Brown v. Board of Education of Topeka, Kansas (1952)

- Five cases rolled into one: Briggs v. Elliott, Brown v. Board of Education of Topeka, Kansas, Bulah v. Gebhart; Belton v. Gebhart, Davis v. County School Board of Prince Edward County, and Bolling v. Sharpe.
- Federal Government submitted an "amicus brief" on the cases (written by Philip Elman, acting for Attorney General McGranney and Solicitor General Stein)
o Elman was free to look at the segregation issue from a national, even international perspective.
o He argued that the mistreatment of blacks, particularly in the nation’s capital, damaged the United States’ reputation abroad and was “taken as a measure of our attitude towards minorities generally,” damaging the US’ moral leadership in world affairs.
o He quotes from 1947 President’s Committee on Civil Rights report about the embarrassment caused by complaints of minority visitors in a segregated city, but he also cites the problems faced by blacks who try to move into the city and must contend with substandard housing, inferior schools, inferior health care, and lower paying jobs—all results of segregation.
o He describes how segregation plays to the propaganda purposes of Cold War rival, the USSR and how the UN has condemned segregation.
o Finally, he recommends an “orderly and progressive” transition to integrated schools.

- Arguments before the Justices:

o On the Brown case, Carter (NAACP),

§ in response to a Frankfurter prod, urged the judges to directly face the separate but equal doctrine articulated by Plessy and over-rule it. He argued that the constitutional invalidity of separate schools stems from the act of segregation itself: all evidence of inequality was insignificant compared to the simple fact that racial segregation reflected the attitude of whites that blacks were inferior. Using the law to enforce this attitude violated the equal protection clause of the 14th Amendment. 
§ Carter also cited the Hirabayashi (1943) 5th Amendment Case in which the Court had found racial classifications (which led to the relocation of Japanese Americans) to be inherently suspect and only permissible due to a compelling national security crisis. Frankfurter asked Carter if there were any rational basis for the classification and separation of black students from whites. Carter replied, “No.”

o Paul Wilson had been drafted by the Kansas Attorney General to speak before the Court, and he was unprepared; in his presentation he clung closely to the Plessy precedent:

§ He dismissed the social science testimony cited by Judge Huxman, arguing that no direct evidence had been presented to prove that Linda Brown or any other black student in Topeka had suffered any psychological or educational damage from segregation.
§ He argued that Plessy had stood for 50 years without reversal and that 17 states relied on the separate but equal doctrine in segregating schools.

o Marshall (NAACP), seeking to overturn Briggs v. Elliott

§ attacked the constitutionality of racial classifications by citing the Court’s decision in Nixon v. Herndon, the decision which overturned white primaries and quoted Holmes opinion: “color cannot be made the basis for a statutory classification.” 
§ He argued that this decision, with Hirabayashi, should serve as better precedents to judge segregation than the Plessy decision.

o John Davis (South Carolina) had argued more cases before the Court than Daniel Webster. 

§ Response to Burton question: “Had social conditions changed in the South such that what was unconstitutional when the 14th Amendment was adopted may be constitutional now?" Davis had to admit that changed conditions may affect public policy, but he argued that changing laws to meet these conditions was a legislative responsibility.
§ Frankfurter asked him about the ‘fluidity’ of our understanding of the definition of the 14th Amendment’s use of the term ‘equal’ (in comparison to our changing understanding of the interstate commerce clause. Davis had to admit that the definition of our understanding of equality could change but he argued that the lawmakers who had approved the 14th Amendment had not intended to prevent the separation of whites and blacks. (They had passed segregation laws for Washington DC public facilities that same year.)
§ Davis dismissed the sociological findings of Clark and other experts as ideologues who “find usually what they want to find,” and he dismissed the ‘doll test’ for its limited sample.
§ He concluded by asking the judges to consult the wishes of parents, black and white: shouldn’t they be polled before integration is forced upon them?

o Nabrit (NAACP), arguing the Bolling case, 

§ asserted that the due process clause of the 5th Amendment directly protects the liberty of each citizen (unlike the 14th Amendment’s equal protection clause which is directed at states.) Nasbrit argued that liberty, unlike equality which can be measured, is either possessed by an individual or it is not. Therefore, any interference with the liberty of a citizen must be justified by the state.

o Korman, Washington DC’s attorney,

§ Shocked the court by quoting Dred Scott as part of his argument that the Court’s rulings should not be subject to the wavering popular opinions of the day.

