NAACP+Brief

=NAACP Brief in //Brown v. Board of Education//=

Questions posed to litigants for reargument

 * 1) What evidence is there that the Fourteenth Amendment was intended to abolish segregation?
 * 2) If the Fourteenth Amendment did not intend to abolish school segregation immediately,
 * 3) was it intended that future Congresses might abolish it?
 * 4) was power given to the judiciary to construe it as abolishing it?
 * 5) **Is it otherwise within judicial power to construe the Fourteenth Amendment to abolish public school segregation?**
 * 6) If the Fourteenth Amendment prohibits school segregation,
 * 7) must Negro children be permitted to attend their school of choice, or
 * 8) could the Court fashion a gradual transition to desegregation?
 * 9) If the Court may fashion a gradual equitable decree,
 * 10) should the Court give detailed decrees in the cases?
 * 11) If so, what issues should these decrees reach?
 * 12) Should the Court use a special master to hear evidence in helping to fashion these decrees?
 * 13) Should the Court remand the cases to the district courts for detailed decrees? If so, what guidance should the Court give?

The brief was structured into two Parts. Part I addressed legal precedents and judicial theories concerning the judicial power to abolish public school segregation: this was responsive to Question 3. Part II contained evidence regarding the intent of the framers of the Fourteenth Amendment. Because of the nature of this project, only Part I is summarized.

Overview of Argument Presented in Part I
1. "Distinctions drawn by state authorities on the basis of color or race violate the Fourteenth Amendment." //Shelley v. Kraemer//, //Buchanan v. Warley//. As applied to public educational institutions: //Sweatt v. Painter//, //McLaurin v. Oklahoma State Regents//. The Fourteenth Amendment was intended to establish African American equality: //The Slaughter-House Cases//, //Strauder v. West Virginia//.

2. Racial segregation has no reasonable relation to any valid legislative purpose. //Quaker City Cab Co. v. Pennsylvania//; //Truax v. Raich//; //Smith v. Cahoon//; //Mayflower Farms v. Ten Eyck//; //Skinner v. Oklahoma// (among others).

3. Contrary to the assertions of the states, racially constricting a student's associations results in educational detriment. //Sweatt v. Painter//; //McLaurin v. Oklahoma State Regents//.

4. The states' argument can only be justified by //Plessy v. Ferguson//. Instead of distinguishing //Plessy//, it is more fitting to overrule it. Segregation perpetuates African Americans' inferior status; this is not allowed by the Fourteenth Amendment.

Part I
===I. "Normal exercise of the judicial function calls for a declaration that the state is without power to enforce distinction based upon race or color in affording educational opportunities in the public schools."===

This is the "kitchen sink" approach, an assembly of the strongest cases against segregation in every arena, at both state and federal levels.
 * Residential: //Shelley v. Kraemer//; //Buchanan v. Warley//.
 * Public education: //Missouri ex rel. Gaines v. Canada//; //McLaurin v. Oklahoma State Regents//.
 * Japanese interment: //Hirabayashi v. United States//; //Korematsu v. United States//. These allowed the segregation practice in emergency, but still used strong language against segregation.
 * Voting: //Nixon v. Condon//.
 * Juries
 * Pursuit of employment: //Truax v. Raich//; //Takahashi v. Fish and Games Comm'n//.
 * Salary differentiation: //Alston v. School Board//.
 * Electoral process: //Guinn v. United States//; //Lane v. Wilson//.

"[T]he concept of state action has been utilized in a dynamic and expanding fashion as the Court has sought to reach any method or subterfuge with which the state has attempted to avoid its obligation under that constitutional amendment." //Smith v. Allwright//, //Terry v. Adams//. Also addressing state non-action: //Rice v. Elmore//, //Baskin v. Brown//.
 * Interstate commerce: //Morgan v. Virginia//; //Bob-Lo Excursion Co. v. Michigan//.
 * Union membership: //Railway Mail Association v. Corsi//.

