*****Disclaimer: This is not legal advice and is for educational purposes only. This does not create an attorney-client privilege.
In recent months, clear evidence of systemic racism has been especially highlighted in the media and public demonstrations. During these nationwide protests over not only police brutality, but all kinds of discrimination and violence against black Americans, a phrase that has been continually brought up is “A Movement, Not a Moment.” This a reflection on the fact that the highly visible issues of racist institutions, policies and police aren't just some passing example of how 2020 is an especially terrible year; the protests that have broken out in the wake of George Floyd`s murder are a response to issues with a much longer history in America.
To consider our current situation, it's important to understand America's history of racism. Is it really such a wonder that prejudice still plagues this nation when “separate but equal” was only abolished in 1955? In the landmark Supreme Court decision, Brown v. Board of Education, the court overturned the precedent for “separate but equal” set by Plessy v. Ferguson 60 years prior and acted as one of the major catalysts for the Civil Rights Movement of the 50`s and 60`s.
This case was foundational to undermining and declaring de jure segregation unconstitutional. De jure segregation means segregation that is enforced by law. This is as opposed to de facto segregation, which is segregation by practice and environmental conditions. Brown v Board of Education may have chipped away at de jure segregation, however recent protests are highlighting that although racism may be less explicit in our laws now, racial disparities and de facto segregation persist.
So what exactly were the circumstances surrounding this influential case? In 1986, Plessy v Ferguson established a precedent for segregating public facilities, including transportation, schools and other establishments. In Topeka, Kansas in 1951, a black American man named Oliver Brown filed a class- action lawsuit against the Topeka Board of Education after his seven year old daughter, Linda Brown, was denied admission into the all-white elementary schools near them.
The lawsuit argued that the actions of the Board of Education were unconstitutional and violated the right all citizens have to “equal protection of the law”, as guaranteed by the 14th Amendment. Essentially, he argued that separate could never in fact be equal; schools for black children were not given the same quality of resources, budget or care as their white counterparts. When the case came before the U.S. District Court of Kansas, the court admitted that segregation had a “detrimental effect on colored children”, yet they still upheld the “separate but equal” policies.
They then decided to appeal to the United States Supreme Court to rule on the issue. Brown`s class-action suit was combined with four other existing cases related to the segregation of academic institutions. Thurgood Marshall, an attorney who would later be appointed as the first black Supreme Court Justice, served as the chief attorney and brought the case before the Supreme Court in 1952, representing all the plaintiffs under the name Brown v. Board of Education of Topeka.
Initially, the justices were split on the decision, with Justice Vinson maintaining that the precedent from Plessy v. Ferguson should continue to be upheld. However, he died prior to the court`s ruling and was replaced by Eisenhower with Justice Warren. This new justice was a huge contributor to not only ruling in favor of Brown, but actually engineering a unanimous decision. On May 17, 1954, Warren delivered the court`s decision, stating, “ in the field of public education the doctrine of ‘separate but equal’ has no place-” because segregated schools were inherently unequal. Thus segregation in public schools were decreed to violate the 14th Amendment, and the decision set in a motion a broad movement to get rid of all forms of segregation in the nation.
Though Brown v Board of Education officially decreed segregated schools unconstitutional, the courts kept the wording specific to schools and also did not outline how integration of schools should be pursued. In 1955 a second decision, that ultimately somewhat undermined the first, was delivered that placed the onus on district courts to proceed with desegregation “with all deliberate speed”. By relegating these issues to local courts and not establishing a clear timeline, the decision was exposed to attack and noncompliance. Without a deadline, the decision became hard to enforce. So although Kansas and some other states proceeded with integration, many states in the South continued to resist desegregation.
In a famous example of this clash between states and the federal government, Governor Orval of Arkansas used the state`s National Guard troops to prevent black students from entering the high school they were to attend. In response, President Eisenhower deployed federal troops to escort these brave students, known as the Little Rock Nine, into their classes under armed guard. Even with the precedent set for integrated schools and a federal government prepared to enforce it, racism and resistance to the decision were still deeply pervasive. The fight for equality during the Civil Rights Movement had only begun; segregation had only been directly undermined in schools. Expanding the decision meant having to continue pushing to be heard and pushing back against the people and government entities, especially in Southern States, that continued to resist change.
Many attribute the ‘end’ of the Civil Rights movement with the Civil Rights Act of 1964, which ended segregation fully and banned discrimination in employment, and the Voting Rigths Act of 1965, which banned racist obstacles such as literacy tests. However, it is worthwhile to point out that the work of Martin Luther King Jr., Malcolm X, and many others continued after. They recognized that legislation and an end to de jure segregation was not enough; racism and its ability to undermine the health and financial well being of black Americans was still a huge issue. It was when they were assassinated in the late 60`s that the movement lost its momentum.
Yet this nationwide movement was stopped before it was finished. Pockets of America still cling to their racist roots, despite assertions that constitution protects American`s from racial discrimination. Though this case set the groundwork to undermine systemic racism in our laws and institutions, the fact remains that racial inequality persists in housing, health care, environmental impacts, finances, employment, policing and more. BLM is a continuation of the unfinished work of the Civil Rights Movement, and in many ways is expanding the groundwork laid by Brown v Board of Education.