1. Lecture 37 Discrimination I
Separate but Equal; Early Challenges to Plessy

2. This Lecture Pages 609-618 1896 Supreme Court Separate but Equal
Plessy v. Ferguson (1896)
Sweatt v. Painter (1950)
1896 Supreme Court

3. Dred Scott v. Sanford (1857) Dred Scott v. Sanford (1857)
Court mentions the inferiority of blacks was the founder’s intent
Slaves nor their descendants were ever intended to be able to become citizens
States can grant what rights they want or do not want
Blacks were an “unfortunate race”
The Court also declared the Missouri Compromise unconstitutional
Legalized slavery in the territories
Helped bring about the conditions for the Civil War

4. Court response to Reconstruction Acts
The Reconstruction Amendments reverse Dred Scott
But how broadly will they be interpreted
The Slaughterhouse Cases (1873)
Narrow interpretation of the privileges and immunities clause
United States v. Harris and In re Civil Rights Cases (1883)
Nullified parts of the Ku Klux Klan Act of 1871 and Civil Rights Act of 1875

5. Southern Response to the End of Reconstruction
The Compromise of 1877
Deal to settle the 1876 Election Hayes (R) gets to be President, but makes deal with Southern Democrats to end Reconstruction
During Reconstruction, union troops had protected the rights of blacks
Many even held elected office
However, through fear, intimidation, violence and laws, these gains were reversed
So, blacks in the South had these rights guaranteed to them in principal, but they were not enforced the Solid South
The South starts implementing Jim Crow laws segregation by law
By the time of WWI, many southern blacks will start to leave the South

6. Plessy v. Ferguson (1896) Background
Louisiana passes a law in 1890 requiring segregation on the railroad (which was the main form of long distance transportation at the time)
The law failed at the state level for interstate travel, but what about in the state?
Plessy was 7/8 white and only 1/8 black and bought a ticket in the white section
He was removed from the train and arrested
Plessy loses at the district and State Supreme Court levels, and appeals to the Supreme Court of the United States

7. Plessy v. Ferguson- II Arguments For Plessy For Ferguson (Louisiana)
It is directed at black people and Badges of servitude violate the 13th Amendment
It does not clearly define the races and gives conductors too much discretion
It violates the right to travel for citizens
Can violate rights of multi-racial couples
For Ferguson (Louisiana)
This is intrastate commerce, not covered by the Constitution
The regulation of separation is reasonable so long the accommodations are equal
No discrimination because the cars and prices are equal
No badge of servitude should be found here

8. Plessy v. Ferguson- III Brown, J. for a 7-1 majority
The 14th Amendment meant to enforce absolute equality of the races
But not to abolish all social distinctions or enforce comingling of the races
The key is equality eliminating them from all trains would violate
Courts have long upheld separate education for the races
Including in the District of Columbia
So have laws banning interracial marriage
It is black people that have decided to view this as a badge of servitude
Social and cultural instincts and distinctions are not the role of government
Therefore, separating races so long as the accommodations are equal is permissible
Note the Court appears to use rational basis review here

9. Plessy v. Ferguson- IV Harlan, J. dissenting He finds this violates
The 13th Amendment- Constitutes a badge of slavery and servitude
The 14th Amendment- Strengthened the 13th Amendment
The 15th Amendment- Denial of blacks being fully engaged in the political process
He also makes a slippery slope argument
Also compares this case to Dred Scott
The Constitution is color blind and all citizens should be equal before the law
This law adds a condition of legal inferiority on certain citizens

10. Plessy v. Ferguson- V Aftermath
The effect of this case was to open the flood gates of Southern and border states to pass laws segregating very every aspect of public life
However, while there was “separate”, there was rarely “equal”
This was especially true in public education
The NAACP Legal Defense Fund (LDF) started challenging these laws
Led by Thurgood Marshall
Also, a growing share of the black population in the country was living outside the South, so better able to challenge these laws

11. Missouri ex rel. Gaines v. Canada (1938)
Gaines graduated from an all black college in Missouri
He applied to go to the University of Missouri Law School
He was denied because he was black
Missouri’s offer was to pay the cost of out of state tuition to send blacks to law schools with no segregation requirements
The Court 7-2 by Stone, C.J. rejected this argument
When only one school in the state, it must be open to all races
The intent to create a separate all black law school was not sufficient
This was a chip into Plessy
Also, WWII and returning soldiers, and FDR and Truman were changing things too

12. Sweatt v. Painter (1950) Background
Sweatt applied to the University of Texas Law School
But was denied admission solely based on race
There was no other Texas law school that admitted blacks
The state district judge in Travis County gave Texas time to open a temporary all black law school in Houston
The judge then dismissed the case
Sweatt refused to attend the new law school on the grounds it was inferior
Courts in Texas found the laws were “substantially equivalent”

13. Sweatt v. Painter- II Arguments For Sweatt
There is no rational basis for students to be in separate schools
Plessy does not apply because the schools are not equal
The Court should overrule Plessy
For Painter (University of Texas Law School and 11 other southern/border states)
Plessy says that states can separate the races so long as the facilities are equal
The history of the 14th Amendment did not intend prevention of separation of races
The schools are equal

14. Sweatt v. Painter- III Vinson, C.J. for a 9-0 Court
He looks at the issue of “equal”
The black school lacked accreditation (and prestige), had a much smaller faculty and student body, less volumes in the library, and has no programs like Moot Court
The white school is superior and nearly all would choose it
It harmed the student’s ability to compete in the legal arena
The schools are clearly not substantially equal
However, they do not reexamine Plessy

15. McLaurin v. Oklahoma State Regents (1950)
A 9-0 opinion by Vinson, C.J.
Challenge to an Oklahoma law that did admit black students into graduate programs when they could not get their degrees at black schools
However, they were restricted to segregated areas of the university
The justification was that comingling of the races could lead to interracial dating or even marriage
McLaurin was 68 years old and really not applicable
The Court found he was handicapped by this unequal treatment
This essentially ended the strict application of Plessy to higher education
"We hold that under these circumstances the Fourteenth Amendment precludes differences in treatment by the state based upon race."

16. Next Lecture Pages 618-626 1954 Supreme Court Plessy goes down
Brown v. Board of Education I (1954)
Brown v. Board of Education II (1955)
1954 Supreme Court