- The Court’s decision was momentous because it would affect more than 12 million students in 17 states and Washington DC: almost all with white school boards elected by white voters. Their decision threatened to provoke widespread disobedience and potential bloodshed.

o Notes on Conference (form papers of Burton and Jackson)
§ Vinson (Kentucky) (+) feared that striking down segregation would result in the complete abolition of the public school system in the South.
§ Black (Deep South) (-) Hard vote to reverse.
§ Reed (Kentucky) (+) Segregation is constitutional: equality of facilities needs to be mandated.
§ Frankfurter (Harvard Law) (-) proponent of judicial restraint (even incases of legislation against free speech) but he advocated reversal, but he feared drastic change and suggested deferring decision for a year in which the lawyers would prepare briefs exploring the lawmakers’ intentions when framing the 14th Amendment.
§ Douglas (Far West) (-) Simple decision: The state cannot classify by color for education.
§ Jackson (New York) Undecided
§ Burton (-) Eager to upset segregation but believes that integration must proceed slowly
§ Clark (Texas) (-) Rejected Jim Crow but observed that the South would object to Yankee meddling and argue that they had been led to believe that separate but equal was OK
§ Minton (Indiana) (-) Truman crony, firm stand against segregation.

o Frankfurter thought that the Court needed to make a unanimous decision but that would take time. He composed five questions for the lawyers to prepare briefs in answer to:

§ Did the 14th Amendment framers intend to abolish segregation?
§ Did they believe that either the Congress or the federal courts could abolish segregation?
§ If the framers had not intended to address the question of segregation, could the Court construe the amendment’s intention in a new way to abolish segregation?
§ (Questions 4 and 5) If the Court abolished segregation, how might it frame orders to implement the ruling?

- September 8: Chief Justice Vinton dies of a heart attack. 

o Frankfurter’s response: “This is the first indication I have had that there is a God.”
o Eisenhower nominates California Governor Earl Warren for the post of Chief Justice, bypassing Jackson.

- December 7, 1953: Second Round of Arguments heard:

o Davis: 
§ The lawyers on both sides have differed in their responses to the historical quiz. Even the attorney general “says he does not know which is correct. So your Honors are afforded a reasonable ground for selection.”
§ He ended his presentation in tears claiming that South Carolina intended to provide equal educational opportunities for both whites and blacks. Should that be thrown away over a mere question of “prestige”?

 o Marshall:

§ “Exactly correct. Ever since the Emancipation Proclamation the only thing the Negro has been trying to get is the same social status s anybody else regardless of race.”


- Warren was determined to get another unanimous decision and brief and forceful opinion. The Justices had to speak with one voice in language which the American people could understand.

o Frankfurter: “All deliberate speed.”
o Jackson: he wanted a frank admission that overturning segregation had no explicit constitutional warrant.
o Reed: still opposed: the 14th Amendment only provides for equal treatment, not identical

- Warren Opinion for unanimous court (May 17, 1954)

o Dismisses Plessy in one sentence as a precedent involving no0t education but transportation
o “We cannot turn the clock back” to the 19th century when Plessy was decided
o Dismisses evidence of whether schools had been or are being equalized
o Warren emphasized the psychological impact of segregation on black children:
§ The primary goal of education is to foster cultural values and good citizenship. Could that happen in segregated schools?
§ He quotes Huxman’s finding in the Brown case: Louisa Holt’s argument that separation denotes inferiority of Negroes and diminishes the motivation of the child to learn.
§ “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.”
§ Warren also ruled that segregation violated the due process clause of the 5th Amendment: liberty cannot be restricted except for a proper government objective.
§ Conclusion: Separate educational facilities are inherently unequal and violate the equal protection clause of the 14th Amendment.


- Reactions:

o Southern governors girded for massive resistance to the decision.
o Schools in Baltimore were opened to both races in the fall of 1954, but only 4% of the city’s black children attended schools with whites.
o One in ten Kentucky school districts announced plans to integrate their schools.
o The Deep South waited to see what federal judges would do.