The Plessy and Brown Decisions:
In Plessy v. Ferguson, decided in 1896, the Supreme Court gave its approval to
the doctrine of “separate but equal.” (“Doctrine” is a term often used to refer to a set of
legal principles originating in case law.) Under this doctrine governments were allowed
to require segregation of racial minorities, despite language in the Constitution that
demands “equal protection of the law.” Unfortunately, Plessy v. Ferguson remained a
valid precedent until 1954.
Like many cases, Plessy v. Ferguson came to the Supreme Court from a state
supreme court. In 1890, the Louisiana state legislature passed a law requiring racial
segregation on railway cars. Homer Plessy, a man of mixed race, was arrested for
attempting to sit in a railway car assigned to whites. He argued that the law was
unconstitutional, asking the courts to exercise their power of judicial review and strike it
down. However, the Louisiana Supreme Court upheld the law, and Plessy filed an appeal
with the U.S. Supreme Court. (Technically, the case came to the Supreme Court on what
was then called a writ of error, today it would have come up on a writ of certiorari.)
A few technical notes about the case. John Ferguson was a criminal court judge
who was presiding over Plessy’s case. Plessy’s name comes first because he initiated the
appeal to the Supreme Court. Typically, therefore, the party who’s name comes first is
the one who lost at the level before the Supreme Court. The full legal citation for the
case is Plessy v. Ferguson, 163 U.S. 537 (1896) . That means the case was printed in
volume 163 of the official United States Reports, on page 537. Further numbers in
citations refer to other published versions of Supreme Court decisions. For example, 16
S.Ct. 1138 refers to the Supreme Court Reporter, which we have in our library.
Plessy lost his case in the Supreme Court by a vote of 7-1. (One member of the
Court did not participate for some reason.) Chief Justice Melville Fuller assigned Justice
Henry Brown the task of writing the majority opinion. Below is an extensive excerpt
from Brown’s opinion. As you read it, notice the legal claims advanced by Plessy and
how the court disposed of them. Pay particular attention to the narrow definition of legal
equality that Brown uses, and the many things it does not cover.
The decision in Plessy v. Ferguson was not unanimous. Despite having been a
slave owner himself, Kentuckian John Marshall Harlan wrote a vigorous, and now
famous, dissenting opinion.
PLESSY v. FERGUSON
163 U.S. 537; 41 L. Ed. 256; 16 S. Ct. 1138
May 18, 1896
Error to the Supreme Court of the State of Louisiana.
[Facts of the case: A Louisiana State law required segregation of the races on railway
cars. Homer Plessy was arrested for refusing to take a seat in the car assigned for his
race. In Court, Plessy made two arguments: (1)That the law was unconstitutional, and
(2)since he was 7/8 white, he was entitled to sit in the car for whites.]
MR. JUSTICE BROWN delivered the opinion of the court.
This case turns upon the constitutionality of an act of the General Assembly of the
State of Louisiana, passed in 1890, providing for separate railway carriages for the white
and colored races. Acts 1890, No. 111, p. 152.
The first section of the statute enacts "that all railway companies carrying
passengers in their coaches in this State, shall provide equal but separate
accommodations for the white, and colored races, by providing two or more passenger
coaches for each passenger train, or by dividing the passenger coaches by a partition so as
to secure separate accommodations: Provided, That this section shall not be construed to
apply to street railroads. No person or persons, shall be admitted to occupy seats in
coaches, other than, the ones, assigned, to them on account of the race they belong to."
***
The constitutionality of this act is attacked upon the ground that it conflicts both
with the Thirteenth Amendment of the Constitution, abolishing slavery, and the
Fourteenth Amendment, which prohibits certain restrictive legislation on the part of the
States.
***
1. That it does not conflict with the Thirteenth Amendment, which abolished
slavery and involuntary servitude, except as a punishment for crime, is too clear for
argument. Slavery implies involuntary servitude -- a state of bondage; the ownership of
mankind as a chattel, or at least the control of the labor and services of one man for the
benefit of another, and the absence of a legal right to the disposal of his own person,
property and services..."It would be running the slavery argument into the ground," said
Mr. Justice Bradley, "to make it apply to every act of discrimination which a person may
see fit to make as to the guests he will entertain, or as to the people he will take into his
coach or cab or car, or admit to his concert or theatre, or deal with in other matters of
intercourse or business."
