From Brown to Plessy
guest post by Mash

Yesterday the United States Supreme Court dealt a severe blow to the legacy of Brown v. Board of Education. In a 5-4 decision Chief Justice John Roberts wrote the following in an opinion joined by Justices Antonin Scalia, Clarence Thomas and Samuel Alito (Justice Kennedy cast the deciding vote for the majority but did not sign on to Roberts’ opinion):


The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

With those lines, the Supreme Court rolled back much of Brown v. Board of Education while claiming to have upheld it.

On May 17, 1954 the Supreme Court’s unanimous decision in Brown v. Board of Education struck a death knell to the long era of racial segregation in America by overturning the 1896 Supreme Court decision in Plessy v. Ferguson. Plessy had upheld racial segregation and the doctrine of "separate but equal" as constitutional.

In writing for the majority in Plessy Justice Henry Billings Brown wrote on May 18, 1896 the following:


Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation.

Over a century after Plessy, Chief Justice Roberts’ words echo the words of Justice Henry Billings Brown. In Plessy, Justice Brown went on to write:


We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. … The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits, and a voluntary consent of individuals.

If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.

It was the Supreme Court’s affirmation of segregation so plainly handed down in Plessy that Brown rejected, overturned and aimed to remedy. Yesterday that changed by Justice Robert’s throwback to Plessy’s position that government’s attempts to counter segregation is in itself discrimination.

In a scathing dissent yesterday, Justice Stephen Breyer wrote:


The lesson of history … is not that efforts to continue racial segregation are constitutionally indistinguishable from efforts to achieve racial integration.

The legacy of Brown vs. Board of Education is now in serious jeopardy after yesterday’s ruling – the ruling aims to effectively strip school boards of tools that they have used to counter racial segregation. In that we have returned to the days of Plessy, by turning Brown on its head.

In 1954, on behalf of the unanimous Supreme Court in Brown, Chief Justice Earl Warren wrote:


Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

We conclude that, in the field of public education, the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal.

Yesterday’s was a landmark decision that effectively rendered Brown toothless. Save for Justice Kennedy not signing on to Justice Roberts’ opinion, it would have been a complete overturning of Brown v. Board of Education.