Prevailing upon the American dream: Thurgood Marshall and Brown v. Board of Education

Journal of Negro Education, The, Summer 1994 by Vasillopulos, Christopher

Plessy did not shrink from addressing the factual reality of segregation, however. As Justice Henry Billings Brown wrote in his majority opinion:

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 or anything in the act, but solely because the colored race chooses to put that construction upon it. (quoted in Grossman & Wells, 1972, p. 317)

Apparently, Justice Brown was applying to race relations a rationale common to his day with regard to lepers and leprosy--namely, that it is solely in the leper's mind that the diseased status which so mightily offends the healthy carries with it a sense of inferiority. By this logic, just as the leper could choose to adopt a healthy self-image rather than that of a pariah, so too could the African American choose either to bear or reject the leper-like stigma of second-class citizenship. Thurgood Marshall would have none of this. The question for him was how to confront the inferiority, whatever its basis.

It would have been possible for Marshall to try to extend the line of cases that had eroded the assumptions which had sustained Plessy. Chief among these was the contention that the problem lay "in the leper's mind"--that is, that the only inferiority resulting from enforced segregation was generated by a belief in their own inferiority which members of the Black race already had and would always have, independent of state action. Thus, whatever degree of inferiority existed in a given Black man or woman could not be added to or detracted from by the existence of legally sanctioned segregation. A second approach would have been to contest the factual basis of the separate-but-equal doctrine, as had been done in Sweatt v. Painter (1950). In that case, the African American plaintiff demanded to be admitted to the University of Texas Law School, not the makeshift "Negro law school" proposed by the state as an alternative. As Grossman and Wells (1972) note:

The NAACP argued that not only was the Negro Law School unequal in any measurement of its tangible assets, but that it was unequal in a variety of intangibles such as reputation, quality of education, and standing in the state. The Court accepted this argument and thus further chipped away at the separate-but-equal doctrine. (p. 320)

A third approach would have been to examine the intent of the framers of the 14th Amendment. Was it intended to make all state sanctioned segregation, including school segregation, illegal?

Marshall chose a much bolder approach than all of these. He realized that "something like a revolution in constitutional law" was needed, something that "would entail a piece of judicial lawmaking which could be justified only by a philosophy of extreme judicial activism, and this at the hands of a Court wherein several of the Justices had repeatedly expressed their disapproval of judicial activism and lawmaking by Court-made fiat (quoted in Kelly, 1961, p. 167). If the Plessy rule were to be overturned, Marshall realized the Court would have to be shown that separate but equal "could never be equal, that segregation in the public schools per se, had a harmful effect on Negro children" (quoted in Grossman & Wells, 1972, p. 324). After securing a no-decision on the historical intent of the authors of the 14th Amendment in Brown, Marshall set out to amass sociological and psychological evidence to the effect that segregated Black children saw themselves as inferior to Whites. The use of this strategy led Chief Justice Warren to conclude the following in the Brown decision: