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The Fourteenth Amendment “is one of a series of constitutional provisions having a common purpose; namely, securing to a race recently emancipated, a race that through many generations had been held in slavery, all the civil rights that the superior race enjoy. The true spirit and meaning of the amendments . . . cannot be understood without keeping in view the history of the times when they were adopted, and the general objects they plainly sought to accomplish. At the time when they were incorporated into the Constitution, it required little knowledge of human nature to anticipate that those who had long been regarded as an inferior and subject race would, when suddenly raised to the rank of citi[p.1840]zenship, be looked upon with jealousy and positive dislike, and that State laws might be enacted or enforced to perpetuate the distinctions that had before existed. . . . [The Fourteenth Amendment] was designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the general government in that enjoyment, whenever it should be denied by the States. It not only gave citizenship and the privileges of citizenship to persons of color, but it denied to any State the power to withhold from them the equal protection of the laws, and authorized Congress to enforce its provision by appropriate legislation.”1 Thus, a state law which on its face worked a discrimination against African Americans was void.2 In addition, “[t]hough the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.”3



Development and Application of “Separate But Equal”.—Cases decided soon after ratification of the Fourteenth Amendment may be read as precluding any state–imposed distinction based on race,4 but the Court in Plessy v. Ferguson5 adopted a principle first propounded in litigation attacking racial segregation in the schools of Boston, Massachusetts.6 Plessy concerned not schools but a state law requiring the furnishing of “equal but separate” facilities for rail transportation and requiring the separation of “white[p.1841]and colored” passengers. “The object of the [Fourteenth] [A]mendment 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. Laws permitting, and even requiring their separation in places where they are liable to be brought into contact 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 exercise of their police power.”7 The Court observed that a common instance of this type of law was the separation by race of children in school, which had been upheld, it was noted, “even by courts of states where the political rights of the colored race have been longest and most earnestly enforced.”8

Subsequent cases following Plessy that actually concerned school segregation did not expressly question the doctrine and the Court’s decisions assumed its validity. It held, for example, that a Chinese student was not denied equal protection by being classified with African Americans and sent to school with them rather than with whites,9 and it upheld the refusal of an injunction to require a school board to close a white high school until it opened a high school for African Americans.10 And no violation of the equal protection clause was found when a state law prohibited a private college from teaching whites and African Americans together.11

In 1938, the Court began to move away from “separate but equal.” It then held that a State which operated a law school open to whites only and which did not operate any law school open to African Americans violated an applicant’s right to equal protection, even though the State offered to pay his tuition at an out–of–state law school. The requirement of the clause was for equal facilities[p.1842]within the State.12 When Texas established a law school for African Americans after the plaintiff had applied and been denied admission to the school maintained for whites, the Court held the action to be inadequate, finding that the nature of law schools and the associations possible in the white school necessarily meant that the separate school was unequal.13 Equally objectionable was the fact that when Oklahoma admitted an African American law student to its only law school it required him to remain physically separate from the other students.14

Brown v. Board of Education.—“Separate but equal” was formally abandoned in Brown v. Board of Education,15 involving challenges to segregation per se in the schools of four States in which the lower courts had found that the schools provided were equalized or were in the process of being equalized. Though the Court had asked for argument on the intent of the framers, extensive research had proved inconclusive, and the Court asserted that it could not “turn the clock back to 1867. . . or even to 1896,” but must rather consider the issue in the context of the vital importance of education in 1954. The Court reasoned that denial of opportunity for an adequate education would often be a denial of the opportunity to succeed in life, that separation of the races in the schools solely on the basis of race must necessarily generate feelings of inferiority in the disfavored race adversely affecting education as well as other matters, and therefore that the equal protection clause was violated by such separation. “We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”16

After hearing argument on what remedial order should issue, the Court remanded the cases to the lower courts to adjust the effectuation of its mandate to the particularities of each school district. “At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis.” The lower courts were directed to “require that the defendants make a prompt and reasonable start toward full compliance,” although “[o]nce such a start has been made,” some additional time would be needed because of problems arising in the course of com[p.1843]pliance and the lower courts were to allow it if on inquiry delay were found to be “in the public interest and [to be] consistent with good faith compliance . . . to effectuate a transition to a racially nondiscriminatory school system.” But in any event the lower courts were to require compliance “with all deliberate speed.”17


1 Strauder v. West Virginia, 100 U.S. 303, 306–07 (1880) .
2 Id. (law providing for jury service specified white males). Moreover it will not do to argue that a law that segregates the races or prohibits contacts between them discriminates equally against both races. Buchanan v. Warley, 245 U.S. 60 (1917) (ordinance prohibiting blacks from occupying houses in blocks where whites were predominant and whites from occupying houses in blocks where blacks were predominant). Compare Pace v. Alabama, 106 U.S. 583 (1883) (sustaining conviction under statute that imposed a greater penalty for adultery or fornication between a white person and an African American than was imposed for similar conduct by members of the same race, using “equal application” theory), with McLaughlin v. Florida, 379 U.S. 184, 188 (1964) , and Loving v. Virginia, 388 U.S. 1, 10 (1967) (rejecting theory).
3 Yick Wo v. Hopkins, 118 U.S. 356, 373–74 (1886) (discrimination against Chinese).
4 Slaughter–House Cases, 83 U.S. (16 Wall.) 36, 67–72 (1873); Strauder v. West Virginia, 100 U.S. 303, 307–08 (1880) ; Virginia v. Rives, 100 U.S. 313, 318 (1880) ; Ex parte Virginia, 100 U.S. 339, 344–45 (1880) .
5 163 U.S. 537 (1896) .
6 Roberts v. City of Boston, 59 198, 206 (1849).
7 Plessy v. Ferguson, 163 U.S. 537, 543–44 (1896) . “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.” Id. at 552, 559.
8 Id. at 544–45. The act of Congress in providing for separate schools in the District of Columbia was specifically noted. Justice Harlan’s well–known dissent contended that the purpose and effect of the law in question was discriminatory and stamped African Americans with a badge of inferiority. “[I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color–blind, and neither knows nor tolerates classes among citizens.” Id. at 552, 559.
9 Gong Lum v. Rice, 275 U.S. 78 (1927) .
10 Cummings v. Board of Education, 175 U.S. 528 (1899) .
11 Berea College v. Kentucky, 211 U.S. 45 (1908) .
12 Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) . See also Sipuel v. Board of Regents, 332 U.S. 631 (1948) .
13 Sweatt v. Painter, 339 U.S. 629 (1950) .
14 McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950) .
15 347 U.S. 483 (1954) . Segregation in the schools of the District of Columbia was held to violate the due process clause of the Fifth Amendment in Bolling v. Sharpe, 347 U.S. 497 (1954) .
16 Brown v. Board of Education, 347 U.S. 483, 489–90, 492–95 (1954) .
17 Brown v. Board of Education, 349 U.S. 294, 300–01 (1955) .
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