What Brown v. Board of Education Should Have Said: The Nation's Top Legal Experts Rewrite America's Landmark Civil Rights Decision

By Jack M. Balkin | Go to book overview

MacKinnon, J., concurring in the judgment.

Beneath and beyond the victory for Black schoolchildren in these five cases—a step for all toward what Mr. Silas Hardrick Fleming, a plaintiff testifying in Brown, called “the light”1—lie hazards for the principle of equality under law and for the social equality it aims ultimately to promote.

The risk we run today is not of going too far too fast, as defendants fear, but of going too slowly and not far enough. Insuring a future consistent with the Fourteenth Amendment's purpose and promise, as my colleagues document and interpret it, calls not only for dismantling racially segregated public schools but for squarely facing why official separation on the basis of race ever was seen as consistent with a constitutional equality rule in the first place. This deeper history has roots and remains in legal concepts, as well as in the social dynamics and political events my colleagues report. Because this case requires us to define no less than what equality, as guaranteed in the Constitution, means, I write separately to draw out and repudiate this theoretical legacy, which began long before slavery on this continent.

Plaintiffs in these five cases argue that public school segregation on the basis of race, officially permitted or required, relegates Negro children to inferior status, denying them equal protection of the laws within the meaning of the Fourteenth Amendment by depriving them of equal educational opportunities. On reargument before this Court, plaintiffs2 squarely challenge the rule of “separate but equal,” as formulated in Plessy v. Ferguson, 163 U.S. 537 (1896), a transportation case under the aegis of which racially segregated public schools have been permitted so long as they were substantially equal in facilities. Plaintiffs argue, in this and in Bolling v. Sharpe, post, challenging racial segregation in schools in the nation's capital, that “separate but equal” is intrinsically inconsistent with the Fourteenth Amendment's guarantees of equality and due process of law.

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