The Journal of The DuPage County Bar Association

Back Issues > Vol. 16 (2003-04)

DCBA Writing Contest Winner
Brown: A Big Step in America’s Slow Journey To Equality
By Mark E. Turek

Commemorations are more deeply appreciated and respected when understood in full context. Understanding the significance of Brown v. Board. of Education1 requires a grasp of U.S. history surrounding the case. Brown’s historical context extends back to America’s beginnings in legal history with the signing of the Declaration of Independence, a nationally celebrated historic event. However, understanding and appreciation also includes the lesser-known past of the actions of individual citizens and lawyers who shaped this nation’s social and legal fabric by setting the stage for the national historic events that followed. Brown is such an historic event. The case is a fulcrum point in American history upon which the outlook of the Civil Rights movement tilted from one of despair to one of hope.

Brown is a case rooted in slavery. It was birthed from a nation’s womb scarred by the social and legal conditions that permitted one man to own another. In 1851, a female author used her pen to seize national attention through her widely read book, Uncle Tom’s Cabin. An excerpt from that book provides a snapshot of America’s plight:

This cursed business [slavery], accursed of God and man, what is it? Strip it of all its ornament, run it down to the root and nucleus of the whole, and what is it? Why because my brother Quashy is ignorant and weak, and I am intelligent and strong, - because I know how, and can do it, - therefore, I may steal all he has, keep it, and give him only such as suits my fancy. Whatever is too hard, too dirty, and too disagreeable, for me, I may set Quashy to doing. Because I don’t like work, Quashy shall work…..Quashy shall do my will, and not his, all the days of his mortal life, and shall have such chance of getting to heaven, at last, as I find convenient. This I take to be about what slavery is. I defy anybody on earth to read our slave-code, as it stands in our law books, and make anything else of it.2

Stowe’s poignant portrayal of the grotesque reality of slavery at the human level awoke the moral consciousness of an increasing proportion of the country. Her book held a mirror to a conflicted nation; a nation on a political collision course with its founding because its Constitution and subsequent laws, such as the Fugitive Slave Act of 1793, denied freedom and equality because of race. Even Justices with personal convictions opposed to slavery, like Joseph Story,3 did their proper duty and applied unbiased jurisprudence in deciding cases like Prigg v. Pennsylvania4 which upheld the constitutionality of the Fugitive Slave Act. The people spoke through the Missouri Compromise of 1850 to change the law by passing legislation to limit slavery’s expansion but their voice was quashed in 1857.

Chief Justice Taney settled the political question of the right of the people to limit slavery’s expansion in his historic decision in Dred Scott v. Sanford.5 Interpreting the Constitution and intent of the founding fathers, Taney concluded that African-Americans were beings of an inferior race and unfit to associate with the white race.6 They had no rights that the white man was bound to respect.7 Taney’s opinion held that Scott was not a citizen of Missouri because the Constitution did not contemplate citizenship for slaves and a state could not confer rights to a slave not authorized in the Constitution.8 Therefore, the lower court lacked jurisdiction in the matter.9 Justice Taney went on to go beyond the issue before the Court by exercising the power of judicial review to overturn the legislative mandate of Congress as expressed in the Missouri Compromise.10 This was only the second time, since Marbury v. Madison fifty-four years earlier, that the Court wielded the power of judicial review.11

As these events unfurled in the 1850’s, Abraham Lincoln, a prairie lawyer from Illinois, reflected back on America’s birth declaration in a speech in Springfield, Illinois on June 26, 1857:

In those days, our Declaration of Independence was held sacred by all, and thought to include all; but now, to aid in making the bondage of the Negro universal and eternal, it is assailed, and sneered at, and construed, and hawked at, and torn, till, if its framers could rise from their graves, they could not at all recognize it. They have him in his prison house; they have searched his person, and left no prying instrument with him. One after another they have closed the heavy iron doors upon him, and now they have him, as it were, bolted in with a lock of a hundred keys.12

America’s blood atonement for slavery followed not long after Mr. Lincoln’s speech. The Civil War cost more than 620,000 lives.13 The shedding of this blood made possible the passage of the Civil War amendments and laid the constitutional foundation that helped make Brown possible, albeit far too many years afterward.

