Saturday, May 21, 2005


By William Fisher

It was only fifty-one years ago this week that the U.S. Supreme Court handed down a decision that would forever change life in America. The Court ruled that “separate but equal” schools for white and African-American children were inherently unequal.

On May 17, 1954, Chief Justice Earl Warren looked down from the bench to a hushed and tightly packed courtroom to read the unanimous decision:

“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?” he asked.

“We believe that it does,” he answered. “We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal.”

That landmark – and unexpected -- decision triggered years of protest throughout the segregated Southern states of America, and opened the gates to an avalanche of additional civil rights legislation and court decisions that reversed laws and practices in force since the abolition of slavery in the U.S. in 1865.

Paradoxically, the beginnings of the case – known as Brown v. Board of Education – had nothing to do with education. It was about railroad cars.

In 1890, the state of Louisiana passed a statute providing "that all railway companies carrying passengers in their coaches in this state shall provide equal but separate accommodations for the white and colored races…”

Homer Plessy, a 30-year old shoemaker, was jailed for sitting in the "White's" car of the East Louisiana Railroad. Plessy was a mix of seven-eighths white and one-eighths black. But Louisiana law still considered him black.

Plessy went to court and argued that the Separate Car Act violated the Thirteenth and Fourteenth Amendments to the Constitution. The judge ruled that Louisiana could regulate railroad companies that only operated within its state. He found Plessy guilty, and the Louisiana Supreme Court agreed.

Plessy then appealed his case to the U.S. Supreme Court. In 1896, the court found Homer Plessy guilty once again. In an 8-1 decision, the judges ruled that the Separate Car Act “does not conflict with the Thirteenth Amendment, which abolished slavery...The object of the [Fourteenth Amendment] was undoubtedly to enforce the absolute equality of the two races before the law, but… 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."

The lone dissenter was Justice John Harlan. “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law…”, he wrote.

Justice Harlan proved prophetic. But it would take another 64 years before "separate but equal" would be struck down as the law of the land, in a case known as Brown v. Board of Education of Topeka, Kansas.

In the city of Topeka, a black third-grader named Linda Brown had to walk a mile through a railroad switchyard to get to her black elementary school, even though a white elementary school was only seven blocks away. Linda's father, Oliver Brown, tried to enroll her in the white elementary school, but the principal of the school refused. In the other cases outside Kansas, African American children attended poor facilities without basic school equipment and supplies.

Brown approached the National Association for the Advancement of Colored People (NAACP), which had long wanted to challenge segregation in public schools. Other black parents joined Brown and, in 1951, the NAACP requested an injunction to stop segregation in Topeka's public schools.

The head of Brown’s defense team was Thurgood Marshall, the NAACP’s chief lawyer, who was later appointed to the U.S. Supreme Court.

At the Circuit Court trial, Marshall argued that segregated schools sent the message to black children that they were inferior to whites; therefore, the schools were inherently unequal.

The Board of Education's defense was that, because segregation in Topeka and elsewhere pervaded many other aspects of life, segregated schools simply prepared black children for the segregation they would face during adulthood.

The Court ruled that segregation of white and colored children in public schools indeed had a “detrimental effect on the colored children...A sense of inferiority affects the motivation of a child to learn.” But Plessy v. Ferguson allowed separate but equal school systems for blacks and whites, and no Supreme Court ruling had yet overturned that decision. Thus the lower court felt "compelled" to rule in favor of the Board of Education.

Brown and the other families appealed to the U.S. Supreme Court, challenging school segregation in South Carolina, Virginia, and Delaware, as well as in Topeka.

The Supreme Court’s decision was the end of a long road for opponents of ‘separate but equal’ schools. As early as 1849, African American parents had challenged separate schools based solely on race. In Kansas alone there were eleven school integration cases dating from 1881 to 1949.

In 1955, the Court completed its ruling by ordering the states' to desegregate "with all deliberate speed."

But the Brown decision did not immediately end school nor did it deal with segregation in public accommodations, such as restaurants or bathrooms, owned by private parties. This would not be achieved until well into the civil rights movement of Dr. Martin Luther King, and the passage of the Civil Rights Act of 1964, led by President Lyndon B. Johnson.

The school desegregation decision generated two decades of fierce resistance, especially in the American south. In Virginia, a U.S. Senator organized a resistance movement that called for the closing of schools rather than desegregating them. Throughout the south, so-called Citizens’ Councils attempted to set up white-only private schools. The Ku Klux Klan, a white supremacist organization, terrorized African Americans and those who supported them. Businesses siding with the Supreme Court were boycotted.

In the South, most public schools would not be desegregated until about 1970 under the Nixon administration.

There are many lessons to be learned from Linda Brown’s long march to justice. One is that our system of democracy can be infuriatingly slow and frustrating in righting wrongs. Another is that our independent judiciary is the pivotal actor in this process – even when we hate some of the decisions it makes. The third lesson, sadly, is that the Justices who handed down the Brown v. Board decision would be pilloried today as ‘judicial activists’.

Have we really learned anything?