Justice Jackson's Unpublished Opinion in Brown v. Board of Education of Topeka

by Robert H. Jackson

MR. JUSTICE JACKSON, concurring:

I.

Since the close of the Civil War, the United States has been “hesitating between two worlds – one dead, the other powerless to be born.” Constitutions are easier amended than social customs, and even the North never fully conformed its racial practices to its professions.

One whose impressionable years were spent in public schools in a region where Negro pupils were very few and where economic, social and political motives united against segregating them is predisposed to the conclusion that segregation elsewhere has outlived whatever justification it may have had. The practice seems marked for early extinction. Whatever we might say today, within a generation it will be outlawed by decision of this Court because of the forces of mortality and replacement which operate upon it.

Decision of these cases would be simple if our personal opinion that school segregation is morally, economically or politically indefensible made it legally so. But it is not only established in the law of seventeen states and the national capital; it is deeply imbedded in social custom in a large part of this country. Its eradication involves nothing less than a substantial reconstruction of legal institution and of society. It persists because of fears, prides and prejudices which this Court cannot eradicate, which even in the North are latent, and occasionally ignite where the ratio of colored population to white passes a point of where the latter vaguely, and perhaps unreasonably, feel themselves insecure.

However sympathetic we may be with the resentments of those who are coerced into segregation, we cannot, in considering a recasting of society by judicial fiat, ignore the claims of those who are to be coerced out of it. We cannot deny the sincerity and passion with which many feel that their blood, lineage and culture are worthy of protection by enforced separatism of races and feel they have built their segregated institutions for many years on almost universal understanding that segregation is not constitutionally forbidden.

It has seemed almost instinctive with every race, faith, state or culture to resort to some isolating device to protect and perpetuate those qualities, real or fancied, which it especially values in itself. Separatism, either by voluntary withdrawal or by imposed segregation, has been practiced in some degree by many religions, nationalities and races, and by many—one can almost say all—governments, to alleviate tensions, prevent subversions and to quell or forestall violence. It is today being practiced on a voluntary basis by minorities, who discourage or forbid intermarriage, maintain separate denominational schools, and otherwise seek to prevent contacts which threaten dilution of blood or dissipation of faith. This instinct for self-preservation is enough to account for the prevalence of segregation in several of the Northern states.

But, in the South, the Negro appears to suffer from other antagonisms that are an aftermath of the great American white conflict. The white South harbors in historical memory, with deep resentment, the program of reconstruction and the deep humiliation of carpetbag governments imposed by conquest. Whatever other motives were behind these offensive reconstruction measures and whatever their necessity or merit, the North made the Negro their emotional symbol and professed beneficiary, with the natural consequence of identifying him with all that was suffered from his Northern champions. Thus, I am convinced the race problem in the South involves more than mere racial prejudice. It is complicated emotionally with a white war and white politics.

Whether a use of the power of this Court to decree an end of segregation will diminish or increase racial tensions in the South I have not personal experience or knowledge to judge, nor is that my responsibility. But I am satisfied that it would retard acceptance of this decision if the Northern majority of this Court should make a Pharisaic and self-righteous approach to this issue or were inconsiderate of the conditions which have brought about and continued this custom or should permit a needlessly ruthless decree to be promulgated.

The plain fact is that the questions of constitutional interpretation and of the limitations on responsible use of judicial power in a federal system implicit in these cases are as far-reaching as any that have been before the Court since its establishment.

II. DOES EXISTING LAW CONDEMN SEGREGATION?

Layman as well as lawyer must query how it is that the Constitution this morning forbids what for three-quarters of a century it has tolerated or approved. He must further speculate as to how this reversal of its meaning by the branch of the Government supposed not to make new law but only to declare existing law and which has exactly the same constitutional materials that so far as the states are concerned have existed since 1868 and in the case of the District of Columbia since 1791. Can we honestly say that the states which have maintained segregated schools have not, until today, been justified in understanding their practice to be constitutional?

