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Brown v. Board of Education

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Brown v. Board of Education
Seal of the United States Supreme Court
Argued December 9, 1952
Reargued December 8, 1953
Decided May 17, 1954
Full case nameOliver Brown, et al. v. Board of Education of Topeka, et al.
Citations347 U.S. 483 (more)
74 S. Ct. 686; 98 L. Ed. 873; 1954 U.S. LEXIS 2094; 53 Ohio Op. 326; 38 A.L.R.2d 1180
DecisionOpinion
Case history
PriorJudgment for defendants, 98 F. Supp. 797 (D. Kan. 1951); probable jurisdiction noted, 344 U.S. 1 (1952).
SubsequentJudgment on relief, 349 U.S. 294 (1955) (Brown II); on remand, 139 F. Supp. 468 (D. Kan. 1955); motion to intervene granted, 84 F.R.D. 383 (D. Kan. 1979); judgment for defendants, 671 F. Supp. 1290 (D. Kan. 1987); reversed, 892 F.2d 851 (10th Cir. 1989); vacated, 503 U.S. 978 (1992) (Brown III); judgment reinstated, 978 F.2d 585 (10th Cir. 1992); judgment for defendants, 56 F. Supp. 2d 1212 (D. Kan. 1999)
Holding
Segregation of students in public schools violates the Equal Protection Clause of the Fourteenth Amendment, because separate facilities are inherently unequal. District Court of Kansas reversed.
Court membership
Chief Justice
Earl Warren
Associate Justices
Hugo Black · Stanley F. Reed
Felix Frankfurter · William O. Douglas
Robert H. Jackson · Harold H. Burton
Tom C. Clark · Sherman Minton
Case opinion
MajorityWarren, joined by unanimous
Laws applied
U.S. Const. amend. XIV
This case overturned a previous ruling or rulings
(partial) Plessy v. Ferguson (1896)
Cumming v. Richmond County Board of Education (1899)
Berea College v. Kentucky (1908)

Brown v. Board of Education of Topeka, 347 U.S. 483 (1954),[1] was a landmark decision of the U.S. Supreme Court in which the Court ruled that American state laws establishing racial segregation in public schools are unconstitutional, even if the segregated schools are otherwise equal in quality. Handed down on May 17, 1954, the Court's unanimous (9–0) decision stated that "separate educational facilities are inherently unequal," and therefore violate the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. However, the decision's 14 pages did not spell out any sort of method for ending racial segregation in schools, and the Court's second decision in Brown II (349 U.S. 294 (1955)) only ordered states to desegregate "with all deliberate speed".

The decision was made in a case from Topeka, Kansas, where the public elementary schools had been segregated by race since the late 19th century. In 1951, the Topeka public school district refused to enroll the daughter of local black resident Oliver Brown at the school closest to their home, instead requiring her to ride a bus to a segregated black elementary school further away. The Browns and twelve other local black families in similar situations then filed a class action lawsuit in U.S. federal court against the Topeka Board of Education, alleging that its segregation policy was unconstitutional. A three-judge panel of the U.S. District Court for the District of Kansas rendered a verdict against the Browns, relying on the precedent of the Supreme Court's 1896 decision in Plessy v. Ferguson, in which the Court had ruled that racial segregation was not in itself a violation of the Fourteenth Amendment's Equal Protection Clause if the facilities in question were otherwise equal, a doctrine that had come to be known as "separate but equal". The Browns, then represented by NAACP chief counsel Thurgood Marshall, appealed to the Supreme Court, which agreed to hear the case.

The Court's decision in Brown partially overruled Plessy v. Ferguson by declaring that the "separate but equal" notion was unconstitutional for American public schools and educational facilities.[note 1] It paved the way for integration and was a major victory of the Civil Rights Movement,[3] and a model for many future impact litigation cases.[4] In the American South, especially the "Deep South", where racial segregation was deeply entrenched, the reaction to Brown among most white people was "noisy and stubborn".[5] Many Southern governmental and political leaders embraced a plan known as "Massive Resistance", created by Virginia Senator Harry F. Byrd, in order to frustrate attempts to force them to de-segregate their school systems. Four years later, in the case of Cooper v. Aaron, the Court reaffirmed its ruling in Brown, and explicitly stated that state officials and legislators had no power to nullify its ruling.

Background

Educational segregation in the US prior to Brown

For much of the sixty years preceding the Brown case, race relations in the United States had been dominated by racial segregation. This policy had been endorsed in 1896 by the United States Supreme Court case of Plessy v. Ferguson, which held that as long as the separate facilities for the separate races were equal, segregation did not violate the Fourteenth Amendment ("no State shall ... deny to any person ... the equal protection of the laws").[6]

The plaintiffs in Brown asserted that this system of racial separation, while masquerading as providing separate but equal treatment of both white and black Americans, instead perpetuated inferior accommodations, services, and treatment for black Americans. Racial segregation in education varied widely from the 17 states that required racial segregation to the 16 in which it was prohibited. Brown was influenced by UNESCO's 1950 Statement, signed by a wide variety of internationally renowned scholars, titled The Race Question.[7] This declaration denounced previous attempts at scientifically justifying racism as well as morally condemning racism. Another work that the Supreme Court cited was Gunnar Myrdal's An American Dilemma: The Negro Problem and Modern Democracy (1944).[8] Myrdal had been a signatory of the UNESCO declaration.

The United States and the Soviet Union were both at the height of the Cold War during this time, and U.S. officials, including Supreme Court Justices, were highly aware of the harm that segregation and racism played on America's international image. When Justice William O. Douglas traveled to India in 1950, the first question he was asked was, "Why does America tolerate the lynching of Negroes?" Douglas later wrote that he had learned from his travels that "the attitude of the United States toward its colored minorities is a powerful factor in our relations with India." Chief Justice Earl Warren, nominated to the Supreme Court by President Eisenhower, echoed Douglas's concerns in a 1954 speech to the American Bar Association, proclaiming that "Our American system like all others is on trial both at home and abroad, ... the extent to which we maintain the spirit of our constitution with its Bill of Rights, will in the long run do more to make it both secure and the object of adulation than the number of hydrogen bombs we stockpile."[9][10]

District court case

Filing and arguments

Education in the United States
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In 1951, a class action suit was filed against the Board of Education of the City of Topeka, Kansas in the United States District Court for the District of Kansas. The plaintiffs were thirteen Topeka parents on behalf of their 20 children.[11]

The suit called for the school district to reverse its policy of racial segregation. The Topeka Board of Education operated separate elementary schools due to a 1879 Kansas law, which permitted (but did not require) districts to maintain separate elementary school facilities for black and white students in 12 communities with populations over 15,000. The plaintiffs had been recruited by the leadership of the Topeka NAACP. Notable among the Topeka NAACP leaders were the chairman McKinley Burnett; Charles Scott, one of three serving as legal counsel for the chapter; and Lucinda Todd.

