Fourteenth Amendment, Section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Cases decided soon after ratification of the Fourteenth Amendment may be read as precluding any state-imposed distinction based on race, 1 but the Court in Plessy v. Ferguson 2 adopted a principle first propounded in litigation attacking racial segregation in the schools of Boston, Massachusetts. 3 Plessy concerned not schools but a state law requiring
equal but separate facilities for rail transportation and requiring the separation of
white and colored passengers.
The object of the [Fourteenth] [A]mendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in exercise of their police power. 4 The Court observed that a common instance of this type of law was the separation by race of children in school, which had been upheld, it was noted,
even by courts of states where the political rights of the colored race have been longest and most earnestly enforced. 5
Subsequent cases following Plessy that actually concerned school segregation did not expressly question the doctrine and the Court’s decisions assumed its validity. It held, for example, that a Chinese student was not denied equal protection by being classified with African Americans and sent to school with them rather than with white students, 6 and it upheld the refusal of an injunction to require a school board to close a white high school until it opened a high school for African Americans. 7 And no violation of the Equal Protection Clause was found when a state law prohibited a private college from teaching white and black students together. 8
In 1938, the Court began to move away from
separate but equal. It held that a state that operated a law school open to white students only violated a black applicant’s right to equal protection, even though the state offered to pay his tuition at an out-of-state law school. The requirement of the clause was for equal facilities within the state. 9 When Texas established a law school for African Americans after the plaintiff had applied and been denied admission to the school maintained for whites, the Court held the action to be inadequate, finding that the nature of law schools and the associations possible in the white school necessarily meant that the separate school was unequal. 10 Equally objectionable was the fact that when Oklahoma admitted an African American law student to its only law school it required him to remain physically separate from the other students. 11