III. Brown

A. Changing Times

As the Nation moved into the twentieth century, legal and sociopolitical developments formed a changing backdrop against which the Supreme Court considered and decided equal protection challenges to the race-conscious conduct of governmental entities. Millions of African-Americans migrated from southern to northern states, and a number of blacks benefited from New Deal programs (some administered in a racially discriminatory fashion). In World War II, the United States fought “the Nazis and their hateful theories of racial superiority.” President Harry S. Truman (an opponent of interracial marriage ordered the integration of the armed forces. African-American soldiers returning home from the war refused to accept the label and limits of second-class citizenship.

As the United States battled “with Communist countries to win the hearts and minds of emerging third world peoples” in the aftermath of World War II, “[p]rogress on the American treatment of African Americans offered a way to deflect Soviet criticism and prevent Communist defections in decolonized nations in Asia and Africa.” Indeed, in its amicus brief to the Supreme Court in the Brown litigation, the U.S. Department of Justice emphasized the importance of addressing the foreign policy implications of racial discrimination in the United States:

It is in the context of the present world struggle between freedom and tyranny that the problem of racial discrimination must be viewed. The United States is trying to prove to the people of the world, of every nationality, race, and color, that a free democracy is the most civilized and most secure form of government yet devised by man. We must set an example for others by showing firm determination to remove existing flaws in our democracy.

The mid-twentieth century was also a time in which the Court invalidated separate-but-equal and racially discriminatory policies in the context of graduate school admissions. In two of those cases, the Court mentioned but did not reexamine Plessy. Plessy thus lived, and so did the separate-but-equal doctrine as applied to public schools.

B. Brown I

Plessy was reexamined by the Court in Brown v. Board of Education (Brown I), the seminal Warren Court case in which plaintiffs challenged the racial segregation of public school children in Kansas, South Carolina, Virginia, and Delaware. It is noteworthy that after the initial oral argument of the cases in 1952 and the Court's December 13, 1952, post-argument conference it was by no means clear that the Court would end the Plessy regime. Justice William O. Douglas believed that “if the cases were to be then decided the vote would be five to four in favor of the constitutionality of segregation in the public schools in the States.” Chief Justice Fred Vinson expressed his view that “the Plessy case was right.” Justice Felix Frankfurter, believing that there were five votes to reverse Plessy, convinced the Court to set the case for reargument. Prior to that reargument, and in what Jack Balkin calls one of the salient “contingencies of history,” Vinson had a heart attack and died and was replaced on the Court by President Dwight D. Eisenhower's appointee Earl Warren.

Thereafter, on May 17, 1954 (a day labeled “Black Monday” by segregationists), a unanimous Court issued its decision in an opinion by Chief Justice Warren. The Chief Justice initially focused on one of the questions the Court asked the parties to address in the reargument: “What evidence is there that the Congress which submitted and the State legislatures and conventions which ratified the Fourteenth Amendment contemplated or did not contemplate, understood or did not understand, that it would abolish segregation in public schools?” Warren opined that the “circumstances surrounding the adoption of the Fourteenth Amendment” were “inconclusive” and “not enough to resolve the problem with which we are faced.” Opining that “we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written,” Warren focused on 1954 and on “public education in the light of its full development and its present place in American life throughout the Nation.” He wrote that:

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.

Chief Justice Warren then asked and answered in the affirmative the question whether segregating children by race unconstitutionally deprived colored children of equal educational opportunities, even though the physical facilities and other tangible factors of segregated schools were “equal.” Referencing the Court's invalidation of segregated education in the professional school setting, he reasoned:

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.

 Chief Justice Warren opined, further, that the demeaning effect of separation by and because of race was “well stated” by a lower court finding in the Kansas case, which he quoted:

“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.”

Continuing to focus on 1954, Chief Justice Warren concluded that “[w]hatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected.” The “modern authority” language was accompanied by a footnote's citation to several social science studies, including the late Dr. Kenneth Clark's doll test and Gunnar Myrdal's An American Dilemma.