The named plaintiff, Oliver Brown, was a parent, a welder in the shops of the Santa Fe Railroad, an assistant pastor at his local church, and an African American.[12] He was convinced to join the lawsuit by Scott, a childhood friend. Brown's daughter Linda Carol Brown, a third grader, had to walk six blocks to her school bus stop to ride to Monroe Elementary, her segregated black school one mile (1.6 km) away, while Sumner Elementary, a white school, was seven blocks from her house.[13][14]

As directed by the NAACP leadership, the parents each attempted to enroll their children in the closest neighborhood school in the fall of 1951. They were each refused enrollment and directed to the segregated schools.

The case "Oliver Brown et al. v. The Board of Education of Topeka, Kansas" was named after Oliver Brown as a legal strategy to have a man at the head of the roster. The lawyers, and the National Chapter of the NAACP, also felt that having Mr. Brown at the head of the roster would be better received by the U.S. Supreme Court Justices. The 13 plaintiffs were: Oliver Brown, Darlene Brown, Lena Carper, Sadie Emmanuel, Marguerite Emerson, Shirley Fleming, Zelma Henderson, Shirley Hodison, Maude Lawton, Alma Lewis, Iona Richardson, and Lucinda Todd.[15][16] The last surviving plaintiff, Zelma Henderson, died in Topeka, on May 20, 2008, at age 88.[17][18]

The District Court ruled in favor of the Board of Education, citing the U.S. Supreme Court precedent set in Plessy v. Ferguson, 163 U.S. 537 (1896), which had upheld a state law requiring "separate but equal" segregated facilities for blacks and whites in railway cars.[19] The three-judge District Court panel found that segregation in public education has a detrimental effect on negro children, but denied relief on the ground that the negro and white schools in Topeka were substantially equal with respect to buildings, transportation, curricula, and educational qualifications of teachers.[20]

Supreme Court arguments

The case of Brown v. Board of Education as heard before the Supreme Court combined five cases: Brown itself, Briggs v. Elliott (filed in South Carolina), Davis v. County School Board of Prince Edward County (filed in Virginia), Gebhart v. Belton (filed in Delaware), and Bolling v. Sharpe (filed in Washington, D.C.).

All were NAACP-sponsored cases. The Davis case, the only case of the five originating from a student protest, began when 16-year-old Barbara Rose Johns organized and led a 450-student walkout of Moton High School.[21] The Gebhart case was the only one where a trial court, affirmed by the Delaware Supreme Court, found that discrimination was unlawful; in all the other cases the plaintiffs had lost as the original courts had found discrimination to be lawful.

The Kansas case was unique among the group in that there was no contention of gross inferiority of the segregated schools' physical plant, curriculum, or staff. The district court found substantial equality as to all such factors. The lower court, in its opinion, noted that, in Topeka, "the physical facilities, the curricula, courses of study, qualification and quality of teachers, as well as other educational facilities in the two sets of schools [were] comparable."[22] The lower court observed that "colored children in many instances are required to travel much greater distances than they would be required to travel could they attend a white school" but also noted that the school district "transports colored children to and from school free of charge" and that "no such service [was] provided to white children."[22]

In the Delaware case the district court judge in Gebhart ordered that the black students be admitted to the white high school due to the substantial harm of segregation and the differences that made the separate schools unequal.

The NAACP's chief counsel, Thurgood Marshall—who was later appointed to the U.S. Supreme Court in 1967—argued the case before the Supreme Court for the plaintiffs. Assistant attorney general Paul Wilson—later distinguished emeritus professor of law at the University of Kansas—conducted the state's ambivalent defense in his first appellate argument.

In December 1952, the Justice Department filed a friend of the court brief in the case. The brief was unusual in its heavy emphasis on foreign-policy considerations of the Truman administration in a case ostensibly about domestic issues. Of the seven pages covering "the interest of the United States," five focused on the way school segregation hurt the United States in the Cold War competition for the friendship and allegiance of non-white peoples in countries then gaining independence from colonial rule. Attorney General James P. McGranery noted that

The existence of discrimination against minority groups in the United States has an adverse effect upon our relations with other countries. Racial discrimination furnishes grist for the Communist propaganda mills.[23]

The brief also quoted a letter by Secretary of State Dean Acheson lamenting that

The United States is under constant attack in the foreign press, over the foreign radio, and in such international bodies as the United Nations because of various practices of discrimination in this country.[24]

British barrister and parliamentarian Anthony Lester has written that "Although the Court's opinion in Brown made no reference to these considerations of foreign policy, there is no doubt that they significantly influenced the decision."[24]

Consensus building

The members of the U.S. Supreme Court that on May 17, 1954, ruled unanimously that racial segregation in public schools is unconstitutional.

In spring 1953, the Court heard the case but was unable to decide the issue and asked to rehear the case in fall 1953, with special attention to whether the Fourteenth Amendment's Equal Protection Clause prohibited the operation of separate public schools for whites and blacks.[25]

The Court reargued the case at the behest of Associate Justice Felix Frankfurter, who used reargument as a stalling tactic, to allow the Court to gather a consensus around a Brown opinion that would outlaw segregation. The justices in support of desegregation spent much effort convincing those who initially intended to dissent to join a unanimous opinion. Although the legal effect would be same for a majority rather than unanimous decision, it was felt that dissent could be used by segregation supporters as a legitimizing counter-argument.

Conference notes and draft decisions illustrate the division of opinions before the decision was issued.[26] Justices Douglas, Black, Burton, and Minton were predisposed to overturn Plessy.[26] Fred M. Vinson noted that Congress had not issued desegregation legislation; Stanley F. Reed discussed incomplete cultural assimilation and states' rights and was inclined to the view that segregation worked to the benefit of the African-American community; Tom C. Clark wrote that "we had led the states on to think segregation is OK and we should let them work it out."[26] Felix Frankfurter and Robert H. Jackson disapproved of segregation, but were also opposed to judicial activism and expressed concerns about the proposed decision's enforceability.[26] Chief Justice Vinson had been a key stumbling block. After Vinson died in September 1953, President Dwight D. Eisenhower appointed Earl Warren as Chief Justice.[26] Warren had supported the integration of Mexican-American students in California school systems following Mendez v. Westminster.[27] However, Eisenhower invited Earl Warren to a White House dinner, where the president told him: "These [southern whites] are not bad people. All they are concerned about is to see that their sweet little girls are not required to sit in school alongside some big overgrown Negroes." Nevertheless, the Justice Department sided with the African American plaintiffs.[28][29][30]

While all but one justice personally rejected segregation, the judicial restraint faction questioned whether the Constitution gave the Court the power to order its end. The activist faction believed the Fourteenth Amendment did give the necessary authority and were pushing to go ahead. Warren, who held only a recess appointment, held his tongue until the Senate confirmed his appointment.