In cases dealing with graduate and professional schools, the Court has described the "educational process" as a "totality" with many important components. //Sweatt// and //McLaurin//.

Public education is now an accepted governmental function (using the South Carolina statutory scheme as a representative example). "'[E]ducation' comprehends the entire process of developing and training the mental, physical and moral powers and capabilities of human beings."
 * Review of testimony from the instant cases on the harmful effects of segregation

This section of the brief had a strong focus on expansion: This expansion idea was needed to combat "separate but equal." If //Plessy// was to be invalidated, it could only be by showing that the standard was a fallacy. The assertion was that if you looked at the totality of the situation, separate //couldn't// be equal.
 * Comprehensiveness: an array of circumstances under which segregation has been struck down
 * Emphasis on //purpose// of Court's action, rather than //application of rules//: the Court must do whatever is necessary to stamp out discrimination under the Fourteenth Amendment
 * Conceiving education as a holistic experience, not just the sum of facilities and teacher salaries: this draws from the graduate school cases

II. "The statutory and constitutional provisions involved in these cases cannot be validated under any separate but equal concept."
"The basic principles referred to in Point I above, we submit, control these cases, and except for the mistaken belief that the doctrine of //Plessy v. Ferguson// is a correct expression of the meaning of the Fourteenth Amendment, these case would present no difficult problem."

//Plessy// has been sparingly applied, and it was eroded in //Sweatt// and //McLaurin//.

A. "Racial segregation cannot be squared with the rationale of the early cases interpreting the reach of the Fourteenth Amendment."
//The Slaughter-House Cases//:
 * Decided almost simultaneously with the passage of the Fourteenth Amendment
 * Gave African Americans citizenship rights and prohibited state action discrimination
 * On the equal protection clause: "The existence of laws in the states where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden."

(It is interesting to note that the main thrust of //The Slaughter-House Cases// was to //limit// the scope of the Fourteenth Amendment, though it did so in a way friendly to the rights of African Americans.)

//Strauder v. West Virginia//:
 * On the Fourteenth Amendment: "It was designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons."
 * Clearly recognized the need to construe the Amendment liberally
 * Prevented laws distinguishing blacks from whites: "the law in the States shall be the same for the black as for the white"
 * Blacks have a "right to exemption from unfriendly legislation against them distinctly as colored; exemption from legal discriminations, implying inferiority in civil society . . ."
 * Any distinction was a badge of inferiority
 * Knowledge of the prejudice underlying segregation was the basis of the Amendment's passage

"That law must not distinguish between colored and white persons was the thesis of all the early cases."

B. "The first time the question came before the Court racial segregation in transportation was specifically disapproved."
Segregation in railroad cars was before the Court in //Railroad Co. v. Brown//.
 * The railroad company tried to argue literal compliance with Congress's directions because it provided accommodations, though segregated, to blacks
 * "This is an ingenious attempt to evade a compliance with the obvious meaning of the requirement." After all, why would a business turn down paying black customers?
 * "It was the discrimination in the use of the cars on account of color" that Congress was targeting by the stipulations in its agreement with the railroad company.

//Brown// was then a direct contradiction of //Plessy//; "the Court considered segregation per se discrimination and a denial of equality."

====C. "The Separate but Equal doctrine marked an unwarranted departure from the main stream of constitutional development and permits the frustration of the very purposes of the Fourteenth Amendment as defined by this Court."====

//Plessy// separated the concept of //civil rights//— which it limited "to encompass those rights attendant upon use of the legal process and protection against complete exclusion pursuant to state mandate"—f rom //"social" rights//, reflecting a role in society. These social rights were purportedly dictated by the customs and traditions of society.

This holding was contrary to //The Slaughter-House Cases// and //Strauder//, prohibiting discrimination on account of race, and //directly// contrary to //Railroad Co. v. Brown//, which decided the same question with the opposite result.

