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Flashbacks: "African-American Education" (December 1995)
Articles by W.E.B. DuBois, Booker T. Washington, and others consider the education and empowerment of African-Americans.

The Atlantic Monthly | July 1954
 


Segregation and the Supreme Court

"One should never forget the immense moral pressure of such a great judgment as that just announced, and its capacity to persuade men of good will who have been doubting and hesitating"
 
 by Arthur E. Sutherland
 
 .....
 
t was a great day—Monday, the 17th of May, 1954. On that day the Supreme Court decided that the Constitution proscribes, anywhere in the United States, public schools in which Negro children and white children are kept separate because of their race. On that day the Court did justice to more than the children before it; the judgment will benefit all the people of the nation alike in the states where segregation has long since been given up, and in those where, at least to some, the Court's word was unwelcome.

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

The segregation decision has its roots in other history. There was Dred Scott's case in 1857 when Chief Justice Taney wrote that a Negro whose ancestors were sold as slaves could not become a member of the political community formed by the Constitution; could not become a citizen of one of the states and so have the privilege of suing in a Federal court. The old unhappy battles between 1861 and 1865 underlie this year's segregation cases. So does the Fourteenth Amendment, adopted in 1868:—
No State shall ... deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
It is hard to say that the men who wrote those words intended to end separate schools for Negro and white children. In 1862, 1864, 1866, and 1874, the Congress enacted legislation which specifically provided for separation of the races in the schools of the District of Columbia. It is difficult to think that the Congressmen of that time proposed to require by constitutional amendment that the states do what Congress was unwilling to require of the District.

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

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

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ut new ideas were stirring in the land. A younger generation of people who heard of cases like Martha Lum's were saddened, and wished the law might be otherwise. By 1950 "separate but equal" had begun to crack. In that year the Supreme Court passed on the case of a Negro named Heman Sweatt, qualified, except for his race, to enter the University of Texas Law School. State law restricted that university to white students. Sweatt applied to a Texas court for a mandamus order to compel his admission. While the case was pending, Texas set up a separate law school for Negroes and relied on "separate but equal" to justify excluding Sweatt from the white school. But on June 5, 1950, in a unanimous opinion of the Supreme Court written by Chief Justice Vinson, the Texas courts were reversed and Heman Sweatt was ordered admitted to the University of Texas. The Court declined to re-examine "separate but equal," for the law school to which Texas was willing to admit Sweatt was not, the Court found, equal to that for whites. The Negro school, said Chief Justice Vinson, excluded the 85 per cent of the population of Texas from which come most of the lawyers, witnesses, jurors, judges, and officials with whom a Texas lawyer is inevitably in contact.
With such a substantial and significant segment of society excluded, we cannot conclude that the education offered petitioner is substantially equal to that which he would receive if admitted to the University of Texas Law School.
On the same day the Supreme Court decided a more difficult case. This involved a man named McLaurin, a Negro who wished to become a Doctor of Education. He had the necessary academic standing and was admitted to the University of Oklahoma. But the Oklahoma legislature required that instruction be given to Negroes "upon a segregated basis," and McLaurin was given a desk in an anteroom adjoining the white classroom, was given a separate place to sit in the library, and was told to eat at a different time in the cafeteria. He applied to the United States District Court in Oklahoma for an order modifying these conditions, the relief was refused him, and ultimately he brought his case to the Supreme Court. It was a puzzling case. McLaurin was eating the same food, studying in the same library, and listening to the same instructors at the same time as white students. But the unanimous Court, in another opinion by Chief Justice Vinson, held that the restrictions imposed on McLaurin impaired "his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession." This, the Court said, produced inequality and deprived him of the equal protection of the laws.

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

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

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

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he Court approached its duty with proper care. It first heard argument in December, 1952, held the cases under advisement until the following June, and then directed the reargument conducted last December. In the meantime, for those of us who were hoping for a ringing and unanimous declaration of the end of the doctrine of separation, there were both encouraging and discouraging aspects of the situation. Decisions in two other cases, in May and June, 1953, were heartening. One involved a purportedly private political party in Texas called the Jaybird Democratic Association, which excluded all Negroes; the other concerned a contract between two white men by which one of them agreed not to sell land to a Negro. Neither of these cases, on its facts, resembled the school segregation cases, but in each the decision was such as to favor the Negro's decent position in society. The Court held that the Jaybird Party must admit Negroes to its primary, and that the land contract was unenforceable. These were difficult controversies; both could have been decided on grounds which, at least in form, had nothing to do with race relations; both were decided the way a friend of the Negro people would wish. These were straws in a favoring wind.

On the other hand, there were worries in the five school segregation cases. Would the Court perhaps find that the Negro schools were not equal to the white, and hence that it was not necessary to decide what would be the law if they were equal? Would the Court, even if it felt that the issue was squarely presented, find distinctions between university students and grade-school pupils, and refuse to override generations of established practice of segregating children in primary schools?

These worries for those of us who wished the Negro children well disappeared a little past noon on May 17, 1954. For on that day, speaking for a united Court, the Chief Justice declared in plain words that neither in the District of Columbia nor in any one of the states does it fit with our Constitution to maintain a white public school which keeps out children whose skins are darker.