Of course, for over three-quarters of a century majestic and sweeping generalities of the Due Process and Equal Protection Clauses of the Fourteenth Amendment were capable of being read to require a full and equal racial partnership in all matters with the reach of law. But neither of these clauses specifically mentions education or segregation. Yet, if these texts had such meaning to the age that wrote them, how could the identical Due Process Clause of the Fifth Amendment for half a century have tolerated slavery in the District of Columbia? And when those words were copied into the Fourteenth Amendment and the Equal Protection Clause added, why were they not deemed to assure the Negro the right to vote? The Fourteenth Amendment contemplated denial of the vote and provided a reduction of congressional representation for states which do not allow the Negro to exercise the franchise. It was nearly two years later (1870) when the Fifteenth Amendment was added to assure equal voting rights; but, even then, with the shortcoming of the Fourteenth Amendment obvious, nothing was included as to either segregation or education. Thus, there is no explicit prohibition of segregated schools and it can only be supplied by interpretation.

It is customary to turn to the original will and purpose of those responsible for adoption of a constitutional document as a basis for its subsequent interpretation. So much is implied by the questions we have asked of counsel. Their exhaustive research to uncover the original will and purpose expressed in the Fourteenth Amendment yield for me only one sure conclusion: it was a passionate, confused and deplorable era. Like most legislative history, that of the Amendment is misleading because its sponsors played down its consequences in order to quiet fears which might cause opposition, while its opponents exaggerated the consequence to frighten away support. Among its supporters may be found a few who hoped that it would bring about complete social equality and early assimilation of the liberated Negro into an amalgamated population. But I am unable to find any indication that their support was decisi[ve]^[1], and certainly their view had no support from the great Emancipator himself. The majority was composed of more moderate men who appeared to be thinking in terms of ending all questions as to constitutionality of the contemporaneous statutes conferring upon the freed man certain limited civil rights. It is hard to find an indication that any influential body of the movement that carried the Civil War Amendments had reached the point of thinking about either segregation or education of the Negro as a current problem, and harder still to find that the Amendments were designed to be a solution.

If we turn from words to deeds as evidence of purpose, we find nothing to show that the Congress which submitted these Amendments understood or intended to prohibit the practice here in question. The very Congress that proposed the Fourteenth Amendment, and every Congress from that day to this, established or maintained segregated schools in the District of Columbia, where its power over purse and policy was complete. This system was notorious and must have been known to every Congressman who voted for District of Columbia appropriations down to this very day. Occasionally one protested, which only emphasized that the policy was firm and deliberate. Congress legislated concerning some Negro civil rights, such as the right to sit upon juries, but never has touched the segregation question. Congress readmitted representatives of the “reconstructed” Confederate States, which it required to accept the Fourteenth Amendment, but has never indicated a view that segregated schools constituted a breach of the condition of reinstatement in the Union.

Turning from Congress to look to the behavior of the states, we find that equally impossible to reconcile with any understanding that the Amendment would prohibit segregation in schools. Some inference might be drawn from the fact that five states which did have segregated schools when the Amendment was submitted to them abandoned them at about that time and that four which had segregated schools refused to ratify the Amendment. But nine Northern states and two border states either continued or established segregated schools after ratifying the Amendment. The eight reconstructed states all established segregated schools. Down to the present day, seventeen states of the Union by law permit or require separation of the races in the public school. Plainly, there was no consensus among state legislators or educators ratifying the Amendment any more than in Congress that it was to end segregation.

If we look to see how judicial precedent squares with the practice of legislators and administrators, we find that state courts of the North and this Court, where Northern men have predominated, have shared the understanding that these Clauses of their own force do not prohibit the states from deciding that each race must obtain its education apart rather than by commingling. Almost a century of decisional law rendered by judges, many of whom risked their lives for the cause that produced these Amendments, is almost unanimous in the view that the Amendment tolerated segregation by state action, at least in the absence of congressional action to the contrary.

