SEPARATE BUT EQUAL?
J. Douglas Drushal
Presented to Century Club
October 15, 2024
In the wake of the
American Civil War, three Constitutional Amendments were adopted which
radically changed the nature of American society, although not quite as quickly
as one might have thought.
The Thirteenth
Amendment, ratified in 1865, abolished slavery. That was pretty clear and had its intended
effect without any real challenge.
Slavery was over, although some things that rather resembled slavery
emerged.
The Fourteenth
Amendment, ratified in 1868, defined citizenship and established the
concepts of due process and equal protection of the laws. The key language is found in Section 1:
“All persons born or
naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they reside. No State
shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.”
Consider also Section
5 of the Fourteenth Amendment which reads:
“The
Congress shall have power to enforce, by appropriate legislation, the
provisions of this article.”
More about this later.
The Fifteenth
Amendment, ratified in 1870, prohibited the denial of the right to vote on
the basis of “race, color or prior condition of servitude.” While this has faced plenty of practical
roadblocks and many states sought ways to try to get around it, this Amendment
also had its intended impact as a legal matter, although again some practical
roadblocks to voting arose.
In addition to these Amendments, racial
discrimination was attacked on a particularly broad front by the Civil
Rights Act of 1875. This Congressional legislation made it a crime for an
individual to deny “the full and equal enjoyment of any of the accommodations,
advantages, facilities, and privileges of inns, public conveyances on land or
water, theaters and other places of public amusement; subject only to the
conditions and limitations established by law, and applicable alike to citizens
of every race and color.”
In 1883, the Supreme
Court struck down the 1875 Act, ruling, in a series of cases that are commonly
referred to as The Civil Rights Cases, that the Fourteenth Amendment did
not give Congress authority to prevent discrimination by private individuals.
Victims of racial discrimination were told to seek relief not from the federal
government, but from the states. Around this same time, state governments were
passing legislation that not only did not provide relief but instead codified
inequality between the races. Laws requiring the establishment of separate schools
for children of each race were most common, but segregation was soon extended
to most public and semi-public facilities through so-called “Jim Crow”
laws.
Beginning with passage of
an 1887 Florida law, states began to require that railroads furnish separate
accommodations for each race. These measures were unpopular with the railway
companies that bore the expense of adding Jim Crow cars. Segregation of the
railroads was even more objectionable to Black citizens, who saw it as a
further step toward the total repudiation of three constitutional amendments.
When such a bill was proposed before the Louisiana legislature in 1890, the black
community of New Orleans protested vigorously. Nonetheless, despite the
presence of sixteen black legislators in the state legislature, the law was
passed. It required either separate passenger coaches or partitioned coaches to
provide segregated accommodations for each race. Passengers were required to
sit in the appropriate areas or face a $25 fine or a 20-day jail sentence. Interestingly,
black nurses attending white children were permitted to ride in white
compartments.
In 1891, a committee of concerned young
black men of New Orleans joined together and hired a prominent attorney to
challenge the law. On May 15, 1892, the Louisiana Supreme Court decided in
favor of the Pullman Company’s claim that the law was unconstitutional as it
applied to interstate travel. Encouraged, the committee decided to press
a test case on intrastate travel. With the cooperation of the East
Louisiana Railroad, on June 7, 1892, Homer Plessy seated himself in a
white compartment, was challenged by the conductor, and was arrested and
charged with violating the state law. Emblematic of the curious definitions of
race in our country, Plessy was actually of mixed race and was 7/8 white! In
the ensuing criminal case, Plessy’s counsel argued that the law requiring
“separate but equal accommodations” was unconstitutional. When Judge John H.
Ferguson ruled against him, Plessy appealed to the Louisiana Supreme Court. That court upheld the state law, but granted
Plessy’s petition that would enable him to appeal the case to the United States
Supreme Court.
Four years later, in
1896, the U. S. Supreme Court issued its decision in Plessy v. Ferguson.
The majority of the Court sustained the constitutionality of Louisiana’s Jim
Crow law. In part, the Court said:
“We consider the
underlying fallacy of the plaintiff’s argument to consist in the assumption
that the enforced separation of the two races stamps the colored race with a
badge of inferiority. If this be so, it is not by reason of anything found in
the act, but solely because the colored race chooses to put that construction
upon it… The argument also assumes that social prejudice may be overcome by
legislation, and that equal rights cannot be secured except by an enforced
commingling of the two races… If the civil and political rights of both races
be equal, one cannot be inferior to the other civilly or politically. If one
race be inferior to the other socially, the Constitution of the United States
cannot put them upon the same plane.”
Thus was born the concept
of “Separate but Equal.” That is, mere
separation of the races was fine so long as each race had equal facilities.
In the lone dissent,
Kentuckian Justice John Marshall Harlan wrote:
“I am of the opinion that
the statute of Louisiana is inconsistent with the personal liberties of
citizens, white and black, in that State, and hostile to both the spirit and
the letter of the Constitution of the United States. If laws of like character
should be enacted in the several States of the Union, the effect would be in
the highest degree mischievous. Slavery as an institution tolerated by law
would, it is true, have disappeared from our country, but there would remain a
power in the States, by sinister legislation, to interfere with the blessings
of freedom; to regulate civil rights common to all citizens, upon the basis of
race; and to place in a condition of legal inferiority a large body of American
citizens, now constituting a part of the political community, called the people
of the United States, for whom and by whom, through representatives, our
government is administrated. Such a system is inconsistent with the guarantee
given by the Constitution to each State of a republican form of government, and
may be stricken down by congressional action, or by the courts in the discharge
of their solemn duty to maintain the supreme law of the land, anything in the
Constitution or laws of any State to the contrary notwithstanding.”
