The Precedents

Here's the full text of Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The first sentence introduced to the United States what's now known as "birthright citizenship." While we discuss that idea today mostly in the context of immigration, its main purpose in 1868 was to grant citizenship to all formerly enslaved people born in this country.

However, it's the final clause of Section 1 that played the starring role in Brown v. Board of Education. Known simply as the "Equal Protection Clause," it specifically bars state governments from denying their citizens "equal protection of the laws." Those are powerful words. All citizens have the right to be treated equally by the government. But what exactly does "equal" mean? The Constitution doesn't say, so the Supreme Court has been left to interpret the word. The Court's most notorious effort at defining equality came nearly 30 years after the passage of the Fourteenth Amendment.

In 1890, Louisiana enacted a law requiring "equal but separate" railway cars for Blacks and whites. Homer Plessy, an activist and multiracial man who was considered Black under Louisiana law, agreed to stage an act of civil disobedience. He bought a first-class ticket in the "whites-only" car on a train and used it. When he refused to vacate the car, he was arrested and convicted.

The Supreme Court upheld the law by a vote of 7 to 1, ruling that racial segregation did not constitute unlawful discrimination under the Equal Protection Clause as long as the facilities provided were of equal quality. This came to be known as the "separate but equal doctrine." Justice John Marshall Harlan was the only dissenter. He argued that the Constitution was color-blind and that all citizens should have equal access to civil rights.

Plessy v. Ferguson did not deal specifically with segregation in schools, but the idea of "separate but equal" was still embraced in much of the former Confederacy as states began requiring public education. They established separate white and Black schools, which in most cases were anything but equal in quality. The Black schools suffered from neglect and a severe lack of funding, to the point where some were little more than shacks, without even heating, bathrooms, or current textbooks. This situation became a subject of a 1927 Supreme Court case, but rather than striking down segregation, the Court took the opportunity to cement racial separation.

Chinese immigrants Jeu Gong and Katherine Lum lived in Mississippi, where their daughter Martha attended a white high school. Martha was thriving academically, but in 1924, Congress passed the so-called Asian Exclusion Act. It cut off all immigration from Asian countries and signaled a rise in anti-Chinese sentiment. Martha's school told her parents she could no longer attend, and since the only other option was a local Black school, that's where she would have to enroll. The Lums took the school board to court and won the first round. But the decision was overturned on appeal, and the U.S. Supreme Court ultimately decided unanimously that racial classification for school attendance was acceptable, and a matter for state and local law.

In the 1930s, Thurgood Marshall and the NAACP began a legal assault on school segregation that would ultimately lead to Brown v. Board of Education. The progress was methodical but slow, marked by incremental victories before a Supreme Court that itself was beginning to change with the times.

In 1936, the NAACP recruited Lloyd Gaines, a Black honors student in high school and college, to apply to the all-white University of Missouri Law School. As expected, Gaines was rejected due to his race, although because Missouri had no Black law school, the university offered to pay for his tuition at an out-of-state school. Gaines sued the state university, arguing that its policy violated the Equal Protection Clause. The Supreme Court ruled 6 to 2 in Gaines's favor, holding that states must provide equal educational opportunities to all students, regardless of race. However, the Court left it to Missouri as to whether it would integrate the white university or pay for the establishment of a separate Black law school. It chose the latter. And Lloyd Gaines himself never benefited from the decision. After expressing exhaustion with his role as a civil rights pioneer in a letter to his mother, Gaines disappeared. Some believe he was murdered or committed suicide, while others think he fled to Mexico or elsewhere to escape the limelight.

The NAACP's campaign gained steam in the next decade with two cases involving Black students at graduate and professional schools. They were handed down by the Supreme Court on the same day in 1950, although in neither case were the justices willing to overrule Plessy's separate but equal doctrine.

SWEATT v. PAINTER (1950): In 1946, Heman Marion Sweatt, a Black man, applied to the University of Texas Law School. His application was automatically rejected due to his race. Sweatt pursued the case in the state courts, and the university attempted to provide separate but equal facilities for Black law students. In the end, the Supreme Court ruled unanimously in Sweatt's favor, stating that the "law school for Negroes" would have been significantly inferior to the University of Texas Law School. The Court also noted something new: that the very act of separating students by race could harm the Black students' later careers by depriving them of what today we'd call networking. Said the opinion, "The law school, the proving ground for legal learning and practice, cannot be effective in isolation from the individuals and institutions with which the law interacts."

McLAURIN v. OKLAHOMA STATE REGENTS (1950). This case involved George W. McLaurin, who already had a master's degree in education and was seeking a PhD. McLaurin applied to the University of Oklahoma, then an all-white university, and was denied because he was Black. A federal district court ordered the university to admit McLaurin, which it did, but in the most grudging way possible. McLaurin was forced to sit at a separate table in the cafeteria, a segregated place in the library, and-in a scene captured in a famous and heartbreaking photo-at a solitary desk placed in the hallway outside a classroom full of white students. McLaurin returned to court, demanding he be allowed to interact normally with the other students. This time his case reached the Supreme Court, which ruled unanimously in McLaurin's favor, finding that his separate treatment violated the Equal Protection Clause of the Fourteenth Amendment. It ordered the university to end its segregationist practices and treat McLaurin the same as all other students.