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Adia Samba Quee:
Civics 101 is supported in part by the Corporation for Public Broadcasting.

Nick Capodice:
June 7th, 1892, New Orleans, Louisiana, a 30 year old Black man named Homer Plessy buys a ticket for the 415 train to Covington. The train arrives at the station on the corner of Press and Royal, and it is made up of cars for white passengers and cars for Black passengers, Plessy steps into the car for white passengers and takes a seat. The conductor asks Plessy his race. Plessy tells him. And then the conductor insists he has to move to the car for Black riders. Plessy refuses. And a detective who just happens to be there arrests Plessy and removes him from the car. These are the events that resulted in a landmark Supreme Court decision, an anticanon decision, one universally agreed upon as a mistake. A decision that I thought I knew about, but was dead wrong. You're listening to Civics 101, I'm Nick Capodice.

Hannah McCarthy:
I'm Hannah McCarthy,

Nick Capodice:
And today we're talking about an event that was not just an individual act of protest, an arrest that was anything but coincidental, and contrary to what I've learned beforehand, a decision that did not establish the separate but equal doctrine, Plessy v. Ferguson, 1896

Hannah McCarthy:
So far. Nick, you've talked a lot about what this case is not. Can we start with what it is?

Nick Capodice:
Yeah. In 1890, the state of Louisiana passed the Separate Car Act. This was one of the state's Jim Crow laws, anti-Black laws that enforced segregation. And this act required that trains have, "equal but separate accommodations" for Black and white passengers. But before we get started in this case, the history of separation goes way back.

Steven Luxenberg:
Separation, which is the word they used in the 19th century as a concept, was really born in the north on a railroad line that went from Boston to Salem, opened in 1838.

Nick Capodice:
This is Stephen Luxenberg, associate editor at The Washington Post and author of Separate the Story of Plessy v. Ferguson and America's Journey from Slavery to Segregation.

Steven Luxenberg:
And Throughout the North, before the Civil War, there were instances of separation on public transportation. There were people fighting against that, mostly from the abolitionist movement, the group of radicals that said that slavery should be abolished right now. Some of the precedents later cited in Plessy come from the north before the civil war, where courts ruled that separation was allowable. It was a reasonable rule by the railroad.

Hannah McCarthy:
So a separation which we later referred to as segregation, it came out of the North.

Nick Capodice:
It did. Steven told me that separation wasn't possible in states that were practicing enslavement.

Steven Luxenberg:
But there were always people fighting, resisting in the 19th century against slavery first, then against civil rights violations. Everything is new in this era. Everything is new. The famous Black journalist Ida B Wells, as a 20 year old, is refusing in 1882 to ride in the, quote, colored car. She's not got anybody behind her, she says. Twice she goes to the Tennessee Supreme Court. She loses kind of the deck is rigged against her she learns.

Nick Capodice:
Ida B. Wells is act of brave resistance was ten years before Homer Plessy got on that train in New Orleans. She was initially awarded five hundred dollars in damages, but the Tennessee state Supreme Court overturned it and she was forced to repay the money as well as court fees.

Hannah McCarthy:
Ok, so Ida B. Wells is one of the first to challenge these civil rights issues in the courts. And when Steve says everything is new, what does he mean?

Nick Capodice:
The nation was struggling to figure out how to make the reconstruction amendments, the newly passed 13th, 14th and 15th Amendments actually apply. And this happened when people like Wells put their bodies on the line. But while her protest was an individual action, Plessy's was not.

Hannah McCarthy:
OK. Right. And getting back to Homer Plessy on that day in 1890. What do we know about him? And who was Ferguson?

Keith Plessy:
Homer Plessy was a Creole African descent gentleman who was born on March the 17th. That was St. Patrick's Day. My name is Keith Plessy and I am a fourth generation descendant of Homer Plessy.

