Brown v. Board of Education I

The Court cannot "turn back the clock" to 1868 so...

because the Court cannot "turn the clock back" to 1868 (when Fourteenth Amendment was ratified) or 1896 (when Plessy was decided), but *it must look at public education as it exists now in 1954 in American life.*

The Court relied on extensive social science research ...

especially psychological studies — claiming to show that *black children in segregated schools preferred to play with white dolls rather than black dolls*. "The opinion was criticized for citing sociological and psychological studies to support the Court's conclusions rather than confining the analysis to legal arguments."

TEXT OF the equal protection clause of the 14th Amendment ...

"No state shall... deny to any person within its jurisdiction the equal protection of the laws"

Why was it important to Warren the decision be unanimous

"Realizing that the decisions would be controversial and generate resistance, especially in the South, Warren went to great pains to unite the Court. He believed that unanimous opinions, written by him, would encourage voluntary compliance. He was wrong, as was Marshall, who predicted that segregated schools would be eliminated within five years of the Brown decision."

Year, Petitioner, Plaintiff

(1954) Brown is petitioner | Board of Education is respondent Brown is plaintiff | Board of Education is defendant

Why did Linda Brown's parents want to fight her school placement.

- It was not about the quality of the all-black school, they were virtually equal by all measures (facilities, quality of teachers ext.) - but she lived in the white part of town and her parents considered the walk to the black school too far and dangerous.

recently many neighborhoods have

- Many experts currently argue that the nation's schools and neighborhoods have "resegregated" via de facto segregation. For example, as alluded to above, Detroit Public Schools are something like 95% black.

Recently many left-leaning leading scholars of racial justice ...

- Recently many left-leaning leading scholars of racial justice (e.g. Derrick Bell, Lani Guinier, etc.) have challenged Brown, saying that it helped liberal white Americans but hurt many African Americans. In other words, "separate but unequal" was replaced by "together but unequal." -

CASE FACTS

1. Kansas policy allowed cities with populations over 15,000 to segregate public schools. 2. Linda Brown was an eight-year-old black girl who lived in a white neighborhood near a whites-only elementary school. 3. Because of the state law, she had to go to an all-black school that was far away. 4. Her father, a pastor, sued the district on equal protection grounds. 5. The Court consolidated and considered five cases all challenging segregation in public education. Cases came from Delaware, South Carolina, Virginia, Washington D.C., and Topeka. (Brown was the Topeka case.)

How do we know the policies in question mandated racial segregation?

De Jure (Mandated) Segregation: The various de jure segregation policies being scrutinized in this case all mandated racial segregation in public education. Black students were prohibited from attending white schools in all of these school systems. *Therefore, these various policies do indeed mandate racial segregation in public education.*

RULE FOR governmental policies/actions that mandate racial segregation in public education.

If such a government policy or action *mandates racial segregation* in public education, Then the government policy or action is *unconstitutional and violates the equal protection clause in the 14th Amendment*.

Most of the case is devoted to...

Most of the case is devoted to the Court justifying why a new rule is warranted. The rule itself is of course very simple: in the realm of public education, "separate but equal is inherently unequal." But *the key is to understand the SCOPE of the rule (it only applies to de jure segregation, and it only applies to the realm of public education)* and the Court's reasoning of why it deems that this should be the new rule.

Why did the Court come up with a rule banning de jure racial segregation in public education?

Much of the decision is about the Court answering this. Looking at education as it *stands in 1954, the Court held that education is possibly the most important thing that government does*. "It is the very foundation of good citizenship." In light of how important education is, it must be available to everyone equally.

The scope of Brown

Note that the SCOPE of the Brown RULE only *extends to segregation in PUBLIC EDUCATION.* Brown did not end segregation in public or private transportation (e.g. trains, buses, etc.), private accommodations (e.g. hotels, motels), private restaurants, public bathrooms and water fountains, etc. Nor did it ban racial segregation in PRIVATE education (e.g. private religious schools, private boarding schools, etc.). *It only banned segregation in PUBLIC EDUCATION*. - Note that Brown *only applies to de jure segregation*. That is, it only applies to legally-mandated segregation. *Today, most segregation is de facto.* That is, due to "voluntary" "white flight" (a.k.a. "voluntary" residential segregation), Detroit proper is over 95% black, and many suburbs have very few African Americans. Brown doesn't force metropolitan districts to integrate across city/suburb boundaries. It doesn't force the white Detroit suburbs to integrate with the black Detroit public schools

WHAT APPROACH TO CIVIL RIGHTS DID THE COURT TAKE IN THIS CASE? DID THE COURT RULE IN FAVOR OF THE GOVERNMENT OR THE INDIVIDUAL?

