Evening star., 1954-05-18
The Bon on Segregation

"S D~H ~" "SSSISSOSIOu
The Supreme Courts unanimous decision
outlawing segregation in the public schools
should be looked at from two points of view
The first is concerned with the constitu-
tional basis for the courts position, and the
implications which flow from the ruling. The
second has to do with the wisdom, in the long
run, of the decision
There is a comment to the effect that "the
law is what the judges say it is" and this
segregation ruling lends a sturdy vitality to
that old saw. In effect, nine men have con-
cluded that segregation in the public schools
Is bad thing, and have asserted the power
to outlaw it. The constitutional basis for the
decision is obscure. No act of Congress or State
law is relied upon. This momentous policy
determination, in short, is imposed on the
country by the will of nine men.
The decision applicable to the States was
predicated on the equal protection" clause of
the Fourteenth Amendment. The court did
not go so far as to say that the post Civil War
Congress which submitted this amendment to
the States intended that it should serve to out
law segregation in the public schools. That
would have been preposterous. For the same
Congress which proposed the Fourteenth
Amendment enacted two statutes a month
later providing for separate schools for white
and colored in the District. The court got
around its difficulty on this point by the simple
device of saying that it could not determine
with any degree of certainty" what may have
been the intent of Congress in proposing the
amendment or of the State Legislatures in
adopting it.
This uncertainty, however, did not prevent
the court from moving on 1t concluded that it
could not turn the clock back" to the time
when the Fourteenth Amendment was adopted,
nor even to 1896, when the court decided that
segregated facilities, if equal, were not uncon-
stitutional It concluded that public education
must be considered in the light of its present
place" in American life. From this, it was but
a short step to the finding, based on the finn
siest of cited authority, that segregation is
psychologically harmful to colored children,
that separate schools are inherently unequal"
and that, therefore, they deprive colored chill
dren of that equal protection under law which
Is guaranteed by the Fourteenth Amendment.
Since the Fourteenth Amendment applies
only to the States, the District case was brought
under the Fifth Amendment provision that no
one shall be deprived of life, liberty or prop
erty without due process of law. This presented
some difficulty, but not much Chief Justice
Warren disposed of it in seven paragraphs. It
would be unthinkable, he said, for the court
to outlaw school segregation in the States
under the Fourteenth Amendment and tolerate
it in the District under the Fifth Amendment.
Therefore, he reasoned segregation in the Dis
trict schools is a denial of the due process Of
law guaranteed by the Fifth Amendment And
this in the face of the fact that the due process
clause was never held to be a bar to slavery
itself!
In short with respect to this aspect of the
decision, it may be doubted that any court
not even the mine old men" of the Franklin
D. Roosevelt era-haS gone quite as far as this
court. If ever a. decision "made" law at the
expense of States rights, this one does.
Concern over a dubious assumption Of,
power by the court, however, does not alter
the fact that this decision finds much support
in wisdom and fairness.
It is an undeniable fact that the separate
but-equal doctrine has not produced equal
school facilities for colored, especially in the
South. And it may be doubted that equal facn-
tiles could have been provided in many areas,
even if the court had adhered to the separate
but-equal rule.
So perhaps this decision, as a practical
matter merely requires very early resolution
of a social problem which, in any event. would
have been resolved sooner or later by doing
away with segregation. A better result might
have been attained if the States had been left
to work out this problem in their own way.
Our own Court of Appeals was not indulging
in idle comment when, in 1850, it said that
centuries of bitter experience in all parts OF
the world have proved that the (raciaD prob
lem is insoluble by force of any sort" In this
instance however, the die has been cast. The
court has ruled and the judicial power stands
behind that ruling. So the problem now is to
find the best means of impementing the ruling
"a problem which the court has recognized IN
its request for further argument on the point
this fall