The Case for Equal Salaries

John Gilbert v. Board of Public Instruction for Brevard County, Florida:
 First Legal Attempt to Get Equal Pay for All Teachers in the Deep South

by Belle B. Schumann[1]

          On May 17, 1954, the United States Supreme Court decided Brown v. Board of Education of Topeka, Kansas, overruling its prior precedent of exactly fifty-eight years earlier, Plessy v. Ferguson.[2] The Brown decision held that the provision of separate schools for different races was inherently unequal, and thus violated the 14th Amendment’s promise of equal protection of the law. For nearly sixty years, Plessy had permitted separation of the races by law, so long as the quality of accommodations provided for all was equal. The Brown decision specifically overruled what had become the “separate but equal” doctrine that allowed separation of the races in all aspects of American life. 

          Any major societal change like Brown was made possible by innumerable individual cases in a coordinated effort across America like small streams joining to form mighty rivers that flow into the sea. One of these cases originated in Brevard County in 1938 when John Gilbert sought equal pay for teachers in negro schools with the same level of experience as their white counterparts who earned twice the annual salary.[3] This case was “the first lawsuit in the South calling for Black and white teacher salaries to be equal.”[4] Although this particular case was unsuccessful, nevertheless it added to the current of societal change which ultimately resulted in the watershed decision in Brown

          For the first half of the 20th century, Plessy v. Ferguson provided the legal authority to enshrine the “separate but equal” doctrine into law. Article 12, Section 1 of the Florida Constitution (1885) stated, “(t)he Legislature shall provide for a uniform system of public free schools and shall provide for the liberal maintenance of the same…. White and colored children shall not be taught in the same school, but impartial provision shall be made for both.” By Florida state statute passed in 1927, it was a criminal offense punishable by a minimum fine of $100 and three months of imprisonment for “white persons and negroes” to be “instructed or boarded within the same building or taught in the same class or at the same time by the same teachers.”[5] It was also a criminal offense for white teachers to teach in negro schools and for negro teachers to teach in white schools.[6] The maximum penalty for these crimes was a fine of $500 and six months of incarceration.

          In early 1937, the main office of the National Association for the Advancement of Colored People (NAACP) distributed a memorandum to their local affiliates across the country seeking to be notified of cases of unequal pay for white and Black teachers.[7] The legal strategy to sue for enforcement of the “separate but equal” doctrine was created by the first general legal counsel for the NAACP, Charles Hamilton Houston. Houston was the dean of Howard University law school, where he taught generations of African Americans to become lawyers, including Thurgood Marshall.[8] Houston left Howard to join the NAACP, where he “…tirelessly exposed the hollowness of the ‘separate but equal’ doctrine and paved the way for the Supreme Court ruling outlawing school segregation.”[9] Houston invited his star law student, Thurgood Marshall, to join him at the NAACP national headquarters, and for many years, they led the fight to end the legal separation of the races. 

Rather than an immediate, direct attack upon Plessy, their strategy was instead to seek enforcement of the “separate but equal” doctrine by demonstrating the disparity and inequality that prevailed across the country. “His ingenious legal strategy was to end school segregation by unmasking the belief that facilities for Blacks were ‘separate but equal’ for the lie it was…. At that time, Southern states collectively spent less than half of what was allotted for white students on education for Blacks. Houston’s intention was to make it too expensive for facilities to remain separate.”[10] As a starting point to attack the inequality of segregation, beginning with the stark difference in pay for teachers was an inspired choice. The 14th Amendment claim required state action. Salaries paid to teachers in the public school system under a pay schedule adopted by the School Boards as required by law is clearly a state action, putting the lawsuit on firm legal footing.

