dissenting opinion brown v board of education

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Brown v. Board of Education

The Supreme Court's opinion in the Brown v. Board of Education case of 1954 legally ended decades of racial segregation in America's public schools. Chief Justice Earl Warren delivered the unanimous ruling in the landmark civil rights case. State-sanctioned segregation of public schools was a violation of the 14th Amendment and was therefore unconstitutional. This historic decision marked the end of the "separate but equal" precedent set by the Supreme Court nearly 60 years earlier and served as a catalyst for the expanding civil rights movement. Read more...

Primary Sources

Links go to DocsTeach , the online tool for teaching with documents from the National Archives.

Dissenting opinion in Briggs v. Elliott in which Judge Waties Waring opposed the District Court ruling that "separate but equal" schools were not in violation of the 14th amendment – he presented arguments that would later be used by the Supreme Court in Brown v. Board of Education of Topeka, Kansas , 6/21/1951

View in National Archives Catalog

English class at Moton High School , a school for Black students, one of several photographs entered as evidence in the case Davis v. County School Board of Prince Edward County, Virginia , which was one of five cases that the Supreme Court consolidated under Brown v. Board of Education , ca. 1951

Order of Argument in Brown v. Board of Education of Topeka during which attorneys reargued the five cases that the Supreme Court heard collectively and consolidated under the name Brown v. Board of Education , 12/1953

Page 11 of the unanimous Supreme Court ruling of 5/17/1954 in Brown v. Board of Education that state-sanctioned segregation of public schools violated the 14th Amendment, marking the end of the "separate but equal" precedent

Page 3 of a letter from President Eisenhower to E. E. "Swede" Hazlett in which the President expressed his belief that the new Warren court would be very moderate on the issue of segregation, 10/23/1954

Judgment of May 31, 1955, in Brown v. Board of Education (Brown II) – a year after the ruling that racial segregation in public schools was unconstitutional – directing that schools be desegregated "with all deliberate speed"

• Brown v. Board of Education Timeline
• Biographies of Key Figures
• Related Primary Sources:  Photographs from the Dorothy Davis Case

Teaching Activities

The "Rights in America" page on DocsTeach includes primary sources and document-based teaching activities related to how individuals and groups have asserted their rights as Americans. It includes topics such as segregation, racism, citizenship, women's independence, immigration, and more.

Additional Background Information

While the 13th Amendment to the United States Constitution outlawed slavery, it wasn't until three years later, in 1868, that the 14th Amendment guaranteed the rights of citizenship to all persons born or naturalized in the United States, including due process and equal protection of the laws. These two amendments, as well as the 15th Amendment protecting voting rights, were intended to eliminate the last remnants of slavery and to protect the citizenship of Black Americans.

In 1875, Congress also passed the first Civil Rights Act, which held the "equality of all men before the law" and called for fines and penalties for anyone found denying patronage of public places, such as theaters and inns, on the basis of race. However, a reactionary Supreme Court reasoned that this act was beyond the scope of the 13th and 14th Amendments, as these amendments only concerned the actions of the government, not those of private citizens. With this ruling, the Supreme Court narrowed the field of legislation that could be supported by the Constitution and at the same time turned the tide against the civil rights movement.

By the late 1800s, segregation laws became almost universal in the South where previous legislation and amendments were, for all practical purposes, ignored. The races were separated in schools, in restaurants, in restrooms, on public transportation, and even in voting and holding office. 

Plessy v. Ferguson

In 1896, the Supreme Court upheld the lower courts' decision in the case of Plessy v. Ferguson . Homer Plessy, a Black man from Louisiana, challenged the constitutionality of segregated railroad coaches, first in the state courts and then in the U. S. Supreme Court.

The high court upheld the lower courts, noting that since the separate cars provided equal services, the equal protection clause of the 14th Amendment was not violated. Thus, the "separate but equal" doctrine became the constitutional basis for segregation. One dissenter on the Court, Justice John Marshall Harlan, declared the Constitution "color blind" and accurately predicted that this decision would become as baneful as the infamous Dred Scott decision of 1857.

In 1909 the National Association for the Advancement of Colored People (NAACP) was officially formed to champion the modern Civil Rights Movement. In its early years its primary goals were to eliminate lynching and to obtain fair trials for Black Americans. By the 1930s, however, the activities of the NAACP began focusing on the complete integration of American society. One of their strategies was to force admission of Black Americans into universities at the graduate level where establishing separate but equal facilities would be difficult and expensive for the states.

At the forefront of this movement was Thurgood Marshall, a young Black lawyer who, in 1938, became general counsel for the NAACP's Legal Defense and Education Fund. Significant victories at this level included Gaines v. University of Missouri in 1938, Sipuel v. Board of Regents of University of Oklahoma in 1948, and Sweatt v. Painter in 1950. In each of these cases, the goal of the NAACP defense team was to attack the "equal" standard so that the "separate" standard would in turn become susceptible.

Five Cases Consolidated under Brown v. Board of Education

By the 1950s, the NAACP was beginning to support challenges to segregation at the elementary school level. Five separate cases were filed in Kansas, South Carolina, Virginia, the District of Columbia, and Delaware: 

• Oliver Brown et al. v. Board of Education of Topeka, Shawnee County, Kansas, et al.
• Harry Briggs, Jr., et al. v. R.W. Elliott, et al.
• Dorothy E. Davis et al. v. County School Board of Prince Edward County, Virginia, et al.
• Spottswood Thomas Bolling et al. v. C. Melvin Sharpe et al.
• Francis B. Gebhart et al. v. Ethel Louise Belton et al.

While each case had its unique elements, all were brought on the behalf of elementary school children, and all involved Black schools that were inferior to white schools. Most importantly, rather than just challenging the inferiority of the separate schools, each case claimed that the "separate but equal" ruling violated the equal protection clause of the 14th Amendment.

The lower courts ruled against the plaintiffs in each case, noting the Plessy v. Ferguson ruling of the United States Supreme Court as precedent. In the case of Brown v. Board of Education , the Federal district court even cited the injurious effects of segregation on Black children, but held that "separate but equal" was still not a violation of the Constitution. It was clear to those involved that the only effective route to terminating segregation in public schools was going to be through the United States Supreme Court.

In 1952 the Supreme Court agreed to hear all five cases collectively. This grouping was significant because it represented school segregation as a national issue, not just a southern one. Thurgood Marshall, one of the lead attorneys for the plaintiffs (he argued the Briggs case), and his fellow lawyers provided testimony from more than 30 social scientists affirming the deleterious effects of segregation on Black and white children. These arguments were similar to those alluded to in the Dissenting Opinion of Judge Waites Waring in Harry Briggs, Jr., et al. v. R. W. Elliott, Chairman, et al . (shown above).

These [social scientists] testified as to their study and researches and their actual tests with children of varying ages and they showed that the humiliation and disgrace of being set aside and segregated as unfit to associate with others of different color had an evil and ineradicable effect upon the mental processes of our young which would remain with them and deform their view on life until and throughout their maturity....They showed beyond a doubt that the evils of segregation and color prejudice come from early training...it is difficult and nearly impossible to change and eradicate these early prejudices however strong may be the appeal to reason…if segregation is wrong then the place to stop it is in the first grade and not in graduate colleges. 

The lawyers for the school boards based their defense primarily on precedent, such as the Plessy v. Ferguson ruling, as well as on the importance of states' rights in matters relating to education.

Realizing the significance of their decision and being divided among themselves, the Supreme Court took until June 1953 to decide they would rehear arguments for all five cases.

The arguments were scheduled for the following term. The Court wanted briefs from both sides that would answer five questions, all having to do with the attorneys' opinions on whether or not Congress had segregation in public schools in mind when the 14th amendment was ratified.

The Order of Argument (shown above) offers a window into the three days in December of 1953 during which the attorneys reargued the cases. The document lists the names of each case, the states from which they came, the order in which the Court heard them, the names of the attorneys for the appellants and appellees, the total time allotted for arguments, and the dates over which the arguments took place.

Briggs v. Elliott

The first case listed, Briggs v. Elliott , originated in Clarendon County, South Carolina, in the fall of 1950. Harry Briggs was one of 20 plaintiffs who were charging that R.W. Elliott, as president of the Clarendon County School Board, violated their right to equal protection under the fourteenth amendment by upholding the county's segregated education law. Briggs featured social science testimony on behalf of the plaintiffs from some of the nation's leading child psychologists, such as Dr. Kenneth Clark, whose famous doll study concluded that segregation negatively affected the self-esteem and psyche of African-American children. Such testimony was groundbreaking because on only one other occasion in U.S. history had a plaintiff attempted to present such evidence before the Court.

Thurgood Marshall, the noted NAACP attorney and future Supreme Court Justice, argued the Briggs case at the District and Federal Court levels. The U.S. District Court's three-judge panel ruled against the plaintiffs, with one judge dissenting, stating that "separate but equal" schools were not in violation of the 14th amendment. In his dissenting opinion (shown above), Judge Waties Waring presented some of the arguments that would later be used by the Supreme Court in Brown v. Board of Education of Topeka, Kansas . The case was appealed to the Supreme Court.

Davis v. County School Board of Prince Edward County, Virginia

Marshall also argued the Davis v. County School Board of Prince Edward County, Virginia, case at the Federal level. Originally filed in May of 1951 by plaintiff's attorneys Spottswood Robinson and Oliver Hill, the Davis case, like the others, argued that Virginia's segregated schools were unconstitutional because they violated the equal protection clause of the fourteenth amendment. And like the Briggs case, Virginia's three-judge panel ruled against the 117 students who were identified as plaintiffs in the case. (For more on this case, see  Photographs from the Dorothy Davis Case .)

Brown v. Board of Education of Topeka

Listed third in the order of arguments, Brown v. Board of Education of Topeka was initially filed in February of 1951 by three Topeka area lawyers, assisted by the NAACP's Robert Carter and Jack Greenberg. As in the Briggs case, this case featured social science testimony on behalf of the plaintiffs that segregation had a harmful effect on the psychology of African-American children. While that testimony did not prevent the Topeka judges from ruling against the plaintiffs, the evidence from this case eventually found its way into the wording of the Supreme Court's May 17, 1954 opinion. The Court concluded that:

To separate them [children in grade and high schools] 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 to ever be undone.

Bolling v. Sharpe

Because Washington, D.C., is a Federal territory governed by Congress and not a state, the Bolling v. Sharpe case was argued as a fifth amendment violation of "due process." The fourteenth amendment only mentions states, so this case could not be argued as a violation of "equal protection," as were the other cases. When a District of Columbia parent, Gardner Bishop, unsuccessfully attempted to get 11 African-American students admitted into a newly constructed white junior high school, he and the Consolidated Parents Group filed suit against C. Melvin Sharpe, president of the Board of Education of the District of Columbia. Charles Hamilton Houston, the NAACP's special counsel, former dean of the Howard University School of Law, and mentor to Thurgood Marshall, took up the Bolling case.

With Houston's health already failing in 1950 when he filed suit, James Nabrit, Jr. replaced Houston as the original attorney. By the time the case reached the Supreme Court on appeal, George E.C. Hayes had been added as an attorney for the petitioners, beside James Nabrit, Jr. According to the Court, due to the decision in Plessy , "the plaintiffs and others similarly situated" had been "deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment," therefore, segregation of America's public schools was unconstitutional.

Belton v. Gebhart

The last case listed in the order of arguments, Belton v. Gebhart , was actually two nearly identical cases (the other being Bulah v. Gebhart ), both originating in the state of Delaware in 1952. Ethel Belton was one of the parents listed as plaintiffs in the case brought in Claymont, while Sarah Bulah brought suit in the town of Hockessin, Delaware. While both of these plaintiffs brought suit because their African-American children had to attend inferior schools, Sarah Bulah's situation was unique in that she was a white woman with an adopted Black child, who was still subject to the segregation laws of the state. Local attorney Louis Redding, Delaware's only African-American attorney at the time, originally argued both cases in Delaware's Court of Chancery. NAACP attorney Jack Greenberg assisted Redding. Belton/Bulah v. Gebhart was argued at the Federal level by Delaware's attorney general, H. Albert Young.

Supreme Court Rehears Arguments

Reargument of the Brown v. Board of Education cases at the Federal level took place December 7-9, 1953. Throngs of spectators lined up outside the Supreme Court by sunrise on the morning of December 7, although arguments did not actually commence until one o'clock that afternoon. Spottswood Robinson began the argument for the appellants, and Thurgood Marshall followed him. Virginia's Assistant Attorney General, T. Justin Moore, followed Marshall, and then the court recessed for the evening.

On the morning of December 8, Moore resumed his argument, followed by his colleague, J. Lindsay Almond, Virginia's Attorney General. Following this argument, Assistant United States Attorney General J. Lee Rankin, presented the U.S. government's amicus curiae brief on behalf of the appellants, which showed its support for desegregation in public education. In the afternoon, Robert Carter began arguments in the Kansas case, and Paul Wilson, Attorney General for the state of Kansas, followed him in rebuttal.

On December 9, after James Nabrit and Milton Korman debated Bolling , and Louis Redding, Jack Greenberg, and Delaware's Attorney General, H. Albert Young argued Gebhart , the Court recessed. The attorneys, the plaintiffs, the defendants, and the nation waited five months and eight days to receive the unanimous opinion of Chief Justice Earl Warren's court, which declared, "in the field of public education, the doctrine of 'separate but equal' has no place."

The Warren Court

In September 1953, President Eisenhower had appointed Earl Warren, governor of California, as the new Supreme Court chief justice. Eisenhower believed Warren would follow a moderate course of action toward desegregation. His feelings regarding the appointment are detailed in the closing paragraphs of a letter he wrote to E. E. "Swede" Hazlett, a childhood friend (shown above). On the issue of segregation, Eisenhower believed that the new Warren court would "be very moderate and accord a maximum initiative to local courts."

In his brief to the Warren Court that December, Thurgood Marshall described the separate but equal ruling as erroneous and called for an immediate reversal under the 14th Amendment. He argued that it allowed the government to prohibit any state action based on race, including segregation in public schools. The defense countered this interpretation pointing to several states that were practicing segregation at the time they ratified the 14th Amendment. Surely they would not have done so if they had believed the 14th Amendment applied to segregation laws. The U.S. Department of Justice also filed a brief; it was in favor of desegregation but asked for a gradual changeover.

Over the next few months, the new chief justice worked to bring the splintered Court together. He knew that clear guidelines and gradual implementation were going to be important considerations, as the largest concern remaining among the justices was the racial unrest that would doubtless follow their ruling. 

The Supreme Court Ruling

Finally, on May 17, 1954, Chief Justice Earl Warren read the unanimous opinion: school segregation by law was unconstitutional (shown above). Arguments were to be heard during the next term to determine exactly how the ruling would be imposed.

Just over one year later, on May 31, 1955, Warren read the Court's unanimous decision, now referred to as Brown II (also shown above). It instructed states to begin desegregation plans "with all deliberate speed." Warren employed careful wording in order to ensure backing of the full Court in his official judgment.

The Brown decision was a watershed in American legal and civil rights history because it overturned the "separate but equal" doctrine first articulated in the Plessy v. Ferguson decision of 1896. By overturning Plessy , the Court ended America's 58-year-long practice of legal racial segregation and paved the way for the integration of America's public school systems.

Despite two unanimous decisions and careful, if not vague, wording, there was considerable resistance to the Supreme Court's ruling in Brown v. Board of Education . In addition to the obvious disapproving segregationists were some constitutional scholars who felt that the decision went against legal tradition by relying heavily on data supplied by social scientists rather than precedent or established law. Supporters of judicial restraint believed the Court had overstepped its constitutional powers by essentially writing new law.

However, minority groups and members of the Civil Rights Movement were buoyed by the Brown decision even without specific directions for implementation. Proponents of judicial activism believed the Supreme Court had appropriately used its position to adapt the basis of the Constitution to address new problems in new times. The Warren Court stayed this course for the next 15 years, deciding cases that significantly affected not only race relations, but also the administration of criminal justice, the operation of the political process, and the separation of church and state.

Parts of this text were adapted from an article written by Mary Frances Greene, a teacher at Marie Murphy School in Wilmette, IL.

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Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)

The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits states from segregating public school students on the basis of race. This marked a reversal of the "separate but equal" doctrine from Plessy v. Ferguson that had permitted separate schools for white and colored children provided that the facilities were equal.

Based on an 1879 law, the Board of Education in Topeka, Kansas operated separate elementary schools for white and African-American students in communities with more than 15,000 residents. The NAACP in Topeka sought to challenge this policy of segregation and recruited 13 Topeka parents to challenge the law on behalf of 20 children. In 1951, each of the families attempted to enroll the children in the school closest to them, which were schools designated for whites. Each child was refused admission and directed to the African-American schools, which were much further from where they lived. For example, Linda Brown, the daughter of the named plaintiff, could have attended a white school several blocks from her house but instead was required to walk some distance to a bus stop and then take the bus for a mile to an African-American school. Once the children had been refused admission to the schools designated for whites, the NAACP brought the lawsuit. They were unsuccessful at the trial court level, where the 1896 Supreme Court precedent in Plessy v. Ferguson was found to be decisive. Even though the trial court agreed that educational segregation had a negative effect on African-American children, it applied the standard of Plessy in finding that the white and African-American schools offered sufficiently equal quality of teachers, curricula, facilities, and transportation. Since the NAACP did not challenge the details of those findings, it essentially cast the appeal as a direct challenge to the system imposed by Plessy. When the Supreme Court heard the appeal, it combined Brown with four other cases addressing parallel issues in South Carolina, Virginia, Delaware, and Washington, D.C. The NAACP was responsible for bringing each of these lawsuits, and it had lost on each of them at the trial court level except the Delaware case of Gebhart v. Belton. Brown stood apart from the others in the group as the only case that challenged the separate but equal doctrine on its face. The others were based on assertions of gross inequality, which would have violated the standard in Plessy as well.