Consequent of Plessy
v. Ferguson, this was the state of the law in the first half of the
Twentieth Century. The obvious injustice
of this did not sit well with most black people and white people sympathetic
with their cause. But what to do about
it?
In 1909, the National
Association for the Advancement of Colored People was formed, under the
leadership of W. E. B. DuBois. On a very
limited budget, the NAACP decided to attack the problem in the courts,
notwithstanding the obvious hostility to their cause in the highest court in
the land. They soon realized that they
needed not just lawyers, but black lawyers, of which there were then no more
than a few hundred in the entire country.
This challenge was met by the upgrading of the Law School at Howard
University in Washington, DC, an institution dedicated to the education of
black students. The Law School was
transformed primarily under the leadership of Charles Houston, son of a
successful black Washington lawyer and later the successor to DuBois as the
head of the NAACP. Thus, in the 1920s
and 1930s, Howard started churning out lawyers, well trained in the law but
also trained in the nuances of the difficult cases which they would be called
upon to handle.
Rather than relitigate
“separate but equal” head on, they decided to play that game and challenge
situations where “separate” was clearly “not equal”. One of the easiest things to challenge (if
one can use the word “easiest”) was graduate school programs which had
previously excluded black students. It
was argued that segregation was not being challenged but “separate but equal”
meant that if they were going to be separate then the state had to provide
another medical school for black students, or another law school, or another
pharmacy school, and so forth. Or else
let black students into the graduate programs already in place but expressly
excluding blacks. The states could not
argue that the facilities for the different races were “equal” because the
facilities for blacks were nonexistent.
Even the most die-hard racist judges said that this did not comport with
Plessy. Faced with the choice of
either funding an entire separate graduate program, states generally reluctantly
decided to admit black students to their graduate programs, but only after the
courts rejected their lame arguments about other options such as attending a
school in a nearby state which did not exclude black applicants.
One such case was brought
in state court in Baltimore, arguing that Maryland must admit a black applicant
to the University of Maryland’s Law School, as there was no other law school in
the state which admitted black students.
The trial court agreed and that decision was upheld by the Maryland
Court of Appeals. The case was handled
by a young Baltimore lawyer and recent Howard Law School graduate, Thurgood
Marshall, co-counsel in the case with Charles Houston, his former Law School
Dean. The state did not appeal further.
Charlie Houston next took
on the state of Missouri, which also had only one Law School and it did not
admit black students. Making the same
arguments as in the Maryland case, he lost at the state trial court but this
time the case ended up in the United States Supreme Court. In 1938, the Court held that Missouri must
admit the black plaintiff to its Law School, over the spurious suggestion by
the state that he ask his undergraduate alma mater to start a law school and
the state’s suggestion that it would pay for the student’s tuition at some
other state’s law school. This decision
came after significant changes in the makeup of the Supreme Court, with several
of President Roosevelt’s appointees determining the favorable outcome.
During
the 1920s and 30s, other litigation accepted the premise of “separate but
equal” but challenged objectively “unequal” things such as teacher pay in black
schools vs. white schools, blacks being excluded from juries, and voting
rights.
By the late 1940s, the
NAACP decided that it was time to try to force the Supreme Court to revisit Plessy,
and to attack what it considered the bedrock of legal segregation: public primary and secondary schools. Armed with the ruling from the Supreme Court
that Missouri had to either build a separate law school for black students or
desegregate the white one, should not that same principle apply to primary and
secondary schools? Of course it did, and
thus began a series of litigation throughout the states where public schools
were segregated as a matter of state law, which was most of the Southern
states.
While we all know the
name of the case which ultimately outlawed segregation, the Supreme Court’s
decision in that case was actually a ruling on five appeals from five different
lower court decisions. Let’s visit those
five cases.
Case Number One:
Briggs v. Elliott,
Clarendon County, South Carolina; filed 1947
This case started out
with a fairly simple request made to the County School District, seeking a school
bus to transport black children to segregated schools. Unlike the white schools, there was not
single bus for black children, who often lived in remote rural areas and
elementary-age children had to walk up to ten miles daily round trip. When that request was rebuffed, a lawsuit was
filed, initially just to prove that the black schools clearly were not “equal”,
but the case quickly morphed into a frontal attack on segregation.
But
consider the case for relief even under the Plessy standard:
·
The value of the buildings, grounds and
equipment at two white schools for 276 children was four times the value of
those things at the three black schools with 808 students.
·
The white schools were brick and stucco,
the black schools wooden.
·
The white schools had one teacher for
every 28 students, the black schools one for every 47 students.
·
The white high school’s largest class size
was 24 students, the black schools ranged from 33 to 47 students.
·
The white high schools taught subjects
such as biology, typing and bookkeeping, the black high school taught only
agriculture and home economics.
