Equal Protection of the Laws: The ACLU and the ongoing fight against segregation

By Rahsaan Hall, Director of the Racial Justice Program at the ACLU of Massachusetts

This is the third in a series of blogs for Black History Month 2020, covering the ACLU's 100 years of racial justice advocacy.

For Black people in America, where we live and where our children learn have been freedoms that we had to fight for. These were not fundamental freedoms the framers (some of whom were slave owners) granted to Black people, First Nation people or women through the United States Constitution. These freedoms were realized over time through litigation, legislation and the will of the people to fight for principles embodied in the Constitution, even if the framers could not imagine them for the descendants of the very people they owned.

The racist beliefs that justified the institutions of slavery and Jim Crow were woven into the tapestry of America. Even the Reconstruction Amendments that were intended to undo the “badges and incidents of slavery” could not overcome white Americans’ deeply held belief in Black inferiority. From the post-reconstruction-era black codes that criminalized Black people, to the laws disenfranchising Black voters and the legal fiction of “separate but equal,” white supremacy was the loom that attempted to frame the lives of Black people in this country.

Although the ACLU’s early litigation was not explicitly “racial justice” litigation, there were a few landmark cases that attempted to undo racial injustice. Using the equal protection clause of the Fourteenth Amendment to the United States Constitution, the ACLU filed amicus—or “friend of the court”—briefs that would help unravel the government’s role in maintaining legal segregation.

In 1947, the ACLU filed an amicus brief in Shelley v. Kraemer, a matter before the United States Supreme Court. At issue were several cases involving racially restrictive covenants connected to the purchase, sale or transference of property. These covenants prohibited the property owners from allowing Black people to purchase or occupy the property.

In many instances, the restrictive covenants granted interest in the transfer of property to abutting property owners. In other words, neighbors could challenge the sale of a property to a Black family. These covenants prohibited Black people from purchasing homes in certain neighborhoods and, in concert with the practice of redlining, were major drivers of the segregated living patterns we still see today.

In Shelley, the lower courts enforced these restrictive covenants and ruled that they did not violate the equal protection clause of the Fourteenth Amendment because they were considered private, rather than state action. In its brief before the Supreme Court, the ACLU argued the narrow issue of the lower court enforcement of the restrictive covenant being tantamount to state action. In 1948 the court agreed, stating, “[t]he framers of the Fourteenth Amendment regarded equality in property rights as ‘an essential pre-condition to the realization of other basic civil rights and liberties which the Amendment was intended to guarantee.’”

Six years later, the ACLU, along with several other organizations, would file an amicus brief in the landmark desegregation case, Brown v. Board of Education. This collection of cases before the Supreme Court challenged the injustice of segregated educational facilities for Black Children. Despite the government’s attestations of equal facilities and resources, Black children were forced to walk great distances to attend “colored schools,” and in many instances walked past closer and better resourced white schools.

In its brief, the ACLU argued that the state-sponsored segregated schooling facilities violated the equal protection clause and disadvantaged Black children. Urging the court to abandon segregation in schooling, the brief asserted, “[t]hat which is unequal in fact cannot be equal in law and, therefore, segregation and equality cannot co-exist in public education.” The court would ultimately rule segregation in public education unconstitutional and concluded, “in the field of public education, the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs… by reason of the segregation complained of, [are] deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.”

Even in the face of these historic decisions that drastically changed race relations in the country, there were still significant obstacles to overcome. The elimination of restrictive housing covenants did not prevent private acts of discrimination, nor did it prevent the government endorsed practice of redlining. It was not until the President Lyndon Johnson signed the Fair Housing Act of 1968 would the practices slowly begin to change. Yet in 2020 many American cities are still deeply segregated by race and instances of discriminatory housing practices persist.

Although dejure segregation in education was outlawed, it would take another Supreme Court case, Brown II, to encourage districts to integrate “with all deliberate speed.” However, integration would not arrive in Boston public schools until 1974, and like many other school districts throughout the country, efforts at integration were met with a cacophony of resistance and, in many instances, violence. Even today, there are school districts that are more segregated than in the immediate aftermath of desegregation. Even in 2020—with a $23 billion disparity in funding between schools that serve mostly Black children and largely white districts—the court’s conclusion still holds true that separate is inherently unequal.

We can never disengage from the struggle for racial justice in America. Even the loftiest of our foundational ideals can never fully escape the unspoken truths of our nation’s history. The unexamined beliefs about racial hierarchy has been the fabric of our lives. In order for everyone to cloak themselves in the imperfect garment of democracy, the ACLU will continue to litigate, legislate, and advocate for equal protection of the laws.