Brown v Board of Education for Topeka Case (US)
Stephen M Feldman
- Equality regardless of race — Comparative constitutional law — Right to education — Education — Social rights — Fundamental rights
Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
1. For a quarter-century after World War II, Brown v Board of Education for Topeka (1954) was unquestionably the most renowned case of the Supreme Court of the United States. Brown held that racial segregation of children in public schools violated the United States Constitution (racial discrimination ). More broadly, Brown undermined the enactment and enforcement of ‘Jim Crow’ laws, which mandated racial segregation in a host of public accommodations, ranging from buses and schools to parks and water fountains. The international context of the Cold War significantly influenced the Supreme Court’s decision in Brown, and in that context Brown was influential. But Brown had little direct impact on the jurisprudence of other countries.
B. The Historical Background of Brown
2. The Civil War in the United States, lasting from 1861 to 1865, led to the adoption of the Thirteenth Amendment to the United States Constitution and the abolition of slavery. In response, the former Confederate (slave) states, intransigent despite losing the war, began enacting statutes, referred to as ‘Black Codes’, imposing legal disabilities on African American citizens—the freed slaves—thus effectively reducing them to peonage. Soon after, the United States adopted the Fourteenth Amendment, which empowered the national government to combat the Black Codes. The Equal Protection clause of the Fourteenth Amendment states, ‘no State shall … deny to any person within its jurisdiction the equal protection of the laws.’ Nonetheless, the Supreme Court of the United States emasculated the Equal Protection clause through a series of cases decided in the late nineteenth century. Most important, in Plessy v Ferguson , decided in 1896, the Court upheld a Louisiana statute that required railroad companies to provide separate but equal accommodations for African American and white passengers. The Court stated that the separation of African Americans and whites was a ‘public good’ (Plessy 550). The separate""but-equal doctrine of Plessy led Southern states to mandate separate public facilities in numerous contexts, including education. While these facilities were separate, they were almost never equal, as documented by Professor Derrick Bell:
In 1915, South Carolina was spending an average of $23.76 on the education of each white child and $2.91 on that of each black child. As late as 1931, six Southern states (Alabama, Arkansas, Florida, Georgia, and North and South Carolina) spent less than one-third as much for black children as for whites, and ten years later this figure had risen to only 44 percent. [In 1954] the South as a whole was spending on the average $165 a year for a white pupil, and $115 for a black’ (Bell, Race, Racism 373).
3. The National Association for the Advancement of Colored People (NAACP), led by its Legal Defense Fund (LDF), orchestrated a sustained campaign of litigation attacking the separate-but-equal doctrine (Tushnet; Kluger; Cottrol, Diamond and Ware 53–8). Initially, the NAACP accepted the existence of separate facilities but challenged the inevitable inequalities between the black and white institutions. The Supreme Court first accepted this type of constitutional challenge in 1938, in Missouri ex rel Gaines v Canada. The University of Missouri School of Law denied admission to Lloyd Gaines because he was African American. The State did not operate a law school for its black citizens, but it maintained that its offer to pay Gaines’s tuition at an out-of-state law school satisfied its constitutional duty to provide an equal though separate education. The Court rejected this argument, holding instead that the State’s offer to send Gaines’s to an out-of-state law school did not equal the opportunity to attend an in-state school—an opportunity that the State extended to every educationally qualified white citizen.
