The March Toward Equality

by ANTHONY LEWIS

THE official Southern myth sees the school segregation decision of 1954 as a sudden and unjustified break with history, a misuse of the judicial power, a departure from the Constitution itself. The myth rests on several assumptions: that our constitutional history placed hallowed sanction on the custom of providing separate-but-equal facilities for Negroes; that the South, in faithful observance of that rule, created substantial equality for the Negro in schools and other public facilities; and that the Supreme Court relied on sociology, not law, in overruling the segregation doctrine.

But the assumptions are false, and the myth is no more than a myth. The separate-but-equal doctrine does not go back to some distant constitutional fount; it was read into the Constitution by judges at a fairly recent date, in what historians would call a political act. Through most of its history the doctrine drew only lip service from the South; there was separation but no equality whatsoever. The Supreme Court’s abandonment of the rule was anything but sudden, the step being taken with the greatest care and only after many previous decisions had pointed in that direction. Nor was it unusual for the Court to overrule what it regarded as its own mistake, in the light of experience, and return to the true spirit of the Constitution.

History has to be explored at least briefly in any meaningful discussion of the 1954 decision. For it was no isolated event but the climax of a lengthy historical process: the rise and fall of racial segregation imposed by law.

Many of the forces that still move race relations in the United States were loosed in the Civil War, Not that the racial issue was the dominant cause of the war; most historians have concluded otherwise. But by the end of the war, the Union was altogether committed to the abolition of slavery and the uplifting of the Negro from his degraded status. The Thirteenth Amendment, prohibiting slavery, was adopted in 1865, immediately after the war. The Southern states responded by enacting the Black Codes, which restricted the rights of the newly freed Negroes and effectively made them serfs. Some of these laws, for example, forbade Negroes to own land outside towns or do any work but farming without a special license. Congress, dominated by the so-called Radical Republicans, set about to overcome the Southern schemes for keeping the Negro submerged. Some of the Radicals doubtless had motives of revenge or plunder, but others were moved by sincere egalitarianism. Whatever the motive, the post-Civil-War Congress assuredly did march under the banner of Negro rights.

In 1866 Congress passed the first Civil Rights Act. Specifically designed to wipe out the disabilities imposed by the Black Codes, it provided that Negroes should have the same right as white men “to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property . . . and shall be subject to like punishment, pains and penalties, and to none other, any law, statute, ordinance, regulation or custom to the contrary notwithstanding.”

President Andrew Johnson vetoed the bill, saying that it attempted to legislate in areas where Congress had no power matters of “internal police and economy” that the Constitution reserved for the state governments. Congress passed the act over the President’s veto, but doubts remained about its constitutionality. To provide a broad constitutional basis for federal action ensuring individual rights in any aspect of life, Congress proposed the Fourteenth Amendment later in 1866. It was ratified in 1868.

The Fourteenth Amendment began by declaring that all persons born or naturalized in the United States were citizens. This overruled the Supreme Court’s decision in 1857 in the Dred Scott Case, holding that Negroes could not be citizens. Then came the spacious language that has been the subject of so many lawsuits and so many political debates:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State 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.”

The one thing tolerably clear, as a matter of history, is that the primary, original purpose of the amendment was to protect the newly freed slaves. A contemporaneous Supreme Court so held. In 1873 a butchers’ monopoly granted by the Louisiana legislature was attacked as a violation of the Fourteenth Amendment. In the Slaughterhouse Cases, decided in 1873, a five-to-four majority of the Supreme Court held that the amendment did not extend to such an economic restriction unrelated to race. Justice Samuel F. Miller, for the majority, said the amendment’s “pervading purpose" had been to secure the rights of the Negro and protect him “from the oppressions of those who had formerly exercised unlimited dominion over him.”The dissenters did not disagree about this purpose of the amendment, but thought “the mischief to be remedied was not merely slavery and its incidents and consequences.”

The classic exposition of the Fourteenth Amendment by judges who had lived through its birth came in 1880. West Virginia law excluded Negroes from serving on juries. The Supreme Court, with only two dissents, held the law unconstitutional. Justice William Strong, for the majority, said the Fourteenth Amendment had been “designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons.” Quoting the language of the amendment, he went on:

“What is this but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color . . . ? The very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law, as jurors, because of their color, though they are citizens, and may be in other respects fully qualified, is practically a brand upon them, affixed by law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others.”

