Is the Doctrine of "Separate But Equal" Dead or Just Dormant?

By Syreeta L. McNeal, CPA, JD

We are privileged to not have to live during the Jim Crow Era where our parents and grandparents could only go to separate facilities denoted for blacks and whites in the United States. But, I wonder is the legally created doctrine of “separate but equal” dead or just dormant?

Overturning the legally created doctrine of “separate but equal” in the United States is a tough task. The United States Supreme Court recognized racial segregation nationally in three landmark cases: United v. Stanley [1] , Plessy v. Ferguson[2] and Berea College v. Commonwealth of Kentucky [3]. These cases helped establish the doctrine of “Separate but Equal” solidifying racial segregation from a state to a national level.

A. United States v. Stanley

In Stanley, the Court answered whether sections 1 and 2 of the Civil Rights Act of 1875 was unconstitutional.[4] Five civil rights cases (United States v. Stanley, United States v. Ryan, United States v. Nichols, United States v. Singleton, and Robinson & wife v. Memphis and Charleston Railroad Company) were consolidated and heard before the Court in 1883.[5] Collectively, the plaintiffs were denied accommodations and services in an inn, hotel, theatre, and on a railroad privately owned in Kansas, California, Missouri, New York, and Tennessee.[6]
The Court’s interpreted the Fourteenth Amendment to prohibit states from violating the individual rights of its citizens.[7] If the Court granted the federal government the power to enforce under the Fourteenth Amendment, the Court reasoned that all state action would violate the Fourth Amendment.[8] To prevent such far reaching impact, the Court asserted that the Fourteenth Amendment monitoring rests with the states.[9] Because the states created racial segregation in public and private institutions, the Court held that the Fourteenth Amendment did not give Congress the power to enforce the Civil Rights Act of 1875 upon the states.[10]

B. Plessy v. Ferguson

In Plessy, the Court answered whether the 1890 Louisiana statute providing for separate railway carriages for the white and colored races was a reasonable regulation.[11]
Plessy Ferguson, resident of Louisiana of mixed descent, paid first class fair on the East Louisiana Railway to travel from New Orleans, LA to Covington, LA on June 7, 1892.[12]
East Louisiana Railway representatives authorized Mr. Ferguson to vacate seat and occupy a coach section designed for people of color.[13] Mr. Ferguson refused the order and imprisoned in the parish jail of New Orleans.[14]

The Court interpreted the Fourteenth Amendment’s purpose as a citizenship test and not one entitling blacks to equal protection.[15] The Court asserted that the Fourteenth Amendment was to enforce separate equality for blacks and whites.[16] Furthermore, the Court referenced that the most common instance validating their interpretation of the Fourteenth Amendment was linked to the establishment of separate schools for white and colored children in the states.[17] Like Stanley, the Court asserted that states are free to determine how the races socialize and these laws are not in conflict with the Fourteenth Amendment.[18] Therefore, the Court upheld the state statute of separate but equal in public accommodations to be constitutional.[19]

C. Berea College v. Commonwealth of Kentucky

In Berea College, the Court answered whether Berea College’s practice of racial integration in instruction was unconstitutional.[20] Berea College, incorporated in Kentucky, operated a private school of learning accessible to both whites and blacks.[21]
On October 4, 1904, the grand jury of Madison County Circuit Court indicted Berea College for unlawfully and willfully permitting both white and blacks students to receive instruction in the same classroom as a violation of Kentucky laws.[22] The Court asserted that the state regulates its institutions, not the federal government.[23] Also, the Court asserted that the state is under no obligation to treat a corporation and an individual alike.[24] The Court asserted that corporations are regulated by states and the Fourteenth Amendment protected individuals.[25] The Court expanded the reasoning of the Fourteenth Amendment to apply to individuals, not corporations. Because Berea College was incorporated in Kentucky, the Court held that Kentucky’s indictment of Berea College was not unconstitutional.[26]

Argument
The Remaining Cases of the Doctrine of “Separate but Equal” are Still Good Law

Stanley is the first U. S. Supreme Court case to recognize a state’s right to implement racial segregation in private institutions as it related to the Fourteenth Amendment. Plessy extended Stanley’s ruling and recognized a state’s right to implement racial segregation in public accommodations. Berea College extended Plessy’s ruling and recognized a state’s right to implement racial segregation in private schools. All three cases enforced racial segregation in private and public institutions on a national level known as the doctrine of “Separate but Equal.” Also, the three cases prevent the federal government from using provisions, like the Fourteenth Amendment, to interfere with state actions.

The U. S. Supreme Court overturned Plessy’s application of the doctrine of “Separate but Equal” with Brown v. Board of Education of Topeka, KS.[27] However, the U. S. Supreme Court has not overturned Stanley and Berea College.[28] With the Court not overturning Stanley and Berea College, the cases are still good law. Hence, subtly the doctrine of “Separate but Equal” exists even though visible manifestation of separate facilities for whites and blacks do not. With the push for privatization of public law schools, a legal loophole exists for public law schools to reinstate racial segregation in admissions. Therefore, minority groups like African-Americans, Hispanics, and Native Americans need to create a strategy to have the U. S. Supreme Court overturn Stanley and Berea College to effectively end the legally created doctrine of separate but equal. This might be difficult. In 2007, the United States Supreme Court took steps to reverse Brown’s impact in Parents Involved in Community Schools v. Seattle School District No. 1.[29] As a bear comes back to life after hibernation, it appears that the United States Supreme Court under Chief Justice Roberts is looking to revive the bear of “separate but equal.”

So the answer to the self-imposed question is that the doctrine of “separate but equal” is not dead. It is dormant and in hibernation. Legally, we all should be worried because we can’t afford to allow states to re-implement separate facilities for blacks and whites without any assurances of protections from the federal level if legally they can do so.

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[1] See United States v. Stanley, 109 U.S. 3 (1883).
[2] See Plessy v. Ferguson, 163 U.S. 537 (1896).
[3] See Berea College v. Commonwealth of Kentucky, 211 U.S. 45 (1908).
[4] United States v. Stanley, 109 U.S. 3, 8 (1883).
[5] Id. at 3.
[6] Id.
[7] Id. at 11.
[8] Id.
[9] Id.
[10] Id. at 19.
[11] Plessy v. Ferguson, 163 U.S. 537, 550 (1896).
[12] Id. at 541.
[13] Id.
[14] Id.
[15] Id.
[16] Id. at 544.
[17] Id.
[18] Id. at 550.
[19] Id.
[20] Berea College v. Commonwealth of Kentucky, 211 U.S. 45, 53 (1908).
[21] Id. at 45.
[22] Id.
[23] Id. at 54.
[24] Id.
[25] Id.
[26] Id. at 58.
[27] Shepard’s listing for Plessy v. Ferguson as of July 28, 2005.
[28] Shepard’s listing for United States v. Stanley and Berea College v. Commonwealth of Kentucky as of July
28, 2005.
[29] See Parents Involved in Community Schools, Petitioner v. Seattle School District No. 1, et al., 551 U.S. ____ (2007).