Two Supreme Court Decisions: One Terrible, One Terrific

What’s
Wrong Today:

The
anniversary of two Supreme Court decisions that changed America occur this
week, and neither were by John Roberts or Antonin Scalia.

The
first decision did not change the country for the better. That decision was Plessy v. Ferguson. It was decided 118 years ago, on May 18, 1896. The
decision set the precedent that “separate” facilities for blacks
and whites were constitutional as long as they were “equal.” The
court interpreted the 14th Amendment in such a way that equality in the law
could be met through segregated facilities.

The
“separate but equal” doctrine was quickly extended to cover many
areas of public life, such as restaurants, theaters, restrooms, and public
schools. Unfortunately, the separate facilities and institutions accorded to
African Americans were consistently inferior to those provided to
the White community and contradicted the vague declaration of “separate
but equal” institutions issued after the Plessy decision.

Plessy is regarded as one of the most
notorious Supreme Court rulings in US history, often grouped with Dred
Scott v. Sandford (which held that people of African descent are not
protected by the Constitution). But
where it took a civil war and subsequent Constitutional amendments to overturn Dred
Scott, Plessy was reversed only after another Supreme Court decision,
Brown v. The Board of Education of Topeka, Kansas.

This
week (May 17) is also the 60th anniversary of the Supreme Court
decision in Brown v. The Board of Education. In Brown, the Court found that
separate is inherently unequal – even if the school facilities and
teachers are of equal quality – because
the segregation policy itself is usually interpreted as denoting the
inferiority of the [African American] group.

Ironically,
announcement of the Brown decision came on the 58th
anniversary of Plessy v. Ferguson, the very case Brown overturned.

After
Plessey, Jim Crow laws were passed
throughout the South. They established separate facilities for Blacks and
Whites in everything from schools to restrooms, drinking fountains to witness
stands in courtrooms. African American community leaders who had achieved political
success during the Reconstruction era lost any gains made when their voters
disappeared.

Historian
Rogers Smith wrote about the Jim Crow laws in Civic
Ideals:

lawmakers
frequently admitted, indeed boasted, that such measures as complex registration
rules, literacy and property tests, poll taxes, white primaries, and
grandfather clauses were designed to produce an electorate confined to a white
race that declared itself supreme, notably rejecting the 14th and 15th Amendments
to the American Constitution

The
Civil Rights movement during the first 50 years of the 20th Century
accepted this policy of “separate but equal” in its struggle to gain access for
people of color into the society. They fought in many communities for equal pay
for teachers and for equal school facilities. It fought for equal libraries,
recreational facilities, and health services.

For
more than 50 years, Plessy defined
the terms of that struggle.

Although
many believe that the case of Brown v.
Board of Education actually overturned Plessy,
the Cornell Law School reports that the
opinion of the case clearly stated that Brown
found Plessy to be inappropriate only in the area of public education.

Plessy v. Ferguson was never overturned by the Supreme
Court; codified and legal segregation was finally banned by the Civil Rights
Act of 1964.

For
some, the Brown decision allowed proponents for better opportunities for
Blacks to fight for positive gains and full equality. But the fact that there
were few means to implement these decisions became clear when it became obvious
that few gains were achieved. By 1960, a new student-led Civil Rights movement
was formed.

Where
the Supreme Court’s Plessy majority
ignored a plea for empathy and was unwilling (or unable) to consider the case in
its full social and historical context, the Supreme Court in Brown listened, and offered an effective
rebuttal to Plessy’s reliance on abstractions. In Brown, the Supreme Court expressly grounded its reasoning in the world
in which it, and the parties lived.

In
other words, the reasoning in Plessy and
Brown can be divided along the lines
of context and empathy, with Plessy a
failed decision made in an intellectual vacuum, and Brown as the rejection of judicial decision-making in a vacuum.

Sound
like today’s Court to you?

There
will be millions of words analyzing the Brown decision this week. Some, like
the Wall
Street Journal see a triumph:

The
promise of Brown v. Board of Education has been fulfilled. Nothing
resembling the Jim Crow South has re-emerged, and it never will. On Saturday we
should celebrate a truly heartening American success story

Others
see an unfinished job. The WaPo’s WonkBlog
reports
that 60 years on, Brown v. Board of Education has largely yielded parallel
progress and disappointment:

Black
student achievement has increased, but the minority achievement gap has
persisted. Resources spent on black and white children have narrowed substantially,
but their educational outcomes have not. Researchers have learned much more
about why truly integrated schools
matter

WaPo
says that since the 1970s, integrated schools have actually
been disappearing, while residential
racial segregation in the US has
steadily declined, segregation among school-aged children has increased. So, in
the communities where they live, black and white children, as well as the poor
and non-poor, are more isolated from
each other than adults in the US population at large.

Further, UCLA’s
Civil Rights Project report, Brown
at 60 shows that relying on Brown
may not be enough:

And
it’s no longer just a black-and-white issue:

Latinos
are now the largest minority group in public schools, surpassing blacks. And
about 57% attend schools that are majority Latino

In
New York, California and Texas more than half of all Latino students go to
schools that are 90% minority or more

The
South now is the least segregated section of America. Outside of Texas, no
Southern state is in the top five in terms of most segregated for black students

In
New York, Illinois, Maryland and Michigan black students attend schools where
90% or more are minority

While
racial discrimination remains a factor, other forces are in play. Educated
parents with means have flocked to suburban districts and schools with the best
reputations for decades. In the South, many school districts encompass both a
city and the surrounding area, and that has led to better-integrated schools.

Still,
around the country, only 23% of black students attended white-majority schools
in 2011. That’s the lowest number
since 1968, despite the WSJ’s
feel-good thinking.

At
the same time, there’s been a demographic change in public schools. Between
1968 and 2011, the number of Hispanic students in the public school system rose
495%, while the number of black students increased by 19% percent and the number
of white students dropped 28%, according to the Education Department.

Segregation
will always exist.

Some
segregation today is self-imposed. Some occurs because of the end of busing to achieve
racial balance. Some is driven by economic circumstances.

58
years after Plessy, the Brown decision was a
triumph for a civil society.

Today, it hardly seems to have been enough for our
minority student populations.