ANALYSIS Kilili Nthiw’a 27 May 2022
“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.”
On May 17, 1954, the Supreme Court of the United States, in Brown, issued a unanimous 9–0 decision in favour of the Brown family and the other plaintiffs. The decision, which consists of a single opinion written by Chief Justice Earl Warren, that was agreed to by all the justices, has been hailed as a landmark decision that changed America for the better and forever.
In this blog entry, I seek to interrogate the exercise, and the extent thereof, of judicial power by the United States courts in the re-construction era, leading to the (in)ability of the courts to put to an end the manifest racial segregation, then witnessed in the United States, and to further provide an entry point for discussion in respect of the role of the courts in similar incidences in other geographies, in other periods of time, in the longing for an anti-racist world.
Plessy v. Ferguson: A Cosmetic and Ornamental Fourteenth Amendment
The Fourteenth Amendment (Amendment XIV) to the United States Constitution, adopted on July 9th, 1868, was one of the reconstruction amendments and is often considered one of the most consequential ones, as it addresses citizenship rights and equal protection under the law for all persons.
Under the amendment, all citizens of the United States, whether by birth or naturalization, were equal and states were prohibited to make or enforce any law which abridged the privileges or immunities of citizens of the United States; or deprived any person of life, liberty, or property, without due process of law; or denied any person within its jurisdiction the equal protection of the laws (interpolation mine). This clause inevitably came to be known as the “equal protection clause”.
In Plessy vs. Ferguson, the statute of Louisiana, Acts of 1890, c. 111, required railway companies carrying passengers in their coaches in that State, to provide equal, but separate, accommodations for the white and “coloured” races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations.
The petitioner, Homer Adolph Plessy, who had been arrested and arraigned for violation of this law, unsuccessfully challenged this racist law and the finding of Judge Hon. John H. Ferguson, judge of the Criminal District Court for the parish of Orleans, before the Supreme Court of the United States. The outcome was a decision that embraced the idea that “separate but equal” treatment for white people and African-Americans is permissible under the Fourteenth Amendment. The doctrine of “separate but equal” was thus established.
It has been argued that in this case, the United States Supreme Court misused its power to interpret the Constitution in order to dig a deep-rooted line of inequality between the people of the country. It watered down Section 1 of the Fourteenth Amendment and effectively reduced it to a cosmetic and ornamental provision of the Law. The provisions of Section 1 of the Fourteenth Amendment were clear and unambiguous, and it has been argued that the decision above was arrived at because the SCOTUS was not ready, at that time, to pronounce itself clearly on such a “paramount issue of segregation”, although it hid behind the cloak of “avoiding assuming the powers of the legislature”.
Brown v. Board of Education of Topeka: Towards a More Purposive Interpretation
Chief Justice Earl Warren is widely regarded as one of the most progressive American jurists of the 20th century, and it is therefore not serendipitous that he led a bench of nine justices of the SCOTUS in unanimously overturning the “separate but equal” doctrine from Plessy v. Ferguson that had permitted separate schools for white and “coloured” children provided that the facilities were equal.
As to the facts, the cases in question were consolidated arising out of class action suits from the States of Kansas, South Carolina, Virginia, and Delaware, premised on different facts and different local conditions, but a common legal question. Justifying their combined consideration was that in each of the cases, African-American minors, sought the aid of the courts in obtaining admission to the public schools of their community on a non-segregated basis. In each instance, they had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment.
In its judgement on May 17, 1954, 60 years after Plessy, the court found that, in the field of public education, the doctrine of “separate but equal” had no place and that the plaintiffs and others, are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.
In Brown II, the Court announced a decision outlining its plan for implementing racial desegregation in the schools taking a cautious approach, remanding the cases to district courts with orders to integrate the schools “with all deliberate speed”.
This decision received a ringing endorsement from US senators and politicians, especially none other than the former president George Bush who in 2004, on the occasion of the decision’s 50th anniversary, called it a landmark judgment that changed America for the better and forever.