D. "The Separate but Equal Doctrine was conceived in error."
1. The dissenting opinion of Justice Harlan in //Plessy//.


 * The consequences of the majority holding "was, under the guise of giving equal accommodations for whites and blacks to compel the latter to keep to themselves"
 * Recognized that the holding furthered the "inferior caste thesis" of //Dred Scott v. Sandford//.
 * Segregation "can have no other result than to render permanent peace impossible and to keep alive a conflict of races, the continuance of which must to harm to all concerned."

2. Custom, usage, and tradition rooted in the slave tradition cannot be the constitutional yardstick for measuring state action under the Fourteenth Amendment.

//Chiles v. Chesapeake & Ohio Railway Co.// upheld //Plessy// and made clear that //Plessy// "approved the enforcement of racial distinctions as reasonable because they are in accordance with the established social usage, custom and tradition."

The purpose of the Thirteenth, Fourteenth, and Fifteenth Amendments was to overturn existing customs and place blacks on the same plane as whites. Several cases have illustrated the Court's unwillingness to use customs and traditions as a basis to find discrimination reasonable:
 * //Smith v. Allwright//
 * //Shelley v. Kraemer//
 * //Henderson v. United States//
 * //Sweatt// and //McLaurin//

3. "Preservation of public peace cannot justify deprivation of constitutional rights."

//Buchanan v. Warley// dealt with a Louisville statute banning the sale of a home to an African American if a majority of the houses on the block were white-owned.
 * In his amici curiae brief, the Solicitor General noted that the ordinance was passed to preserve the peace. However, instead of just constraining the lawless violence, the ordinance itself accomplished the aim of the ordinance; either way, blacks and whites were separated. "Dost thou well to be angry?"
 * The Court said though preserving the peace was desirable, "this aim cannot be accomplished by laws or ordinances which deny rights created or protected by the Federal Constitution."

//Plessy// cannot be justified by custom, usage, and tradition or by a need to keep the public peace. It must stand on its own merits.

4. The separate but equal doctrine deprives African Americans of that protection which the Fourteenth Amendment accords under the general classification test.

It is ironic that under //Plessy//, the Fourteenth Amendment—designed to protect blacks—affords blacks less protection than other groups.
 * //Barbier v. Connolly//: The Fourteenth Amendment prohibits all unreasonable classifications and distinctions, though they may not be racial in character.
 * //Nixon v. Herndon//, in a majority opinion authored by Justice Holmes: "States may do a good deal of classifying that is difficult to believe rational, but there are limits, and it is too clear for extended argument that color cannot be made the basis of a statutory classification affecting the right set up in this case."

E. The Separate but Equal doctrine has not received unqualified approval from the Court.
Though extension of the doctrine to education was summarily suggested in //Gong Lum v. Rice// and //Missouri ex rel. Gaines v. Canada//, separate but equal "has never been extended by this Court beyond the field of transportation in any case where such extension was contested."

When //equality// has been tested, separate but equal has never sustained a statute. //Missouri ex rel. Gaines//; //Sipuel v. Board of Regents//; //Sweatt//; //McLaurin//.

When the Court has allowed segregation in education, it has not applied the separate but equal doctrine. //Cumming v. Board of Education//; //Berea College v. Kentucky//; //Gong Lum//.

Finally, even in transportation cases, the doctrine has been eroded. //Henderson v. United States//; //Morgan v. Virginia//.

F. The necessary consequence of the //Sweatt// and //McLaurin// decisions is repudiation of the separate but equal doctrine.
//Sweatt// and //McLaurin// did not expressly overturn //Plessy//, but "their application in effect destroyed the practice of segregation with respect to state graduate and professional schools."
 * // Sweatt //: African Americans' experience—with white students removed—cannot be substantially equal at the law school level. This holding led to the desegregation of the University of North Carolina Law School: //McKissick v. Carmichael//.
 * // McLaurin //: "the racial distinctions imposed in an effort to comply with the state's segregation laws were held to impair and inhibit ability to study, to exchange views with other students, and, in general, to learn one's profession."

