children. The laws of five other non-Confederate States either directly or by implication excluded colored children entirely from public schools. The thirteen remaining northern States either had no segregation laws or expressly prohibited segregation." In the South, with its agrarian-plantation economy and widely scattered population, the problem of school segregation did not arise before the Civil War. There were few public schools and few free Negroes residing in the slave States. Slaves, of course, were ineligible for free public education-and in most States the law forbade them to be educated at all. The children of the well-to-do were taught either by private tutors or in private academies. Despite the prodding of such leaders as Thomas Jefferson,' the ante-bellum South had shown little interest in free public education. As late as 1866, there was no effective statewide system of public education anywhere in the South, and only a few of the larger cities maintained free schools.8 Although segregation by law experienced modest beginnings in the South during the period of Presidential Reconstruction (1865–67) through the enactment of the "Black Codes," educational segregation was still of minor significance, since there were virtually no free schools in the South. The subsequent establishment of schools for Negroes by the Freedmen's Bureau under an Act of Congress passed in 1865 seems to have had an important bearing on the establishment of separate schools for whites and Negroes. Since the Bureau was concerned solely with helping Negroes, the 4,000 elementary schools it set up were necessarily segregated. They served approximately a quarter of a million pupils.10 The triumph of the Radical Republicans in Congress led, in 1867, to Congressional Reconstruction, resulting in the overthrow of existing State governments in the South and the establishment of carpetbag regimes backed by Federal troops. When the Fourteenth Amendment was ratified in 1868, Arkansas was the only Southern State that provided by statute for a segregated California, Kansas, Missouri, Nevada, New York, Ohio, Pennsylvania, and West Virginia. (Supplemental Brief for the U.S. on Reargument as Amicus Curiae, p. 90 n. 93, Brown v. Board of Education of Topeka, Kansas, 349 U.S. 294 (1955).) • Indiana, Illinois, Kentucky, Maryland, and Delaware. (Id. at 90.) Ohio by law excluded Negroes and mulattoes from the schools from 1829 to 1848. (Ohio Laws 1828-29, p. 72; Ohio Laws 1847-48, p. 81.) See note 3 supra, ibid. See note 3 supra, at 96. Notes on Virginia, Query 14. Harry S. Ashmore, The Negro and the Schools, p. 6 (2nd ed. 1954). Robert J. Harris, "The Constitution, Education and Segregation," 29 Temp. L.Q. 409 (Summer, 1956). See also Supplemental Brief, note 3 supra, at 15, 20. 10 Ashmore, op. cit. supra, note 7, at 9. public school system." Within a year after ratification of the Amendment, the Arkansas legislature reaffirmed the principle, and Alabama, Georgia, North Carolina, and Virginia passed compulsory school segregation laws. 12 In most of the State constitutional conventions held in the South during Reconstruction, the issue of segregation in public schools was hotly debated. Proposals were made to require or to prohibit separate schools.13 Among the segregationists was a Northern Negro representative to the North Carolina Constitutional Convention of 1868 who argued for separate schools. He voiced the observation that the colored people of the State generally preferred colored teachers and expressed the belief that the only way they could hope to have them was to have separate schools.14 Of the constitutions adopted during this period, seven contained no specific provision concerning segregated schools. The constitutions of Louisiana 16 and South Carolina "7 required integrated schools, and in Florida the requirement was implied.18 A Mississippi statute made their establishment optional.19 Mixed schools were actually tried in only a few places, in three States. Mississippi had a few of them for a brief period; then they withered away. Integrated schools were set up in Columbia and Charleston, South Carolina, but they survived only a short time and amounted to no more than white and Negro children attending separate classes in the same school building. The records reveal only one instance in Louisiana in which Negroes sought admittance to a white school; the incident was quickly ended when the Negro children were driven from the school by white pupils.20 The withdrawal of Federal troops from the South in 1877, which ended Reconstruction, was followed by the restoration of the old Southern white leaders to influence and power. Harry S. Ashmore "Ark. Laws 1866-67, No. 35, sec. 5. p. 100. Ark. Laws 1868, No. 52, sec. 107, p. 163; Ala. Laws 1868, p. 148 (Act of Board of Education); Ga. Laws 1870, No. 53, sec. 32; N.C. Laws 1868-69, ch. 184, sec. 50, p. 471; Va. Laws 1869–70, ch. 259, sec. 47. 