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Introduction
- University of Virginia Press
- Chapter
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On May 17, 1954, the U.S. Supreme Court ruled unanimously in Brown v. Board of Education of Topeka, Kansas—the lead case in a group of four consolidated state cases—that racial segregation in public schools violated the equal protection clause of the Fourteenth Amendment to the U.S. Constitution.1 The Court maintained that the separate-but-equal principle enunciated at the end of the nineteenth century in Plessy v. Ferguson was a contradiction in terms as applied to education.2 Justice Hugo Black’s admonition to his brethren during the Court’s deliberations in Brown—that rash action regarding enforcement would bring a “storm over this Court”—indicates that the justices understood that their behavior would be carefully scrutinized. In spite of the justices’ awareness of the sensitive nature of the case at hand, the rationale that they adopted for their desegregation order generated enormous controversy. Speaking for all of his brethren, Chief Justice Earl Warren made no pretense that the Court’s ruling rested on the intentions of the framers and ratifiers of the Fourteenth Amendment. The historical sources that were the focus of reargument of the case in 1953, he suggested, were, “at best, . . . inconclusive.” The chief justice followed this comment with the observation that “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,’” while “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,” he said, “cannot be determined with any degree of certainty.”3 Given the powerful historical defense of segregation that the lawyers for the respondents (i.e., the school boards) had presented to the Court at the rehearing, however, Warren’s claim regarding the indeterminacy of the framers’ intentions appeared rather disingenuous.4 Introduction 2 A Storm over This Court The Court based its holding in Brown on the empirical proposition that racial segregation in public schools “generates a feeling of inferiority [in black children] as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” For this reason, Warren stated, “separate educational facilities are inherently unequal.” “Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson,” he declared, “this finding is amply supported by modern authority.” At this point in the opinion, the chief justice made reference to social science studies that Thurgood Marshall and the lawyers of the NAACP Legal Defense and Educational Fund (LDF) introduced on behalf of the petitioners in the case.5 Given that this was the first time the Court had turned to modern social science evidence to invalidate governmental action—and given that counsel for the school boards had thoroughly critiqued the evidence on which the Court relied—the Court’s rationale appeared dubious even to those sympathetic to desegregation.6 Bolling v. Sharpe, a companion case to Brown that involved the public schools of the District of Columbia, was no less controversial. Since the Fourteenth Amendment applies only against the states, the Court held in Bolling that racial segregation in the District’s public schools violated the due process clause of the Fifth Amendment. Specifically, Warren contended in his opinion for the Court that the federal government failed to satisfy the requirement that a rational relationship exist between a legislative goal and the means chosen to effectuate that goal. The chief justice courted controversy by failing to explain his statement that “segregation in public education is not reasonably related to any proper governmental objective and thus . . . imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause.”7 Warren entirely ignored the primary argument that segregationists offered in support of the practice— that it provides for the welfare of blacks and whites alike by preserving racial harmony. Because of the sensitive nature of the issue that the Court addressed in Brown and Bolling, and because of the difficulty that Warren had in articulating a compelling legal basis for the Court’s holdings, the desegregation decisions were controversial in their day and for some time thereafter. Yet, in spite of the vulnerability of the arguments that Warren offered, Brown...