Brown vs. Board of Education

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U.S. Discrimination Law
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Rational basis review
Intermediate scrutiny
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Other Legal Theories

Substantive due process
State action doctrine

Defining Moments in Law

The 14th Amendment
Plessy v. Ferguson
Brown v. Board of Education
Loving v. Virginia
U.S. v. Virginia
Romer v. Evans
Lawrence v. Texas

Modalities of Constitutional Law


Brown vs. Board of Education was the landmark 1954 decision that overturned the 1896 Plessy vs. Ferguson Supreme Court decision that had allowed "de jure" (legal) segregation and the system of Jim Crow. The Brown decision said it was unconstitutional for any state or city to operate segregated schools—that is, one set of public schools for whites, and one set for blacks.

The lawsuit involved the Board of Education in Topeka, Kansas. It was brought by the NAACP Legal Defense Fund, a small organization entirely separate from the much better known NAACP. Black lawyer Thurgood Marshall made the winning argument in court.

The U. S. Supreme Court under the leadership of Chief Justice Earl Warren unanimously voted to end segregation with Brown. The decision made illegal the dual system of white and black schools in the South and border states. The border states and Florida integrated quickly, but Virginia and the Deep South resisted. At one point in 1957 President Dwight D. Eisenhower sent in the U.S. Army to enforce court-ordered school integration in Little Rock, Arkansas.

Apart from schools, segregation continued in the Southern United States until passage of the Civil Rights Act of 1964. At that point Jim Crow died overnight.

Negotiating the decision

Warren acceded to the position of Chief Justice while Brown v. Board of Education was being reargued at the behest of Associate Justice Felix Frankfurter, who ordered re-argument as a stalling tactic, to allow the Court to gather a unanimous consensus around a Brown opinion that would outlaw segregation. Chief Justice Vinson was one such stumbling block.

Warren convened a meeting of the justices, and presented to them the simple argument that the only reason to sustain segregation was an honest belief in the inferiority of African Americans. Warren further submitted that the Court must overrule Plessy to maintain its legitimacy as an institution of liberty, and it must do so unanimously to avoid massive Southern resistance. He began to build a unanimous opinion. Although most justices were immediately convinced, Warren spent some time after this famous speech convincing everyone to sign onto the opinion. Justices Robert Jackson and Stanley Reed finally decided to drop their dissent to what was by then an opinion backed by all the others. The final decision was unanimous.

The very first case put Warren's leadership skills to an extraordinary test. The Legal Defense Fund of the NAACP (a small, primarily white legal group separate from the much better known NAACP) had been waging a systematic legal fight against the "separate but equal" doctrine enunciated in Plessy v. Ferguson (1896) and finally had challenged Plessy in a series of five related cases, which had been argued before the Court in the spring of 1953. However the justices had been unable to decide the issue and asked to rehear the case in fall 1953, with special attention to whether the Fourteenth Amendment's equal protection clause prohibited the operation of separate public schools for whites and blacks.[1]

While all but one justice personally rejected segregation, the self-restraint faction questioned whether the Constitution gave the Court the power to order its end. The activist faction believed the Fourteenth Amendment did give the necessary authority and were pushing to go ahead. Warren, who held only a recess appointment, held his tongue until the Senate, dominated by southerners, confirmed his appointment.

Warren told his colleagues after oral argument that he believed segregation violated the Constitution and that only if one considered African Americans inferior to whites could the practice be upheld. But he did not push for a vote. Instead, he talked with the justices and encouraged them to talk with each other as he sought a common ground on which all could stand. Finally he had eight votes, and the last holdout, Stanley Reed of Kentucky, agreed to join the rest. Warren drafted the basic opinion in Brown v. Board of Education (1954) and kept circulating and revising it until he had an opinion endorsed by all the members of the Court.[2]

Text of decision

see Text of Brown v. Board of Education


Biden segregation.png 1718483346.png

The unanimity Warren achieved helped speed the drive to desegregate public schools, which mostly came about in 1969–74, during the administration of President Richard M. Nixon. Throughout his years as Chief, Warren succeeded in keeping all decisions concerning segregation unanimous. Brown applied to schools, but soon the Court enlarged the concept to other state actions, striking down racial classification in many areas. Congress ratified the process in the Civil Rights Act of 1964 and the Voting Rights Act of 1965. Warren did compromise by agreeing to Frankfurter's demand that the Court go slowly in implementing desegregation; Warren used Frankfurter's suggestion that a 1955 decision (Brown II) include the phrase "all deliberate speed."[3]

The Brown decision of 1954 marked, in dramatic fashion, the radical shift in the Court's--and the nation's--priorities from issues of property rights to civil liberties. Under Warren the courts became an active partner in governing the nation, although still not coequal. Warren never saw the courts as a backward-looking branch of government.

The Brown decision was a powerful moral statement clad in a weak constitutional analysis; Warren was never a legal scholar on a par with Frankfurter or a great advocate of particular doctrines, as was Black. Instead, he believed that in all branches of government common sense, decency, and elemental justice were decisive, not stare decisis, tradition or the text of the Constitution. He wanted results. He never felt that doctrine alone should be allowed to deprive people of justice. He felt racial segregation was simply wrong, and Brown, whatever its doctrinal defects, remains a landmark decision primarily because of Warren's majestic interpretation of the equal protection clause to mean that children should not be shunted to a separate world reserved for minorities.


Although the ruling ultimately proved just and removed segregation, which had been unconstitutional under the Fourteenth Amendment, the ruling itself and how it came to that has been deemed controversial. Most of the controversy involved it being among the Warren Court's decisions to radically legislate from the bench and expanding judicial power significantly, which was itself a violation of the separation of powers. In addition, while they did correctly confirm that Separate but Equal violated the Fourteenth Amendment, they also utilized pop-psychology indicating that black children preferred a white doll over a black doll due to "confusion" caused by segregation, ironically because, while Fourteenth Amendment deemed it unconstitutional to actually segregate schools, it also doesn't have the constitutional power to outlaw segregated schools at the same time.[4] The ruling also ultimately set forth the path for far more rulings that deviated even further from the constitution and were ruled by a whim, starting with the next ruling, nicknamed Brown II, and by the 1960s stopped having any restraint via Mapp v. Ohio in 1961, which infamously resulted in evidence being excluded from a criminal court if it was gotten without a valid search warrant, despite the Police having their own separate duty to take action regarding those details, and Brown Shoe Co. v. United States, which deemed two shoe companies leading to an illegal monopoly despite the two companies combined market share of domestic production and sales only amounted to 4% and 2%, respectively.[5][6]

Further reading

  • Patterson, James T. Brown v. Board of Education: A Civil Rights Milestone and Its Troubled Legacy (2001) online edition
  • Powe, Lucas A.. The Warren Court and American Politics (2002) excerpt and text search

See also


  1. See Smithsonian, “Separate is Not Equal: Brown v. Board of Education’’
  2. For text see BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954)
  3. Robert L. Carter, "The Warren Court and Desegregation," Michigan Law Review, Vol. 67, No. 2 (Dec., 1968), pp. 237-248 in JSTOR
  4. Kevin Gutzman, The Politically Incorrect Guide to the Constitution (Washington, D.C.: Regnery, 2007), 195.
  5. Paul Finkelman and Melvin I. Urofsky, Landmark Cases of the United States Supreme Court (Washington, D.C.: CQ Press, 2003), 281.
  6. Jonathan Leaf, The Politically Incorrect Guide to the Sixties (Washington, D.C.: Regnery, 2009), 132-3.