In North Carolina, an unlikely champion of equity, 50 years ago

Federal Judge James B. McMillan – who’d grown up in the 1920s on a farm in Robeson County, and attended all-white schools until arriving at Harvard Law School – never expected to become a precedent-setting champion of racial equity. As a courtroom lawyer in the 1950s, he represented small businesses, often defending Charlotte’s Yellow Cab Co. He became a partner in Helms, Mulliss, McMillan & Johnston, then one of the growing city’s larger law firms. He worshiped at First Presbyterian Church uptown. He was embedded in Charlotte’s establishment.

But when McMillan became a federal District Judge, he swore an oath to “do equal right” to all parties and to “faithfully and impartially” discharge his duties under the Constitution. And when presented with incontrovertible evidence that Charlotte’s school board had consciously maintained a segregated system, crafting assignment plans, siting new schools, and busing white students to maintain all-white and all-black schools, McMillan did not hesitate to address that inequity.

After years of litigation, in 1969 he ordered the board to remedy segregation and to eliminate racially identifiable schools. Fifty years ago in April 1971, the U.S. Supreme Court unanimously affirmed McMillan’s orders in its landmark Swann v. Charlotte-Mecklenburg Board of Education decision. In doing so, it followed McMillan’s lead in endorsing busing as a remedy for school segregation.

Although McMillan’s Swann decision is now seen as a courageous, crucial step forward for educational equity, in 1969 it provoked “fierce and bitter resistance.” As former Charlotte Observer reporter Frye Gaillard recounts in “The Dream Long Deferred,” his history of Charlotte’s school desegregation, whites formed a “Concerned Parents Association” to oppose busing and Judge McMillan. Over 2,000 whites picketed the courthouse and hung McMillan in effigy. Dozens of whites picketed McMillan’s home in Charlotte’s Midwood neighborhood. He received death threats, which were so serious that the FBI once asked McMillan to take his family out of the county for a few days. McMillan found himself ostracized by much of polite, white Charlotte.

Before going on the federal bench, McMillan had been among the best-regarded lawyers in town. He arrived at Helms & Mulliss in Charlotte after his World War II service. Still in his Navy uniform – the only suit he had – he met firm founder Fred B. Helms at bar meeting and asked for a job on the spot. From the late 1940s onward, McMillan was a trial lawyer. Among his cases: defending the mom-and-pop owners of a livestock company for “injuries caused by the kick of defendant’s mule.”

Wiry and about 5’7”, McMillan won cases by conveying authenticity and credibility. Juries loved him. Opponents said trying a case against McMillan was like trying a case against a Boy Scout. Then, when the Mecklenburg bar held a vote to recommend a nominee for the federal judgeship, McMillan won. He chose public service over a his successful practice.

Why was McMillan – perhaps more boldly than any other southern judge – able to set aside his preconceptions, listen to evidence and arguments with an open mind, and order a controversial remedy for past segregation? As Yale University historian Glenda Gilmore has asked, “What life experience gave him the courage to do what he then came to see as the right thing?”

In 1989, as a Ph.D. student at UNC-Chapel Hill, Gilmore interviewed McMillan for UNC’s Southern Oral History Program. Years later, at a Mecklenburg County Bar event honoring McMillan, Gilmore argued that McMillan’s formative years on the family farm and the McMillan family’s unusual history of literacy and education left him with both the capacity to understand the perspectives of his Black neighbors and a deep faith in education.

Gilmore’s research revealed that McMillan’s maternal grandfather survived the Battle of Gettysburg, returning to Goldsboro to father 17 children. McMillan’s mother grew up there. By 1909, Goldsboro had a high school for white students that McMillan’s mother attended before becoming a public school teacher herself.

Meanwhile, McMillan’s paternal grandfather was a farmer in Robeson County, which was made up of roughly equal numbers of white, Black, and Lumbee Indian residents. In the 1910s and 1920s, about 60 people lived on the McMillan farm, and only eight were white. The rest were Black sharecropping families and a few Lumbees who lived. All of them worked and played together. It “was a sharecrop farm and a no money economy,” McMillan told Gilmore. “We had a swimming hole, and . . . there would be Blacks and Indians and whites all swimming together ‘au natural.’”

Yet the county had separate school systems for whites, Blacks, and Lumbees. McMillan recalled that his childhood playmate, William Carson Lennon, attended a Rosenwald School for Black students funded by a northern philanthropist. There was no Black high school, and the white high school was 13 miles away. McMillan’s mother, a former teacher, raised money for an aged Model-T bus to get him and nearby classmates to school each day.

After high school, McMillan attended a nearby Presbyterian junior college before transferring to UNC Chapel Hill. Although McMillan had planned to attend UNC’s law school, history professor Howard Beale urged him to apply to Harvard. Beale even loaned McMillan the money to pay his tuition. It took McMillan six years to pay Beale back.

Years later, as a Harvard-educated federal judge, the same Jim McMillan listened to undisputed evidence that the North Carolina legislature’s actions in “regulating schools, zoning, taxing, and appropriating [funds]” had enforced racial segregation “from the cradle to the grave.” Because the force of law had maintained all-white and all-black schools, McMillan concluded, the force of law was essential to dismantle the segregated school system.

McMillan also had the benefit of the relentless advocacy and moral authority of Julius Chambers, the Black Charlotte lawyer who represented the Swann family and the NAACP. Chambers had strategically reopened the desegregation case when McMillan went on the bench, sensing that McMillan was a fair judge who would listen to his evidence about the slow pace of desegregation and apply the new, more favorable Supreme Court rulings. Chambers persisted despite death threats and white supremacist bombings of his car, home, and law office.

Gilmore concluded that what McMillan heard in Chambers’ evidence resonated with his own history. “All of the arguments and facts that he listened to in the Swann case made sense to him because he knew what it’s like to be poor; how literacy mattered to his forebears; how easily children got along together at [their swimming hole]; how his childhood playmate went to the Rosenwald school . . . .”

When McMillan learned that his controversial Swann ruling had been unanimously affirmed by the Supreme Court, he simply smiled in satisfaction and relief. According to Gaillard, he then turned to his law clerk and said, “I got it right, didn’t I?”

This article is based on Prof. Glenda Gilmore’s unpublished monograph “the Education of James B. McMillan,” as presented at the Mecklenburg County Bar’s annual McMillan Dinner, which raises funds for law student public interest fellowships and features the presentation of the Bar’s Julius Chambers Diversity Champion award. It also draws on former Charlotte Observer reporter Frye Gaillard’s “The Dream Long Deferred” (UNC Press 1988), and the unpublished memoir of Fred B. Helms, founding partner of Helms, Mulliss, McMillan & Johnston, now McGuireWoods LLP.

This story was originally published April 20, 2021 at 9:28 AM.