Segregation and the Supreme Court

"One should never forget the immense moral pressure of such a great judgment as that just announced, and its capacity to persuade men of good will who have been doubting and hesitating"

It was a great day—Monday, the 17th of May, 1954. On that day the Supreme Court decided that the Constitution proscribes, anywhere in the United States, public schools in which Negro children and white children are kept separate because of their race. On that day the Court did justice to more than the children before it; the judgment will benefit all the people of the nation alike in the states where segregation has long since been given up, and in those where, at least to some, the Court's word was unwelcome.

To think of these school segregation decisions as marking a sudden unexpected turn would be a mistake. The trouble was old, and a change for the better has been long coming. The wrong to be righted began when the first slaves were landed in Jamestown in 1619. It had causes in old times when, in some places, free common schooling for white children was wretchedly poor and for Negroes was nonexistent. It continued through the days when even in northern states Negro children were forbidden to come to white schools. In 1847 a five-year-old colored child named Sarah Roberts was told by the public school authorities of Boston that she could not go to the nearest school because that was only for white children. Sarah was refused again the next year. Then her father turned to the courts. His case was argued by a youngish Boston lawyer, named Charles Sumner; but the Massachusetts Supreme Court in 1850 held that Boston could separate school children by race, and Sumner lost, and little Sarah Roberts was disappointed. Massachusetts has long since changed this law, and Sumner went on to great things. A bronze statue of him, seated as if in his chair in the United States Senate, faces me when I walk to work through Harvard Square. After the Supreme Court handed down its great judgment, I looked at the bronze figure and thought about Sarah Roberts.

The segregation decision has its roots in other history. There was Dred Scott's case in 1857 when Chief Justice Taney wrote that a Negro whose ancestors were sold as slaves could not become a member of the political community formed by the Constitution; could not become a citizen of one of the states and so have the privilege of suing in a Federal court. The old unhappy battles between 1861 and 1865 underlie this year's segregation cases. So does the Fourteenth Amendment, adopted in 1868:—

No State shall ... 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.

It is hard to say that the men who wrote those words intended to end separate schools for Negro and white children. In 1862, 1864, 1866, and 1874, the Congress enacted legislation which specifically provided for separation of the races in the schools of the District of Columbia. It is difficult to think that the Congressmen of that time proposed to require by constitutional amendment that the states do what Congress was unwilling to require of the District.

So there was no surprise when, in 1896, the Supreme Court declared the doctrine of "separate but equal." A man named Plessy, one-eighth Negro, was prosecuted in the Louisiana courts for the offense of riding in a white railroad coach on a journey in that state. The Supreme Court of the United States, to which he finally brought his case, held that so long as the state required that facilities afforded Negroes be equal to those for whites, the Fourteenth Amendment did not forbid compulsory separation. "Separate but equal" has been plaguing us ever since.

The Court was not unanimous in Plessy v. Ferguson. Associate Justice John Marshall Harlan of Kentucky, onetime colonel of a Union regiment, wrote in dissent. He spoke not only of the Fourteenth Amendment but of the Thirteenth, which ended slavery and was meant, he said, to end all that went with slavery, including Plessy's separateness. But this was not the judgment of the Court. Plessy with his railroad case is troublesome enough; but cases involving little children, whose parents have to tell them that by birth they are different; that they are so born that they can never have what other children can have—these are the cases that hurt. In 1927 the Supreme Court judged the rights of a nine-year-old child named Martha Lum, whose ancestors were Chinese. Martha had gone to a consolidated school in Mississippi on the opening day, but at noon was told she could not come again. Under the Mississippi constitution separate schools were mandatory for children of white and "colored" races, and Martha was "colored." Her father, Gong Lum, took her case to the Supreme Court of the United States, but in an opinion by Chief Justice Taft, based on the Roberts, Plessy, and like precedents, the Court unanimously decided that Mississippi had power to segregate schools if she saw fit.