• Earl Warren (Author)
• Hugo Lafayette Black
• Stanley Forman Reed
• Felix Frankfurter
• William Orville Douglas
• Robert Houghwout Jackson
• Harold Hitz Burton
• Tom C. Clark
• Sherman Minton

Supreme Court opinions are rarely unanimous, and it appears that Justice Frankfurter deliberately argued for a re-hearing to stall the case while the Court built a consensus behind its decision. This was designed to prevent proponents of segregation from using dissents to build future challenges to Brown. Despite the eventual unanimity, the judges had a wide range of views. Reed and Clark were not opposed to segregation per se, while Frankfurter and Jackson were hesitant to issue a bold decision that might be difficult to enforce. (Jackson and Reed initially planned to write a dissent together.) Douglas, Black, Burton, and Minton were relatively ready to overturn Plessy from the outset, however, as was Chief Justice Warren. President Dwight D. Eisenhower's appointment of Warren to replace former Chief Justice Frederick Moore Vinson, who died in September 1953, thus may have played a crucial role in how events unfolded. Warren had supported the integration of Mexican-American children into California schools. Warren based much of his opinion on information from social science studies rather than court precedent. This was understandable because few decisions existed on which the Court could rely, yet it would draw criticism for its non-traditional approach. The decision also used language that was relatively accessible to non-lawyers because Warren felt that it was necessary for all Americans to understand its logic.

This decision ranks among the most dramatic issued by the Supreme Court, in part due to Warren's insistence that the Fourteenth Amendment gave the Court the power to end segregation even without Congressional authority. Like the use of non-legal sources to justify his reasoning, Warren's "activist" view of the Court's role remains controversial to the current day. The illegality of segregation does not, however, and a series of later decisions were implemented to try to force states to comply with Brown. Unfortunately, the reality is that this decision's vision of complete desegregation has not been achieved in many areas of the U.S., and the problems of enforcement that Jackson identified have proven difficult to solve.

U.S. Supreme Court

Brown v. Board of Education of Topeka

Argued December 9, 1952

Reargued December 8, 1953

Decided May 17, 1954*

Segregation of white and Negro children in the public schools of a State solely on the basis of race, pursuant to state laws permitting or requiring such segregation, denies to Negro children the equal protection of the laws guaranteed by the Fourteenth Amendment -- even though the physical facilities and other "tangible" factors of white and Negro schools may be equal. Pp. 486-496.

(a) The history of the Fourteenth Amendment is inconclusive as to its intended effect on public education. Pp. 489-490.

(b) The question presented in these cases must be determined not on the basis of conditions existing when the Fourteenth Amendment was adopted, but in the light of the full development of public education and its present place in American life throughout the Nation. Pp. 492-493.

(c) Where a State has undertaken to provide an opportunity for an education in its public schools, such an opportunity is a right which must be made available to all on equal terms. P. 493.

(d) Segregation of children in public schools solely on the basis of race deprives children of the minority group of equal educational opportunities, even though the physical facilities and other "tangible" factors may be equal. Pp. 493-494.

(e) The "separate but equal" doctrine adopted in Plessy v. Ferguson,   163 U.S. 537 , has no place in the field of public education. P. 495.

(f) The cases are restored to the docket for further argument on specified questions relating to the forms of the decrees. Pp. 495-496.

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Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

Brown v. Board of Education: 70 Years of Progress and Challenges

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After 70 years, what is left to say about Brown v. Board of Education ?

A lot, it turns out. As the anniversary nears this week for the U.S. Supreme Court’s historic May 17, 1954, decision that outlawed racial segregation in public schools, there are new books, reports, and academic conferences analyzing its impact and legacy.

Just last year, members of the current Supreme Court debated divergent interpretations of Brown as they weighed the use of race in higher education admissions, with numerous references to the landmark ruling in their deeply divided opinions in the case that ended college affirmative action as it had been practiced for half a century.

Meanwhile, some school district desegregation cases remain active after more than 50 years, while the Supreme Court has largely gotten out of the business of taking up the issue. There are fresh reports that the nation’s K-12 schools, which are much more racially and ethnically diverse than they were in the 1950s, are nonetheless experiencing resegregation .

At an April 4 conference at Columbia University, speakers captured the mood about a historic decision that slowly but steadily led to the desegregation of schools in much of the country but faced roadblocks and new conditions that have left its promise unfulfilled.

“I think Brown permeates nearly every aspect of our current modern society,” said Janai Nelson, the president and director-counsel of the NAACP Legal Defense and Educational Fund, the organization led by Thurgood Marshall, who would later become a Supreme Court justice, during the Brown era.

“I hope that we see clearly now that there is an effort to roll back [the] gains” brought by the decision, said Nelson, whose organization was a conference co-sponsor. “There is an effort to recast Brown from what it was originally intended to produce. If we want to keep this multiracial democracy and actually have it fulfill its promise, because the status quo is still not satisfactory, we must look at the original intent of this all-important case and make sure we fulfill its promise.”

Celebrations at the White House, the Justice Department, and a Smithsonian Museum

On May 16, President Joe Biden will welcome to the White House descendants of the original plaintiffs in the cases that were consolidated into Brown , which dealt with cases from Delaware, Kansas, South Carolina, and Virginia. (The companion decision, Bolling v. Sharpe , decided the same day, struck down school segregation in the District of Columbia.) On May 17, the president will deliver remarks on the historic decision at the Smithsonian Institution’s National Museum of African American History and Culture.

Attorney General Merrick B. Garland and U.S. Secretary of Education Miguel Cardona marked the anniversary at an event at the U.S. Department of Justice on Tuesday.

“ Brown vs. Board and its legacy remind us who we want to be as a nation, a place that upholds values of justice and equity as its highest ideals,” Cardona said. “We normalize a culture of low expectations for some students and give them inadequate resources and support. Today, it’s still become all too normal for some to deny racism and segregation or ban books that teach Black history when we all know that Black history is American history.”

On May 17, 1954, then-Chief Justice Earl Warren announced the decision for a unanimous court that held that “in the field of public education, ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”

That opinion was a compromise meant to bring about unanimity, and the court did not even address a desegregation remedy until a year later in Brown II , when it called for lower courts to address local conditions “with all deliberate speed.”

“In short, the standard the court established for evaluating schools’ desegregation efforts was as vague as the schedule for achieving it was amorphous,” R. Shep Melnick, a professor of American politics at Boston College and the co-chair of the Harvard Program on Constitutional Government, says in an assessment of the Brown anniversary published this month by the American Enterprise Institute.

The paper distills a book by Melnick published last year, The Crucible of Desegregation: The Uncertain Search for Educational Equity , which takes a fresh look at the 70-year history of post-Brown desegregation efforts.

Melnick argues that even after 70 years, Brown and later Supreme Court decisions remain full of ambiguities as to even what it means for a school system to be desegregated. He highlights two competing interpretations of Brown embraced by lawyers, judges, and scholars—a “colorblind” approach prohibiting any categorization of students by race, and a perspective based on racial isolation and equal educational opportunity. “Neither was ever fully endorsed or rejected by the Supreme Court,” Melnick writes in the book. “Both could find some support in the court’s ambiguous 1954 opinion.”

The Supreme Court issued some 35 decisions on desegregation after Brown , but hasn’t taken up a case involving a court-ordered desegregation remedy since 1995 and last spoke on the issue of integration and student diversity in the K-12 context in 2007, when the court struck down two voluntary plans to increase diversity by considering race in assigning students to schools.

Citations to Brown pervade last year’s sharply divided opinions over affirmative action

Chief Justice John G. Roberts Jr., in his plurality opinion in that voluntary integration case, Parents Involved in Community Schools v. Seattle School District , laid the groundwork for last year’s affirmative action decision, which fully embraced Brown’s “race-blind” interpretation.

Last term, the high court ruled that race-conscious admissions plans at Harvard and the University of North Carolina violated the 14th Amendment’s equal protection clause. (The vote was 6-2 in Students for Fair Admissions v. President and Fellows of Harvard College , with Justice Ketanji Brown Jackson not participating because of her recent membership on a Harvard governing board. The vote was 6-3 in SFFA v. University of North Carolina .)

The Brown decision was a running theme in the arguments in the case, and in the some 230 pages of opinions.

Roberts, in the majority opinion, said a fundamental lesson of Brown in 1954 and Brown II in 1955 was that “The time for making distinctions based on race had passed.”

Brown and a generation of high court decisions on race that followed, in education and other areas, “reflect the core purpose of the Equal Protection Clause: doing away with all governmentally imposed discrimination based on race,” the chief justice wrote.

Justice Clarence Thomas, who succeeded Thurgood Marshall, joined the majority opinion and wrote a lengthy concurrence that touched on views he had long expressed about the 1954 decision. He cited the language of legal briefs filed by the challengers of segregated schools in the Brown cases (led by Marshall) that embraced the view that the 14th Amendment barred all government consideration of race.

Thomas said those challenging segregated schools in Brown “embraced the equality principle.”

Justice Brett M. Kavanaugh also joined the majority and acknowledged in his concurrence that in Brown , the court “authorized race-based student assignments for several decades—but not indefinitely into the future.”

(The other justices in the majority were Samuel A. Alito Jr., Neil M. Gorsuch, and Amy Coney Barrett.)

Writing the main dissent, Justice Sonia Sotomayor rejected the view that Brown was race-blind.

“ Brown was a race-conscious decision that emphasized the importance of education in our society,” she wrote, joined by justices Elena Kagan and Jackson. “The desegregation cases that followed Brown confirm that the ultimate goal of that seminal decision was to achieve a system of integrated schools that ensured racial equality of opportunity, not to impose a formalistic rule of race-blindness.”

Jackson, in a separate dissent (joined by Sotomayor and Kagan), said, “The majority and concurring opinions rehearse this court’s idealistic vision of racial equality, from Brown forward, with appropriate lament for past indiscretions. But the race-linked gaps that the law (aided by this court) previously founded and fostered—which indisputably define our present reality— are strangely absent and do not seem to matter.”

Amid reports on resegregation, some legal efforts continue

As the Brown anniversary arrives, there are fresh reports about resegregation of the schools. Research released this month by Sean Reardon of Stanford University and Ann Owens of the University of Southern California found that students in the nation’s large school districts have become much more isolated racially and economically in recent years.

The Civil Rights Project at the University of California, Los Angeles, which has been sounding the alarm about resegregation for years, says in a new report that Black and Latino students were the most highly segregated demographic groups in 2021. Though U.S. schools were 45 percent white, Blacks, on average, attended 76 percent nonwhite schools, and Latino students went to 75 percent nonwhite schools.

The CRP says the Brown anniversary is worth celebrating, but “American schools have been moving away from the goal of Brown and creating more ‘inherently unequal’ schools for a third of a century. We need new thought about how inequality and integration work in institutions and communities with changing multiracial populations with very unequal experiences.”

At the Columbia conference, Samuel Spital, the litigation director and general counsel of the Legal Defense Fund, noted that many jurisdictions are still under desegregation orders, some going back decades.

He highlighted one where LDF lawyers have been in federal district court, involving the 7,200-student St. Martin Parish school district in western Louisiana. Black plaintiffs first sued over segregated schools in 1965. In a 2022 decision, the U.S. Court of Appeals for the 5th Circuit, in New Orleans, noted that the case had been pending for “five decades,” though largely inactive for long stretches. The court nonetheless affirmed the district court’s continued supervision of a desegregation plan that addressed disparities in graduation tracks and student discipline, though it said the court overstepped in ordering the closure of an elementary school in a mostly white community.

As recently as this month, the LDF and the Department of Justice’s civil rights division joined with the St. Martin Parish school board in a proposed consent order for revised attendance zones for the district’s schools. The proposed order suggests that court supervision of student assignments could end sometime after June 2027.

“We try to make sure that with the vast docket of segregation cases we have, that we have not lost sight of what Brown’s ultimate intent was,” said LDF’s Nelson, which was not just “to make sure that Black and white children learn together” but also to foster principles of equity and citizenship.

With a hostile federal court climate, advocates more recently have turned to state constitutions and state courts to pursue desegregation. Last year, a state judge in New Jersey allowed key claims to proceed in a lawsuit that seeks to hold the state responsible for remedying racial segregation in its many “racially isolated” public schools. In December, the Minnesota Supreme Court allowed a suit under the state constitution to move forward, ruling that there was no need for plaintiffs to prove that the state itself had caused segregation in its schools.

“We see a path forward through state courts with the very specific goal of trying to challenge state practices, which really boil down to segregative school district lines,” Saba Bireda, the chief legal counsel of Brown’s Promise , said at the Columbia conference. Bireda, a former civil rights lawyer in the Education Department under President Barack Obama’s administration, co-founded the Washington-based organization last year to help address diversity and underfunding in public schools.

A Supreme Court exhibit offers the idealized take on Brown

At the Supreme Court, there has been no formal recognition of the 70th anniversary of Brown . But the court did open an exhibit on its ground floor late last year that tells the story of some of the first desegregation cases, including Brown .

The exhibit is primarily about the Little Rock integration crisis of 1957, when Arkansas Gov. Orval Faubus defied a federal judge’s order to desegregate Central High School. The exhibit is built around the actual bench used by Judge Ronald N. Davies when he heard a challenge to Faubus’ use of the Arkansas National Guard to prevent the nine Black high school students from entering the all-white high school that year. (Davies withstood threats and intense opposition from desegregation opponents, but he ruled for the Black students. The Supreme Court itself supported desegregation in Little Rock with its 1958 decision in Cooper v. Aaron .)

To tell the Little Rock story, the exhibit starts with Brown (and some of the prior history). A central feature is a 15-minute video featuring all current members of the court.

In the video, the justices set aside their differences over the meaning of Brown and provide a more idealized perspective on the 1954 decision.

“ Brown was a godsend,” Thomas says in the video. “Because it said that what was happening that we thought was wrong, they now know that this court said it was also wrong. It’s wrong not just morally, but under the Constitution of the United States. It was like a ray of hope.”

Kavanaugh says: “ Brown vs. Board of Education is the single greatest moment, single greatest decision in this court’s history. And the reason for that is that it enforced a constitutional principle, equal protection of the laws, equal justice under law. It made that real for all Americans. And it corrected a grave wrong, the separate but equal doctrine that the court had previously allowed.”

Jackson, the court’s third Black justice, who has spoken of her family moving in one generation from “segregation to the Supreme Court,” reflects in the video on Brown ‘s legacy.

“I think I’m most grateful for the fact that my parents have lived to see me in this position, after a history of them and others in our family and people from my background not having the opportunity to live to our fullest potential,” she says.

As the video comes to a close, Roberts speaks with evident pride in his voice.

“The Supreme Court building stands as a symbol of our country’s faith in the rule of law,” the chief justice says. “ Brown v. Board of Education , the great school desegregation case, was decided here.”

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Brown v. Board of Education

By: History.com Editors

Updated: February 27, 2024 | Original: October 27, 2009

Brown v. Board of Education of Topeka was a landmark 1954 Supreme Court case in which the justices ruled unanimously that racial segregation of children in public schools was unconstitutional. Brown v. Board of Education was one of the cornerstones of the civil rights movement, and helped establish the precedent that “separate-but-equal” education and other services were not, in fact, equal at all.

Separate But Equal Doctrine 

In 1896, the Supreme Court ruled in Plessy v. Ferguson that racially segregated public facilities were legal, so long as the facilities for Black people and whites were equal.

The ruling constitutionally sanctioned laws barring African Americans from sharing the same buses, schools and other public facilities as whites—known as “Jim Crow” laws —and established the “separate but equal” doctrine that would stand for the next six decades.

But by the early 1950s, the National Association for the Advancement of Colored People ( NAACP ) was working hard to challenge segregation laws in public schools, and had filed lawsuits on behalf of plaintiffs in states such as South Carolina, Virginia and Delaware.

In the case that would become most famous, a plaintiff named Oliver Brown filed a class-action suit against the Board of Education of Topeka, Kansas, in 1951, after his daughter, Linda Brown , was denied entrance to Topeka’s all-white elementary schools.

In his lawsuit, Brown claimed that schools for Black children were not equal to the white schools, and that segregation violated the so-called “equal protection clause” of the 14th Amendment , which holds that no state can “deny to any person within its jurisdiction the equal protection of the laws.”

The case went before the U.S. District Court in Kansas, which agreed that public school segregation had a “detrimental effect upon the colored children” and contributed to “a sense of inferiority,” but still upheld the “separate but equal” doctrine.

Brown v. Board of Education Verdict

When Brown’s case and four other cases related to school segregation first came before the Supreme Court in 1952, the Court combined them into a single case under the name Brown v. Board of Education of Topeka . 

Thurgood Marshall , the head of the NAACP Legal Defense and Educational Fund, served as chief attorney for the plaintiffs. (Thirteen years later, President Lyndon B. Johnson would appoint Marshall as the first Black Supreme Court justice.)

