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  • Matt Nee

Separate But Equal

Strange as it may seem, there’s a movement afoot on American college campuses toward racial segregation. It’s not a return to the Jim Crow era from the early 20th century. Rather, what we’re witnessing is minority students demanding racially segregated spaces and events on campus – special commencement exercises for African-Americans, living facilities segregated by race, separate recreational facilities and so on.

In late April, the National Association of Scholars, a network of educators committed to academic freedom and excellence in American universities, issued a report called Neo-Segregation at Yale. The report was part of a larger study by the NAS called “Separate but Equal, Again: Neo-Segregation in American Higher Education.” The report chronicles this trend toward racial segregation that runs counter to the ideals that an earlier generation of civil rights leaders fought to achieve.

A documentary filmmaker, looking into the issue, asked students their opinion on this type of segregation. When asked about the idea of having “separate but equal” facilities and events on campus, many students, apparently unaware of the history behind that phrase, found it perfectly acceptable.

In fact, “separate but equal” is a term loaded with historical baggage. The doctrine of “separate but equal” derives from a United States Supreme Court case called Plessy v. Ferguson, which, evidently, they no longer teach to college students.

The case had its origins in a law passed in 1890 by the state of Louisiana called the Separate Car Act. That law required “railway companies carrying passengers in their coaches…to provide equal but separate, accommodations for the white and colored races.”

In response to the Separate Car Act, a mixed-race group of people in New Orleans, calling themselves the Committee of Citizens, organized to fight for its repeal. As part of their plan they recruited a man named Homer Plessy to participate in an orchestrated test case. Although Homer had been born a free man and was of mostly European descent, he was one-eighth African. According to the Louisiana law, that fraction made Homer a man of color who was required to sit in a separate railcar.

The plan was set in motion in June 1892, when Homer bought a first-class ticket and boarded a “Whites Only” railcar. Because of his appearance, the conductor wouldn’t have known that Homer wasn’t supposed to be in that car. But the railroad was in on the plan: the rail company had opposed the passage of the Separate Car Act because it required the unnecessary purchase of more railcars. As part of the plan, the Committee of Citizens had alerted the railroad that Homer wasn’t considered a white man in the eyes of the law.

When Homer refused to leave his seat, a detective – placed on the train by the Committee for just this purpose – arrested Homer for violating the Separate Car Act. The Committee had what it wanted – a test case to send to the courts that, they hoped, would lead to the law’s abolishment.

When the case – Homer Adolph Plessy v. The State of Louisiana – went to trial, Homer’s lawyers argued that the Separate Car Act denied Homer his rights under the Thirteenth and Fourteenth Amendments. The Thirteenth Amendment had abolished slavery. The Fourteenth Amendment, adopted in 1868, guaranteed the same rights to all citizens, and, under what’s known as the Equal Protection Clause, the amendment states that all citizens shall have equal protection of those rights under the law.

The presiding judge in Homer’s case – John Howard Ferguson – disagreed with those arguments. In an earlier case involving the Separate Car Act, Ferguson had held that the law was unconstitutional “on trains that traveled through several states.” But in Homer’s case, Ferguson ruled that Louisiana had the right to regulate railroad companies while they operated within state boundaries. Thus, he concluded the law was constitutional, and he convicted Homer of violating the Separate Car Act.

Next, Homer and the Committee turned to the state’s supreme court. They filed a petition against Judge Ferguson, once again claiming that the law violated the Thirteenth and Fourteenth Amendments. But the Supreme Court of Louisiana upheld Ferguson’s lower court ruling.

Having struck out twice, Homer petitioned for a writ of error from the United States Supreme Court. Judge Ferguson was named in the case because he had been named in the petition to the Louisiana Supreme Court. Hence, the case was called Plessy v. Ferguson.

Once again, Homer’s attorneys pursued the same arguments. The Committee had hoped that the federal court would see that the Louisiana law inherently implied that black people were inferior, which violated the Equal Protection Clause. But the Supreme Court returned with a 7-1 decision against Homer.

The majority dismissed the Thirteenth Amendment argument, finding that it did nothing more than ensure black Americans had the basic level of legal equality that was necessary to abolish slavery.

As to the Fourteenth Amendment argument, the majority wrote that the object of the amendment was “undoubtedly to enforce the absolute equality of the two races before the law.” But the majority maintained that the Amendment applied only to political and civil rights – such as voting and jury duty, and not “social rights” – such as sitting in the railcar of your choice.

Justice John Marshall Harlan cast the lone dissenting vote. In his dissent Harlan wrote that, “In view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution,” he famously declared, “is color-blind…”

He continued, “In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.”

Sadly, Harlan’s words did not prevail. And while the Committee of Citizens and Homer’s lawyers had the best of intentions by bringing the appeal, the Plessy decision had the unintended consequence of enshrining the doctrine of “separate but equal” for decades, allowing states to pass segregation laws with relative impunity. But of course, even if the separate railcars, hospitals or hotels had been truly “equal” – and they seldom were – separation based on race is inherently unequal.

The power of the Plessy decision finally started to erode with the 1954 Supreme Court decision in Brown v. Board of Education, which outlawed racial segregation in public schools.

Legally and socially we have made great strides since Brown. It would be a shame – not to mention a big step backwards – if “separate but equal” were to creep back onto our campuses. As the old adage says, those who ignore history are destined to repeat it.

by Kevin Diehl


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