The political conclusion of the Civil War certainly did little to change the nation’s attitudes on race. Lincoln’s assassination bore testimony to the fact that America had much to endure before all her people would experience the new birth of freedom proclaimed so eloquently in his Gettysburg’s Address: "It is for us, the living, rather to be dedicated here to the unfinished work which they have, thus far, so nobly advanced."14 Brown was part of the unfinished work.

Plessy v. Ferguson15 came down 39 years after Taney’s infamous decision in Dred Scott. Without Plessy, there could be no Brown. The Court held that Plessy, who claimed to be 7/8’s Caucasian, could be criminally prosecuted under an 1890 Louisiana statute calling for separate accommodations for the white and colored races when he refused to leave a passenger train coach reserved for whites.16 The majority of the Court found the Louisiana statute reasonable stating:

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 on it.

In his dissent in Plessy, Justice Harlan set forth his reasoning; a belief that would remain dormant for over half a century until resurrected to new life by Chief Justice Warren’s Court in Brown:

But in the view of the constitution, in the eye of the law, there is in this country no superior, dominate, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among its citizens. In respect of civil rights, all citizens are equal before the law….The destinies of the two races, in this country, are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law.

Between Plessy in 1896 and Brown in 1952, came a number of cases dealing with equality of education at the collegiate level.17 These cases were a preamble for Brown. They set forth the argument that separateness in education was inherently unequal. In these cases, African-Americans seeking higher educational opportunities were expected by state statutes to seek these opportunities in black schools even if it meant going out-of-state or hurriedly founding an in-state black school to comply with the separate but equal standard. Equality was defined by quantitatively measured tangible factors (buildings, classrooms, library volumes, number of professors), rather than the quality of education afforded. By 1950, the Court was beginning to hold that state universities had to admit African-American students because the gap between the facilities of African-American universities and state universities was unmistakable.18

The impetus behind many of these cases leading up to Brown was Thurgood Marshall and the NAACP.19 Brown did not come about by chance or accident. A sufficient number of dedicated attorneys and supporters resolved to bring an end to racial discrimination in education through the legal system. They represented racially discriminated plaintiffs who sought equal treatment under the law. Their unrelenting efforts in bringing lawsuits in many state courts through the 1930’s and 1940’s created the ground swell of momentum for justice that culminated in the Supreme Court’s decision in Brown.

The racial prejudice rooted in the nation’s founding was still pervasive in the early 1950’s in post World War II America. Amidst this pernicious racial bias, Justice Warren’s Supreme Court took up the issue of equality of education in cases emanating from South Carolina, Virginia, Delaware, and America’s heartland, Kansas. These cases went before the Court because dedicated people with deep convictions associated with the NAACP and other groups, including an abundant number of organizations submitting amici briefs, demanded to be heard. Their toil and effort, carried out in many instances under the very real threat of death throughout the South, caused a legal ground swell that compelled a fresh look at a very old problem.

The plaintiffs in the state cases contended that the public schools were not equal and could not be made equal, and they and maintained that this disparity deprived them of the equal protection guaranteed by the Fourteenth Amendment.20 The 1896 legal precedent of Plessy certainly stood in the way of change. Plessy and its progeny firmly established constraints upon the Court. The legal precedent firmly sustained that segregation was constitutional, provided that the segregated facilities were equal. A fixed legal roadmap was in place that declared it was constitutional for the states to segregate the races by law because doing so reasonably furthered state objectives. A detour from this roadmap required the Court to at least partially overturn Plessy.

One of the very noteworthy aspects of Brown is the rather scant amount of legal argument. Re-argument had taken place in 1953, focusing largely on the circumstances surrounding the adoption of the Fourteenth Amendment in 1868 and whether it, or its legislative history, spoke to the issue of segregated education. The Court concluded that the argument was not enough to resolve the problem.21 The Court went on to add that the status of public education at the time of the Fourteenth Amendment was inconclusive regarding its impact on the races and education.22 The Court proffered that in 1868: (1) the education of white children was largely in the hands of private schools (not public); (2) almost all African-Americans were illiterate; (3) tax supported public schooling had not yet taken hold in the South; and (4) some state laws at the time still made African-American education unlawful.23 These statements and observations by the Court established, at least to the Court’s satisfaction, that the Fourteenth Amendment had not contemplated equality of education.24

