May 18, 1896 – The U.S. Supreme Court Upholds the Constitutionality of “Separate-But-Equal” Segregated Public Facilities in Plessy v. Ferguson

The state of Louisiana enacted a law that required railroads in that state to provide “equal but separate” cars for blacks and whites. In 1892, Homer Adolph Plessy–who was seven-eighths Caucasian–took a seat in a “whites only” car of a Louisiana train. He refused to move to the car reserved for blacks and was arrested.

The statute was attacked upon the grounds that it conflicted with both the Thirteenth Amendment, which abolished slavery, and the Fourteenth Amendment, which requires states to provide “equal protection of the law” to all their citizens.

The Court, in Plessy v. Ferguson (163 U.S. 537, 1896), concluded that the Louisiana statute was an appropriate exercise of the state’s police power within constitutional boundaries. The majority, in an opinion by Justice Henry Billings Brown, upheld state-imposed racial segregation.

The Court held that in the first place, the inapplicability of the Thirteenth Amendment was “too clear for argument,” finding that that amendment applied only to conditions of involuntary servitude.

Justice Henry Billings Brown

Justice Henry Billings Brown

The crux of the case then was whether the statute met the requirements of “equal protection” under the Fourteenth Amendment. Justice Brown conceded that the Fourteenth Amendment intended to establish absolute equality for the races but only in the application of the law. He also allowed the Court had previously recognized that facially neutral action may nevertheless operate to discriminate against racial minorities (such as in Yick Wo v. Hopkins, 118 U.S. 356, 1886). But there was also, he averred, a question of “reasonableness”:

So far, then, as a conflict with the Fourteenth Amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and, with respect to this, there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures.”

After all, Brown wrote – his distaste seeping through – “in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races unsatisfactory to either.” He noted:

Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced….

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….

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. 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.”

[In other words, if the members of one race feel “inferior” to another, it is their own fault.]

Blacks and whites drank from separate water fountains and coolers, as in this Oklahoma City streetcar station in 1939

Blacks and whites drank from separate water fountains and coolers, as in this Oklahoma City streetcar station in 1939

He further pointed out that the question of how much blood in a person constitutes “a colored person, as distinguished from a white person” is up to the states, and at any rate, was not at issue in this case.

Although the Plessy case became know as establishing the “separate but equal” doctrine, that phrase does not appear in the body of the opinion. Rather, the term “equal but separate” appears in the language of the challenged statute.

Justice John Marshall Harlan dissented vigorously, writing:

Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race. … In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case.”

Justice John Marshall Harlan

Justice John Marshall Harlan

On May 17, 1954, the Court repudiated the separate but equal doctrine, at least insofar as it applied to public education, in Brown v. the Board of Education (347 U.S. 483). After hearing arguments by NAACP lawyer Thurgood Marshall, a unanimous Court adopted Justice Harlan’s position that state-imposed segregation in education violated the equal protection clause of the Fourteenth Amendment. Although the Brown court was careful to limit its holding to the case of public education, most commentators have interpreted the Brown decision as a complete overruling of Plessy.


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