The question here is whether a Chinese citizen of the United States is denied equal protection of the laws when he is classed among the colored races and furnished facilities for education equal to that offered to all, whether white, brown, yellow or black. Were this a new question, it would call for very full argument and consideration, but we think that it is the same question which has been many times decided to be within the constitutional power of the State legislature to settle without intervention of the Federal courts under the Federal Constitution.... The decision is within the discretion of the State in regulating its public schools,and does not conflict with the Fourteenth Amendment. [Emphasis supplied.]
The question here is whether a Chinese citizen of the United States is denied equal protection of the laws when he is classed among the colored races and furnished facilities for education equal to that offered to all, whether white, brown, yellow or black. Were this a new question, it would call for very full argument and consideration, but we think that it is the same question which has been many times decided to be within the constitutional power of the State legislature to settle without intervention of the Federal courts under the Federal Constitution.... The decision is within the discretion of the State in regulating its public schools,and does not conflict with the Fourteenth Amendment. [Emphasis supplied.]
TheGong Lumcase was in 1927. Eleven years later the Supreme Court dealt with a suit brought by Lloyd Gaines, a Negro, seeking admission to the law school of the University of Missouri (305 U. S. 337). TheGainescase is important, because it sometimes is said that it heralded in 1938 the end of “separate but equal” in 1954. It did no such thing. The State of Missouri then had no law school for Negroes; the practice was to pay tuition fees, out of State, for the few Negro students seeking legal education. Other Negro college students attended Lincoln University in St. Louis, where Missouri sought to fulfill its obligation to provide the same general advantages of higher education for Negroes that it provided for whites by furnishing equal facilities in separate schools. Chief Justice Hughes said for the court that this was a method, “the validity of which has been sustained by our decisions.” He was sympathetic to Missouri’s plan to build Lincoln University into an institution genuinelyequal to the University of Missouri at Columbia. “But commendable as is that action, the fact remains that instruction in law for Negroes is not now afforded by the State, either at Lincoln University or elsewhere.” The court therefore ordered Gaines admitted to the Missouri Law School. McReynolds dissented, with Butler joining him. They felt Missouri’s offer to pay Gaines’ tuition in a nearby law school of good standing would provide the student with abundant opportunity to study law “if perchance that is the thing really desired.” In attempting in good faith to meet the constitutionally sanctioned requirements of separate but equal, said McReynolds, “the State should not be unduly hampered through theorization inadequately restrained by experience.”
Three other cases that were reviewed in the oral argument before the Supreme Court in December 1953 also dealt with higher education at the graduate-school level. The circumstances inSipuelv.Board of Regents of the University of Oklahoma(332 U. S. 630) paralleled the circumstances of theGainescase; the court entered no more than aper curiamorder directing thatGainesbe followed. On June 5, 1950, the last two cases were decided:Sweattv.Painter(339 U. S. 629) andMcLaurinv.Oklahoma State Regents for Higher Education(339 U. S. 637). In both opinions, the court, speaking through Chief Justice Vinson, was careful to emphasize that it was followingGaines(that is, that it was following “separate but equal”) and was not reexaminingPlessyat all. In theSweattcase, Texas had attempted to establish a Negro law school at Austin that would be the equal of its University of Texas Law School in Houston. Relying upon the “intangibles that make for greatness in a law school,” the court held such equality impossible of attainment. Similarly, in theMcLaurincase, in which Oklahoma had sought to segregate a Negro graduate in the use of library and cafeteria facilities, Vinson held for the court that “under these circumstances,” the Fourteenth Amendment precluded any distinction in treatment of students based upon race.
Regardless of one’s views on the rightness or wrongness of segregation in the public schools, how are these precedents fairly to be characterized? Plainly, they form one unbrokenchain, reaching back to the very ratification of the Fourteenth Amendment:Garnesin Ohio,Stoutmeyerin Nevada,Wardin California,Coryin Indiana,Bertonneauin Louisiana,Kingin New York,Lehewin Missouri,Plessyin Louisiana,Cummingin Georgia,Bereain Kentucky,McCabein Oklahoma,Gong Lumin Mississippi,Gainesin Missouri—in every one of these, extending from 1871 to 1938, the doctrine of “separate but equal” had been judicially sanctioned as not in violation of the Fourteenth Amendment. And inSipuel,McLaurin, andSweattthe doctrine had simply been ruled not applicable in the peculiar circumstances of graduate-school instruction.
This was the chain the court snapped in theSchool Segregation Cases. Six months after the case had been reargued, on May 17, 1954, Chief Justice Warren spoke for a unanimous court in overruling and discarding this uniform interpretation of more than eighty years. The text of the court’s opinion appears in the Appendix, along with its companion decision in theBollingcase from the District of Columbia. Here it will be seen that the court blandly dismissed the massive evidence of “intent” with a regal hand: The evidence was “inconclusive.” Then, disdaining every rule of jurisprudence which says that law cases should be decided on points of law, the court delivered itself of some homilies on the importance of education: “Today, education is perhaps the most important function of State and local governments.” Everyone must have an education: “It is the very foundation of good citizenship. It is a principal instrument in awakening the child to cultural values.” Said the court:
We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other “tangible” factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.
We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other “tangible” factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.
That was the key paragraph. The court went on to assert that the “intangible considerations” it had found to be important in graduate-school instruction apply with added forceto children in grade and high schools. “To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” Whatever may have been the extent of psychological knowledge at the time ofPlessy, said the court, “this finding is amply supported by modern authority.” And the court inserted its famous Footnote 11 to prove it.
This footnote directed the inquisitive reader to seven sources. The first was a paper prepared by Kenneth B. Clark, “The Effect of Prejudice and Discrimination on Personality Development,” delivered at the 1950 White House Conference on Children and Youth; Clark, a professor of psychology at the College of the City of New York, was then at least presumptively on the payroll of the NAACP—he was “social science consultant for the NAACP’s legal and educational division.” A second source was “Personality in the Making,” by Helen Leland Witmer and Ruth Kotinsky. The third was a report of a survey conducted for the American Jewish Congress in 1947 by Max Deutscher and Isidor Chein. They sent a questionnaire to 849 social scientists, asking, first in the affirmative and then in the negative, “[Do you] believe that enforced segregation has (has not) a detrimental psychological effect on members of the racial or religious groups which are segregated?” A second question, similarly phrased, sought the social scientists’ opinions on whether such segregation has detrimental effects on the majority group imposing the segregation. All told, 517 of those queried returned the questionnaire (32 of the 517 were from the South). Not surprisingly, 90 per cent of the 517 obligingly answered Ja to the first question and 83 per cent said Ja to the second. Had there been an opportunity to put Deutscher and Chein on a witness stand, counsel for the South might have sought clarification on what was meant by “enforced,” what by “segregation,” and what by “detrimental,” and rebuttal witnesses might have been summoned to testify on the effects, detrimental or otherwise, of enforced integration on the majority group.
The fourth authority cited by the court was a paper byChein in a publication of such large obscurity and small circulation that few persons can have examined it: “What are the Psychological Effects of Segregation under Conditions of Equal Facilities,” in Volume 3 of theInternational Journal of Opinion and Attitude Research(1949). Fifth on the list was “Educational Costs in Discrimination and National Welfare,” by Theodore Brameld, then a professor of educational philosophy at the University of Minnesota. The sixth reference was to Edward Franklin Frazier’sThe Negro in the United States. Frazier is a Negro sociologist, professor of sociology at Howard University, who served as chairman of UNESCO’s committee of experts on race.
And finally, said the court, “see generally Myrdal,An American Dilemma.”
