Historical Context 

of

BROWN v. BOARD

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A Brief History of Brown

With the adoption of the Civil War Amendments in the years immediately after the end of the Civil War, the U.S. Constitution became a new document constituting a new compact among the people, the states, and the federal government. The Civil War Amendments are: Amendment 13 (banning slavery) (1865); Amendment 14 (guaranteeing equality under the law) (1868); and Amendment 15 (guaranteeing the right to vote regardless of race) (1870).  In concert with and in furtherance of these steps toward making the United States more just, in 1866 and 1875 Congress enacted laws guaranteeing civil rights to the newly-freed men, women, and children in the south.  However, in 1872, in the accidentally aptly-named Slaughter-House Cases, the Supreme Court held that the federal government could not protect citizens of states from discriminatory actions by the states. About a decade later, in 1883, in the bitterly ironically-named Civil Rights Cases, the Court held that the 1875 Civil Rights Act was unconstitutional and that the 14th Amendment did not reach private discriminatory conduct. 

In the Post-Reconstruction period (Reconstruction ended in 1877) in the South, states enacted "Jim Crow" laws which were designed to keep the races separate, and to keep blacks in a state of relative peonage. (From the Wikipedia on Jim Crow laws:  "The term Jim Crow comes from the minstrel show song 'Jump Jim Crow' written in 1828 by Thomas D. Rice, a white man, the originator of blackface performance. The song and blackface itself were an immediate hit. 'Jim Crow' became a standard character in Minstrel shows, being a caricature of a shabbily dressed rural black; 'Jim Crow' was often paired with the character 'Zip Coon', a flamboyantly dressed urban black. By 1837, Jim Crow was being used to refer to racial segregation.") In 1896 in the case of Plessy v. Ferguson, the Supreme Court approved "separate but equal" as a constitutional interpretation of the 14th Amendment guarantee of equal protection under the law. In Plessy the Court affirmed segregation on transportation facilities in Louisiana, but the case was taken to approve "separate but equal" as a principle that could be constitutionally applied in education, restaurants, hotels, and more.

In a series of cases before 1936, the Supreme Court allowed states to exclude blacks from voting by discriminatory voter registration regulations, to apply mandatory segregation laws to private schools, to uphold private discrimination in housing, and in general to discriminate against blacks.  Two bright spots in this distressing series of decisions occurred in 1880 and 1917 in which the Supreme Court held that states could not discriminate on the basis of race in jury selection and in which the Supreme Court held that state-mandated residential segregation violated the 14th Amendment, respectively.

In a series of cases the courts ordered integration in settings where separate could not be equal.  For example, in 1936, Charles Hamilton Houston and Thurgood Marshall won a case against Maryland in which the Maryland Court of Appeals ordered that a black student be admitted to the University of Maryland Law School, which six years earlier had refused admission to Thurgood Marshall himself.  Pearson v. Murray,182 A. 590 (Md. 1936). 

The Broader Context

World War II ended in 1945.  In the same year, the United Nations was created.  In 1948, the UN adopted the Universal Declaration of Human Rights which required nations to prohibit discrimination on the basis of race, color, religion, sex, and national origin among other things. In 1948 President Truman ordered integration of the federal government and the military and ordered that they not discriminate on the basis of race.  By 1950 the Cold War was well under way with competition between Russian communism and western liberalism around the globe, including throughout Africa which was then mostly still colonized.  The United States was  rightly shown to be hypocritical for promoting non-discrimination and equality around the world while allowing apartheid in a significant portion of its territory.  The separate-but-equal doctrine was now adverse to the broader, international interests of the United States in fighting the Cold War and the reality of inequality was documented beyond dispute.

Deciding the Issue

In the lower courts

In 1951 and 1952 years of coordinated work around the country came together with a number of trial court decisions on the issue of the continued viability of separate but equal.  Five district courts in five cases from four different states, Kansas, Delaware, South Carolina, and Virginia, and from the District of Columbia all ruled on essentially the same issue:  was separate-but-equal still constitutional?  The state cases were based on the Equal Protection Clause of the Fourteenth Amendment while the District of Columbia case was based upon the Due Process Clause of the Fifth Amendment (denial of liberty by such discrimination; the 14th Amendment does not apply to the federal government). 

