Brown v. Board of Education

Brown v. Board of Education was actually a consolidated brief of five similar cases pulled from across the United States. Three of the cases came from areas outside the South: Kansas, Delaware, and the District of Columbia. While these states fell outside of the southern system of Jim Crow segregation, white supremacy was endemic even in places where it was not enforced by law. However, two of the cases—Clarendon County, South Carolina and Prince Edward County, Virginia—did come from the South. And in the South Carolina case, black residents made up 70 percent of the local population; prospects for an effective integration plan were not great since the majority of schools in the county were part of the seriously underfunded black school system.²

The Brown case was the culmination of decades of internal debate within the civil rights movement. Some prominent figures in the NAACP, like W. E. B. Du Bois and Zora Neale Hurston, had argued for the importance of bolstering independent black institutions rather than embracing full-​scale integrationism. While these views did not command majority support in the black community, they were a prominent minority. These individuals argued against the prudence of desegregation.³ “Race prejudice,” wrote Du Bois, “is such that most Negroes cannot receive proper education in white institutions.” He went on to say that,

Still, while public education was certainly separate for 11.5 million American school children in 1954, it was hardly equal. Public funding for black education was truly abysmal. The overwhelming majority of black students attended schools in the South. In 1940, public spending per black pupil averaged only 45 percent of that spent on white pupils and some states fell far below this average. In Alabama, Georgia, and South Carolina it was 33 percent. In Mississippi, it was barely 15 percent. Though these figures had recently improved due to public pressure campaigns, black pupils still received only 60 percent of that afforded to white pupils in what was a generally underfunded southern public school system.⁵

As legal historian Michael J. Klarman has pointed out, justices in the Brown decision refused to be bound to the original views of those who drafted the Fourteenth Amendment or by the court’s own precedents set in the late nineteenth century. The justices unanimously invalidated racial segregation in American public education. This unanimity, however, did not come without conflict. From the outset of the cases, which were first heard during the 1952 session, the justices balanced a wide array of considerations. The chief justice hearing the case had been Fred M. Vinson of Kentucky, who questioned whether the court had the right to address public school segregation when, in his view, “Congress has not declared there should be no segregation.”

Justices Hugo Black and Stanley F. Reed—from Alabama and Kentucky, respectively—seemed equally reluctant to overturn the status quo of Plessy. Even Justice Felix Frankfurter, who ruled against segregation in the District of Columbia in the companion case titled Bolling v. Sharpe (1954), struggled to find ground to overthrow it in the other state cases, recommending that all fives cases be reargued. Robert H. Jackson, a New Yorker, struggled to find constitutional grounds on which to overturn school segregation. Many of the problems these justices had revolved around the practical difficulties of desegregating schools in the South. Hugo Black suspected that a ruling against segregation would produce both violence from southerners and evasion from state and local governments.⁶ He was not wrong, as the next twenty years proved.

For other justices, it was obvious on its face that the Supreme Court must invalidate segregation. The answer was “very simple,” asserted William O. Douglas. “No classifications on the basis of race can be made. [The] 14th amendment prohibits racial classifications. So does [the] due process clause of the 5th.” Harold H. Burton, the lone Republican on the court, concurred. “With [the] 14th amendment, states do not have the choice,” he wrote in early deliberations. “Segregation violated equal protection.” Sherman Minton of Indiana acknowledged Chief Justice Vinson’s point that Congress had authorized segregation in the District of Columbia, but he still found the policy illegal.⁷

Unable to come to agreement and fearful of the effects a divided decision on such a volatile issue might bring, the court required the litigants to reargue their case in the 1953 session. This choice proved to be immensely consequential. In September 1953, Chief Justice Vinson unexpectedly died. Frankfurter declared the event “the first indication I have ever had that there is a God.” To replace Vinson, President Eisenhower selected Earl Warren of California. Upon rehearing the cases, Warren wasted little time in announcing his position to his fellow justices. He declared that the “separate but equal doctrine rests on [the] premise that the Negro race is inferior.” But in his opinion, the “argument of Negro counsel proves they are not inferior.” By focusing on a number of sociological arguments about the developmental effects of denying civil liberties to black children, Thurgood Marshall and the NAACP’s Legal Defense team effectively swayed Warren’s moral sentiments.

Warren’s addition to the court created a majority and even the previously dissenting justices, Frankfurter and Jackson, who had considerable criticisms of the legal basis for ending segregation, soon joined them. There is debate among legal scholars as to what exactly drew these reluctant justices into unanimity. Warren’s personal persuasion certainly played a role, but as legal scholar Michael J. Klarman has pointed out, while Frankfurter and Jackson were conflicted on the legal issues of the case, they were both confident in the political outcome they desired. Therefore, Klarman suggests, with the outcome already decided by the majority, the reluctant justices added weight to that outcome.⁸

The ruling in Brown was met with jubilation from civil rights advocates. The NAACP attorney for the case, Thurgood Marshall, was “so happy,” he said, that he felt “numb.” Harlem’s Amsterdam News asserted that “the Supreme Court decision Is the greatest victory for the Negro people since the Emancipation Proclamation (1863).” The Chicago Defender was convinced that “this means the beginning of the end of the dual society in American life.”⁹

For white opponents of desegregation, however, the ruling was met with what came to be known as “massive resistance.” Such resistance consisted of various forms of protest, obstruction, procedural chicanery, and outright violence. While desegregation in the border states and upper South tended to move relatively quickly, resistance in the Deep South persisted well into the 1970s. (And it wasn’t not limited to the South, as shown by mass anti-​integration protests in Boston and other northern cities.)

For libertarians, a decision like Brown v. Board of Education should be viewed as an effort to dismantle a federal infrastructure that had systematically deprived American citizens from equal protection under the law on the basis of racial animosities. Social discrimination had gained the force of law due to a white majority’s capture of the levers of legislative and judicial power in the American constitutional system; they had then used that power to bar African Americans and other minorities from equal protection despite the promise of the fourteenth amendment.

The Brown ruling also marked, as historian David Garrow has pointed out, “the advent of the ‘modern’ or present-​age Supreme Court” as a far more active and integral institution in American life and governance.¹⁰ By forcing conflicted justices in the minority to choose between a desired social outcome and prior legal precedent, this ruling inadvertently laid the groundwork for modern judicial activism in interpreting constitutional law. However, originalist legal scholars have also embraced the ruling as a reflection of the Fourteenth Amendment to the US Constitution, which would mean that the Plessy precedent is the deviation from original intent, not Brown.