April/May 2004 | Volume 55, Issue 2
Separate and Unequal
ON MAY 17 THE U.S. Supreme Court announced its decision in Brown v. Board of Education of Topeka . The plaintiff, Oliver Brown, had been denied the right to send his daughter to the public school nearest her home. Instead she had to attend an all-black school farther away. The Topeka board’s policy complied with the “separate but equal” doctrine, as set forth in Plessy v. Ferguson (1896). But as Chief Justice Earl Warren, writing for a unanimous Court, explained in finding for Brown: “In the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”
The decision had been foreshadowed by a series of rulings going back to 1938, and the Court had already banned separate schools for blacks at the graduate level. In Texas, for example, an entire law school had been created for a single black student, and in Oklahoma a black law student had been allowed to attend classes, use the library, and eat in the cafeteria with whites but had been required to sit in specially designated areas at all times. Both these “separate but equal” solutions had been declared illegal.
Brown , however, was vastly more sweeping. With it, the Supreme Court made clear that America’s commitment to civil rights was firm and unshakable. Over the next dozen years, as integration spread from schools to society at large, reactionaries committed a horrific series of beatings, burnings, and murders of civil rights activists. By the mid-1960s, however, they were clearly in decline, and by the end of the decade no politician of any consequence advocated a return to Jim Crow days.
In the narrow field of education, Brown ’s legacy has been mixed. While segregation by law is a thing of the past, residential patterns and white flight have left most urban school systems nearly as segregated as they were before 1954. The proposed solutions, including busing, racial quotas, and school choice, have proved much harder to sell than desegregation was.
Most significant of all, perhaps, has been Brown ’s effect on the judiciary. The decision was so obviously right and necessary that it set a precedent for sweeping judicial remedies aimed at social and political problems of all sorts, in areas that the Framers had never envisioned. In the decades since, judges have found in the Constitution a right to abortion and even, in a recent Massachusetts case based on its state constitution, a right for same-sex couples to marry. Whether one sees these decisions as welcome assertions of individual rights or as examples of the judiciary’s exceeding its role, the spirit behind them can be traced back to Brown v. Board of Education .