Painstakingly, counsel for the Southern States called the roll of precedents supporting—or not disturbing—the long-established doctrine of “separate but equal.” The Plessy case of 1896 had been followed in December 1899 by Cumming v. Richmond County Board of Education (175 U. S. 528). Here the facts were that a Georgia county had closed its Negro high school and required local Negro high school students to go into Augusta for schooling, in order to convert the high school to the needs of three-hundred elementary pupils. The Negro high school pupils sought an injunction to upset this arrangement. And though the denial of equal facilities locally might seem plain, a unanimous Supreme Court found no merit in the Negroes’ claim. Some of the students might be inconvenienced by the requirement that they attend one of the three Negro high schools in nearby Augusta, but their inconvenience had to be set against the needs of the elementary children. Further, nothing constructive would be gained by closing the white high school merely because the Negro high school was no longer operating. “Under the circumstances disclosed,” said the court, “we cannot say that this action ... was, within the meaning of the Fourteenth Amendment, a denial by the State to the plaintiffs and those associated with them of the equal protection of the law, or of any privileges belonging to them as citizens of the United States. The education of the people in schools maintained by State taxation is a matter belonging to the respective States, and any interference on the part of Federal authority with the management of such schools cannot be justified except in the case of a clear and unmistakable disregard of rights secured by the supreme law of the land.” [Emphasis supplied.] It is curious, one may note in passing, that persons who so reverently admire Mr. Justice Harlan’s dissent of 1896 in Plessy customarily fail altogether to acknowledge that it was Mr. Justice Harlan who spoke in 1899 for a unanimous court in Cumming.
The court’s pronouncement in Cumming was cited the following year in the New York Court of Appeals (161 N. Y. 598), when Negro petitioners challenged the right and power of Queens Borough to maintain separate schools. The New York court refused to disturb the system: “It is equal school facilities and accommodations that are required to be furnished, and not equal social opportunities.”
In November 1908, the Supreme Court considered a suit brought by Berea College against the Commonwealth of Kentucky (211 U. S. 45). Berea, a private college, had been operating as a racially integrated institution. A State law was enacted making it unlawful for any corporation chartered in Kentucky to maintain a private school on such a basis. On the grounds that the law was within Kentucky’s power to regulate Kentucky corporations, a majority of the Supreme Court held the law valid. Harlan dissented warmly. He thought Berea’s right to admit pupils of its own choosing to its classrooms was “a liberty inherent in the freedom secured by fundamental law,” but he did not wish to be misunderstood: “Of course what I have said has no reference to regulations prescribed for public schools, established at the pleasure of the State and maintained at the public expense.”
Six years later, the generic question of “separate but equal” was again before the Supreme Court, in McCabe v. Atchison, Topeka & Santa Fe Railway Company (235 U. S. 151). A Negro passenger had sued to halt enforcement of an Oklahoma law requiring racial separation on coaches. The trial court had dismissed the suit by calling attention to Plessy and saying that the power of the States to require separate but equal accommodations “could no longer be considered an open question.” Said Hughes for a unanimous Supreme Court: “There is no reason to doubt the correctness of that conclusion.”
Thirteen years elapsed. Membership on the court changed. On November 21, 1927, when the court decided Gong Lum v. Rice (275 U. S. 78), Taft was Chief Justice; his brothers included such giants of the law as Holmes, Brandeis, and Stone. The question of the power of the States to maintain racially separate but equal schools was put squarely before the court. Mississippi had insisted that a Chinese child, Martha Lum, attend a Negro high school in Bolivar County instead of a white high school. This was what Taft said, speaking for a unanimous court:
The question here is whether a Chinese citizen of the United States is denied equal protection of the laws when he is classed among the colored races and furnished facilities for education equal to that offered to all, whether white, brown, yellow or black. Were this a new question, it would call for very full argument and consideration, but we think that it is the same question which has been many times decided to be within the constitutional power of the State legislature to settle without intervention of the Federal courts under the Federal Constitution.... The decision is within the discretion of the State in regulating its public schools, and does not conflict with the Fourteenth Amendment. [Emphasis supplied.]
