Transcript Justice Institute for Business Leaders January 13, 2005

Separate But Equal:
The History of Segregation in
the Law
Brown v. Board of Education of
Topeka, 347 U.S. 483 (1954)
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JUDGES
If you were responsible for
selecting all of the judges in
Florida, what would you look for?
 Knowledge
 Skills
 Disposition/Qualities
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JUDGES
How are judges different
from other elected officials
such as legislators?
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JUDGES
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Should judges be influenced by
political pressures when deciding a
case?
Would you want a judge to make a
decision based on the law or how the
public might react to the decision?
Should judges do what is legally right
or should they do what is popular?
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JUDGES
JUDGES MUST FOLLOW:
FEDERAL CONSTITUTION
STATE CONSTITUTION
STATUTES
RULES
HIGHER COURT DECISIONS (PRECEDENT)
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JUDGES
So, a judge cannot decide a
case based on how he/she
feels about an issue.
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JUDGES
If a judge does not follow the
existing law, his/her decision is
subject to review by an appellate
court.
All courts are subject to review by a
higher court except for the highest
court in the country: the Supreme
Court of the United States.
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Today, you will be a justice
on the U.S. Supreme Court
and decide a real case
involving the Fourteenth
Amendment.
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But first –
You need to know about the
Fourteenth Amendment to
the U.S. Constitution.
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§ 1 of the Fourteenth
Amendment

All persons born or naturalized in the United
States, and subject to the jurisdiction thereof,
are citizens of the United States and of the State
wherein they reside. 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 . . . deny to any
person within its jurisdiction the equal protection
of the laws.
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Fourteenth Amendment
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What are “privileges” or “immunities”?
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What does “equal protection” mean?
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Privileges and Immunities
Slaughter-House Cases, 83 U.S. 36 (1872)
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In the mid-19th century, New Orleans was
plagued by health concerns stemming from
slaughterhouses located within the city.
In response, the Louisiana legislature
passed an act that required all
slaughterhouses in New Orleans to move to
a specific area and be operated by a private
corporation chartered by the State.
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Privileges and Immunities
Slaughter-House Cases, 83 U.S. 36 (1872)
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Over 400 butchers sued the State of Louisiana
as well as the private corporation in multiple
actions, alleging, in part, a violation of the
privileges or immunities clause of the Fourteenth
Amendment.
Each of the state trial courts ruled in favor of the
State and/or the private corporation, and the
Louisiana Supreme Court affirmed those
decisions.
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Privileges and Immunities
Slaughter-House Cases, 83 U.S. 36 (1873)
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The United States Supreme Court affirmed the
decisions of the Supreme Court of Louisiana.
The Court held that the Privileges or Immunities
Clause of the Fourteenth Amendment affected
only rights of United States citizenship and not
state citizenship.
The Court further held that the amendment was
primarily intended to protect former slaves from
discriminatory laws and could not be so broadly
applied as to restrict the police powers of the
state.
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“Equal Protection”
Strauder v. West Virginia, 100 U.S. 303 (1879)
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West Virginia passed a law which excluded AfricanAmericans from serving on juries. Strauder was a
black man who had been convicted by an all-white
jury in West Virginia state court.
Strauder challenged his conviction as being in
violation of the Equal Protection Clause due to the
State’s failure to allow African-Americans to serve on
his jury.
After losing his challenge in the West Virginia trial
court, Strauder appealed to the Supreme Court of
Appeals of West Virginia, which affirmed his
conviction.
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“Equal Protection”
Strauder v. West Virginia, 100 U.S. 303 (1879)
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The case was then appealed to the United
States Supreme Court, which reversed the
decision below.
A majority of the High Court held that the
categorical exclusion of all African-Americans
from juries for no other reason than their
race was a violation of the Equal Protection
Clause.
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“Equal Protection”
Strauder v. West Virginia, 100 U.S. 303 (1879)
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The Court did, however, limit its holding to race:
“We do not say that within the limits from which it is not
excluded by the amendment a State may not prescribe
the qualifications of its jurors, and in so doing make
discriminations. It may confine the selection to males,
to freeholders, to citizens, to persons within certain
ages, or to persons having educational qualifications.
We do not believe the Fourteenth Amendment was ever
intended to prohibit this.”