          On a hot summer day in 1937, several Black educators from throughout Florida met in Ocala at the Howard Academy, where Edward Davis was the principal.[11] Davis also served as the President of the Florida State Teachers Association. The leaders of the FSTA met in Ocala to discuss a potential lawsuit to obtain equal pay for Black teachers. FSTA attorney S.D. McGill, an African American attorney practicing law in Jacksonville, was present at the meeting, as was Harry T. Moore, the principal of the Titusville Colored School and the founder and president of the Brevard County chapter of the NAACP.[12] At this meeting, Moore suggested that the test case could come from his home county, where there were “strong leaders, led by Moore and his old school chum, John Gilbert.”[13]

          John Edward Gilbert was born on March 22, 1902, in LaGrange, Brevard County, Florida. His father Jonas Gilbert was a Minister, and his mother Charity Gilbert was a “washwoman.” Both parents were born during the Civil War prior to Emancipation. John was the eighth of nine children.[14]

          In early August, 1937, Harry T. Moore wrote to Charles Hamilton Houston and Walter White, the Executive Secretary of the national NAACP, to seek their assistance in filing a lawsuit challenging the salary schedule for teachers in Brevard County.[15] White was out of town, and so Moore’s letter was passed to the assistant special counsel, Thurgood Marshall.[16] In this correspondence, Moore said he had already engaged the services of S.D. McGill to file the lawsuit. McGill and Thurgood Marshall were co-counsel in the Brevard County teacher pay case.

          Harry T. Moore was a teacher in Brevard County from 1925 until 1946, when his teaching contract was not renewed due to his political activity. He graduated from Florida Memorial High School in Live Oak in 1925 and graduated from Bethune-Cookman College with a Normal degree in 1936 and a B.A. degree in 1951.[17] Moore was appointed as the principal of the Titusville Colored School in 1927. He founded the Brevard County Chapter of the NAACP in 1934. In that capacity, he “…waged letter writing campaigns, rallies, fund raising drives and initiated lawsuits to protest police brutality, lynching, racist judicial policies and unfair labor practices against black people.”[18] He was responsible for registering over 100,000 black voters in Florida. Moore was portrayed by numerous witnesses as a “gentle, intelligent individual who never raised his voice.”[19]

Moore was murdered on December 25, 1951, when a bomb exploded under his house while he and his wife slept. “By the time of his death, Harry Moore had become an almost larger than life hero in the black community and a thorn in the side of local and nation politicians, labor leaders, school officials and Klansmen.”[20] After Moore’s murder, the Ku Klux Klan became the focus of the FBI investigation. “The Klan was very active in Florida at that time in areas near Mims, and particularly in Lake County, Apopka and Orlando….It was well known that high ranking members of the community, including law enforcement officers, elected officials, and prominent business owners, were members of the Klan and/or shared their beliefs.”[21] Although the teacher salary cases were filed eleven years before Moore’s murder, this advocacy may have been a contributing factor in his death. “Harry Moore’s advocacy had become increasingly effective and his success in registering and organizing black voters had threatened existing power structures where the Klan was well entrenched.”[22]

Walter White of the national office of the NAACP was interviewed as part of the FBI investigation into Moore’s murder. White reported that Mr. Hutzler, Superintendent of Public Instruction in Brevard County and a named Respondent in the teacher salary lawsuit, told Moore that “he was going too far, and something had to be done.”[23]

          In 1937, Thurgood Marshall was well on his way to becoming “Mr. Civil Rights.” Thurgood Marshall graduated from Howard University law school in Washington, D.C. in 1933, graduating first in his class.[24] At the invitation of his mentor and professor, Charles Hamilton Houston, Marshall joined Houston on the legal staff of the NAACP in New York in 1936. For several years, Marshall and the NAACP filed dozens of lawsuits which ultimately led to the Brown v. Board decision in 1954. Marshall was appointed to the United States Court of Appeals for the Second Circuit in 1961. Four years later, in 1965, Marshall was appointed as Solicitor General of the United States, responsible for prosecuting appeals on behalf of the federal government. On August 30, 1967, Thurgood Marshall was confirmed by the United States Senate as the first African American Justice on the Supreme Court of the United States.[25]

          At Harry T. Moore’s suggestion, Thurgood Marshall and the national NAACP legal team joined forces with Jacksonville attorney S.D. McGill to file suit seeking equal pay for all teachers in Brevard County schools. Harry T. Moore began his teaching career in 1926 at the Cocoa “colored school,” and John Gilbert joined him on the faculty one year later.[26] The men were very close personal friends.[27] Gilbert and Moore were classmates at Florida Memorial College.[28] Gilbert was promoted to principal of the Cocoa school, and Moore became principal of the Titusville school. Moore taught ninth grade and Gilbert taught Latin.[29] Moore convinced his good friend, John Gilbert, to become the named Petitioner in the legal fight to equalize teacher pay.[30] John Gilbert was a member of the executive committee of the Brevard Chapter of the NAACP.[31] Gilbert was described as “…quiet but more forceful and more the leader of the group.”[32] John Gilbert agreed to become the named Petitioner in the lawsuit after “…the FSTA executive board promised to pay his salary when- it wasn’t a question of if- he was fired.”[33] Gilbert was 36 years old and unmarried; perhaps he was willing to risk his career because at that time he did not have a family to support, unlike his friend Harry Moore.