4. The NAACP pushed the Court further in Sweatt v Painter , decided in 1950. The University of Texas School of Law denied admission to Herman Marion Sweatt on the basis of his race. After Sweatt initiated the litigation, the State quickly created a black law school and thus claimed that the State’s African American citizens had an equal though separate facility. The Supreme Court held, however, that the recently created black law school did not equal the University of Texas School of Law. Significantly, the Court concluded that the facilities were unequal because of tangible and intangible factors. The Court first reasoned that tangible qualities, such as the size of the libraries and the number of faculty at the respective institutions, differentiated the two schools. Second, the Court reasoned that intangible factors, such as the reputation and prestige of the University of Texas, established it as the superior law school. The Court followed a similar approach in McLaurin v Oklahoma State Regents , decided the same day as Sweatt. The University of Oklahoma admitted George W McLaurin to its previously all-white Department of Education, but the State forced McLaurin to sit, during class, in a special seat designated for African Americans, to eat apart from the white students, and to sit at a special table in the library. Holding in McLaurin’s favour, the Court reasoned that ‘[s]uch restrictions impair and inhibit [McLaurin’s] ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession’ (McLaurin 641). In short, the facilities were unconstitutionally unequal because of intangible factors.
5. Consequently, by the time the NAACP first fully attacked the separate-but-equal doctrine in Brown v Board of Education in 1952, the Supreme Court’s precedents provided ground for optimism. For more than a decade, the Court had been willing to question seriously whether separate state institutions were equal, and more recently, the Court had begun to consider intangible as well as tangible factors when determining equality. Yet, the result in Brown was far from inevitable.
C. The Decision in Brown
6. After the justices heard oral arguments in Brown in December 1952, the result in the case was unclear. The justices met in conference, as they typically did after oral arguments, but the justices’ informal conference notes reveal an unusual degree of uncertainty. Indeed, the justices did not take a formal vote at the time, a departure from their normal post-oral-argument conference practice. After extensively studying the notes, Professor Michael Klarman concluded as follows: four justices thought that separate-but-equal was clearly unconstitutional (Hugo Black, William O Douglas, Harold H Burton, and Sherman Minton); two justices thought the contrary, that separate-but-equal was constitutional (Stanley F Reed and Chief Justice Fred M Vinson); and three justices seemed ambivalent (Felix Frankfurter, Robert H Jackson, and Tom C Clark) (Klarman 293–98). Justice Douglas apparently believed that if the justices had taken a vote, the Court would have upheld Plessy and the separate-but-equal doctrine by a five-to-four margin (Klarman 300–01). But other scholars who have read the conference notes have concluded otherwise, that the Court would have invalidated the separate-but-equal doctrine by a five-to-four margin (Cottrol, Diamond and Ware 163–65; Schwartz 286–88).
7. Justice Frankfurter might have personally opposed racial segregation more than any other justice—he had served on the NAACP’s National Legal Committee in the 1930s and had hired the Court’s first African American law clerk, William Coleman, in 1948—but invalidating Jim Crow laws clashed with his general judicial philosophy of restraint, and of deference to legislative actions (Klarman 295–96, 303–04). Frankfurter also feared that a divided Court decision would be disastrous in such an important case. For these reasons, Frankfurter advocated for reargument, and the other justices acquiesced. In the Court’s order requesting reargument, the Court asked the parties to answer specific questions drafted by Frankfurter and his clerk, Alexander Bickel. The questions focused on the history of the Fourteenth Amendment and the problems related to a decree if segregation were held unconstitutional (Klarman 295, 303; Cottrol, Diamond and Ware 163–66; Schwartz 288–89).
8. Fate would intervene. Chief Justice Vinson died in September 1953. By the time that Brown was reargued in December 1953, Earl Warren was the new Chief Justice. Frankfurter purportedly declared that Vinson’s death was ‘the first indication I have ever had that there is a God’ (Klarman 302). After the reargument, Warren immediately expressed his view that the Court must repudiate Plessy. From that point forward, the result in the case was unequivocal: A majority of justices clearly favoured the invalidation of the separate-but-equal doctrine. The question became whether the Court could achieve unanimity, which Warren and Frankfurter strongly desired (Klarman 302; Cottrol, Diamond and Ware 174–75).
