Brown v. Board of Education (1954)

Background: "separate but equal," the great wordplay

The 14th Amendment wiped out Dred Scott. But in 1896, in Plessy v. Ferguson (163 U.S. 537), the Court upheld racially segregated train cars. As long as the facilities were "equal," separation was supposedly fine.

Spoiler: they were never equal. Black schools got less money, worse buildings, hand-me-down books.

The case: five lawsuits, one ruling

In Topeka, Kansas, Oliver Brown tried to enroll his daughter Linda at a nearby white school and got turned away. Similar suits were moving in other states, so the Court bundled them.

The NAACP lawyers had been at this since the 1930s, starting with graduate and law school admissions, where "not equal" was easiest to prove. Brick by brick.

Law is hard because being right isn't enough to win. Somebody has to design which case goes to court, in what order, with what evidence, and that's a big reason the legal profession exists. Warren had his own version of that problem: if even one Justice dissented, the South would use it as an excuse to resist.

The ruling: "inherently unequal"

Warren kept the opinion short and readable on purpose, so ordinary people could read it in the newspaper. And he got his unanimous Court.

Footnote 11 cites social science research, including psychologist Kenneth Clark's work. The famous "doll tests" found Black children often picked white dolls as the "nice" ones. The Court used this kind of evidence to show segregation planted a sense of inferiority.

Read it on Justia, or see the original records at the National Archives.

Aftermath: the "all deliberate speed" trap

A year later, in Brown II (1955), the Court ordered desegregation "with all deliberate speed." Plenty of Southern states leaned hard on "deliberate."

• 1957, Little Rock: Arkansas's governor blocked nine Black students. President Eisenhower sent in the 101st Airborne.
• 1958, Cooper v. Aaron: states must follow the Court's rulings. Period.
• 1964, Civil Rights Act: Congress banned discrimination by statute.

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Criticism and debate: can social science anchor the Constitution?

Almost nobody today disputes the result. The arguments are about the how:

• Was it right to lean on psychology studies? If the research changes, does the Constitution change too?
• Did "all deliberate speed" basically license delay?
• Does Brown fit the original meaning of the 14th Amendment? Even originalists split on this one.

Brown shows that "the law gets the right answer" and "the answer becomes reality" are two completely different problems. How hard courts should look at unequal treatment, and by what standard, is a question still playing out in courtrooms right now. Here's how to plug that into your studies.

Study notes

• Levels of scrutiny: U.S. courts apply strict scrutiny to racial classifications. For how that compares with Korea's proportionality test, see proportionality and levels of scrutiny.
• Korean material: Constitutional Rights of Psychopaths and Their Limits: Standards for Restricting Fundamental Rights Through Criminal Responsibility, Human Dignity, Personal Liberty and Equality works through equality rights and the limits on restricting basic rights in a concrete setting. Good companion reading.

References and official sources

1. Brown v. Board of Education, 347 U.S. 483 (1954). Justia
2. Plessy v. Ferguson, 163 U.S. 537 (1896). Justia
3. National Archives, Milestone Documents: Brown v. Board of Education. archives.gov
4. Brown v. Board of Education (Brown II), 349 U.S. 294 (1955).