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§ 5 of the Fourteenth
Amendment

The Congress shall have power to enforce,
by appropriate legislation, the provisions
of this article.
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Enforcement of 14th Amendment
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After the passage of the Thirteenth Amendment, which
abolished slavery, and the Fourteenth Amendment,
Congress passed the Civil Rights Act of 1875.
The act provided that "all persons within the jurisdiction
of the United States shall be entitled to the full and
equal enjoyment of the accommodations, advantages,
facilities, and privileges of inns, public conveyances on
land or water, theaters, and other places of public
amusement; subject only to the conditions and
limitations established by law, and applicable alike to
citizens of every race and color, regardless of any
previous condition of servitude."
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Enforcement of 14th Amendment
Civil Rights Cases, 109 U.S. 3 (1883)
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Five separate cases, each involving an AfricanAmerican individual who had been denied access to
hotels, theatres, or railway cars, were consolidated
before the United States Supreme Court.
Ruling in favor of the discriminating private property
owners, the High Court held:
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Section 5 of the Fourteenth Amendment does not give
Congress the power to regulate private actors, just states.
The Thirteenth Amendment applies to private actors only
so far as it precludes them from owning slaves, but not
with regard to discrimination.
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Separate But Equal
Part I
Plessy v. Ferguson, 163
U.S. 537 (1896)
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Plessy v. Ferguson, 163 U.S.
537 (1896)

In 1890, Louisiana passed a law that
provided:
“[A]ll railway companies carrying passengers in their
coaches in this State shall provide equal but separate
accommodations for the white and colored races by
providing two or more passenger coaches for each
passenger train, or by dividing the passenger coaches by
a partition so as to secure separate accommodations.”
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Plessy v. Ferguson, 163 U.S.
537 (1896)
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On June 7, 1892, Homer Plessy boarded a
railway car designated for white patrons only.
Although Plessy was born a free person and was
one-eighth black and seven-eighths white, under
a Louisiana law he was classified as black, and
thus required to sit in the "colored" car.
Plessy refused to leave the “white” car and was
subsequently arrested and jailed.
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Plessy v. Ferguson, 163 U.S.
537 (1896)
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Plessy was tried in Louisiana state court for violating
the Louisiana statute.
Plessy argued that the state law requiring railroad
companies to segregate trains denied him his rights
under the Thirteenth and Fourteenth Amendments.
The judge presiding over his case held that Louisiana
had the right to regulate railroad companies as long
as they operated within state boundaries.
Plessy subsequently filed a petition for writ of
prohibition with the Louisiana Supreme Court, which
was denied.
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Plessy v. Ferguson, 163 U.S.
537 (1896)
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On appeal to the Supreme Court of the
United States, the High Court affirmed.
In a 7-1 decision, a majority of the Court
held that the provision of “separate” but
“equal” private services, as mandated by
state government, did not violate the
Fourteenth Amendment.
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Lum v. Rice, 275 U.S. 78 (1927)
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Martha Lum, a nine-year-old child of Chinese
descent, was prohibited from attending an allwhite public school in Mississippi solely because of
her descent.
Lum’s father petitioned a Mississippi state court for
a writ of mandamus to force the Board of Trustees
of the public school system to allow her to enroll
in the all-white school. He asserted that she had
been improperly classified as “colored.”
The trial court granted the request and allowed
Lum to enroll.
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Lum v. Rice, 275 U.S. 78 (1927)
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The Board of Trustees petitioned the
Mississippi Supreme Court to reverse the
trial court’s decision.
The Mississippi High Court agreed with the
Board, reversed the trial court's decision,
and allowed the Board of Trustees to
exclude Lum from the all-white school.
Lum’s father appealed to the United States
Supreme Court.
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Lum v. Rice, 275 U.S. 78 (1927)
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The United States Supreme Court
affirmed, unanimously holding that Lum’s
father had not established a denial of
equal protection of the laws when his
daughter was placed in classes with other
“colored” races. According to the Court,
those races had been “furnished facilities
for education [that were] equal to that
offered to all.”
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Gaines v. Canada,
305 U.S. 337 (1938)
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The University of Missouri Law School refused
admission to Lloyd Gaines solely because he was
an African-American.
At the time, there was no law school available to
African-Americans within the State of Missouri.