III. Viewed in the light of history, the separate but equal doctrine has been an instrumentality of defiant nullification of the Fourteenth Amendment.
Segregation has always meant that there were superior whites and an inferior black caste. "Inevitably, segregation in its operation and effect has meant inequality consistent only with the belief that the people segregated are inferior and not worthy, or capable, of enjoying the facilities set apart for the dominant group."

"The separate but equal doctrine furnished a base from which those who sought to nullify the Thirteenth, Fourteenth, and Fifteenth Amendments were permitted to operate in relative security." This restored blacks to slave status.

A. The status of the African American, slave and free, prior to the Civil War.
"One of the basic assumptions of the slave system was the Negro's inherent inferiority."
 * This subjugation, and continuance of slave status, was essential for cotton production in the South, in perpetuity.
 * It was backed by all manner of pseudo-scientific findings.
 * "Free" blacks still faced a multitude of hardships; the odds were still very much stacked against them. Comparing slaves to these free men "confirmed the views of many that Negroes could not profit by freedom." This was the spirit of //Dred Scott//.
 * By the Civil War, even free blacks had virtually no rights in the South. Of course, this persisted after the war as well.

B. The post-war struggle
Before the Civil War, plantations had dominated agriculture and used skilled slave labor to drive out independent white farmers. After the war, plantations were no longer profitable. Independent white farmers had every incentive and need to subjugate former black slaves; they were the farmers' direct competition.

Former plantation owners "found that they could build a new economic structure based on a depressed labor market of poor whites and Negroes." These groups united in interest against blacks. "Union forces were needed during Reconstruction to maintain order and to make possible the development of a more democratic way of life in the states recently in rebellion."

C. The Compromise of 1877 and the abandonment of Reconstruction
In the North, concern shifted from rights of blacks to the desire for economic expansion in a friendly South.

In 1877, there was a hotly contested election; Southern Democrats allowed Republican Rutherford B. Hayes to be named President in exchange for Northern troops pulling out of the South. This led to an end of enforcement of both the Fourteenth and the Fifteenth Amendments and laid the seeds for Jim Crow.

D. Consequences of the 1877 Compromise
"The policy of the southern states was to destroy the political power of the Negro so that he could never seriously challenge the order that was being established." One big blow was black disenfranchisement, written into state constitutions across the South around the turn of the century.

There was a movement in the South to repeal the Fourteenth and Fifteenth Amendments:
 * The black man was inferior because of his race
 * "Such was the real philosophy behind the late 19th Century segregation laws—an essential part of the whole racist complex. Controlling economic and political interests in the South were convinced that the Negro's subjugation was essential to their survival, and the Court in //Plessy v. Ferguson// had ruled that such subjugation through public authority was sanctioned by the Constitution."

//Plessy// enabled "archaic and provincial notions of racial superiority" to blossom and take root in the South, apparently sanctioned by the federal government. "Efforts toward the elimination of race discrimination are jeopardized as long as the separate but equal doctrine endures."

E. Nullification of the rights guaranteed by the Fourteenth Amendment and the reestablishment of the Negro's pre-Civil War status fully realized
By the turn of the century, there was no need to repeal the Reconstruction Amendments; a system of laws completely subjugating blacks was already in place. Southern states started to publicly complain that money for black education was wasted and deprived poor whites of opportunity.

"Through separate, inferior schools, through an elaborate system of humiliating Jim Crow, and through effective disenfranchisement of the Negro, the exclusive enjoyment of first-class citizenship had now become the sole possession of white persons."


 * "Separate but equal is a legal fiction. There never was and never will be any separate equality. Our Constitution cannot be used to sustain ideologies and practices which we as a people abhor."**