Warren convened a meeting of the justices, and presented to them the simple argument that the only reason to sustain segregation was an honest belief in the inferiority of Negroes. Warren further submitted that the Court must overrule Plessy to maintain its legitimacy as an institution of liberty, and it must do so unanimously to avoid massive Southern resistance. He began to build a unanimous opinion. Although most justices were immediately convinced, Warren spent some time after this famous speech convincing everyone to sign onto the opinion. Justice Jackson dropped his concurrence and Reed finally decided to drop his dissent. The final decision was unanimous. Warren drafted the basic opinion and kept circulating and revising it until he had an opinion endorsed by all the members of the Court.[31] Reed was the last holdout and reportedly cried during the reading of the opinion.[32]

Decision

Chief Justice Earl Warren, the author of the Court's unanimous opinion in Brown

On May 17, 1954, the Court issued a unanimous 9–0 decision in favor of the Brown family and the other plaintiffs. The decision consists of a single opinion written by Chief Justice Earl Warren, which all the justices joined.[33]

The Court's opinion began by noting that it had attempted to find an answer to the question of whether the Fourteenth Amendment was meant to abolish segregation in public education by hearing a second round of oral arguments from the parties' lawyers specifically on the historical sources relating to its drafting and ratification, but to no avail.[33]

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.

— Brown, 347 U.S. at 489.[34]

The Court also stated that using historical information on the original scope of the Fourteenth Amendment's application to public education was difficult because of intervening societal and governmental changes. It noted that in 1868, when the Amendment was adopted, public schools were uncommon in the American South. White children whose families could afford schooling usually attended private schools, and the education of black children was "almost nonexistent", to the point that in some Southern states any education of black people had actually been forbidden by law.[35] The Court contrasted this with the situation in 1954: "Today, education is perhaps the most important function of our local and state governments."[36] It concluded that, in making its ruling, the Court would have to "consider public education in light of its full development and its present place in American life throughout the Nation."[37]

The Court did not address the issues regarding the many instances in which the segregated educational facilities for black children in the cases were inferior in quality to those for white children, probably because some of the school districts involved had made improvements to their black schools to "equalize" them with the quality of the white schools.[33] This prevented the Court from finding a violation of the Equal Protection Clause in "measurable inequalities" between all white and black schools, and instead required it to look to the effects of segregation itself.[38] Thus, the Court framed the case around the more general question of whether the principle of "separate but equal" was constitutional when applied to public education:[39]

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?

— Brown, 397 U.S. at 493.[40]

In answer, the Court ruled that it did.[41] It held that state-mandated segregation, even if implemented in schools of otherwise equal quality, is inherently unequal: "To separate [black children] 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 to ever be undone."[42] The Court supported this conclusion with citations—in a footnote, not the main text of the opinion—to a number of psychology studies that purported to show that segregating black children made them feel inferior and interfered with their learning.[41] These studies included those of Kenneth and Mamie Clark, whose experiments in the 1940s had suggested that black children from segregated environments preferred white dolls over black dolls.

The Court then concluded its relatively short opinion by declaring that segregated public education was inherently unequal, violated the Equal Protection Clause, and therefore was unconstitutional:

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.

— Brown, 397 U.S. at 495.[43]

The Court did not close with an order to implement the remedy of integrating the schools of the various jurisdictions, but instead requested the parties to re-appear before the Court the following Term in order to hold arguments on the issue.[41] This became the case known as Brown II, described below.

Reaction and aftermath

Although Americans generally cheered the Court's decision in Brown, most white citizens in the American South decried it, and progress on integrating American schools moved slowly. Many Southern white Americans viewed Brown v. Board of Education as "a day of catastrophe — a Black Monday — a day something like Pearl Harbor".[44] The American political historian Robert G. McCloskey wrote:

The reaction of the white South to this judicial onslaught on its institutions was noisy and stubborn. Certain “border states,” which had formerly maintained segregated school systems, did integrate, and others permitted the token admission of a few Negro students to schools that had once been racially unmixed. However, the Deep South made no moves to obey the judicial command, and in some districts there can be no doubt that the Desegregation decision hardened resistance to integration proposals.

— Robert G. McCloskey (2010), The American Supreme Court, revised by Sanford Levinson (5th ed.), Chicago: University of Chicago Press, p. 144.

In Virginia, Senator Harry F. Byrd organized the Massive Resistance movement that included the closing of schools rather than desegregating them.[45]

Deep South

Texas Attorney General John Ben Shepperd organized a campaign to generate legal obstacles to implementation of desegregation.[46]

In 1957, Arkansas Governor Orval Faubus called out his state's National Guard to block black students' entry to Little Rock Central High School. President Dwight Eisenhower responded by deploying elements of the 101st Airborne Division from Fort Campbell, Kentucky, to Arkansas and by federalizing Arkansas's National Guard.[47]

Also in 1957, Florida's response was mixed. Its legislature passed an Interposition Resolution denouncing the decision and declaring it null and void. But Florida Governor LeRoy Collins, though joining in the protest against the court decision, refused to sign it, arguing that the attempt to overturn the ruling must be done by legal methods.

In Mississippi fear of violence prevented any plaintiff from bringing a school desegregation suit for the next nine years.[48] When Medgar Evers sued to desegregate Jackson, Mississippi schools in 1963 White Citizens Council member Byron De La Beckwith murdered him.[49] Two subsequent trials resulted in hung juries. Beckwith was not convicted of the murder until 1994.[50]

In 1963, Alabama Gov. George Wallace personally blocked the door to Foster Auditorium at the University of Alabama to prevent the enrollment of two black students. This became the infamous Stand in the Schoolhouse Door[51] where Wallace personally backed his "segregation now, segregation tomorrow, segregation forever" policy that he had stated in his 1963 inaugural address.[52] He moved aside only when confronted by General Henry Graham of the Alabama National Guard, who was ordered by President John F. Kennedy to intervene.

Native American communities were also heavily impacted by segregation laws with native children also being prohibited from attending white institutions.[53] Native American children considered light-complexioned were allowed to ride school buses to previously all white schools, while dark-skinned Native children from the same band were still barred from riding the same buses.[53] Tribal leaders, learned about Dr. King's desegregation campaign in Birmingham, Alabama, contacted him for assistance. King promptly responded to the tribal leaders and through his intervention the problem was quickly resolved.[53]

Upland South

In North Carolina, there was often a strategy of nominally accepting Brown, but tacitly resisting it. On May 18, 1954 the Greensboro, North Carolina school board declared that it would abide by the Brown ruling. This was the result of the initiative of D. E. Hudgins Jr., a former Rhodes Scholar and prominent attorney, who chaired the school board. This made Greensboro the first, and for years the only, city in the South, to announce its intent to comply. However, others in the city resisted integration, putting up legal obstacles[how?] to the actual implementation of school desegregation for years afterward, and in 1969, the federal government found the city was not in compliance with the 1964 Civil Rights Act. Transition to a fully integrated school system did not begin until 1971, after numerous local lawsuits and both nonviolent and violent demonstrations. Historians have noted the irony that Greensboro, which had heralded itself as such a progressive city, was one of the last holdouts for school desegregation.[54][55]

In Moberly, Missouri, the schools were desegregated, as ordered. However, after 1955, the African-American teachers from the local "negro school" were not retained; this was ascribed to poor performance. They appealed their dismissal in Naomi Brooks et al., Appellants, v. School District of City of Moberly, Missouri, Etc., et al.; but it was upheld, and SCOTUS declined to hear a further appeal.[56][57]