The Supreme Court summarized the four state cases as follows:

In the Kansas case, Brown v. Board of Education, the plaintiffs are Negro children of elementary school age residing in Topeka. They brought this action in the United States District Court for the District of Kansas to enjoin enforcement of a Kansas statute which permits, but does not require, cities of more than 15,000 population to maintain separate school facilities for Negro and white students. Kan. Gen. Stat. 1949, § 72-1724. Pursuant to that authority, the Topeka Board of Education elected to establish segregated elementary schools. Other public schools in the community, however, are operated on a nonsegregated basis. The three-judge District Court, convened under 28 U.S.C. §§ 2281 and 2284, 28 U.S.C.A. §§ 2281, 2284, found that segregation in public education has a detrimental effect upon Negro children, but denied relief on the ground that the Negro and white schools were substantially equal with respect to buildings, transportation, curricula, and educational qualifications of teachers. 98 F. Supp. 797. The case is here on direct appeal under 28 U.S.C. §§ 1253, 28 U.S.C.A. § 1253.

In the South Carolina case, Briggs v. Elliott, the plaintiffs are Negro children of both elementary and high school age residing in Clarendon County. They brought this action in the United States District Court for the Eastern District of South Carolina to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. S.C. Con st. Art. XI, § 7; S.C. Code 1942, § 5377. The three-judge District Court, convened under 28 U.S.C. §§ 2281 and 2284, 28 U.S.C.A. §§ 2281, 2284, denied the requested relief. The court found that the Negro schools were inferior to the white schools and ordered the defendants to begin immediately to equalize the facilities. But the court sustained the validity of the contested provisions and denied the plaintiffs admission to the white schools during the equalization program. 98 F. Supp. 529. This Court vacated the District Court's judgment and remanded the case for the purpose of obtaining the court's views on a report filed by the defendants concerning the progress made in the equalization program. 342 U.S. 350, 72 S. Ct. 327, 96 L. Ed. 392. On remand, the District Court found that substantial equality had been achieved except for buildings and that the defendants were proceeding to rectify this inequality as well. 103 F. Supp. 920. The case is again here on direct appeal under 28 U.S.C. § 1253, 28 U.S.C.A. § 1253.

In the Virginia case, Davis v. County School Board, the plaintiffs are Negro children of high school age residing in Prince Edward County. They brought this action in the United States District Court for the Eastern District of Virginia to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. Va. Const. § 140; Va. Code 1950, § 22-221. The three-judge District Court, convened under 28 U.S.C. §§ 2281 and 2284, 28 U.S.C.A. §§ 2281, 2284, denied the requested relief. The court found the Negro school inferior in physical plant, curricula, and transportation, and ordered the defendants forthwith to provide substantially equal curricula and transportation and to "proceed with all reasonable diligence and dispatch to remove" the inequality in physical plant. But, as in the South Carolina case, the court sustained the validity of the contested provisions and denied the plaintiffs admission to the white schools during the equalization program. 103 F. Supp. 337. The case is here on direct appeal under 28 U.S.C. § 1253, 28 U.S.C.A. § 1253.

In the Delaware case, Gebhart v. Belton, the plaintiffs are Negro children of both elementary and high school age residing in New Castle County. They brought this action in the Delaware Court of Chancery to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. Del. Const. Art. X, § 2; Del. Rev. Code, 1935, § 2631, 14 Del. C. § 141. The Chancellor gave judgment for the plaintiffs and ordered their immediate admission to schools previously attended only by white children, on the ground that the Negro schools were inferior with respect to teacher training, pupil-teacher ratio, extracurricular activities, physical plant, and time and distance involved in travel. Del. Ch., 87 A.2d 862. The Chancellor also found that segregation itself results in an inferior education for Negro children (see note 10 ,infra ), but did not rest his decision on that ground. 87 A.2d at page 865. The Chancellor's decree was affirmed by the Supreme Court of Delaware, which intimated, however, that the defendants might be able to obtain a modification of the decree after equalization of the Negro and white schools had been accomplished. 91 A.2d 137, 152. The defendants, contending only that the Delaware courts had erred in ordering the immediate admission of the Negro plaintiffs to the white schools, applied to this Court for certiorari. The writ was granted, 344 U.S. 891, 73 S. Ct. 213, 97 L. Ed. 689. The plaintiffs, who were successful below, did not submit a cross-petition.