·
There was no running water at one of the
black elementary schools, no electricity at the other.
·
There was indoor plumbing at the white
schools, only outhouses at the black schools.
·
The white schools had drinking fountains,
the black schools had open galvanized buckets with dippers.
·
The white schools had janitors, the black
schools had to be cleaned by the teachers and students.
·
The white schools had desks for each
student, one black school had no desks at all.
·
The white schools had auditoriums and
gymnasiums, the black schools did not.
Faced with this
overwhelming evidence, the attorney for the School District made the interesting
decision of conceding that these schools were not equal. But he argued that they would be soon, as the
South Carolina legislature had just appropriated millions of dollars to be
dedicated to the improvement of the physical condition of black schools
throughout the state, including Clarendon County. This interesting strategy was very different
than the arguments often made in the graduate school cases where several states
argued that their legislatures were in the process of appropriating funds to
create separate law schools and the like, as the South Carolina legislature had
actually acted and the money was beginning to flow.
The NAACP counsel
presented a two-pronged argument, not only pointing out the above inequalities
but also making a head-on attack on Plessy. In the years leading up to this case, social
scientists and psychologists began to address the question of whether racially
separate schools could ever be truly equal.
This research suggested a systematic attack on the premise of Plessy
that the only reason a badge of inferiority accompanied black schools was
because black people chose to put that construction on it. Most prominent was the research of Kenneth
Clark who performed experiments with black children in segregated schools in
which he used two black dolls and two white dolls and he asked the children to
pick the doll which looks most like you, pick the nice doll, pick the doll you
would like to be. The results, compared
to responses from children in northern unsegregated schools, made it clear that
even at a very young age, black children perceived white skin to be better and
had a corresponding negative self-image fostered by segregated elementary
education. This allowed the argument in
court that it was segregation itself that was the problem, not just the grossly
inadequate facilities for black students.
The court was not
persuaded by Clark’s research and was not ready to overrule Plessy. Indeed, a lower court is not permitted to
refuse to follow relevant precedent from the Supreme Court. As for the unequal conditions, the state’s
argument that help was on the way carried the day. This federal court decision was decided on a
vote of 2-1, which was possible due to the unusual feature that allowed for a
three-judge panel in federal court cases challenging state legislation. Such cases also allow for direct appeal to
the Supreme Court, thus bypassing the normal appeal to an intermediate
appellate court.
Thus was Briggs v.
Elliott one of the five cases consolidated before the Supreme Court.
Case Number Two:
Brown v. Board of Education of Topeka,
Kansas, Topeka, Kansas, filed 1951
While most of the
litigation to attack school segregation was filed in the South, legal
segregation was not limited to the former states of the Confederacy. The State of Kansas did not mandate
segregation, but it permitted local school boards to impose segregation, which
was the case in Topeka. The local chapter of the NAACP wanted to challenge
this, but they knew that they needed outside help and brought in the national
office, in this case led by a young attorney by the name of Robert Carter, a
Columbia Law graduate.
The cause was not
unanimously supported by the black population of Topeka, especially the black
teachers in the black schools who feared losing their jobs if the schools were
integrated. No teacher was a member of the
local NAACP and they felt, rightfully so in most cases, that they were doing a
good job of educating black children. It
is easy to see how they were on pins and needles about the prospect of
integrated schools.
The lead plaintiff was
Oliver Brown. He had a union job which
protected him from being fired just because he was a party to such a lawsuit,
unlike the named plaintiff in Briggs v. Elliott, a gas station attendant
who was, indeed, fired in retaliation for joining that case. Oliver Brown was considered a rather
surprising candidate to be the lead plaintiff, whose name would end up being on
the Supreme Court’s eventual decision, as he was a very low key person and not
an activist by any means, but he was just tired of being what he called a
second-class citizen.
Brown’s primary complaint
was the challenge presented to black children for transportation to
school. Interestingly, the physical
facilities in the four black elementary schools were roughly comparable to the
eighteen white schools and the school board provided free busing for the black
children, but they had long bus rides in overcrowded buses. Black children were taunted by white children
as they rode past, adding to the insult.
As in Briggs v.
Elliott, expert testimony was presented as to the psychological impact of
segregation, pointing out that there was no inherent difference in the ability
of black or white children to learn, but continual messaging to black children
that it was unnatural for them to learn and that they were less capable of
learning had the direct impact of making them less likely to learn.
A unique feature of
filing a case in Topeka arose from that city being the home to the famed
Menninger Clinic, a nationally renowned facility for the treatment of mental
illness. While none of the Menninger
family themselves testified, the NAACP found a Kansas University professor who
had previously worked at the Clinic who readily testified about the adverse
effects of legal separation on the personality development of black children
and their learning process.
Topeka was also
interesting in that only the elementary schools were segregated. Students were blended together in Junior High
and High School. Yet the expert
testimony was clear that this later desegregation in no way overcame the
deleterious impacts of segregation in the lower grades, during the formative
years of the black students who had some six-plus years of being told they were
less than.
