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

From the Lecture Series: The History of the Supreme Court

By Peter Irons, Ph.D.,M.A., J.D., University of San Diego

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.”

Bus station in Durham, NC 1940
At the bus station in Durham, North Carolina 1940 (Image: Delano, Jack, photographer/Library of Congress)

Racial Inequality on the Rails

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.

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 (Image: John T. McCutcheon/Public domain)
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.”

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.

This is a transcript from the video series History of the Supreme Court. Watch it now, on The Great Courses Plus.

Learn More: Separate but Equal

Homer Plessy Boards a Train

Image of Albion Tourgee
Albion Tourgee (Image: Unknown/Public domain)

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 about 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.

Image of Justice Henry Billings Brown
Justice Henry Billings Brown (Image: Frances Benjamin Johnston/Public domain)

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.

Common Questions About Plessy v. Ferguson

Q: What happened during Plessy v. Ferguson?

Plessy v Ferguson was a 1896 Supreme Court case in which Homer Plessy, a man of mixed race, refused to move to a train for African Americans. In the case, the “separate but equal” policy was deemed constitutional, leading to segregation.

Q: Why was Plessy v. Ferguson important?

The Plessy v. Ferguson case was significant in that it led to the “separate but equal” ruling in the Supreme Court, using the word “equal” to seemingly grant African Americans their Constitutional rights on the surface while in reality denying them the same rights as white Americans. Additionally, the public restrooms, hospitals, courtrooms, and schools that African Americans had to use under this policy were not in fact equal but were of far lower quality than those used by whites.

Q: Was Plessy found guilty?

In the Plessy v. Ferguson case, Homer Plessy, a man of mixed racial heritage, was found guilty by Judge Howard Ferguson for sitting in a section of a railcar reserved for whites only. The case was taken to the Supreme Court, which defended the Constitutionality of Ferguson’s decision and led to Jim Crow Laws which persisted for decades.

Q: How did the Plessy v. Ferguson case legalize segregation?

Under the Fourteenth Amendment of the Constitution, African Americans were supposed to receive equal rights. The Plessy v. Ferguson case legalized segregation through the “separate but equal” phrase, which essentially created a loophole by stating that although African American facilities were separate from those used by whites, they were still of equal quality. Although the part about “equal quality” was not actual true, segregation continued until the Civil Rights Act of 1964.

This article was updated on 8/18/2019

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