After Gaines alleged that this refusal violated
his Fourteenth Amendment rights, the state of
Missouri offered to pay for Gaines’ tuition at the
law school of an adjacent state. Gaines rejected
this offer.
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Gaines v. Canada,
305 U.S. 337 (1938)
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Gaines filed a petition for writ of
mandamus in Missouri state court asking
the trial court to compel the law school to
admit him.
The trial court denied relief. Gaines
appealed to the Missouri Supreme Court,
but that court affirmed the trial court’s
denial of the petition.
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Gaines v. Canada,
305 U.S. 337 (1938)
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On appeal to the United States Supreme
Court, the High Court reversed.
A majority of the Court reasoned that
because Missouri did not have an
alternative means for African-Americans to
obtain a legal education, the State was
required to admit him to an all-white law
school.
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Sweatt v. Painter, 339 U.S.
629 (1950)
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Heman Marion Sweatt was denied
admission to the University of Texas Law
School because the Texas Constitution
expressly prohibited integration.
Sweatt sought a writ of mandamus in
Texas state court. Instead of issuing the
writ, the trial court delayed the case for
six months to allow the state to create a
law school for African-Americans.
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Sweatt v. Painter, 339 U.S.
629 (1950)
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After the creation of the law school,
Sweatt asserted that the two schools were
not “equal” and insisted on admission to
the all-white law school.
The trial court denied the petition, a Texas
appellate court affirmed the denial, and
the Texas Supreme Court denied a writ of
error.
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Sweatt v. Painter, 339 U.S.
629 (1950)
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The United States Supreme Court
reversed, holding that the inequality
between the two law schools violated the
Fourteenth Amendment.
To establish inequality, the Court cited a
number of tangible factors, including
number of faculty, books in the library,
and access to extracurricular activities.
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Sweatt v. Painter, 339 U.S.
629 (1950)
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The Court also relied on intangible factors:
“The law school, the proving ground for legal learning
and practice, cannot be effective in isolation from the
individuals and institutions with which the law interacts.
Few students and no one who has practiced law would
choose to study in an academic vacuum, removed from
the interplay of ideas and the exchange of views with
which the law is concerned . . . With such a substantial
and significant segment of society excluded, we cannot
conclude that the education offered [Sweatt] is
substantially equal to that which he would receive if
admitted to the University of Texas Law School.”
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Separate But Equal
Part II
TODAY’S CASE:
Brown v. Board of Education of
Topeka, 347 U.S. 483 (1954)
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Separate But Equal
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Before we discover how the United States
Supreme Court decided Brown, ask
yourself the following questions and
provide written answers based upon the
cases we have discussed:
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Separate But Equal
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How are the facts of this case similar to
Plessy, Lum, Gaines, and Sweatt?
How are they different?
What did the Equal Protection Clause
mean after those four cases were
decided?
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Now you are Justices on
the U.S. Supreme Court.
Here is the question before
the court…
Separate But Equal
CONSTITUTIONAL QUESTION:
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?
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Separate But Equal
Individually answer the question –
Yes or No – based on the facts of the
case, the constitution, and case
precedent.
-Give 3 reasons in writing.
Separate But Equal
If you answer “Yes” – you are
deciding for Brown.
_____________________________
If you answer “No” you are deciding
for the Board of Education.
Separate But Equal
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Form groups of 5
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Choose a Chief Justice
•
Chief Justice Maintains Order
•
Poll the Justices. How did each one of you answer the
questions and why?
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Try to reach to a unanimous decision. Did the State’s
actions violate the Fourteenth Amendment?
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You have 10 minutes to discuss then take a final poll.
Separate But Equal
After each Court decides:
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Bring the Chief Justices to the front
of the room to report on the decision
of each group
Tally results and announce
Separate But Equal
CONSTITUTIONAL QUESTION:
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?
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Separate But Equal
What did the real U.S.
Supreme Court decide and
why?
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Brown v. Board of Education of Topeka,
347 U.S. 483 (1954)
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In a unanimous decision, the United
States Supreme Court held that the
“separate but equal” doctrine in the
field of public education is
unconstitutional and violates the
Fourteenth Amendment. The Court
reasoned that segregation, in and of
itself, was harmful to African-American
students. The Court rejected its prior
approval in Plessy of the “separate but
equal” doctrine.
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