From Plessy to Brown

1
From Plessy to Brown

• Gaines v. Canada (1938) Missouris offer to pay
  for African Americans to attend an out-of-state
  law school did not meet separate but equal
  Missouri itself must provide equal education.
• Sipuel v. Board of Regents (1948) Oklahomas
  failure to provide a law school for African
  Americans violated equal protection OK complied
  by roping off an area in the state capitol and
  calling it a law school.
• Sweatt v. Painter (1950) Texas hastily
  assembled Prairie Law School for African
  Americans was not equal to the University of
  Texas Law School, citing the important
  intangible factors such as history and
  reputation.

2
Brown v. Board of Education

• What role does the Framers Intent play in the
  decision?
• What was the original intent of the Framers with
  respect to school segregation?
• How does the Court justify what is probably a
  departure from the Framers intent?
• What circumstances have changed that might affect
  how we understand the Framers intent? The
  problem of translation
• At what level of generality should we examine the
  Framers intent?

3
The Constitutional Basis for the Courts Decision
in Brown

• Accepting that the Framers intent doesnt
  preclude the result in Brown, what supports it?
• How and why does it matter that the segregation
  here relates to education?
• How does the workability of separate but equal
  influence the Courts decision? How should
  considerations about workability shape
  constitutional law rules?
• Where does the principle that separate is
  inherently unequal come from as a matter of
  constitutional law?

4
The Social Science in Brown

• Assuming that the social science was sound, how
  should it influence the decision in Brown?
• If the social science supported the opposite
  conclusion, that segregation did not harm black
  children, should the Court have decided Brown
  differently?
• Assuming the social science was invalid, what, if
  anything, does that tell us about how and whether
  social science should influence constitutional
  law?

5
The Meaning of Equal Protection in Brown

• Why, exactly, is segregation inherently
  unequal?
• because it disproportionately harms blacks?
• because the law classifies people by their race?
• because it is widely understood to denote
  inferiority? (its social meaning is contrary to
  equality)
• because the intent behind the law is racist?

6
Brown and its Relationship to Politics

• Does the decision in Brown transcend politics
  with principle, or simply reflect the political
  momentum of the times?
• Traditional view Brown shows the Court at its
  best, setting down an important principle,
  separate from politics
• Countervailing views
• Derrick Bell the Courts decision reflects the
  interests of whites, giving credibility to
  Americas fight against communism and placating
  blacks to avoid civil unrest (interest
  convergence)
• Mark Tushnet the decision reflects the Courts
  resolution of a conflict among white ruling
  classes, and the Court sides with the majority,
  Northern elites, instead of the smaller number of
  southern elites

7
Bolling v. Sharpe and the Fifth Amendment

• Problem the 14th Amendment applies only to the
  states, not the federal government. The 5th
  Amendment applies to the federal government, but
  says nothing about equal protection. How does
  the Court get around this problem?