Having rejected (but not expressly overruled) Plessy and the Court's late nineteenth century approach to and application of the Equal Protection Clause, Brown I declared “that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” The plaintiffs thus succeeded in obtaining the Court's pronouncement that the challenged segregation did not pass constitutional muster. But they did not obtain an immediate cessation and remediation of what was now unconstitutional conduct. Rather than order the erasure of the subordinating color line separating black and white public school students, the Court set the cases for yet another argument, this one on the issue of the formulation of judicial decrees governing the admission of African-American children to public schools they had not been allowed to attend because of their race.

C. Brown II

The implementation of Brown I was a complicated matter. Plaintiffs' counsel, Thurgood Marshall, sought a specific date upon which school segregation would end, and U.S. Attorney General Herbert Brownell's brief to the Court requested that southern schools be required to develop desegregation plans within ninety days of the Court's Brown II decision.

But others were concerned, with good reason, that an immediate and robust desegregation mandate would be met by southern resistance and violence, by uncivil disobedience and blatant defiance of the Court's order. Justice Hugo Black feared that “people are going to die” and that “before the tree of liberalism could be renewed in the South a few candidates must water it with their blood.” In Black's view, the Court should “[w]rite a decree and quit . . . . The less we say, the better off we are.” Notwithstanding those concerns, Black, along with Justice Douglas, argued for an expeditious and not a gradual desegregation process. Justice Frankfurter urged that a specific date set by the Court would be arbitrary and would “alienate instead of enlist favorable or educable local sentiment.” Chief Justice Warren, “especially aware that the Court by itself could not do much to enforce a firm order,” believed that neither President Eisenhower nor the U.S. Congress would have supported a Court order setting a specific date for the formal end of racial segregation in public schools.

A compromise was reached: the Court would instruct the lower courts to order Kansas, South Carolina, Virginia, and Delaware (but not other states) to proceed, in language proposed by Justice Frankfurter, with “all deliberate speed.”

Accordingly, in its 1955 Brown II decision, a unanimous Court remanded the four state cases to the district courts so that local “public and private needs” could be assessed by those courts “guided by equitable principles.” The district courts were directed “to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.”

Described by scholars as oxymoronic and an “infamous remedial formula,” Brown II's “with all deliberate speed” instruction “gave local decision makers too much choice” and signaled to those who resented and were likely, if not sure, to resist Brown I that time and delay were on their side. (As Thurgood Marshall explained, “all deliberate speed” meant “S-L-O-W.” A district court judge charged with the interpretation and implementation of the “all deliberate speed” standard was now front and center in the Court-ordered desegregation project, and his “personal role [was] painfully obvious. If the judge did more than the bare minimum, he would be held unpleasantly accountable. Bold movement meant community opprobrium. Segregationists were always able to point to more indulgent judges elsewhere.” Subsequent events would reveal, as the Brown lawyer Robert Carter argued, that the Brown II remedial formula “was a grave mistake” and “sacrificed individual and immediate vindication of the newly discovered right to desegregated education in favor of a mass solution.”

D. Summary

Brown I and II were and continue to be the focus of a still intense debate over the meaning and application of the Equal Protection Clause when the state determines that race matters. The very same clause not violated by Louisiana's legally mandated separation of blacks and whites on railway cars was violated by the forced separation of black and white public school students. What explains, at least in part, these disparate results? The text of the Equal Protection Clause did not change. The times in which the Justices lived and the Court as an institution ruled in Plessy and Brown I had changed, as had the sociopolitical meanings of race in the interregnum between Plessy's acceptance (indeed, embrace and endorsement) of American apartheid and Brown I's repudiation of one aspect of that regime.

The Brown I Court's formal interment of the separate-but-equal doctrine as applied to elementary and secondary public schools was a welcome but too-long-in-coming repudiation of the manifestation of a theory of black inferiority hypothesized by white supremacists. At the time of its decision in 1954, the Court broke with Plessy's analysis and refused to constitutionalize traditional and entrenched understandings and norms permitting and requiring the exclusion of African-Americans from certain spaces and places. That exclusion, based on and grounded in white-supremacist ideology, subordinated persons on the basis of an individual's phenotype and bigoted notions of the need for separate and distinct black and white spheres. The Court thus spoke to and against the historical oppression of African-Americans “com[ing] down in apostolic succession from slavery” to modern times, as well as racial segregation's anti-black subordination consisting “not of mutual separation of whites and Negroes, but of one in-group enjoying full normal communal life and one out-group that is barred from this life and forced into an inferior life of its own.”