The Court summarized the case from the District of Columbia, Bolling v. Sharpe, as follows:

This case challenges the validity of segregation in the public schools of the District of Columbia. The petitioners, minors of the Negro race, allege that such segregation deprives them of due process of law under the Fifth Amendment. They were refused admission to a public school attended by white children solely because of their race. They sought the aid of the District Court for the District of Columbia in obtaining admission. That court dismissed their complaint. The Court granted a writ of certiorari before judgment in the Court of Appeals because of the importance of the constitutional question presented.

In the Kansas case the court was directly confronted with a situation where the schools were "equal" in externals such as buildings, transportation, resources, and faculty salaries.  In the other South Carolina and Virginia cases courts had found inequality of resources and ordered equalization, but did not order integration pending equalization.  In Delaware the court found inequality of resources and ordered integration with the right of the state to petition for relief from the order in the event the resources were in fact equalized.  In the District of Columbia the question of equalization was not raised, the attorneys instead opting for a frontal attack on the legal point only.

The four state cases were consolidated for appeal with the District of Columbia case being considered at the same time, but not consolidated due to the different issue.  They were later consolidated for consideration of the remedy.

Round 1 in the Supreme Court

The cases were argued before the court in 1952 before a split court.  Four were solidly in favor of overturning Plessy.  Chief Justice Vinson favored leaving the Plessy decision stand, particularly in light of more than 50 years of Congressional acquiescence in it. (Cass R. Sunstein, "Did Brown matter? On the fiftieth anniversary of the fabled desegregation case, not everyone is celebrating," The New Yorker p. 102 (May 3, 2004)). Two other judges were in favor of states rights or simply not in favor of overturning segregation and the final two were very conservative when asked to overturn long-standing precedent.  The court took the unusual act of setting the case for reargument the following term, in 1953.  As noted by Sunstein:  "In September of 1953, just before Brown was to be reargued, Vinson died of a heart attack, and everything changed.  'This is the first indication that I have ever had that there is a God,' [Justice] Frankfurter told a former law clerk."  President Eisenhower appointed Earl Warren as the next Chief Justice.

Round 2 in the Supreme Court

After reargument in 1953, the new Chief Justice was able to craft an opinion that came down from the court as a unanimous decision that in the field of education separate cannot be equal.  This decision sounded the death knell for Plessy's state-sanctioned separation as a constitutionally viable principle.  Justice Warren wrote for the court, "We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal." Thus the four state cases were decided on the basis of the Equal Protection Clause of the Fourteenth Amendment.

The companion case, but not yet consolidated with Brown, out of the District of Columbia, Bolling v. Sharpe, was decided at the same time, but in a separate opinion.  The court again unanimously agreed that separate but equal was unconstitutional.  This time it was held unconstitutional as a denial of the right of liberty under the Due Process clause of the Fifth Amendment.

The court wanted further argument on the remedy and consolidated Bolling with Brown and the other three cases for argument the following year on the remedy.

Round 3 in the Supreme Court

The court ordered desegregation of all schools "with all deliberate speed."  Thereupon followed decades of resistance in some areas of the country and the still ongoing debate about the meaning of Brown for matters such as affirmative action.

