means of denying African Americans equal treatment, declared the African Americans’ sense that this might be invidious discrimination to be a myth that “the colored race” might unwisely indulge. These justices also knew or should have known of the KKK, lynchings, and all the other phenomena of white rule.
To justify these views, the Court cited cases upholding racial segregation in schools, public accommodation, and transportation. No matter that many of these cases described practices that antedated the Civil War. By the time Plessy was decided, the Court had already trivialized the Fourteenth Amendment and in so doing ignored the lesson that the War Between the States ought to have taught.11 As Paul Beatty has suggested, some folks think “antebellum” is a cranky old white lady.
The mythology of separate equality, set out in Plessy, persisted. In 1941, in Railroad Commission of Texas v. Pullman Co.,12 the Supreme Court refused to confront it. The Texas Railroad Commission enacted a regulation providing that sleeping cars on trains running through Texas, and therefore indisputably operating in interstate commerce, must have a conductor in charge of the sleeping cars and not a porter. All train conductors where white, and almost all sleeping car porters were African-American. The railroad, the Pullman Company, and the Brotherhood of Sleeping Car Porters sued, alleging that the regulation violated the Fourteenth Amendment equal protection clause.
Note the alliance of plaintiffs here, where the notoriously anti-union Pullman Company and the at least mildly antiunion railroad joined an African American labor organization in bringing the lawsuit. We see the same kinds of alliances in, for example, challenges to gender discrimination: corporate employers know that recruitment and retention of qualified workers is harmed when the state permits or mandates discrimination based on sexual orientation, gender, race, or ethnicity.
The lawsuit did not require reexamination of “separate but equal.” Here was a state law that, based on race, forbade private employers to choose employees who would perform certain functions.
Shamefully, the unanimous Supreme Court ducked the issue. Its rationale survives as something called “Pullman abstention,” and many if not most books that discuss it do not pause to remark just how tawdry was the reasoning that gave rise to this principle. Justice Frankfurter justified the Court’s refusal to decide:
The complaint of the Pullman porters undoubtedly tendered a substantial constitutional issue. It is more than substantial. It touches a sensitive area of social policy upon which the federal courts ought not to enter unless no alternative to its adjudication is open.
Thus, white Texas bureaucrats were allowed to override not only the Fourteenth Amendment equal protection clause but also the judgment of the Pullman Company and the railroad, two entities that would be most aware of the social and economic consequences of having porters staff the sleeping cars.
The mythology here was that the Supreme Court’s assertedly delicate role as constitutional arbiter must be played cautiously, deferentially, and remote from grim realities such as racism. In shirking its constitutional responsibility, the Court also turned its back on earlier decisions that, in the process of upholding racial discrimination, had invalidated state laws that overrode private transportation companies’ decisions to discriminate. Yes, the Court had already been down this road. Only when the path beckoned toward recognizing the constitutional right did it call a halt.
The candid admission that the Court was backing away from its duty is even more surprising because Justice Frankfurter wrote the opinion. He had, as a Harvard professor, co-authored a scathing study of ethnic discrimination and injustice in the Sacco and Vanzetti case.13 In a later decision, West Virginia State Board of Education v. Barnette,14 he began his dissenting opinion by saying that he “belongs to the most vilified and persecuted minority in history.” In Watts v. Indiana,15 he wrote: “There comes a point where this Court should not be ignorant as judges of what we know as men.” Among the things he knew as a man was that he worked in one of the most racially segregated cities in the United States.
Here is some of the background against which the Pullman case was decided—or not decided. In 1869, the Reconstruction legislature of Louisiana passed a statute forbidding racial discrimination in transportation within the state. The case arose because a steamboat company plying the Mississippi River had separate accommodations for white and African American passengers. The statute applied even to the intrastate portion of interstate journeys.
In Hall v. DeCuir,16 the Supreme Court held the statute unconstitutional because it interfered with the business of federally regulated interstate transportation. The Court noted that Congress had not seen fit to forbid racial segregation, and therefore the transportation companies were free to discriminate if they wished to do so. The Court held:
1. State legislation that interferes with an interstate carrier’s conduct of its own business violates the commerce clause. (Note that in Pullman, that is exactly what Texas was doing.)
2. The transportation company is constitutionally protected when it adopts “reasonable rules and regulations,” including those based on race. This holding was based on deference to the transportation company’s judgment about the social consequences of white and non-white passengers sharing cabins on board.
In Pullman, the Court could have cited Hall, and said that Texas had to stand down. But it chose instead to first see the real issue—racism—and then to refuse to address it.
THE LAST GASP OF “SEPARATE BUT EQUAL”
In Sweatt v. Painter,17 the Supreme Court held, unanimously, that a makeshift “Texas Law School for Negroes” did not provide equal, though separate, legal education.
Heman Sweatt applied to enter the University of Texas School of Law in 1946. He was denied admission because the Texas state constitution mandated segregated public education. No law school in Texas admitted African Americans. The NAACP, whose lawyers included Robert Carter and Thurgood Marshall, sued in state court. At the state’s request, the court continued the case for six months. The state then established the “School of Law of the Texas State University for Negroes” and claimed that it was substantially equal to the UT Law School.
By the time the case reached the Supreme Court, in 1950, the civil rights movement had been active for decades. The NAACP was founded in 1909; the struggle against racism had begun earlier than that. More recently, President Truman had desegregated the armed forces. The state’s Supreme Court brief18 was written as though none of these things had happened. It was as though written on the inside walls of the lawyers’ minds. It was a voluntary petition in intellectual bankruptcy, repeating the mythology of racial separation. The brief relied on cases denying equal protection to aliens, and approvingly cited the Japanese internment cases. Concluding, the state argued:
The foregoing cases argue themselves. They demonstrate that this Court has uniformly held that the states may furnish education to their white and Negro citizens at separate institutions so long as substantially equal facilities are offered both groups. Petitioner has cited no case to the contrary.
The state assembled a litany of opinions about segregation. Sweatt’s lawyers had combed the sociological and political literature of the past decade. Their 123-page brief19 adumbrated the ideas that were to be presented and would carry the day in Brown v. Board of Education.
The state’s brief quoted Charles W. Eliot, who was president of Harvard College from 1869 to 1909. Eliot had spoken approvingly of segregated higher education in the American South:
Perhaps if there were as many Negroes here as there, we might think it better for them to be in separate schools. At present Harvard has about 5,000 white
