts in 1947 were only a starting point.

'Separate but equal' upended

But Randolph's achievement was remarkable in other ways.

In arguing for his provision, Randolph successfully attacked the pernicious "separate but equal" doctrine — the result of the U.S. Supreme Court's Plessy v. Ferguson ruling — that permitted segregation to flourish in New Jersey schools, despite a 60-year-old law banning the practice. Randolph's effort at Rutgers prevailed — seven years before the lawyers for the NAACP prevailed at the U.S. Supreme Court in the landmark Brown v. Board of Education decision outlawing segregated public schools across the country.

In a 1997 documentary about the making of the New Jersey Constitution, Clement Price, a Rutgers University-Newark professor and city historian, asserted that the Randolph-drafted provision encouraged the Supreme Court to take its historic leap.

“The court could point to New Jersey as an example of a state that voluntarily desegregated its schools, and it did so without racial … havoc," said Price, who died in 2014.

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The new anti-segregation clause also ratcheted up pressure on then-President Harry S. Truman to abolish segregation in the U.S. armed forces the next year.

After New Jersey’s decision to integrate its Guard units in February 1948, other states demanded a waiver from Truman’s Defense Department policy to do the same. Truman eventually issued his order five months later.

Little-known in New Jersey history

Still, except among a small community of historians, law professors, journalists and staff at the Newark Public Library who maintain Randolph's papers and associated ephemera, and who work to sustain his memory, Randolph remains a ghost of New Jersey history.

His achievements, sadly, are rarely celebrated.

That may be because Randolph, who died four years after the convention, was not one to boast of his success, said Bernard K. Freamon, a former Seton Hall Law professor who wrote an extensive Rutgers Law Journal article in 2004 about the New Jersey Constitution's anti-segregation clause.

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And in a few years, the bus boycotts and protests and the violent tumult of the civil rights movement would quickly dominate the nation’s television screens and its consciousness. By then, New Jersey’s 1947 breakthrough, Randolph's greatest achievement, was already a footnote.

But perhaps the biggest reason we don't better remember Randolph as a giant of Garden State history may be because New Jersey failed to fulfill the spirit and purpose of Article 1, Paragraph 5. Today, the breakthrough clause no longer stands as a source of pride, but can be seen as a benchmark of disappointment.

More than 75 years after its enactment, New Jersey's public schools are ranked as the sixth-most-segregated in the country, according to a 2017 UCLA study.

Although the new state constitution ensured that all public schools would open their doors to anyone, regardless of race, it proved to be no match for the demographic transformation that shaped the suburbanization of post-World War II New Jersey.

And many of those policies slammed the doors on aspiring minorities.

The sweeping G.I. Bill, enacted to help World War II veterans prosper after the war with a range of benefits, including access to higher education and, importantly, guaranteed mortgages, was largely denied to some 1.2 million Black veterans.

The discriminatory “redlining” practice of denying home loans in low-income neighborhoods prevented many Black and minority families from moving into the new neighborhoods. Exclusionary zoning in the suburbs also undermined integration.

The result: Most people of color congregated in urban, low-income areas and sent their children to crumbling, underperforming schools while most whites prospered in the new suburbs and in public schools that became the envy of the nation. A state residency law, requiring students to attend school in the towns where they live, deepened the segregated divide.

In 2023, there's still more to be done

Statewide school enrollment data from 2015 to 2020 paint the portrait of today's status quo, de facto segregation. Nearly half of New Jersey's Black students attended schools that are at least 90% non-white, while nearly 70% of white students attend schools that are three-fourths white, according to the state Department of Education.

In 2018, a coalition of education and civil rights activists sued New Jersey, arguing that the racial divide violated the Randolph-authored clause in the state constitution and that the state Education Department failed in its duty to fix it.

Activists want the New Jersey Supreme Court to strike down the state law requiring students to live in their schools' municipalities and instead let students transfer to neighboring districts or attend “magnet” schools that specialize in a specific discipline or skill.

The 2018 coalition had hoped that a new, progressive governor, Phil Murphy, would be an enthusiastic ally, but just the opposite happened. Murphy has been mum.

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After early settlement discussions collapsed, the state Attorney General’s Office has actively fought the lawsuit; the case remains stalled in Superior Court.

During a hearing last year, Deputy Attorney General Christopher Weber argued that the statistics were insufficient to prove that the state is responsible. He argued that a more “holistic” study of the public school system needed to be conducted before the court could order such dramatic change.

Education advocates "refuse to explore how or why the state defendants may be liable or what the [education] commissioner could or should have done,’’ Weber said.

The aggressive opposition from the Murphy administration has disillusioned many of the activists who were swept into office promising to reform New Jersey into a “stronger, fairer” state.

“I'm perplexed by the Murphy administration's aggressive opposition to this lawsuit, and as a governor who is not only a Democrat, but is a self-styled progressive,” said Boddie, the former Rutgers law professor. “The failure to see that there is an opportunity to do something about it. I can't explain it.”

Tackling New Jersey segregation

Not long after the convention began that June, Randolph began introducing a series of proposals addressing racial discrimination.