The custom of a people has always been recognized as a powerful lawmaker. Widespread usage has reinforced the view of legislators and educators and the opinions of the courts. This Court, in common with courts everywhere, has recognized the force of long custom and has been reluctant to use judicial power to try to recast social usages established among the people. Indeed, not long ago we decided that custom has nullified the constitutional plan for independent presidential electors. Today’s decision is to uproot a custom deeply embedded not only in the state statutes but in the habit and usage of people in their local communities.

Convenient as it would be to reach an opposite conclusion, I simply cannot find in the conventional material of constitutional interpretation any justification for saying that in maintaining segregated schools any state or the District of Columbia can be judicially decreed, up to the date of this decision, to have violated the Fourteenth Amendment.

III. DOES THE AMENDMENT CONTEMPLATE CHANGED CONDITIONS?

The Fourteenth Amendment does not attempt to say the last word on the concrete application of its pregnant generalities. It declares that “The Congress shall have power to enforce, by appropriate legislation, the provisions of the Article.” It thus makes provision for giving effect from time to time to the changes of conditions and public opinion always to be anticipated in a developing society. A policy which it outlines only comprehensively it authorized Congress to complete in detail.

If the Amendment deals at all with state segregation and education, there can be no doubt that it gives Congress a wide discretion to enact legislation on that subject binding on all states and school districts. Admittedly, it explicitly enabled Congress from time to time to exercise a wide discretion as to new laws to meet new conditions. The question is how far this Court should leave this subject to be dealt with by legislation, and any answer will have far-reaching implications.

The Court may decide the right of a particular plaintiff in a specific case and enforce its decision by contempt proceedings against the individuals who were defendants therein. But in embarking upon a widespread reform of social customs and habits of countless communities we must face the limitations on the nature and effectiveness of the judicial process.

The futility of effective reform of our society by judicial decree is demonstrated by the history of this very matter. For many years this Court has pronounced the doctrine that, while separate facilities for each race are permissible, they must be equal. Our pronouncement to that effect has remained a dead letter in a large part of the country. Why has the separate-but-equal doctrine declared by this Court so long been a mere promise to the colored ear to be broken to the hope?

It has remained an empty pronouncement because the courts have no power to enforce general declarations of law by applying sanction against any persons not before them in a particular litigation. Contempt proceedings as to those who disobey the court’s order may be available, but only against those who were parties to the action.

I see no reason to expect a pronouncement that segregation is unconstitutional will be any more self-executing or any more efficiently [sufficiently]^[2] executed than our pronouncement that unequal facilities are unconstitutional. A law suit must be maintained in every school district which shows persistent recalcitrance to lay the basis for a contempt charge. That is an effective sanction in a private controversy, but it is a weak reed to rely on in initiating a change in the social system of a large part of the United States. With no machinery except that of the courts to put the power of the Government behind it, it seems likely to result in a failure that will bring the court into contempt and the judicial process into discredit.

The Court can strike down legislation which supports educational segregation, but any constructive policy for abolishing it must come from Congress. Only Congress can enact a policy binding on all states and districts, and it can delegate its supervision to some administrative body provided with standards for determining the conditions under which sanctions should apply. It can make provisions for federal funds where changes required are beyond the means of the community, for mixing the races will require extensive changes in physical plants and will impose the largest burden on some of the nation’s lowest income regions. Moreover, Congress can lift the heavy burden of private litigation from disadvantaged people and make the investigation and administrative proceedings against recalcitrant districts the function of some public agency that would secure enforcement of the policy.

A Court decision striking down state statutes or constitutional provisions which authorize or require segregation will not produce a social transition, nor is the judiciary the agency to which the people should look for that result. Our decision may end segregation in Delaware and Kansas, because there it lingers by a tenuous lease of life. But where the practice really is entrenched, it exists independently of any statute or decision as a local usage and deep-seated custom sustained by the prevailing sentiment of the community. School districts, from habit and conviction, will carry it along without aid of state statutes. To eradicate segregation by judicial action means two generations of litigation.