9. Warren, in particular, played a crucial role in securing the final unanimous decision in Brown (Klarman 302–11; Cottrol, Diamond and Ware 174–76; Schwartz 291–98). Warren modified his initial draft opinion—making minor changes—to persuade Jackson not to write a concurrence; it helped that Jackson was hospitalized and recovering from a heart attack. Warren also convinced Reed not to dissent because a lack of Court consensus might generate more violent opposition in the South. Most important, Warren pursued the strategy of splitting the case into two parts, treating the merits of the constitutional claim separately from its remedy. The Court would resolve the constitutional claim in Brown (or Brown I), while later deciding on the appropriate remedy for the constitutional violation in Brown II (Brown v Board of Education for Topeka (1955) ).
10. In any event, Brown unanimously held that racial segregation of public school children violated the Equal Protection clause of the Fourteenth Amendment. Warren wrote an uncommonly brief opinion for the Court. He began by stating that the history of the adoption of the Fourteenth Amendment did not provide any clear guidance to the Court. As a general matter, members of the Reconstruction Congress, which had debated and adopted the Amendment, were divided about its meaning. More specifically, the status of education during the Reconstruction era differed dramatically from the 1950s. In the 1860s, many white children were educated in private schools, while few African American children were educated at all. Consequently, Warren reasoned that the Constitution must be interpreted in light of the current (1950s) social context surrounding racially segregated public education. Warren then emphasized that public education had become immensely important in America:
Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. 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 (Brown I 493).
11. Given the current importance of education, Warren posed a crucial question: ‘[d]oessegregation 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?’ (Brown I 493). He emphasized that the Court must answer this question by examining intangible as well as tangible factors. He therefore stressed that segregation had detrimental psychological effects on African American children. ‘To separate [African-American children] 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’ (Brown I 494). Warren supported this assertion by citing relevant psychology studies. In light of these considerations, Warren concluded, ‘[s]eparate educational facilities are inherently unequal’ (Brown I 495).
D. The Cold War Context for and Consequences of Brown
12. Warren’s simple and brief opinion in Brown suggested that the decision was inevitable and uncontroversial. It was not. If the Court’s decision resulted from the justices merely applying a straightforward principle of equality, then the Court could have held racial segregation unconstitutional a decade or two (or seven) earlier. Yet, the Court had not even enforced the equality component of the separate-but-equal doctrine until 1938. To be sure, several of the justices believed racial segregation was morally repugnant, but the Court decided Brown in 1954 only because a constellation of social forces rendered the decision possible at that time (Bell, Race, Racism 40).
13. The horrors of World War II and the Holocaust sparked an international push for the protection of human rights. In 1945, 51 nations signed the United Nations charter, and in 1948, the UN adopted the Universal Declaration of Human Rights. While the Declaration resounded with principles of equality, it lacked mechanisms for enforcement (Friedman 30–1; Iriye, Goedde and Hitchcock 4–5). Nobody could reasonably deny, though, that American Jim Crow laws, mandating racial segregation, violated the principles of the Declaration. Moreover, when African American soldiers returned to their homes after the war, they grew even more frustrated with the constraints and indignities of Jim Crow. The nation was not fulfilling the basic precepts of equality and liberty that they had fought to defend (Bell, ‘Brown v Board of Education’ 523–25).