The decision in the case
ended up like Briggs v. Elliott, this time a 3-0 vote upholding the
action of the local school board. Since
the court found that the facilities were essentially equal, they felt bound by Plessy. But these judges were clearly sympathetic
to the plight of the black children and added a unique paragraph to their
formal decision, a Finding of Fact, as follows:
“Segregation of white and
colored children in public schools has a detrimental effect upon the colored
children. The impact is greater when it
has the sanction of the law; for the policy of separating the races is usually
interpreted as denoting the inferiority of the Negro group. A sense of inferiority affects the motivation
of a child to learn. Segregation with
the sanction of law, therefor, has a tendency to retard the educational and
mental development of Negro children and to deprive them of some of the
benefits they would receive in a racially integrated school system.”
Thus did this court, at
least indirectly, tell the Supreme Court that it should overrule Plessy.
Case Number Three:
Gebhart v. Belton, Wilmington,
Delaware, filed 1951
After their success in
forcing the admission of black students into the University of Delaware in
1950, which decision the state did not even appeal, two new cases were filed in
state court in Delaware challenging segregation in the state’s elementary and
secondary public schools. The local
NAACP recruited Jack Greenberg, a white Jewish advocate with the NAACP’s
national office, to assist. In addition
to the social scientists presented in Brown, they added a psychiatrist
to present testimony as a medical doctor who said the system of segregation was
a massive public health problem, placing on black children an unsolvable
emotional conflict. He added that the
physical differences in facilities were not material to his opinion, stating
“… if
the state of Delaware would employ Professor Einstein to teach physics in
marble halls to these children, I would still say everything I have said
goes: It is the fact of segregation in
general that … is anti-educational.”
This
time, the trial court found in favor of the plaintiffs. Without having to challenge Plessy,
the court simply found that the facilities were clearly unequal and ordered
immediate admission of black students into the previously all-white
schools. This was despite the fact that
the state was starting to spend a meaningful amount of money to upgrade the
black schools.
Case Number Four:
Davis v. County School Board of Prince
Edward County, Virginia, Prince Edward County,
Virginia, filed 1951
This
case arose in a rural county in the middle of Virginia in a very different
manner than the other four cases. The students
in the local segregated high school, fed up with the condition of their school,
initiated a student strike in protest.
They wrote to the nearest NAACP chapter in Richmond which they knew had
recently won cases of disparate teacher pay, transportation, and building
conditions. Oliver Hill and Spottswood
Robinson, both Howard Law graduates, received the students’ call for help and
decided, in consultation with Thurgood Marshall and the national NAACP office,
that this was a case in which they would challenge Plessy head on,
notwithstanding the clearly unequal facilities which would make a “separate but
not equal” argument comparatively easy to win.
The
named plaintiff was Dorothy Davis, the daughter of an area farmer, and the
case, filed in federal court in Richmond, sought to strike the state law which
mandated segregation. Promptly after the
filing of the case, the black principal at Dorothy Davis’s high school was
fired by the white school board. Aware
of losses elsewhere on clearly unequal facilities, Virginia had recently
started spending meaningful amounts of money to upgrade black schools, hoping
that this would suffice to maintain a segregated system. In court, the local school board also decided
to challenge the social science testimony, finding a Columbia University
Psychology Professor who testified that segregation was best for both
races. He pointed out other instances
which he considered similar, such as separate Catholic schools, Jewish schools
and separate schools for boys and girls.
The former governor and president of the University of Virginia
testified in support of segregated schools.
As in Brown,
the 3-judge court was unanimous in upholding the principle of segregation,
taking only a week to render its decision.
They held that racial separation in Virginia rested…
“neither
upon prejudice nor caprice nor upon any other measureless foundation … [but
had] for generations been a part of the mores of the people. To have separate schools has been their use
and wont.” “We have found no hurt or
harm to either race.” Indeed, “whatever
its demerits in theory, in practice it has begotten greater opportunities for
the Negro.”
Faced,
however, with the reality of disparate facilities, the court did order the
school board to pursue “with diligence and dispatch” its equalization of the
facilities in the black schools. But
noting that the state was already spending money to that end, the court
declined to set a deadline for such equalization, saying “An injunction could
accomplish no more.”
Case Number Five:
Bolling et al. v. Sharpe, District of Columbia, filed 1951
In
the 1950s, Washington, DC, was very much a Southern city, more like Charleston
than New York. Its schools were overtly
segregated and its housing effectively segregated. But unlike other cities almost anywhere in
the country, there was a substantial black middle class supported by civil
service jobs with the federal government.
The
segregated schools were not quite as disparate as elsewhere in the South, with
about $120/student spent at the black schools compared to about $160/white
student. But the black schools were
severely overcrowded. Like Davis,
this case had part of its initiation with a student strike, this time at a
junior high school. Recruiting counsel
was easier here, as Charlie Houston, one of the best, was right there in town,
but he was not well (and he died before the conclusion of this case) so he
recruited James Nabrit, Howard University Law Dean and later University
President to serve as lead counsel.
An
interesting legal distinction existed in this case since there was no state
involved, and thus no challenge to state law.
And the 14th Amendment by its own terms applies only to
states, plus the local government was effectively controlled by the national
Congress which had repeatedly sanctioned segregation in DC. But the Fifth Amendment to the US
Constitution could be used as a basis for an equivalent equal protection claim.
Once
again, the national NAACP decided to use this case to challenge segregation
itself, rather than another “equalization” case. But the result in the local
trial court was the same as Brown and Davis.