Virginia had one of the companion cases in Brown, involving the Prince Edward County schools. Significant opposition to the Brown verdict included U.S. senator Harry F. Byrd, who led the Byrd Organization and promised a strategy of Massive Resistance. Governor Thomas Stanley, a member of the Byrd Organization, appointed the Gray Commission, 32 Democrats led by state senator Garland Gray, to study the issue and make recommendations. The commission recommended giving localities "broad discretion" in meeting the new judicial requirements. However, in 1956, a special session of the Virginia legislature adopted a legislative package which allowed the governor to simply close all schools under desegregation orders from federal courts. In early 1958, newly elected Governor James Lindsay Almond Jr. closed public schools in Charlottesville, Norfolk, and Warren County rather than comply with desegregation orders, leaving 10,000 children without schools despite efforts of various parent groups. However, he reconsidered when on the Lee-Jackson state holiday, both the Virginia Supreme Court ruled the closures violated the state constitution, and a panel of federal judges ruled they violated the U.S. Constitution. In early February 1959, both the Arlington County (also subject to a NAACP lawsuit, and which had lost its elected school board pursuant to other parts of the Stanley Plan) and Norfolk schools desegregated peacefully. Soon all counties reopened and integrated with the exception of Prince Edward County. That took the extreme step of choosing not to appropriate any funding for its school system, thus forcing all its public schools to close, although Prince Edward County provided tuition grants for all students, regardless of their race, to use for private, nonsectarian education. Since no private schools existed for blacks within the county, black children in the county either had to leave the county to receive any education between 1959 and 1963, or received no education. All private schools in the region remained racially segregated. This lasted until 1964, when the U.S. Supreme Court ruled Prince Edward County's decision to provide tuition grants for private schools that only admitted whites violated the equal protection clause of the 14th amendment, in the case of Griffin v. County School Board of Prince Edward County.[58]

North

Many Northern cities also had de facto segregation policies, which resulted in a vast gulf in educational resources between black and white communities. In Harlem, New York, for example, not a single new school had been built since the turn of the century, nor did a single nursery school exist, even as the Second Great Migration caused overcrowding of existing schools. Existing schools tended to be dilapidated and staffed with inexperienced teachers. Northern officials were in denial of the segregation, but Brown helped stimulate activism among African-American parents like Mae Mallory who, with support of the NAACP, initiated a successful lawsuit against the city and State of New York on Brown's principles. Mallory and thousands of other parents bolstered the pressure of the lawsuit with a school boycott in 1959. During the boycott, some of the first freedom schools of the period were established. The city responded to the campaign by permitting more open transfers to high-quality, historically-white schools. (New York's African-American community, and Northern desegregation activists generally, now found themselves contending with the problem of white flight, however.)[59][60]

Topeka

Judgment and order of the Supreme Court for the case.

The Topeka junior high schools had been integrated since 1941. Topeka High School was integrated from its inception in 1871 and its sports teams from 1949 on.[61] The Kansas law permitting segregated schools allowed them only "below the high school level".[62]

Soon after the district court decision, election outcomes and the political climate in Topeka changed. The Board of Education of Topeka began to end segregation in the Topeka elementary schools in August 1953, integrating two attendance districts. All the Topeka elementary schools were changed to neighborhood attendance centers in January 1956, although existing students were allowed to continue attending their prior assigned schools at their option.[63][64][65] Plaintiff Zelma Henderson, in a 2004 interview, recalled that no demonstrations or tumult accompanied desegregation in Topeka's schools:

"They accepted it," she said. "It wasn't too long until they integrated the teachers and principals."[66]

The Topeka Public Schools administration building is named in honor of McKinley Burnett, NAACP chapter president who organized the case.[citation needed]

Monroe Elementary was designated a U.S. National Historic Site unit of the National Park Service on October 26, 1992.

The intellectual roots of Plessy v. Ferguson, the landmark United States Supreme Court decision upholding the constitutionality of racial segregation in 1896 under the doctrine of "separate but equal" were, in part, tied to the scientific racism of the era.[67][68] However, the popular support for the decision was more likely a result of the racist beliefs held by many whites at the time.[69] In deciding Brown v. Board of Education, the Supreme Court rejected the ideas of scientific racists about the need for segregation, especially in schools. The Court buttressed its holding by citing (in footnote 11) social science research about the harms to black children caused by segregated schools.

Both scholarly and popular ideas of hereditarianism played an important role in the attack and backlash that followed the Brown decision.[69] The Mankind Quarterly was founded in 1960, in part in response to the Brown decision.[70][71]

Legal criticism and praise

U.S. circuit judges Robert A. Katzmann, Damon J. Keith, and Sonia Sotomayor at a 2004 exhibit on the Fourteenth Amendment, Thurgood Marshall, and Brown v. Board of Education

William Rehnquist wrote a memo titled "A Random Thought on the Segregation Cases" when he was a law clerk for Justice Robert H. Jackson in 1952, during early deliberations that led to the Brown v. Board of Education decision. In his memo, Rehnquist argued: "I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by 'liberal' colleagues but I think Plessy v. Ferguson was right and should be reaffirmed." Rehnquist continued, "To the argument . . . that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minorities are."[72] Rehnquist also argued for Plessy with other law clerks.[73]

However, during his 1971 confirmation hearings, Rehnquist said, "I believe that the memorandum was prepared by me as a statement of Justice Jackson's tentative views for his own use." Justice Jackson had initially planned to join a dissent in Brown.[74] Later, at his 1986 hearings for the slot of Chief Justice, Rehnquist put further distance between himself and the 1952 memo: "The bald statement that Plessy was right and should be reaffirmed, was not an accurate reflection of my own views at the time."[75] In any event, while serving on the Supreme Court, Rehnquist made no effort to reverse or undermine the Brown decision, and frequently relied upon it as precedent.[76]

Chief Justice Warren's reasoning was broadly criticized by contemporary legal academics with Judge Learned Hand decrying that the Supreme Court had "assumed the role of a third legislative chamber"[77] and Herbert Wechsler finding Brown impossible to justify based on neutral principles.[78]

Some aspects of the Brown decision are still debated. Notably, Supreme Court Justice Clarence Thomas, himself an African American, wrote in Missouri v. Jenkins (1995) that at the very least, Brown I has been misunderstood by the courts.