At first, the justices were divided on how to rule on school segregation, with Chief Justice Fred M. Vinson holding the opinion that the Plessy verdict should stand. But in September 1953, before Brown v. Board of Education was to be heard, Vinson died, and President Dwight D. Eisenhower replaced him with Earl Warren , then governor of California .

Displaying considerable political skill and determination, the new chief justice succeeded in engineering a unanimous verdict against school segregation the following year.

In the decision, issued on May 17, 1954, Warren wrote that “in the field of public education the doctrine of ‘separate but equal’ has no place,” as segregated schools are “inherently unequal.” As a result, the Court ruled that the plaintiffs were being “deprived of the equal protection of the laws guaranteed by the 14th Amendment.”

Little Rock Nine

In its verdict, the Supreme Court did not specify how exactly schools should be integrated, but asked for further arguments about it.

In May 1955, the Court issued a second opinion in the case (known as Brown v. Board of Education II ), which remanded future desegregation cases to lower federal courts and directed district courts and school boards to proceed with desegregation “with all deliberate speed.”

Though well intentioned, the Court’s actions effectively opened the door to local judicial and political evasion of desegregation. While Kansas and some other states acted in accordance with the verdict, many school and local officials in the South defied it.

In one major example, Governor Orval Faubus of Arkansas called out the state National Guard to prevent Black students from attending high school in Little Rock in 1957. After a tense standoff, President Eisenhower deployed federal troops, and nine students—known as the “ Little Rock Nine ”— were able to enter Central High School under armed guard.

Impact of Brown v. Board of Education

Though the Supreme Court’s decision in Brown v. Board didn’t achieve school desegregation on its own, the ruling (and the steadfast resistance to it across the South) fueled the nascent  civil rights movement  in the United States.

In 1955, a year after the Brown v. Board of Education decision, Rosa Parks refused to give up her seat on a Montgomery, Alabama bus. Her arrest sparked the Montgomery bus boycott and would lead to other boycotts, sit-ins and demonstrations (many of them led by Martin Luther King Jr .), in a movement that would eventually lead to the toppling of Jim Crow laws across the South.

Passage of the Civil Rights Act of 1964 , backed by enforcement by the Justice Department, began the process of desegregation in earnest. This landmark piece of civil rights legislation was followed by the Voting Rights Act of 1965 and the Fair Housing Act of 1968 .

Runyon v. McCrary Extends Policy to Private Schools

In 1976, the Supreme Court issued another landmark decision in Runyon v. McCrary , ruling that even private, nonsectarian schools that denied admission to students on the basis of race violated federal civil rights laws.

By overturning the “separate but equal” doctrine, the Court’s decision in Brown v. Board of Education had set the legal precedent that would be used to overturn laws enforcing segregation in other public facilities. But despite its undoubted impact, the historic verdict fell short of achieving its primary mission of integrating the nation’s public schools.

Today, more than 60 years after Brown v. Board of Education , the debate continues over how to combat racial inequalities in the nation’s school system, largely based on residential patterns and differences in resources between schools in wealthier and economically disadvantaged districts across the country.

HISTORY Vault: Black History

Watch acclaimed Black History documentaries on HISTORY Vault.

History – Brown v. Board of Education Re-enactment, United States Courts . Brown v. Board of Education, The Civil Rights Movement: Volume I (Salem Press). Cass Sunstein, “Did Brown Matter?” The New Yorker , May 3, 2004. Brown v. Board of Education, PBS.org . Richard Rothstein, Brown v. Board at 60, Economic Policy Institute , April 17, 2014.

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Winter 2024

Brown v. Board of Education

Fifty years later, NAACP lawyer Jack Greenberg reflects on Brown v. Board of Education: “Brown went beyond school integration, raising a legal and moral imperative that was influential even when it was not obeyed.”

In summer 2003, I consulted with lawyers and nongovernmental organizations in Budapest, Sofia, and small towns in Bulgaria on integrating Roma (Gypsy) children into the public schools. They taught me more than I taught them. Just as learning another language helps one understand English better, Brown v. Board of Education , took on new meaning for me as I observed integration of Roma into Bulgarian public schools.

Ninety percent of Europe’s Roma population of seven to nine million is settled in Eastern Europe. Once nomadic, they are mainly “sedentary,” as a consequence of fifty years of communist rule that prohibited their traditional traveling. They remain subject to centuries-old discrimination in employment, housing, health care, municipal services, political participation, the criminal justice system, and other aspects of living. Often they are victims of ethnic violence. In the Czech Republic, for example, since 1991 there have been documented killings of nine Roma from among over a thousand racially motivated acts of violence. European Union law now prohibits racial and ethnic discrimination. East European countries as condition of admission to the EU must meet its standards, but the process of coming into compliance has just begun. This article focuses only on the decision to end school segregation and the process being followed in some places in bringing it to an end.

Beginning in 2000, and expanding in scope in 2001-2002, Bulgaria integrated 2,400 Roma schoolchildren into the majority school population, often referred to as “whites,” in six cities. Roma integration, which will cover all of Eastern Europe, was smooth and successful at its beginning and shows no indication of replicating the American South’s response to Brown . In the United States, integration was angry, often violent, and almost nonexistent for more than a decade and a half after 1954, when Brown was decided. A start, even as small as Bulgaria’s, almost anywhere in the South around 1954, would have met vigorous opposition.

What occurred in Bulgaria has been a beginning only, and was the product of private initiative, with indispensable government collaboration and approval. Although in most of Eastern Europe there has been a slow movement, even inertia, with regard to desegregation, there has been nothing like the massive resistance that obstructed desegregation in the United States. The Bulgarian government, committed to complete desegregation, has not yet appropriated funds to carry it out, although it has promised that it will. The European Roma Rights Center reports that only Hungary so far has initiated a governmental program. It offers financial incentives to schools that integrate Roma children. Hungary has appointed an energetic Commissioner for Integration of Roma and Disadvantaged children, Victoria Mohacsi, whom I met in Budapest during my visit. I have no doubt that she is committed to succeed. As of the latest report, four hundred schools have joined its program. But, as late as the beginning of July 2004, Roma leadership claimed that integration is not fast enough on any front (education, social life, economics) and that poor education continues to plague their community. The ultimate accomplishment of the program is yet to be seen.

Comparing Cases

Some 70 percent of Roma children are segregated in separate schools, separate classrooms, or, following usually erroneous diagnoses, in separate rooms for the handicapped. Only 5 percent graduate from secondary school; fourth-graders commonly are illiterate; only .3 percent show interest in taking national exams for admission to elite schools after seventh or eighth grade; in Bulgaria, more than half of Roma school windows are covered by cardboard, a situation probably representative of other countries in the region.

The U.S. Constitution, East European domestic constitutions, and the European Convention for the Protection of Human Rights embody pretty much the same rights. Notwithstanding constitutions and laws, the United States and Europe, respectively, tolerated subordination of African Americans and Roma. Despite much successful school desegregation in the United States, defiance and evasion accompanied the process from the beginning. In contrast, at the outset, six towns in Bulgaria had desegregated not long before I visited, all uneventfully, some highly successfully. As time goes on, desegregation of Roma may become more difficult, but there will be no “massive resistance,” which was the response of the American South.

In 2000, the European Union adopted the Race Equality Directive, pursuant to which schools must desegregate. The directive had roots in the Universal Declaration of Human Rights, international covenants and conventions, and the European Convention on Human Rights. In order to join the EU, East European countries must comply with the directive, which requires that member states achieve racial equality. There were no attacks on its legitimacy in the same way that there were attacks on the Supreme Court’s decision in Brown v. Board of Education . Given the geopolitics of EU enlargement, political leaders are too committed to the process to generate opposition to EU standards. Before the Race Equality Directive was promulgated, Bulgaria enacted a “Framework Program” to implement the then forthcoming directive.

There is also a practical consideration: Eastern Europe’s population is falling because of low birth rate and emigration, but Roma population is not. Schools are funded on a per capita basis. Teachers and administrators in the white schools welcome the income new Roma students provide. Indeed, the main source of opposition to desegregation, weak as it is, comes from the non-Roma teachers and administrators in Roma schools, because they will lose funding. The only other reservations I have heard about integration is that some Roma families feared that white schoolchildren would introduce their children to drugs. I have also heard passing mention of a desire to maintain cultural identity.

The integrated Bulgarian public schools suggest what is possible in Eastern Europe. In this case, integration was administered and funded by a private foundation and supported by NGO networks, financier and philanthropist George Soros, and the World Bank, but the schools were public, and the integration was an expression of public policy. I visited two of the desegregated towns, Montana and Vidin. In Vidin, I attended a meeting of three to four hundred parents, pupils, teachers, and administrators, Roma and non-Roma, who were overwhelmingly in favor of desegregation. For perhaps three hours one person after another stood up and spoke about the success of desegregation. I think that only one speaker disapproved. One of my hosts was particularly proud that a Romany boy who was attending a desegregated school had been rated number two in the national mathematics examination. Such a meeting would have been inconceivable anywhere in the South in 1954. Although I thought of Potemkin villages and Soviet demands for conformity, I believe that I heard statements of genuine belief.

Even more striking was the community effort to provide social supports. Social workers visited every Romany family that had school-age children. Tutors were available for children who needed help. Teachers received special training. Families that needed food or clothing received assistance. Roma and non-Roma children shared outings, social events, and cultural experiences. The project has received major political support. The press publicized the advantages of integration.

There probably are additional reasons that contributed to reactions different from those in the United States. Roma children travel to integrated schools by bus, but white children are not bussed to Roma neighborhoods. In the United States, school desegregation was begun in a similar way. Black families soon objected that they had to travel to white schools, while whites did not have to travel to black schools. Black and white children should be treated the same, they argued. Moreover, it was insulting to black teachers and administrators to designate black schools as off-limits to whites, giving rise to two-way busing, uncongenial for many white families. But two-way busing is not in the cards for East Europeans. They believe that the Roma schools, often one- and two-room buildings accommodating many more grades, are so dilapidated that neither Roma nor whites would want to occupy them in the future.

There has, however, been lack of movement, along with some anticipatory efforts to evade the law. The Budapest-based European Roma Rights Center has cases before domestic and international courts challenging school segregation in the Czech Republic; Croatia; and Sofia, Bulgaria. Egregious anti-Roma activity occurs, although it has not been linked to the expected school transition. In the 1990s, there were assaults against Roma in Romania. Vigilantes burned Roma houses in Bulgaria, some with the residents inside. Children were badly burned. In the Czech Republic, one town built a wall around a Roma ghetto. Skinheads have attacked Roma in Hungary and other Central European countries. Nevertheless, I have not seen anything connected to school integration in Eastern Europe resembling commonplace reactions during a comparable period in the American South.

After Hungary committed to phasing out all seven hundred Roma classes in the country within the next five years, Jaszladay, fifty-six miles south of Budapest, established a private school in a city building, subvented by the municipal government, resembling the “seg academies” that sprang up in the southern United States following Brown . Forty percent of the Jaszladay population, but only 17 percent of the private school’s students, were Roma. The Hungarian national ombudsman for minority rights announced that such schools will be closed. In the American South, politics and legal obstacles protected private white schools for years, although in time, lawsuits cut back some subsidies such as free books, and blacks eventually won the theoretical right to attend.

Desegregation in the United States

In April 2001, the president of Bulgaria congratulated the organization that sponsored the desegregation. In contrast, President Dwight D. Eisenhower disagreed with Brown and said only that the law should be obeyed. A South-wide policy of “massive resistance” launched resolutions of interposition and nullification and created well-funded state sovereignty commissions devoted to preventing desegregation. State supreme court judges, state attorneys general, even federal judges, denounced the Supreme Court. States prosecuted civil rights organizations and tried to disbar civil rights lawyers, enacted legislation that would close integrated schools, and created complex administrative procedures to block access to non-segregated education.

Distinguished scholars attacked the Brown opinion, lending credibility to cruder critics. Legal luminaries such as Learned Hand and esteemed scholars such as Herbert Wechsler, who personally opposed segregation, delegitimized the Brown decision

That the South would ignore and even disobey court orders to cease discriminating did not surprise plaintiffs’ lawyers in Brown . No one, however, anticipated the intensity of the opposition. Civil rights litigation had until then produced many paper victories. Courts had ordered universities to admit blacks, interstate buses and railroads to stop segregating, voting officials to cease prohibiting black voting, jury commissioners to cease excluding blacks from pools of jurors, courts to cease enforcing agreements among property owners not to sell to blacks. These decisions produced only slight changes.

Southern officials and institutions typically treated a court decision as if it applied only to the plaintiff and defendant in that case. Bus companies did not act as if a Supreme Court decision about seating on the bus controlled terminals. One bus company did not treat a decision directed at another as relevant to its own situation. Railroad companies did not treat a decision governing sleeping or dining cars as applicable to coaches, or a decision affecting one company as applicable to another. Voting officials outright evaded court orders that invalidated laws or practices that excluded blacks by adopting fresh registration or voting criteria that once again shut them out. One case after another overturned convictions because blacks had been excluded from juries, but exclusion continued. Prosecutors assumed that lawyers in the next case might not know or care to raise the issue.

Decisions that required admitting blacks to higher education prefigured the reaction that would occur at the elementary and high school level. Despite Supreme Court decisions beginning in 1935 it was virtually impossible for more than a small handful of blacks, without first filing a lawsuit, to attend an accredited law, medical, or other professional school or get a Ph.D. in the South until the 1960s. In 1939, the Supreme Court, in Missouri ex rel . Gaines v. Canada ordered the University of Missouri to admit a black applicant to its law school because Missouri had no law school for blacks. A subsequent case had to be filed to secure admission of blacks to the Missouri School of Journalism.

In 1948, the U.S. Supreme Court required that the University of Oklahoma admit a black woman to its law school. Immediately thereafter, the Oklahoma Graduate School of Education rejected an applicant because he was black. The University of Texas Law School rejected a black plaintiff and set up a two-room law school for him. The Supreme Court ordered that the Oklahoma and Texas plaintiffs be admitted in 1950.

In the 1960s, courts ordered the University of Alabama, the University of Georgia, and the University of Mississippi to admit blacks, enforced by troops at the campus. Indeed, before blacks were admitted, suits had to be filed in every single southern state with the exception of Arkansas. I participated in suits against universities in Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, Alabama, Florida, Louisiana, Mississippi, Tennessee, Texas, and other states.

Was there some way that the attack on segregation could have been directed so that American integration would have unfolded as (so far) smoothly as Roma integration in Bulgaria? Might it have been better initially to direct efforts at housing, employment, or public accommodations? Two obstacles discouraged such an alternative approach. First, the state action doctrine; second, whether a legal right to integrate those options could translate into genuine social change.

The state action doctrine pronounced in the Civil Rights Cases of 1883 held that the Fourteenth Amendment prohibited discrimination only by the state, not private persons. It used the term “state” in a very narrow sense. Because the overwhelming part of housing, employment, and public accommodations was private in a constitutional sense, the state action doctrine would have been an insurmountable barrier. Second, even suits against state-owned or state-operated employment, housing, and public accommodations would be limited in what they could accomplish. Housing units are discrete. To move into a white neighborhood as the first black is a daunting prospect. Government jobs were virtually impossible to obtain, even with successful litigation. Too much discretion in selection was involved. Jobs are different from one another; wholesale litigation was unlikely to change very much very soon. And, in any event, only a small handful of jobs would be in play. There was an infinitesimally small number of government-owned public theaters, golf courses, and other places of amusement and entertainment. No suit could have the impact that desegregating a school district would produce.

Some considered, and some still urge, enforcing the “equal” part of the “separate-but-equal” formula, rather than seeking integration. But, if a case were won, there was the problem of compelling legislatures to tax and appropriate court-ordered funding; if that succeeded, it would be necessary to sue again as black schools slid back into physical inequality. Out of that recognition, Nathan Margold, who drafted the policy paper that launched the National Association for the Advancement of Colored People’s desegregation campaign, argued for striking at the “heart of the evil,” segregation. Brown historical revisionists who now argue that separate-but-equal is better than integration forget that separate-but-equal was prevailing law between 1896 and 1954 and that there had been much effort to enforce it. Equality never was achieved. Lack of success contributed to launching the attack on segregation. The experience with equal funding attempts has been replicated in about twenty state supreme court opinions of recent years that have required equalizing funds of rich and poor districts, or at least raising funds of poor districts to levels of adequacy. In few instances have such suits achieved equality. In New Jersey there was little enhancement of minority schools for thirty years. Now, that thirty-year-old case has increased funding for a few lower grades. Equal-funding litigation confirms the aphorism that “green follows white.”

Thurgood Marshall, chief counsel of the NAACP Legal Defense Fund, said that he thought that, in Georgia, we would have to sue the schools for integration in every county. The rest of the South, with spotty exceptions, would be no easier. But he and we expected hostility, not near insurrection.

Why Politics Couldn’t Work

Although the NAACP was a political organization, it could not even persuade Congress to enact an anti-lynching bill. Franklin Roosevelt did not fight for one because, if he had, Southern senators would not have supported his efforts to overcome the depression or support the Allies before the United States entered World War II. Unless blacks could vote, politics would be hopeless. It should have been easy to gain the vote: legal rules, from the Constitution on down prohibiting voting discrimination abounded. When the Voting Rights Act of 1965 was enacted, only about 8 percent of blacks in the one hundred counties with the most black population could vote. In the deep South, blacks voted at the rate of about 2 percent. Without the vote, the political route was illusory.