The
decision was appealed to the local Court of Appeals, but that Court never ruled
on the case. While the appeal was
pending, the Supreme Court made the very unusual decision to ask the Plaintiffs
to file a direct appeal to the Supreme Court, which they did, thus bypassing
the normal intermediate level of review and sending the case upward with the
other four cases already on file.
Now
there were five cases from five different jurisdictions consolidated in the
Supreme Court, which chose Brown v. Board of Education as the lead case
(and thus the name by which the decision would be carved into the lexicon) in
order to make the matter seem more like a national issue and not just a
Southern problem.
The
Supreme Court
Brown
v. Board of Education:
347
U. S. 483 (1954)
The
same counsel that had represented the parties in the lower courts handled the
oral arguments, with one very prominent exception. The Clarendon County Board of Education
replaced its local counsel with John W. Davis, widely considered the most
accomplished and well-respected appellate advocate in the nation. Davis, the 1924 Democratic nominee for
President, was a partner in a prominent New York City corporate law firm. He felt that the states had a strong case,
based upon the Court’s precedents and many years of custom.
The
NAACP counsel worked collectively to plan their strategy, still debating among
themselves whether to emphasize just the “unequal” issue or to tackle
segregation head on. They landed on the
strategy of arguing both, but realizing that the time had come to attack
segregation per se.
After
the Briefs had been filed but before oral argument, another significant
development was the 1952 Presidential election, won by Dwight Eisenhower. But the lame duck Truman administration was
asked by the Court for its views on the issues.
After much internal debate, the Justice Department filed a Brief which
made the following three points:
1)
The Court did not need to overrule Plessy
to find in favor of the plaintiffs, as the inequality in the various facilities
could be addressed by simply ordering the admission of black students to the
white schools.
2) But
the Court could overrule Plessy and just tackle the issue head
on.
3)
In any event, the Court need not order an
end to segregation immediately, but could consider practical difficulties in
doing so.
At the oral argument, each case was
heard separately, first the party who was appealing and then the party who
prevailed in the lower court. The main
purpose of oral argument is an opportunity for the Justices to ask questions,
which sometimes but not always give hints to their thinking. This collection of Justices was also known to
not get along with one another very well, so one might not know what to make of
one Justice appearing to challenge another one.
The Court was a very different body than it had been as recently as
1937, as there had been a complete turnover from the extremely conservative
court that had struck down much of the New Deal legislation. It looked like the Justices aligned as
follows:
Chief Justice Fred Vinson
was clearly not ready to overrule Plessy, noting that at the time of the
adoption of the 14th Amendment that no one thought it meant an end
to segregation and the same Congress that proposed the 14th
Amendment had implicitly approved it.
Justice Hugo Black,
former US Senator from Alabama with Deep South roots that included former
membership in the Ku Lux Klan, was nevertheless clearly ready to outlaw
segregation per se.
Justice Stanley Reed,
a Southern gentleman from Kentucky, had voted in favor of ending segregation in
the Court’s prior graduate school cases but appeared to be ready only to demand
true equality in facilities.
Justice Felix Frankfurter,
a Jewish immigrant from Vienna and former Harvard Law Professor, had
conflicting views of judicial restraint contrasted with a career working for
civil liberties, was thought likely to be ready to overturn Plessy but
was very concerned that the Court proceed slowly and present a unanimous front.
Justice William Douglas,
a firebrand liberal, was clearly ready to overrule Plessy and not
interested in any delay in implementation of that decision.
Justice Robert Jackson,
recently returned to the Court from time away to prosecute Nazi war crimes at
Nuremberg, appeared skeptical of the social science but leaned against
segregation, hopeful of finding some accommodation.
Justice Harold Burton,
former Mayor of Cleveland and Ohio US Senator, the only Republican on the
Court, had a reputation as being extremely fair minded and had come to conclude
that there was just no way that separate could actually be equal.
Justice Tom Clark,
former US Attorney General, was seen as aligned with Chief Justice Vinson and,
at best, inclined to delay any bold action.
Sherman Minton,
former US Senator from rural Indiana, was surprisingly steadfast and strong in
his opposition to segregation.
Reading the tea leaves, the NAACP
lawyers saw, at best, a 5-4 decision, one way or the other. The hope among some Justices for consensus
seemed impossible. Justice Frankfurter,
not ready to give up on consensus, suggested a delay and that carried the day,
so on June 3, 1953, the Court ordered that the cases be set down for additional
oral arguments that October. In addition,
the Court asked counsel to file new Briefs and address the following questions:
1)
What evidence is there that the Congress
and state legislatures which submitted and adopted the 14th
Amendment understood that it would abolish segregation in public schools?
2)
If there was no such evidence, did that
Congress or the states understand that future Congresses might do so under the
power to enact legislation authorized in the 14th Amendment?
3)
If Question #2 does not dispose of the
issue, is it within the judicial power of the Court to abolish segregation?
4)
Assuming that it is decided that
segregation violates the 14th Amendment, would it necessarily follow
that Negro children should forthwith be admitted to the school of their choice
or may the Court permit a gradual adjustment?
5)
On the same assumption, what should the
Court’s decree look like?