The Gong Lum case was in 1927. Eleven years later the Supreme Court dealt with a suit brought by Lloyd Gaines, a Negro, seeking admission to the law school of the University of Missouri (305 U. S. 337). The Gaines case is important, because it sometimes is said that it heralded in 1938 the end of “separate but equal” in 1954. It did no such thing. The State of Missouri then had no law school for Negroes; the practice was to pay tuition fees, out of State, for the few Negro students seeking legal education. Other Negro college students attended Lincoln University in St. Louis, where Missouri sought to fulfill its obligation to provide the same general advantages of higher education for Negroes that it provided for whites by furnishing equal facilities in separate schools. Chief Justice Hughes said for the court that this was a method, “the validity of which has been sustained by our decisions.” He was sympathetic to Missouri’s plan to build Lincoln University into an institution genuinely equal to the University of Missouri at Columbia. “But commendable as is that action, the fact remains that instruction in law for Negroes is not now afforded by the State, either at Lincoln University or elsewhere.” The court therefore ordered Gaines admitted to the Missouri Law School. McReynolds dissented, with Butler joining him. They felt Missouri’s offer to pay Gaines’ tuition in a nearby law school of good standing would provide the student with abundant opportunity to study law “if perchance that is the thing really desired.” In attempting in good faith to meet the constitutionally sanctioned requirements of separate but equal, said McReynolds, “the State should not be unduly hampered through theorization inadequately restrained by experience.”
Three other cases that were reviewed in the oral argument before the Supreme Court in December 1953 also dealt with higher education at the graduate-school level. The circumstances in Sipuel v. Board of Regents of the University of Oklahoma (332 U. S. 630) paralleled the circumstances of the Gaines case; the court entered no more than a per curiam order directing that Gaines be followed. On June 5, 1950, the last two cases were decided: Sweatt v. Painter (339 U. S. 629) and McLaurin v. Oklahoma State Regents for Higher Education (339 U. S. 637). In both opinions, the court, speaking through Chief Justice Vinson, was careful to emphasize that it was following Gaines (that is, that it was following “separate but equal”) and was not reexamining Plessy at all. In the Sweatt case, Texas had attempted to establish a Negro law school at Austin that would be the equal of its University of Texas Law School in Houston. Relying upon the “intangibles that make for greatness in a law school,” the court held such equality impossible of attainment. Similarly, in the McLaurin case, in which Oklahoma had sought to segregate a Negro graduate in the use of library and cafeteria facilities, Vinson held for the court that “under these circumstances,” the Fourteenth Amendment precluded any distinction in treatment of students based upon race.
Regardless of one’s views on the rightness or wrongness of segregation in the public schools, how are these precedents fairly to be characterized? Plainly, they form one unbroken chain, reaching back to the very ratification of the Fourteenth Amendment: Garnes in Ohio, Stoutmeyer in Nevada, Ward in California, Cory in Indiana, Bertonneau in Louisiana, King in New York, Lehew in Missouri, Plessy in Louisiana, Cumming in Georgia, Berea in Kentucky, McCabe in Oklahoma, Gong Lum in Mississippi, Gaines in Missouri—in every one of these, extending from 1871 to 1938, the doctrine of “separate but equal” had been judicially sanctioned as not in violation of the Fourteenth Amendment. And in Sipuel, McLaurin, and Sweatt the doctrine had simply been ruled not applicable in the peculiar circumstances of graduate-school instruction.
This was the chain the court snapped in the School Segregation Cases. Six months after the case had been reargued, on May 17, 1954, Chief Justice Warren spoke for a unanimous court in overruling and discarding this uniform interpretation of more than eighty years. The text of the court’s opinion appears in the Appendix, along with its companion decision in the Bolling case from the District of Columbia. Here it will be seen that the court blandly dismissed the massive evidence of “intent” with a regal hand: The evidence was “inconclusive.” Then, disdaining every rule of jurisprudence which says that law cases should be decided on points of law, the court delivered itself of some homilies on the importance of education: “Today, education is perhaps the most important function of State and local governments.” Everyone must have an education: “It is the very foundation of good citizenship. It is a principal instrument in awakening the child to cultural values.” Said the court: