May 2019 marked 65 years since the passage of the seminal case on access to public education in the United States—a little case you might know as Brown v. the Board of Education of Topeka, 347 U.S. 483 (1954). On May 17, 1954, in a unanimous opinion authored by then Chief Justice Earl Warren, our nation’s highest court reexamined the doctrine of “separate but equal,” previously affirmed in cases such as Plessy v. Ferguson, 163 U.S. 537, and held that segregation in public schools deprived children of the minority race of equal educational opportunities.

As members of the legal profession, we all recognize the name of this case and the principles for which it stands. But what do we remember of the details? Moreover, despite the significance and magnitude of this decision, 65 years later, American public schools today are largely segregated by race, with unequal opportunities and outcomes. How is that even possible?

There is no easy answer to the latter question. But we might begin a discussion through examination of some of the details of Brown that are easy to forget after our 1L year. Here are a few points, interspersed with a bit of my own reflection and commentary as a lawyer of color.

1. Brown was actually a consolidated action, presenting appeals from four different states. Id. at 486. In Kansas, South Carolina, Delaware and Virginia, black children sought “admission to the public schools of their community on a nonsegregated basis,” and such admission was denied based on their race. The decisions of three states were upheld based upon the doctrine of separate-but-equal.
2. The issue before the United States Supreme Court, as phrased by Chief Justice Warren, was whether “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.” Id. at 493. The wording of this question, as presented, is significant, because it assumed, presumed, or perhaps refused to question, whether the education being provided to the black children in the legally segregated schools was, in fact, equal. In Brown, the Supreme Court noted that there had been findings that the facilities and provisions were equal. Id. at 492. The Supreme Court did not address this purported “equality” of the schools despite the fact that one of the lower courts (in Delaware) had ruled in favor of the black child based on its finding that the white schools were “superior” to the colored schools. Id. at 488 (“[T]he Supreme Court of Delaware adhered to that doctrine, but ordered that the plaintiffs be admitted to the white schools because of their superiority to the Negro schools”).
3. Although briefs and oral arguments focused on the adoption of the Fourteenth Amendment in 1868, the Brown Court also did not base its decision of the meaning and intent behind the Amendment. Why not? In large part, because the Court deemed them inconclusive. Id. at 489. Chief Justice Warren noted that proponents of post-Civil War Amendments “undoubtedly intended them to remove all legal distinctions” between the races, while the opponents “just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect.” Id. “What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty.” Id.
4. In Brown, the Supreme Court articulated the underlying principle of Plessy, pursuant to which, “equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities be separate.” Id. at 487-88. The Brown Court also acknowledged that it had previously considered “six cases involving the ‘separate but equal’ doctrine in the field of public education.” Id. at 491. At the same time, the Brown Court suggested that “[i]n none of these cases was it necessary to re-examine the doctrine to grant relief to the Negro plaintiff.” Id. at 492.

I clearly remember asking myself as a law student, “Could that really be true?” Could it be accurate that no one in those prior cases questioned the equality of the racial segregated schools? At least one of the lower court cases that were part of the Supreme Court’s Brown litigation clearly contained allegations that the schools were not equal. In the Kansas litigation, the district court had noted that “As against the school district of Topeka they contend that the opportunities provided for the infant plaintiffs in the separate all Negro schools are inferior to those provided white children in the all white schools; that the respects in which these opportunities are inferior include the physical facilities, curricula, teaching resources, student personnel services as well as all other services.” Brown v. Bd. of Educ., 98 F. Supp. 797, 797-98 (D. Kan. 1951). And, of court, the lower courts in Delaware had ruled for the Plaintiff, in spite of Plessy, because the schools were not separate, but equal.

5. Regardless, the Brown Court did not explain how the decisions of those six cases (upholding racial segregation under Plessy) were compatible with its holdings in cases like Strauder v. West Virginia, 100 U.S. 303, 307-08 (1880), in which the Supreme Court examined the Fourteenth Amendment and it was “interpreted it as proscribing all state-imposed discriminations against the Negro race.” Id. at 490.

How, exactly, would one square state-sanctioned racially separate-but-equal practices with a constitutional proscription against racial discrimination?

6. Notably, at least one of the prior cases involved a Chinese student who was not permitted to attend white schools, but was instead forced to attend black schools as a member of the supposed “colored” races. See Gong Lum v. Rice, 275 U.S. 78, 87, 48 S. Ct. 91, 94 (1927). Nearly 25 years before Brown, the Supreme Court had held that the Plessy doctrine applied to “pupils of the yellow races as well,” and that such segregated education was “within the discretion of the state in regulating its public schools and does not conflict with the Fourteenth Amendment.” Id.
7. If not based on either a constitutional proscription against discrimination or measurable factors, and if there was no real examination of the equality of the education, what factors or principles was Brown based on? The answer appears to be “intangibles.” Id. at 494. The Court decided to look at “the effect of segregation itself on public education.” Id. at 492. The Brown Court looked at the effect on the children, and concluded that “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.” Id. at 494. The Supreme Court noted that this finding had also surfaced in a Kansas case (which was not clearly cited by the Supreme Court in Brown):

"Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system."

Id. at 494-95. The Supreme Court then overruled Plessy, stating with finality that “in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal.” Id. at 495.

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As an African American attorney, educated in public schools (until college), I take this anniversary of Brown to reflect on what it has meant for my own education and opportunities. I do not believe that I would be writing this piece if Plessy had not been overturned. But, despite undeniable gains, there is one thing about this case that always bothered me—that the decision didn’t simply deem state mandated racial segregation to be inherently unconstitutional, without regard to intangibles.

I keep wondering … how might history have been different if the United States Supreme Court had been willing to make bold interpretations of the Thirteenth and Fourteenth Amendments? If the Court had been as concerned with a black girl’s right to an equal educational experience as it was moved by proof of the feelings of inferiority allegedly induced by racial discrimination? Was this “intangible” route the only way?

And what would public education look like now if, a hundred years ago, federal courts had forced states to educate all children equally, regardless of race? Because we still haven’t figured that part out…