The African-Americans had therefore endured 60 years of racial segregation and hurt, and although the SCOTUS did not make immediate orders for desegregation, nor overturned the whole of the decision in Plessy, it, de facto, made it ineffective. This was a more purposive interpretation of the Fourteenth Amendment which gave the provisions thereof the requisite bite, upgrading them from the cosmetic and ornamental nature accorded to them in Plessy.
The Varied Reasoning and (In)ability of the Courts in Plessy and Brown
The Court in Plessy reasoned that laws requiring racial separation were within Louisiana’s police power, which is the core sovereign authority of U.S. states to pass laws on matters of “health, safety, and morals” and further held that as long as a law that classified and separated people by their race was a reasonable and good faith exercise of a state’s police power and was not designed to oppress a particular class, the law did not violate the Equal Protection Clause of the Fourteenth Amendment.
Additionally, state legislatures had the broad discretion to determine the reasonableness of the laws they passed. This effectively gave the legislatures a broad “margin of appreciation” in respect of the power, that ostensibly was unsupervised. It is the failure of the Supreme Court to interrogate the extent of such powers to legislate that made the 1896 decision in Plessy a racist one especially since it was the first major inquiry into the meaning of the equal-protection clause. The court was therefore unable to interpret the amendment to give it its full effect and the effect was continued racial segregation for a period of close to 60 years.
On the other hand, the court in Brown is credited for adopting a more purposive approach, interrogating the history of public education and the effects of separate schools for separate races, notwithstanding the equality of the facilities therein. As a matter of evidence, and in arriving at the decision, the Court found support for its decision in studies that indicated that minority students learn better in diverse classrooms. This purposive approach inevitably led to the finding that the doctrine of “separate but equal” was not applicable inpublic education, a progressive finding that made the case a locus classicus one. The decision, no doubt influenced the thinking of the US Supreme Court two years later in a case arising out of the racist laws in Montgomery, Alabama which the Montgomery bus boycotts were attributed to.
Conclusively therefore, the inevitable finding here is that, in the quest or while longing for an anti-racist word, the courts have a significant role to play, as the final arbiters of facts and interpreters of the law with respect to what amount to racist antecedents and what does not. The inability of the courts to pronounce themselves boldly on matters touching on racism has had adverse effects of the maintenance of a racist status quo, while conversely, the ability thereof has led to progressive decisions that have mitigated racial segregation and the effects thereof. In a racist world therefore, it always falls to the interpretation of the law by the courts of the law based on the legal regime. A clear interpretation thereof would be of help, noting that most of the current laws abhor racism, and therefore, at least on paper, racism is discouraged. All that is left therefore is for the courts to purposively interpret the law. This purposive interpretation, as envisaged, would be one big step ahead in the quest for an anti-racist world, a step we need to take sooner rather than later.
Kilili Nthiw’a is a Sports Lawyer, Reader in European Union Law, Independent Researcher and a DAAD Legal Scholar at the Tanzanian-German Center for Eastern African Legal Studies at the University of Dar es Salaam.
 Chief Justice Earl Warren in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), .
 Full Citation: Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).
 <https://georgewbush-whitehouse.archives.gov/news/releases/2004/05/20040517-4.html> accessed 22 May 2022.
 Section 1 of The Fourteenth Amendment (Amendment XIV) to the United States Constitution.
 Full Citation: Plessy v. Ferguson, 163 U.S. 537 (1896).
 <https://www.britannica.com/topic/separate-but-equal>. accessed 22 May 2022.
 <https://georgewbush-whitehouse.archives.gov/news/releases/2004/05/20040517-4.html.> accessed 22 May 2022.
 A nation’s margin of appreciation is the discretion given to it to exercise its powers in respect of matters that are not of uniformity. See the case of HANDYSIDE v. THE UNITED KINGDOM Application 5493/72(ECHR 1976).
 <http://law2.umkc.edu/faculty/projects/ftrials/conlaw/sepbutequal.htm.> accessed 22 May 2022.
 See also the case of Browder v. Gayle, 352 U.S. 903.