Separate, But Not Equal

Throughout the history of the Supreme Court, few situations have posed such a plethora of legal and constitutional problems as the ambiguous position of the Negro in American life. But when on December 7 the Court considers the Segregation in Schools cases, it faces one of the most difficult issues in this entire series.

Four of these cases are appeals by groups of Negro parents in South Carolina, Virginia, Kansas and the District of Columbia, from lower court rulings which sustained the constitutionality of school segregations laws. The fifth is an appeal by the State of Delaware from a ruling of its Supreme Court outlawing segregation laws in that state. The cases originally were argued last December, but because of the complexity of the subject, the Court asked that certain points be re-argued this December.

The significance of these cases stems from their challenge to the traditional "separate but equal" standard in civil rights questions. For over half a century, the Court has held that States fulfill their constitutional obligations by providing segregated facilities in transportation, recreation or education if the facilities provided are equal. There is a long series of cases establishing formidable precedent on this point.

Perhaps the most important in this series is Plessy vs. Ferguson (1896), in which the Court upheld the constitutionality of a Louisiana statute requiring separate but equal railroad carriages for whites and Negroes. Plessy's appeal was to the Fourteenth Amendment, which provides that "no state shall make or enforce any law which shall abridge the privileges or immunities of any citizen of the United States . . . nor deny to any person within its jurisdiction the equal protection of its laws." In its decision, the Court ruled that the Amendment "could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from politically equality, or a co-mingling of the two races upon terms unsatisfactory to either." It denied that the enforced separation of the two races stamps the Negro with a badge of inferiority, and, if it did, it was only because the "colored race chooses to put that construction upon it."

This has remained the Court's attitude, and it is this attitude from which the plaintiffs in the present five cases are appealing. The briefs filed this week declare that the Fourteenth Amendment prevents the states from segregating children on the basis of their color or race. They deny that Constitutional requirements are met if equal but separate facilities are provided.

On the other hand, the lawyer for Delaware declared that Congress never intended that the Amendment should affect public school segregation, asserting that the use of the Amendment to abolish segregation in schools would be to give it a meaning "directly contrary to that given by its framers." As support for this belief, he pointed out that a majority of the congressmen in 1868, when the Amendment was passed, were from states that favored segregation and they would never have agreed to submit the Amendment if they had believed it would invalidate segregation.

The dispute about which interpretation of the Amendment is correct is an academic one. There is, in fact, no correct interpretation of the Amendment on the "separate but equal" question, for there is nothing in the words of the Amendment which clarify it. Nor does the answer lie in the intent of the framers or ratifiers of the Amendment. This is far too vague and uncertain. The only real standard by which the meaning of the Amendment can be judged is the intent of the present judges and the nation at large.

The fact is that Supreme Court Justice have, since the inception of the Court, judged the issues before them on the basis of their own prejudices and the dominant prejudices of their time. The history of the interpretations of the Due Process Clause and the Inter-state Commecroc Clause are good examples. The concept of judicial impartiality, although containing some truth, is largely a myth.

The decision of whether the Fourteenth Amendment makes "separate but equal" schools unconstitutional, reduces down to the question: does a segregated school system conform to one's ideal of equality? Imagine two identical schools, each with similar gymnasiums, cafeterias and classrooms, each with equally good libraries and faculty. The only difference is that one is for Negroes, the other for whites. The courts of the Southern states claim this is all that is meant by equality and their attitude toward the sphere of the Fourteenth Amendment follows naturally from this belief.

But there is another, wider view of equality, held today by many of this country's foremost lawyers. It is one which makes a good deal of sense. It is the belief that the very act of segregation vitiates the superficial equality of facilities. Despite the talk about equality, a Negro child is treated as unequal by being told that he cannot attend school with white children, for the plain implication is that he is not good enough to go to school with them. If he is so marked, then he is not being treated equally under the law.

Unfortunately, a Negro in this country will be treated as unequal and inferior all through his life by individuals and organizations. But governmental action can do little about this. Inequality in the social sphere must be done away by the hard, slow work of individuals and social agencies. But, if this is so, then it is all the more important that the government, within its sphere, should not condone any from of inequality. Separate schools are not equal except in the most superficial sense of the word. The Supreme Court should abolish them now that it has the opportunity.