It is apparent that our decision does not end but begins the struggle over segregation. Representatives of the Negros contend with great force that if to enter white schools is a right at all it is a present and personal right and that deferred belief may be a denial of rights to those pupils who meanwhile pass school age. Counsel for the states contend that if segregation is abolished at all, the process must be adapted to varying local conditions which will require time and consideration and varying periods of adjustment. They point out in building their present administrative, education and physical structures they have relied on the teachings of this Court and the attitudes of Congress.

The Department of Justice concedes that uniform and immediate enforcement of a Court decree condemning segregation is impossible. It points out that school districts may have to be consolidated or divided, or their boundaries revised, and the teachers and pupils may have to be transferred. The Government points out that an essential part of the plan will involve placing white children under colored teachers, unless colored teachers are to be dismissed in some areas where they have been hired in substantial numbers. This is one of the most controversial problems of adjustment. Financial problems also obviously are involved. In some regions, the white schools are good, the Negro schools are poor. If both classes are to be accommodated in both schools, it would require white pupils to shift to the Negro schools, a measure not likely to be accepted without strong local opposition. New facilities are necessarily to be provided, and that involves taxation, the sale of bonds, and the votes of taxpayers and affirmative actions by public bodies. It is impossible now to anticipate all of the difficulties or to determine the time necessary in any particular area to overcome them. While our decision may invalidate existing laws and regulations governing the school, the Court cannot substitute constructive laws and regulations for their governance. Local or state or federal action will have to build the integrated school systems if they are to exist. A gigantic administrative job has to be undertaken.

The Government advises that the courts assume this task and that we remand the cases to the District Courts under instructions to proceed with enforcement as rapidly as conditions make it appear practicable. The Government proposes that we affirmatively direct the District Courts to obtain from the local school authorities and approve “an effective program for accomplishing transition to a nonsegregated system.” It adds, “in passing upon such a program, the lower court could receive the views not only of the parties but of interested persons and groups in the community.”

I will not be a party to thus casting upon the lower courts a burden of continued litigation under circumstances which subject district judges to local pressures and provide them with no standards to justify their decisions to their neighbors, whose opinions they must resist. The Department offers us no standards, and none exist in the law, to determine when and how the school system should be revamped. For the courts to supervise the educational authorities with the aid of town meetings seems to me manifestly beyond judicial power or functions. Our sole authority is to decide an existing case or controversy between the parties. Nothing has raised more doubt in my mind as to the wisdom of our decision than the character of the decree which the Government conceives to be necessary to its success. We are urged, however, to supply means to supervise transition of the country from segregated to nonsegregated schools upon the basis that Congress may or probably will refuse to act. That assumes nothing less than that we must act because our representative system has failed. The premise is not a sound basis for judicial action.

IV. THE LIMITS AND BASIS OF JUDICIAL ACTION

Until today Congress has been justified in believing that segregation does not offend the Constitution. In view of that deference habitually paid by other branches of the Government to this Court’s interpretation of the Constitution, it is not unlikely that a considerable part of the inertia of Congress, if not of the country, has been due to the belief that the existing system is constitutional. The necessity for judicial action on this subject arises from the doctrine concerning it which is already on our books.

It is not, in my opinion, necessary or true to say that these earlier judges, many of whom were as sensitive to human values as any of us, were wrong in their own times. With the fundamental premise that the requirement of equal protection does not disable the state from making reasonable classifications of its inhabitants nor impose the obligation to accord identical treatment to all, there can be no quarrel. We still agree that it only requires that the classifications of different groups rest upon real and not upon feigned distinctions, that the distinction have some rational relation to the subject matter for which the classification is adopted, and that the differences in treatment between classes shall not go beyond what is reasonable in the light of the relevant differences. These legal premises are not being changed today.

But the second step in their reasoning, sometimes in reliance on precedents from slave days, sometimes from experience in their own time, was not a legal so much as a factual assumption. It was that there were differences between the Negro and the white races, viewed as a whole, such as to warrant separate classification and discrimination not only for their educational facilities but also for marriage, for access to public places of recreation, amusements or service and as passengers on common carriers and as the right to buy and own real estate.