14. The Jim Crow laws more directly undermined the interests of America’s white majority in two ways, thus leading the Supreme Court justices to realize the time for at least formal change had arrived. First, legal segregation hampered economic development in a large section of the nation, namely the South (Bell, ‘Brown v Board of Education’ 523–25; Dudziak 79–80). Second and perhaps more important, the Cold War created an imperative for the United States to eliminate the de jure segregation embodied in the Jim Crow laws. The decline of colonialism after World War II led to the emergence of numerous new third-world nations, often populated by people of colour. The United States, in its Cold-War struggle against the Soviet Union, sought to win the allegiance of these nations (Dudziak 79–114; Gaddis 123). To appeal to them, the United States claimed that American democracy stood for liberty and equality for all, regardless of race, colour, creed, or gender. As the Soviets gleefully pointed out, though, such claims sounded woefully hollow when many African Americans continued to suffer under a type of apartheid (Dudziak 12–3). And federal officials were fully cognizant that the image of democracy presented to the world could be either a benefit or a detriment to the nation’s Cold War interests. Thus, the federal government sought to improve the nation’s image by burnishing the democratic glow, especially in relation to the mistreatment of blacks in the South. As early as 1947, President Harry Truman’s Committee on Civil Rights filed a report, To Secure These Rights, concluding that racial segregation was no longer acceptable for reasons ‘of conscience, of self-interest, and of survival in a threatening world … [o]r to put it another way, we have a moral reason, an economic reason, and an international reason’ to attack segregation. In 1952, during the first argument for Brown and its companion case, Bolling v Sharpe, the national government’s Justice Department filed an amicus curiae brief arguing that segregation was unconstitutional (Bolling v Sharpe (1954)). Given that Bolling dealt with the racially segregated District of Columbia schools, the brief emphasized the treatment of people of colour in Washington, DC, the nation’s capital:
[F]oreign officials and visitors naturally judge this country and our people by their experiences and observations in the nation’s capital; and the treatment of colored persons here is taken as the measure of our attitude toward minorities generally (Dudziak 99).
The brief highlighted how racial segregation, including in the schools, contravened national interests:
[T]he existence of discrimination against minority groups in the United States has an adverse effect upon our relations with other countries. Racial discrimination furnishes grist for the Communist propaganda mills, and it raises doubts even among friendly nations as to the intensity of our devotion to the democratic faith’ (Dudziak 100).
When the Supreme Court followed the Justice Department’s recommendation and held that school segregation violated the Constitution, Chief Justice Warren’s unanimous opinion emphasized that education was crucial for ‘good citizenship’ in ‘our democratic society’ (Brown I 493).
15. In fact, the United States government immediately used the decision to its advantage in the Cold War. The government declared that Brown proved the democratic rule of law was superior to communism. Within one hour after the Court announced Brown, ‘the Voice of America broadcast the news to Eastern Europe [emphasizing] that ‘the issue was settled by law under democratic processes rather than by mob rule or dictatorial fiat’ (Dudziak 107). The United States Information Agency placed articles celebrating Brown in almost every African newspaper (Ginsburg 495). People in other nations reacted approvingly. For instance, a municipal council in Sao Paulo, Brazil, sent a letter to the United States’ Brazilian embassy extolling the decision (Dudziak 107).The American consul in Dakar stated that Africans had enthusiastically greeted news of Brown (Dudziak 108). In India, people tended to view the United States far more favourably after the Court decided Brown (Dudziak 108–10). European newspapers also lauded the decision. A front-page article in the French Le Monde stated, ‘[t]his long-awaited judgment marks a victory of justice over racial prejudice, a victory of democracy’ (Ginsburg 496).
E. Direct American Social and International Jurisprudential Effects of Brown
16. Brown wielded enormous symbolic power both for the United States government in international affairs and for civil rights activists within the United States (Kluger 758–61; Klarman 369). Yet, Brown produced neither immediate social change in the United States nor a substantial judicial following in other countries. The Court itself diminished the likelihood of social change. Brown I held public school racial segregation to be unconstitutional but did not order a remedy for the constitutional violation. The Court reserved that issue for later decision. Subsequently, Brown II held that desegregation was not immediately necessary but rather could be accomplished ‘with all deliberate speed’ (Brown II 301). Southern school districts responded by furiously resisting desegregation. Some school districts, for instance, closed all their public schools rather than desegregate, while in other districts, white citizens terrorized black school children who attempted to attend previously all-white schools. Indeed, one can reasonably argue that Brown initially impeded the Civil Rights Movement by inflaming southern racists, who were able to delay social and political changes (Rosenberg 110–56). Eventually, though, as people around the country watched television news reports showing violent attacks on peaceful civil rights protesters, the rest of the nation forced the South to change. From this perspective, Brown indirectly produced social change (Klarman 363–442).