          In 1938, John Gilbert was a teacher and principal at Cocoa Junior High School with eleven years of teaching experience.[34] Gilbert was a graduate of Florida Memorial College for Negroes in Live Oak, Florida, and had one year of college work at Florida A&M in Tallahassee. He held a second grade teacher’s certificate issued by the Board of Education for the State of Florida. John Gilbert had taught in Brevard County schools for negroes since 1926. For this work he was paid an annual salary of $450, exactly half of the $900 salary paid to white teachers with a second grade teaching certificate and eleven years of teaching experience. The lawsuit alleged that this salary disparity for individuals with identical qualifications and experience, performing essentially the same duties, was “based solely on race.”[35]

          John Gilbert faced considerable risk by agreeing to be the named Petitioner in this lawsuit. In 1937, America was in the depths of the Great Depression. Losing professional employment, even if unequal in pay, was a terrible economic risk when so many people were out of work. In 1938, the overall unemployment rate in America was 20% and for African Americans, the unemployment rate was almost double that figure.[36] John Gilbert was aware of the likelihood that he would be fired by the school board for participating in this lawsuit. In a letter from S.D. McGill to Charles H. Houston dated November 27, 1937, prior to the case being filed, McGill reported, “I am having some little difficulty in holding my teacher client in line. I knew that from the beginning and so we have prepared another job for him in the event he is dismissed by the school board when his petition is filed.”[37] This fear was realized when John Gilbert was fired by the Board shortly after the suit was filed on his behalf.[38] John Gilbert “as expected, was fired. His teaching career was over. Gilbert would never find another teaching job and would spend the remainder of his career with the Central Life Insurance Company of Tampa.”[39]

          The danger of physical violence to John Gilbert in retaliation for filing this lawsuit was also very real. His good friend, Harry T. Moore, was murdered in 1951 when a bomb exploded under his house. Although the case remains unsolved, the FBI report investigating the murder concluded that the Ku Klux Klan was responsible. “It was well known that high ranking members of the community, including law enforcement officers, elected officials, and prominent business owners were members of the Klan…”[40] Black people who got “too big for their britches” were often kidnapped and beaten, sometimes to death.[41]

          Despite these real threats, John Gilbert agreed to be the named Petitioner of the lawsuit filed by Thurgood Marshall and S.D. McGill to equalize pay for teachers in Brevard County. They chose to file the case as an extraordinary writ called a Petition for Writ of Mandamus. A mandamus petition seeks to compel a public official to perform an act which there is a clear legal duty to perform, and the failure to act constituting an injury to the Petitioner for which there is no other adequate legal remedy. It is the burden of the Petitioner to establish the legal duty of the official to act and the failure to act in accordance with the clear legal duty. It is within the inherent power of the court to grant relief to enforce a clear legal right. In the Gilbert case, the Respondents were the three elected members of the Board of Public Instruction: L.R. Highfill, J.D. Pepper and W.J. Creel. The Superintendent of Public Instruction for Brevard County, Damon Hutzler, was also a named Respondent. These board members were the elected public officials responsible by state statute for hiring teachers in Brevard County, and they were sued in their professional capacity. 

          As a precursor to filing suit, on December 6, 1937, John Gilbert asked the Board of Public Instruction to “adopt and enforce a salary schedule providing for equal pay to all teachers with the same qualifications and experiences without distinction being made as to race or color of the teacher or school.”[42] The school board refused to consider amending their salary schedule. Attached to the Petition for Writ of Mandamus was the “Brevard County Teachers Salary Schedule” which had been adopted by the school board. The salary schedule demonstrated the disparate pay scale for white and Black teachers with identical experience and certification.

