We come then to the question presented: 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? We believe that it does.
That was the key paragraph. The court went on to assert that the “intangible considerations” it had found to be important in graduate-school instruction apply with added force to children in grade and high schools. “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.” Whatever may have been the extent of psychological knowledge at the time of Plessy, said the court, “this finding is amply supported by modern authority.” And the court inserted its famous Footnote 11 to prove it.
This footnote directed the inquisitive reader to seven sources. The first was a paper prepared by Kenneth B. Clark, “The Effect of Prejudice and Discrimination on Personality Development,” delivered at the 1950 White House Conference on Children and Youth; Clark, a professor of psychology at the College of the City of New York, was then at least presumptively on the payroll of the NAACP—he was “social science consultant for the NAACP’s legal and educational division.” A second source was “Personality in the Making,” by Helen Leland Witmer and Ruth Kotinsky. The third was a report of a survey conducted for the American Jewish Congress in 1947 by Max Deutscher and Isidor Chein. They sent a questionnaire to 849 social scientists, asking, first in the affirmative and then in the negative, “[Do you] believe that enforced segregation has (has not) a detrimental psychological effect on members of the racial or religious groups which are segregated?” A second question, similarly phrased, sought the social scientists’ opinions on whether such segregation has detrimental effects on the majority group imposing the segregation. All told, 517 of those queried returned the questionnaire (32 of the 517 were from the South). Not surprisingly, 90 per cent of the 517 obligingly answered Ja to the first question and 83 per cent said Ja to the second. Had there been an opportunity to put Deutscher and Chein on a witness stand, counsel for the South might have sought clarification on what was meant by “enforced,” what by “segregation,” and what by “detrimental,” and rebuttal witnesses might have been summoned to testify on the effects, detrimental or otherwise, of enforced integration on the majority group.
The fourth authority cited by the court was a paper by Chein in a publication of such large obscurity and small circulation that few persons can have examined it: “What are the Psychological Effects of Segregation under Conditions of Equal Facilities,” in Volume 3 of the International Journal of Opinion and Attitude Research (1949). Fifth on the list was “Educational Costs in Discrimination and National Welfare,” by Theodore Brameld, then a professor of educational philosophy at the University of Minnesota. The sixth reference was to Edward Franklin Frazier’s The Negro in the United States. Frazier is a Negro sociologist, professor of sociology at Howard University, who served as chairman of UNESCO’s committee of experts on race.
And finally, said the court, “see generally Myrdal, An American Dilemma.”
“We conclude,” said the court, “that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” [Emphasis supplied.] That final sentence contained perhaps the greatest irony of them all, for unless words have lost their meaning, the court here decreed equality for the Negro by finding the Negro innately not equal. What else did the court mean? Here we are told, on the authority of the most eminent court in the world, that if one-hundred Negro pupils are put to study in one building, and one-hundred white pupils are put to study in an identical building, the first group of pupils, who have been segregated solely on the basis of race, will make up a school inherently unequal to the other. “Inherently” comes from the Latin haerere, to stick; it means “firmly infixed; belonging by nature.” And when the court concluded that separate schools for Negroes are inherently unequal, it made a judicial finding of fact with which a great many Southerners would find themselves in wry agreement.
That was the substance of the Brown decision. Because of the predictable impact of the ruling and the great variety of local conditions, the court asked for reargument on the formulation of specific decrees. A year later, on May 31, 1955, a supplementary opinion (this also appears in full in the Appendix) sent the cases back to the trial courts with instructions to enter decrees ordering “the parties to these cases admitted to public schools on a racially nondiscriminatory basis with all deliberate speed.” By that time, Kansas had abandoned segregation altogether in its schools; so had the District of Columbia; so had Delaware over much of the State. In the course of time, Prince Edward County, Virginia, was to abandon public education rather than submit to compulsory desegregation of its schools. The public schools of Clarendon County, S. C., are still operating as I write, in the spring of 1962, as completely segregated as they were in the spring of 1954. The new Negro schools are bright and shining and consolidated, and some of the children of the original plaintiffs of 1951, it is said, are placidly attending them.
What was wrong with the Brown decision? The Sibley Commission in Georgia summarized the South’s protest in two sweeping sentences:
We consider this decision utterly unsound on the facts; contrary to the clear intent of the Fourteenth Amendment; a usurpation of legislative function through judicial process; and an invasion of the reserved rights of States. We further consider that, putting aside the question of segregation, this decision presents a clear and present danger to our system of constitutional government, because it places what the court calls “modern authority” in sociology and psychology above the ancient authority of the law, and because it places the transitory views of the Supreme Court above the legislative power of Congress, the settled construction of the Constitution, and the reserved sovereignty of the several States. [Emphasis supplied.]
If the student of American government can do as the Sibley commission suggests, and put aside the question of segregation—eliminate all the emotional overtones of “prejudice” and “discrimination” and “second-class citizens”—he will get a clearer picture of the most disturbing aspect of the School Segregation Cases. One of the most cherished myths of American tradition, as strong and as insubstantial as any doctrine of religion, is that ours is “a government of laws, not men.” Viewed coldly and nakedly, the proposition is palpably absurd; wine is wine, and bread is bread. But by some devout act of political transubstantiation, the faith of the American people has imbued this doctrine with a special venerability: We have been reared to believe that law exists metaphysically, above and beyond the mortal men who enforce it. As an institution, the high court commands respect, not for the nine frail vessels beneath the robes, but out of deference to the higher, holier grail they represent.