Brown I did not say that "racially isolated" schools were inherently inferior; the harm that it identified was tied purely to de jure segregation, not de facto segregation. Indeed, Brown I itself did not need to rely upon any psychological or social-science research in order to announce the simple, yet fundamental truth that the Government cannot discriminate among its citizens on the basis of race. …

Segregation was not unconstitutional because it might have caused psychological feelings of inferiority. Public school systems that separated blacks and provided them with superior educational resources making blacks "feel" superior to whites sent to lesser schools—would violate the Fourteenth Amendment, whether or not the white students felt stigmatized, just as do school systems in which the positions of the races are reversed. Psychological injury or benefit is irrelevant …

Given that desegregation has not produced the predicted leaps forward in black educational achievement, there is no reason to think that black students cannot learn as well when surrounded by members of their own race as when they are in an integrated environment. (…) Because of their "distinctive histories and traditions," black schools can function as the center and symbol of black communities, and provide examples of independent black leadership, success, and achievement.[79]

Some Constitutional originalists, notably Raoul Berger in his influential 1977 book "Government by Judiciary," make the case that Brown cannot be defended by reference to the original understanding of the 14th Amendment. They support this reading of the 14th Amendment by noting that the Civil Rights Act of 1875 did not ban segregated schools and that the same Congress that passed the 14th Amendment also voted to segregate schools in the District of Columbia. Other originalists, including Michael W. McConnell, a federal judge on the United States Court of Appeals for the Tenth Circuit, in his article "Originalism and the Desegregation Decisions," argue that the Radical Reconstructionists who spearheaded the 14th Amendment were in favor of desegregated southern schools.[80] Evidence supporting this interpretation of the 14th Amendment has come from archived Congressional records showing that proposals for federal legislation which would enforce school integration were debated in Congress a few years following the amendment's ratification.[81]

In response to Michael McConnell's research, Raoul Berger argued that the Congressmen and Senators who were advocating in favor of school desegregation in the 1870s were trying to rewrite the 14th Amendment in order to make the 14th Amendment fit their political agenda and that the actual understanding of the 14th Amendment from 1866 to 1868 (which is when the 14th Amendment was actually passed and ratified) does, in fact, permit US states to have segregated schools.[82] Berger criticized McConnell for being unable to find any reference to school segregation—let alone any reference to a desire to prohibit it—among supporters of the 14th Amendment in the congressional history of this amendment (specifically in the recordings of the 39th United States Congress, since that was the US Congress that actually passed the 14th Amendment) and also criticized McConnell's view that the 1954 view of "civil rights" should be decisive in interpreting the 14th Amendment as opposed to the 1866 view of "civil rights."[82] Berger also argues that McConnell failed to provide any evidence that the state legislatures who ratified the 14th Amendment understood it at the time as prohibiting school segregation and that whenever the question of school segregation's compatibility with the US Constitution (as opposed to the separate question of school segregation's compatibility with US state law and/or US state constitutions, where courts have often ruled against school segregation) reached the judiciary in the couple of decades after the passage and ratification of the 14th Amendment (whether in Ohio, Nevada, California, Indiana, or New York), courts have always affirmed the constitutionality of school segregation—as did Michigan Supreme Court Chief Justice Thomas M. Cooley in his 1880 treatise The General Principles of Constitutional Law in the United States of America.[82] In addition, Berger argues that the views of the draftsmen of the 14th Amendment in 1866 are decisive—as opposed to the views of later readers of the 14th Amendment (including the views of supporters of the 14th Amendment after this amendment's passage and ratification due to the fact that even their views and beliefs can change over time—like with Nevada U.S. Senator William Morris Stewart, who initially opposed school desegregation but later changed his mind and supported it).[82] To back up his view about original intent being decisive, Berger cites—among other things—an 1871 quote by James A. Garfield to John Bingham where Garfield challenged Bingham's recollection of a statement that Bingham previously made in 1866—with Garfield telling Bingham that he can make but not unmake history.[82]

The case also has attracted some criticism from more liberal authors, including some who say that Chief Justice Warren's reliance on psychological criteria to find a harm against segregated blacks was unnecessary. For example, Drew S. Days has written:[83] "we have developed criteria for evaluating the constitutionality of racial classifications that do not depend upon findings of psychic harm or social science evidence. They are based rather on the principle that 'distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality,' Hirabayashi v. United States, 320 U.S. 81 (1943). . . ."

In his book The Tempting of America (page 82), Robert Bork endorsed the Brown decision as follows:

By 1954, when Brown came up for decision, it had been apparent for some time that segregation rarely if ever produced equality. Quite aside from any question of psychology, the physical facilities provided for blacks were not as good as those provided for whites. That had been demonstrated in a long series of cases … The Court's realistic choice, therefore, was either to abandon the quest for equality by allowing segregation or to forbid segregation in order to achieve equality. There was no third choice. Either choice would violate one aspect of the original understanding, but there was no possibility of avoiding that. Since equality and segregation were mutually inconsistent, though the ratifiers did not understand that, both could not be honored. When that is seen, it is obvious the Court must choose equality and prohibit state-imposed segregation. The purpose that brought the fourteenth amendment into being was equality before the law, and equality, not separation, was written into the law.

In June 1987, Philip Elman, a civil rights attorney who served as an associate in the Solicitor General's office during Harry Truman's term, claimed he and Associate Justice Felix Frankfurter were mostly responsible for the Supreme Court's decision, and stated that the NAACP's arguments did not present strong evidence.[84] Elman has been criticized for offering a self-aggrandizing history of the case, omitting important facts, and denigrating the work of civil rights attorneys who had laid the groundwork for the decision over many decades.[85] However, Frankfurter was also known for being one of court's most outspoken advocates of the judicial restraint philosophy of basing court rulings on existing law rather than personal or political considerations.[86][87] Public officials in the United States today are nearly unanimous in lauding the ruling. In May 2004, the fiftieth anniversary of the ruling, President George W. Bush spoke at the opening of the Brown v. Board of Education National Historic Site, calling Brown "a decision that changed America for the better, and forever."[88] Most Senators and Representatives issued press releases hailing the ruling.

In a 2016 article in Townhall.com, an outlet of the Salem Media Group, economist Thomas Sowell argued that when Chief Justice Earl Warren declared in the landmark 1954 case of Brown v. Board of Education that racially separate schools were "inherently unequal," Dunbar High School was a living refutation of that assumption. And it was within walking distance of the Supreme Court." In Sowell's estimation, "Dunbar, which had been accepting outstanding black students from anywhere in the city, could now accept only students from the rough ghetto neighborhood in which it was located" as a detrimental consequence of the SCOTUS decision.[89]

Brown II

In 1955, the Supreme Court considered arguments by the schools requesting relief concerning the task of desegregation. In their decision, which became known as "Brown II"[90] the court delegated the task of carrying out school desegregation to district courts with orders that desegregation occur "with all deliberate speed," a phrase traceable to Francis Thompson's poem, "The Hound of Heaven".[91]

Supporters of the earlier decision were displeased with this decision. The language "all deliberate speed" was seen by critics as too ambiguous to ensure reasonable haste for compliance with the court's instruction. Many Southern states and school districts interpreted "Brown II" as legal justification for resisting, delaying, and avoiding significant integration for years—and in some cases for a decade or more—using such tactics as closing down school systems, using state money to finance segregated "private" schools, and "token" integration where a few carefully selected black children were admitted to former white-only schools but the vast majority remained in underfunded, unequal black schools.[92]

For example, based on "Brown II," the U.S. District Court ruled that Prince Edward County, Virginia did not have to desegregate immediately. When faced with a court order to finally begin desegregation in 1959 the county board of supervisors stopped appropriating money for public schools, which remained closed for five years, from 1959 to 1964.