Courtroom action seemed to be the only viable option. But, why go to court after having experienced such resistance to judicial decrees and recognizing the limits on what they had achieved? There was no place else to go. It was like seeking the way out of a maze: when one path turned out to be unpromising, try another. Attacking school segregation in court was the only effort that appeared to be worth the trouble.

The School Desegregation Decisions

We won Brown . But almost nothing happened with schools. The South threw up a wall of massive resistance described above. Finally, in 1969, after a decade and a half of marginally effective lawsuits, in Alexander v. Holmes County Board of Education , the Supreme Court struck down all of the school board defendants’ tactical ploys that had amounted to “litigation forever.” School desegregation began in earnest. Southern schools changed from almost no black students in majority southern white schools in 1954, with the proportion of black students jumping to 33.1 percent in 1970 and to 43.5 percent by 1988. Then a retreat set in, which continues to this day. The rate was 32.7 percent in 1998. This article is not the place to account for the decline. Suffice to say that maintaining desegregation was difficult in the face of newly fashioned legal doctrines prohibiting court orders for city-to-suburb desegregation and demographic changes that packed urban centers with minorities.

But something else happened. Opponents of Brown were right in claiming that victory for plaintiffs would spell doom for segregation in all its manifestations. First, Brown went beyond school integration, raising a legal and moral imperative that was influential even when it was not generally obeyed. It set a standard of right conduct. Some laws are widely disobeyed or in disrepute or subject to conflicting views. But Brown was not merely a pronouncement by the Court. As the brief for the United States on implementation stated, “The right of children not to be segregated because of race or color is not a technical legal right of little significance or value. It is a fundamental human right, supported by considerations of morality as well as law.” Or, as the United States argued in another brief: “It is in the context of the present world struggle between freedom and tyranny that the problem of racial discrimination must be viewed. The United States is trying to prove to the people of the world, of every nationality, race, and color, that a free democracy is the most civilized and most secure form of government yet devised by man.”

The arguments of those who wanted to maintain segregation did not involve claims about right and wrong. They were couched in terms of federalism, local control, original intent of the Constitution, the sanctity of precedent, the role of the judiciary in a democracy, the difficulty of compliance, or the academic inadequacy of blacks. In briefs on the question of implementing desegregation decrees, states argued “unfavorable community attitude,” “health and morals” of the black population, that local school boards were “unalterably opposed,” and the like. North Carolina argued that integration would create the “likelihood of violence,” and that “[p]ublic schools may be abolished.” Oklahoma urged that desegregation would create “financial problems.” Florida argued that almost 2 percent of white births in Florida and 24 percent of Negro births were “illegitimate.” Florida reported over eleven thousand cases of gonorrhea, of which ten thousand were among the Negro population. There were some claims that the Bible intended the races to be separate. I have scoured the briefs of defendants and have reviewed the public debates. There were no claims that segregation was right and moral.

Second, enforcing Brown established national, not regional, standards as the measure of equality. Efforts at school desegregation were opposed by a steady drumbeat of physical resistance that, in turn, was almost always overcome by superior police and military force. In border states-Milford, Delaware; Clay and Sturgis, Kentucky; Clinton, Tennessee; and Greenbrier County, West Virginia-violent public demonstrations against desegregation were suppressed or contained by police, troops, and the National Guard. In 1957, in Little Rock, Arkansas, the president summoned the armed forces to assure black children’s entry to Little Rock High School. Another president summoned troops to secure admission of James Meredith to the University of Mississippi and Vivian Malone and James Hood to the University of Alabama in the early 1960s. Ultimately, national rule established its superiority by physical force over physical resistance.

Third, a people’s movement embraced Brown . It was as if there were an immune reaction to massive resistance. Leaders of the first sit-ins in 1960 had been inspired by Brown . Freedom Rides began in 1961, partly in homage to Brown , with the first ride scheduled to arrive in New Orleans on May 17, 1961, its anniversary. Martin Luther King, Jr., annually held prayer pilgrimages on May 17 and often invoked the Supreme Court. Rosa Parks, whose act of defiance launched the Montgomery bus boycott, was an NAACP administrator steeped in Brown . The boycott was resolved by Gayle v. Browder, in which the Supreme Court, citing Brown , held unconstitutional the segregation law that was the subject of the boycott.

Symbolic defiance of segregation was not new. The black press had run stories about sit-ins and sitting in prohibited sections of buses and so forth as far back as the 1930s. But, for the first time network television inspired emulation everywhere.

Together, the moral imperative of Brown , the physical suppression of resistance, the civil rights movement, and the defeat of massive resistance culminated in the civil rights acts of the 1960s. Those acts marked the beginning of a political transformation of the United States. It has been manifested in numerous ways, but epitomized in the election of forty black congressional representatives and of black mayors at one time or another in every major American city and most smaller ones. When Lyndon Johnson signed the 1964 civil rights bill he observed that it meant the end of the Democratic Party in the South. He was right. But it meant the end, also, of southern racist hegemony and associated political programs.

We may conceive of the political situation in the United States in the mid-twentieth century as frozen until 1954. Southern white racists kept blacks in subordinate caste-like status. The school integration decision, if a metaphor may be permitted, acted like a powerful icebreaker. It made America accept racial change. Brown was not merely a school case. Supreme Court Justice Robert H. Jackson used this image in describing the path-breaking role of the Nuremberg trials. He told his staff that they had to produce “an ice pick to break up the frozen sea within us.” Kafka scholar Stanley Corngold has suggested that Jackson may have found the metaphor in Kafka, who wrote that “a book must be the axe for the frozen sea within us.”

Like my metaphorical icebreaker or Kafka’s metaphorical axe, Brown created pathways over which America could arrive at racial change. Brown was not merely a school case.

So, when I saw smooth, easy, agreeable, successful school desegregation in Bulgaria and wondered why Brown had not gone so smoothly in the United States, the answer is that Brown , while a school case, was doing more in different circumstances. Schools could not desegregate in the racially hostile atmosphere of the South in the 1950s and even later than that. There was no way to effect change in the face of opposition with vested interests in the status quo. Brown was a first step in cracking open that frozen sea by changing and energizing minds, creating a social movement that became political, enlisting parts of the country and the world, and enacting basic laws that affected power relationships between black and white, North and South.

Then South Carolina or Mississippi could receive our version of the Race Equality Directive and respond like Vidin.

Jack Greenberg has been professor of law at Columbia University since 1984. He served as assistant counsel, NAACP Legal Defense Fund, from 1949-1961, as director-counsel from 1961-1984, and was among the lawyers who argued Brown v. Board of Education . He is the author of Crusaders in the Courts: Legal Battles of the Civil Rights Movement . This article is adapted from another piece on the same subject that appeared in the Spring 2004 Saint Louis University Law Journal.

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Brown v. Board of Education

May 17, 1954: The 'separate is inherently unequal' ruling forces Eisenhower to address civil rights

Segregation of white and colored children in public schools has a detrimental effect upon the colored children. . . . We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal. 

In 1954, Chief Justice Earl Warren wrote this opinion in the unanimous Supreme Court decision  Brown v. Board of Education of Topeka. Citing a violation of the Fourteenth Amendment’s Equal Protection Clause, the groundbreaking decision was widely regarded as one of America's most consequential legal judgments of the 20th century, setting the stage for a strong and lasting US Civil Rights Movement. Thurgood Marshall, lead counsel on the case, would go on to become a Supreme Court Justice himself.

The Brown decision reverberated for decades. Determined resistance by whites in the South thwarted the goal of school integration for years. Even though the court ruled that states should move with “all deliberate speed,” that standard was simply too vague for real action. Neither segregationists, who opposed to integration on racist grounds, nor the constitutional scholars who believed the court had overreached were going away without a fight.

President Eisenhower didn't fully support of the Brown decision. The president didn't like dealing with racial issues and failed to speak out in favor of the court's ruling. Although the president usually avoided comment on court decisions, his silence in this case may have encouraged resistance. In many parts of the South, white citizens' councils organized to prevent compliance. Some of these groups relied on political action; others used intimidation and violence.

Despite his reticence, Eisenhower did acknowledge his constitutional responsibility to uphold the Supreme Court’s rulings. In 1957, when mobs prevented the desegregation of Central High School in Little Rock, Arkansas, Governor Orval Faubus saw political advantages in using the National Guard to block the entry of African American students to Central High. After meeting with Eisenhower, Faubus promised to allow the students to enroll—but then withdrew the National Guard, allowing a violent mob to surround the school. In response, Eisenhower dispatched federal troops, the first time since Reconstruction that a president had sent military forces into the South to enforce federal law.

In explaining his action, however, Eisenhower did not declare that desegregating public schools was the right thing to do. Instead, in a nationally televised address , he asserted that the violence in Little Rock was harming US prestige and influence around the world and giving Communist propagandists an opportunity “to misrepresent our whole nation.” Troops stayed in Little Rock for the entire school year, and in the spring of 1958, Central High had its first African American graduate.

But in September 1958, Faubus closed public schools to prevent their integration. Eisenhower expressed his “regret” over the challenge to the right of all Americans to a public education but took no further action, despite what he had done the year before. There was no violence this time, and Eisenhower believed that he had a constitutional obligation to preserve public order, not to speed school desegregation. When Eisenhower left the White House in January 1961, only 6 percent of African American students attended integrated schools.

Eisenhower and integration

Eisenhower urged advocates of desegregation to go slowly. believing that integration required a change in people's hearts and minds. And he was sympathetic to white southerners who complained about alterations to the social order—their “way of life.” He considered as extremists both those who tried to obstruct decisions of federal courts and those who demanded that they immediately enjoy the rights that the Constitution and the courts provided them.

On only one occasion during his presidency—in June 1958—did Eisenhower meet with African American leaders. The president became irritated when he heard appeals for more aggressive federal action to advance civil rights and failed to heed Martin Luther King Jr.’s advice that he use the bully pulpit of the presidency to build popular support for racial integration. While Eisenhower’s actions mattered, so too did his failure to use his moral authority as president to advance the cause of civil rights.

Eisenhower's record, however, included some significant achievements in civil rights. In 1957, he signed the first civil rights legislation since Reconstruction, providing new federal protections for voting rights. In most southern states, the great majority of African Americans simply could not vote because of literacy tests, poll taxes, and other obstacles. Yet the legislation Eisenhower eventually signed was weaker than the bill that he had sent to Capitol Hill. Southern Democrats secured an amendment that required a jury trial to determine whether a citizen had been denied his or her right to vote—and African Americans could not serve on juries in the south. In 1960, Eisenhower signed a second civil rights law, but it offered only small improvements. The president also used his constitutional powers, where he believed that they were clear and specific, to advance desegregation, for example, in federal facilities in the nation's capital and to complete the desegregation of the armed forces begun during Truman’s presidency. In addition, Eisenhower appointed judges to federal courts whose rulings helped to advance civil rights. This issue, which divided the country in the 1950s, became even more difficult in the 1960s.

The attorney: Thurgood Marshall

NAACP attorney Thurgood Marshall argued Brown v. Board of Education before the Supreme Court, and during a quarter-century with the organization, he won a total of 29 cases before the nation's highest court. In 1961, Marshall was appointed to the US Court of Appeals for the Second Circuit by President Kennedy, and in 1965, he became the highest-ranking African American government official in history when President Johnson appointed him solicitor general. Now arguing on behalf of the federal government before the court—Marshall won the majority of those cases as well. In 1967, Johnson nominated Marshall to sit on the court, discussing him with Attorney General Ramsey Clark in a conversation captured on the Miller Center's collection of secret White House tapes:

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Eisenhower on integration.

President Eisenhower addresses school integration after the Little Rock Nine.

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The first amendment, brown v. board: when the supreme court ruled against segregation.

May 17, 2023 | by NCC Staff

The decision of Brown v. Board of Education of Topeka on May 17, 1954 is perhaps the most famous of all Supreme Court cases, as it started the process ending segregation. It overturned the equally far-reaching decision of Plessy v. Ferguson in 1896.

In the Plessy case, the Supreme Court decided by a 7-1 margin that “separate but equal” public facilities could be provided to different racial groups. In his majority opinion, Justice Henry Billings Brown pointed to schools as an example of the legality of segregation. “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,” he said.

The lone dissenter, Justice John Marshall Harlan, wrote, “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” (referencing the controversial 1857 decision about slavery and the citizenship of Blacks).

“Our Constitution is color-blind, and neither knows nor tolerates classes among citizens,” he added.

The Plessy decision institutionalized Jim Crow laws that allowed racial segregation to continue for decades. By 1951, the issue was heading back to the Court for review, and the outlook didn’t look promising for the forces that had united to overturn the Plessy decision. The NAACP and its attorney, Thurgood Marshall, had been litigating segregation in court for years and had won some significant victories.

The Brown case was actually a combination of five cases involving segregation at public schools in Kansas, Delaware, Virginia, South Carolina, and the District of Columbia. Oliver Brown, the father of lead plaintiff Linda Brown, sued on her behalf after Linda was refused admission to an all-white secondary public school in Topeka, Kansas.

The justices who first heard the case in 1953 were divided.

Chief Justice Fred Vinson, from Kentucky, wasn’t convinced that Plessy should be overturned on constitutional grounds. Several other justices were undecided and possibly leaning toward upholding Plessy. Four justices seemed to be committed to overturning Plessy , but five votes were needed, and there were concerns about a divided court.

Another concern was about how the Brown decision if it overturned segregation, could be enforced in 19 states and the District of Columbia without widespread violence.

The court decided in June 1953 to hear additional arguments in the case later in the year. But in September 1953, Chief Justice Vinson died suddenly from a heart attack. President Dwight Eisenhower had promised the next Supreme Court opening to the politically powerful Earl Warren, the former Governor of California.

Warren was appointed Chief Justice and the court met in a private session in December to discuss the Brown case. Two justices took notes of the meeting, which indicate that Warren made a powerful opening statement that made it clear the Court was heading toward the end of segregation.

Warren talked about the abilities of Marshall and the legal team from the NAACP.

“I don’t see how we can continue in this day and age to set one group apart from the rest and say that they are not entitled to exactly the same treatment as all others,” Warren said. “At present, my instincts and tentative feelings would lead me to say that in these cases we should abolish, in a tolerant way, the practice of segregation in public schools,” he said.

Warren also made it clear he would work with the justices to find “unanimity and uniformity, even if we have some differences.”

Two justices—Robert Jackson and Stanley Reed—had concerns about the Supreme Court making a decision that would be better left to Congress. There were also questions about Marshall’s arguments, which referred much to the sociological evidence about the damage caused by segregation (and not as much to prior case law).

On May 17, 1954, Warren read the final decision: The Supreme Court was unanimous in its decision that segregation must end. In its next session, it would tackle the issue of how that would happen.

“We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal,” Warren said.

The announcement made international headlines and more than a few newspapers saw the decision as vindication for Justice Harlan’s dissent in the 1896 Plessy case.

Not long after the Brown decision, in October 1954, Justice Robert Jackson died and President Eisenhower picked his replacement from the Second Circuit Court: Judge John Marshall Harlan, the grandson and namesake of the famous dissenter.

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History - Brown v. Board of Education Re-enactment

The plessy decision.

In 1892, an African American man named Homer Plessy refused to give up his seat to a white man on a train in New Orleans, as he was required to do by Louisiana state law. Plessy was arrested and decided to contest the arrest in court. He contended that the Louisiana law separating Black people from white people on trains violated the "equal protection clause" of the Fourteenth Amendment to the U.S. Constitution. By 1896, his case had made it all the way to the United States Supreme Court. By a vote of 8-1, the Supreme Court ruled against  Plessy . In the case of  Plessy v. Ferguson , Justice Henry Billings Brown, writing the majority opinion, stated that:

"The object of the [Fourteenth] amendment was undoubtedly to enforce the equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to endorse social, as distinguished from political, equality. . . If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane."

The lone dissenter, Justice John Marshal Harlan, interpreting the Fourteenth Amendment another way, stated, "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." Justice Harlan's dissent would become a rallying cry for those in later generations working to declare segregation unconstitutional.

The Road to Brown

(Note: Some of the case information is from Patterson, James T. Brown v. Board of Education: A Civil Rights Milestone and Its Troubled Legacy. Oxford University Press; New York, 2001.)

Early Cases

Despite the Supreme Court's ruling in Plessy and similar cases, people continued to press for the abolition of Jim Crow and other racially discriminatory laws. One particular organization that fought for racial equality was the National Association for the Advancement of Colored People (NAACP) founded in 1909. From 1935 to 1938, the legal arm of the NAACP was headed by Charles Hamilton Houston. Houston, together with Thurgood Marshall, devised a strategy to attack Jim Crow laws in the field of education. Although Marshall played a crucial role in all of the cases listed below, Houston was the head of the NAACP Legal Defense and Education Fund while Murray v. Maryland and Missouri ex rel Gaines v. Canada were decided. After Houston returned to private practice in 1938, Marshall became head of the Fund and used it to argue the cases of Sweat v. Painter and McLaurin v. Oklahoma Board of Regents of Higher Education .