This sent the attorneys on all sides
of the cases scurrying to see what they could find in the historical record to
answer the first question, a much more daunting task in those pre-Google
days. At the end of the day, the
historical record proved inconclusive.
The new US Attorney General, Herbert
Brownell, was unsure what position the new Eisenhower administration should
take, but after much internal debate it essentially stuck with the Brief that
had been filed by the Truman Justice Department which argued that while it
could not be said that the historical record supported an end to segregated
schools, that record did show that the 14th Amendment…
“established the broad constitutional
principle of full and complete equality of all persons under the law, and that
it forbade all legal distinctions based on race or color.”
In essence, this adopted the position
of the NAACP.
Before the Court reconvened that
fall, Chief Justice Vinson died suddenly in September at age 63. While not as frenzied as today, the speculation
was rampant about who President Eisenhower might name to replace him, with
various prominent judges being suggested.
The President ended up selecting Earl Warren, the 3-term Governor of
California, a former prosecutor who had been the Republican candidate for Vice
President in 1948. This did not sit well
with academia, but the friendly and unpretentious Californian was popular with
the public. More importantly for our
story, his personal qualities lifted up the mood of the other Justices who were
favorably impressed by this man who had never been a judge.
So a new Chief Justice was in place
when the cases were re-argued in December, 1953, again with a highly unusual
three days of oral argument, which seemed to have morphed into less of a
discussion about the merits of the cases and more of a discussion of how to
implement that decision. After oral
arguments during the Court’s internal discussions, recreated as best one can
from cryptic notes taken by two Justices which still exist and observations
from court insiders after the fact, it appears that the new Chief Justice
quickly announced his position in favor of overruling Plessy but with a
great concern of how to get to the end result while inflaming the South as
little as possible. His vote clearly
marked at least five in favor of ending legal segregation, but the Chief
Justice, like Justice Frankfurter, sought unanimity.
Justice Reed seemed to remain firmly
opposed and Justice Jackson struggled to see how to reach such a decision in
light of what he saw as the relevant history.
Justice Clark, freed of his perceived loyalty to former Chief Justice
Vinson, was persuaded, as long as the relief granted was flexible.
With Justice Frankfurter’s desire for
consensus aligning with his personal views on civil rights, he finally came
down against legal segregation, leaving only Justices Reed and Jackson as
possibly opposed. Jackson, who clearly
felt that segregation was morally wrong but not something to be solved by
judges, ultimately was persuaded (from his hospital bed, where he was
recovering from a severe heart attack) that the Constitution must evolve over
time and that the time was at hand to end segregation. This left only Justice Reed as an outlier,
and he announced to his colleagues that he planned to write a dissenting
opinion. But he was talked out of that,
in part by his Law Clerks who said that being a lone dissenter would leave him
on the wrong side of history, by the Chief Justice bluntly asking if that would
be the best thing for the country, and also by the Chief Justice providing for
a gradual implementation of the decision, which Reed found at least palatable.
Thus, the Court announced on May 17,
1954, its unanimous decision in what we now know as Brown v. Board of
Education. The full decision is
remarkably brief and it would not take much longer to read the entire text, but
here are the key portions:
Decided
May 17, 1954
Opinion
CHIEF
JUSTICE WARREN delivered the opinion of the Court:
These cases come to us from the States of Kansas, South Carolina, Virginia, and
Delaware. [And the District of
Columbia.] They are premised on different facts and different local conditions,
but a common legal question justifies their consideration together in this
consolidated opinion.
In
each of the cases, minors of the Negro race, through their legal
representatives, seek the aid of the courts in obtaining admission to the
public schools of their community on a nonsegregated basis. In each instance,
they had been denied admission to schools attended by white children under laws
requiring or permitting segregation according to race. This segregation was
alleged to deprive the plaintiffs of the equal protection of the laws under the
Fourteenth Amendment. In each of the cases other than the Delaware case, [the
lower] court denied relief to the plaintiffs on the so-called "separate
but equal" doctrine announced by this Court in Plessy v. Ferguson ….
In the Delaware case, the Supreme Court of Delaware adhered to that doctrine,
but ordered that the plaintiffs be admitted to the white schools because of
their superiority to the Negro schools.
The
plaintiffs contend that segregated public schools are not "equal" and
cannot be made "equal," and that hence they are deprived of the equal
protection of the laws. Because of the obvious importance of the question
presented, the Court took jurisdiction. Argument was heard in the 1952 Term,
and reargument was heard this Term on certain questions propounded by the
Court.
Reargument
was largely devoted to the circumstances surrounding the adoption of the
Fourteenth Amendment in 1868. It covered exhaustively consideration of the
Amendment in Congress, ratification by the states, then-existing practices in
racial segregation, and the views of proponents and opponents of the Amendment.
This discussion and our own investigation convince us that, although these
sources cast some light, it is not enough to resolve the problem with which we
are faced. At best, they are inconclusive. The most avid proponents of the
post-War Amendments undoubtedly intended them to remove all legal distinctions
among "all persons born or naturalized in the United States." Their
opponents, just as certainly, were antagonistic to both the letter and the
spirit of the Amendments and wished them to have the most limited effect. What
others in Congress and the state legislatures had in mind cannot be determined
with any degree of certainty.