White students in the county were given assistance to attend white-only "private academies" that were taught by teachers formerly employed by the public school system, while black students had no education at all unless they moved out of the county. But the public schools reopened after the Supreme Court overturned "Brown II" in Griffin v. County School Board of Prince Edward County, declaring that "...the time for mere 'deliberate speed' has run out," and that the county must provide a public school system for all children regardless of race.[93]

Brown III

In 1978, Topeka attorneys Richard Jones, Joseph Johnson and Charles Scott, Jr. (son of the original Brown team member), with assistance from the American Civil Liberties Union, persuaded Linda Brown Smith—who now had her own children in Topeka schools—to be a plaintiff in reopening Brown. They were concerned that the Topeka Public Schools' policy of "open enrollment" had led to and would lead to further segregation. They also believed that with a choice of open enrollment, white parents would shift their children to "preferred" schools that would create both predominantly African American and predominantly European American schools within the district. The district court reopened the Brown case after a 25-year hiatus, but denied the plaintiffs' request finding the schools "unitary". In 1989, a three-judge panel of the Tenth Circuit on 2–1 vote found that the vestiges of segregation remained with respect to student and staff assignment.[94] In 1993, the Supreme Court denied the appellant School District's request for certiorari and returned the case to District Court Judge Richard Rodgers for implementation of the Tenth Circuit's mandate.

After a 1994 plan was approved and a bond issue passed, additional elementary magnet schools were opened and district attendance plans redrawn, which resulted in the Topeka schools meeting court standards of racial balance by 1998. Unified status was eventually granted to Topeka Unified School District No. 501 on July 27, 1999.[95] One of the new magnet schools is named after the Scott family attorneys for their role in the Brown case and civil rights.[96]

Related cases

Other comments

A PBS film called "Simple Justice" retells the story of the Brown vs. Board of Education case, beginning with the work of the NAACP's Legal Defense Fund's efforts to combat 'separate but equal' in graduate school education and culminating in the historical 1954 decision.

Linda Brown Thompson later recalled the experience of being refused enrollment:[97]

...we lived in an integrated neighborhood and I had all of these playmates of different nationalities. And so when I found out that day that I might be able to go to their school, I was just thrilled, you know. And I remember walking over to Sumner school with my dad that day and going up the steps of the school and the school looked so big to a smaller child. And I remember going inside and my dad spoke with someone and then he went into the inner office with the principal and they left me out ... to sit outside with the secretary. And while he was in the inner office, I could hear voices and hear his voice raised, you know, as the conversation went on. And then he immediately came out of the office, took me by the hand and we walked home from the school. I just couldn't understand what was happening because I was so sure that I was going to go to school with Mona and Guinevere, Wanda, and all of my playmates.[98]

Linda Brown died on March 25, 2018 at the age of 76.[99]

See also

References

Footnotes

  1. ^ Brown and several subsequent Supreme Court decisions have severely weakened Plessy v. Ferguson to the point that it is generally considered to have been de facto overruled.[2]