But that was the end of an era. By that time Northern politicians had lost interest in the cause of justice for the Negro. The Republican Party was dedicated not to human egalitarianism but to laissez-faire economics and the growth of industrial empires that dominated the last part of the nineteenth century. The disputed Hayes-Tilden election of 1876 marked the political watershed. The award of the presidency to Hayes was a bargain that historians have summarized as giving the Republicans control of the national government and economy while letting the whites of the South do as they would with the Negro.

THE South began taking advantage of the bargain in the late 1880s. Jim Crow statutes segregating Negroes in railroads and streetcars were enacted by the Southern legislatures. A poll tax was levied and restrictive qualifications adopted to keep Negroes from voting; the white primary completed the process of disenfranchisement. Ironically, poor whites and Populism hastened the subjugation of the Negro. Recent research has uncovered a body of upper-class Southern opinion at the end of the century that wanted to absorb the Negro into society.

As the political situation changed, so did the Supreme Court’s interpretation of the Fourteenth Amendment. The justices, like the country’s business and political leaders, became more interested in economics than in race relations. The protection of economic rights that the Court had refused to see in the amendment in the Slaughterhouse Cases was now found. The Court redefined the “persons protected by the language of the amendment to include corporations and found various state regulations of business invalid.

As for the meaning of the Fourteenth Amendment to Negroes, that was redefined in Plessy v. Ferguson in 1896. Louisiana had enacted a Jim Crow transportation law in 1890. When Homer Adolph Plessy, who was one eighth Negro, entered a railroad car reserved for whites, he was arrested. He challenged the constitutionality of the statute. The Supreme Court, by a vote of seven to one, found it valid.

“The underlying fallacy” of Plessy’s argument, wrote Justice Henry B. Brown for the majority, was its “assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act but solely because the colored race chooses to put that construction upon it.”

Justice Brown did not cite any legal authorities for that proposition. Nor could he, for it was nothing but a psychological or sociological thesis, doubtless widely accepted in his day, but not universally even then. There is nothing wrong with the Supreme Court’s interpreting language as broad as “equal protection of the laws” in light of the best contemporary understanding of human behavior. But it is somewhat ironic to realize the purely sociological basis of Plessy v. Ferguson, a decision so admired by the same Southerners who used “sociology" as a term of derision against the Court when it overruled Plessy in 1954.

The dissenter in Plessy, Justice John Marshall Harlan, did not accept the majority’s premise. “ The destinies of the two races in this country are indissolubly linked together,” he wrote, “and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law. What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments which in fact proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occuped by white citizens? That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana. . . . The thin disguise of ‘equal’ accommodations for passengers in railroad coaches will not mislead anyone, or atone for the wrong this day done.”

Certainly the spirit of Justice Harlan’s dissent was much closer to what the Court had said sixteen years earlier, in Strauder v. West Virginia, about laws affixing upon Negroes “a brand ... an assertion of their inferiority, and a stimulant to that race prejudice.” The Supreme Court in 1896 had simply turned its back on the aspirations of that earlier day. It had introduced the new thesis that the Constitution’s demand for equal protection of the laws could be met by legislation treating whites and Negroes as separate classes of people.

Plessy v. Ferguson was necessarily prophecy in good part. Justice Brown said: “A statute which implies merely a legal distinction between the white and colored races . . . has no tendency to destroy the legal equality of the two races.” Justice Harlan, in contrast, predicted that the Plessy doctrine of separate-but-equal would “stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens.”

As a prophet, Mr. Justice Harlan prevailed. Plessy v. Ferguson did help to stimulate the proliferation of segregation laws in every corner of life, literally from cradle to grave, for Negroes were barred from both white hospitals and white cemeteries. Nor was there any real pretense at equality in the decades following the Plessy decision. In 1915 South Carolina spent $23.76 per year on the average white child in public school, $2.91 on the average Negro child. As late as 1931 six Southeastern states (Alabama, Arkansas, Florida, Georgia, North and South Carolina) spent less than a third as much per Negro public school pupil as per white child. Ten years later, spending for the Negro had risen only to 44 percent of the white figure. At the time of the 1954 decision, the South as a whole was spending $165 a year for the average white pupil, $115 for the Negro.