          McGill first filed the Petition for Writ of Mandamus in the Supreme Court of Florida in March, 1938, as the high court also had concurrent, original jurisdiction to consider extraordinary writs, however, the Supreme Court transferred the case to the Circuit Court for Brevard County for initial consideration. 

The Petition for Writ of Mandamus alleged that the school board Respondents were “required by law to maintain a uniform and effective system of free public schools for white and colored children who shall not be taught in the same school but impartial provisions shall be made for both.” All white children were required to attend schools where all the teachers were also white, and all negroes were required to attend schools taught only by negro teachers pursuant to state statute. The board was required to employ teachers for every school and pay teachers throughout the county. The petition alleged that the board was required by state statute “to adopt scales of salaries for teachers in the public schools of Brevard County and to fix the salaries of said teachers.” The board had in fact adopted such a salary schedule which was attached to the petition.[43] All Brevard County teachers were paid pursuant to this salary schedule. This schedule provided that “negro teachers’ base salary is $30.00, each unit value $2.00, minimum $50.00,” while white teachers’ base salary was “$50.00, each unit value $3.00, minimum $100.00.”[44] The difference in salary for teachers with the same level of experience, performing the same duties was “based solely on the ground of race or color.” John Gilbert was paid $450 annually as a teacher with eleven years of experience, while a white teacher with the same experience and with the same second grade teaching certificate was paid $900 per year pursuant to the salary schedule adopted and enforced by the Brevard County Board of Public Instruction. 

          Not only were teacher salaries unequal, but the public funding for the white and negro schools was even more disparate. In a report filed with the State Department of Education on August 27, 1937, Superintendent Hutzler reported that the operating costs for white schools was $69.05 per student, but the expenditure per student at negro schools in the county was only $27.04.[45]

          Funding schools for African Americans at less than half of their white counterparts was nothing new in Florida. In a biannual report filed by the Secretary of the Board of Education for Florida for the two-year period ending June 30, 1930, Superintendent W.S. Cawthen was self-congratulatory at the level of public school funding. “Of every one hundred dollars of our State income, we invested $5.76 for education; the percentage of income spent for this purpose being higher than it was in any other state of the Union.”[46] The report also claimed that Florida also led the nation in spending on school property as a percentage of overall revenue, and concluded, “Florida places a greater value on education than does any other state.” Despite this claim, the report also noted that fair salaries were paid to only about half of the teachers, primarily in rural areas, and recommended a minimum salary for white elementary school teachers of $1,000. 

The number of teachers needed was based on a formula of instruction units; one teaching unit was the equivalent of one teacher for a white elementary school class of thirty or less students. To ascertain the number of teachers needed for a Black elementary school, the report explained that the white unit was multiplied by .54, which insured funding for Black teachers remained about half that of white teachers.[47] 

In 1930, there were no schools for Blacks in Brevard County above primary school. In the entire state, only Dade, Duval and Leon Counties, all fairly large metropolitan areas, had local public high schools for Black students.[48] By the time the lawsuit was filed in 1937, more than half of Florida’s 67 counties still had no high school for Blacks, so less than ten percent of the state’s 95,000 black school children were enrolled in junior high or secondary schools.[49] The average monthly salary in Brevard County in 1930 for white male teachers was $224 per month, white female teachers earned an average of $130 per month, while negro male teachers earned an average salary of $79 and negro female teachers earned just $69 per month.[50]

          Even more striking in the 1930 report is the difference in the investment in the physical plant of the schools. In Brevard County that year, there were 7,686 books in the libraries of the white schools, and the total number of library books in the negro schools was 72; white students had access to over one hundred times more library books.[51] The total value of the equipment and furnishings at white schools in the county was $48,115 compared to one-tenth that value at negro schools with a total of $4,800 in furnishings and equipment. 

          The 1930 state report noted that for ten years, Rosenwald Funds had been available to build and equip schools for Blacks, but Florida lagged behind other states in the south in utilizing these funds. “The tardiness with which Florida school officials have used this gift indicates their lethargic provision for Negro schools.”[52] The Rosenwald School project originated as a partnership between African American leader Booker T. Washington, founder and president of the Tuskegee Institute, and Jewish American clothier Julius Rosenwald, part owner and president of Sears, Roebuck and Company. Almost half a century after the end of slavery in the United States, Washington and Rosenwald recognized a need to improve educational opportunities for African American students, particularly in southern states.