Citations

  1. ^ Brown v. Board of Education, 347 U.S. 483 (1954)
  2. ^ Schauer (1997), p. 280.
  3. ^ Brown v Board of Education Decision ~ Civil Rights Movement Veterans
  4. ^ Schuck, P.H. (2006). Meditations of a Militant Moderate: Cool Views on Hot Topics. G – Reference, Information and Interdisciplinary Subjects Series. Rowman & Littlefield. p. 104. ISBN 978-0-7425-3961-7.
  5. ^ McCloskey & Levinson (2010), p. 144.
  6. ^ Cottrol, Robert J. 2006. "Brown v. Board of Education". American Federalism: An Encyclopedia.
  7. ^ Harald E.L. Prins. "Toward a World without Evil: Alfred Métraux as UNESCO Anthropologist (1946–1962)". UNESCO. As a direct offshoot of the 1948 "Universal Declaration of Human Rights," it sought to dismantle any scientific justification or basis for racism and proclaimed that race was not a biological fact of nature but a dangerous social myth. As a milestone, this critically important declaration contributed to the 1954 U.S. Supreme Court desegregation decision in Brown v. Board of Education of Topeka.'(in English)
  8. ^ Myrdal, Gunnar (1944). An American Dilemma: The Negro Problem and Modern Democracy. New York: Harper & Row.
  9. ^ Mary L. Dudziak, "The Global Impact of Brown v. Board of Education" SCOTUS Blog
  10. ^ Mary L Dudziak "Brown as a Cold War Case" Journal of American History, June 2004 Archived December 7, 2014, at the Wayback Machine
  11. ^ Anderson, Ric (May 9, 2004). "Legacy of Brown: Many people part of local case, Thirteen parents representing 20 children signed up as Topeka plaintiffs". Topeka Capital-Journal. Archived from the original on August 28, 2008. Retrieved October 7, 2018.
  12. ^ "Black, White, and Brown". PBS NewsHour'. May 12, 2004. Archived from the original on June 10, 2004. Retrieved August 25, 2017.
  13. ^ Brown v. Board of Education of Topeka MSN Encarta, archived on October 31, 2009 from the original Archived October 28, 2009, at the Wayback Machine
  14. ^ "Interactive map of locations in Topeka important to the Brown case – Topeka Capital Journal online". Cjonline.com. October 26, 1992. Archived from the original on June 15, 2010. Retrieved October 15, 2010.
  15. ^ Brown Foundation for Educational Equity, Excellence and Research, Myths Versus Truths Archived June 27, 2005, at the Wayback Machine (revised April 11, 2004)
  16. ^ Ric Anderson, Legacy of Brown: Many people part of local case, Thirteen parents representing 20 children signed up as Topeka plaintiffs Archived August 28, 2008, at the Wayback Machine, The Topeka Capital-Journal (Sunday, May 9, 2004).
  17. ^ Fox, Margalit (May 22, 2008). "Zelma Henderson, Who Aided Desegregation, Dies at 88". The New York Times. Retrieved May 29, 2008.
  18. ^ "Last surviving Brown v. Board plaintiff dies at 88 - TwinCities.com". May 24, 2008. Archived from the original on May 24, 2008.
  19. ^ School facilities for Negroes here held comparable Archived November 1, 2006, at the Wayback Machine, The Topeka State Journal (August 3, 1951)
  20. ^ Brown v. Board of Education, 98 F. Supp. 797 (D. Kan. 1951).
  21. ^ Student Strike at Moton High ~ Civil Rights Movement Veterans
  22. ^ a b Brown, 98 F. Supp. at 798.
  23. ^ Neier, By Aryeh. "Brown v. Board of Ed: Key Cold War weapon".
  24. ^ a b Antonly Lester, "Brown v. Board of Education Overseas" PROCEEDINGS OF THE AMERICAN PHILOSOPHICAL SOCIETY VOL. 148, NO. 4, DECEMBER 2004 Archived May 1, 2015, at the Wayback Machine
  25. ^ See Smithsonian, "Separate is Not Equal: Brown v. Board of Education Archived June 30, 2015, at the Wayback Machine
  26. ^ a b c d e Cass R. Sunstein (May 3, 2004). "Did Brown Matter?". The New Yorker. Retrieved January 22, 2010.
  27. ^ George R. Goethals, Georgia Jones Sorenson (2006). The quest for a general theory of leadership. Edward Elgar Publishing. p. 165. ISBN 978-1-84542-541-8.
  28. ^ "Digital History". www.digitalhistory.uh.edu.
  29. ^ Beschloss, Michael (November 15, 2014). "The Gang That Always Liked Ike" – via NYTimes.com.
  30. ^ Warren, Earl (1977). The Memoirs of Earl Warren. New York: Doubleday & Company. p. 291. ISBN 0385128355.
  31. ^ Patterson, James T. (2001). Brown v. Board of Education: A Civil Rights Milestone and Its Troubled Legacy. New York: Oxford University Press. ISBN 0-19-515632-3.
  32. ^ Caro, Robert A. (2002). Master of the Senate. Vintage Books. p. 696. ISBN 9780394720951. Retrieved May 17, 2017.
  33. ^ a b c Chemerinsky (2019), § 9.3.3.1, p. 764.
  34. ^ Quoted in Chemerinsky (2019), § 9.3.3.1, p. 764.
  35. ^ Brown, 347 U.S. at 490.
  36. ^ Brown, 347 U.S. at 493.
  37. ^ Chemerinsky (2019), § 9.3.3.1, p. 764 (quoting Brown, 347 U.S. at 492–93).
  38. ^ Nowak & Rotunda (2012), § 18.8(d)(ii)(2).
  39. ^ Chemerinsky (2019), § 9.3.3.1, pp. 764–65.
  40. ^ Quoted in Chemerinsky (2019), § 9.3.3.1, pp. 764–65.
  41. ^ a b c Chemerinsky (2019), § 9.3.3.1, p. 765.
  42. ^ Chemerinsky (2019), § 9.3.3.1, p. 765 (quoting Brown, 347 U.S. at 494).
  43. ^ Quoted in Chemerinsky (2019), § 9.3.3.1, p. 765.
  44. ^ Rabby, Glenda Alice (1999). The Pain and the Promise: The Struggle for Civil Rights in Tallahassee, Florida. University of Georgia Press. p. 201. ISBN 082032051X.
  45. ^ "Massive Resistance" to Integration ~ Civil Rights Movement Veterans
  46. ^ Howell, Mark C., John Ben Shepperd, Attorney General of the State of Texas: His Role in the Continuation of Segregation in Texas, 1953–1957, Master's Thesis, The University of Texas of the Permian Basin, Odessa, Texas, July 2003.
  47. ^ The Little Rock Nine ~ Civil Rights Movement Veterans
  48. ^ Michael Klarman, The Supreme Court, 2012 Term – Comment: Windsor and Brown: Marriage Equality and Racial Equality 127 Harv. L. Rev. 127, 153 (2013).
  49. ^ Id. citing Karlman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality at 352–354 (2004).
  50. ^ "De La Beckwith v. State, 707 So. 2d 547 (Miss. 1997)".
  51. ^ Standing In the Schoolhouse Door ~ Civil Rights Movement Veterans
  52. ^ The American Experience; George Wallace: Settin' the Woods on Fire; Wallace Quotes, Public Broadcasting Service, pbs.org, 2000. Retrieved February 6, 2007.
  53. ^ a b c Bender, Albert (February 13, 2014). "Dr. King spoke out against the genocide of Native Americans". People's World. People's World. Retrieved November 25, 2018.
  54. ^ "Civil Rights Greensboro". library.uncg.edu.
  55. ^ ""Summary of 'Civilities and Civil Rights': by William H. Chafe" George Mason University website". Archived from the original on April 2, 2015. Retrieved December 4, 2014.
  56. ^ "Naomi Brooks et al., Appellants, v. School District of City of Moberly, Missouri, Etc., et al., Appellees, 267 F.2d 733 (8th Cir. 1959)".
  57. ^ "Revisionist History Season 2 Episode 3". Revisionist History.
  58. ^ http://www2.vcdh.virginia.edu/xslt/servlet/XSLTServlet?xml=/xml_docs/solguide/Essays/essay13a.xml&xsl=/xml_docs/solguide/sol_new.xsl&section=essay
  59. ^ Melissa F. Weiner, Power, Protest, and the Public Schools: Jewish and African American Struggles in New York City (Rutgers University Press, 2010) p. 51-66
  60. ^ Adina Back "Exposing the Whole Segregation Myth: The Harlem Nine and New York City Schools" in Freedom north: Black freedom struggles outside the South, 1940–1980, Jeanne Theoharis, Komozi Woodard, eds.(Palgrave Macmillan, 2003) p. 65-91
  61. ^ "Topeka Capital Journal article on integration of THS sports teams". Cjonline.com. July 10, 2001. Archived from the original on July 30, 2012. Retrieved October 15, 2010.
  62. ^ "Topeka Capital Journal on line article". Cjonline.com. February 28, 2002. Archived from the original on July 22, 2012. Retrieved October 15, 2010.
  63. ^ "Racial bar down for teachers here" Archived September 26, 2007, at the Wayback Machine, Topeka Daily Capital (January 19, 1956)
  64. ^ "First step taken to end segregation" Archived April 5, 2008, at the Wayback Machine, Topeka Daily Capital (September 9, 1953)
  65. ^ "Little Effect On Topeka" Archived September 29, 2007, at the Wayback Machine Topeka Capital-Journal (May 18, 1954)
  66. ^ Erin Adamson, "Breaking barriers: Topekans reflect on role in desegregating nation's schools" Archived April 27, 2004, at the Wayback Machine, Topeka Capital Journal (May 11, 2003)
  67. ^ Austin Sarat (1997). Race, Law, and Culture: Reflections on Brown v. Board of Education. Oxford University Press. p. 55. ISBN 978-0-19-510622-0. What lay behind Plessy v. Ferguson? There were, perhaps, some important intellectual roots; this was the era of scientific racism.
  68. ^ Charles A. Lofgren (1988). The Plessy Case. Oxford University Press. p. 184. ISBN 978-0-19-505684-6. But he [ Henry Billings Brown ] at minimum established popular sentiment and practice, along with legal and scientific testimony on race, as a link in his train of reasoning.
  69. ^ a b Race, Law, and Culture: Reflections on Brown v. Board of Education By Austin Sarat. Page 55 and 59. 1997. ISBN 0-19-510622-9
  70. ^ Schaffer, Gavin (2007). ""'Scientific' Racism Again?": Reginald Gates, the Mankind Quarterly and the Question of "Race" in Science after the Second World War". Journal of American Studies. 41 (2): 253–278. doi:10.1017/S0021875807003477.
  71. ^ Science for Segregation: Race, Law, and the Case Against Brown v. Board of Education. By John P. Jackson. ISBN 0-8147-4271-8 Page 148
  72. ^ William Rehnquist, "A Random Thought on the Segregation Cases" Archived June 15, 2007, at the Wayback Machine, S. Hrg. 99-1067, Hearings Before the Senate Committee on the Judiciary on the Nomination of Justice William Hubbs Rehnquist to be Chief Justice of the United States (July 29, 30, 31, and August 1, 1986).
  73. ^ Peter S. Canellos,Memos may not hold Roberts's opinions, The Boston Globe, August 23, 2005. Here is what Rehnquist said in 1986 about his conversations with other clerks about Plessy:

    I thought Plessy had been wrongly decided at the time, that it was not a good interpretation of the equal protection clause to say that when you segregate people by race, there is no denial of equal protection. But Plessy had been on the books for 60 years; Congress had never acted, and the same Congress that had promulgated the 14th Amendment had required segregation in the District schools. . . . I saw factors on both sides. . . . I did not agree then, and I certainly do not agree now, with the statement that Plessy against Ferguson is right and should be reaffirmed. I had ideas on both sides, and I do not think I ever really finally settled in my own mind on that. . . . [A]round the lunch table I am sure I defended it. . . . I thought there were good arguments to be made in support of it.