17. With regard to the jurisprudential effects of Brown in other countries, courts have only rarely cited the case (Goldstone and Ray 119). In post-apartheid South Africa, the Constitutional Court has cited Brown approvingly at least three times (In re The SchEduc Bill of 1995 (Gauteng) (1996) (S Afr); Minister of Health v Treatment Action Campaign (2002) (S Afr); S v Jordan (2002) (S Afr)). For example, in In re The School Education Bill of 1995 (Gauteng), the Constitutional Court considered whether the government was obligated to create schools teaching in the Afrikaans language. The Court invoked the Brown linkage of education and democracy:
Afrikaans…, like all languages, is not simply a means of communication and instruction, but a central element of community cohesion and identification for a distinct community in South Africa. We are accordingly dealing not merely with practical issues of pedagogy, but with intangible factors, that as was said in Brown v Board of Education of Topeka, form an important part of the educational endeavour. In addition, what goes on in schools can have direct implications for the cultural personality and development of groups spreading far beyond the boundary fences of the schools themselves (In re The SchEduc 47).
18. Despite this explicit reliance on Brown, non-US courts have cited the case infrequently, particularly given that it was decided more than a half-century ago (Goldstone and Ray 113–19). Besides the South African invocations, at least two cases from Canada, one from New Zealand, and one from the Republic of Trinidad and Tobago have cited Brown (R v Jones (1986) at 60 (Can); Attis v New Brunswick Dist No 15 Bd of Educ (1996) at 81–82 (Can); Te Runanga o Muriwhenua, Inc v Attorney-General (1990) at 651–52 (NZ); Sumayyah Mohammed v Moraine and Another (1996) at 493 (Trin & Tobago)).
19. In sum, Brown was symbolically significant for American civil rights protesters, and for the nation as a whole in its Cold War struggle against the Soviet Union. But Brown neither produced immediate social change in the United States nor a broad judicial following in other nations. In the United States, because Southern states so strongly resisted desegregation of their public schools, the Supreme Court would ultimately decide many additional cases related to the implementation of Brown. Cooper v Aaron (1958) involved a direct state challenge to the authority of the United States Supreme Court. When the school board of Little Rock, Arkansas, attempted to desegregate a high school, the state governor ordered Arkansas National Guard troops to prevent African American students from entering the school. In response, President Dwight D Eisenhower eventually sent federal troops to usher the students into the school and to continue protecting them. The school board then sought a court order postponing the desegregation. State government officials, in effect, sought to nullify the Supreme Court’s interpretation of the Equal Protection clause in Brown. In Cooper, the Court issued a ringing declaration reaffirming the supremacy of the national Constitution and the Court’s interpretation of it. The Court reasoned that ‘Article VI of the Constitution makes the Constitution the supreme Law of the Land’ (Cooper 18). Moreover, Marbury v Madison , decided in 1803, had established that the Court itself was the final interpreter of the Constitution. Given this, state officials had no decision other than to obey the Court’s mandate. State officials could nullify their obligations under Brown neither openly and directly nor indirectly through evasion.
20. Despite the Cooper decision, Southern states continued to resist desegregation. In Swann v Charlotte-Mecklenburg Board of Education , decided in 1971, 17 years after Brown, the Supreme Court explained that the district courts—the trial courts in the federal judicial system—had broad authority to fashion remedies to implement school desegregation. The Court made four key points. First, district courts could use mathematical ratios—comparing the numbers of white and black students in particular schools—as a starting point in fashioning a remedy. The Court emphasized that the district court in this case had not implemented a specific ratio as ‘an inflexible requirement’ (Swann 25). Second, the continued existence in a school district of a single-race school, either all white or all black, would create a presumption that unconstitutional segregation was still present. Third, the district court could alter or redraw attendance zones within a school district to achieve desegregation. Fourth, the district court could order the busing of children to different schools to achieve desegregation.
