Several readers e-mailed me to express some disapproval of Brown‘s relying on social science evidence for its rejection of “separate but equal.” Here’s one statement of the argument from someone whom I much respect, Dr. Thomas Sowell:
While Brown in effect overruled the 1896 Plessy v. Ferguson Supreme Court decision that racially “separate but equal” facilities were constitutionally acceptable, it avoided saying that Plessy was simply a wrong interpretation of the Constitution — that is, wrong in 1896 as well as wrong in 1954. Instead it relied on “modern” psychological knowledge, not available to the Court in 1896, to show how separate could no longer be considered equal.
This approach finessed the whole question of why the Warren court’s reading of the Constitution was superior to that of the 1896 Supreme Court, rather than simply reflecting a different social preference. Such a question would undoubtedly have stiffened the resistance to the Brown decision, which was stiff enough as it was in those states where racial segregation existed.
Chief Justice Earl Warren said that racially separate schools “are inherently unequal,” even when they were provided with the same tangible resources. To separate black children “from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”
Inspiring as such rhetoric may seem, it establishes no fact, nor even a probability. I happen to have been one of those black children who went to a segregated school in the South. The fact that there were no white kids in our school was something that no one I knew ever expressed any concern over, or even noticed. There were no white kids in our neighborhood or anywhere we went. Why would we be struck by the fact that there were no white kids in our schools — much less be so preoccupied with that fact as to interfere with our learning the three R’s?
As I understand it, some of the studies on which Brown has relied on have indeed been questioned. But it seems to me that Brown was both right to consider social science evidence, and to reach the result that it did as to deliberate, legally enforced racial segregation.
Let’s start with the background. The Fourteenth Amendment mandates “the equal protection of the laws,” and the Supreme Court early on recognized that the purpose of this was largely to prohibit race discrimination. But this left an important question: Does it violate “equal protection of the laws” when blacks and whites are required to use separate facilities?
As a purely abstract matter, the answer isn’t clear. On the one hand, blacks and whites are being treated unequally, in that one must go to one place and the other to another. On the other, if the facilities are indeed equal — in practice, they often weren’t, but assume (as the Court in Brown did, given the factual assertions made by the courts below) that they were equal or at least nearly equal — one can argue that this suffices to give blacks and whites equal practical benefits. For instance, we rarely think of separate bathrooms for men and women as even posing much of an equal protection problem; partly this might be because we’re just used to them, and partly because we rightly don’t think of sex classifications quite the same way that we think of race classifications, but it’s also largely because as a practical matter men and women are being given pretty much the same thing.
But it has been quite clear for a very long time that, unlike with separate bathrooms for the sexes, the system of racial segregation was largely intended as a means of expressing majority contempt for blacks, and majority views of the inferiority of blacks. That’s how it was intended, and that’s how it was perceived. The question is whether this reality was legally relevant.
The Plessy majority’s endorsement of “separate but equal” rested on the view that the social message of segregation was irrelevant:
We consider the underlying fallacy of the plaintiff’s argument to consist in the 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 by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.
This strikes me as quite unpersuasive, and it didn’t persuade Justice Harlan, either:
Every one knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons. . . . The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary.
The law, Harlan reasoned, “proceed[ed] 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[.] That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana.” It seems to me that he was correct. And he was also right to be attentive to the clear message that a law sends, rather than just its tangible effects. As the Titles of Nobility Clause recognizes, the social message of facially discriminatory laws that separate some out as superiors and other as inferiors is a wrong that it is proper for the Constitution to forbid. (See also Story’s Commentaries on the titles of nobiltiy.)
So the Brown Court was facing the same question that the Plessy Court: Is segregation inherently a violation of the requirement of “equal protection”? The Justices likely shared Justice Harlan’s sense of the matter, and they were right. The Plessy majority’s argument that “[if the law] stamps the colored race with a badge of inferiority . . ., it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it,” is just mistaken: The segregation of the races in America was intended to stamp blacks with a badge of inferiority, and was seen as doing so, precisely because of the racial classification embodied in the act, rather than “solely because the colored race chooses to put that construction upon it.” “[T]he Warren court’s reading of the Constitution” was indeed “superior to that of the 1896 Supreme Court” in this respect, because it was a more accurate understanding of the purposes and effects of the law.
But they sought to buttress their conclusion on the ultimate question — does segregation end up violating the requirement of equality? — by trying to also point to more concrete evidence that segregation didn’t just offend black schoolchildren, but impaired their education:
We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other “tangible” factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.
In Sweatt v. Painter, supra, in finding that a segregated law school for Negroes could not provide them equal educational opportunities, this Court relied in large part on “those qualities which are incapable of objective measurement but which make for greatness in a law school.” In McLaurin v. Oklahoma State Regents, supra, the Court, in requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangible considerations: “. . . his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession.” Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs:
“Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system.”
Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. [Footnote: K. B. Clark, Effect of Prejudice and Discrimination on Personality Development (Midcentury White House Conference on Children and Youth, 1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI; Deutscher and Chein, The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion, 26 J. Psychol. 259 (1948); Chein, What are the Psychological Effects of Segregation Under Conditions of Equal Facilities?, 3 Int. J. Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs, in Discrimination and National Welfare (MacIver, ed., (1949), 44-48; Frazier, The Negro in the United States (1949), 674-681. And see generally Myrdal, An American Dilemma (1944).] Any language in Plessy v. Ferguson contrary to this finding is rejected.
We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. . . .
This seems to me like an eminently sound form of argument: Common sense understanding that “To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone,” buttressed by psychological evidence that is consistent with this understanding. Again, one can agree or disagree with some items in the sources the Court cited. But it seems to me that the Court’s analysis was basically correct here, and its willingness to consider social science evidence that bears on the factual question of whether segregation does indeed send a harmful message of inferiority was quite legitimate.
I’m glad that Dr. Sowell paid no mind to the laws that were intended to brand blacks as inferior, and were understood by many as in fact conveying that message. But I can’t fault the Brown Court for taking the view that many black students would indeed pay attention to the legal constraints that were imposed on them. As Story wrote about the Titles of Nobility Clause,
As a perfect equality is the basis of all our institutions, state and national, the prohibition against the creation of any titles of nobility seems proper, if not indispensable, to keep perpetually alive a just sense of this important truth. Distinctions between citizens, in regard to rank, would soon lay the foundation of odious claims and privileges, and silently subvert the spirit of independence and personal dignity, which are so often proclaimed to be the best security of a republican government.
It seems to me quite reasonable to interpret the guarantee of “equal protection of the laws” — with the help both of common sense and psychological research — as recognizing the similarly harmful effects of “[d]istinctions between citizens, in regard to [race].”
Incidentally, I think there’s much to criticize about post-Brown developments having to do with, for instance, forced busing; as I mentioned before, I certainly don’t endorse race preferences; and, as I also mentioned before, one can also argue whether Brown (and especially its companion case, Bolling v. Sharpe, which struck down segregation by the federal government) are sound as a matter of original meaning. But I think that the particular criticisms of Brown that I mention above are not sound.
UPDATE: See here for more on Plessy from Clayton Cramer.
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