Phoebe Ferguson:
Judge Ferguson was not from New Orleans. He was not from Louisiana. Judge Ferguson was born on Martha's Vineyard. My name is Phoebe Ferguson and I am the great great granddaughter of Judge John Howard Ferguson.

Nick Capodice:
Keith and Phoebe head the Plessy and Ferguson Foundation. They visit schools and institutions across the country to share the story of the case and their message that mutual history can be a tool to create unity and understanding.

Keith Plessy:
It's no longer Plessy versus Ferguson is Plessy and Ferguson.

Nick Capodice:
Holmer Plessy's father died at a young age and his mother remarried a shoemaker named Victor Dupart. And Homer learned to be a shoemaker from a stepfather. But he also went with him to community meetings where he learned about civil rights activism.

Keith Plessy:
When the laws came out, he had already been an activist in the neighborhood, in the Treme neighborhood, where he was advocating to keep public schools open.

Nick Capodice:
Homer Plessy joined the Commite Citoyen in Louisiana, which I will refer to here on out as the Citizens Committee. Their full title actually is a bit longer. Steve Luxenberg found their original stationery.

Steven Luxenberg:
They needed a PR person to tell them to get a better name that was easier to say, but the stationery was the committee to challenge the constitutionality of the separate car act

Hannah McCarthy:
The committee's sole purpose was to challenge this one law.

Nick Capodice:
Yeah, and they ran test cases, carefully orchestrated events to purposefully violate the law. And Plessy offered to be the second test.

Keith Plessy:
He looked like a white person. So that was one of the criteria of his volunteering for that protest. And when he approached the train depot, no one noticed him as a person of color, purchased that ticket without any dispute, boarded the first class train car that was designated for whites only and sat down and no one was disturbed by his presence. But when the conductor approached him and asked him, was he a colored man? He responded, yes. And he said you would have to move to the car for your race. And he refused. So the arresting officer stepped up and removed him from the train and made it look real good. It was it was orchestrated well, so they threw him off the train. Physically. They didn't make it look like it was a nice departure for him.

Hannah McCarthy:
Everybody was in on it?

Nick Capodice:
Everybody was in on it! The conductor's actions were rehearsed. The citizen's committee hired that detective to arrest him and write a report. Even the railroad company itself was involved and in support of it because for one thing, it was more expensive to have separate cars.

Keith Plessy:
In those days. If you were interrupting, which was probably one of the most prominent and busy depots, the Press Street wharf, he interrupted business that brought the cotton to be processed to the train depot that day. Normally a person that did something like that in those times would have been hung from a tree, might have never made it to jail, but he was safely whisked off to jail where he was booked, and then he was able to pay the fine after a night in jail to get out because the bail was set for him and the money was set, the budget was set to remove him.

Hannah McCarthy:
So Homer Plessy is arrested and released on bail. How does this case get to the Supreme Court?

Nick Capodice:
The first trial was Homer Plessy v. the State of Louisiana. And his lawyers argue that the separate train car act violated Homer Plessy's rights under the 13th and 14th Amendments. And the judge who heard the case, John Howard Ferguson.

Hannah McCarthy:
There's Ferguson.

Phoebe Ferguson:
They make a presentation. Judge Ferguson says says you've made a very good presentation. And I would like to think about that. We will rejoin in two weeks. And two weeks they come back to the court. Judge Ferguson says he's considered, however, he decides that Louisiana's law, our state, our state's rights and the state has the right to determine whether or not Black and white passengers can ride together. So he upholds the Louisiana state law.

Nick Capodice:
The citizens committee appealed it to the state Supreme Court, which upheld Ferguson's decision. And finally in 1896, they appealed it to the United States Supreme Court, which ruled in favor of Judge Ferguson.

Hannah McCarthy:
What was the vote?

Nick Capodice:
Seven to one, one judge abstained because he had a sick family member at the time. The opinion was written by Justice Henry Billings Brown, and the lone dissenter was Justice John Marshall Harlan.

