In the Courts: From Plessy to Brown

Courtroom battles played a significant role in the civil rights movement. For many years, civil rights leaders waged hard-fought and carefully planned legal battles to overturn legal segregation and achieve equality under the law.


Justice John Marshall Harlan cast the sole dissenting vote in Plessy v. Ferguson in 1896. Fifty-eight years later, his grandson and namesake, John Marshall Harlan II, also a Supreme Court justice, was on the court that overruled Plessy in Brown v. Board of Education. (Wikimedia Commons)

As originally written, the U.S. Constitution did little to protect the rights of African Americans. Following the Civil War, however, three amendments were added to the Constitution. The 13th Amendment abolished slavery. The 14th Amendment granted citizenship to everyone born in the United States. It also banned states from limiting citizens’ rights, depriving them of due process of law, or denying “any person ... the equal protection of the laws.” The 15th Amendment prohibited racial discrimination in voting. These amendments offered promises that African Americans would finally achieve equal treatment under the law.

In the latter 19th century, Southern states started adopting “Jim Crow” laws, which established different rules for black and white people. These laws ordered strict racial segregation in all public areas, including hospitals, restaurants, hotels, trains and buses, playgrounds, and even cemeteries. Signs marked “white” and “colored” dominated the South, ensuring that African Americans would be treated as second-class citizens.

Plessy v. Ferguson

In 1892, some Republicans in New Orleans decided to challenge Jim Crow laws with a test case. They enlisted Homer Plessy, a light-skinned African American, to board a railroad train bound for Covington, Louisiana. Refusing to sit in the “colored only” section, Plessy instead sat in the section reserved for whites. Arrested and convicted for this act of defiance, he appealed to the U.S. Supreme Court.  By a 7–1 vote in Plessy v. Ferguson (Justice David Brewer had to abstain due to a death in the family), the court rejected Plessy’s arguments that the Louisiana Jim Crow law violated his constitutional rights under the 13th and 14th Amendments.

Writing for the majority, Justice Henry Brown held that this law had nothing to do with slavery and therefore it did not violate the 13th Amendment. He also ruled that the14th Amendment was not intended to enforce the social equality of the races in America. He maintained that laws requiring the separation of the races implied no inferiority of either race. They were, he argued, merely passed to protect the common good, not to annoy or oppress anyone. Brown stated that if black people regarded such laws as a badge of inferiority, that was merely their interpretation. He ruled that segregated facilities in public transportation and other areas of life, including education, were constitutionally permissible, as long such facilities were equal. This case created the “separate but equal” doctrine, which lasted until 1954.

The sole dissenter, Justice John Harlan, blasted the decision. He predicted that it would “prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case,” an infamous pro-slavery decision made before the Civil War. He explained:

The destinies of the two races in this country are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law. What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens.

Harlan stated that Jim Crow laws violated both the 13th and 14th amendments. The 13th Amendment, he argued, barred any “badge of servitude.” The 14th Amendment, he said, made it clear that the “Constitution is color-blind, and neither knows nor tolerates classes among citizens.”

Most 20th century historians and legal experts have sided with Harlan. They rejected the “separate but equal” doctrine as deceptive and fraudulent. Public schools and other facilities for African Americans were never equal and were usually extremely inferior.

The decision in Plessy v. Ferguson, however, gave segregation a solid legal foundation. No major challenge was mounted against it for many years. The National Association for the Advancement of Colored People (NAACP), the leading civil rights organization, concentrated on other battles, such as campaigning against lynching and trying to ensure fair trials for criminal defendants.

In the 1930s, however, the NAACP began challenging legal segregation. Led initially by Charles Houston and later by Thurgood Marshall, NAACP attorneys started the legal battle by focusing on graduate and professional school education. They believed that winning legal battles for integration at this level would be easiest and would create the legal basis for a broader attack on racial segregation at all levels. The efforts of the NAACP represent one of the greatest legal strategies in American history. Many of these courageous lawyers risked their personal safety when they traveled through the South, often meeting hostility from police and other whites.

Graduate School Desegregation Cases

Their initial efforts brought significant legal success. Known generally as the “graduate school desegregation cases,” these early victories broke down the myth of “separate but equal” facilities for advanced African-American students. In 1936, a federal appeals court ordered the University of Maryland to admit to its law school a black student it had rejected due to his race. The state had no separate facility for blacks. Two years later, the U.S. Supreme Court ordered the University of Missouri Law School to admit a black student it had excluded. The state had no separate law school for blacks, but had offered to send the student to an out-of-state school for blacks. The court ruled that this offer did not “remove the discrimination,” which violated the 14th Amendment.

The Second World War put a momentary stop on the graduate school cases. But following the war came its two most significant victories. The first involved a black law student, Herman Sweatt, who was denied admission to the University of Texas Law School because of his race. Responding to Sweatt’s lawsuit, the state of Texas built a separate law school in Austin for black students. It consisted of three small basement rooms in an office building not far from both the state capitol and the whites-only law school of the University of Texas.

After five years of litigation, Sweatt attained his legal victory. In 1950 in Sweatt v. Painter, the U.S. Supreme Court unanimously ordered his admission to the University of Texas. It rejected the state’s argument that the newly established law school for blacks was even remotely equal to the facilities for white law students.

