BROWN et al. v. BOARD OF EDUCATION OF TOPEKA et al.
SUPREME COURT OF THE UNITED STATES
347 U.S. 483; 74 S. Ct. 686; 98 L. Ed. 873
May 17, 1954, Decided
SEMINAR - MAY 6, 2004
To Win Equality By Law: The Courts As Catalysts For Social Change
Sponsored By:
New Jersey City University
Hudson Vicinage Advisory Committee On Minority Concerns
Hudson County Bar Association
New Jersey Bar Foundation
Remarks By
Anne T. Sulton, Ph.D., J.D.
Attorney At Law
Licensed In Wisconsin And Colorado
Litigating Complex Cases In State And Federal Trial And Appellate Courts Since 1985
Sulton Law Offices
E-Mail Address: annesulton@comcast.net
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Introduction:
This landmark decision addresses a similar question presented by five cases. The question is: "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?"
According to the NAACP Legal Defense Fund, the attorneys for the plaintiffs
in these crucially important cases were: Thurgood Marshall, Director-Counsel,
NAACP Legal Defense and Educational Fund, Inc.; Harold Boulware - Briggs v.
Elliott (South Carolina); Louis L. Redding - Gebhart v. Belton (Delaware); Robert
L. Carter - Brown v. Board of Education of Topeka (Kansas); Charles S. Scott
- Brown v. Board of Education of Topeka (Kansas); Oliver M. Hill - Davis v.
County School Board of Prince Edward County (Virginia); Spottswood W. Robinson,
III - Davis v. County School Board of Prince Edward County (Virginia); Jack
Greenberg - Gebhart v. Belton (Delaware); James M. Nabrit, Jr. - Bolling v.
Sharpe (District of Columbia); George E. C. Hayes - Bolling v. Sharpe (District
of Columbia). Serving in "of counsel" positions, were lawyers Charles
L. Black, Jr., Elwood H. Chisolm, William T. Coleman, Jr., Charles T. Duncan,
George E.C. Hayes, Loren Miller, William R. Ming, Jr., Constance Baker Motley,
David E. Pinsky, Frank D. Reeves, John Scott, and Jack B. Weinstein.
In answering yes to the question presented by these cases, the United States Supreme Court found:
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.
History:
Although these cases were argued in 1952 and 1953, the groundwork for the landmark decision in 1954 was done during the previous two decades by a host of civil rights advocates. Among the most notable of these advocates is Charles Hamilton Houston.
Charles Hamilton Houston
In 1935, Houston helped establish the National Association for the Advancement of Colored People's legal department. He also served as dean of Howard University's Law School. Houston appointed Thurgood Marshall to serve as one of his assistants.
Houston, Marshall and other lawyers working with the NAACP filed a series of lawsuits, including those challenging unequal practices in higher education.
Houston died in 1950. However, Marshall and other civil rights lawyers continued to build upon the work of Houston and other NAACP lawyers. Many lawsuits were filed, including those in the cases challenging segregationist educational practices written into law.
The culmination of decades of work is the historic United States Supreme Court decision, in what now is known and celebrated as the 1954 Brown v. Board of Education case.
The NAACP lawyers' bright smiles reflected their excitement at winning such a huge legal victory. However, their jubilation was not shared by all. This case was hard fought by both sides.
Among those deeply disappointed by the Court's decision was the editor of the Jackson, Mississippi Daily News. According to the Jackson Advocate Newspaper [February 26, 2004 edition], that writer entitled his May 18, 1954 editorial "Bloodstains on White Marble Steps." That editorial claimed:
Human blood may stain Southern soil in many places because of this decision…White and Negro children in the same schools will lead to miscegenation. Miscegenation leads to mixed marriages and mixed marriages lead to mongrelization of the human race.
The Jackson Advocate Newspaper [February 26, 2004 edition] also reports the University of Virginia's May 18, 1954 Cavalier Daily Newspaper stated:
We feel that the people of the South are justified in their bitterness concerning this decision. To many people this decision is contrary to a way of life and violates the way in which they have thought since 1619.