For 20 years, between 1912 and 1932, the Rosenwald School project was responsible for building more than 5,000 schools in 15 southern states, 126 of them in Florida.  Two Rosenwald schools were built in Brevard County, in Mims and Cocoa, and 600 students attended these schools in 1930. The Cocoa School (also known as Cocoa Junior High School), where both John Gilbert and Harry T. Moore taught, was built between 1922 and 1923 as a four-teacher school. The building was expanded between 1923 and 1924 to be a five-teacher school, and again in 1929 to accommodate seven teachers.[53]

          The Superintendent of Public Instruction for Brevard County reported they had made 76 visits to white schools in the 1928-1929 school year, but visited the negro schools under their supervision just one time.[54] This general lack of supervision was offered as an explanation in the state report for the poor condition of the Negro schools throughout the state. “Some of the county superintendents in the state have not seen all of the Negro schools in their respective counties. Hence, they do not know the conditions of the buildings used as schoolhouses, the water and toilet facilities provided for the schools, the lack of teaching equipment, the poor distribution of free textbooks and the quality and amount of teaching done in the schools.” [55]

          In an effort to correct this disparity and in accordance with the national strategy to force the separate schools to be equal, the Petition for Writ of Mandamus was filed in the Circuit Court for Brevard County on May 24, 1938. The petition alleged that the sole basis for the disparity in pay between John Gilbert and a white teacher with the same level of experience and certification was his race. Pursuant to the salary schedule adopted by the Respondents who were elected to serve on the Board of Public Instruction for Brevard County, which was attached to the Petition, Gilbert was paid half the salary of a similarly situated white teacher. The Petition was filed by Jacksonville attorney S.D. McGill and Thurgood Marshall on behalf of John Gilbert. 

          Just twenty calendar days later, on June 13, 1938, Judge M. B. Smith entered final judgment denying relief and dismissed the petition.[56] In the one-page order, Judge Smith agreed that Florida state statutes directed the board to employ teachers for every school in the county and to pay them for their services. The order noted that the Florida Constitution required the board to establish and maintain a uniform system of public instruction. However, the Circuit Judge denied relief because “I do not find any law which requires the Board to establish salary schedules. The statute seems to contemplate individual contracts with teachers and the constitutional provision for uniformity provides the accomplishment of a result and not the details of the means by which the same shall be accomplished.”[57]

          The trial court order did not address the fact that the school board had adopted a uniform schedule for payment of all teachers in the county which created unequal pay for similarly credentialed white and Black teachers. The order also overlooked the 1937 statute which required the school board to adopt scales of salaries for all public school teachers.[58] This statute required that the budget for the county “…shall include the proposed schedule or schedules of annual and monthly salaries to be paid teachers, principals and other members of the instructional staff.”[59] The Petition for Writ of Mandamus was denied on the ground that there was no clear duty for the board to adopt a salary schedule despite this state statute. There was no discussion of the inequalities in the pay schedule for teachers based solely on their race.

          The trial judge found that the Petition for Writ of Mandamus failed to state a cause of action on its face, and so the Respondents were not ordered to file a response. The legal standard of review required the judge to first determine whether, assuming all the facts as alleged were true, the petition stated a valid legal basis to grant relief. If so, then the next step could have been to order the school board to file a response. However, since the trial court found that the petition failed to state a valid basis for mandamus relief by determining that there was no legal duty for the board to create a salary schedule in the first place, no response was ordered or filed by the Respondent school board members. Facts that are not contested by the opposing side at the trial level are deemed admitted. As the case progressed through the appeals process, one advantage for the Petitioner was the legal standard of review that considered all the facts as alleged in the petition to be true. The inequality in salary based solely on race was an established fact without further proof.

          After the Circuit Court of Brevard County denied relief, Gilbert sought review in the Supreme Court of Florida. In the brief filed by McGill and Marshall, the first ground for review alleged that John Gilbert was a qualified teacher in the public schools of Brevard County, but the school board refused to pay him and other negro teachers as much salary as their white counterparts with the same qualifications and experience.[60] The trial court erred in denying the petition on the ground that “I do not find any law which requires the board to establish salary schedules” since salary schedules were required by state statute. The brief filed by McGill and Marshall argued that based on the conceded and undisputed fact that negro teachers with the same experience and credentials were paid half the salary of their white counterparts was neither “uniform” nor an “impartial provision” for negro students as required by the 1885 Constitution of the State of Florida.

