Brown v. School Board: Correctly Decided, but Wrong Rationale

In 1954, the Supreme Court unanimously decided that the “separate but equal” doctrine was unconstitutional. In 1896, in Plessy v. Ferguson the Court created the separate but equal doctrine. That decision was law for over 50 years and opened the door to discriminatory Jim Crow laws. In Brown v. School Board the Court correctly overturned this practice by deciding “separate but equal” did not apply to education. However, the Court used equal protection clause of the Fourteenth Amendment. This was problematic for several reasons.

First, in Bolling v. Sharpe, the Court faced a dilemma. Bolling was decided at the same time as Brown. The cases were identical (did separate but equal apply to schools) with one exception: the Bolling case was over federal jurisdiction (District of Columbia) while Brown applied to States. Unfortunately, an “equal protection” clause does not apply to the federal government in the Constitution. The Court bridged this dilemma by declaring “separate but equal” was unconstitutional using the “due process” clause of the Fifth Amendment. The result of Bolling is apparent, as Justice Stevens points out in Adarand Construction v. Pena the “Fifth Amendment encompasses a general guarantee of equal protection as broad as contained within the Fourteenth Amendment.”

Secondly, the Court says that the “circumstances surrounding the adoption of the Fourteenth Amendment” is “at best inconclusive”. This is not true, and does a huge disservice to the Amendment. This means that the Court decided Brown without knowing the true meaning behind the Fourteenth Amendment and therefore, gave their own interpretation of the Amendment. As Michael McConnell said “Brown is now a mighty weapon against the proposition that the Constitution should be interpreted as it was understood by the people who ratified it.” This is how the Fourteenth Amendment became a tool for “social justice” or “social rights” instead of an equal protection of the fundamental rights of all citizens. McConnell proves without a reasonable doubt that the framers of Fourteenth Amendment intended it to end segregation. The Civil Rights Act of 1875 was passed to enforce the Fourteenth Amendment and it denies segregation at inns, theatres, restaurants, and public accommodations. Public schools falls in this same category of public accommodations. In fact, a better argument can be made that “separate but equal” does not apply to schools more so than inns or theatres because schools are maintained by taxes by all Americans. In other words, an “originalism” interpretation to decide Brown is easy to make but the Court fails to draw the same conclusions.

Thirdly, the Court further suggests a “modern” interpretation of the Fourteenth Amendment. Chief Justice Warren says “Whatever may have been the extent of the psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority.” This wrongly asserts that the interpretation of the constitution can change over time.

Fourthly, the Court relies on testimony and “data” showing that segregation has a “detrimental effect” on colored children because it makes them feel “inferior”. Using this information in deciding the case makes it about “social justice” and not the law which supports the decision.

The biggest injustice to the Fourteenth Amendment happened in the Slaughter House Cases in 1873 when the “privileges and immunities” clause was basically written out of the Amendment. The proper way to decide Brown would have been to use the “privileges and immunities” clause. All people have the same rights or “privileges and immunities”. This means we all have the same fundamental right to be free from government restraint. All Americans can therefore choose what school to attend, what restaurant to eat at, and what movie to see without government intrusion. Although there is no “privileges and immunities” clause applied to the federal government, the federal government cannot abridge fundamental rights of individuals to be free from government restraint. This is the entire purpose of the Constitution.

Scholars argue if Brown was decided by “originalism” methods then “social justice” or “social rights” cases such as Loving v. Virginia would not have been decided correctly. In Loving, the Court applied the equal protection clause to void a Virginia law making interracial marriage illegal. This is also not true. The privileges and immunities clause could be used or even the due process clause. To be a valid law using the due process clause there has to be a rational reason for the law and it cannot be arbitrary. The Virginia statute fails on both accounts – it has no rational basis and it is obviously discriminatory.

Once again the Warren Court decides the case correctly, but they use the wrong rationale. This is extremely harmful precedent because it allowed the Court to decide future “social rights” cases incorrectly because “social rights” are not encompassed in the Constitution. Social rights are not fundamental rights. This does not mean that laws restricting social rights will be found constitutional as explained above in Loving. However, “social justice” cases such as abortion and same sex marriage have no justification under the Constitutional.