Negroes were purged wholesale from the voting rolls. They were rigorously excluded from almost all except menial jobs. Their very lives were at the hazard of terror and mass injustice, and by the turn of the century more than one hundred Negroes were being lynched every year.

Through the early decades of this century it became clear to any detached observer that segregation was part of a deliberate pattern to degrade Negroes and deprive them of the rights they had been given after the Civil War. The Supreme Court was not blind to this change in the informed understanding of society. Slowly but with growing inevitability it eroded the foundations of Plessy v. Ferguson.

In 1917 the Court held unconstitutional a Louisville ordinance forbidding Negroes and whites to move into houses on city blocks occupied mostly by either race. The opinion said: “It is urged that this proposed segregation will promote the public peace by preventing race conflicts. Desirable as this is, and important as is the preservation of the public peace, this aim cannot be accomplished by laws or ordinances which deny rights created or protected by the Federal Constitution.”

In 1927 the Court held that state laws barring Negroes from voting in primary elections violated the Fourteenth Amendment, justice Oliver Wendell Holmes said: “States may do a good deal of classifying that it is difficult to believe rational, but there are limits, and it is too clear for extended argument that color cannot be made the basis of a statutory classification affecting the right [to vote].”

BEGINNING in 1938, there came a series of cases in the field of higher education. The first held that Missouri could not meet the test of separate but equal by offering to pay the tuition of a Negro Applicant for the Missouri Law School at an out-ofstate school. Chief Justice Charles Evans Hughes said the state had to provide equal facilities itself. The decision drew a dissent — the last in any major Supreme Court decision on racial segregation. Justice James C. McReynolds wrote:

“For a long time Missouri has acted upon the view that the best interest of her people demands separation of whites and Negroes in schools. Under the opinion just announced, I presume she may abandon her law school and thereby disadvantage her white citizens without impairing petitioner’s opportunities for legal instruction; or she may break down the settled practice concerning separate schools and thereby, as indicated by experience, damnify both races.”

Professor Paul A. Freund of the Harvard Law School has made a perceptive comment on the McReynolds dissent. “It is of course dangerous,” he said, “to accept a dissenting opinion as an objective guide to the meaning of a decision. But in this instance Mr. Justice McReynolds saw which way the winds of doctrine were blowing, and he did not like what he saw. What he saw was a steady, unmistakable progression on the part of the Court in applying the guarantee of equal protection of the laws to a series of issues: the right to serve on juries, the right to vote in primaries, the right to choose a place of residence without a legal color bar, the right to be considered for admission to a state professional school without discrimination because of race. The Court was recognizing the developing consciousness of the country that equal protection of the laws was to be given a full and not a qualified meaning.”

In 1950 the Court held that a new law school set up by the state of Texas for Negroes did not provide equal protection of the laws because, as Chief Justice Fred M. Vinson put it, “the University of Texas Law School [for whites] possesses to a far greater degree those qualities which are incapable of objective measurement but which make for greatness in a law school. Such qualities, to name but a few, include reputation of the faculty, experience of the administration, position and influence of the alumni, standing in the community, traditions and prestige. It is difficult to believe that one who had a free choice between these law schools would consider the question close.”

When such intangible factors were placed in the scale, how could any separate school ever be termed “equal”? In the New York Times the day after the Texas law school decision, Arthur Krock said the separate-but-equal doctrine was now “a mass of tatters.”

It was in that context that the Supreme Court came to the great issue of public school segregation — the context of a legal history showing a developing momentum against the separate-but-equal rule. But in this case there was involved the compulsory association of children day after day and year after year, and it was just such association that Southern whites most feared.

Moreover, the Court was dealing with a practice that covered a large part of the country. Seventeen Southern and border states and the District of Columbia, with 40 percent of the country’s public school enrollment, required segregation in the schools. (The states were Alabama, Arkansas, Delaware, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Virginia, and West Virginia.) There were some segregated schools also in three other states whose statutes permitted the practice: Arizona, Kansas, and New Mexico.

