in Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct.
686, 98 L.Ed. 873 (1954) with regard to its impact on public education, as well as its effect on old laws and similar cases in other areas. This case will also be placed into its historical context, and the judicial decision handed down will be evaluated.
This school desegregation case is justifiably famous for ending segregation practices which had been prevalent in the South and other areas since the days of Reconstruction, during which the South saw the return of “white man’s government” and the passage
of state laws not unlike the “Black Codes” adopted right after the Civil War to “keep the Negro in his place.” Under criminal penalties, these state laws required the segregation of the white and Negro races in public and semi-public places, including separate schools, parks, waiting rooms, bus and railroad accommodations. In light of this apparent violation of the Fourteenth Amendment, Congress passed the Civil Rights Act of 1875, which made it a crime and a civil wrong for anyone to deny any other person
. . . 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 . . .(quoted in Cushman and Cushman 835).
This Act thereby followed in the footsteps and advanced the concept of equal rights “without regard to race, color or previous condition of servitude” affirmed by the Freedman’s Bureau Bill of 1866, the Reconstruction Acts of 1867, the Fourteenth and Fifteenth Amendments to the Constitution, and the Civil Rights Acts of 1866, 1870, and 1871 (Olsen ed. 2).
It is within this context that one of the most famous cases of the period, Plessy v. Ferguson, 163 U.S 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896) came before the Supreme Court. Homer Adolph Plessy, who was seven-eighths Caucasian and one-eighth Negro, had taken a seat in a white coach on an East Louisiana Railroad train bound for Covington, Louisiana. He told the conductor that he was colored (it was not obvious) and, after refusing to move to a “Jim Crow car,” he was arrested and imprisoned under a criminal charge of violating a Louisiana law that stated in part
. . . that all railway companies carrying passengers in their coaches in this state shall provide equal but separate accommodations for the white and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations. . . (Plessy v. Ferguson 540) (emphasis added).
This “equal but separate” doctrine was upheld by the Louisiana court and by the U.S. Supreme Court. In writing the majority opinion, Mr. Justice Brown first argued that the Louisiana law “does not conflict with the 13th Amendment, which abolished slavery and involuntary servitude . . . is too clear for argument” (Plessy v. Ferguson 541). He then goes on to interpret the Fourteenth Amendment in a similar vein. Although its object, he says, was to
. . . enforce the absolute equality of the two races before the law . . . it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring their separation . . . do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children . . . (Plessy v. Ferguson 544).
Thus, although state laws must be “reasonable,” that is, “enacted in good faith for the promotion of the public good, and not for the annoyance or oppression of a particular class, “state legislatures are, nevertheless,
. . . at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order (Plessy v. Ferguson 550).
The Plessy case formed the basis of the Supreme Court’s
“separate but equal” doctrine until the School Segregation Cases of 1954 (Brown v. Board of Education of Topeka and Bolling v. Sharpe), in which the doctrine was “expressly overruled in its application to public education” (Beth 1090). The case under consideration here, Brown v. Board of Education of Topeka (Kansas), consolidated cases on review from four states-Kansas, South Carolina, Virginia, and Delaware. Three of these states, South Carolina, Virginia, and Delaware, had constitutional and statutory provisions, which required the segregation of Negroes and whites in public schools. Additionally, Kansas had a statute which “permits, but does not require, cities of more than 15,000 population to maintain separate school facilities for Negro and white students” (Brown v. Board of Education of Topeka 486, note 1). The former three states were found by their state courts to have schools for Negroes that were inferior to those for whites. In particular, the Delaware schools for Negroes were found “inferior with respect to teacher training, pupil teacher ratio, extracurricular activities, physical plant, and time and distance involved in travel” (Brown v. Board of Education of Topeka 487-488, note 1). The lower courts in two states–Kansas and Delaware–also found that “segregation in public education has a detrimental effect upon Negro children” (Brown v. Board of Education of Topeka 486, note 1). In spite of these findings, however, in the Kansas, South Carolina and Virginia cases,
. . . a three-judge federal district court denied relief to the plaintiffs on the so-called “separate but equal” doctrine announced by this [Supreme] Court in Plessy v. Ferguson, 163 U.S. 537 . . . 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 (Brown v. Board of Education of Topeka 488).