“We conclude,” said the court, “that in the field of public education the doctrine of ‘separate but equal’ has no place.Separate educational facilities are inherently unequal.” [Emphasis supplied.] That final sentence contained perhaps the greatest irony of them all, for unless words have lost their meaning, the court here decreed equality for the Negro by finding the Negro innately not equal. What else did the court mean? Here we are told, on the authority of the most eminent court in the world, that if one-hundred Negro pupils are put to study in one building, and one-hundred white pupils are put to study in an identical building, the first group of pupils, who have been segregated solely on the basis of race, will make up a schoolinherentlyunequal to the other. “Inherently” comes from the Latinhaerere, to stick; it means “firmly infixed; belonging by nature.” And when the court concluded that separate schools for Negroes are inherently unequal, it made a judicial finding of fact with which a great many Southerners would find themselves in wry agreement.
That was the substance of theBrowndecision. Because of the predictable impact of the ruling and the great variety of local conditions, the court asked for reargument on the formulation of specific decrees. A year later, on May 31, 1955, a supplementary opinion (this also appears in full in the Appendix) sent the cases back to the trial courts with instructions to enter decrees ordering “the parties to these cases admitted to public schools on a racially nondiscriminatorybasis with all deliberate speed.” By that time, Kansas had abandoned segregation altogether in its schools; so had the District of Columbia; so had Delaware over much of the State. In the course of time, Prince Edward County, Virginia, was to abandon public education rather than submit to compulsory desegregation of its schools. The public schools of Clarendon County, S. C., are still operating as I write, in the spring of 1962, as completely segregated as they were in the spring of 1954. The new Negro schools are bright and shining and consolidated, and some of the children of the original plaintiffs of 1951, it is said, are placidly attending them.
What was wrong with theBrowndecision? The Sibley Commission in Georgia summarized the South’s protest in two sweeping sentences:
We consider this decision utterly unsound on the facts; contrary to the clear intent of the Fourteenth Amendment; a usurpation of legislative function through judicial process; and an invasion of the reserved rights of States. We further consider that,putting aside the question of segregation, this decision presents a clear and present danger to our system of constitutional government, because it places what the court calls “modern authority” in sociology and psychology above the ancient authority of the law, and because it places the transitory views of the Supreme Court above the legislative power of Congress, the settled construction of the Constitution, and the reserved sovereignty of the several States. [Emphasis supplied.]
We consider this decision utterly unsound on the facts; contrary to the clear intent of the Fourteenth Amendment; a usurpation of legislative function through judicial process; and an invasion of the reserved rights of States. We further consider that,putting aside the question of segregation, this decision presents a clear and present danger to our system of constitutional government, because it places what the court calls “modern authority” in sociology and psychology above the ancient authority of the law, and because it places the transitory views of the Supreme Court above the legislative power of Congress, the settled construction of the Constitution, and the reserved sovereignty of the several States. [Emphasis supplied.]
If the student of American government can do as the Sibley commission suggests, and put aside the question of segregation—eliminate all the emotional overtones of “prejudice” and “discrimination” and “second-class citizens”—he will get a clearer picture of the most disturbing aspect of theSchool Segregation Cases. One of the most cherished myths of American tradition, as strong and as insubstantial as any doctrine of religion, is that ours is “a government of laws, not men.” Viewed coldly and nakedly, the proposition is palpably absurd; wine is wine, and bread is bread. But by some devout act of political transubstantiation, the faith of theAmerican people has imbued this doctrine with a special venerability: We have been reared to believe that law exists metaphysically, above and beyond the mortal men who enforce it. As an institution, the high court commands respect, not for the nine frail vessels beneath the robes, but out of deference to the higher, holier grail they represent.
And this was what the court shattered in theBrowncase: The myth, the grail, the mystery of the law. “The judicial function is that of interpretation,” Sutherland once said; “it does not include the power of amendment under the guise of interpretation.” Cardozo said the same thing: “We are not at liberty to revise while professing to construe.” Hughes said it too: “The power of this court is not to amend, but only to expound the Constitution as an agency of the sovereign people who made it and who alone have authority to alter or unmake it.”
But the court disdained these ancient and elementary rules. “By its decision in theBrowncase,” former Justice Byrnes has said, “the court did not interpret the Constitution. It really amended the Constitution.” This the court had no legal or moral right to do. It had only the power to do it—the absolute power, in Acton’s famous phrase, that left unrestrained, corrupts absolutely.