    S. Hrg. 99-1067, Hearings Before the Senate Committee on the Judiciary on the Nomination of Justice William Hubbs Rehnquist to be Chief Justice of the United States (July 29, 30, 31, and August 1, 1986).
  74. ^ Justice William O. Douglas wrote: "In the original conference there were only four who voted that segregation in the public schools was unconstitutional. Those four were Black, Burton, Minton, and myself." See Bernard Schwartz, Decision: How the Supreme Court Decides Cases, page 96 (Oxford 1996). Likewise, Justice Felix Frankfurter wrote: "I have no doubt that if the segregation cases had reached decision last term, there would have been four dissenters—Vinson, Reed, Jackson, and Clark." Id. Justice Jackson's longtime legal secretary had a different view, calling Rehnquist's Senate testimony an attempt to "smear the reputation of a great justice." See Alan Dershowitz, Telling the Truth About Chief Justice Rehnquist, Huffington Post, September 5, 2005. Retrieved March 15, 2007. See also Felix Frankfurter on the death of Justice Vinson.
  75. ^ Adam Liptak, The Memo That Rehnquist Wrote and Had to Disown, NY Times (September 11, 2005)
  76. ^ Cases where Justice Rehnquist has cited Brown v. Board of Education in support of a proposition Archived June 15, 2007, at the Wayback Machine, S. Hrg. 99-1067, Hearings Before the Senate Committee on the Judiciary on the Nomination of Justice William Hubbs Rehnquist to be Chief Justice of the United States (July 29, 30, 31, and August 1, 1986). Also see Jeffery Rosen, Rehnquist the Great?, Atlantic Monthly (April 2005): "Rehnquist ultimately embraced the Warren Court's Brown decision, and after he joined the Court he made no attempt to dismantle the civil-rights revolution, as political opponents feared he would".
  77. ^ Michael Klarman, The Supreme Court, 2012 Term – Comment: Windsor and Brown: Marriage Equality and Racial Equality, 127 Harv. L. Rev. 127, 142 (2013) citing Learned Hand, The Bill of Rights at 55 (Oliver Wendell Holmes Lecture, 1958).
  78. ^ Id., Pamela Karlan, "What Can Brown Do For You: Neutral Principles and the Struggle Over the Equal Protection Clause, 58 DUKE L.J. 1049 (2008) citing Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1 (Oliver Wendell Holmes Lecture, 1959).
  79. ^ Missouri v. Jenkins, 515 U.S. 70, 120-22 (1995) (Thomas, J., concurring).
  80. ^ McConnell, Michael W. (May 1995). "Originalism and the desegregation decisions". Virginia Law Review. 81 (4): 947–1140. doi:10.2307/1073539. JSTOR 1073539.
  81. ^ Adam Liptak (November 9, 2009). "From 19th-Century View, Desegregation Is a Test". The New York Times. Retrieved June 4, 2013.
  82. ^ a b c d e "Original Intent-As Perceived by Michael McConnell 91 Northwestern University Law Review 1996–1997". Heinonline.org. Retrieved April 6, 2019.
  83. ^ Days, III, Drew S. (2001), "Days, J., concurring", in Balkan, Jack; Ackerman, Bruce A. (eds.), What 'Brown v. Board of Education' should have said, New York: New York University Press, p. 97, ISBN 9780814798904. Preview.
  84. ^ Harvard Law Review, Vol. 100, No. 8 (June 1987), pp. 1938–1948
  85. ^ See, e.g., Randall Kennedy. "A Reply to Philip Elman." Harvard Law Review 100 (1987):1938–1948.
  86. ^ A Justice for All, by Kim Isaac Eisler, page 11; ISBN 0-671-76787-9
  87. ^ "Supreme Court History: Expanding civil rights, biographies of the robes: Felix Frankfurter". pbs.org/wnet. Educational Broadcasting Corp., PBS.
  88. ^ Remarks by the President at Grand Opening of the Brown v Board of Education National Historic Site, Topeka, Kansas (May 17, 2004)
  89. ^ Thomas Sowell (October 4, 2016). "Dunbar High School After 100 Years". townhall.com. Archived from the original on May 24, 2019.
  90. ^ Brown v. Board of Education of Topeka, 349 U.S. 294 (1955)
  91. ^ Jim Chen, Poetic Justice, 29 Cardozo Law Review (2007)
  92. ^ The "Brown II," "All Deliberate Speed" Decision ~ Civil Rights Movement Veterans
  93. ^ Smith, Bob (1965). They Closed Their Schools. University of North Carolina Press.
  94. ^ Brown v. Board of Education, 892 F.2d 851 (10th Cir. 1989).
  95. ^ Brown v. Unified School Dist. No. 501, 56 F. Supp. 2d 1212 (D. Kan. 1999).
  96. ^ Topeka Public Schools Desegregation History: "The Naming of Scott Computer Technology Magnet" Archived October 1, 2007, at the Wayback Machine
  97. ^ "Brown v. Board of Education". PBS NewsHour. May 9, 2014. Archived from the original on May 9, 2014. Retrieved April 15, 2018.
  98. ^ "Black/White and Brown: Brown versus the Board of Education of Topeka". KTWU Channel 11. transcript of program produced by KTWU Channel 11 in Topeka, Kansas. Originally aired May 3, 2004.: KTWU Video. September 10, 2005. Archived from the original on September 10, 2005. Retrieved April 15, 2018.
  99. ^ Vanessa Romo (March 26, 2018). "Linda Brown, Who Was At Center Of Brown v. Board Of Education, Dies". NPR. Retrieved March 27, 2018.

Works cited

  • Chemerinsky, Erwin (2019). Constitutional Law: Principles and Policies (6th ed.). New York: Wolters Kluwer. ISBN 978-1-4548-9574-9.
  • McCloskey, Robert G.; Levinson, Sanford (2010). The American Supreme Court (5th ed.). Chicago: University of Chicago Press. ISBN 978-0-226-55686-4.
  • Nowak, John E.; Rotunda, Ronald D. (2012). Treatise on Constitutional Law: Substance and Procedure (5th ed.). Eagan, Minnesota: West Thomson/Reuters. OCLC 798148265.
  • Schauer, Frederick (1997). "Generality and Equality". Law and Philosophy. 16 (3): 279–97. JSTOR 3504874.

Further reading

External video
Booknotes interview with Charles Ogletree on All Deliberate Speed, May 9, 2004, C-SPAN

External links