Whether these early judges were right or wrong in their times I do not know. Certainly in the 1860’s and probably throughout the Nineteenth Century the Negro population as a whole was a different people than today. Lately freed from bondage, they had little opportunity as yet to show their capacity for education or even self-support and management. There was strong belief in heredity, and the Negro’s heritage was then close to primitive. Likewise, his environment from force of circumstances was not conducive to his mental development. I do not find it necessary to stigmatize as hateful or unintelligent the early assumption that Negro education presented problems that were elementary, special and peculiar and that the mass teaching of Negroes was an experiment not easily tied in with the education of pupils of more favored background. Nor, when I view the progress that was made until it, can I confidently say that the practice of each race pursuing its education apart has been, up to now, wholly to the Negro’s disadvantage. My little experience in a nonsegregated school does not teach that to mingle closely with white pupils fully solves the Negro’s psychological or educational problem. Indeed, Negro progress under segregation has been spectacular and, tested by the pace of history, his rise is one of the swiftest and most dramatic advances in the annals of man. It is that, indeed, which has enabled him to outgrow the system and to overcome the presumptions on which it was based.

The handicap of inheritance and environment has been too widely overcome today to warrant these earlier presumptions based on race alone. I do not say that every Negro everywhere is so advanced, nor would I know whether the proportion who have shown educational capacity is or is not in all sections similar. But it seems sufficiently general to require me to say that mere possession of colored blood, in whole or in part, no longer affords a reasonable basis for a classification for educational purposes and that each individual must be rated on his own merit. Retarded or subnormal ones, like the same kinds in whites, may be accorded separate educational treatment. All that is required is that they be classified as individuals and not as a race for their learning, aptitude and discipline.

Moreover, we cannot ignore the fact that assimilation today has proceeded much beyond where it was at the earlier periods. Blush or shudder, as many will, mixture of blood has been making inroads on segregation faster than change in law. No clear line of separation between the races has been observed. More and more a large population with as much claim to white as to colored blood baffles any justice in classification for segregation.

Nor can we ignore the fact that the concept of the place of public education has markedly changed. Once a privilege conferred on those fortunate enough to take advantage of it, it is now regarded as a right of a citizen and a duty enforced by compulsory education laws. Any thought of public education as a privilege which may be given or withheld as a matter of grace has long since passed out of American thinking.

It is neither novel nor radial doctrine that statutes once held constitutional may become invalid by reason of changing conditions, and those held to be good in one state of facts may be held to be bad in another. A multitude of cases, going back far into judicial history, attest to this doctrine. In recent times, the practical result of several of our decisions has been to nullify the racial classification for many of the purposes as to which it was originally held valid.

I am convinced that present-day conditions require us to strike from our books the doctrine of separate-but-equal facilities and to hold invalid provisions of state constitutions or statutes which classify persons for separate treatment in matters of education based solely on possession of colored blood. In doing so, I have no doubt of the power of a court of equity to condition its remedies to do justice to both parties and I believe that the circumstances under which a large part of the country has grown into the existing system are such that only consideration of that in framing the decree would be just. And, in the long run, I think only a reasonably considerate decree would be an expedient one for the persons it has sought to benefit hereby.

Questions as to the contents of a decree have been shunned by both of the parties to the contest, although neither of them accept[s] the Government’s proposals. They obviously feared it would be inconsistent with their positions to discuss the contents of a decree lest they appear to be acquiescing in it.

I favor, at the moment, going no farther than to enter a decree that the state constitutions and statutes relied upon as requiring or authorizing segregation merely on account of race or color, are unconstitutional. I would order a reargument on the contents of our decree and request the Government and each of the parties to submit detailed proposed decrees applicable to each case.

Notes

1  The original word here was decision, which is almost certainly an unintentional error.

2  The sources for this text conflict on this word. Justice Robert H. Jackson's Unpublished Opinion in Brown v. Board: Conflict, Compromise, and Constitutional Interpretation (2017) by David M. O'Brien has efficiently. Alternatively, I Dissent: Great Opposing Opinions in Landmark Supreme Court Cases (2008) by Mark Tushnet has sufficiently.