CONSTITUTIONAL LAW
W.B. Fisch, Fall 2006
Assignment #30

B. Racial Segregation in Schools and other Public Facilities

  • PLESSY V. FERGUSON, p. 723 (1896)
    • what regulation is challenged, and on what ground?
      • is Plessy challenging the classification as such, or his assignment in it?
      • is the regulation even-handed?
    • what is the basis for distinguishing between "social" and "political" rights?
    • Gong Lum v. Rice (1927): application to schools
  • Cases applying the "separate but equal" standard strictly (all law schools!)
    • Missouri ex rel. Canada v. Gaines (1938): tuition to out-of-state law school
    • Sweatt v Painter (1950): separate law school, demonstrably inferior
    • McLaurin v. Oklahoma Regents (1950): separate seats, tables, etc., in same facility
  • BROWN V. BOARD (I), p. 726 (1954)
    • Were the facilities equal in quality and level of support? Do you believe that?
    • Could the decision have been made without overruling Plessy?
    • There has been much criticism of the sociological evidence relied on by the Court for the proposition that separation is inherently invidious and harmful -- was it necessary to the result?
    • Imagine Hawaii with a population equally divided between Caucasians, Polynesians and Asians, with equal representation in the legislature. Could they adopt -- with a majority of each group voting for it -- a system of racial separation for their schools, with equal funding from the state?
  • BOLLING V. SHARPE, p. 729 (1954): what does this decision (companion to Brown) add to Brown's understanding of Equal Protection? Does the EP clause itself apply to the case?
  • Johnson v. California, Supp. p. 35 (2005): is there a lower burden of justification for prisons than for other public facilities?
  • BROWN V. BOARD OF EDUCATION OF TOPEKA (II), p. 731 (1955)
    SWANN V. CHARLOTTE-MECKLENBURG BOARD OF ED., p. 733 (1971)
    • when a school system is found to be unlawfully segregated, what is the goal of remedial measures
      • eliminate all vestiges of state-imposed segregation?
      • achieve integration?
    • what is the constitutional objection to mandatory pupil assignment as a remedy for unlawful segregation?
    • when will we know that there is no longer a justification for race-conscious action?