the circumstances surrounding the adoption of the Fourteenth Amendment in 1868. It covered, exhaustively, consideration of the Amendment in Congress, ratification by the states, then existing practices in racial segregation, and the views of proponents and opponents of the Amendment.
This discussion and our own investigation convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced.
At best, they are inconclusive. The most avid proponents of the postwar Amendments undoubtedly intended them to remove all legal distinctions among "all persons born or naturalized in the United States."
Their opponents, just as certainly were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the State legislature had in mind cannot be determined with any degree of certainty.
An additional reason for the illusive nature of the Amendment's history, with respect to segregated schools, is the status of public education at that time. In the South, the movement toward free common schools, supported by general taxation, had not yet taken hold. Education of white children was largely in the hands of private groups. Education of Negroes was almost nonexistent, and practically all of the race was illiterate. In fact, any education of Negroes was forbidden by law in some states.
Today, in contrast, many Negroes have achieved outstanding success in the arts and sciences as well as in the business and professional world. It is true that public education has already advanced further in the North, but the effect of the Amendment on Northern States was generally ignored in the Congressional debates.
Even in the North, the conditions of public education did not approximate those existing today. The curriculum was usually rudimentary; ungraded schools were common in rural areas; the school term was but three months a year in many states; and compulsory school attendance was virtually unknown.
As a consequence, it is not surprising that there should be so little in the history of the Fourteenth Amendment relating to its intended effect on public education.
In the first cases in this court construing the Fourteenth Amendment, decided shortly after its adoption, the court interpreted it as proscribing all state-imposed discriminations against the Negro race.
The doctrine of "separate but equal" did not make its appearance in this court until 1896 in the case of Plessy v. Ferguson . . . involving not education but transportation.
[A footnote explains that "the doctrine apparently originated in Roberts v. City of Boston, 59 Mass. 198, 206 ( 1849) upholding school segregation against attack as being violative of a state constitutional guarantee of equality. Segregation in Boston public schools was eliminated in 1855. . . . But elsewhere in the north segregation in public education has persisted until recent years."]
American courts have since labored with the doctrine for over half a century. In this court, there have been six cases involving the "separate but equal" doctrine in the field of public education.
In Cumming v. County Board of Education, 175 U.S. 528, and Gong Lum v. Rice, 275 U.S. 78, the validity of the doctrine itself was not challenged. In most recent cases, all on the graduate school level, inequality was found in that specific benefits enjoyed by white students were denied to Negro students of the same educational qualifications. Missouri ex rel. Gaines v. Canada, 305