Clearly, the decision was an important statement about what the United States Constitution guarantees. But this statement alone did not ensure equal educational opportunity or de-segregation of public schools.
Where We Went From There:
A half century has passed since this landmark decision. But resources available for public education remain unevenly distributed, in part, due to complex funding formulas, some of which are based upon local property taxes.
Public schools, particularly in densely populated urban areas, remain virtually segregated, with many schools having far more than half of their students of one race or another. Some schools still are nearly all black or nearly all white or largely Latino. Housing patterns, in part, help explain these concentrations.
Experiments with school busing, magnet
schools, and charter schools have helped de-segregate some public schools. School
vouchers, a/k/a school choice programs, now threaten to obliterate these small
gains.
And now we speak of fixing recently proposed, yet un- or under-funded "no
child left behind" strategies. According to an April 30, 2004 press release
by the Children's Defense Fund:
Some of the largest school districts in the country will be subjected to significant shortfalls in the 2005-2006 school year: Los Angeles, for example, will suffer a $294 million shortfall from what it was promised under NCLB. In New York, the funding gap will be $649 million; in Houston, $78 million; in Seattle, $8 million; and, in Detroit, $119 million. The President's proposed budget for St. Louis, Missouri, would underfund the children of the city by $23 million. Dayton, Ohio's shortfall will total $9 million. Minneapolis will be underfunded by $15 million. Its twin city, St. Paul, will suffer a shortfall of $13 million from promised funds under the federal program. The Bush Administration's chronic underfunding of NCLB threatens the education of millions of American children and undermines our public school system. By denying schools the promised funding they need to hire and retain high quality teachers, expand access to after-school programs and improve their curricula, the Administration deprives students of the tools they need for advanced academic achievement and a successful transition to adulthood.
Where We Go From Here:
The present challenge is making certain the principles articulated in the 1954 decision come to life. The 1954 decision suggests that an equal floor must be provided. However, as NAACP President and CEO Kwiesi Mfume told me, during an exclusive interview for the Jackson Advocate in January 2004, "This floor is very wobbly and crumbling."
Perhaps now is the time to think in terms of creating an equal ceiling. An equal ceiling would require all public schools to provide the exact same educational resources to all public school students. Considering this approach would be helpful to address issues of race and issues of class. Until we address both race and class issues, the promise of Brown will remain unfulfilled.
Too frequently, rural public schools have too few resources to provide adequate educational opportunities for their students. The schools along the back roads of America frequently have fewer computers and books than those located in America's inner cities.
Our nation's work to provide equal educational opportunities must not stop until the white child in the Appalachian Mountains has the same resources as the Latino child in Los Angeles' barrios, and as the African American child in Jackson, and they all have the same resources as the children living in Denver's affluent suburbs. Our work must not stop until all public school students, of every ethnic group and economic status, have the same resources - an EQUAL educational opportunity as guaranteed by the United States Constitution.
The Decision:
Many people talk about the importance of the 1954 Brown case. However, too few have actually read the Court's decision. Following is the text of the Court's decision [notations are excluded]. The decision in its entirety can be found at 347 U.S. 483; 74 S. Ct. 686; and 98 L. Ed. 873.
Earl Warren
The decision was delivered by the Chief Justiceof the United States Supreme Court, Earl Warren.
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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 "separate but equal" doctrine announced by this Court in Plessy v. Fergson, 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 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 reexamine 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.
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. 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. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment.
Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity. On reargument, the consideration of appropriate relief was necessarily subordinated to the primary question -- the constitutionality of segregation in public education. We have now announced that such segregation is a denial of the equal protection of the laws. In order that we may have the full assistance of the parties in formulating decrees, the cases will be restored to the docket, and the parties are requested to present further argument on Questions 4 and 5 previously propounded by the Court for the reargument this Term The Attorney General of the United States is again invited to participate. The Attorneys General of the states requiring or permitting segregation in public education will also be permitted to appear as amici curiae upon request to do so by September 15, 1954, and submission of briefs by October 1, 1954.
It is so ordered.
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