COMMENTARY: Retire Marshall from CSU College of Law by C. Ellen Connally

This past year, the owners of  Cleveland’s Major League Baseball team joined the owners of the Washington D.C. NFL franchise to make historic changes. The Cleveland Indians are  now the Cleveland Guardians. The Washington Redskins are now the generic Washington Football Team. These decisions came after decades of debates, discussions, demonstrations, and litigation, mainly by Native Americans who found the names and logos offensive. Washington’s stereotypical Native American logo and Chief Wahoo were sent to their happy hunting grounds to spend their retirement years with Aunt Jemimah and Uncle Ben.

Last March, The Ohio State University removed the name of John W. Bricker from the University’s administration building. Bricker, former Ohio attorney general, governor and senator and running mate of presidential hopeful Thomas Dewey in 1944, worked aggressively in 1932 to prevent a black student from residing in university housing. Perhaps if he had not advocated so strongly for segregation, the university’s timetable for integration could have been a little faster. Black students were not admitted to university housing until the mid-1950s. Even one of the university’s most famous alumni, Jesse Owens, who stood up to the racism of Nazi Germany in 1936, returned to Columbus, Ohio to live in off campus housing — he could run for the university but couldn’t live there.

Three years ago, a movement started among students at Cleveland State University’s Cleveland-Marshall College of Law to remove John Marshall from the school’s name. The proponents of the change join activists around the country calling on institutions of higher learning to remove Marshall’s  name because of his problematic history.

In May of last year, the University of Illinois at Chicago’s John Marshall College of Law was changed to the University of Illinois Chicago School of Law. That leaves two other law schools still bearing Marshall’s name: Cleveland-Marshall and Atlanta’s John Marshall Law School.

Marshall was Chief Justice of the United State from 1801 to 1834. Like 49 of the 64 Founding Fathers, he was a slave owner. But a look at Marshall’s history gives rise to sufficient evidence to show that he was more than just a slave owner.

As Professor Paul Finkelman points out in his 2018 book Supreme Injustice: Slavery in the Nation’s Highest Court (Harvard University Press 2018), Marshall was  opposed to the presence of free blacks in America, arguing that they were “pests” and criminals. He was a member of the American Colonization Society that sought to return freed slaves to Africa. In his personal life he bought and sold slaves, gave them to relatives and actively participated in the business of human bondage.

By 1830, Marshall had 150 slaves while also giving about 70 slaves to two of his sons between 1819 and 1830. When he died, he did not free the dozen or so personal slaves that had been loyal to him for most of their lives. But most importantly, in the roughly 50 cases that he heard as a justice of the Supreme Court involving slavery, he ruled against the slave and in favor of the slave owner in every case.

Marshall did not just limit his prejudice to blacks. In  the 1823 decision of  Johnson v. M’Intosh (21 U.S. (8 Wheat.) 543, 5 L. Ed. 681), Marshall ruled that Native Americans had no right to sell land they had lived on because they did not own it — the government did. He found that the American government inherited the land over any rights that Native Americans claimed when it declared independence from Great Britain in 1776.

Cleveland-Marshall College of Law grew out of Cleveland Law School which opened  in 1897, becoming Ohio’s first evening law school and the first to admit women. John Marshall Law School was established in 1916 by Cleveland lawyers as a night law school. In 1946 the two schools merged becoming Cleveland-Marshall Law School. After affiliations with both Ohio Northern University and Baldwin Wallace College, in 1969 it became a part of Cleveland State University. It is Ohio’s largest law school.

After its inception as a  night school, in 1967 the law school started a day school program, of which I am proud to say that I was a class member — the only woman and one of two persons of color. There was a male student from Liberia. In the incoming class of 2017, which graduated in 2020, 75% of the students were full-time day students; 56% of the class was female and 18% were students of color.

The importance of this history is that there is no direct nexus between Marshall and the law school. Some colleges and universities are named after major donors or significant alumni,  but such is not the case here. Marshall’s name was selected because of his tenure as Chief Justice and his identification with American jurisprudence.

In response to the demands for a dropping of the name, the law school has formed a committee which is exploring whether the name should be modified and what potential alternatives are. The final decision will be up to the Cleveland State University Board of Trustees and possibly the Ohio State Board of Regents.

Law School Dean Lee Fisher has encouraged open discussions of the topic and has stated that the law school is working through a process of evaluating its name and points out that the decision will require careful study and a thoughtful and inclusive process that considers all points of view. A 46-page Law School Name Framing Document was published last December in which all sides could submit written opinions.  It is available on the law school’s website. There have also been several panel discussions and open forums.

There are some alumni who adamantly oppose the change and vow that they will withhold any further contributions if the change occurs. Others are in favor and then there are those in the middle. One innovative contributor suggested the name stay the same but  have John Marshall’s name replaced with Thurgood Marshall.

Debate among alumni and students continues. Cleveland Councilman Kevin Conwell introduced a resolution before Cleveland City Council urging the change. Students Against Marshall was formed last November and on January 18, they submitted a formal request to the  naming committee to make the change.

As a proud alumnus, I find a great deal of merit in the movement for change. Within the last two years there have been discussions regarding the merger of Cleveland-Marshall College of Law and the University of Akron College of Law. If that were to happen, a name change could easily be facilitated, and Marshall’s name could be dropped without controversy.  Since talks of the merger seem to have been put on the back burner, that solution does not seem plausible.

Cleveland-Marshall College of Law has a proud history of graduating distinguished Clevelanders, including Carl and Louis Stokes, Mayor Frank G. Jackson, Congresswoman Marcia Fudge and Mary Grossman, the first woman in Ohio elected to Municipal Court as well as Lillian W. Burke, the first black woman in Ohio to serve as a judge. Numerous members of the municipal, state and federal  judiciary are graduates, including members of the Ohio Supreme Court.

These graduates are among a host of minority, female and hardworking individuals of all races, colors and creed who would not otherwise have had a chance to go to law school. They represent the diverse nature of 21^stcentury America where opportunities should be open to all. These graduates represent everything that John Marshall was opposed to.

It is my hope that the law school make the right decision and retire the name of John Marshall. Considering his history, Marshall needs to join Robert E. Lee and Jefferson Davis as footnotes to history, rather than central figures.

C. Ellen Connally is a retired judge of the Cleveland Municipal Court. From 2010 to 2014 she served as the President of the Cuyahoga County Council. An avid reader and student of American history, she serves on the Board of the Ohio History Connection, is currently vice president of the Cuyahoga County Soldiers and Sailors Monument Commission and president of the Cleveland Civil War Round Table. She holds degrees from BGSU, CSU and is all but dissertation for a PhD from the University of Akron.

 

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