Brown v. Board of Education 347 U.S. 483 (1954) 349 U.S. 294 (1955)

Author:Kenneth L. Karst

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In the dual perspectives of politics and constitutional development, Brown v. Board of Education was the Supreme Court's most important decision of the twentieth century. In four cases consolidated for decision, the Court held that racial SEGREGATION of public school children, commanded or authorized by state law, violated the FOUR-TEENTH AMENDMENT'S guarantee of the EQUAL PROTECTION OF THE LAWS. A companion decision, BOLLING V. SHARPE (1954), held that school segregation in the DISTRICT OF COLUMBIA violated the Fifth Amendment's guarantee of DUE PROCESS OF LAW.

Brown illustrates how pivotal historical events, viewed in retrospect, can take on the look of inevitability. To the actors involved, however, the decision was anything but a foregone conclusion. The principal judicial precedent, after all, was PLESSY V. FERGUSON (1896), which had upheld the racial segregation of railroad passengers, partly on the basis of an earlier Massachusetts decision upholding school segregation. More recent Supreme Court decisions had invalidated various forms of segregation in higher education without deciding whether Plessy should be overruled. Just a few months before the first Brown decision, Robert Leflar and Wylie Davis outlined eleven different courses open to the Supreme Court in the cases before it.

The four cases we now call Brown were the culmination of a twenty-year litigation strategy of the NAACP, aimed at the ultimate invalidation of segregation in education. (See SEPARATE BUT EQUAL DOCTRINE.) Part of that strategy had already succeeded; the Supreme Court had ordered the admission of black applicants to state university law schools, and had invalidated a state university's segregation of a black graduate student. The opinions in those cases had emphasized intangible elements of educational quality, particularly the opportunity to associate with persons of other races. (See SWEATT V. PAINTER.) The doctrinal ground was thus prepared for the Court to strike down the segregation of elementary and secondary schools?if the Court was ready to occupy that ground.

The Justices were sensitive to the political repercussions their decision might have. The cases were argued in December 1952, and in the ordinary course would have been decided by the close of the Court's term in the following June or July. Instead of deciding, however, the Court set the five cases for reargument in the following term and proposed a series of questions to be argued, centering on the history of the adoption of the Fourteenth Amendment and on potential remedies if the Court

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should rule against segregation. The available evidence suggests that the Court was divided on the principal issue in the cases?the constitutionality of separate but equal public schools?and that Justice FELIX FRANKFURTER played a critical role in persuading his brethren to put the case over so that the incoming administration of President DWIGHT D. EISENHOWER might present its views as AMICUS CURIAE. It is clear that the discussion at the Court's CONFERENCE on the cases had dealt not only with the merits of the black children's claims but also with the possible reaction of the white South to a decision overturning school segregation. Proposing questions for the reargument, Justice Frankfurter touched on the same concern in a memorandum to his colleagues: "? for me the ultimate crucial factor in the problem presented by these cases is psychological?the adjustment of men's minds and actions to the unfamiliar and the unpleasant."

When Justice Frankfurter wrote of "the adjustment of men's minds," he had whites...

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