Separate but Equal: Jim Crow’s Legacy of Racial Inequality in America

From a lecture Series presented by Professor Peter Irons, Ph.D., M.A., J.D.

There are many instances in which Jim Crow helped to propogate racial inequality in America. One such example is the case of Plessy v. Ferguson, which began in 1890 when the Louisiana legislature passed the Separate Cars Act. This law stated, “No person shall be permitted to occupy seats in coaches, other than the ones assigned to them on account of the race they belong to.”

image of American waiting for train for article on racial inequality in america

Racial Inequality on the Rails

The case of Plessy v. Ferguson began in 1890, when the Louisiana legislature passed the Separate Cars Act. This law stated, “No person shall be permitted to occupy seats in coaches, other than the ones assigned to them on account of the race they belong to.”

The law required that railroads provide “equal but separate” facilities for those of different races, but it did not define the term “race” and left to conductors the job of assigning passengers to the proper coaches. Shortly after the law took effect, blacks in New Orleans organized the Citizens’ Committee to Test the Constitutionality of the Separate Car Law.

Learn more: Separate but Equal

1904 caricature of "White" and "Jim Crow" rail cars by John T. McCutcheon.
1904 caricature of “White” and “Jim Crow” rail cars by John T. McCutcheon.

Louis Martinet, a prominent physician and lawyer, began looking for someone who was willing to bring what he called “a test case” against the Separate Cars law. He found a candidate in Homer Adolph Plessy, a young Creole who often passed for white. Plessy was an octoroon, the term then used to describe people with seven great-grandparents who were white and one who was black.

The Supreme Court later wrote in Plessy’s case, “The mixture of colored blood was not discernible in him.” This raises an interesting question. If Plessy looked white, why did he challenge the Separate Cars Act? The answer is not clear, but under Louisiana law, any drop of African blood made a person black, and many Creoles resented the Jim Crow laws that lumped them with the darkest blacks as subjects of segregation. Plessy might also have wanted to show his solidarity with blacks who could not pass for white and who were immediately assigned to the “black” railroad coaches.

Homer Plessy Boards a Train

Image of Albion Tourgee
Albion Tourgee

Whatever his motivation, Homer Plessy entered the New Orleans station of the East Louisiana Railway on June 7, 1892. He purchased a first-class ticket to Covington, Louisiana, a trip of about 50 miles.

He had no intention of completing this trip. Plessy had arranged with railway officials before he bought his ticket to be arrested for the test case. When Plessy took a seat in the “white” coach and refused to move, police officers took him to the New Orleans jail. He was then arraigned before Judge John Ferguson in the city’s criminal court. Martinet had already recruited the nation’s leading civil rights lawyer to represent Plessy without fee. Albion Tourgee was a former Union army officer who later became, in his biographer’s words, “the most vocal, militant, persistent, and widely heard advocate of racial equality in the United States, black or white.”

Learn more: Five Jim Crow Schools and Five Cases

A Constitutional Case

Tourgee filed a motion with Judge Ferguson to dismiss the charges against Plessy on grounds that the Separate Cars Act violated the 13th and 14th Amendments by imposing a “badge of servitude” on Plessy and depriving him of the “privileges and immunities” of citizenship.

The city’s lawyer, Lionel Adams, defended the law as a “reasonable” exercise of the state’s “police powers” to protect the public health, safety, welfare, and morals. Adams claimed that what he called “the foul odors of blacks in close quarters” justified their separation from whites in railroad cars. Judge Ferguson sided with Adams and denied Plessy’s constitutional challenge to the law.

An Unusual Challenge, a Patronizing Judge, and a Rationalization of Prejudice

Albion Tourgee named Judge Ferguson the defendant in his appeal from this ruling to the Louisiana Supreme Court, which upheld Ferguson and sent the case to the U. S. Supreme Court for a final decision. In his brief to the Court, Tourgee issued an unusual challenge to the justices, in these words:

Suppose a member of this court should wake tomorrow with black skin and curly hair—the two obvious and controlling indications of race—and in traveling through that portion of the country where the Jim Crow car abounds, should be ordered into it by the conductor. It is easy to imagine the indignation, the protests, the assertion of pure Caucasian ancestry. But the conductor, the autocrat of caste, armed with the power of the state, will listen neither to denial or protest. You would then feel and know that such assortment of citizens on the line of race was a discrimination intended to humiliate and degrade the former subject and dependent class—an attempt to perpetuate the caste distinctions on which slavery rested.

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Image of Justice Henry Billings Brown
Justice Henry Billings Brown

Tourgee added another sentence that would find a solitary judicial echo: “Justice is pictured blind and her daughter, the law, ought to be color-blind.” The justices declined Tourgee’s challenge to put themselves in a black person’s shoes. In fact, the majority opinion of Justice Henry Brown answered with another patronizing judicial lecture to blacks:

We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

Having accused blacks of being too sensitive to the humiliation of segregation, Brown rested his decision on the sensitivity of whites. He brushed aside Tourgee’s argument that the 14th Amendment banned all state-enforced segregation, ruling that the Louisiana lawmakers needed only a “reasonable” basis for the Jim Crow law.

Brown said they were “at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order.” The only people Brown had in mind were the white people of Louisiana whose “comfort” would be disturbed by sharing railroad coaches with blacks. I think it’s fair to conclude that Justice Brown’s opinion in Plessy v. Ferguson was nothing more than an effort to rationalize prejudice.

He dismissed without any discussion the Yick Wo decision of 1886, the strongest precedent for holding that state-enforced segregation violated the Constitution. The case that Brown relied on most heavily for precedent, a decision of the Massachusetts Supreme Court upholding segregation in Boston’s public schools, had been decided two decades before the 14th Amendment was adopted.

Learn more: The Civil Rights Movement

The Sole Dissenter

The sole dissenter in the Plessy case, Justice John Marshall Harlan, answered Brown with a devastating rebuttal. Harlan made one basic point: The Civil War Amendments were designed to prohibit states from discriminating against blacks in their enjoyment of the “civil rights” that all citizens held. Borrowing from Tourgee’s brief, Harlan put his conclusion into a sentence that has become perhaps the most quoted in Supreme Court history: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” The notion of a “color-blind Constitution” has enormous appeal as a guiding principle, and several of our current justices have approvingly quoted Harlan’s famous sentence. But they never quote the sentences that precede his “color-blind” statement. Harlan wrote:

The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty.

Harlan stated in these sentences the reality of race in 1896. In considering these debates, it’s important to keep the full context of Harlan’s words in mind. It’s also worth noting that the “separate but equal” doctrine the Court established in the Plessy case survived for another six decades and had a great impact on maintaining the Jim Crow system whose legacy of racial inequality remains alive.

Keep Reading:
Dismantling Slavery: The Emancipation Proclamation
Martin Luther King, Jr.: American Prophet
Sing Out for Justice — Marian Anderson
Historians Weigh In On The Confederate Statue Debate: The Torch Podcast

From the Lecture Series: The History of the Supreme Court
Taught by Professor Peter Irons, Ph.D.,M.A., J.D.