From Plessy to Brown: Resolving the Promise of Equal Protection Under the Law Introduction The goal of this program is to utilize primary historical documents to aid in facilitating conversations and civil discourse on topics that once led to – and in some instances continue to lead to – sharp schisms in society. By exploring previous moments of division, the conversations both highlight our history confronting such divisions and provide a framework for creating a civil discourse around currently divisive issues. This conversation will focus on questions of equality and separation between Reconstruction following the Civil War and the Civil Rights Movement of the mid-­‐
20th century. Its primary bookends are the Supreme Court decisions in Plessy v. Ferguson and Brown v. Board of Education, the cases that solidified and tore down the Jim Crow doctrine of “separate, but equal” respectively. This guide provides four resources to facilitate the conversation. First, it provides several key topics and questions that can be used to direct both the reading of the primary source material by individual participants and the subsequent conversation by the group. Second, it provides brief contextual information aimed to put the primary source material into a broader narrative in American history. This material is italicized. Third, it provides the primary source material itself – selections from key documents that have impacted this debate over time. And finally, it provides direction to additional resources that participants may turn to to continue exploring similar topics. Guiding Questions for Reading and Discussion -­‐ Does separation inherently imply inferiority or is the context of the separation required in order to answer the question of inferiority? -­‐ Should the constitutionality of laws be interpreted based upon the context in which the laws were adopted or should laws be judged based solely on their content? -­‐ What role, if any, does legislation or a court decision play in altering social customs? -­‐ In a democracy, if a majority of citizens support a law, can legislation or a court decision go against it? If so, on what authority? -­‐ What, if anything, was the harm of segregation? How could society remedy that harm? -­‐ How do you “desegregate” a railcar? How do you “desegregate” a school? A school district? -­‐ If a state simply removed the legal mandate of legally-­‐mandated segregation, would it be in compliance with the Constitution or must it do something more to promote schools with diverse student populations? -­‐ Is the Constitution “color-­‐blind”? Should it be? DRAFT -­‐
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Are laws aimed at benefiting rather than oppressing a previously-­‐oppressed group, such as African Americans, permissible under the Constitution? If “separate educational facilities are inherently unequal” and educational opportunity is “a right which must be made available to all on equal terms,” is it permissible to separate students by gender? By ability to speak English? By intellectual ability? By age? Context and Primary Source Materials 14th Amendment of the United States Constitution (1868) 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.
In 1892_, Homer Plessy, a man who was defined as “colored” under Louisiana law because one of his eight great-­grandparents were of African ancestry, attempted to sit in a railcoach designated for white passengers only. Louisiana, like many other states, mandated that “separate, but equal” provisions be made for the different races in railcars and other public places where members of different races might otherwise interact. Plessy challenged the law as being inconsistent with the 14th Amendment of the U.S. Constitution on the grounds that the separation of the races denied him equal protection of the law. Plessy v. Ferguson (majority opinion, written by Justice Brown) (1896) The object of the [14th] Amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, 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. ***
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If the two races are to meet upon terms of social equality, it must be the result of affinities, a mutual respect of each other’s merits, and a voluntary consent of individuals. Legislation is powerless to eradicate racial instincts…and the attempt to do so can only result in accentuating the difficulties of the present situation…If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane. ***
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It is suggested by…the plaintiff…that the same argument that will justify the state legislature in requiring railways to provide separate accommodations for the two races will also authorize them to require separate cars to be provided for people whose hair is of a certain DRAFT color, … or to enact laws requiring colored people to walk upon one side of the street and white people upon the other, or require white men’s houses to be painted white and colored men’s black, or their vehicles or business signs to be of different colors, upon the theory that one side is as good as the other, or that a house or vehicle of one color is as good as one of another color. The reply to all this is that [laws] must be reasonable, and extend only to such laws are enacted in good faith for the promotion of the public good, and not for the annoyance or oppression of a particular class. ***
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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 fo anything found in the act, but solely because the colored race chooses to put that construction upon it. Plessy v. Ferguson (dissenting opinion, written by Justice Harlan) (1896) The destinies of the two races in this country are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law. ***
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Everyone knows that the statute in question had its origin in the purpose not so much to exclude white persons from railroad cars occupied by blacks as to exclude colored people from coaches occupied or assigned to white persons…No one would be so wanting in candor to assert the contrary. ***
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What can more certainly arouse race hate…than state enactments which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coahces occupied by white citizens. ***
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There is no caste here. 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. The humblest is the peer of the most powerful. Following Plessy v. Ferguson’s endorsement of “separate, but equal,” states expanded and strengthened laws requiring racial segregation throughout the first half of the 20th century. However, challenges to these laws continued and following World War II, the Supreme Court began to rule in favor of plaintiffs represented by lawyers from the NAACP Legal Defense Fund challenging segregation laws in schools. After several victories in graduate school cases, the NAACP lawyers brought a series of cases in four states and the District of Columbia directly challenging racial segregation in primary and secondary school. Their efforts culminated in Brown v. Board of Education. DRAFT Brown v. Board of Education (Chief Justice Warren writing for the unanimous Court) (1954) 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. ***
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Our decision…cannot turn on merely a comparison of [the] 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. ***
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Today, education is perhaps the most important function of state and local governments…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…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. ***
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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. ***
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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 to ever be undone. ***
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We conclude that in the field of public education, the doctrine of separate but equal has no place. Separate educational facilities are inherently unequal. Following the Brown opinion, the Supreme Court returned the decision of implementation of desegregation back to local communities and courts. In the nearly 60 years since Brown, communities across the country have grappled with how best to comply and many have experienced deep divisions over public school desegregation. In 2012, many schools remain predominantly one race or another, though they are not mandated to be so by law. DRAFT Additional Resources
Biography/Memoir
• Warriors Don’t Cry, by Melba Patillo Beals
• A Matter of Law, by Robert Carter
• Groundwork: Charles Hamilton Houston and the Struggle for Civil Rights, by Genna
Rae McNeil
• Justice for All: Earl Warren and the Nation He Made, by Jim Newton
• Thurgood Marshall: American Revolutionary, by Juan Williams
• A Time to Lose, by Paul E. Wilson
History
• “Does the Negro Need Separate Schools?” by W.E.B. DuBois
• Root and Branch, by Rawn James
• From Jim Crow to Civil Rights, by Michael Klarman
• Simple Justice, by Richard Kluger
• The Strange Career of Jim Crow, by C. Vann Woodward
Film
• The Road to Brown (1989), directed by William Elwood, Mykola Kulish
• With All Deliberate Speed (2004), directed by Peter Gilbert
• The Memphis 13 (2011), directed by Daniel Kiel
Modern/Looking Back
• Silent Covenants, by Derrick Bell
• In Brown’s Wake, by Martha Minow
• Brown v. Board of Education: a Civil Rights Milestone and Its Troubled Legacy, by
James T. Patterson