Turning next to the problem of stare decisis posed by Plessy, the Court pointed out that Plessy was really a transportation case and not an education case.25 The Court acknowledged that the education cases that came before it between the time of Plessy and Brown, but claimed that the Court expressly reserved the decision on whether Plessy should be held inapplicable to public education in its 1950 deliberations of Sweat v. Painter.26 Now, in Brown, the Court stated that the unanswered question of Plessy raised in Sweat could be addressed because the Court now had findings below that the schools had been equalized in their tangible factors such as buildings, curricula, salaries, and qualifications.27 With tangible factors equalized, it was the Court’s duty to examine the more intangible factor – the effect of segregation itself on public education.28 The Court justified this approach because it concluded there was insufficient legal history of legislative intent from the time of the passage of the Fourteenth Amendment to resolve the problem.29 Since that history was not available, the Court concluded that it must consider the effect of segregation itself on public education.30 This consideration included not only segregation’s history, but also its present place in American life everywhere in the United States.31

The Court stated that although the tangible factors may be equal in segregated education, differences in intangible factors denied minorities an equal education.32 The Court cited to Sweat that "those qualities which are incapable of objective measurement"33 made a difference, and to McLaurin that "his [Negro] ability to study, to engage in discussions and exchange views with other students"34 intangibly made the African-American’s education unequal if segregated. Then, in footnote 11, the Court anchored its decision to modern psychological authority (not the law) and noted that such modern data was not available at the time of Plessy.35 To the extent that this modern scientific social knowledge contradicted Plessy, Plessy was overruled.36 The Court had now announced that segregation was a denial of equal protection of the laws, but the Court narrowly limited its holding to the field of public education.37 Segregation in private schools or public buses, trains, theaters, drinking fountains, swimming pools, and restrooms was still lawful. Such conduct was not yet a denial of equal protection.

Why did the Court decide as it did? I believe the Court weighed heavily the fundamental injustice taking place in the nation because, to a large extent, the social data compiled in footnote 11 and relied upon by the Court was really a reflection of the unjust results of segregated education. The Court decided to act on this report card of the nation’s past conduct and make right a past injustice. Ninety-five years earlier in Dred Scott, Justice Taney stretched the Court’s reach and wielded the power of judicial review to overturn the Missouri Compromise, an issue arguably not before the Court in that case, circumventing the power of another branch of the federal government. To those who would argue that the Court in Brown reached its conclusion improperly by going beyond its judicial constraints in relying on social science studies rather than the law (and I would tend to agree), it may be an example where two wrongs in legal history ended up making something right. Slavery and the racial discrimination that naturally followed are inextricably intertwined in our nation’s culture, society, institutions and the laws that they spawned. That the politics and law, at both the state and federal level, should overlap and intertwine with one another is a natural consequence. The Warren Court struggled with all of this to reach its holding. However, reaching a holding in Brown was one matter, fashioning and implementing a workable remedy was quite another.

In May 1955, the Court structured an equitable remedy set forth in Brown II 38 as the country continued its slow journey toward equality. Ultimately, implementation of the holding in Brown would be carried out in state schools and before local school boards throughout the United States. State and federal courts would provide oversight. The Brown II Court stated that the burden of compliance rested upon the defendants and required good faith implementation "to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases."39 A national event in August of the same year, although not directly related to school desegregation, would along with Brown lead to the modern Civil Rights Movement thereby catapulting equal rights beyond the narrow holding of education.

In August 1955, fourteen year-old Emmett Till left Chicago in the North to visit relatives in the South, in Money, Mississippi. Staying in a sharecropper’s shack with his great uncle outside Money, Emmett was unfamiliar with the Jim Crow segregated south. Many in the South thought the Supreme Court threatened their way of life and the Brown decision escalated the tension. On a dare from friends, Emmett whistled at a white woman. At 2:30 Sunday morning August 28, 1955, the woman’s husband and his half-brother showed up to teach Emmett a lesson. His body was found three days later in the Tallahatchie River. 40

When Emmett’s bloated and beaten body was returned to Chicago, his mother, Mamie, demanded that his funeral service be conducted with an open casket. When thousands turned out to attend his funeral on Chicago’s South Side, Emmett’s compelling tragic story forcefully captured national media attention.41 The gruesome photos of his broken body testified to America’s still present malignancy. With the same moral outrage of Harriett Beecher Stowe 103 years earlier, courageous Mamie Till-Mobley spoke to the nation in 1955, not through a book, but through her son’s shed blood.