A statute which implies merely a legal distinction between the white and colored
races -- a distinction which is founded in the color of the two races, and which must
always exist so long as white men are distinguished from the other race by color -- has
no tendency to destroy the legal equality of the two races, or reestablish a state of
involuntary servitude. Indeed, we do not understand that the Thirteenth Amendment is
strenuously relied upon by the plaintiff in error in this connection.
2. By the Fourteenth Amendment, all persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are made citizens of the United States and
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of the State wherein they reside; and the States are forbidden from making or enforcing
any law which shall abridge the privileges or immunities of citizens of the United States,
or shall deprive any person of life, liberty or property without due process of law, or
deny to any person within their jurisdiction the equal protection of the laws.
***
The object of the 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.
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 the exercise of their police power. The most common instance of this
is connected with the establishment of separate schools for white and colored children,
which has been held to be a valid exercise of the legislative power even by courts of
States where the political rights of the colored race have been longest and most earnestly
enforced.
***
The distinction between laws interfering with the political equality of the negro
and those requiring the separation of the two races in schools, theatres and railway
carriages has been frequently drawn by this court. Thus in Strauder v. West Virginia, 100
U.S. 303, it was held that a law of West Virginia limiting to white male persons, 21 years
of age and citizens of the State, the right to sit upon juries, was a discrimination which
implied a legal inferiority in civil society, which lessened the security of the right of the
colored race, and was a step toward reducing them to a condition of servility.
***
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. The argument
necessarily assumes that if, as has been more than once the case, and is not unlikely to be
so again, the colored race should become the dominant power in the state legislature, and
should enact a law in precisely similar terms, it would thereby relegate the white race to
an inferior position. We imagine that the white race, at least, would not acquiesce in this
assumption. The argument also assumes that social prejudices may be overcome by
legislation, and that equal rights cannot be secured to the negro except by an enforced
commingling of the two races. We cannot accept this proposition. If the two races are to
meet upon terms of social equality, it must be the result of natural affinities, a mutual
appreciation of each other's merits and a voluntary consent of individuals. As was said
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by the Court of Appeals of New York in People v. Gallagher, 93 N.Y. 438, 448, "this
end can neither be accomplished nor promoted by laws which conflict with the general
sentiment of the community upon whom they are designed to operate. When the
government, therefore, has secured to each of its citizens equal rights before the law and
equal opportunities for improvement and progress, it has accomplished the end for which
it was organized and performed all of the functions respecting social advantages with
which it is endowed." Legislation is powerless to eradicate racial instincts or to abolish
distinctions based upon physical differences, and the attempt to do so can only result in
accentuating the difficulties of the present situation. If the civil and political rights of
both races be equal one cannot be inferior to the other civilly or politically. If one race
be inferior to the other socially, the Constitution of the United States cannot put them
upon the same plane.
It is true that the question of the proportion of colored blood necessary to
constitute a colored person, as distinguished from a white person, is one upon which
there is a difference of opinion in the different States, some holding that any visible
admixture of black blood stamps the person as belonging to the colored race...others that
it depends upon the preponderance of blood...and still others that the predominance of
white blood must only be in the proportion of three fourths...But these are question to be
determined under the laws of each State and are not properly put in issue in this case.
Under the allegations of his petition it may undoubtedly become a question of importance
whether, under the laws of Louisiana, the petitioner belongs to the white or colored race.
The judgment of the court below is, therefore,
Affirmed.
MR. JUSTICE HARLAN dissenting.
In respect of civil rights, common to all citizens, the Constitution of the United
States does not, I think, permit any public authority to know the race of those entitled to
be protected in the enjoyment of such rights. Every true man has pride of race, and under
appropriate circumstances when the rights of others, his equals before the law, are not to
be affected, it is his privilege to express such pride and to take such action based upon it
as to him seems proper. But I deny that any legislative body or judicial tribunal may
have regard to the race of citizens when the civil rights of those citizens are involved.
Indeed, such legislation, as that here in question, is inconsistent not only with that
equality of rights which pertains to citizenship, National and State, but with the personal
liberty enjoyed by every one within the United States.
The Thirteenth Amendment does not permit the withholding or the deprivation of
any right necessarily inhering in freedom. It not only struck down the institution of
slavery as previously existing in the United States, but it prevents the imposition of any
burdens or disabilities that constitute badges of slavery or servitude. It decreed universal
civil freedom in this country. This court has so adjudged. But that amendment having
been found inadequate to the protection of the rights of those who had been in slavery, it
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was followed by the Fourteenth Amendment, which added greatly to the dignity and
glory of American citizenship, and to the security of personal liberty, by declaring that
"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," and that
"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." These two amendments, if enforced according to their true
intent and meaning, will protect all the civil rights that pertain to freedom and
citizenship...
