Plessy v. Ferguson at 125

In 1896, the Supreme Court officially sanctioned “separate but equal.” Harvard Law School Professor Kenneth Mack explains what the shameful decision meant, and why it still matters in 2021

In 1892, on a steamy spring day in New Orleans, Louisiana, a man — a shoemaker by trade — stepped onto a train bound for Covington, a small village due north on the Bogue Falaya River, which empties into Lake Pontchartrain. First-class ticket in hand, he found a seat in the ‘whites-only’ passenger car and waited. When the conductor finally came around, the man — born Homère Adolphe Plessy — refused to move to another car, despite being multiracial. Now he was in violation of Louisiana’s new Separate Car Act, which required “equal but separate accommodations for the white and colored races.” An onboard detective arrested Homer, as he was also known, and he spent several hours in jail before being released on bond pending trial.

Plessy’s case went all the way to the Supreme Court of the United States. On May 18, 1896, Justice Henry Billings Brown, writing for the Court’s majority, concluded that, although the 14th Amendment had established citizenship rights for Black Americans, 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.”

If African Americans felt that being separated by race was intended to humiliate or degrade them, Justice Brown wrote, “it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” The Court went on to reject Plessy’s claim that the act violated his constitutional rights — and affirmed the state’s power to enforce racial segregation so long as accommodations were “separate but equal,” in the infamous phrasing of Justice John Marshall Harlan’s lone dissent.

The decision, which would not be overturned until 1954 in the landmark case Brown v. Board of Education of Topeka, placed a seal of approval on the segregationist laws that began to spread across the country.

One hundred and twenty five years after the Supreme Court’s decision in Plessy v. Ferguson, Kenneth Mack ’91, Lawrence D. Biele Professor of Law at Harvard Law School, says there are still lessons to be gleaned from the case: Lessons about the radical and influential strategies employed by Plessy’s team in seeking justice, about the persistence and dedication of activists, and about how “segregation can be rationalized as something neutral,” even today.

‘The final capitulation’

To understand Plessy, it is first important to understand what it is not. Plessy was not, says Mack, the origin of “separate but equal.” Instead, it was merely the Supreme Court’s validation of the concept — “the final capitulation of the federal government in the creation of Jim Crow,” he says.

Kenneth Mack

Credit: Martha Stewart Kenneth Mack ’91, Lawrence D. Biele Professor of Law at Harvard Law School

“After the Civil War, there were three new constitutional amendments: the 13th, 14th, and 15th Amendments,” says Mack. “There were also new pieces of civil rights legislation in the Civil Rights Acts of 1866 and 1875, and a commitment on the behalf of white Northerners to at least try to defend interracial democracy in the south and nationally, through congressional legislation and through the presence of Union troops.”

But “in the two-and-a-half-decade period after the Civil War, that commitment waned just about everywhere in white America,” he says, leading to a proliferation of legislation aimed at enshrining and enforcing racial segregation, also known as Jim Crow laws.

These laws leached into all areas of life: education, transportation, restaurants, theaters, neighborhoods, and even cemeteries. One example was the Louisiana Separate Car Act of 1890, which put an end to a comparatively integrated community of African Americans, Native Americans, Creoles, and French that had existed in New Orleans for generations.

An Enduring Strategy

Homer Plessy is often remembered as a shoemaker — but he was also an activist. Born into a French-speaking Creole family, Plessy was a member of the Comité des Citoyens, a civil rights organization of Louisianans working to challenge segregation both inside and outside the courtroom.

Mack says the Comité employed tactics that would be echoed by later civil rights activists, using a three-pronged strategy that included direct action, publicity campaigns, and litigation. “There’s a remarkable degree of continuity between the activists who brought the Plessy case and what the civil rights movement of the 20th century will do,” he says.

The Comité started with protest. “When the Separate Car Act first passed, they boycott first,” says Mack. “There will later be boycotts of segregated facilities and against segregation laws, all through the 20th century, culminating in the Montgomery bus boycott, when they came to national prominence. It’s very significant that one of the first things they did in this case was to try to launch a boycott.”

When that did not work, the Comité meticulously planned the details of Plessy’s fateful encounter that hot June day on the train to ensure that he would be arrested and charged — and that the world would hear about it. In fact, both the train conductor, and the on-board detective who arrested Plessy, were key players in the organization’s plan to challenge the law. Through newsletters, they would publicize the unjustness of Plessy’s arrest and of the segregation law itself.

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We are still grappling with laws that appear neutral on their face, but in fact, are discriminatory. It’s important to understand Plessy, so we can understand how segregation was rationalized as being neutral.

And once in court, Plessy’s attorneys tried a variety of arguments that would be also be used by the NAACP and other civil rights organizations in the early- and mid-20th century, says Mack. “The activists in New Orleans who mounted Plessy as a test case were explicitly thinking about the federal courts, because they understood that the state courts in Louisiana were not going to help them.”

Before the Civil War, citizenship rights were defined at the state level, but the 13th, 14th, and 15th Amendments created new national protections, adds Mack. “What the Plessy lawyers, and the organizations that supported them, did was to first make the case that the 13th and 14th Amendments changed things and created new and quite vigorous national civil rights that redefined citizenship.”

