George E. Hardin

The United States is a nation of laws not of men and the law, as has been written, is what the judges say it is—ultimately the judges, or justices, of the U. S. Supreme Court. Next week marks the 54th year since the Supreme Court ruled, on May 17, 1954, in Brown v. Board of Education, that separate but equal public schools are illegal under the Constitution. It was an attempt to erase a glaring blemish on the American character that had been present since the founding of the republic. Still, today the blemish is smudged but not removed and equality in education is not yet a reality.

The court, under Chief Justice Earl Warren, said, “We conclude that in the field of public education the doctrine of ‘separate-but-equal’ has no place. Separate educational facilities are inherently unequal.”

In Brown, the court rejected the decision handed down in Plessy v. Ferguson in 1896 when it granted constitutional approval to segregation in places of public accommodation. Although Plessy was about segregated seating on a train and Brown related to public schools, they both set the tone for dialogue and litigation about race relations that persisted for years.

In Plessy, the sole dissenting voice was that of Justice John Marshall Harlan who rejected the majority view in writing the memorable words, “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.”

Years later, Chief Justice Charles Evans Hughes would write: “A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the Court to have been betrayed.”

In Brown, the “error” of Plessy was corrected but time would show that there was no justification for either the joy of those who felt Jim Crow was on its deathbed or the grief of those who thought integration was imminent. Attempts have been made to integrate schools and some have been successful. But in many cases, resegregation has taken place with the courts’ permission.    

It is ironic that Supreme Court Justice John Marshall Harlan, who sanctioned segregation in Plessy, was the grandfather and namesake of Supreme Court Justice John Marshall Harlan who sat on the Warren court and voted to outlaw segregation in Brown.

It is ironic also that Thurgood Marshall, after arguing as a lawyer in the Brown case,  would still be arguing on behalf of its implementation as a Supreme Court justice 20 years later. In Milliken v. Bradley in 1974, the court backed away from attacking racial imbalance when it held that integration could not be accomplished by busing students across district lines in the Detroit area.

However, Marshall dissented and wrote: “Our Nation, I fear, will be ill served by the Court’s refusal to remedy separate and unequal education, for unless our children begin to learn together, there is little hope that our people will ever learn to live together.”

School integration, in and of itself, is not the answer to all America’s racial shortcomings, but an equal education is still crucial for black children who must compete in an increasingly technological world. The larger issue is that employment, housing and health care are related topics that must be addressed to confront the inequalities that dog the footsteps of African Americans. The resolution of problems in these areas, to a large extent, also may depend on decisions by the court.

The current court, under Chief Justice John Roberts, who heads the court’s conservative wing, generally has ruled in favor of businesses over individuals and for the wealthy as opposed to the dispossessed. Clarence Thomas usually votes with the conservative bloc. In other rulings, the Roberts court also has given tacit approval to policies that allow majority constituents to maintain power at the expense of minorities.

Equality in education and the other areas mentioned are paramount for racial harmony. This harmony will come about only when there is an attitude of trust. Such trust can have a new beginning if blacks and whites can initiate candid discussions in which both sides can express their hopes as well as their concerns.

(George E. Hardin worked as a photographer, reporter and editor and in public relations during a long career before he retired. His column appears every other week.)