These notable additions to the fundamental law were welcomed by the friends of
liberty throughout the world. They removed the race line from our governmental
systems... It was, consequently, adjudged that a state law that excluded citizens of the
colored race from juries, because of their race and however well qualified in other
respects to discharge the duties of jurymen, was repugnant to the Fourteenth Amendment.
Strauder v. West Virginia, 100 U.S. 303, 306, 307; Virginia v. Rives, 100 U.S. 313; Ex
parte Virginia,100 U.S. 339; Neal v. Delaware, 103 U.S. 370, 386; Bush v. Kentucky,
107 U.S. 110, 116.
***
It was said in argument that the statute of Louisiana does not discriminate against
either race, but prescribes a rule applicable alike to white and colored citizens. But this
argument does not meet the difficulty. Every one 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 by or assigned
to white persons. Railroad corporations of Louisiana did not make discrimination among
whites in the matter of accommodation for travelers. The thing to accomplish was,
under the guise of giving equal accommodation for whites and blacks, to compel the
latter to keep to themselves while travelling in railroad passenger coaches. No one would
be so wanting in candor as to assert the contrary. The fundamental objection, therefore,
to the statute is that it interferes with the personal freedom of citizens. "Personal liberty,"
it has been well said, "consists in the power of locomotion, of changing situation, or
removing one's person to whatsoever places one's own inclination may direct, without
imprisonment or restraint, unless by due course of law." 1 Bl. Com. *134. If a white
man and a black man choose to occupy the same public conveyance on a public highway,
it is their right to do so, and no government, proceeding alone on grounds of race, can
prevent it without infringing the personal liberty of each.
***
The white race deems itself to be the dominant race in this country. And so it is,
in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will
continue to be for all time, if it remains true to its great heritage and holds fast to the
principles of constitutional liberty. But in view of the Constitution, in the eye of the law,
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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. In respect of civil rights, all citizens are equal before the law. The humblest is
the peer of the most powerful. The law regards man as man, and takes no account of his
surroundings or of his color when his civil rights as guaranteed by the supreme law of the
land are involved. It is, therefore, to be regretted that this high tribunal, the final
expositor of the fundamental law of the land, has reached the conclusion that it is
competent for a State to regulate the enjoyment by citizens of their civil rights solely
upon the basis of race.
In my opinion, the judgment this day rendered will, in time, prove to be quite as
pernicious as the decision made by this tribunal in the Dred Scott case...Sixty millions of
whites are in no danger from the presence here of eight millions of blacks. 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. What can more certainly arouse race hate, what more
certainly create and perpetuate a feeling of distrust between these races, 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 coaches occupied by white citizens?
That, as all will admit, is the real meaning of such legislation as was enacted in
Louisiana.
***
If evils will result from the commingling of the two races upon public highways
established for the benefit of all, they will be infinitely less than those that will surely
come from state legislation regulating the enjoyment of civil rights upon the basis of
race. We boast of the freedom enjoyed by our people above all other peoples. But it is
difficult to reconcile that boast with a state of the law which, practically, puts the brand of
servitude and degradation upon a large class of our fellow-citizens, our equals before the
law. The thin disguise of "equal" accommodations for passengers in railroad coaches
will not mislead any one, nor atone for the wrong this day done.
***
For the reasons stated, I am constrained to withhold my assent from the opinion
and judgment of the majority.
MR. JUSTICE BREWER did not hear the argument or participate in the decision
of this case.
_______
The full name of the next case we will consider is Brown v. Board of Education of
Topeka Kansas. It is common to shorten the name of court cases, the shortest form being
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a reference to one of the parties (as in “the Brown case”). Oliver Brown was the father of
Linda, a child attending public schools in Topeka. Kansas state law authorized local
school boards to segregate schools on the basis of race. In 1951 the local chapter of the
National Association for the Advancement of Colored People (NAACP) persuaded
Brown, along with other parents, to bring a lawsuit in federal court claiming that the
segregation of the schools violated his constitutional rights. Brown lost his case when a
lower federal court applied the “separate but equal” doctrine established in Plessy and
other precedents.
