Brown vs Board of Education is a landmark 1954 case in the US civil rights movement because it deemed the practice of ‘separate but equal’ to be unconstitutional. That policy had held that it was acceptable to have separate schools for black and white students as long as the schools were ‘equal’. Of course, in practice they were not. But it interesting to go back to the earlier 1896 case Plessy vs Ferguson that had challenged the constitutionality of segregation laws. The US Supreme Court held that the laws were constitutional, thus putting a seal of approval on practices that had already existed for 60 sixty years in all parts of the country and led to their further expansion.

Like the Rosa Parks case much later, the Plessy case was deliberately brought to test the laws, with Homer Plessey being handpicked to buy a first class ticket to a ‘whites only’ railroad car and letting the railroad company know in advance that he was of mixed race, because he was light-skinned enough to pass for white. The case was brought in New Orleans and that choice is significant, as Steve Luxenburg explains in this discussion with Bob Garfield in On the Media.

It is an unusual city–every shade of the spectrum under the sun is there. And the group that brings it is a group of mixed race, French speaking, often, Creoles–that means native born. Frustrated after more than a century of trying to get their rights, most of them have never been enslaved. Their parents weren’t enslaved. Their grandparents weren’t enslaved. And they feel that their best argument is to throw some confusion at the court in part. Plessy is fair skinned enough to pass for white or to cause that confusion, and so they want to be able to argue that the law is unenforceable. It doesn’t define white, it doesn’t define mixed race, and so therefore how can you possibly enforce this law when many people riding the trains in Louisiana are of indeterminate race.

Luxenburg says that Plessy’s lawyer Albion Tourgeé made a novel argument.

And Tourgeé, in his arguments he has is quite inventive argument which is that your race is your property and if you could pass for white and white is a better economic position than to be black, how can you be prevented from trying to exploit that reputation and property and be denied it without due process. Now if you think about that it’s a terrible argument because it means if they win that there could be a car or a railroad car with white and mixed race passengers but still a separate car for those people who can’t pass for white. So I tried to wrestle with this. Why would they make that argument? And the answer, I think, is pretty obvious he wants to win and he sees these Supreme Court justices as men of privilege and class who regard property rights as paramount. And so he’s given them a property right argument.

However the Supreme Court ruled against Plessy by a margin of 7-1 (with one abstention) and ‘separate but equal’ led to Jim Crow laws dominating for six decades until Brown v. Board of Education struck it down in 1954. In his lone dissent, justice John Marshall Harlan predicted that the majority decision would lead to widespread discrimination in all areas and that in time this verdict would viewed as infamous as the 1857 Dred Scott case which had held that black Americans could not be citizens and thus the protections of the US Constitution did not apply to them. He was right. Those two cases are now considered the worst decisions ever.

Harlan’s personal story is an interesting one of personal transformation.

Bob Garfield: Here’s one line from his dissent. ‘Our Constitution is colorblind and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.’ Marshall was from Kentucky, former slave owner, a former opponent of the reconstruction laws that he, at the time, deemed too punitive to the south. But obviously transformed. How?

Steve Luxenberg: Well, it’s a remarkable transformation. A very hopeful one because it shows that somebody can hold despicable views and then abandon them. And he does so forthrightly. I don’t have any doubt about the genuineness of his transformation. He was a proslavery candidate for Congress at the age of 25 in 1859. He comes from a slaveholding family. But he does raise a union regiment in 1861 because he believes that the union needs to be preserved both north and south. But he states that he’s not going to fight a war against slavery. By the 1868 period, he has changed his mind–and partly it’s politically driven. He has no home. He can’t believe that he–he should belong to the Democratic Party which is filled with ex angry confederates who have lost the war to trying to accomplish by the ballot box what they couldn’t accomplish by the war. And so he joins the Republican Party, that antislavery party, and he turns his eyes toward Washington. Because as a man who wants to make his mark in the world, an ambitious man, it’s the only way that he can see that he’s going to have a position that’s going to give him some influence. And he fortunately is nominated to the court in 1877.
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Well, even Harlan in his dissent says that the White race is superior to the Black race and it will be for all time, as long as it continues to respect the idea that everyone is equal before the law. That’s an odd way to go after equality, I think. But it reflects the attitudes of the time.

Harlan’s view that whites were superior to blacks even if they are treated equally under the law is one that is still held by people even now, as we see it being expressed more openly these days with the rise of neo-Nazis and white supremacists, except that they go even further and seem to want to return to a Plessy state of separation.