Enforcement of Brown

In 1832 the Supreme Court, under Chief Justice John Marshall, ruled that the Cherokee Indian's treaty with the United States was valid and binding on the United States and that it could not be unilaterally abrogated by state or Congressional legislation. Worcester v. Georgia, 31 U.S. 515 (1832). President Jackson's response was, "John Marshall has made his decision. Let him enforce it now if he can."  The non-enforcement of the Court's decision led to the Trail of Tears and relocation of Native Americans from east of the Mississippi River to reservations west of the Mississippi.

President Eisenhower took a different approach:  In 1957 he sent troops to Little Rock, Arkansas to enforce Brown

The next year, in 1958, the Supreme Court was confronted with assertions by states and state officials that they were not bound by Brown and that the federal courts had no power to reach them.  The Supreme Court ruled explicitly that states and state officials, including municipal officials and school boards, were indeed bound by Brown and that because of the Civil War Amendments, especially the Fourteenth Amendment, the states and state officials were under the jurisdiction of the federal courts for these issues.  Cooper v. Aaron, 358 U.S. 1 (1958).

But official disobedience to the law of the land continued in many parts of the south and in other segregated areas of the country.  Private schools were created to maintain segregation.  In Virginia a county shut down its schools entirely for five years rather than comply with integration. Griffin v. County School Board of Prince Edward County, 377 U.S. 218 (1964). In 1968 the Supreme Court was still needing to issue decisions that mandated the elimination of the vestiges of segregation "root and branch." Green v. County School Board of New Kent County (Va.), 391 U.S. 430 (1968). It was not until 14 years after the infamous "all deliberate speed" rhetoric of Brown II that the Supreme Court finally ruled that time had finally run out and compliance was overdue. In Alexander v. Holmes County Board of Education, 396 U.S. 19 (1969), the court held that "The obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools . . .."

In the 1970s resistance to court-ordered busing continued; school districts were gerrymandered to maintain segregation; and attempts to support private segregated schools continued.  The federal courts continued to play an active role in implementing the mandate to dismantle the vestiges of segregation. 

But at the same time, the reach of remedial action in schools was beginning to be limited by the court.  Integration was not the end in itself.  State-sanctioned segregation was prohibited, but proportional integration was not required. If schools were segregated because of uncoordinated private decisions about where to live, no provision of the constitution and no statute was violated.  Once desegregation had been achieved, resegregation through demographic change did not require constantly changing the compliance actions.

By the mid-1980s and continuing through the 1990s, school districts were starting to be relieved of court supervision of desegregation plans.  States did not need to force integration; they only needed not to engage in discrimination and segregation.

Written by:  Professor Steven D. Jamar , Howard University College of Law

Bibliography

Genna Rae McNeil, Groundwork:  Charles Hamilton Houston and the Struggle for Civil Rights (U. Pa. Press 1983)

Richard Kluger, Simple Justice:  The History of Brown v. Board of Education and Black America's Struggle for Equality (Vintage Books 1975)

Cass R. Sunstein, "Did Brown matter? On the fiftieth anniversary of the fabled desegregation case, not everyone is celebrating," The New Yorker p. 102 (May 3, 2004)

Jack Greenberg, Brown v. Board of Education: Witness to a Landmark Decision (Twelve Tables Press 2004)

Jack Greenberg, Crusaders in the Courts: Legal Battles of the Civil Rights Movement (Twelve Tables Press 2004)

Martin Luther King Jr., “The Rising Tide of Racial Consciousness,” I Have A Dream: Writings and Speeches That Changed the World, p. 65 (James M. Washington, ed. Harper San Francisco 1986)

Waldo E. Martin, Jr., Brown v. Board of Education:  A Brief History with Documents (Bedford/St. Martins 1998)

William L. Patterson, ed., We Charge Genocide:  The Historic Petition to the United Nations for Relief from a Crime of the United States Government against the Negro People (Civil Rights Congress 1951)

Mark V. Tushnet, Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936-1961 (Oxford University Press 1994)

Mark V. Tushnet, The NAACP's Legal Strategy against Segregated Education, 1925-1950 (U. North Carolina Press 1987)

Juan Williams, Thurgood Marshall: American Revolutionary (Three Rivers Press 1998)

 

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