The Supreme Court, fully aware of the delicacy of the issue, handled it with exceptional care and deliberation. It should also be pointed out that the Court did not go out looking for the school segregation issue. It was brought there by Negro individuals and civil rights groups desperate to improve Negro educational opportunities. In the 1930s, the N.A.A.C.P. had proposed lawsuits to attack only the inequality of Negro school facilities and teachers’ salaries; but the victories in the graduate school cases inevitably led to a direct assault on the institution of segregation.

THE first school case came to the Supreme Court in 1951, from Clarendon County, South Carolina. A three-judge federal district court had upheld the constitutionality of segregated schools by a vote of two to one, but ordered prompt action to correct the admitted inequality of the Negro schools. (The dissenter, Judge J. Waties Waring of South Carolina, was virtually driven out of the state for his courage.) On January 28, 1952, the Supreme Court acted to avoid an early constitutional decision in the case. It sent the matter back to the lower court to get its views on a report filed by the school board concerning the program to equalize facilities. Justices Hugo L. Black and William O. Douglas dissented, saying the report was “irrelevant to the constitutional questions” and urging that those questions be argued at once.

In the fall of 1952 the South Carolina case was back, along with others from Kansas, Delaware, Virginia, and the District of Columbia. Because the Kansas case was listed first, it gave its name to the historic litigation: Oliver Brown et al. v. Board of Education of Topeka, Kansas.

The cause of the Negro plaintiffs now received a most significant boost. The federal government, in the last days of the Truman Administration, filed a brief as a friend of the Court attacking the constitutionality of segregation. It was prepared by Philip Elman, a career Justice Department lawyer of unusual scholarship and imagination, who had been a law clerk to Justice Felix Frankfurter of the Supreme Court.

The brief argued that the separate-but-equal doctrine was, when laid down in 1896, “an unwarranted departure, based upon dubious assumptions of fact combined with a disregard of the basic purposes of the Fourteenth Amendment, from the fundamental principle that all Americans, whatever their race or color, stand equal and alike before the law.” Nor did the age of the precedent “give it immunity from re-examination and rejection,”the brief went on. The Court had overruled its own decisions dozens of times. In 1944 it had said: “When convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment and not upon legislative action, this Court throughout its history has freely exercised its power to re-examine the basis of its constitutional decisions.”

The conclusion was that the Court should, if it reached the ultimate question, overrule the separatebut-equal doctrine. “Compulsory racial segregation is itself an unconstitutional discrimination.” But this was not the only significance of the brief. Perhaps even more vital was a suggestion advanced as to the procedure for carrying out any decision against school segregation. The government said the Court would not have to order all segregation ended everywhere at once. Instead, the Court should send the cases back to the district courts so that those local tribunals could work with local authorities to devise plans for desegregation. The brief said the Court might even want to issue no final decrees with its decision but order a further argument on the question of implementation. In short, the government put forward a moderate approach that recognized, as it said, “the practical difficulties” in ending a custom with such deep roots.

What made that suggestion so significant was that the practical difficulties were just what concerned some of the members of the Supreme Court. The deliberations of the justices have not been disclosed. But it is known that some deeply feared the reaction that might be aroused by an order for immediate, total desegregation. If that had been the only course open, they might well not have voted to declare segregation unconstitutional. They might, as one alternative, have said that the magnitude of the issue made it appropriate for resolution not by the Court but by Congress, which is empowered by Section Five of the Fourteenth Amendment to enforce its terms. In this regard the position of Justice Frankfurter is believed to have been critical. For while he was personally a dedicated opponent of racial discrimination, he had often expressed concern about the effect on the Court as an institution if it tried to go too far too fast in constitutional decisions.

The Court heard the cases and then, at the end of the term in June, 1953, put them over for reargument in the term beginning the following October. The Court posed a series of broad questions now, asking counsel to deal with them in their briefs and argument. First, there was a historical inquiry: Had the men who framed and ratified the Fourteenth Amendment understood that it would prohibit segregation in public schools? Then, interestingly, the Court asked about the relative powers of Congress and the judiciary in interpreting the amendment: Had its framers contemplated that future Congresses might abolish segregation? Was it “within the judicial power, in light of [changed] conditions, to construe the amendment as abolishing such segregation of its own force?” The Court also took up the suggestion in the Justice Department’s brief and asked whether, if it held segregation unconstitutional, it could properly allow “gradual adjustment” and whether the proper way to carry that out was to remand the cases to the district courts.