Social Justice. The individual

The Court's first approach to "separate but equal" discrimination? & What does the 14th Amendment ban?

The Court begins by relying on the *DEAD CONSTITUTION* approach. Note that *the 14th Amendment bans DISCRIMINATION*. But it is not clear whether "Separate but Equal" really IS discrimination. If a city creates all-black schools with equal teachers, equal facilities, and other equal tangible factors, then isn't it equal? Can't, in theory, a school district create truly separate but truly equal schools?

Plessy v. Ferguson (1896)

The Court in Plessy created the rule that "separate but equal" is constitutional. In other words, the Court in Plessy ruled that de jure racial segregation is constitutional and does not violate the equal protection clause of the 14th Amendment. - *The decision does not explicitly overturn Plessy, but definitely cuts its legs out/guts it*. Bottom line: segregation in public education is an Equal Protection Clause violation.

Sweatt v. Painter (1950):

The Court in Sweatt struck down de jure racial segregation in cases in which the physical conditions of the segregated schools were *tangibly unequal.*

Sweatt RULE

The Court in the past already ruled that *"separate but unequal" — in terms of unequal facilities or other unequal tangible factors — violates the equal protection clause.* -in Brown the Court rules that even de jure segregation involving black schools that have *roughly equal facilities and other tangible factors violates the equal protection clause.* *The Court extended the Sweatt rule to ban not only de jure segregation in cases in which the school facilities or other tangible factors were clearly unequal, but also to de jure segregation in which the school facilities or other tangible factors were roughly equal.*

McLaurin v. Oklahoma State Regents (1950)

The Court in this case required that an African American "admitted to a white graduate school be treated like all other students" - *the Court "again resorted to intangible considerations,"* including "his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession." - *Separation of blacks generates "a feeling of inferiority," especially because the separation is state endorsed.*

Rule changing case - Reasoning for why the Court creates the Essential Rule that De Jure segregation is UNCONSTITUTIONAL

The Court is applying the *strict scrutiny* rule, which it created in the *Korematsu v. United States (1944) decision upholding Japanese internment camps*. - The Court finds no compelling objectives justifying racial segregation. Since the *Court finds no compelling objectives*, it concludes that in public education de jure segregation is inherently unconstitutional, *even when tangible conditions are substantially equal.*

Issue

The broad Kansas policy allowing cities with populations over 15,000 *to segregate public schools*, along with the broad policies in the four other locations listed above, as well as the specific policy by the Board of Education of Topeka, Kansas... ... violate... ...the equal protection clause in the 14th Amendment

Public Education:

The various school systems being considered here were all public school systems. They were not private schools. Hence, the clearly fall under the scope of "public education."

Racial Segregation:

This mandated segregation is of course racial segregation. Black students are prohibited from attending white schools in all of these school systems.

What was Browns immediate effect

Through the 1950s, Brown had *little impact on public education in the United States. Deep South states refused to comply* with Brown and continued Jim Crow segregation until 1965, when Congress passed the Civil Rights Act of 1964. Yet Brown was nonetheless a very significant case that "may have spurred the civil rights movement of the 1960s, which in turn generated federal action" (especially the abovementioned Civil Rights Act of 1964.

The Court's approach for coming up with "the Brown rule"

To come up with the Brown rule, the Court begins with the *ORIGINALISM approach of researching what the Framers of the 14th Amendment in 1868 intended* -- did these Framers intend the 14th Amendment to outlaw de jure segregation? - *The Court concludes that originalism is inconclusive*. The authors of the 14th Amendment also required white tourists and black tourists to view the House and Senate chambers in separate sections. *Many of the authors of the 14th amendment were not troubled by segregation, even as they were requiring "equal protection."* so they engaged in a "living Constitution" approach (a.k.a. "moral reading approach).

WHAT IS THE CASE ABOUT?

Whether five cases of de jure (a.k.a. legally-mandated) segregated public schooling violate the 14th Amendment Equal Protection Clause.

HOLDING & JUDGMENT

Yes, the various policies being evaluated do violate the equal protection clause of the 14th Amendment and are unconstitutional. - The Court rules in favor of Brown

How does the Court rule that "separate but equal" facilities still are unequal?

the Court focused on how such segregation is really still unequal. It's equal in terms of facilities, but *it's unequal in terms of INTANGIBLE FACTORS.* - Separation of blacks *generates "a feeling of inferiority," especially because the separation is state-endorsed*. This kind of effect, which was bad enough in the case of adults in law schools, is *even more pernicious when it involves children*