But new ideas were stirring in the land. A younger generation of people who heard of cases like Martha Lum's were saddened, and wished the law might be otherwise. By 1950 "separate but equal" had begun to crack. In that year the Supreme Court passed on the case of a Negro named Heman Sweatt, qualified, except for his race, to enter the University of Texas Law School. State law restricted that university to white students. Sweatt applied to a Texas court for a mandamus order to compel his admission. While the case was pending, Texas set up a separate law school for Negroes and relied on "separate but equal" to justify excluding Sweatt from the white school. But on June 5, 1950, in a unanimous opinion of the Supreme Court written by Chief Justice Vinson, the Texas courts were reversed and Heman Sweatt was ordered admitted to the University of Texas. The Court declined to re-examine "separate but equal," for the law school to which Texas was willing to admit Sweatt was not, the Court found, equal to that for whites. The Negro school, said Chief Justice Vinson, excluded the 85 per cent of the population of Texas from which come most of the lawyers, witnesses, jurors, judges, and officials with whom a Texas lawyer is inevitably in contact.

With such a substantial and significant segment of society excluded, we cannot conclude that the education offered petitioner is substantially equal to that which he would receive if admitted to the University of Texas Law School.

On the same day the Supreme Court decided a more difficult case. This involved a man named McLaurin, a Negro who wished to become a Doctor of Education. He had the necessary academic standing and was admitted to the University of Oklahoma. But the Oklahoma legislature required that instruction be given to Negroes "upon a segregated basis," and McLaurin was given a desk in an anteroom adjoining the white classroom, was given a separate place to sit in the library, and was told to eat at a different time in the cafeteria. He applied to the United States District Court in Oklahoma for an order modifying these conditions, the relief was refused him, and ultimately he brought his case to the Supreme Court. It was a puzzling case. McLaurin was eating the same food, studying in the same library, and listening to the same instructors at the same time as white students. But the unanimous Court, in another opinion by Chief Justice Vinson, held that the restrictions imposed on McLaurin impaired "his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession." This, the Court said, produced inequality and deprived him of the equal protection of the laws.

The score in 1950 was not entirely in favor of Negro students. There was one important setback in that year, not in the Supreme Court of the United States, but in the Court of Appeals for the District of Columbia. The District of Columbia stands in a different constitutional position from the states. There is no constitutional requirement, in so many words, that the United States treat people equally. The Fifth Amendment has, however, since 1791 forbidden the United States to deprive any person of life, liberty, or property without due process of law; so, arguably, segregated public education is forbidden as much by the Fifth Amendment as by the Fourteenth. However, when a Negro girl named Marguerite Carr attempted to obtain from the United States District Court in the District of Columbia an order permitting her to attend a junior high school where there were vacancies while the colored school she was attending was overcrowded and operating on a two-shift schedule, the District Court refused the order she sought; and the Federal Court of Appeals, in 1950, by a vote of two justices to one, affirmed that judgment. The Court relied on the fact that the Congress had enacted the legislation of 1862, 1864, 1866, and 1874 providing for segregated schools in the District, and so came to the conclusion that neither the people who drafted the first ten amendments in 1789 nor those who drafted the Fourteenth Amendment in 1866 meant to exclude the Congress from legislatively segregating the races.

The five school cases that in May, 1954, ended "separate but equal" arose in four states—South Carolina, Virginia, Delaware, and Kansas—and in the District of Columbia. In South Carolina, Virginia, and Kansas, the plaintiff Negro children had been unsuccessful, although in Kansas, pending the litigation, the school authorities had voluntarily decided to end segregation in the schools as rapidly as it might be accomplished. In Delaware, because the state courts found the Negro school unequal, the plaintiff's child was admitted to the white school on the ground that even the old rule of Plessy v. Ferguson was not satisfied if the accommodations furnished were both separate and unequal. But the Delaware child remained under the threat of renewed segregation in case Delaware should bring the Negro schools up to the white standard.

The fifth case, from the District of Columbia, was substantially similar to that of Marguerite Carr. As in Marguerite's case, the Court of Appeals of the District had ruled against the Negro child. Taken together the cases had an immense sweep; they affected twenty-one states and at least eleven and a half million school children. They touched some of the strongest emotions and deepest antagonisms that in the past have divided the people of this country.

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