And by early August, Randolph had crafted a proposal to ban segregation in the state militia. While most of his colleagues were sympathetic to his aim, some raised concerns that by giving the militia — operating as the New Jersey National Guard — special status, the absence of similar language addressing other areas, like the courts or employment, might be seen as permitting discrimination. Others felt that an anti-discrimination clause in the Bill of Rights would cover everything. That group argued Randolph's language was needlessly redundant.

Randolph forcefully replied that the broad New Jersey Bill of Rights language would not suffice, and that it would only allow the status quo of segregated units to persist. Strong, declarative language, focusing solely on the militia, was needed, he said.

Randolph also issued an implied warning: Failure to clearly desegregate Black soldiers could plant the seeds of social unrest, even violence.

“I just don’t know whether you realize just what mental status it creates among those who are segregated, or whether you want to continue that mental status which breeds hatred, which breeds a great deal of danger in that members of a whole class of citizens begin to think that they are segregated on account of race, color or something else," Randolph warned.

First the Guard, then the schools

The 1947 Constitutional Convention approved Randolph's measure to desegregate New Jersey's militia by a vote of 45-26. Emboldened, Randolph came back two days later with an equally ambitious plan: a provision with similar language to end segregation in public schools.

This time, Randolph had hard evidence to support his argument. In 1881, New Jersey outlawed school segregation, he told his fellow delegates at the convention. But the law was rarely enforced.

At the time of the convention, about 60 school districts maintained segregated, “separate but equal” schools, particularly in rural South Jersey, but also in affluent bastions like Princeton and Englewood. It was a deeply rooted custom.

“We have a very peculiar situation in our state," Randolph said in a floor speech. “In spite of that law, I dare say every delegate knows that we have separation on account of race.”

Yet this time Randolph was rebuffed — his measure was referred back to committee. Freamon, the former Seton Hall law professor, suggests that the issue of school segregation lacked the urgency of providing fair treatment to returning GIs, including Black soldiers, and new recruits.

Instead of retreating, Randolph took an even bolder step. He followed up with a new proposal calling for desegregating school and the militia in the same clause.

As he did earlier, he argued that broad anti-discrimination language in the Bill of Rights would fail to uproot the racist custom. But this time, he had won the backing of Col. George H. Walton, an influential Camden County delegate, who served as Gov. Alfred E. Driscoll’s representative in the delegation.

The committee reported the plan to the full convention, where it was met considerable resistance, some steeped in pragmatism, some in caution, and in one case in sarcastic disdain.

John F. Schenck, a Flemington businessman and a descendant of the Frelinghuysen political dynasty, argued that New Jersey's Bill of Rights would adequately serve the purpose of preventing future discrimination. But then, to make his point, he mocked Randolph’s new proposal as an overreach.

Perhaps, Schenck argued, “Why not include the right to swim in public pools?"

Schenck went on: "I see this is a controversy in New Jersey concerning this point," he said. "Or the right to use the boardwalk at the seashore and the right to sit where you please at the motion pictures?”

Marie Katzenbach, a Rutgers trustee and a leading New Jersey civic figure — and one of only five women delegates dispatched to the 1947 constitutional convention — supported Randolph’s aims. Still, she feared that singling out schools and militia could open doors to other areas of government and civic life that could well be exempted from the protections. She believed that the 1881 law barring school segregation needed to be more aggressive enforced.

"The answer lies in … giving the commissioner of education the power to enforce the law, now so manifestly lacking," said Katzenbach, whose son, Nicholas, would later serve as U.S. attorney general during the heyday of the civil rights movement in the 1960s.

Then Myra C. Hacker, a delegate from Bergen County, suggested that discrimination “is a problem of education and rejuvenation of the spirit that can only be solved by the people themselves, by having the right intellectual, moral and social perspective.”

In other words, Hacker argued that discrimination couldn't be eliminated by legal mandate.

Yet there was evidence that the tide was turning in Randolph's favor.

Judge Francis Stanger, a Cumberland County delegate, stressed his support for the broad Bill of Rights language, but suggested that if Randolph’s latest amendment was cleared by committee, he would reluctantly support it.

Walton, the delegate who collaborated with Randolph to revise the amendment, took to the floor to vigorously defended the plan.

Finally, Randolph made one last appeal. He urged the delegates to "insert a real clause in our constitution which cannot possibly be misconstrued by the courts."

Minutes later, the convention approved the measure, 50-18.

The transcripts of the convention do not offer much insight on how Randolph pulled off such a major triumph that day, but Freamon believes that his conduct, "virtuosity" and ability to persuade the all-white delegates to suspend their own beliefs and peer into the future helped galvanize support.

And the trauma of the war had given Black people a new moral platform to make their case for long-denied enfranchisement in the country they fought for.

“One of his main arguments was that you have all these African Americans coming back from the war, and they weren't in the mood to put up with segregation anymore," Freamon said. “They had risked their lives in World War II and fought for the country, and then to have to come back to a segregated National Guard unit or to send their kids to a segregated school? What's up with that?"

More than 75 years later, many parents are asking a similar question.

Charlie Stile is a veteran New Jersey political columnist. For unlimited access to his unique insights into New Jersey’s political power structure and his powerful watchdog work, please subscribe or activate your digital account today.

Email: stile@northjersey.com 

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