Kenneth Mack:
John Marshall Harlan, the former slave owner, is the person who dissents and Plessy vs. Ferguson. And Henry Billings Brown, who's from Massachusetts. You know, the kind of cradle of abolition, who's going to Yale and Harvard Law School is the one who writes the majority opinion. So irony of ironies.

Nick Capodice:
This is Kenneth Mack. He's the inaugural Laurence D. Beale professor of law and affiliate professor of history at Harvard University. He walked me through Justice Brown's opinion.

Kenneth Mack:
You know, the basic claim of Plessy and his lawyers is that the statute is unconstitutional under the 14th Amendment because it's discriminatory against African-Americans. Brown has to figure out a bunch of things. First, he talks about political versus social equality. This is all over the rhetoric of white southerners, judges, lots of people after the civil war. They say that the 14th and 15th Amendments gave African-Americans civil and political equality, but they didn't give them social equality. And they say this all the time. What they really mean is that if we don't want to associate with Black people, we don't have to associate with Black people. We don't have to accept Black people into our houses. We don't have to be friends with Black people. The law can't make us do that. Well, the question is, well, is, is a statute that says that you have to sit in separate coaches by race. Is that about social equality? What's a piece of legislation that's not white people choosing not to be friends with Black people? That's a state law saying that Black people and white people can't sit in the same coach. So white southerners reason from the kind of social equality argument to the fact that they they can pass statutes mandating that people be separate by race within state sponsored institutions like schools or within private institutions like railroad cars. And they say that's the same thing as that. That's just social. The law is just about social equality. It's not about civil or political equality, which are the things that the 14th and 15th Amendments cover.

Hannah McCarthy:
Justice Brown is saying that this law is not about civil or political equality. It's about unenforceable social equality.

Nick Capodice:
Yes. And to further justify it, he points to a number of previous cases that said railroads could separate passengers. But there is a problem with that.

Kenneth Mack:
The problem is that almost all of those cases are before the civil war. So the question is, well, you know, did the 14th Amendment change that? And Brown just sort of blinks that. He doesn't acknowledge that the actually the 14th Amendment did something.

Nick Capodice:
Kenneth said it was an extremely narrow, extremely specific minute reading of the 14th Amendment, where he acknowledged, yes, the amendment was created to enforce equality, but that it, quote, could not have been intended to abolish distinction based upon color. And then we come to the lone, now famous dissent of Justice Harlan.

Kenneth Mack:
I mean, I think Harlan's making two or three points. One is that the 13th and 14th Amendment changed things, that they gave new constitutional rights that weren't there before and that they were supposed to change both the framework of citizenship and the racial order. You know, so before these were enacted, you know, you could use law, you could segregate, you could you can make white people superior, but 13th and 14th Amendment changed things. And the second thing he's saying is basically this is not neutral. Everybody knows why the statute was enacted. Everybody knows the symbolic import of this is to keep Black people out of railroad cars where white people ride because Black people are presumed to be inferior. He is saying, well, you can't use law to erect white supremacy. And he's saying that's what this statute does.

Nick Capodice:
I want to quickly add here, this was not Harlan's first dissent on this subject. He was the only dissent in what is called the civil rights cases of 1883, a decision that said that the federal government could not outlaw racial discrimination by private individuals. In 1906, he gave his family Bible to the Supreme Court. And since then, every single justice has signed their name within it. Justice David Souter said that signing his name in the Harlan Bible was, quote, the most humbling thing I have ever done in my entire life.

Hannah McCarthy:
Something that you mentioned earlier that I want to get straight is that you thought this was a case that cemented the separate but equal doctrine, but you learned that that's not necessarily true.

Nick Capodice:
Yeah, it is and it isn't true. This decision, in essence, yes. Prevented the constitutional challenges to racial segregation for over half a century. And the words separate but equal doctrine were on my Plessy v. Ferguson flashcards in school. But Steve Luxenberg corrected this for me.