In the Brown case, the Supreme Court voted unanimously to overrule the
precedents and reject the separate but equal doctrine. Historians now know that one
member of the Court, Stanley Reed of Kentucky, disagreed with the decision to overrule
Plessy. Because of the importance of the case and the controversy that it was sure to
provoke, Chief Justice Earl Warren asked Reed to refrain from casting a dissenting vote,
and Reed complied.
BROWN v. BOARD OF EDUCATION OF TOPEKA
347 U.S. 483; 74 S. Ct. 686; 98 L. Ed. 873
December 9, 1952, Argued
Reargued December 8, 1953.
May 17, 1954, Decided
Appeal From the United States District Court for the District of Kansas.
Together with No. 2, Briggs et al. v. Elliott et al., on appeal from the United States
District Court for the Eastern District of South Carolina, argued December 9-10, 1952,
reargued December 7-8, 1953; No. 4, Davis et al. v. County School Board of Prince
Edward County, Virginia, et al., on appeal from the United States District Court for the
Eastern District of Virginia, argued December 10, 1952, reargued December 7-8, 1953;
and No. 10, Gebhart et al. v. Belton et al., on certiorari to the Supreme Court of
Delaware, argued December 11, 1952, reargued December 9, 1953.
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
These cases come to us from the States of Kansas, South Carolina, Virginia, and
Delaware. They are premised on different facts and different local conditions, but a
common legal question justifies their consideration together in this consolidated opinion.
In each of the cases, minors of the Negro race, through their legal representatives,
seek the aid of the courts in obtaining admission to the public schools of their community
on a nonsegregated basis. In each instance, they had been denied admission to schools
attended by white children under laws requiring or permitting segregation according to
race. This segregation was alleged to deprive the plaintiffs of the equal protection of the
laws under the Fourteenth Amendment. In each of the cases other than the Delaware
case, a three-judge federal district court denied relief to the plaintiffs on the so-called
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"separate but equal" doctrine announced by this Court in Plessy v. Ferguson, 163 U.S.
537. Under that doctrine, equality of treatment is accorded when the races are provided
substantially equal facilities, even though these facilities be separate. In the Delaware
case, the Supreme Court of Delaware adhered to that doctrine, but ordered that the
plaintiffs be admitted to the white schools because of their superiority to the Negro
schools.
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.
Because of the obvious importance of the question presented, the Court took jurisdiction.
Argument was heard in the 1952 Term, and reargument was heard this Term on certain
questions propounded by the Court.
Reargument was largely devoted to the circumstances surrounding the adoption of
the Fourteenth Amendment in 1868. It covered exhaustively consideration of the
Amendment in Congress, ratification by the states, then existing practices in racial
segregation, and the views of proponents and opponents of the Amendment. This
discussion and our own investigation convince us that, although these sources cast some
light, it is not enough to resolve the problem with which we are faced. At best, they are
inconclusive. The most avid proponents of the post-War Amendments undoubtedly
intended them to remove all legal distinctions among "all persons born or naturalized in
the United States." Their opponents, just as certainly, were antagonistic to both the letter
and the spirit of the Amendments and wished them to have the most limited effect. What
others in Congress and the state legislatures had in mind cannot be determined with any
degree of certainty.
An additional reason for the inconclusive nature of the Amendment's history, with
respect to segregated schools, is the status of public education at that time. In the South,
the movement toward free common schools, supported by general taxation, had not yet
taken hold. Education of white children was largely in the hands of private groups.
Education of Negroes was almost nonexistent, and practically all of the race were
illiterate. In fact, any education of Negroes was forbidden by law in some states. Today,
in contrast, many Negroes have achieved outstanding success in the arts and sciences as
well as in the business and professional world. It is true that public school education at
the time of the Amendment had advanced further in the North, but the effect of the
Amendment on Northern States was generally ignored in the congressional debates.
Even in the North, the conditions of public education did not approximate those existing
today. The curriculum was usually rudimentary; ungraded schools were common in rural
areas; the school term was but three months a year in many states; and compulsory school
attendance was virtually unknown. As a consequence, it is not surprising that there
should be so little in the history of the Fourteenth Amendment relating to its intended
effect on public education.