Pearson v. Murray (Md. 1936)

Unwilling to accept the fact that the University of Maryland School of Law was rejecting Black applicants solely because of their race, beginning in 1933 Thurgood Marshall, who was rejected from this law school because of its racial acceptance policies, decided to challenge this practice in the Maryland court system. Before a Baltimore City Court in 1935, Marshall argued that Donald Gaines Murray was just as qualified as white applicants to attend the University of Maryland's School of Law and that it was solely due to his race that he was rejected. He argued that since law schools for Black students were not of the same academic caliber, at the time, as the University's law school, the University was violating the principle of "separate but equal." Marshall also argued that the disparities between the law schools for white students and Black students were so great that the only remedy would be to allow students like Murray to attend the University's law school. The Baltimore City Court agreed, and the University appealed to the Maryland Court of Appeals. In 1936, the Court of Appeals ruled in favor of Murray and ordered the law school to admit him. Two years later, Murray graduated with his law degree.

Missouri ex rel Gaines v. Canada (1938)

Beginning in 1936, the NAACP Legal Defense and Education Fund decided to take on the case of Lloyd Gaines, a graduate student of the HCBU Lincoln University in Missouri. Gaines had applied to the University of Missouri Law School but was denied admission because of his race. The State of Missouri gave Gaines the option of either attending a Black law school that it would build (Missouri did not have any all-Black law schools at this time) or Missouri would help to pay for him to attend a law school in a neighboring state. Gaines rejected both of these options and, with the help of  Thurgood Marshall and the NAACP Legal Defense and Education Fund, he sued the state to attend the University of Missouri's law school. By 1938, his case reached the U.S. Supreme Court, and, in December of that year, the Court sided with him. The six-member majority stated that since law school for Black students did not exist in the State of Missouri, the "equal protection clause" required the state to provide within its boundaries a legal education for Gaines. In other words, since the state provided legal education for white students, it could not send Black students, like Gaines, to school in another state.

Sweat v. Painter (1950)

Encouraged by their victory in Gaines' case, the NAACP continued to attack legally sanctioned racial discrimination in higher education. In 1946, an African American man named Heman Sweat applied to the law school at the University of Texas whose student body was white. The University set up an underfunded law school for Black students. However, Sweat employed the services of Thurgood Marshall and the NAACP Legal Defense and Education Fund and sued to be admitted to the University's law school attended by white students. When the case reached the U.S. Supreme Court in 1950, the Court unanimously agreed with him, citing as its reason the blatant inequalities between the University's law school (the school for white students) and the hastily erected school for Black students. In other words, the  two schools were "separate," but not "equal." Like the Murray case, the Court found the only appropriate remedy for this situation was to admit Sweat to the University's law school.

McLaurin v. Oklahoma Board of Regents of Higher Education (1950)

In 1949, the University of Oklahoma admitted George McLaurin, an African American male, to its doctoral program. However, it required him to sit apart and eat apart from the rest of his class. McLaurin sued to end the practices, stating that they had an adverse impact on his academic pursuits. McLaurin was represented by Thurgood Marshall and the NAACP Legal Defense and Education Fund. It eventually went to the U.S. Supreme Court. In an opinion delivered on the same day as the decision in  Sweat , the Court stated that the University's actions concerning McLaurin were adversely affecting his ability to learn and ordered that the practices cease immediately.

Brown v. Board of Education (1954, 1955)

The case that came to be known as  Brown v. Board of Education  was actually the name given to five separate cases that were heard by the U.S. Supreme Court concerning the separate but equal concept in public schools. These cases were  Brown v. Board of Education of Topeka ,  Briggs v. Elliot, Davis v. Board of Education of Prince Edward County (VA.) ,  Bolling v. Sharpe , and  Gebhart v. Ethel . While the facts of each case were different, the main issue was the constitutionality of state-sponsored segregation in public schools. Thurgood Marshall and the NAACP Legal Defense and Education Fund handled the cases.

The families lost in the lower courts, then appealed to the U.S. Supreme Court.

When the cases came before the Supreme Court in 1952, the Court consolidated all five cases under the name of Brown v. The Board of Education. Marshall argued the case before the Court. Although he raised a variety of legal issues on appeal, the central argument was that separate school systems for Black students and white students were inherently unequal, and a violation of the "Equal Protection Clause" of the Fourteenth Amendment to the U.S. Constitution. He also presented the results of sociological tests, such as the one performed by social scientists Kenneth and _______ Clark, arguing that segregated school systems had a tendency to make  Black children feel inferior to white children. In light of those findings, Marshall argued that such a system should not be legally permissible.

Meeting to decide the case, the Justices of the Supreme Court realized that they were deeply divided over the issues raised. Unable to come to a decision by June 1953 (the end of the Court's 1952-1953 term), the Court decided to rehear the case in December 1953. During the intervening months, Chief Justice Fred Vinson died and was replaced by Gov. Earl Warren, of California. After the case was reheard in 1953, Chief Justice Warren was able to bring all of the Justices together to support a unanimous decision declaring unconstitutional the concept of separate but equal in public schools. On May 14, 1954, he delivered the opinion of the Court, stating that "We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal. . ."

DISCLAIMER: These resources are created by the Administrative Office of the U.S. Courts for educational purposes only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on any pending case or legislation.

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Brown v. Board of Education

• 1.1 Stakeholders
• 2 Court details
• 3.1 Dissent
• 6 External links
• 7 Footnotes

Brown v. Board of Education is the 1954 landmark case of the Supreme Court of the United States that overturned Plessy v. Ferguson , ruling that "separate, but equal" facilities were unconstitutional. With this ruling, federally mandated desegregation of schools began. [1]

With the 1896 ruling in Plessy v. Ferguson , "separate, but equal" public and private facilities were allowed throughout the United States. This lead to widespread segregation of schools as well. [1]

Oliver Brown was an African American parent whose child was denied enrollment in a Topeka, Kansas, white school. Brown argued that the schools for the black children were not, and would never be, equal to those of the white children, and that this segregation violated the Equal Protection Clause of the Fourteenth Amendment . After Brown's case was dismissed by the federal district court, he appealed to the Supreme Court. [2]

In 1952, the Supreme Court decided to hear Brown v. the Board of Education together with Briggs v. Elliot , Davis v. Board of Education of Prince Edward County (VA.) , Boiling v. Sharpe and Gebhart v. Ethel . Thurgood Marshall , of the NAACP Legal Defense Fund, argued the case, claiming that there was actually no equality in these facilities. He argued that according to sociological tests, black children who attended the separate schools were more likely to feel inferior to white children, proving that the clause did violate the Fourteenth Amendment. Thurgood Marshall would go on to become a justice of the Supreme Court of the United States . [1]

Stakeholders

• Chief Justice: Earl Warren
• Petitioner: Brown, et al
• Lawyer for the plaintiffs: Thurgood Marshall and the NAACP Legal Defense Fund
• Defendant: Topeka Board of Education

Court details

U.S. District Court for the District of Kansas

Supreme Court of the United States – May 17, 1954

Reactions to the rulings varied by state, town, school and family. Some school districts desegregated peacefully, while some required the National Guard to quell the violent protests formed in opposition to the ruling. [5]

In 1955, the Gray Commission, named for Senator Garland Gray, proposed ways to avoid fulfilling the mandated integration. These reasons included: changing laws so they would state that no child would have to attend a segregated school; giving tuition grants to parents who opposed desegregation of schools; and dictating what school black and white students would attend. [6]

This case finally overruled Plessy v. Ferguson and began the desegregation of schools. In 1958, in the ruling for Cooper v. Aaron , the Supreme Court ordered that states must, in fact, desegregate. Brown also led to an increased racial integration, more protections in the legal and political spheres and an increased fight for racial equality. [2]

• Earl Warren

External links

• Brown v. Board of Education Decision
• ↑ 1.0 1.1 1.2 1.3 1.4 US Courts , Brown v. Board of Education , accessed December 19, 2013
• ↑ 2.0 2.1 2.2 PBS , Landmark Cases: Brown v. Board of Education , accessed December 19, 2013
• ↑ Oyez , Brown v. Board of Education , accessed December 19, 2013
• ↑ JUSTIA , "Brown v. Board of Education of Topeka, 349 U.S. 294 (1955)", accessed May 30, 2019
• ↑ Library of Congress , Brown v. Board at Fifty: “With an Even Hand,” The Aftermath, accessed December 19, 2013
• ↑ 6.0 6.1 Virginia.gov , Brown v. Board of Education , "Virginia Responds, accessed December 19, 2013"
• ↑ Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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Fourteenth Amendment , Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Cases decided soon after ratification of the Fourteenth Amendment may be read as precluding any state-imposed distinction based on race, 1 Footnote Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 67–72 (1873) ; Strauder v. West Virginia, 100 U.S. 303, 307–08 (1880) ; Virginia v. Rives, 100 U.S. 313, 318 (1880) ; Ex parte Virginia, 100 U.S. 339, 344–45 (1880) . but the Court in Plessy v. Ferguson 2 Footnote 163 U.S. 537 (1896) . adopted a principle first propounded in litigation attacking racial segregation in the schools of Boston, Massachusetts. 3 Footnote Roberts v. City of Boston , 59 Mass. 198, 206 (1849) . Plessy concerned not schools but a state law requiring “equal but separate” facilities for rail transportation and requiring the separation of “white and colored” passengers. “The object of the [Fourteenth] [A]mendment was undoubtedly to enforce the absolute equality of the two races before the law, but 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 upon terms unsatisfactory to either. 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 exercise of their police power.” 4 Footnote Plessy v. Ferguson, 163 U.S. 537, 543–44 (1896) . “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.” Id. at 552, 559 . The Court observed that a common instance of this type of law was the separation by race of children in school, which had been upheld, it was noted, “even by courts of states where the political rights of the colored race have been longest and most earnestly enforced.” 5 Footnote 163 U.S. at 544–45 . The act of Congress in providing for separate schools in the District of Columbia was specifically noted. Justice John Harlan’s well-known dissent contended that the purpose and effect of the law in question was discriminatory and stamped black students with a badge of inferiority. “[I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Id. at 552, 559 .

Subsequent cases following Plessy that actually concerned school segregation did not expressly question the doctrine and the Court’s decisions assumed its validity. It held, for example, that a Chinese student was not denied equal protection by being classified with African Americans and sent to school with them rather than with white students, 6 Footnote Gong Lum v. Rice, 275 U.S. 78 (1927) . and it upheld the refusal of an injunction to require a school board to close a White high school until it opened a high school for African Americans. 7 Footnote Cumming v. Richmond Cnty. Bd. of Educ., 175 U.S. 528 (1899) . And no violation of the Equal Protection Clause was found when a state law prohibited a private college from teaching White and Black students together. 8 Footnote Berea College v. Kentucky, 211 U.S. 45 (1908) .

In 1938, the Court began to move away from “separate but equal.” It held that a state that operated a law school open to White students only violated a Black applicant’s right to equal protection, even though the state offered to pay his tuition at an out-of-state law school. The requirement of the clause was for equal facilities within the state. 9 Footnote Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) . See also Sipuel v. Bd. of Regents, 332 U.S. 631 (1948) . When Texas established a law school for African Americans after the plaintiff had applied and been denied admission to the school maintained for Whites, the Court held the action to be inadequate, finding that the nature of law schools and the associations possible in the White school necessarily meant that the separate school was unequal. 10 Footnote Sweatt v. Painter, 339 U.S. 629 (1950) . Equally objectionable was the fact that when Oklahoma admitted an African American law student to its only law school it required him to remain physically separate from the other students. 11 Footnote McLaurin v. Okla. State Regents, 339 U.S. 637 (1950) .

“Separate but equal” was formally abandoned in Brown v. Board of Education , 12 Footnote 347 U.S. 483 (1954) . Segregation in the schools of the District of Columbia was held to violate the due process clause of the Fifth Amendment in Bolling v. Sharpe, 347 U.S. 497 (1954) . which involved challenges to segregation per se in the schools of four states in which the lower courts had found that the schools provided were equalized or were in the process of being equalized. Though the Court had asked for argument on the intent of the framers, extensive research had proved inconclusive, and the Court asserted that it could not “turn the clock back to 1867. . . or even to 1896,” but must rather consider the issue in the context of the vital importance of education in 1954. The Court reasoned that denial of opportunity for an adequate education would often be a denial of the opportunity to succeed in life, that separation of the races in the schools solely on the basis of race must necessarily generate feelings of inferiority in the disfavored race adversely affecting education as well as other matters, and therefore that the Equal Protection Clause was violated by such separation. “We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” 13 Footnote Brown v. Bd. of Educ., 347 U.S. 483, 489–90, 492–95 (1954) .

After hearing argument on what remedial order should issue, the Court remanded the cases to the lower courts to adjust the effectuation of its mandate to the particularities of each school district. “At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis.” The lower courts were directed to “require that the defendants make a prompt and reasonable start toward full compliance,” although “[o]nce such a start has been made,” some additional time would be needed because of problems arising in the course of compliance and the lower courts were to allow it if on inquiry delay were found to be “in the public interest and [to be] consistent with good faith compliance . . . to effectuate a transition to a racially nondiscriminatory school system.” In any event, however, the lower courts were to require compliance “with all deliberate speed.” 14 Footnote Brown v. Bd. of Educ., 349 U.S. 294, 300–01 (1955) .

Opinion | Brown v. Board of Education: Right Result, Wrong Reason

W hen the Supreme Court delivered its historic Brown v. Board of Education ruling 70 years ago on May 17, the goal was to produce better academic outcomes for black children. It’s been clear for decades that racially mixed classrooms aren’t essential to meeting that objective, yet policymakers continue to insist that black pupils must be seated next to white pupils to learn.

The Brown decision effectively overturned Plessy v. Ferguson (1896), which declared that “separate but equal” facilities were permissible and became the legal basis for racial segregation for more than 50 years. The Brown ruling, to its credit, aimed to end that era. Chief Justice Earl Warren wrote for a unanimous court that state-imposed racial segregation of schools was unconstitutional because sorting children by race denied black students “equal education opportunities” and thus deprived them of the equal protection of the laws guaranteed by the 14th Amendment.

How a court reaches a decision can be as important as the decision itself, and the problem we’re still grappling with seven decades later is the reasoning the justices used in Brown. Instead of declaring that Plessy was an incorrect reading of the Constitution, Warren invoked “modern authority,” or social-science research not available when Plessy was decided, to argue that segregated schools were inherently unequal in academic outcomes. In other words, the prior decision was wrong owing to new developments.

Warren’s decision to avoid a direct attack on Plessy and the South was a political calculation. He wanted the ruling to be unanimous and didn’t want the Supreme Court ahead of public opinion on racial matters, prompting a backlash. “Southern power in the mid-fifties did not stop at Congress; it sat on the Court,” wrote judge and legal scholar J. Harvie Wilkinson. “Justices as different as Hugo Black, the Alabaman, Tom Clark, the Texan, and Stanley Reed, the Kentuckian, would have resisted any opinion that pointed a finger back home.”

Warren was acting within certain political constraints, Judge Wilkinson added, “Temperance and tact were the order of the day. Why inflame that region whose acceptance, above all, would have to be won?” Nearly two decades later, reflecting on his reasoning in Brown, Warren said, “On the merits, the natural, the logical, and practically the only way the case could be decided was clear. The question was how the decision was to be reached.”

Warren’s claim that segregated schools produced inferior educational results was wrong when he wrote it in 1954. That year, an all-black high school within walking distance of the Supreme Court building sent a higher percentage of students to college than any white public high school in Washington. The same institution, Dunbar High, also had been known to outperform white high schools on standardized tests both locally and across the country. If the Supreme Court was correct in its assessment of racially separate learning facilities, how could Dunbar High School exist?

Nor were blacks the only ethnic group that had attended high-achieving segregated schools. “The most casual knowledge of history shows that all-Jewish, all-Chinese, or all-German schools have not been inherently inferior,” the scholar Thomas Sowell has noted. “Chinese and Japanese school children were at one time segregated both de facto and de jure in California, yet they outperformed white children—and largely still do.”

The Supreme Court didn’t have to rely on “modern authority.” It could have ruled, as Justice John Marshall Harlan’s Plessy dissent had, and as Thurgood Marshall and the NAACP had recommended, that the Constitution is colorblind. It could have concluded that Plessy had been wrongly decided because racially separate schools and other public facilities in the South were intended to keep blacks in a subordinate position and thus violated the 14th Amendment.

We can’t know for certain if the backlash would have been any more or less severe than what played out, which was more than a decade of white Southern resistance to desegregation orders. What we do know is that efforts since the Brown ruling to integrate public schools have done more to sustain academic achievement gaps than to narrow them. Charter schools, which concentrate in low-income minority neighborhoods to offer education alternatives, are resisted on grounds that they perpetuate racial segregation. That many charter students outperform their peers in traditional public schools is an afterthought.

In some of the best public schools in the country, a majority of the students are black and Hispanic, which is also true of some of the worst public schools in the country. Clearly, the defining feature of a successful school isn’t its racial makeup, yet education policy continues to emphasize racial balance in the classroom. That there’s so much focus on what a school looks like demographically, instead of how it performs, is one of the unfortunate legacies of Brown v. Board of Education.

• Courts and Law
• Federal Policy
• Governance and Leadership

Still Essential, Still Elusive: Brown v. Board of Education at 70

R. Shep Melnick

May 17 marks the 70th anniversary of the U.S. Supreme Court’s landmark school desegregation decision in Brown v. Board of Education . There is ample reason to celebrate Brown : not only did it mark the beginning of the end of the racial caste system in the South, but also it reinvigorated the Equal Protection Clause of the Fourteenth Amendment. Its implications reach far beyond race and education, as important as those matters remain.

