CRCLF Editorial Board, May 17, 2019, New Rochelle, New York

Sixty-five years after the U.S. Supreme Court announced its historic decision in Brown v. Board of Education, America continues to struggle with equitable and integrated education. In Brown, the Warren Court was abundantly clear that the “separate but equal doctrine” underlying segregation was not lawful and that substantially similar resources were nonetheless, unequal. But to understand the nation’s high court’s Brown decision is to understand how the high court would years later weaken Brown’s underpinning and the nation’s quest for meaningful integration and equality. The Separate But Equal Doctrine, originally outlined in Plessy v. Fergson, mandated that segregation was lawful no matter what amount of non-white genetic make-up one possessed, so long as resources were “substantially equal.”

Much like many citizens of many different countries who are currently citizens or residents of the United States, many of whom declare themselves to be “white,” Homer Plessy was of very little negro descent. The U.S. Supreme Court aptly described Mr. Plessy and his supporters arguments: “[t]he petition for the writ of prohibition averred that petitioner was seven-eighths Caucasian and one eighth African blood; that the mixture of colored blood was not discernible in him, and that he was entitled to every right, privilege and immunity secured to citizens of the United States of the white race; and that, upon such theory, he took possession of a vacant seat in a coach where passengers of the white race were accommodated, and was ordered by the conductors to vacate said coach and take a seat in another assigned to persons of the colored race, and, having refused to comply with such demand, he was forcibly ejected with the aid of a police officer, and imprisoned in the parish jail to answer a charge of having violated the above Act.”

Several things are clear from the U.S. Supreme Court’s decision in Plessy. First, no matter how little Mr. Plessy and his supporters (black and white) estimated his negro racial descent to be, it didn’t matter to the court, for any Negro blood was sufficient to be classified as such. Second, whether Mr. Plessy’s negro descent was discernible, was subjective. Although it was not discernible to Mr. Plessy and his supporters, the white conductor and police officer thought otherwise. Third, most remarkable is that throughout the High Court’s decision, although the white defendant’s entire name is stated, Mr. Plessy’s is not, despite having been the movant at each stage of the proceedings. Finally, the Plessy decision illustrates the U.S. Supreme Court’s endemic struggle to breathe life into the U.S. Congress’s enactment of the Thirteenth and Fourteenth Amendments of the United States Constitution since their inception.
Decided 58 years later, Brown was to go a long way toward breathing life into the Thirteenth and Fourteenth Amendments of the United States Constitution and ruling that separate but equal and substantially equal were unconstitutional. However, in San Antonio Independent School District v. Rodriguez, another case involving persons of color, the U.S. Supreme Court undermined its decision 19 years earlier in Brown, ruling that there is no inherent right to an equal education among the citizens and residents of the United States. Therefore, according to the High Court’s decision in San Antonio, the more affluent education provided for by locals with higher property taxes than those with lower property taxes did not violate the Equal Protection Clause of the Fourteenth Amendment.

While Brown had ruled that all citizens of America had a right to equal resource educations, and that near equal (whatever that may mean) was unconstitutional, the U.S. Supreme Court’s decision in San Antonio effectively reinstated Plessy, except in doing so it was not explicitly along race lines although tacitly that was the case since the more affluent property tax locals are all white and those with less property tax are substantially those of people of color. The result was that students of States who cared more about minorities, moved to mitigate the fallout from San Antonio, such as the State of New Jersey, wherein its high court ruled in Abbott v. Burke, that the State legislative body had to ensure that low-income school districts had comparable school funding. Nonetheless, 65 years later, the nation continues to struggle in providing adequate and comparable resources and funding for school districts providing for low-income and historically disadvantaged minority groups.

The question then is in a so-called enlightened time, what is the underlying resistance to the true abolitionment of desegregation and “separate but equal” or “separate but substantially comparable”?