The government answered those questions in a lengthy new brief the following November. There was political as well as legal import in the brief, for a new Administration had taken office since the first government presentation. President Eisenhower himself took a hand in determining the position. In charge at the Justice Department were Attorney General Herbert Brownell, Jr., and Assistant Attorney General J. Lee Rankin. Mr. Elman again did the major part of the drafting.

The brief examined in great detail the legislative history of the Fourteenth Amendment as proposed by Congress and ratified in the state legislatures. While there were some references to school segregation, the government said, they were “too few and scattered to justify any definite conclusion as to the existence of a general understanding ... as to the effect which the amendment would have on school segregation.” But “the primary and pervasive purpose of the Fourteenth Amendment” was “to secure for Negroes full and complete equality before the law and to abolish all legal distinctions based on race or color.”

And the fact was that the amendment had been framed in the broadest, most general language. It did not mention schools, a point often raised by Southerners as if it had some relevance. But neither did it mention voting or housing or juries or corporations, all areas in which the Supreme Court had repeatedly held that the amendment barred discriminatory state action. And of course the amendment did not contain the words “separate but equal.” The framers followed the example of those who wrote the original Constitution in using expansive phrases that would be given contemporary meaning by each generation.

The demand of the Fourteenth Amendment was for “equal protection of the laws.” There was no talisman in the history of the amendment that defined those words for all times. The separate-butequal doctrine had itself been a fresh interpretation, a departure in 1896 from the spirit of earlier decisions. It was in the great tradition of the Constitution, the government said, to read the words now in light of conditions now. A provision such as the equal-protection clause expresses “broad principles of government, the essence of which is their vitality and adaptability to the progressive changes and needs of the nation.”

Nor did the government’s brief see anything in the suggestion that Congress rather than the Court should deal with the issue. The Supreme Court had applied the Fourteenth Amendment in hundreds of cases without reference to Congress in the racial field most recently in the graduate school cases. What was posed now was “a question not of legislative policy but of constitutional power — and it is a question which under our system of government must ultimately be determined by this Court.”

WHEN the brief was filed, it puzzled some observers in one respect. It did not directly urge the Court, as the previous Administration’s brief had, to hold racial segregation in the public schools unconstitutional. Instead, the 188-page document was confined to what was termed “an objective non-adversary discussion” of the questions posed by the Court the previous June. The brief concluded, for instance, with a conditional statement: “If the Court holds that laws providing for separate schools are unconstitutional, it should remand the instant cases to the lower courts with directions to carry out the Court’s decision as the particular circumstances permit.”

Just how the brief emerged in this form is disputed. Some who participated in the drafting say that it contained a direct call for a finding of unconstitutionality when the draft was submitted to Attorney General Brownell, and that it was softened by either Mr. Brownell or President Eisenhower. But Mr. Brownell states that the draft “did not include any [such] conclusion . . . when it reached my desk and, so far as I know, never did include it. Mr. Rankin . . . and I agreed at all times that since the brief was filed in direct response to questions asked of the department by the Court, it should answer those questions solely.” In any event, Mr. Rankin and the Attorney General did discuss what Mr. Rankin, who was to make the oral argument, should say if asked by a member of the Court what the Justice Department’s position now was on the constitutionality of school segregation. As Mr. Brownell puts it, “we agreed that the oral answer should be that the department’s position was that such segregation should be held unconstitutional. President Eisenhower was advised that this was our opinion prior to the time of the oral argument.” What the President’s comment or advice may have been is not known. But in truth, the thrust of the Justice Department brief, for all its lack of a firm conclusion, was plainly against segregation. The brief told the justices that they had the power and the duty to give the Fourteenth Amendment a contemporary interpretation. And it said that the import of decisions up through the graduate school cases was to make it “unreasonable and unconstitutional . . . for a state to establish or enforce legal distinctions based on race or color.”