The second question for review alleged that the practice of lesser salary solely on the ground of race or color violated the equal protection of law guaranteed by the 14th Amendment to the United States Constitution, squarely presenting a question in terms of federal law. No brief in response was filed by the Respondent school board members in the Supreme Court of Florida. 

The case was set for oral argument in the Supreme Court of Florida on June 16, 1939. Attorney S.D. McGill told Thurgood Marshall by letter that he had been notified that no opposing counsel would appear since no brief had been filed by Respondents.[61] Nevertheless, Leonard B. Newman was permitted to present oral argument on behalf of the school board when Attorney McGill did not object.[62] When S.D. McGill, an African American, approached the lectern to present his argument to the Supreme Court of Florida, “…only three Supreme Court (Justices) listened, the others turned their chairs facing away from him.”[63] Nevertheless, McGill wrote to Marshall that the argument went “very well” and he had been given more time to argue the case. “The Chief (Justice), too, announced from the bench that the questions involved were very important and for that reason, additional time would be given counsel to present their case.”[64] Perhaps because he did not object to the appearance of the attorney for the school board, the Court permitted McGill to rely on a recent decision in a case successfully argued by Marshall.[65] “The case of Mills v. Maryland State Board of Education came in very well. I called the Court’s attention to it and was allowed to comment on it in spite of the fact that it was not cited in our briefs”[66] The Mills v. Maryland case, decided March 1, 1939, was the first judicial statement authorizing a petition for writ of mandamus to equalize teacher salaries, and gave Black teachers legal standing to raise the constitutional question of a 14th Amendment violation for inequal pay.[67]

          In addition to the Maryland case, the NAACP was busy filing cases seeking equal pay for all teachers in several states, including Virginia, Tennessee, and Missouri, but they were still pending, slowly winding their way through their respective courts.[68] Although Maryland lies south of the Mason-Dixon line, it was a border state in the Civil War, while Florida was considered the Deep South. The Gilbert case was the first case seeking equal pay for Black and white teachers in the Deep South from a state court.[69]

          Despite McGill’s initial optimism, the Supreme Court of Florida rendered its decision affirming the trial court on July 25, 1939.[70] The decision agreed that the state constitution made it the duty of the Legislature to provide for a uniform system of public free schools, and even though white and Black children could not be taught in the same school, “impartial provisions shall be made for both.” However, in the Court’s view, it was left to the school boards to contract with teachers individually. “It is reasonable to assume that some teachers are better prepared by education or otherwise qualified to teach than others and for this and other reasons, the Legislature clothed members of the Boards of Public Instruction with broad powers so as to enable them to contract with the very best teachers obtainable for the funds at their disposal.” The school board of Brevard County did not have a duty to adopt the salary schedule, according to the Court. Therefore, the Court had “…no power in a mandamus proceeding to control the discretionary authority conferred by statute on Respondents here.”[71] The Petitioner had failed to establish a clear legal right to the performance of a particular legal duty, and so the Mandamus petition failed. The only bright spot for McGill and Marshall was the Court’s recognition of the federal rights implicated in their case. “We fully agree with counsel for (Gilbert) and the authorities cited in their brief on the question of discrimination and an equal protection of the law as guaranteed by the 14th Amendment to the Constitution of the United States. We do not think that either of these questions is presented by this record.”[72]

          McGill asked the Court to reconsider its ruling in a Petition for Rehearing, contending that the Court had overlooked the fact that the salary schedule, as adopted by the school board, violated the 14th Amendment. Further, the petition pointed out that the facts of the case were admitted because there was no response filed in the trial court, and so the sole ground for the disparity in salaries was due to the race of the teachers. The Court denied the rehearing by order entered September 15, 1939.