Steven Luxenberg:
So I see a lot of the shorthand that my journalistic brethren use is the Supreme Court established the doctrine of separate but equal and made it the law of the land. And for Civics 101, let's talk about both parts of that sentence. What is a doctrine? We can give it a lot of synonyms: an order, an established set of rules. What you would expect if the Supreme Court had established a doctrine that there would be a clear doctrine in the majority opinion. But if you read the majority opinion, there's no doctrine. Now, did it have the effect of sanctioning a custom that had been going on? Yes, it had that effect. Did the Supreme Court make it the law of the land? It's the judicial branch. It's not the legislative branch. It can't make laws. You can say, Steve, you're parsing words here. Didn't it have the effect of being the law of the land? And the answer is no. It didn't really did not apply because it was a state legislature acting in Louisiana. Other state legislatures had to act to create laws that were similar. They they did in some cases, but not everywhere, not the law of the land.

Nick Capodice:
Steve says the blame for separate does not lie with this case.

Steven Luxenberg:
If we lay the blame on those nine justices of the Supreme Court, eight justices in this case of the Supreme Court, we are taking ourselves off of the hook. We have to own the doctrine of separate but equal, which began in the north in the 1830s. We have to accept that it was already the custom of the country. It's not the Supreme Court's fault. It is all of our faults.

Nick Capodice:
And to reinforce what Steve is saying here, the words separate but equal are nowhere in the decision.

Hannah McCarthy:
Nick, before we wrap up, you know, we always try to find modern reverberations of these Supreme Court opinions. And I know that the Plessy decision was overturned in 1954 in Brown vs. Board of Education of Topeka, the case that started the path to desegregation. But is there anything from Plessy that is still with us today?

Nick Capodice:
Kenneth Mack left me with this.

Kenneth Mack:
It's quite relevant today. The case was about how to think about laws or public policies that were alleged to be discriminatory against one race, in particular discriminatory against African-Americans who had historically been discriminated against, the court goes out of its way to say that the law was neutral, the segregation statute was neutral. Sometimes it looks as though we can find a nondiscriminatory neutral purpose. But to do that is simply to blink reality. So, for instance, um, you know, the recent Georgia voting statute.

archival:
Georgia Republican lawmakers have passed a law on a party line vote or overhauling the election rules in that state. They say the law will help protect against voter fraud. But Democrats and critics say the law disenfranchizes primarily people of color and the fraud claims have no basis, in fact...

Kenneth Mack:
Is this a neutral enactment or is this an enactment where if you look at the context, we all know who the act will fall most heavily on, and we can always articulate neutral reasons for these things. And in fact, that's the lesson of Plessy. That a bunch of very, very smart Supreme Court justices can articulate neutral reasons that the larger society could articulate neutral reasons and that it's necessary to dig a little deeper and to look at the context, the way that Harlan looked at it, to figure out what's really going on.

Hannah McCarthy:
I think one of the major things they take away from this story is that from Ida Wells to Homer Plessy to Claudette Colvin to the four students who sat down at a Woolworth's lunch counter in Greensboro. So much of the long civil rights movement involves acts of sacrifice, of people being told to move. And saying no.

Nick Capodice:
That is a picture wrap on Plessy v. Ferguson. We got more civil rights cases in the Supreme Court headed your way. So stay a while and listen. Today's episode was produced by me Nick Capodice with Hannah McCarthy. Our staff includes Jacqui Fulton. And Erika Janik is our executive producer. Music in this episode by Yung Kartz, Scott Holmes, Ikimashu Oi and Chris Zabriskie. To hear about the other cases in this series or to hear any of our hundreds of episodes, follow us on Apple podcasts, Spotify or your podcast app o' Choice. You can also visit our Web site, civics101podcast.org. All of our new episodes have materials for educators teaching these subjects. And while we're here, why not be our friend on Twitter @civics101pod? Come on by. Say hello. Civics 101 is supported in part by the Corporation for Public Broadcasting and is a production of NHPR, New Hampshire Public Radio.

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