When the cases were reargued, in December, 1953, fate had made a most important change in the Supreme Court. Chief Justice Vinson had died during the summer, and President Eisenhower had appointed in his place the governor of California, Earl Warren. Only when some future historians have access to the judicial papers of that period will it be possible to state accurately the impact of the new Chief Justice on the school cases. But enough has been said or hinted to make it clear that the change of membership on the Court made a real difference in the way Brown v. Board of Education looks to history. Chief Justice Vinson’s inclination was to carry on the approach of the Texas law school case, further tightening up the standard of equality within the separate-but-equal doctrine. In short, he thought it was not the time to challenge segregation per se; the most he was likely to have done was to say that the Negro pupils here did not have real equality. The indications were that he might have carried one or more of his colleagues with him, and that at least two members of the Court were inclined to put the whole issue to Congress. There was certainly no unanimity of desire on the Court to face up to the ultimate question of whether segregation itself denied the equal protection of the laws. In all likelihood, as things stood during the Vinson period, the Brown case would have produced a collection of differing opinions.

Unanimity was the most striking aspect of the decision when it came down on May 17, 1954. Chief Justice Warren delivered the opinion; there was no dissent, nor even a separate concurring opinion.

The opinion found the history of the Fourteenth Amendment “inconclusive” in relation to school segregation, as the Justice Department had argued. In any case, history could not give an adequate answer because public education was just beginning in the 1860s. “We cannot turn the clock back to 1868 when the amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life. ... In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms. 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.”

The Chief Justice noted the Texas law school case and its emphasis on intangible differences in schools. “Such considerations,” he said, “apply with added force to 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 of Plessy v. Ferguson, this finding is amply supported by modern authority.” Here the opinion, in a footnote that has been much criticized, cited the writings of various social scientists. “We conclude,” the Chief Justice said, “that in the field of public education the doctrine of‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”

The Court ordered still further argument the next term on problems of implementing its decision. Simon E. Sobeloff, who had become Solicitor General, submitted a brief for the federal government suggesting that the cases be remanded to the trial courts to work out local problems. President Eisenhower personally inserted a passage in the brief. Where it said that the Court had outlawed “a social institution which has existed for a long time in many areas throughout the country,” he added “an institution, it may be noted, which during its existence not only has had the sanction of decisions of this Court but has been fervently supported by great numbers of people as justifiable on legal and moral grounds. The Court’s holding in the present cases that segregation is a denial of constitutional rights involved an express recognition of the importance of psychological and emotional factors; the impact of segregation upon children, the Court found, can so affect their entire lives as to preclude their full enjoyment of constitutional rights. In similar fashion, psychological and emotional factors are involved — and must be met with understanding and good will — in the alterations that must now take place in order to bring about compliance with the Court’s decision.”

On May 31, 1955, after what was surely one of the most exhaustive considerations it had ever given to any issue, the Supreme Court finally disposed of Brown v. Board of Education. Chief Justice Warren’s opinion on implementation generally followed the line suggested by the Justice Department but was even more gradualist in one respect: The Court did not, as proposed by the department, direct the lower courts to make local school authorities present desegregation plans within a specified time. It said only that the lower courts must require “a prompt and reasonable start toward full compliance.” The process of desegregation, the opinion concluded, must proceed “with all deliberate speed” — a phrase first used in the Supreme Court in 1911 by Justice Holmes, and often invoked in recent years by Holmes’s great admirer, Justice Frankfurter.

One passage especially in Chief Justice Warren’s 1954 opinion was seized upon by Southerners as proof that the decision did not rest upon “law.” This was the footnote citing the works of social scientists, including Gunnar Myrdal, as “modern authority” for the statement that segregation engendered feelings of inferiority. But the footnote was at worst pretentious superfluity. It took no reference to social scientists to know that stateenforced separation of human beings on account of their race was a calculated device to exalt one group and debase another. Justice Brown has simply been proved wrong in his sociological hypothesis, in Plessy v. Ferguson, that there was nothing invidious about segregation unless the Negro chose “to put that construction upon it.” After Adolf Hitler, the world knew, and the Supreme Court would have been blind not to see, that it was invidious to separate out one group in society, whether Negroes or Jews or some other. Justice Harlan had been right when he said that segregation “puts the brand of servitude and degradation” on the Negro. The Court had moved toward his dissenting view in Plessy v. Fergusons: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Segregation was not the equal protection of the laws.