18 See note 3 supra, at 98. Albert Coates, "The Background of the Decision," pp. 11-12, in The School Segregation Decision (by James C. N. Paul), Institute of Government, University of North Carolina, 1954. 15 See note 3 supra, at 98. La. Const. arts. 135, 136 (1868). 17 S.C. Const. art. X, sec. 10 (1868). Though Fla. Laws 1865, No. 12, ch. 1475 established separate schools for Negroes, the new State constitution, adopted in 1868, provided for "the education of all the children residing within its borders, without distinction or preference." Fla. Const. art IX, sec. 1 (1868). "Appendix to Supplemental Brief for the U.S. on Reargument as Amicus Curiae, p. 280, Brown v. the Board of Education of Topeka, Kansas, 349 U.S. 294 (1955). *Pierce, Kincheloe, Moore, Drewry & Carmichael, White and Negro Schools in the South, Prentice-Hall, Inc., 1955, p. 42. sums up the ensuing era with regard to public schools in the following passage: ... Out of that unsettled era emerged the rudiments of the public education system which still serves the South. . . . The principle of universal education written into the Reconstruction Constitutions survived when the Southern white returned to power, but everywhere the laws were changed to provide that the two races were to be educated separately." Thus those of the Reconstruction constitutions that either provided for school integration or omitted mention of the subject were drastically modified in the following year. Either under new constitutional provisions or by legislative enactments or both, compulsory segregation became entrenched in the South.22 In the case of Plessy v. Ferguson, which came before the Supreme Court in 1896,23 a Louisiana statute providing separate but equal accommodations for white and colored persons on railroads in the State was sustained as a reasonable exercise of the police power. Although this was a transportation case, Justice Henry B. Brown, in support of the Court's position, pointed out that laws separating white and colored children in public schools in many States had been generally, if not universally, sustained by the courts. He placed special emphasis upon the earliest of these cases, Roberts v. City of Boston,24 which sustained the separation of children by race in the schools of Boston as meeting the requirements of the Massachusetts constitution. The dictum of the Plessy case was taken as Federal approval of the separate but equal doctrine as applied to public schools.25 The sanction it gave was to prevail for the next 58 years, and the attending pattern of race relations still continues. In the other direction, thirteen Northern and Western States had by 1896 already either outlawed segregation in their schools or repealed laws requiring it.26 In the next 53 years, four more States 21 Ashmore, op. cit. supra note 8, at 9. Ala. Const. art. XII, sec. 1 (1875); Ark. Acts 1873, No. 130, sec. 108, p. 392; Fla. Laws 1887, ch. 3692, p. 36; Fla. Const. art. XII, sec. 12, (1885); Ga. Const. art. VIII, sec. I (1877); La. Const. art. 248 (1898); Miss. Laws 1876, ch. 113, sec. 8, p. 209; Miss. Laws 1878, ch. 14, sec. 35, p. 103; N.C. Const. art. IX, sec. 2 (1875); S.C. Const. art. XI (7) (1895);Tex. Const. art. VII, sec. 7 (1876); Tex. Laws 1876, ch. XIV, sec. 313; Va. Const., sec. 140 (1902). 23 163 U.S. 537 (1896). 24 See note 2 supra, at 198. 25 In law, a dictum is a judicial opinion or observation on a point other than the precise issue of the case at hand. It has no binding force in law, but may have a strong persuasive effect on other judges. See Black's Law Dictionary (4th ed., 1951), p. 541. 20 Calif. Code Ann. 1880, ch. 44, sec. 26, p. 47; Political Code 1880, sec. 26, p. 38. Statutes authorizing segregation of Indians, Chinese, Mongolians, and Japanese were repealed by Calif. Stats. 1947, ch. 737, p. 1792; Colo. Const. art. IX, sec. 8 (1876); Conn. Rev. Stat. 1888, sec. 2118; Idaho Const. art. IX, sec. 6 (1890); Ill. Rev. Stat. ch. 122, secs. 100102 (1874); Iowa, The Dist. Township of the City of Dubuque v. The City of Dubuque, 7 Iowa 262 (1858); Clark v. The Board of Directors, 24 Iowa 266 (1868); Mass. Laws 1855, ch. 256, p. 674; Mich. Acts 1881, ch. III, sec. 18, No. 164; Minn. Laws 1873, ch. I, sec. 47; N.J. Public Law 1881, sec. 1, p. 186; Ohio Laws 1887, p. 34; Penn. Public Law 1881, No. 83; R.I. Gen. Laws 1896, ch. 65. 27 followed suit, and in 1951 Arizona repealed its compulsory segregation law and adopted a permissive statute." 