While segregationists argued that that the mandates of the 13th and 14th Amendments were narrow — eliminate explicit slavery, prohibit only the most egregious and admitted discrimination against African Americans by state actors — Plessy and the Comité pushed for a broader interpretation, Mack says.

“Their claim was straightforward: that everyone knows why Louisiana enacted this segregation law,” he says. “It’s to keep Black people down, to say to them that they’re inferior, to make it so that white people don’t have to associate with Black people, and to do it through the law. Plessy’s claim was about the intention behind the law, that the intention was discriminatory, and that that was exactly the kind of thing that the 14th and even the 13th Amendments had been framed and ratified to prevent.”

Mack argues that this idea about intentionality — that segregation laws were passed primarily to disparage and humiliate Black people — was radical, and while it did not disappear in later civil rights cases, it tended to be strategically muted in favor of arguments that separate accommodations were not in fact “equal.”

“As is widely known, in the Brown decision itself the Court went out of its way not to say that segregation laws were promulgated with racist intent. And we’re having the same debate today: There is a law that is passed that is alleged to be discriminatory against a minority group. But the law is neutral on its face,” he says.

The Road to Topeka

In popular telling, the Plessy decision’s legacy of racial segregation finally met its end with the Supreme Court’s opinion in Brown v. Board. But there are at least two problems with that simplified view of history, says Mack: it ignores important cases in between that helped chip away at segregation, and it fails to account for the broad scope of activism outside of the courtroom that preceded and followed Brown.

In Missouri ex rel. Gaines v. Canada (1935), Lloyd Gaines, a Black student, was refused admittance to the University of Missouri’s law school because of his race, and the state had also declined to establish a law school for African Americans. The Supreme Court agreed that Missouri had violated the Equal Protection Clause. “This was really the first big case where the Supreme Court revisited this question of segregation and in which they indicated that there might be some constitutional violation associated with some form of segregation,” says Mack.

Of course, he adds, “Theoretically, if Missouri had been willing to build a Black law school that was equal to the white law school, then the Court would have found no constitutional violation. But it’s a significant case between Plessy and Brown, because it’s a major break with the general thrust of the Supreme Court’s jurisprudence since Plessy, in that the Court indicates that it’s not going to acquiesce to segregation.”

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Brown didn’t end ‘separate but equal,’ and of course, separate never was equal. But Brown was important as a statement.

And in Shelley v. Kraemer (1948), the Court declared that “racially restrictive [housing] covenants were unenforceable,” says Mack. “That’s important because the Supreme Court put its imprimatur on the proposition that housing segregation was unconstitutional and unenforceable, and that the courts couldn’t wrap themselves up in discrimination. It’s even more significant because at that time, it was still more or less federal policy to facilitate segregated housing.”

Finally came Brown: “We conclude that, in the field of public education, the doctrine of ‘separate but equal’ has no place,” wrote Chief Justice Earl Warren on behalf of a unanimous Court in 1954. “Separate educational facilities are inherently unequal.”

Plessy was officially dead, in jurisprudence if not in the lived experience of Black Americans. But although the landmark victory in Brown did not actually end segregation, Mack says that it was nonetheless an incredible watershed moment for civil rights activists and African Americans.

[Related video: Harvard Law Professor Kenneth Mack and Harvard Graduate School of Education Professor Meira Levinson explain the history of Brown v. Board of Education]

“No, Brown didn’t end ‘separate but equal,’ and of course, separate never was equal,” says Mack. “But Brown was important as a statement. The first night of the Montgomery bus boycott, Martin Luther King Jr. cites Brown in his sermon, trying to explain why Black people had to resist. It was important for Black people and white people in the struggle against Jim Crow that the Supreme Court had said definitively that segregated schools were unconstitutional. And that it would go on to say that many other forms of public segregation were unconstitutional as well. It was quite important for the Supreme Court to say this, even if forms of segregation would persist for decades — and to this day.”

More than a century after Plessy v. Ferguson, it may be tempting to forget about this overturned and repudiated decision, to relegate it to the dustbin of history, to wash our hands of the impact it had and continues to have on Black Americans. But to do so would be a mistake, says Mack.

“We are still grappling with laws that appear neutral on their face, but in fact, are discriminatory,” says Mack. “It’s important to understand Plessy, so we can understand how segregation was rationalized as being neutral. It’s important to understand and remember how large sectors of American society, and a majority of the Supreme Court, including Justice Brown, who had studied at Harvard, could all believe this.”

The questions the Plessy activists asked — about what it means to be entitled to equal protection under the law, about policies that paper over discriminatory intent with a veneer of impartiality, about the dignity to which every American is entitled – continue to come up, time and again, says Mack. And, again and again, it is people like Homer Plessy — shoemaker, activist — who rise, determined in their convictions, to demand answers.


Kenneth Mack, the Lawrence D. Biele Professor of Law, and Meira Levinson, Professor of Education at the Harvard Graduate School of Education, explain the history of the landmark Supreme Court Case Brown v. Board of Education, the impact the case had on Black education in the United States, and how other movements continue to follow in its footsteps today.