21. While Swann granted district courts broad authority to desegregate public schools, only three years later the Court decided another case, Milliken v Bradley , which severely undermined that judicial authority. In an effort to resist the effects of desegregation, many white parents around the United States had moved to towns with independent school districts that were overwhelmingly white. Milliken involved the school district for the city of Detroit and the districts for surrounding suburbs. Because of white flight, the Detroit school district was predominantly black while the surrounding suburbs were predominantly white. The Supreme Court held in Milliken that district courts generally could not issue desegregation orders that would force students from one school district to attend schools in another district. Thus, even if the Detroit schools were racially segregated, the district court could not fashion a remedy involving the suburban schools. Given this, white parents could thwart desegregation merely by moving to predominantly white towns.
- Bell, DA, ‘Brown v Board of Education and the Interest-Convergence Dilemma’ (1980) 93 Harvard Law Review 518.
- Bell, DA, Race, Racism, and American Law (Little, Brown 1980).
- Cottrol, RJ, Diamond, RT, and Ware, LB, Brown v Board of Education: Caste, Culture, and the Constitution. Lawrence (University Press of Kansas 2003).
- Dudziak ML, Cold War Civil Rights: Race and the Image of American Democracy (Princeton University Press 2002).
- Friedman, LM, The Human Rights Culture: A Study in History and Context (Quid Pro 2011).
- Gaddis, JL, The Cold War: A New History (Penguin Press 2005).
- Ginsburg, RB, ‘Brown v Board of Education in International Context’ (2005) 36 Columbia Human Rights Law Review 493.
- Goldstone, RJ, and Ray, B, ‘The International Legacy of Brown v Board of Education’ (2004) 35 McGeorge Law Review 105.
- Iriye, A, Goedde, P, and Hitchcock, WI, (eds), The Human Rights Revolution: An International History (OUP 2002).
- Klarman, MJ, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (OUP 2002).
- Kluger, R, Simple Justice: The History of Brown v Board of Education and Black America’s Struggle for Equality (Knopf 1976).
- Rosenberg, GN, The Hollow Hope: Can Courts Bring About Social Change? (University of Chicago 1991).
- Schwartz, B, A History of the Supreme Court (OUP 1993).
- Tushnet, MV, The NAACP’s Legal Strategy against Segregated Education, 1925–1950 (University of North Carolina Press 1978).
- Attis v New Brunswick Dist No 15 Bd of Educ  1 SCR 825 (Can).
- Bolling v Sharpe (1954) 347 US 497 (US).
- Brown v Board of Education for Topeka (Brown I) (1954) 347 US 483 (US).
- Brown v Board of Education for Topeka (Brown II) (1955) 349 US 294 (US).
- Cooper v Aaron (1958) 358 US 1 (US).
- In re The SchEduc Bill of 1995 (Gauteng) (1996) (4) BCLR (CC) (S Afr).
- McLaurin v Oklahoma State Regents (1950) 339 US 637 (US).
- Milliken v Bradley (1974) 418 US 717 (US).
- Minister of Health v Treatment Action Campaign (2002) (10) BCLR 1033 (CC) (S Afr).
- Missouri ex rel Gaines v Canada (1938) 305 US 337 (US).
- Plessy v Ferguson (1896) 163 US 537 (US).
- R v Jones  2 SCR 284 (Can).
- S v Jordan (2002) (11) BCLR 1117 (CC) (S Afr).
- Sumayyah Mohammed v Moraine and Another  3 LRC 475 (Trin & Tobago).
- Sweatt v Painter (1950) 339 US 629 (US).
- Te Runanga o Muriwhenua, Inc v Attorney-General  2 NZLR 641 (CA Wellington) (NZ).