28 Two things would seem to be clear from the preceding summary: (1) Viewing our history as a whole, school segregation has been a national practice and not one unique to the South,29 and (2) In the South, separate schools were established as soon as Negroes were admitted to the public schools.30 APPLICATION OF THE "SEPARATE BUT EQUAL" DOCTRINE TO EDUCATION Although the Court had begun to insist as early as 1914 that the provision of separate transportation facilities for the races must be equal, it was not until 1938, in Missouri ex rel Gaines v. Canada 31 that it challenged the adequacy of separate educational facilities. It will be recalled that under the Plessy doctrine, school segregation is valid only if the separate facilities are equal. This requirement was largely ignored in the field of education prior to 1938.32 For four decades, the Court was able to avoid both the recognition of inequality within the pattern of segregation, and the application of equal protection to segregation, as such. This the Court could do because of the nature of the actions brought in the several cases coming before it. In the first school case 33 decided by the Court after Plessy, the abandonment by the local school board of a Negro high school in a Georgia community while continuing to operate the white school was held not to be a denial of equal protection of the laws. However, the Court seemed to lay more emphasis on its conclusion that the injunction sought by Negro taxpayers against the operation of the white school was not the proper legal remedy and, if granted, would in no way help the colored children. The fact of segregation was not challenged in this case. In 1908, the application to a private college of Kentucky's statute prohibiting the teaching of white and colored persons in the same institution amounted to no more than the withdrawal by the State of corporate privileges from one of its own corporations. Again the fact of segregation was not challenged. 34 Tacit acceptance of segregation came in 1927 in Gong Lum v. Rice,35 but still the Court did not meet the issue head-on, for here as in the Ind. Acts 1949, ch. 186, sec. 2, p. 603; N.Y. Laws 1900, ch. 492, secs. 1-2; Wash. Laws 1909, sec. 434; Wisc. Laws 1949, ch. 433. Ariz. Rev. Stat. Ann., sec. 15-442(b) (3) (1958). 163 U.S. at 545 (1896). 30 See Pierce, Kincheloe, Moore, Drewry and Carmichael, op. cit. supra note 20; Horace Mann Bond, The Education of the Negro in American Social Order, Prentice-Hall, 1934, p. 53. 1305 U.S. 337 (1938). See generally Louis R. Harlan, Separate and Unequal, University of North Carolina Press, 1958. Cumming v. Richmond County Board of Education, 175 U.S. 528 (1899). *275 U.S. 78 (1927). two preceding cases the fact of segregation was not challenged. In this case an American-Chinese girl, had sought to enter the white public school in her own district in preference to the Negro schools in another district. (No separate school for Mongolians existed.) The girl's counsel advanced this interesting argument: "The white race creates for itself a privilege that it denies to other races; exposes the children of other races to risks and dangers to which it would not expose its own children. This is discrimination." But the Court held that the plaintiff could be compelled, without denial of the equal protection of laws, to attend a school for colored children in a neighboring school district. Not being confronted with the issue of "separate but equal" in the first case coming before it and having successfully avoided it in the second case, the Court now seemed to take the position that established practice had foreclosed discussion of the problem. In this connection Chief Justice Taft said: "Were this a new question, it would call for very full argument and consideration, but we think it is the same. question which has been many times decided to be within the constitutional power of the State legislature to settle without intervention of the Federal courts." 36 Thus the "separate but equal" formula went unchallenged. For the sake of accuracy it should be pointed out that the precedents cited by the Chief Justice in support of his conclusion were fifteen State and lower Federal court decisions. The Supreme Court itself had never ruled directly on the issue of segregation and equal protection in public education. Actually, there had never been "full argument and consideration" of the question by the Supreme Court. The Court merely assumed that the cases cited had been rightly decided and held that Martha Lum could be forced to attend the school provided for the colored race. Thus, through an analogy between railroads and schools, embodied in a judicial dictum based on State cases which had been decided before the adoption of the Fourteenth Amendment, compulsory school segregation achieved a constitutional foundation. Beginning with the Gaines case, in 1938, the Court insisted on a more realistic test of equality in educational cases. But the change came gradually in more or less distinct steps until the Segregation Cases of 1954. First, there was a change of direction within the pattern of segregation by insisting on genuine, rather than fictitious, equality. In 1938, it was not enough for Missouri to provide a law school for whites and merely extend financial aid to its Negroes for legal education in neighboring, nonsegregated States. Then in 1948, 36 Id. at pp. 85-86. Missouri ex rel Gaines v. Canada, 305 U.S. 337, 349 (1938). 37 |