An all white Mississippi jury acquitted the two white defendants in little over one hour. In a futile attempt to camouflage the truth of the racially motivated killing, Mississippi Governor, Hugh White stated, "This is not a lynching. It is straight out murder."42 Three months later, Rosa Parks refused to surrender her seat on a segregated bus, spawning the Montgomery Bus Boycott and the emergence of Dr. Martin Luther King Jr.

Brown is a pivotal case in this country’s history. Its underlying issues and jurisprudence reach back in history to the Declaration of Independence, Constitution, Fugitive Slave Act, Dred Scott decision, and Plessy. Brown and the social reform it propagated was a clarion call to the nation to take a hard and painful look at equality and civil rights in all aspects of American life, not just education.

Our history since the 1952 Brown decision has at least shown the decision to be a just, fair, and reasonable outcome, benefiting all Americans, even if arguably achieved by a "reaching" Supreme Court. I did not begin to understand the importance of diversity in education until I began my law school education. The diversity of my law school class enriched my educational experience and made me both a better person and a better lawyer, hopefully better able to walk in the footsteps of those who laid the groundwork for Brown v. Board of Education. Because we are, as Justice Harlan stated in his Plessy dissent, indissolubly linked together in our destiny.

1 Brown v. Bd. of Educ. (Brown I), 347 U.S. 483 (1954).

2 Harriet Beecher Stowe, Uncle Tom’s Cabin or, Life Among the Lowly, Chapter 19, 11 (2 ed. 1864).

3 Dale A. Nance, Law and Justice, 19-20 (2 ed. 1999).

4 Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 10 L.Ed. 1060 (1842), holding that Pennsylvania law was constitutionally invalid in interfering with the rights of slaveholders to retrieve their property from states opposed to slavery.

5 Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 15 L.Ed. 691 (1857).

6 Dred Scott, 60 U.S. (19 How.) at 407.

7 Id.

8 Id. at 406-07.

9 Id. at 427.

10 Id. at 432-52.

11 Geoffrey R. Stone, Constitutional Law, 501-505 (3rd ed. 1996).

12 Speech by Abraham Lincoln in Springfield, Illinois June 26, 1857, in 2 The Collected Works of Abraham Lincoln, 398-410, at 404 (Roy P. Basler ed.) (1953).

13 James M. McPherson, Battle Cry of Freedom 854 (1988).

14 Benjamin P. Thomas, Abraham Lincoln 402 (1st ed. 1952).

15 Plessy v. Ferguson, 163 U.S. 537, 551 16 S. Ct. 1138 (1896).

16 Plessy, 163 U.S. at 538.

17 See Berea College v. Kentucky, 211 U.S. 45 (1908); State of Missouri Ex Rel. Gaines v. Canada, 305 U.S. 337 (1938); Sipuel v. Board of Regents, 332 U.S. 631 (1948); Fisher v. Hurst, 333 U.S. 147 (1948); Sweat v. Painter, 339 U.S. 629 (1950); and McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950).

18 Sweat, 339 U.S. at 636.

19 See Richard Kluger, Simple Justice (2nd ed. 1977) for an in-depth understanding of Brown and the people and events leading up to Brown.

20 Brown, 347 U.S. at 488.

21 Id. at 489.

22 Id.

23 Id. at 490.

24 Id. at 492.

25 Id. at 491.

26 Id. at 491-92.

27 Id. at 492.

28 Id.

29 Id. at 489-90.

30 Id. at 492-93.

31 Id.

32 Id. at 493-94.

33 Id. at 492.

34 Id.

35 Id. at 494-95.

36 Id.

37 Id. at 495.

38 Brown v. Bd. of Educ. (Brown II), 349 U.S. 294 (1955).

39 Brown, 349 U.S. at 300-01.

40 See Mamie Till-Mobley & Christopher Benson, Death of Innocence: The Story of the Hate Crime That Changed America (2003) for the details of this tragedy.

41 Id. at 128-48.

42 Chris Crowe, The Lynching of Emmett Till, The History of Jim Crow, at (last visited Jan. 3, 2004).

Mark E. Turek was co-owner of a manufacturing business in Warrenville for 14 years, until November 2003 when the business was sold. He completed his law degree in the IIT-Chicago Kent College of Law evening program in January 2003 and passed the bar in May 2003. He received his Bachelor of Science, Electrical Engineering, from the University of Illinois (High Honors) 1971. His MBA, Finance, from Northwestern University, 1977.

DCBA Brief