An
additional reason for the inconclusive nature of the Amendment's history with
respect to segregated schools is the status of public education at that time.
In the South, the movement toward free common schools, supported by general
taxation, had not yet taken hold. Education of white children was largely in
the hands of private groups. Education of Negroes was almost nonexistent, and
practically all of the race were illiterate. In fact, any education of Negroes
was forbidden by law in some states. Today, in contrast, many Negroes have
achieved outstanding success in the arts and sciences, as well as in the
business and professional world. It is true that public school education at the
time of the Amendment had advanced further in the North, but the effect of the
Amendment on Northern States was generally ignored in the congressional
debates. Even in the North, the conditions of public education did not
approximate those existing today. The curriculum was usually rudimentary;
ungraded schools were common in rural areas; the school term was but three
months a year in many states, and compulsory school attendance was virtually
unknown. As a consequence, it is not surprising that there should be so little
in the history of the Fourteenth Amendment relating to its intended effect on
public education.
In
the first cases in this Court construing the Fourteenth Amendment, decided
shortly after its adoption, the Court interpreted it as proscribing all
state-imposed discriminations against the Negro race. The doctrine of
"separate but equal" did not make its appearance in this Court until
1896 in the case of Plessy v. Ferguson, …
involving not education but transportation. American courts have since labored
with the doctrine for over half a century. In this Court, there have been six
cases involving the "separate but equal" doctrine in the field of
public education. ………….
In more recent cases, all on the graduate
school level, inequality was found in that specific benefits enjoyed by white
students were denied to Negro students of the same educational
qualifications. …. In none
of these cases was it necessary to reexamine the doctrine to grant relief to
the Negro plaintiff.
In
the instant cases, that question is directly presented. Here, …, there are
findings below that the Negro and white schools involved have been equalized,
or are being equalized, with respect to buildings, curricula, qualifications
and salaries of teachers, and other "tangible" factors. Our decision,
therefore, cannot turn on merely a comparison of these tangible factors in the
Negro and white schools involved in each of the cases. We must look instead to
the effect of segregation itself on public education.
In
approaching this problem, we cannot turn the clock back to 1868, when the
Amendment was adopted, or even to 1896, when Plessy v. Ferguson was
written. We must consider public education in the light of its full development
and its present place in American life throughout the Nation. Only in this way
can it be determined if segregation in public schools deprives these plaintiffs
of the equal protection of the laws.
Today,
education is perhaps the most important function of state and local
governments. Compulsory school attendance laws and the great expenditures for
education both demonstrate our recognition of the importance of education to
our democratic society. It is required in the performance of our most basic
public responsibilities, even service in the armed forces. It is the very
foundation of good citizenship. Today it is a principal instrument in awakening
the child to cultural values, in preparing him for later professional training,
and in helping him to adjust normally to his environment. In these days, it is
doubtful that any child may reasonably be expected to succeed in life if he is
denied the opportunity of an education. Such an opportunity, where the state
has undertaken to provide it, is a right which must be made available to all on
equal terms.
We
come then to the question presented: Does segregation of children in public
schools solely on the basis of race, even though the physical facilities and
other "tangible" factors may be equal, deprive the children of the
minority group of equal educational opportunities? We believe that it does.
]Previously],
in finding that a segregated law school for Negroes could not provide them
equal educational opportunities, this Court relied in large part on "those
qualities which are incapable of objective measurement but which make for greatness
in a law school." In [a later case], the Court, in requiring that a Negro
admitted to a white graduate school be treated like all other students, again
resorted to intangible considerations: ". . . his ability to study, to
engage in discussions and exchange views with other students, and, in general,
to learn his profession." Such considerations apply with added force to
children in grade and high schools. To separate them from others of similar age
and qualifications solely because of their race generates a feeling of
inferiority as to their status in the community that may affect their hearts
and minds in a way unlikely ever to be undone. The effect of this separation on
their educational opportunities was well stated by a finding in the Kansas case
by a court which nevertheless felt compelled to rule against the Negro
plaintiffs:
Segregation
of white and colored children in public schools has a detrimental effect upon
the colored children. The impact is greater when it has the sanction of the
law, for the policy of separating the races is usually interpreted as denoting
the inferiority of the negro group. A sense of inferiority affects the
motivation of a child to learn. Segregation with the sanction of law,
therefore, has a tendency to [retard] the educational and mental development of
negro children and to deprive them of some of the benefits they would receive
in a racial[ly] integrated school system.
Whatever
may have been the extent of psychological knowledge at the time of Plessy v. Ferguson,
this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary
to this finding is rejected.
We
conclude that, in the field of public education, the doctrine of "separate
but equal" has no place. Separate educational facilities are inherently
unequal. Therefore, we hold that the plaintiffs and others similarly situated
for whom the actions have been brought are, by reason of the segregation
complained of, deprived of the equal protection of the laws guaranteed by the
Fourteenth Amendment. …
This
unanimous decision, of course, hit the country like the bombshell decision that
it was, but begged the question of what was to do about it. Since Brown was actually five
different cases with very different facts, the Court ordered yet another
reargument, requesting that the attorneys address the issue of an appropriate
remedy. This helped buy time, hoping
that the impacted school districts would have at least another year to start
figuring out the application of this decision to their district.
