The case of Brown v. Board of Education[1] is a case which is essentially responding to the separate but equal doctrine announced in Plessy v. Ferguson.[2] Thus, in resolving the question presented before this court today, it is both necessary and helpful to think about the approach used in the Plessy opinion. The Court in its opinion placed great weight in the idea that formal legal equality in society is all that is required by the Constitution. In the Plessy opinion, it is said that the law cannot create social equality[3] and that if blacks are stigmatized by the formal separation of the races, it is a product of their own views.[4] Our opinion today strives to repudiate these positions and emphasize that (1) formal sameness is not the same as equal protection, and (2) that the line drawn between the social and legal realm in Plessy is an artificial dichotomy.
In the Kansas lower court opinions that led to the Brown decision, it was found that segregation in public education has a detrimental effect upon black children, but relief was denied on the ground that the schools were substantially equal in a physical sense. Clearly, this is an iteration of the logic used in Plessy: the Court is not concerned with the potential detrimental social impact of segregation; the Court is only concerned with the guarantee of formal sameness in legal rights. Similarly, while the Delaware Supreme Court did order for integration, the decision was not based on the chancellor’s finding that segregation itself results in an inferior education for black children. And in fact, the Supreme Court of Delaware implied that once the schools were equalized, there could be a modification of the decree. With the rationale of Plessy clearly in the purview of the Brown cases, it is imperative that Brown respond to the logic and reasoning of the Plessy opinion.
When the Supreme Court took up the issue, one of the most important issues examined was the stigmatization of black children as a result of segregation. But rather than taking an approach that analyzes the historical and contextual facts of racial segregation in the United States, the Brown Court frames the issue as one merely concerned with effect. The framing of the issue leads to a conclusion that segregation in education is bad because the outcome is bad; namely that black children feel stigmatized since separation of the races is usually interpreted as marking inferiority. The rationale of this opinion seems to be that black children feel less motivated and are less likely to succeed in segregated school systems. The inference is that if we eliminate formal segregation, then there is no longer a formally sanctioned set of laws that result in this stigmatization. Thus, there is no violation of equal protection. But this approach is too concentrated on the outcome of the laws and succumbs to a view of race that only recognizes formally demarcated lines of discrimination. The result is that the Brown decision fails to attack the structural and institutional problems in society that create these racial inequalities. In doing so, the Court fails to challenge the idea of white supremacy being a natural product of social interaction. In fact, taken to its extreme, one reading of the Brown opinion is one of white paternalism and pragmatism: because there can be no quality in separate facilities and because we want to promote the United States as the leader of the free world, it is necessary for whites to help out blacks by disrupting the natural social order and mandating integration.
Rather than focusing on formal categories of racial classification, I would instead focus on the question of what message the government is sending. By solely looking at the outcome of segregation, the Court is able to circumvent the more pressing issue of how the system and process of segregation communicates a message of inferiority. Indeed, segregation was commonly justified on the basis of maintaining white supremacy and protecting racial purity. One need not look any further than the fears of miscegenation prevalent throughout much of this country’s storied history to see this. Underlying segregation is a belief in some sort of racial truth or natural order that reaffirms socially constructed notions of racial hierarchies. Segregation then was used to help build, perpetuate, and justify racial hierarchies and white supremacy. And it is for that reason that segregation cannot be tolerated in this country, especially in the context of primary education because it imbues our youth with a false belief in an artificial racial order at the beginning of their lives. It is then reiterated and reproduced throughout society in ways that embed this belief in the very hearts of our citizenry.
By focusing on the government action, we can get at these deeper problems and begin to dismantle the existing racial hierarchy. If we begin to scrutinize the racialized history of our country, it becomes clear that the law has always played a role in constructing systems of racial subordination. Through racialized immigration control, racial limitations on naturalization, criminal evidence laws, slavery, internment, and so forth, it becomes apparent that the laws and procedures of this country have historically stratified the races in a way that created, maintained, and protected white supremacy. If we reframe the issue to look at the ways in which the system of segregation was designed to maintain this status quo, then we can challenge the idea of a racial hierarchy. It is not a natural, social product that whites came to power and have maintained that power. Rather, it is through the systematic and intentional insulation of whiteness through the laws of this country that whites have come to enjoy a position that sits them atop this country’s racial hierarchy. It is only through looking at the historical and societal disparities and asking what role the government has played in creating the racial hierarchy that allows us to begin to breakdown systems of racial domination.
The celestial court thus upholds the ruling of the Supreme Court in Brown, but on alternative grounds. It is because of the historical and societal inequities that segregation simply has no place in the laws of the United States.
[1] 347 U.S. 483 (1954).
[2] 163 U.S. 537 (1896).
[3] Id. at 551 (“[t]he argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits, and a voluntary consent of individuals.”).
[4] Id. (“...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 be reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”).