          When the highest court in a state passes judgment on a question of federal law, the losing party may seek review directly to the United States Supreme Court by way of a Petition for Writ of Certiorari within 90 days of the state case becoming final. That put the deadline for McGill and Marshall to seek further review in December 1939. A Petition for Writ of Certiorari alleges a clear violation of established law, in this case, equal protection under the 14th Amendment. There were several letters back and forth between McGill and Marshall discussing their next move during the autumn of 1939. McGill prepared a draft of a Petition for Writ of Certiorari to file as the deadline approached.[73] Ultimately, Marshall prevailed upon McGill to not file the petition in the high court because Gilbert was no longer a teacher. Without being employed as a teacher, Gilbert lacked legal standing to maintain the suit, in Marshall’s view. “We feel awful bad about the case but can see no way to save it.”[74]

          Gilbert married Annie Louise Pope on February 14, 1942, and together they had one son. Gilbert died on April 12, 2000, at age 98.

Even though the Brevard County case was lost, it opened the floodgates to lawsuits across Florida, alleging that the unequal pay for teachers based solely on race violated the 14th Amendment guarantee of equal protection of law. McGill and Marshall filed several lawsuits in federal court over the next four years, originating in Escambia, Palm Beach, Duval, and Dade counties, on behalf of courageous Black teachers in those counties like John Gilbert who were willing to be fired to correct an injustice. At one time, there were eight cases pending in federal courts across Florida seeking equal pay for all teachers, and all of them were successful.[75] For instance, McGill and Marshall also filed a similar lawsuit in United States District Court for the Northern District of Florida in 1941, on behalf of Vernon McDaniel against the Board of Public Instruction for Escambia County, Florida.[76] By order entered July 3, 1941, the federal district judge denied Escambia County’s motion to dismiss. 

It would take another decade and a dozen lawsuits before the teacher salary battle in Florida was won.[77] This battle came at great personal cost to John Gilbert, who lost his career as a teacher, and ultimately, to his close friend, Harry T. Moore, who was fired from teaching in 1946 due to his political activities and who was murdered as he slept in his bed on Christmas night, 1951. 

          Thurgood Marshall successfully prosecuted cases across America for the better part of two decades, attacking all aspects of unequal treatment suffered by Black citizens under the “separate but equal” doctrine, until finally, the United States Supreme Court decided the landmark case of Brown v. Board of Education in 1954. The sacrifice of many individuals like John Gilbert helped make possible that great sea change in American life when racial integration and equal protection under the law became the law of the land.


