Revisiting the Separate but Equal Doctrine

Historian C. Vann Woodward wrote in a 1964 article about Plessy v. Ferguson, that white and black southerners mixed relatively freely until the 1880s, when southern state legislatures passed the first laws requiring railroads to provide separate cars for “Negro” or “Colored” passengers.

Florida became the first state to mandate segregated railroad cars in 1887 followed by Mississippi, Texas, Louisiana and other states by the end of the century.

The Louisiana law is the Separate Car Act. The law required separate accommodations for black and whites on railroads. A group of concerned New Orleans residents composed of black, white, and creole citizens formed a group called the Comite Des Citoyens (Committee of Citizens). The Committee’s main purpose was to repeal the law or fight its purpose. The group got Homer Plessy a man of mixed race to take part in a test case against the law. Though Plessy was of mixed race, he is considered “black” under Louisiana law and thus required to sit in the “colored” rail car.

On June 7, 1892 Plessy bought a first-class ticket and boarded a “Whites only” railroad car in New Orleans, the train was bound for Covington, Louisiana. The Committee hired a private detective with arrest powers to detain Plessy, to ensure that they would charge him for violating the Separate Car Act as opposed to a lesser offense of vagrancy. After Plessy took a seat in the whites only car, he was asked to vacate the seat and instead sit in the blacks-only car. Plessy refused and was arrested immediately by the detective. Plessy was remanded for trial in a Orleans Parish.

At the trial, Plessy’s lawyers argued that the state law denied Plessy his rights under the Thirteen and Fourteenth amendments of the United States Constitution. The Fourteenth Amendment provides for equal treatment under the law. The judge presiding over the case, John Howard Ferguson, ruled that Louisiana had the right to regulate railroad companies while they operated within state boundaries. Plessy was convicted and sentenced to pay a $25 fine. Plessy immediately appealed the decision to the Louisiana Supreme Court.

The Louisiana Supreme Court upheld the lower ruling. The court cited several precedents that backed its ruling. One was a Massachusetts Supreme Court case that ruled that segregated schools were constitutional. In its ruling, the Court stated: “This Prejudice, if it exists, is not created by law, and probably cannot be changed by law.” This court ruling was before the Fourteenth amendment was passed, and they repealed it 5 years after its ruling but it still stood as precedent. The other case cited was a Pennsylvania Supreme Court case, where the Court stated: “To assert separateness is not to declare inferiority… It is simply to say that following the order of Divine Providence, human authority ought not to compel these widely separated races to intermix.” Plessy lawyers appealed that decision to the United States Supreme Court.

While the Plessy v. Ferguson court case is making its way through the legal system, Segregation is picking up steam in the south. In 1892 Congress defeated a bill that would have given federal protection to elections. Congress also nullified several reconstruction laws.

On May 18, 1896 the U.S. Supreme Court delivered a 7-1 verdict in Plessy v. Ferguson. The court declared separate-but-equal facilities constitutional on intrastate railroads. The Court ruled the protections of the Fourteenth amendment applied only to political and civil rights (voting, jury duty) and not “social rights” (sitting in the railroad car of your choice, going to the school of your choice, eating at a restaurant, drinking out of a water fountain, going to the bathroom of your choice, etc…)

The Court denied that segregated railroad cars for blacks were necessarily inferior. “We consider the underlying fallacy of {Plessy’s} argument,” Justice Henry Brown wrote, “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 of anything found in the act, but solely because the colored race chooses to put that construction upon it.”

Justice John Marshall Harlan was the lone dissenter from the decision. Harlan was a former slaveholder from Kentucky, who had opposed emancipation and civil rights for freed slaves during the Reconstruction era. Harlan changed his position because of his outrage over the actions of white supremacist groups like the Ku Klux Klan.

Harlan disagreed with the Court’s rejection of Plessy’s argument that the Louisiana law implied that blacks were inferior and stated that the majority was being willfully ignorant on the subject.

“Every one knows that the statute in question had its origin in the purpose, not so much to exclude white people from railroad cars occupied by blacks, as to exclude colored people from coaches-occupied by or assigned to white persons… The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary.”
Justice John Harlan dissenting opinion

Harlan pointed out that the Louisiana law contained an exception for “nurses attending children of the other race”- this allowed black women who were nannies to white children to be in the whites-only cars. This showed that a black person could be in the whites-only cars as long as they were a “social subordinate” or “domestic”.
Justice Harlan also argued that even if many white Americans of the late 19th century considered themselves socially superior to Americans of other races, the U.S. Constitution was “color-blind”, and could not permit any classes among citizens in matters of civil rights.

Plessy v. Ferguson legitimized the state laws establishing racial segregation in the South and provided a blueprint for future segregation laws. Legislative achievements won during the Reconstruction Era were erased through means of the “Separate but Equal” doctrine. The doctrine became strengthened by an 1875 Supreme Court decision that limited the federal government’s ability to intervene in state affairs, guaranteeing to Congress only the power “to restrain states from acts of racial discrimination and segregation.” The ruling gave states free rein to implement laws that set racially separate institutions, only requiring them to be “equal.”

Things were never “equal”, there were already significant differences in funding for the segregated school system, but after Plessy, these differences doubled well into the 20th century. States consistently under-funded black schools, providing them with substandard buildings, textbooks, and supplies.

From 1890 to 1908, state legislatures in the South disenfranchised most blacks through rejecting them for voter registration and voting, making voter registration more difficult by providing more detailed records, such as proof of land ownership or literacy tests.

Plessy v. Ferguson is one of the worst Supreme Court decisions in history, right up there with Dred Scott v. Sanford. Separate but equal would be the norm until the famous U.S. Supreme Court case Brown v. Board of Education in 1954. Chief Justice Earl Warren, who wrote the majority opinion in the case stated, “the doctrine of ‘Separate but equal’ has no place in public education.” In the opinion Warren called segregated schools “inherently unequal and declared that the plaintiffs in the Brown case were being “deprived of the equal protection of the laws guaranteed by the 14th Amendment.” Just like Plessy and the many other African Americans who did not get their Fourteenth Amendment protections because of the “Separate but equal” legal doctrine.