In the first cases in this Court construing the Fourteenth Amendment, decided
shortly after its adoption, the Court interpreted it as proscribing all state-imposed
discriminations against the Negro race. The doctrine of "separate but equal" did not
8
make its appearance in this Court until 1896 in the case of Plessy v. Ferguson, supra,
involving not education but transportation. American courts have since labored with the
doctrine for over half a century. In this Court, there have been six cases involving the
"separate but equal" doctrine in the field of public education. In Cumming v. County
Board of Education, 175 U.S. 528, and Gong Lum v. Rice, 275 U.S. 78, the validity of the
doctrine itself was not challenged. In more recent cases, all on the graduate school level,
inequality was found in that specific benefits enjoyed by white students were denied to
Negro students of the same educational qualifications. Missouri ex rel. Gaines v.
Canada, 305 U.S. 337; Sipuel v. Oklahoma, 332 U.S. 631; Sweatt v. Painter, 339 U.S.
629; McLaurin v. Oklahoma State Regents, 339 U.S. 637. In none of these cases was it
necessary to re-examine the doctrine to grant relief to the Negro plaintiff. And in Sweatt
v. Painter, supra, the Court expressly reserved decision on the question whether Plessy v.
Ferguson should be held inapplicable to public education.
In the instant cases, that question is directly presented. Here, unlike Sweatt v.
Painter, there are findings below that the Negro and white schools involved have been
equalized, or are being equalized, with respect to buildings, curricula, qualifications and
salaries of teachers, and other "tangible" factors. Our decision, therefore, cannot turn on
merely a comparison of these 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.
In approaching this problem, we cannot turn the clock back to 1868 when the
Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We
must consider public education in the light of its full development and its present place in
American life throughout the Nation. Only in this way can it be determined if
segregation in public schools deprives these plaintiffs of the equal protection of the laws.
Today, education is perhaps the most important function of state and local
governments. Compulsory school attendance laws and the great expenditures for
education both demonstrate our recognition of the importance of education to our
democratic society. 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. Today it is a principal instrument in awakening the child to cultural values,
in preparing him for later professional training, and in helping him to adjust normally to
his environment. 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.
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.
9
In Sweatt v. Painter, supra, in finding that a segregated law school for Negroes
could not provide them equal educational opportunities, this Court relied in large part on
"those qualities which are incapable of objective measurement but which make for
greatness in a law school." In McLaurin v. Oklahoma State Regents, supra, the Court, in
requiring that a Negro admitted to a white graduate school be treated like all other
students, again resorted to intangible considerations: ". . . his ability to study, to engage
in discussions and exchange views with other students, and, in general, to learn his
profession." Such considerations apply with added force to children in grade and high
schools. 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 ever to be undone. The effect of this
separation on their educational opportunities was well stated by a finding in the Kansas
case by a court which nevertheless felt compelled to rule against the Negro plaintiffs:
"Segregation of white and colored children in public schools has a
detrimental effect upon the colored children. The impact is greater when it has
the sanction of the law; for the policy of separating the races is usually interpreted
as denoting the inferiority of the negro group. A sense of inferiority affects the
motivation of a child to learn. Segregation with the sanction of law, therefore, has
a tendency to [retard] the educational and mental development of negro children
and to deprive them of some of the benefits they would receive in a racial[ly]
integrated school system."
Whatever may have been the extent of psychological knowledge at the time of
Plessy v. Ferguson, this finding is amply supported by modern authority.11 Any language
in Plessy v. Ferguson contrary to this finding is rejected.
We conclude that in the field of public education the doctrine of "separate but
equal" has no place. Separate educational facilities are inherently unequal. Therefore,
we hold that the plaintiffs and others similarly situated for whom the actions have been
brought are, by reason of the segregation complained of, deprived of the equal protection
of the laws guaranteed by the Fourteenth Amendment…
It is so ordered.
11
K. B. Clark, Effect of Prejudice and Discrimination on Personality Development
(Midcentury White House Conference on Children and Youth, 1950); Witmer and
Kotinsky, Personality in the Making (1952), c. VI; Deutscher and Chein, The Psychological
Effects of Enforced Segregation: A Survey of Social Science Opinion, 26 J. Psychol. 259
(1948); Chein, What are the Psychological Effects of Segregation Under Conditions of
Equal Facilities?, 3 Int. J. Opinion and Attitude Res. 229 (1949); Brameld, Educational
Costs, in Discrimination and National Welfare (MacIver, ed., 1949), 44-48; Frazier, The
Negro in the United States (1949), 674-681. And see generally Myrdal, An American
Dilemma (1944).
10