In the second case, a federal court had ordered the University of Oklahoma to admit a black graduate student. The university had admitted the student, but roped him off from other students, reserving a special section for him in classes, at the library, and in the cafeteria. In 1950 in McLaurin v. Oklahoma State Regents for Higher Education, a unanimous Supreme Court ordered the school to end this segregation. The court stated that under the 14th Amendment the student “must receive the same treatment ... as students of other races.”

During the 1940s, NAACP lawyers had achieved other significant victories. In Morgan v. Virginia, the Supreme Court struck down segregation on interstate transportation because it impeded interstate commerce. In Smith v. Allwright the court ruled that the Southern practice of holding whites-only primary elections violated the 15th Amendment.

In 1948 in Shelley v. Kraemer, the court struck down racial restrictive covenants. Common in many parts of the country, these were agreements, often recorded in deeds, that an owner would not sell the land to specified minorities.


A year after the Brown decision, the Supreme Court issued another decision on how Brown should be implemented. (Wikimedia Commons)

Brown v. Board of Education

By the 1950s, the rigid legal doctrine supporting segregation had finally been weakened. Thurgood Marshall was preparing for the final legal assault on school segregation, but he faced major opposition even from many committed to full racial equality. They thought that the time was not ripe for such drastic social and legal change. They feared that the Supreme Court would reject a case seeking total racial integration throughout American public education. Such a defeat, they argued, would result in further frustration and continued racial inequality and lack of opportunity.

Determined to succeed, Marshall pushed ahead. NAACP lawyers worked furiously to present the best possible case. In 1952, Marshall presented the legal argument that resulted in the landmark case of Brown v. Board of Education. On May 17, 1954, the Supreme Court announced its dramatic unanimous decision: Segregation of children in America’s public schools, when authorized or required by state law, violated the U.S. Constitution, specifically the 14th Amendment’s guarantee of equal protection of the law. Chief Justice Earl Warren relied on scientific evidence in concluding that segregated schools promoted feelings of inferiority in black children. Because this reduced their motivation to learn, Warren and his fellow justices determined that segregated educational facilities were inherently unequal.

The Brown decision was one of the most important in the 20th century. More than any other case, it expanded the legal rights of African Americans. For the first time, many blacks saw that American justice system might actually help them achieve justice and equality. Robert Williams, a Marine Corps veteran and a civil rights leader, spoke for many: “On this momentous night of May 17, 1954, I felt that at last the government was willing to assert itself on behalf of first-class citizenship, even for Negroes. I experienced a sense of loyalty that I had never felt before.”
Following the Supreme Court’s Brown decision, the court continued to strike down legal segregation throughout the 1950s and 1960s. In a series of short opinions, the court outlawed segregation in buses, parks, public golf courses, and other places. In each case, the court cited the Brown opinion. It upheld the Civil Rights Act of 1964 and the Voting Rights Act of 1965. In 1967 in Loving v. Virginia, the court ruled that states could no longer outlaw people of different races from marrying each other. In that ruling, Chief Justice Warren noted that the Virginia statute, which the court declared invalid, did nothing more than endorse the doctrine of white supremacy. By the end of the 1960s, the court had ended all aspects of legal segregation.

The Supreme Court has continued to deal with issues related to race, such as affirmative action and discrimination in the criminal justice system. The court has developed a three-tiered system to deal with equal protection cases under the 14th Amendment.

In most circumstances, when a legislature passes a law that classifies people into groups, the law must only pass a simple test: Is the law reasonably related to a legitimate state purpose? (This is the “rational basis” test — the lowest level of scrutiny.) If the law is, then it is valid under the 14th Amendment. For example, a law that bans the sale of alcohol to minors serves a legitimate state interest of protecting the welfare of young people.

But if a law classifies people by gender, the court will examine it more closely. This is the second tier — sometimes known as “intermediate scrutiny.” The test for intermediate scrutiny is more demanding: Is the law substantially related to the achievement of an important government purpose?

If, however, the law classifies people by race or ethnicity, it is highly suspect and must be examined extremely closely. In the court’s terms, such a law merits “strict scrutiny,” the highest level of scrutiny. To survive strict scrutiny, a law must pass this test: Is the law necessary to achieve a “compelling state interest”? A compelling state interest is one that is most important and vital to society. Few laws can pass this test.

Although today’s court is more conservative than the Warren Court of the 1950s and ‘60s, there is no possibility of a return to legal segregation. The major expansion of legal rights that Charles Houston, Thurgood Marshall, and many other civil rights lawyers successfully fought for during the 1940s and 1950s will remain intact.

For Discussion and Writing

  1. What was the decision in Plessy v. Ferguson? Why was it important?
  2. Why do you think NAACP attorneys chose graduate schools as their first line of attack on the doctrine of separate but equal?
  3. Why do you think the court scrutinizes most closely classifications based on race and ethnicity? Do you think these classifications deserve more attention than others? Explain.

For Further Reading

Brook, Thomas. Plessy v. Ferguson. New York: St. Martin’s Press. 1996.

Medley, Keith Walden. We as Freemen: Plessy v. Ferguson. New Orleans: Pelican Publishing. 2003.

Kluger, Richard. Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality. New York: Vintage Books. 2004.

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