New
written Briefs were to be submitted by October, 1954, and another oral argument
was held on four days in April, 1955.
During the intervening months, Justice Jackson had died and been replace
by John Marshall Harlan, ironically the grandson of the Justice Marshall who
had dissented in Plessy. The
Court this time took just six weeks to render its decision, again unusually
succinct:
CHIEF JUSTICE WARREN again delivered the opinion of
the Court:
The opinions of [last year declared] the
fundamental principle that racial discrimination in public education is
unconstitutional…. All provisions of
federal, state, or local law requiring or permitting such discrimination must
yield to this principle. There remains for consideration the manner in which
relief is to be accorded.
Because these cases arose under different
local conditions and their disposition will involve a variety of local
problems, we requested further argument on the question of relief. In view of
the nationwide importance of the decision, we invited the Attorney General of
the United States and the Attorneys General of all states requiring or
permitting racial discrimination in public education to present their views on
that question. The parties, the United States, and the States of Florida, North
Carolina, Arkansas, Oklahoma, Maryland, and Texas filed briefs and participated
in the oral argument.
These presentations were informative and
helpful to the Court in its consideration of the complexities arising from the
transition to a system of public education freed of racial discrimination. The
presentations also demonstrated that substantial steps to eliminate racial
discrimination in public schools have already been taken, not only in some of
the communities in which these cases arose, but …. in other states as well.
Substantial progress has been made in the District of Columbia and in the
communities in Kansas and Delaware involved in this litigation. The defendants
in the cases coming to us from South Carolina and Virginia are awaiting the
decision of this Court concerning relief.
Full implementation of these
constitutional principles may require solution of varied local school problems.
School authorities have the primary responsibility for elucidating, assessing,
and solving these problems; courts will have to consider whether the action of
school authorities constitutes good faith implementation of the governing
constitutional principles. Because of their proximity to local conditions and
the possible need for further hearings, the courts which originally heard these
cases can best perform this judicial appraisal. Accordingly, we believe it
appropriate to remand the cases to those courts. In fashioning and effectuating
the decrees, the courts will be guided by equitable principles. Traditionally,
equity has been characterized by a practical flexibility in shaping its
remedies and by a facility for adjusting and reconciling public and private
needs. These cases call for the exercise of these traditional attributes of
equity power. At stake is the personal interest of the plaintiffs in admission
to public schools as soon as practicable on a nondiscriminatory basis. To
effectuate this interest may call for elimination of a variety of obstacles in
making the transition to school systems operated in accordance with the
constitutional principles set forth ….. Courts of equity may properly take into
account the public interest in the elimination of such obstacles in a
systematic and effective manner. But it should go without saying that the
vitality of these constitutional principles cannot be allowed to yield simply
because of disagreement with them.
While giving weight to these public and
private considerations, the courts will require that the defendants make a
prompt and reasonable start toward full compliance with our …. ruling. Once
such a start has been made, the courts may find that additional time is
necessary to carry out the ruling in an effective manner. The burden rests upon
the defendants to establish that such time is necessary in the public interest
and is consistent with good faith compliance at the earliest practicable date.
To that end, the courts may consider problems related to administration,
arising from the physical condition of the school plant, the school
transportation system, personnel, revision of school districts and attendance
areas into compact units to achieve a system of determining admission to the
public schools on a nonracial basis, and revision of local laws and regulations
which may be necessary in solving the foregoing problems. They will also
consider the adequacy of any plans the defendants may propose to meet these
problems and to effectuate a transition to a racially nondiscriminatory school
system. During this period of transition, the courts will retain jurisdiction
of these cases.
The judgments below, except that, in the
Delaware case, are accordingly reversed, and the cases are remanded to the
District Courts to take such proceedings and enter such orders and decrees
consistent with this opinion as are necessary and proper to admit to public
schools on a racially nondiscriminatory basis with all deliberate speed the
parties to these cases. The judgment in the Delaware case -- ordering the
immediate admission of the plaintiffs to schools previously attended only by
white children -- is affirmed on the basis of the principles stated in our May
17, 1954, opinion, but the case is remanded to the Supreme Court of Delaware
for such further proceedings as that Court may deem necessary in light of this
opinion.
It is so ordered.
The phrase “with all
deliberate speed” was intentionally ambiguous, again to obtain unanimity at the
Supreme Court and with the hope that trial judges throughout the South would
use their skills and local knowledge to get things done as quickly as possible,
but with as little acrimony as possible.
The Court intentionally did not adopt the NAACP’s preferred wording of
“forthwith”. Despite a year to think
about the initial decision and allowing gradual implementation, there remained
fierce resistance to the Court’s decision in many circles but especially in the
Deep South. But immediately the issue of
legal segregation was a dead letter in American jurisprudence and before too
long there were no schools in the United States legally segregated on the basis
of race.
This is not to say that
we now live in a color-blind society and we know too well that many public
schools are today predominately of one race or another. And, of course, other racial discrimination
and animosity have hardly gone away, even now seventy years post-Brown.
But Plessy v. Ferguson
is in the ash heap of history and separate but equal is no more.
Much of
the source material for this paper comes from Simple Justice: The History
of Brown v. Board of Education, by Richard Kluger (Vintage, 1977).