At the same time, it is remarkable how many of the legal and policy questions raised by Brown remain unresolved. Consider some of the issues many school systems now confront:

• To what extent can school districts take students’ race into account in order to produce diverse schools and classrooms? In recent years the Supreme Court has limited the use of race-based assignments but has also allowed ample wiggle room.
• To what extent can school districts change the admissions requirements of exam schools to increase the number of Black and Hispanic students if the readily predictable result (and perhaps a secondary purpose) is to reduce the number of Asian American students?
• A number of public schools offer voluntary “affinity” groups or courses limited to Black students and led by Black teachers. Does this practice violate federal law?

These questions remain the subject of intense debate and litigation seven decades after Brown because the Supreme Court has never spelled out exactly why segregation violates the U.S. Constitution, what “desegregation” means, and what schools must do to comply with Brown ’s mandate. Chief Justice Earl Warren’s constitutional argument in Brown was perfunctory, resting more on flawed social science evidence than on a convincing interpretation of the Fourteenth Amendment. Neither in his 1954 opinion nor in his brief follow-up opinion in Brown II the next year did Warren specify what schools had to do to comply. One tragic consequence of this silence was that virtually no desegregation occurred in the South for a decade and a half. Just as important, when the Supreme Court did start to issue rulings on desegregation in the late 1960s, its opinions were ambiguous, contradictory, and meandering. For decades, the high court left lower federal courts and school officials without clear guidance on how to proceed.

As I explain in my 2023 book, The Crucible of Desegregation , the justices have oscillated between two interpretations that I label the “colorblind/limited intervention” approach and the “racial isolation/equal opportunity” approach. The first establishes a relatively clear legal rule: in all but the most extraordinary circumstances, government cannot use race to classify or categorize its citizens. The central goal is to take a particularly pernicious weapon out of the hands of government officials. Prohibiting the use of racial classifications struck at the heart of the racial caste system in the South without requiring courts to get deeply involved in education questions—thus the “limited intervention” half of the label.

According to the alternative interpretation, Brown held out the broader promise of equal educational opportunity. Providing equal opportunity to minority students requires not just ending legal segregation but also eliminating “racial isolation,” whatever its cause. Indeed, federal judges bear responsibility for examining all features of public education to ensure schools provide adequate instruction and fair treatment to minority students.

Supporters of both interpretations can find language in Brown to support their claims. Each approach has an Achilles’ heel: the former is too easy to evade; the latter too difficult to put into effect. Not until 2007, in Parents Involved in Community Schools v. Seattle School District No. 1 , did the high court spell out these competing positions, and even then, neither received support from a majority of the justices.

What Brown Didn’t Say

Writing for the Supreme Court in 1954, Warren was chiefly concerned with maintaining the court’s tenuous unanimity (which was seriously in doubt in the months leading up to the desegregation decisions), writing an opinion simple enough to appeal to the average citizen, and striking a tone that might ease the South into compliance. Although the court would soon strike down every form of state-sponsored segregation, Warren was understandably reluctant to announce such a controversial break with precedent in 1954. Therefore, he did not invoke the famous words of Justice John Marshall Harlan’s dissenting opinion in Plessy v. Ferguson : “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” But in Bolling v. Sharpe , the companion case to Brown that struck down school segregation in the District of Columbia, Warren seemed to endorse this understanding: “Classifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions, and hence constitutionally suspect.” And Brown II required school districts “to achieve a system of determining admission to the public schools on a nonracial basis” (emphasis added here and below).

In Brown I , though, Warren hedged, writing, “ In the field of public education the doctrine of ‘separate but equal’ has no place.” He looked “instead to the effect of segregation itself on public education.” Segregation retards “the educational and mental development of negro children” and “deprive[s] them of some of the benefits they would receive in a racial[ly] integrated school system.” When a state undertakes to provide public education, it becomes “a right which must be made available to all on equal terms.” Thus, on top of Brown ’s apparent ban on racial classifications was layered a vague commitment to “equal opportunity,” to be judged in part by the effect of education practices on minority children.

In 1954–55, the court gave no indication of just what school districts had to do to comply with the ruling. Warren’s even shorter opinion in Brown II merely told school officials to desegregate “with all deliberate speed.” The standard established by the court for evaluating schools’ desegregation efforts was as vague as the schedule for achieving it was amorphous.

Colorblindness, Then and Now

In the 1950s, state-mandated separation of the races was viewed by almost all advocates of desegregation as the central problem, and prohibition of racial classifications as the obvious solution. This was definitely true of Thurgood Marshall and the other NAACP leaders who had long dedicated themselves to the cause. Their initial brief insisted that “The Fourteenth Amendment precludes a state from imposing distinctions or classifications based upon race or color alone.” In oral argument, the NAACP’s Robert Carter explained that the “one fundamental contention which we will seek to develop” is that “no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunity among its citizens.”

Members of the court and the NAACP litigation team recognized they would face intense opposition in the South, but they assumed the desegregation process itself would be relatively straightforward. Heading up the team, Thurgood Marshall assured the court that “the only thing that we are asking for is that the state-imposed racial segregation be taken off,” leaving local officials “to work out their solutions of the problem to assign children on any reasonable basis they want to assign them on.” That, he suggested, could be achieved in the summer. Almost everyone envisioned a return to neighborhood schools in the South—after decades of busing students past the nearest school to attend a segregated one. In the border states, de jure segregation did quickly disappear.

But in the Deep South the court’s decision was greeted with the “massive resistance” U.S. Senator Harry Flood Byrd of Virginia called for in 1954. Within two years, Byrd had amassed a coalition of nearly 100 southern politicians committed to blocking Brown ’s implementation. By the late 1950s and early 1960s, southern school districts were using “freedom of choice” plans to avoid anything more than token desegregation. Almost all federal judges conceded that these plans were constitutional as long as the choices students and their parents made were in fact free, and not tainted by the presumption that students would attend their previously segregated schools. But in most cases, “freedom of choice” was little more than a transparent fraud, corrupted both by administrative manipulation and by informal intimidation. This created a major practical challenge to those who supported a colorblind interpretation of Brown .

By the second half of the 1960s, the Civil Rights Act was the law of the land, yet virtually no Black students were going to school with white students in the Deep South. Federal judges on the Fifth Circuit Court of Appeals decided that time for stalling had finally run out. Working with the Department of Health, Education, and Welfare (HEW), they demanded data to prove that formerly segregated districts had taken “affirmative action” to achieve “the conversion of a de jure segregated dual system into a unitary, nonracial (nondiscriminatory) system—lock, stock, and barrel: students, faculty, staff, facilities, programs, and activities.” Initially, the demands of the Fifth Circuit and HEW were relatively mild: nearly two decades after Brown , they required only 10 to 20 percent of Black children be enrolled in formerly all-white schools. Without such a numerical standard, it is doubtful any significant change in school enrollments would ever have been achieved. But a Rubicon had been crossed. Now racial classifications were being used to promote desegregation, not enforce segregation.

Was the use of racial assignments a temporary measure designed to wring stigmatizing racial identification out of school districts guilty of unconstitutional segregation, or was it an appropriate—even constitutionally mandated—measure for achieving racial balance in perpetuity in the North and West as well as the South? If the Supreme Court seemed to suggest the latter in the 1970s, by the 1990s it had begun to suggest the former.

Several of the justices appointed by Presidents Reagan and Bush reintroduced the colorblind interpretation of the Fourteenth Amendment that the NAACP had previously favored but long since abandoned. In 1995 Justice Clarence Thomas wrote that the “simple, yet fundamental, truth” announced in Brown is “the principle that the government must treat citizens as individuals, and not as members of racial, ethnic, or religious groups.” According to Justice Anthony M. Kennedy, “Reduction of an individual to an assigned racial identity for differential treatment is among the most pernicious actions our government can undertake.” Justice Sandra Day O’Connor argued that the use of so-called “benign racial classifications” implies “confidence in [courts’] ability to distinguish good from harmful governmental uses of racial criteria. History should teach greater humility.” According to Chief Justice John G. Roberts, “It is a sordid business, this divvying us up by race.”

In the 2007 Seattle case, the high court sharply limited school districts’ ability to use race-based student assignments to achieve what by then was widely known as “diversity” rather than “racial balance.” Four members of the court adopted a colorblind interpretation of the 14th Amendment, but the pivotal fifth vote was cast by Kennedy, who, in his concurring opinion, offered schools significantly more flexibility in using race-based assignment. The court’s 2023 decision in the Harvard affirmative action case suggests that it is inclined to further restrict school districts’ authority. But given how long the court has gone without issuing desegregation opinions, we should not expect a definitive decision soon.

From Racial Segregation to Racial Isolation

Soon after the Fifth Circuit and HEW used numerical targets to jumpstart what UCLA professor Gary Orfield has aptly described as the “reconstruction of southern education,” the Supreme Court finally broke its silence and handed down the first of a flurry of desegregation decisions. In 1968, a unanimous court announced that each school board in formerly segregated districts must “come forward with a plan that promises realistically to work, and promises realistically to work now ” (emphasis in original). The demand for immediate action was certainly in order. But what does it mean “to work”? School districts, Justice William J. Brennan explained, have an “affirmative duty” to “convert to a unitary school system in which racial discrimination will be eliminated root and branch.” What, then, is a “unitary school system”? Apparently, one that entirely eliminates the “racial identification” of previously segregated schools. In Brennan’s felicitous phrase, school boards must “fashion steps which promise realistically to convert to a system without ‘white’ schools and ‘Negro’ schools, but just schools.”

Trying to guess what the justices meant, the lower courts held that for a formerly “dual” school system to eliminate “racially identifiable” schools, the racial composition of the student body in each school in the district must approximate that of the district’s overall student population. In other words, white and Black students must be distributed proportionally among all the district’s schools.

Was this a judicial remedy designed to undo the effects of decades of segregation and noncompliance? Or was it a constitutional requirement for all schools, whether or not they had engaged in intentional racial discrimination? On this crucial matter the Supreme Court remained noncommittal. But lower courts repeatedly asserted that racial imbalance by itself reduces the educational opportunities of minority students and is therefore unconstitutional.

This understanding was first enunciated in a 1967 report of the U.S. Commission on Civil Rights entitled Racial Isolation in the Public Schools . Its conclusion summarized what soon became the conventional wisdom. The “central truth” announced in the report was that:

Negro children suffer serious harm when their education takes place in public schools which are racially segregated, whatever the source of such segregation may be. Negro children who attend predominantly Negro schools do not achieve as well as other children, Negro and white. Their aspirations are more restricted than those of other children and they do not have as much confidence that they can influence their own futures. When they become adults, they are less likely to participate in the mainstream of American society, and more likely to fear, dislike, and avoid white Americans.

The commission recommended that Congress enact legislation specifying that in no public school should minority enrollment exceed 50 percent.

This “central truth” was conveyed to federal judges by a cadre of expert witnesses who testified in the trial phase of desegregation cases. For example, during the first round of litigation in Keyes v. School District No. 1, Denver , Judge William Doyle stated, “We cannot ignore the overwhelming evidence to the effect that isolation or segregation per se is a substantial factor in producing unequal educational outcomes.” Consequently, “we must conclude that segregation, regardless of its cause , is a major factor in producing inferior schools and unequal educational opportunity.” Reflecting on the testimony he had heard about the harm done by racial isolation, the trial judge in the Detroit case found it “unfortunate that we cannot deal with public school segregation on a no-fault basis, for if racial segregation in our public schools is an evil, then it should make no difference whether we classify it as de jure or de facto.” The court’s goal was simply “to remedy a condition which we believe needs correction.”

Behind this “racial isolation” argument lay two assumptions: that Brown promised not just the elimination of racial discrimination, but a broader “equal educational opportunity,” and that changing the racial composition of schools would substantially improve educational opportunities for minority students. For example, the district court judge who ordered the desegregation of San Francisco’s schools in 1970 cited the Coleman Report and the Civil Rights Commission’s study to conclude that “Black students in identifiably black schools do not perform as well as they would perform in an integrated school. . . . While integration of schools would improve the academic performance of black children, it would have little or no adverse effect on the academic performance of white children.” Similarly, the judge in the Charlotte, North Carolina case confidently asserted that “the experts all agree” not only that “a racial mix in which black students heavily predominate tends to retard the progress of the whole group” but also that “if students are mingled with a clear white majority such as a 70/30 ratio . . . the better students can hold their pace, with substantial improvement for the poorer students.” Over three decades later, Justice Stephen G. Breyer claimed that social science research indicates “that black children from segregated educational environments significantly increase their achievement levels once they are placed in a more integrated setting.”

Especially in the North, where school districts are much smaller than in the South, coming close to a 70/30 ratio proved nearly impossible. The long-term trend of suburbanization coupled with the white flight that often accompanied desegregation orders meant that ending “racial isolation” would require massive inter-district busing. This proved extraordinarily unpopular. Endorsing such measures would have required the Supreme Court both to explicitly acknowledge the “racial isolation” rationale and to endure a major political backlash—including a possible constitutional amendment prohibiting busing to achieve racial balance. In 1974 it temporarily backed away from the “racial isolation” argument, insisting that judges could impose cross-district busing only if there was evidence that the state government or the affected suburbs had engaged in discriminatory behavior.

Over the past half century, demographic change has made eliminating “racial isolation” even harder. Today, fewer than half of all public school students are non-Hispanic white. Over the next decade, the proportion of Anglos in public schools is expected to decline to 45 percent, while the share of Hispanics grows to 29 percent. In the West, Hispanics already outnumber Anglos 42 percent to 38 percent. During the first decade of the 21st century, the student bodies of the 20 largest school systems in the country were, on average, 20 percent Anglo, 38 percent Hispanic, 32 percent African American, and 9 percent Asian. In 2017 the percentage of white students was 7 percent in Los Angeles and Miami-Dade County; 5 percent in Dallas; 8 percent in Houston; 2 percent in Detroit; 12 percent in Chicago; 14 percent in San Francisco and Philadelphia; 15 percent in Boston; and 16 percent in New York City. Further complicating these calculations is the fact that a growing share of students—today about 6 percent—label themselves “interracial.” In the 1960s and 1970s, the implicit goal of desegregation plans was to make virtually all schools majority white. But today that is out of the question in many parts of the country.

From Racial Balance to Education Quality

Recognizing the futility of trying to end “racial isolation,” many judges refocused on other techniques for improving educational opportunity. For example, Judge Arthur Garrity concluded that Boston’s entire public school system was inadequate. He rejected the NAACP’s proposed plan because it failed to address the system’s many flaws. The special master he appointed to formulate a remedial plan asked, “What the hell is the point in desegregation if there are no good schools?” During the remedial phase of litigation in Reed vs. Rhodes , the Cleveland case, Judge Frank Battisti became alarmed at the “inferior education being meted out to those who were the victims of discrimination.” He devised remedies to address “educational testing, reading programs, counseling, extracurricular activities, and relations with universities, businesses and cultural institutions.” In 1977 the Supreme Court upheld an order requiring Detroit to establish new magnet and vocational schools as well as “in-service training for teachers and administrators, guidance and counseling programs, and revised testing procedures.” Such reforms, the court claimed, would “restore the victims of discriminatory conduct to the position they would have enjoyed” had public officials not acted unconstitutionally.

The most extensive effort to improve the quality of education in schools deemed “dual” by federal judges came in Kansas City, Missouri. Judge Russell Clark explained that the “long term goal of this court’s remedial order is to make available to all [Kansas City] students educational opportunity equal to or greater than those available” to the average student in suburban schools. To accomplish this, Clark overhauled the entire school system, turning each city high school into a magnet school with a special theme, ranging from science and math to classic Greek and agribusiness. By 1995 Kansas City was spending more than any comparable school system in the country. The cost of these court-ordered reforms was about $2 billion, most of which came from the state of Missouri and the rest from tax increases mandated by the court. Unfortunately, as Joshua Dunn shows in Complex Justice: The Case of Missouri v. Jenkins, the court’s plan never came close to working. Both the number of white students in city schools and the test scores of Kansas City students continued to decline. Eventually, Black parents revolted against the court’s plan, reinstituting more traditional neighborhood schools.

By the late 1970s, preliminary evidence from school districts undergoing desegregation had begun to trickle in. Reviews of these studies, including a major assessment conducted by the National Institute of Education (NIE), found small improvements in reading by Black students in districts undergoing desegregation, but no change in mathematics. The director of the NIE project found “the variability in effect sizes more striking and less well understood than any measure of central tendencies”—not surprising, given the wide variety of desegregation plans. Thirty years later Stanford professor Sean Reardon and his co-authors wrote, “It remains unclear if, and to what extent, school racial segregation affects student achievement.”

What Works?

Over 50 years ago the Supreme Court demanded that school districts that had engaged in unconstitutional discrimination “come forward with a plan that promises realistically to work.” But it never explained what it means for a plan “to work.” In 2006, 553 social scientists signed an amicus brief in support of Seattle’s effort to use racial assignments to promote diversity in its schools. “Racially desegregated schools,” they warned, “are not an educational or social panacea and the extent of benefits will depend on how desegregation is structured and implemented.” As readers of Education Next realize, in school reform, the devil is always in the details.

