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,1663 but the Court in Plessy v. Ferguson1664 adopted a principle first propounded in litigation attacking racial segregation in the schools of Boston, Massachusetts.1665 Plessy concerned not schools but a state law requiring “equal but separate” facilities for rail transportation and requiring the separation of “white 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.”1666 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.”1667

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,1668 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.1669 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.1670

In 1938, the Court began to move away from “separate but equal.” It held that a state that operated a law school open to whites only and 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 within the state.1671 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.1672 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.1673

Footnotes

1663
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). [Back to text]
1664
163 U.S. 537 (1896). [Back to text]
1665
Roberts v. City of Boston, 59 Mass. 198, 206 (1849). [Back to text]
1666
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. [Back to text]
1667
163 U.S. 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. [Back to text]
1668
Gong Lum v. Rice, 275 U.S. 78 (1927). [Back to text]
1669
Cumming v. Richmond County Bd. of Educ., 175 U.S. 528 (1899). [Back to text]
1670
Berea College v. Kentucky, 211 U.S. 45 (1908). [Back to text]
1671
Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938). See also Sipuel v. Board of Regents, 332 U.S. 631 (1948). [Back to text]
1672
Sweatt v. Painter, 339 U.S. 629 (1950). [Back to text]
1673
McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950). [Back to text]