The two opinions of the Court, as is right in explaining the Constitution, are written in plain words. Mr. Justice Warren had as the center of his problem in the state cases escape from the verbal symmetry of equality in separation. If, speaking for the United States, he was to forbid any state to keep white children and black children apart in equal schoolhouses, he had to find some inequality in this treatment. He and the eight brethren for whom he spoke found it in what we all know: that excluding the Negro from schools where white children go denotes inferiority of Negro, not white. If, said Chief Justice Warren, segregation hurt McLaurin, an advanced graduate student in a university, it hurts children in grade schools the more. It generates a feeling of inferiority as to their status in the community; it may affect their hearts and minds in a way unlikely ever to be undone. Separate educational facilities are inherently unequal. Finding a denial of equal protection, the Court had no need to discuss due process of law under the Fourteenth Amendment.

Philosophically, the District of Columbia case produced an even more profound opinion. Here there was no equal protection clause to rely on. The court had to decide whether segregated schools deprive the Negro of liberty without due process of law. And the Court found it so.
Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective.

Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause.
What lies behind the Court's concept of "proper" government? What is proper for the many to do to the few? What is right? What is truth? What is justice? Back of the decision lay ideas of the spiritual origin of individual man, and the bright hope of the eighteenth century that somehow it would turn out that all men are created equal.

Man has never succeeded in defining justice, and this is well; any definition might exclude what he would later wish to preserve. But the Supreme Court had no trouble in deciding on what was not justice; it was not justice to exclude the Negro child from the school where the white children could go. And that judgment day was a great day. As I write, the papers are full of reports of governors calling together educational commissions to consider what shall be done; and in two or three states there are reported a few—surprisingly few—hurt and indignant utterances from public officials. This is not remarkable. For generations men have felt deeply and resentfully about this matter. People against whom any court decides are apt to be exasperated, and say things in immediate hurt which a little later they realize they do not wholly mean.

More widespread are reports of plans for the hearings in the fall, when those interested will have a chance to discuss the terms of the Court's formal decree. There is nothing very extraordinary about the Court's deferring this final crystallization of judgment. The words "Settle decree on notice" appear at the end of many opinions. A court's opinion gives general ideas about the case, discusses precedent and theory, and announces the judgment. A decree is a later, much more precise, and much less eloquent document, which tells the parties exactly what they must do. The school situations differ in each of the four states and in the District of Columbia. Even assuming a desire on the part of all concerned to put into effect the new policy at once, there would still be complicated arrangements to make. Delay and a chance for the parties to be heard about the effectuation of the judgment are not at all unreasonable.

Furthermore, it is wise. One should never forget the immense moral pressure of such a great judgment as that just announced, and its capacity to persuade men of good will who have been doubting and hesitating. No state in the Union is populated by a separate species of cruel and brutal white men, seeking by cynical devices or by sheer defiance to escape the performance of constitutional duties. One has only to travel in the present South to realize the contrary—to be convinced of the rapid increase of humanitarianism, of cultivation, of kindness, of comfort, of all the good things that go to make up a great civilization.

Announcements from thoughtful people in the southern states are sensible and heartening. As this is written, on May 19, the Commissioner of Education of Texas has said that he was sure that Texas would comply with the Supreme Court's decision; the Governor of Kansas has expressed the intention of that state to adjust its schools; the Superintendent of Instruction of St. Louis, Missouri, has done the same. Kentucky is in the same frame of mind; the State Superintendent of Instruction of Virginia has stated that there will be no defiance of the Supreme Court decision as far as he is concerned. West Virginia feels the same.

The most resentful statements to come from public officials are from South Carolina and Georgia. But the influence of time; the quiet example of the majority of southern states; the words of the many moderate people in the less moderate states; the admiration and respect felt for the President, who has urged that the District of Columbia proceed at once with desegregation; the immense moral pressure of the simple and unanimous opinion of the nine justices—all of these things will be working. There will be problems to solve, but foolish words will quiet down and a wiser day will come. This is a time to respect, and to have confidence in, the people of the South.

After all, these are not the first tense issues to adjust themselves rightly without pressure on the states concerned, other than the moral force of a judgment of the Supreme Court. For a number of years, early in this century, litigation was pending between Virginia and West Virginia over the payment of West Virginia's share of Virginia's pre-1861 debts. This, too, raised bitter memories and thoughts of defiance. The case came before the Supreme Court several times; and after one of these hearings Mr. Justice Holmes, who had himself been thrice wounded in another sort of difference between states, spoke wise words:—
… [This] case is one that calls for forbearance upon both sides. Great states have a temper superior to private litigants and it is to be hoped that enough has been decided for patriotism, the fraternity of the Union, and mutual consideration, to bring it to an end.
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Copyright © 1954 by Arthur E. Sutherland. All rights reserved.
The Atlantic Monthly; July 1954; Segregation and the Supreme Court; Volume 194, No. 1; 33-36.
Papers of Arthur E. Sutherland, Box 21-7, Harvard Law School Library.