[1] Belle B. Schumann retired in June of 2023, after more than eighteen years as a Volusia County Judge in the Seventh Circuit of Florida. Prior to that, she worked for over twenty years as an Assistant Attorney General, representing the State of Florida in criminal appeals in state and federal court.
[2] Brown v. Board of Education of Topeka, Kansas, 347 U.S. 483 (1954); Plessy v. Ferguson, 163 U.S. 537 (1896).
[3] Gilbert v. Highfill, et. al, 139 Fla. 444, 190 So. 813 (1939).
[4] T and Harriette Moore, accessed August 26, 2023; see also, Ben Green, “Before His Time: the Untold Story of Harry T. Moore, America’s First Civil Rights Martyr,” Florida Historical Society Press (2017), p. 47.
[5] Section 8107, Compiled General Laws of Florida, 1927.
[6] Section 8112, Compiled General Laws of Florida, 1927.
[7] N.A.A.C.P. Legal Files, Cases Supported-Teacher Salary Cases, Gilbert v. Highfill, 1939, ID-88, 001509_009_0850_From 1-57.pdf, Manuscript Division, Library of Congress, (hereinafter NAACP legal files 0850), page 2.
[8] For more information on Thurgood Marshall, see Juan Williams, “Thurgood Marshall: American Revolutionary,” Random House (2000) and Cathy Cambron, “Let the Law Catch Up: Thurgood Marshall in His Own Words,” Welcome Rain Publishers (2022).
[9], accessed August 26, 2023.
[10] Ibid.
[11] Ben Green, “Before His Time: The Untold Story of Harry T. Moore, America’s First Civil Rights Martyr,” Florida Historical Society Press (2017), p. 45-46.
[12] Ibid., p. 38, 49.
[13] Ibid., p. 49.
[14] U.S. Census Bureau, Thirteenth Census of the United States: 1910 Population. U.S. Department of Commerce.
[15] N.A.A.C.P. Legal Files, Cases Supported-Teacher Salary Cases, Gilbert v. Highfill, 1939, ID-88, 001509_009_0693_From 1 to 112.pdf, Manuscript Division, Library of Congress, p. 6, (hereinafter NAACP Legal Files 0693).
[16] Ben Green, “Before His Time: The Untold Story of Harry T. Moore, America’s First Civil Rights Martyr,” Florida Historical Press (2017) p.50. (Hereinafter Ben Green, p. 50.)
[17] Frank M Beisler and C. Dennis Norred, Case Summary, Statement Reopening FBI Investigation of FBI Case No. 44-4036 of bombing of the residence of Harry T. Moore in Mims, Brevard County, p. 3 (2006).(hereinafter FBI Case Summary.)
[18] Ibid. at p. 4. 
[19] Ibid. at p. 150.
[20] Ibid, at p. 2.
[21] Ibld., p. 4.
[22] Ibid. p. 4.
[23] Ibid., p. 101.
[24] Marshall, accessed August 26, 2023.
[25] Ibid, see also, William Terrell Hodges, Senior U.S. District Judge, “Segregation/Integration in the Middle District of Floirda,” The Florida Historical Quarterly, Volume 92, Number 2, p. 207, Fall, 2013.
[26] Interview with William “Bill” Gary, President of Harry T. and Harriett V. Moore Cultural Complex, Florida Frontiers, “The Legacy of Harry T. Moore,” Season 2, Episode 17, The Florida Historical Society, (2017). Accessed August 26, 2023.
[27] FBI Case Summary, p. 280.
[28] Ben Green, p. 34, 38.
[29] Ibid. p. 40.
[30] Ibid., p. 4.
[31] Ibid., p. 3.
[32] Ibid., p. 280.
[33] Ben Green, p. 52.
[34] Gilbert v. Board of Public Instruction of Brevard County, Petition for Writ of Mandamus, p.4.
[35] ibid.
[36] Bureau of Labor Statistics, “Historical Statistics of the United States: Colonial Times to the 1970’s Part I” Series D 85-86, U.S. Government Printing Office, 1975.
[37] NAACP Legal Files, 0805.
[38] FBI Case Summary, p. 3.
[39] Ben Green, p. 53.
[40] Ibid., p. 4.
[41] Ibid., p. 4.
[42] Gilbert v. Board of Public Instruction, Petition for Writ of Mandamus, p. 4; NAACP Legal files 0862, p.23.
[43] NAACP. Legal Files 0862, p. 21.
[44] Petition for Writ of Mandamus, p. 3; NAACP Legal Files 0862, p. 17.
[45] Petition of John Gilbert to the Board of Education of Brevard County, December 6, 1937, p. 2. See also, Ben Green, p. 47.
[46] W.S. Cawthen, Biennial Report of the Superintendent of Public Education for the State of Florida, June 30, 1930, p. 43.
[47] Ibid, p. 48.
[48] Ibid. p. 78.
[49] Ben Green, p. 48.
[50] W.S. Cawthen, Biennial Report, p. 253.
[51] Ibid, p. 283.
[52] Ibid, p. 158.
[53] The Rosenwald Fund Papers housed at the Fisk University Archives,, Accessed July 23, 2022.
[54] Ibid. p. 280.
[55] Ibid. p. 170.
[56] NAACP Legal Files 0862, p. 14.
[57] Ibid., p. 14.
[58] Chapter 18134, No. 438, Section 6, Laws of Florida, (1937).
[59] Ibid.
[60] NAACP Legal Files 0862, p. 28.
[61] NAACP Legal Files 0850, p. 11.
[62] NAACP Legal files 0862, p. 9; NAACP Legal files 0850, p. 11.
[63] FBI Case Summary, p. 280-281.  See also, Ben Green, p. 54.
[64] NAACP Legal files 0850, p. 16.
[65] Ibid, p. 16.
[66] Ibid., p. 16.
[67] Ibid., p. 13.
[68] NAACP Legal Files 0850, p. 33.
[69] Ben Green, p. 47.
[70] Gilbert v. Highfill, et. al, 139 Fla. 444, 190 So. 813 (1939).
[71] ibid.
[72] Gilbert v. Highfill, et. al, 190 So. at 816.
[73] NAACP Legal Files 0946, p. 27-34.
[74] NAACP Legal Files 0946.
[75] Ben Green, p. 54.
[76] NAACP Legal Files 0946, p. 2.
[77] Ben Green, p. 54.