In his 2019 book Children of the Dream: Why School Integration Works , economist Rucker C. Johnson analyzed longitudinal studies extending back to the 1960s and found a strong, positive long-term relationship between the number of years Black students spend in a desegregated school and their total years of educational attainment, adult wages, and health status. Similarly, he found an inverse relationship between number of years spent in a desegregated school and future incarceration and poverty rates. He attributes these beneficial outcomes to two shifts accompanying desegregation: “sharp increases in per-pupil spending” and “significant reductions in the average class sizes experienced by black children.” These changes were particularly important in the South, where for years Black schools were notoriously underfunded. Johnson found that money mattered much more than Black-white student exposure. That is, where resources increased significantly but exposure did not, students did well. Conversely, “in court-ordered desegregation districts in which school spending for black children did not appreciably change, however, although the children experienced greater classroom exposure to their white peers, they did not make a comparable improvement in their educational and socioeconomic trajectories.”

In 2022 Garrett Anstreicher, Jason Fletcher, and Owen Thompson used a similar analytic technique to analyze a larger sample of students experiencing desegregation. They found “qualitatively quite large” positive effects in the South but “no substantive effects outside of the South.” They suggested that the “impactful legacy” of desegregation efforts “lies in their systematic dismantling of the overtly segregated educational systems that prevailed in the Jim Crow South.” The “distinct paucity of effects outside the South,” in contrast, indicates “the limitations to the efficacy of legally imposed integration initiatives in certain settings.” These findings are not surprising, but they highlight the hazards of equating the legal segregation of the Jim Crow South with the “racial isolation” one finds in virtually every big city today.

In the 1960s and 1970s, judges and educational “experts” could be forgiven for believing that adjusting the racial balance of schools by itself would produce substantial education benefits. Almost no one believes that today. Over the past half century, we have substantially reduced fiscal inequities between rich and poor school districts; we have improved the quality of education provided to English learners and students with disabilities; we have created programs to improve nutrition and health care for students from poor families; we have taken a variety of steps to identify and improve substandard schools. Yet “equal educational opportunity” continues to elude us. And Covid shutdowns seem to have wiped out several decades of progress.

As school officials continue to wrestle with these difficult issues, the Supreme Court is likely to further limit the explicit use of race in assigning students to schools and to classrooms. On the one hand, it is hard to see how race-based “affinity” classes can long survive judicial scrutiny. On the other hand, the ease with which southern school officials delayed desegregation in the 1950s and 1960s indicates how difficult it will be for Asian American parents and students to invoke the colorblind argument to challenge changes in exam-school criteria. Manipulating admissions and assignment rules to get the right racial result is usually easy; proving invidious intent is usually hard. Moreover, the court’s colorblind interpretation of the Equal Protection Clause and the Civil Rights Act does not place any restrictions on the use of socioeconomic criteria to promote diversity in schools at any level.

The history of Brown shows that, under the right circumstances, court-based reform can bring about substantial change in education, both directly through court orders and indirectly by spurring other government institutions into action. But the federal judiciary’s inability to specify what “desegregation” means, why we want it, and what school districts must do to achieve it led us down many dead ends. The best way to honor Brown is to forsake heated, ideological arguments about what the decision “really means” and to focus instead on the concrete steps that evidence has shown to improve the quality of education we provide to minority students.

R. Shep Melnick is Thomas P. O’Neill Jr. Professor of American Politics at Boston College and author of  The Crucible of Desegregation: The Uncertain Search for Educational Equality (University of Chicago Press, 2023).

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Spring 2024.

Vol. 24, No. 2

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70 years after Brown v. Board of Education, new research shows rise in school segregation

As the nation prepares to mark the 70th anniversary of the landmark U.S. Supreme Court ruling in Brown v. Board of Education , a new report from researchers at Stanford and USC shows that racial and economic segregation among schools has grown steadily in large school districts over the past three decades — an increase that appears to be driven in part by policies favoring school choice over integration.

Analyzing data from U.S. public schools going back to 1967, the researchers found that segregation between white and Black students has increased by 64 percent since 1988 in the 100 largest districts, and segregation by economic status has increased by about 50 percent since 1991.

The report also provides new evidence about the forces driving recent trends in school segregation, showing that the expansion of charter schools has played a major role.  

The findings were released on May 6 with the launch of the Segregation Explorer , a new interactive website from the Educational Opportunity Project at Stanford University. The website provides searchable data on racial and economic school segregation in U.S. states, counties, metropolitan areas, and school districts from 1991 to 2022. 

“School segregation levels are not at pre- Brown levels, but they are high and have been rising steadily since the late 1980s,” said Sean Reardon , the Professor of Poverty and Inequality in Education at Stanford Graduate School of Education and faculty director of the Educational Opportunity Project. “In most large districts, school segregation has increased while residential segregation and racial economic inequality have declined, and our findings indicate that policy choices – not demographic changes – are driving the increase.” 

“There’s a tendency to attribute segregation in schools to segregation in neighborhoods,” said Ann Owens , a professor of sociology and public policy at USC. “But we’re finding that the story is more complicated than that.”

Assessing the rise

In the Brown v. Board decision issued on May 17, 1954, the U.S. Supreme Court ruled that racially segregated public schools violated the Equal Protection Clause of the Fourteenth Amendment and established that “separate but equal” schools were not only inherently unequal but unconstitutional. The ruling paved the way for future decisions that led to rapid school desegregation in many school districts in the late 1960s and early 1970s.

Though segregation in most school districts is much lower than it was 60 years ago, the researchers found that over the past three decades, both racial and economic segregation in large districts increased. Much of the increase in economic segregation since 1991, measured by segregation between students eligible and ineligible for free lunch, occurred in the last 15 years.

White-Hispanic and white-Asian segregation, while lower on average than white-Black segregation, have both more than doubled in large school districts since the 1980s. 

Racial-economic segregation – specifically the difference in the proportion of free-lunch-eligible students between the average white and Black or Hispanic student’s schools – has increased by 70 percent since 1991. 

School segregation is strongly associated with achievement gaps between racial and ethnic groups, especially the rate at which achievement gaps widen during school, the researchers said.  

“Segregation appears to shape educational outcomes because it concentrates Black and Hispanic students in higher-poverty schools, which results in unequal learning opportunities,” said Reardon, who is also a senior fellow at the Stanford Institute for Economic Policy Research and a faculty affiliate of the Stanford Accelerator for Learning . 

Policies shaping recent trends 

The recent rise in school segregation appears to be the direct result of educational policy and legal decisions, the researchers said. 

Both residential segregation and racial disparities in income declined between 1990 and 2020 in most large school districts. “Had nothing else changed, that trend would have led to lower school segregation,” said Owens. 

But since 1991, roughly two-thirds of districts that were under court-ordered desegregation have been released from court oversight. Meanwhile, since 1998, the charter sector – a form of expanded school choice – has grown.

Expanding school choice could influence segregation levels in different ways: If families sought schools that were more diverse than the ones available in their neighborhood, it could reduce segregation. But the researchers found that in districts where the charter sector expanded most rapidly in the 2000s and 2010s, segregation grew the most. 

The researchers’ analysis also quantified the extent to which the release from court orders accounted for the rise in school segregation. They found that, together, the release from court oversight and the expansion of choice accounted entirely for the rise in school segregation from 2000 to 2019.

The researchers noted enrollment policies that school districts can implement to mitigate segregation, such as voluntary integration programs, socioeconomic-based student assignment policies, and school choice policies that affirmatively promote integration. 

“School segregation levels are high, troubling, and rising in large districts,” said Reardon. “These findings should sound an alarm for educators and policymakers.”

Additional collaborators on the project include Demetra Kalogrides, Thalia Tom, and Heewon Jang. This research, including the development of the Segregation Explorer data and website, was supported by the Russell Sage Foundation, the Robert Wood Johnson Foundation, and the Bill and Melinda Gates Foundation.   

Brown v. Board of Education of Topeka, 70 years later: We're still failing children

Seven decades after brown, low-income children— many of them children of color—are still systematically excluded from the very best public schools..

This is a year of celebration. Seventy years ago this May the Supreme Court outlawed racial segregation in the public schools. The court’s ruling in Brown v. Board of Education made it illegal for states and school districts to turn African American children away from a public school because of their race, ending a shameful era of American history and reimagining our social contract.

But this is also a year of reckoning. Seven decades after Brown, low-income children— many of them children of color—are still systematically excluded from the very best public schools. The brutal truth is this: In 2024, although Linda Brown wouldn’t be turned away from a coveted public school because of her race, it’s likely she would still be turned away. And it’s all perfectly legal.

How can a public school deny enrollment to a little girl in 2024? Usually because of her address. The vast majority of public schools still use exclusionary maps to determine who is or isn’t eligible to enroll. These maps are reminiscent of the redlining era in the decades prior to Brown, when the federal government drew maps that determined who was or wasn’t eligible for housing assistance.

Certain neighborhoods were labeled “hazardous” because they had high concentrations of minorities or immigrants. Shading these areas red, the government marked those families as ineligible for valuable government services. My own research has shown that, even today, the attendance zones of many coveted public schools mirror the patterns of those redlining maps and keep middle-income and low-income families boxed out of the best public schools.

'Educational redlining' is an American failure

It is “educational redlining” that explains how neighboring schools like Lincoln Elementary and Manierre Elementary—two campuses serving Chicago’s Old Town neighborhood—can end up so starkly different. At Manierre, where 99.5% percent of students are Black or Latino , only 4.3% of students could read at grade level in 2023. Just a mile away at Lincoln, where the school is majority white, more than 74% of students can read proficiently. The two populations are kept completely separated by an attendance zone line, drawn down the middle of North Avenue by the school district.

Layered on top of this geography-based exclusion are other types of discrimination, like those based on income. Believe it or not, many coveted magnet schools give enrollment preferences to wealthy families, trying to lure them away from their high-quality zoned schools. Linda Brown, in other words, might be legally turned away from a public school in 2024 because her family doesn’t make enough money.

Or she might be turned away if she has a disability. In several states, it’s perfectly legal for a school to deny a child an “ open enrollment ” seat, simply because the child has a minor disability. The school just reports that its special education program is “full,” and there’s no process for verifying the claim.

This is a failure of the law. In the years after Brown, the courts got tangled up in the very real and urgent problem of eradicating explicit racial segregation, especially in the Southern states. But they never came back around to provide substantive and procedural protections that would have fulfilled the original promise of the ruling. Chief Justice Earl Warren, writing for a unanimous Supreme Court, had promised that henceforth the public schools would be “ available to all on equal terms .”

More from Opinion: I'm a student who was arrested at a Columbia protest. I am not a hero, nor am I a villain.

We can fix education law across the country

In the last 70 years, the courts have largely deferred to school district bureaucrats, giving them tremendous discretion over enrollment policies, no matter how many kids are turned away. Likewise, our legislators have not passed the types of laws that would protect American families and ensure that all children have equal access to the public schools.

My organization, Available to All, is a nonpartisan watchdog that defends equal access to public schools.  Earlier this month, we released a  50-state report  that surveys the laws governing public school admissions in all 50 states. Where they exist at all, these laws are weak and inconsistent. It is an area of the law that is crying out for reform and oversight, at both the state and federal levels. 

Fulfilling the promise of Brown requires three fixes to education law:

First, we must guarantee every American child the right to seek admission at any public school. This simple procedural protection wouldn’t solve the problem of unequal access, but would increase transparency. If a school denies a child enrollment, it should provide a formal explanation and submit its reasoning and all data to the state department of education. Families should have the right to appeal an enrollment denial to a neutral third party, as they already do in states like California and Arkansas .

Second, we need to hold all public schools to the same high standard of openness, eliminating the egregious inconsistencies in this area of the law. Some public schools are forbidden—and others required— to use discriminatory maps. Some schools must use lotteries, while other schools are allowed to pick and choose students off their waitlists.

Finally, we must reduce the importance of exclusionary maps, so that the neediest students are no longer boxed out. All public schools should be required to reserve at least 15% of their seats for children who live outside the zone or district. That would be a small, but important, step toward undoing the harmful effects of educational redlining.

It’s a national tragedy that we left undone the primary work of the civil rights movement as it relates to public education. Congress, our state legislatures, and our courts — each has a crucial role to play in fixing this broken system and finally fulfilling the promise that Brown made.

Tim DeRoche is the founder of Available To All, a nonpartisan watchdog defending equal access to public schools. He is the author of three books, including A Fine Line: How Most American Kids Are Kept Out of the Best Public Schools.

Brown v. Board of Education (1954)

Case background and

Assess the role played by the Court as the protector of individual rights against the tyranny of the majority in Brown v. Board of Education .

Expand Materials Materials

Documents you will examine:

• Virginia Criminal Code, 1847
• Section of the Fourteenth Amendment, 1868
• Majority Opinion, Plessy v. Ferguson , 1896
• Dissenting Opinion, Plessy v. Ferguson , 1896
• “Washington, D.C. Public Schools, 1st Div-Class Making Geometric Forms with Paper,” 1899
• “African American Schoolgirls in Classroom, Learning to Sew,” 1899
• “Crowded Segregated Classroom,” ca. 1940s
• Segregation Laws Map, 1953
• Unanimous Majority Opinion, Brown v. Board of Education , 1954
• Majority Opinion, Brown II, 1955
• “Supreme Court Decision,” 1954

Expand More Information More Information

Read the Case Background and Key Question. Then analyze Documents A-K. Finally, answer the Key Question in a well-organized essay that incorporates your interpretations of Documents A-K, as well as your own knowledge of history.

Expand Activities Activities

After the Civil War, the Fourteenth Amendment was passed to grant citizenship to former slaves and protect them from civil rights violations in their home states. Public schools were relatively rare throughout the United States, but were often segregated by race where they existed. The same Congress that passed the Fourteenth Amendment created racially segregated schools for the District of Columbia.

Beginning in 1877, many states passed “Jim Crow” laws requiring segregation in public places. Jim Crow laws were adopted in every southern state as well as some in the North. Louisiana’s policy requiring that blacks sit in separate railcars from whites was challenged and upheld in the Supreme Court case Plessy v. Ferguson (1896). The Court held that there was nothing inherently unequal—nor anything unconstitutional—about separate accommodations for races.

In the twentieth century, the National Association for the Advancement of Colored People (NAACP) began a litigation campaign designed to bring an end to state-mandated segregation, calling attention to the shabby accommodations provided for blacks, as well as arguing the damaging psychological effects that segregation had on black school children. One case was brought on behalf of Linda Brown, a third-grader from Topeka, Kansas. Several additional school segregation cases were combined into one, known as Brown v. Board of Education . This case reached the Supreme Court in 1953.

The Brown v. Board of Education case overturned the “separate but equal” doctrine that allowed segregation. This Homework Help video explores the reasoning the Court used to make this landmark decision.

Student Handouts

Equal protection and affirmative action essay – brown v. board of education (1954), brown v. board of education – case background, documents to examine (a-k) – brown v. board of education (1954), the issue endures – brown v. board of education (1954), related resources.

Brown v. Board of Education | BRI’s Homework Help Series

Brown v Board of Education was a case brought to the Supreme Court in 1954 after Linda Brown, an African American student in Kansas, was denied access to the white-only schools nearby her house. Future Supreme Court Justice Thurgood Marshall was the lawyer for the case, and argued that segregated schools were inherently unequal. Ultimately, the Supreme Court ruled in favor of Linda Brown and declared segregation unconstitutional under the Equal Protection Clause of the 14th Amendment through incorporation under the premise that the bill of rights also applies to the states. This is one of the landmark cases that led to the passage of the Civil Rights Act of 1964.

Equality and the Supreme Court: A Primary Source Study of Plessy v. Ferguson and Brown v. Board of Education

Explores the idea of equality as seen in two landmark Court cases.

The Little Rock Nine

By the end of this section, you will explain how and why the civil rights movements developed and expanded from 1945 to 1960.

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Opinion - Brown - 347us483

BROWN ET AL. v. BOARD OF EDUCATION OF TOPEKA ET AL. No. 1. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS. *

Argued December 9, 1952. -- Reargued December 8, 1953. -- Decided May 17, 1954.

Segregation of white and Negro children in the public schools of a State solely on the basis of race, pursuant to state laws permitting or requiring such segregation, denies to Negro children the equal protection of the laws guaranteed by the Fourteenth Amendment -- even though the physical facilities and other "tangible" factors of white and Negro schools may be equal. Pp. 486-496.

(a) The history of the Fourteenth Amendment is inconclusive as to its intended effect on public education. Pp. 489-490.

(b) The question presented in these cases must be determined, not on the basis of conditions existing when the Fourteenth Amendment was adopted, but in the light of the full development of public education and its present place in American life throughout the Nation. Pp. 492-493.

(c) Where a State has undertaken to provide an opportunity for an education in its public schools, such an opportunity is a right which must be made available to all on equal terms. P. 493.

(d) Segregation of children in public schools solely on the basis of race deprives children of the minority group of equal educational opportunities, even though the physical facilities and other "tangible" factors may be equal. Pp. 493-494.

(e) The "separate but equal" doctrine adopted in Plessy v. Ferguson , 163 U.S. 537, has no place in the field of public education. P. 495.

(f) The cases are restored to the docket for further argument on specified questions relating to the forms of the decrees. Pp. 495-496.

Counsel for Parties

Robert L. Carter argued the cause for appellants in No. 1 on the original argument and on the reargument. Thurgood Marshall argued the cause for appellants in No. 2 on the original argument and Spottswood W. Robinson, III , for appellants in No. 4 on the original argument, and both argued the causes for appellants in Nos. 2 and 4 on the reargument. Louis L. Redding and Jack Greenberg argued the cause for respondents in No. 10 on the original argument and Jack Greenberg and Thurgood Marshall on the reargument.