In a unanimous opinion written by Chief Justice Earl
Warren, the U. S. Supreme Court found the history of the Four-teenth Amendment (and particularly its Equal Protection Clause) “inconclusive . . . with respect to segregated schools” (Brown v. Board of Education of Topeka 489). Moreover, until the present cases, it had not been necessary to “re-examine” the “separate but equal” doctrine “to grant relief to the Negro plaintiff” (Brown v. Board of Education of Topeka 492). In 1938 and 1948, the Supreme Court had ruled against two states–Missouri and Oklahoma–that they were not providing “substantially equal” tax-supported law schools for both whites and Negroes (Missouri ex rel. Gaines v. Canada and Sipuel v. University of Oklahoma). Again, in a 1950 case, the Court noted that, since there was not an “equivalent” law school for Negroes in Texas, “the Equal Protection Clause of the Fourteenth Amendment requires that petitioner be admitted to the University of Texas Law School” (Sweatt v. Painter and McLaurin v. Oklahoma State Regents). But in the 1954 cases, the Supreme Court finally had to come to grips with the “separate but equal” doctrine itself, and do so by considering public education “in the light of . . . its present place in American life through-out the Nation” (Brown v. Board of Education of Topeka 492-493). With respect to this latter point, the Court found that:
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 . . . 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 (Brown v. Board of Education of Topeka 493).
In making its decision, the Supreme Court found that Negro children were definitely injured by attending segregated schools. In addition to citing seven psychological and educational texts and articles (Brown v. Board of Education of Topeka 494-495, note 11), the Court quoted the finding in the Kansas case that:
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 (Brown v. Board of Education of Topeka 494).
Upon this basis, the Supreme Court thereby concluded that:
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 . . . are . . . deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment (Brown v. Board of Education of Topeka 494-495).
Again, in a similar case involving the District of Columbia, the
Court also reached the same conclusion under the Due Process Clause of the Fifth Amendment (Bolling v. Sharpe).
Having reached this decision, the Supreme Court was then faced with the question of how best to implement it and how relief should be granted to those harmed under the previous “separate but equal” doctrine. In a subsequent case, Brown v. Board of Education of Topeka, 349 U.S. 294 (1955), the Court held that:
School authorities have the primary responsibility for elucidating, assessing, and solving these problems [of implementation]; 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 (Brown v. Board of Education of Topeka 299).
Moreover, the Supreme Court directed the lower courts to be “guided by equitable principles . . . characterized by a practical flexibility in shaping . . . remedies and by a facility for adjusting and reconciling public and private needs” (Brown v. Board of Education of Topeka 300). Again, the lower courts were to take such actions “as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases” (Brown v. Board of Education of Topeka 301).
In the first 20 years since this decision, although many school districts have been desegregated, “all deliberate speed” was challenged and thwarted by several other school administra-tions. Thus, the Supreme Court, as well as the lower courts, found severe difficulties in applying this new doctrine to specific school desegregation cases. Additionally the courts found great difficulty with school administrations and their proposals for meeting the Brown decision (for instance, Spencer B. Kugler, Gomperts v. Chase, and Milliken v. Bradley). In particular, courts had to deal with the defense that any segregation that does exist is not mandated by law (de jure). For example, school district boundaries established along political boundaries, is merely de facto segregation resulting from, among other things, “white flight” from inner cities to the suburbs. And, as noted in Gomperts v. Chase (1971),
The remedies, if any, that are available where school
segregation is de facto and not de jure are not yet clear. But Plessy v. Ferguson has not yet been overruled on its mandate that separate facilities be equal (Gomperts v. Chase 1240).
Moreover, the U S. Supreme Court has never held de facto racial
discrimination (or segregation) to be unconstitutional. The Supreme Court of at least one state, however, has found de facto racial segregation invalid. That is, the California Supreme Court has decided, as early as 1963, that “school boards should take affirmative steps to alleviate racial imbalance, however created” (Serrano v. Priest 604). Be this as it may, the U.S. Supreme Court has not yet clearly stated that
. . . school authorities are constitutionally compelled to affirmatively overcome deficiencies not of their own making–whether these “deficiencies” are of language, poverty, birth and disease or, in the case of the school finance suits, geographic location (Levin 1122).
We can finally see that most, if not all, of the issues
first raised in Brown v Board of Education of Topeka have now been transferred from the “white-black” class issue to the “rich school poor school” class issue. In the early 1960s, the Civil Rights March gave way to the Poor People’s March, and the “new equal protection” was first applied to school finance in 1968 by Arthur Wise in his influential book, Rich Schools, Poor Schools. Subsequently, the California Supreme Court in Serrano v. Priest (1971) found “wealth discrimination,” the inequality that results from school finance systems tying the quality of education to school district wealth, was unconstitutional (Serrano v. Priest). The courts of several other states have followed this lead, but there remain problems with various proposed definitions of “equal educational opportunity.” As Levin points out,
In the post-Serrano . . . period, equal educational opportunity was defined by the school finance cases as the equalization of fiscal capacity (property tax base) or, even more simply, the equalization of per pupil expenditures (Levin 1107).
The situation has, however, grown more complicated, since some courts have emphasized equalizing the expenditures on each child, others have focused on equalizing pupil achievement. And still have focused others on setting up minimum rather than equal levels of student education, whether this is measured in input or output (Levin 1107-1114). Thus, school discrimination cases remain complicated, and especially so since the U.S. Supreme Court has seen fit to permit the various states to go their own ways, so long as it does not decide that they have violated the Equal Protection Clause of the Fourteenth Amendment.