On the briefs were Robert L. Carter, Thurgood Marshall, Spottswood W. Robinson, III, Louis L. Redding, Jack Greenberg, George E. C. Hayes, William R. Ming, Jr., Constance Baker Motley, James M. Nabrit, Jr., Charles S. Scott, Frank D. Reeves, Harold R. Boulware and Oliver W. Hill for appellants in Nos. 1, 2 and 4 and respondents in No. 10; George M. Johnson for appellants in Nos. 1, 2 and 4; and Loren Miller for appellants in Nos. 2 and 4. Arthur D. Shores and A. T. Walden were on the Statement as to Jurisdiction and a brief opposing a Motion to Dismiss or Affirm in No. 2.

Paul E. Wilson , Assistant Attorney General of Kansas, argued the cause for appellees in No. 1 on the original argument and on the reargument. With him on the briefs was Harold R. Fatzer , Attorney General.

John W. Davis argued the cause for appellees in No. 2 on the original argument and for appellees in Nos. 2 and 4 on the reargument. With him on the briefs in No. 2 were T. C. Callison , Attorney General of South Carolina, Robert McC. Figg, Jr., S. E. Rogers, William R. Meagher and Taggart Whipple .

J. Lindsay Almond, Jr. , Attorney General of Virginia, and T. Justin Moore argued the cause for appellees in No. 4 on the original argument and for appellees in Nos. 2 and 4 on the reargument. On the briefs in No. 4 were J. Lindsay Almond, Jr. , Attorney General, and Henry T. Wickham , Special Assistant Attorney General, for the State of Virginia, and T. Justin Moore, Archibald G. Robertson, John W. Riely and T. Justin Moore , Jr. for the Prince Edward County School Authorities, appellees.

H. Albert Young , Attorney General of Delaware, argued the cause for petitioners in No. 10 on the original argument and on the reargument. With him on the briefs was Louis J. Finger , Special Deputy Attorney General.

By special leave of Court, Assistant Attorney General Rankin argued the cause for the United States on the reargument, as amicus curiae, urging reversal in Nos. 1, 2 and 4 and affirmance in No. 10. With him on the brief were Attorney General Brownell, Philip Elman, Leon Ulman, William J. Lamont and M. Magdelena Schoch . James P. McGranery , then Attorney General, and Philip Elman filed a brief for the United States on the original argument, as amicus curiae, urging reversal in Nos. 1, 2 and 4 and affirmance in No. 10.

Briefs of amici curiae supporting appellants in No. 1 were filed by Shad Polier, Will Maslow and Joseph B. Robison for the American Jewish Congress; by Edwin J. Lukas, Arnold Forster, Arthur Garfield Hays, Frank E. Karelsen, Leonard Haas, Saburo Kido and Theodore Leskes for the American Civil Liberties Union et al.; and by John Ligtenberg and Selma M. Borchardt for the American Federation of Teachers. Briefs of amici curiae supporting appellants in No. 1 and respondents in No. 10 were filed by Arthur J. Goldberg and Thomas E. Harris for the Congress of Industrial Organizations and by Phineas Indritz for the American Veterans Committee, Inc.

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

These cases come to us from the States of Kansas, South Carolina, Virginia, and Delaware. They are premised on different facts and different local conditions, but a common legal question justifies their consideration together in this consolidated opinion. 1

In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, they had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment. In each of the cases other than the Delaware case, a three-judge federal district court denied relief to the plaintiffs on the so-called "separate but equal" doctrine announced by this Court in Plessy v. Ferguson , 163 U.S. 537. Under that doctrine, equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities be separate. In the Delaware case, the Supreme Court of Delaware adhered to that doctrine, but ordered that the plaintiffs be admitted to the white schools because of their superiority to the Negro schools.

The plaintiffs contend that segregated public schools are not "equal" and cannot be made "equal," and that hence they are deprived of the equal protection of the laws. Because of the obvious importance of the question presented, the Court took jurisdiction. 2  Argument was heard in the 1952 Term, and reargument was heard this Term on certain questions propounded by the Court. 3

Reargument was largely devoted to the circumstances surrounding the adoption of the Fourteenth Amendment in 1868. It covered exhaustively consideration of the Amendment in Congress, ratification by the states, then existing practices in racial segregation, and the views of proponents and opponents of the Amendment. This discussion and our own investigation convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among "all persons born or naturalized in the United States." Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty.

An additional reason for the inconclusive nature of the Amendment's history, with respect to segregated schools, is the status of public education at that time. 4 In the South, the movement toward free common schools, supported by general taxation, had not yet taken hold. Education of white children was largely in the hands of private groups. Education of Negroes was almost nonexistent, and practically all of the race were illiterate. In fact, any education of Negroes was forbidden by law in some states. Today, in contrast, many Negroes have achieved outstanding success in the arts and sciences as well as in the business and professional world. It is true that public school education at the time of the Amendment had advanced further in the North, but the effect of the Amendment on Northern States was generally ignored in the congressional debates. Even in the North, the conditions of public education did not approximate those existing today. The curriculum was usually rudimentary; ungraded schools were common in rural areas; the school term was but three months a year in many states; and compulsory school attendance was virtually unknown. As a consequence, it is not surprising that there should be so little in the history of the Fourteenth Amendment relating to its intended effect on public education.

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The Abortion Decision, Haunted by Brown v. Board of Education

The justices cited the landmark 1954 decision banning segregation in public schools 23 times, debating its meaning and methods.

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By Adam Liptak

WASHINGTON — In the Supreme Court decision that eliminated the constitutional right to abortion, the justices engaged in an extended debate over the meaning and legacy of Brown v. Board of Education , the 1954 decision that said the Constitution does not permit racial segregation in public schools.

The connection between abortion and education may seem elusive. But the justices cited Brown 23 times, using it to make points about precedent, about popular opinion and, most tellingly, about how to interpret the Constitution.

Justice Samuel A. Alito Jr., writing for the five-member majority, invoked Brown as an example of a decision that had properly overruled a precedent. Plessy v. Ferguson , the 1896 decision that said “separate but equal” facilities were constitutional, was plainly and egregiously wrong, he wrote, and so Brown had been right to overturn it.

The same was true, Justice Alito wrote, of Roe v. Wade , the 1973 decision that had guaranteed a constitutional right to abortion, and Planned Parenthood v. Casey , the 1992 decision that had reaffirmed Roe’s core holding.

Chief Justice John G. Roberts Jr., in a concurring opinion that would have stopped short of overruling Roe, failed to see the parallel. “The opinion in Brown,” he wrote, “was unanimous and 11 pages long; this one is neither.”

Indeed, the three dissenting justices wrote in a joint opinion, “a bare majority” of the current court had overruled the two abortion precedents.

“The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them,” Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan wrote.

Justice Alito also cited Brown, which was deeply unpopular in the South, in support of a second point. “We cannot allow our decisions to be affected,” he wrote, “by any extraneous influences such as concern about the public’s reaction to our work.”

But the most intriguing mention of Brown was made almost in passing in the dissent. It said the court that had decided Brown might not have done so had it used “the majority’s method of constitutional construction.”

That method was originalism, which seeks to identify the original meaning of constitutional provisions using the tools of historians.

But Brown has always been problematic for originalists. The weight of the historical evidence is that the people who from 1866 to 1868 proposed and ratified the 14th Amendment, which guaranteed “equal protection of the laws,” did not understand themselves to be doing away with segregated schools.

Yet Brown is generally considered to be a moral triumph and the Supreme Court’s finest hour. A theory of constitutional interpretation that cannot explain Brown is suspect, if not discredited.

Originalists hate talking about Brown. When Justice Antonin Scalia, an enthusiastic originalist, used to be asked about the case, he was prone to say , “Waving the bloody shirt of Brown again, eh?”

Justice Alito’s critique of Roe was certainly steeped in originalism. In ruling that there is no constitutional right to abortion, he focused on the words of the Constitution and “how the states regulated abortion when the 14th Amendment was adopted.”

His approach echoed contemporary criticism of Brown on originalist grounds.

Justice Alito said that “the Constitution makes no mention of abortion.” A 1956 statement by Southern members of Congress who objected to Brown, which came to be known as the Southern Manifesto , made a similar point: “The original Constitution does not mention education. Neither does the 14th Amendment nor any other amendment.”

In the abortion decision, Justice Alito wrote that “by the time of the adoption of the 14th Amendment, three-quarters of the states had made abortion a crime at any stage of pregnancy, and the remaining states would soon follow.”

The Southern Manifesto again echoed the point.

“When the amendment was adopted, in 1868, there were 37 states of the union,” the manifesto said. “Every one of the 26 states that had any substantial racial differences among its people either approved the operation of segregated schools already in existence or subsequently established such schools by action of the same lawmaking body which considered the 14th Amendment.”

The unanimous opinion in Brown did not really quarrel with the idea that it could not be justified using the tools of originalism. “At best,” the opinion said, the historical evidence was “inconclusive.”

Before Justice Scalia died in 2016 , he and Justice Breyer, who retired in June, would occasionally appear in public to debate constitutional interpretation. Justice Breyer liked to needle Justice Scalia about Brown.

“Where would you be with school desegregation?” Justice Breyer asked his colleague in 2009, at an appearance at the University of Arizona . “It’s certainly clear that at the time they passed the 14th Amendment, which says people should be treated equally, there was school segregation, and they didn’t think they were ending it.”

Justice Scalia did not give a direct answer. In other settings, he endorsed the decision. “Though Scalia says that he would have voted with the majority in Brown,” Margaret Talbot of The New Yorker wrote in a 2005 profile , “it’s hard to see an originalist justification for it.”

The majority in the recent abortion decision, Dobbs v. Jackson Women’s Health Organization, noted that both Plessy and Roe had survived about a half-century before being overturned.

The three dissenters responded that Plessy might still be on the books if the court in Brown had been committed to originalism.

“If the Brown court had used the majority’s method of constitutional construction,” the dissenters wrote, “it might not ever have overruled Plessy, whether five or 50 or 500 years later.”

Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002. More about Adam Liptak

Legal Dictionary

The Law Dictionary for Everyone

Brown v. Board of Education

Following is the case brief for Brown v. Board of Education, United States Supreme Court, (1954)

Case Summary of Brown v. Board of Education:

• Oliver Brown was denied admission into a white school
• As a representative of a class action suit, Brown filed a claim alleging that laws permitting segregation in public schools were a violation of the 14 th Amendment equal protection clause .
• After the District Court upheld segregation using Plessy v. Ferguson as authority, Brown petitioned the United States Supreme Court.
• The Supreme Court held that segregation had a profound and detrimental effect on education and segregation deprived minority children of equal protection under the law.

Brown v. Board of Education Case Brief

Statement of Facts:

Oliver Brown and other plaintiffs were denied admission into a public school attended by white children. This was permitted under laws which allowed segregation based on race. Brown claimed that the segregation deprived minority children of equal protection under the 14 th Amendment.  Brown filed a class action, consolidating cases from Virginia, South Carolina, Delaware and Kansas against the Board of Education in a federal district court in Kansas.

Procedural History:

Brown filed suit against the Board of Education in District Court. After the District Court held in favor of the Board, Brown appealed to the United States Supreme Court. The Supreme Court granted certiorari.

Issues and Holding:

Does the segregation on the basis of race in public schools deprive minority children of equal educational opportunities, violating the 14 th Amendment? Yes.

The Court Reversed the District Court’s decision.

Rule of Law or Legal Principle Applied:

Separating educational facilities based on racial classifications is unequal in violation of the Equal Protection Clause of the 14 th Amendment.

The Court held that looking to historical legislation and prior cases could not yield a true meaning of the 14 th Amendment because each is inconclusive.

At the time the 14 th Amendment was enacted, almost no African American children were receiving an education. As such, trying to determine the historical intentions surrounding the 14 th Amendment is not helpful. In addition, few public schools existed at the time the amendment was adopted.

Analyzing the text of the amendment itself is necessary to determine its true meaning. The Court held the basic language of the Amendment suggests the intent to prohibit all discriminatory legislation against minorities.

Despite the fact each facility is essentially the same, the Court held it was necessary to examine the actual effect of segregation on education. Over the past few years, public education has turned into one of the most valuable public services both state and local governments have to offer. Since education has a heavy bearing on the future success of each child, the opportunity to be educated must be equal to each student.

The Court stated that the opportunity for education available to segregated minorities has a profound and detrimental effect on both their hearts and minds. Studies showed that segregated students felt less motivated, inferior and have a lower standard of performance than non-minority students. The Court explicitly overturned Plessy v. Ferguson , 163 U.S. 537 (1896), stating that segregation deprives African-American students of equal protection under the 14 th Amendment.

Concurring/ Dissenting opinion :

Unanimous decision led by Justice Warren.

Significance:

Brown v. Board of Education was the landmark case which desegregated public schools in the United States. It abolished the idea of “ separate but equal .”

Student Resources:

http://www.pbs.org/wnet/supremecourt/rights/landmark_brown.html https://www.law.cornell.edu/supremecourt/text/347/483

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Brown v. Board of Education: A reckoning 70 years later

W i th Jim Crow still intact in America in the early 1950s, Thurgood Marshall and a group of attorneys took the landmark Brown v. Board of Education case to the Supreme Court, whose verdict — issued 70 years ago next week — changed our country for the better. The decision striking down deliberate school segregation opened the door to creating a more equal educational system. The case also helped to bolster later efforts to use affirmative action as a means of increasing diversity in higher education.

Marshall and his team argued before the court that separate is not equal when it comes to education. The evidence was clear in the form of inferior school buildings, supplies and textbooks for Black students, alongside overcrowded classrooms. The psychological damage to African American children through policies of exclusion and bias were also entered as evidence before the justices.

The ruling was broadly greeted as a triumph in the advance of civil rights, but it didn’t take long for a backlash to begin. Some public schools in the South closed rather than integrate. Many parents avoided the impact of the integration order by sending their children to church-run schools or other private institutions that excluded Black pupils. Over time, however, much of the segregation did subside, and additional money in many cases was put into schools that were predominantly filled by students of color.

The Brown decision set the stage for other challenges to Jim Crow during the crest of the Civil Rights Movement. Barriers to fair housing, equal employment, voting rights, and public accommodations were struck down in courts and Congress.

But as we look now across the landscape of our country, it is clear that forces of intolerance and regression are working to turn back the clock of progress. One of the most damaging was the Supreme Court’s decision last year to strike down affirmative action.

The broad assault on affirmative action threatens opportunities in education as well as more equitable access to employment and to contracts for minority entrepreneurs. But the removal of affirmative action is the most pernicious when it comes to education, because education is the most powerful tool to lift up our community.

There is still a tremendous racial divide between how many students of color graduate from high school, go to college and earn degrees. People of color tend to attend elementary and high schools that do not provide the same quality of education as schools in predominantly white suburban communities.

Massachusetts is a state that prides itself on education and has provided generous support for everything from early childhood education to public research universities, but it is clear that this commitment does not exist in many other parts of the country.

As a son of two educators, I watched my parents work tirelessly to teach students in their classrooms. But even in Cambridge, one of New England’s most liberal communities — and one known for its institutions of higher learning — there are public schools still not providing resources equal to those available in other systems, particularly private schools, whose students have a decided advantage when applying to top colleges and universities.

The long-term impact of the Supreme Court decision on higher education admissions can be clearly predicted from what has happened in states that have retreated from affirmative action in their own systems. In every case, the consequences of striking down efforts to promote racial diversity on their campuses have resulted in a whitening of those institutions.

According to the Economic Policy Institute, a total of nine states have implemented bans on affirmative action in higher education, among them California and Michigan. Flagship public universities in these states responded by investing hundreds of millions of dollars in outreach programs to counteract the drop in minority enrollment. But the institute reports that these approaches have proved ineffective — and they said so in briefs filed last year with the Supreme Court as the justices were weighing the challenge to affirmative action. “Both university systems revealed perpetually low enrollment rates among students of color despite their significant investment in alternative ways to boost diversity among the applicant pool and student body,” said the EPI report.

While switching to race-blind admissions with preferences based on socioeconomic status rather than ethnicity was seen as a hopeful fix, that hasn’t produced significant diversity gains either.

It is clearly more difficult for students from disadvantaged backgrounds to compete for seats in highly selective institutions with students from private schools and wealthier communities. For over 40 years, affirmative action served to create more balanced opportunities for those students, who, despite their best efforts, still found themselves lagging behind.

It’s easy to say that we are multiple generations past slavery and the damage caused by centuries of oppression and bias, but that legacy is still clearly stamped in a society where opportunities to build generational wealth — as just one example — were denied by discriminatory housing and lending policies.

The same court that struck down affirmative action in higher-education admissions also struck down reproductive rights in overturning Roe v. Wade. These decisions were a one-two punch against fairness and individual rights and don’t bode well for a future built on equitable opportunity and bodily autonomy.

As we mark the anniversary of Brown v. Board of Education, it’s time to stand up and push back to ensure that the systems created to correct the imbalances of the past are not dismantled before they achieve their goal. Black Americans have always cherished education, in some cases learning to read and write in spite of laws forbidding such instruction. The Brown decision 70 years ago was not the end of discrimination — it was the start of a long and unfinished process to reverse the impact of systemic bias. Seven decades removed from Thurgood Marshall’s arguments on behalf of the plaintiffs, we are still a long way from achieving that goal and making up for the damage. Striking down affirmative action in higher education makes that process all the more difficult. While seeking new strategies to boost diversity in higher education, we must also strengthen our public schools to ensure that our children can gain access to the nation’s best colleges and universities.

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