Celebrate Black History month with materials on two landmark Supreme Court cases on the Fourteenth Amendment’s Equal Protection Clause. How could the same words have been interpreted so differently in Plessy v. Ferguson (1896) and sixty years later in Brown v. Board of Education (1954)? Read some background on the cases, excerpts from the rulings, and thought-provoking discussion questions.

See the complete lesson.

Discussion Questions

1. What Supreme Court decision established the doctrine of “separate but equal”?
2. What Kansas law did the Brown plaintiffs want struck down?
3. How did the Court rule, and what was the constitutional reasoning?
4. What was the Brown II ruling?
5. What role was there for other branches and levels of government in enforcing Brown II?
6. Why might it have taken nearly sixty years to the Supreme Court to get to its current interpretation of the 14^th Amendment?
7. What might this suggest about the importance of looking at the historical context of Supreme Court rulings?

Do you use document-based questions in your classroom?

This winter the Bill of Rights Institute is blogging a document-based question on the Supreme Court case Brown v. Board of Education (1954). Each weekly post will feature an excerpted document related to the case, along with some questions to guide your thinking on it. Each document should be used to address the question: “Assess the role played by the Court as the protector of individual rights against the tyranny of the majority in Brown v. Board of Education.”

Check out our previous posts for Document A, an excerpt from the Virginia criminal code; Document B, a section of the Fourteenth Amendment; Document C, an excerpt from the majority opinion of Plessy v. Ferguson (1896); Document D, an excerpt from the dissenting opinion in Plessy; Document E, a photo of a Washington, DC public school classroom; Document F, a picture of African American schoolgirls in a classroom; Document G, a photo of a segregated classroom; and Document H, a map of the U.S. by segregation laws.

Unanimous Majority Opinion, Brown v. Board of Education (1954)

In approaching this problem, we cannot turn the clock back to 1868 when the [Fourteenth] Amendment was adopted, or even to 1896 when Plessy v. Fergusonwas written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.

Today, education is perhaps the most important function of state and local governments. …In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms….

To separate [students] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely to ever be undone. …Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson this finding is amply supported by modern authority…

We conclude that 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 and others similarly situated … are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.

>How did the Brown decision overturn Plessy v. Ferguson in Document B?

>On what grounds did the Court base its decision?

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Check back each week to see the next document and how it might change your thinking on this important question that affects all public school teachers and students in the U.S.! If you are enjoying this DBQ – be sure to check out our curriculum Supreme Court DBQs: Exploring the Cases the Changed History.

Do you use document-based questions in your classroom?

This winter the Bill of Rights Institute is blogging a document-based question on the Supreme Court case Brown v. Board of Education (1954). Each weekly post will feature an excerpted document related to the case, along with some questions to guide your thinking on it. Each document should be used to address the question: “Assess the role played by the Court as the protector of individual rights against the tyranny of the majority in Brown v. Board of Education.”

Check out our previous posts for Document A, an excerpt from the Virginia criminal code; Document B, a section of the Fourteenth Amendment; Document C, an excerpt from the majority opinion of Plessy v. Ferguson (1896); Document D, an excerpt from the dissenting opinion in Plessy; Document E, a photo of a Washington, DC public school classroom; Document F, a picture of African American schoolgirls in a classroom; and Document G, a photo of a segregated classroom.

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Come back each week to see the next document and how it might change your thinking on this important question that affects all public school teachers and students in the U.S.! If you are enjoying this DBQ – be sure to check out our curriculum Supreme Court DBQs: Exploring the Cases the Changed History.

Do you use document-based questions in your classroom?

This fall the Bill of Rights Institute is blogging a document-based question on the Supreme Court case Brown v. Board of Education (1954). Each weekly post will feature an excerpted document related to the case, along with some questions to guide your thinking on it. Each document should be used to address the question: “Assess the role played by the Court as the protector of individual rights against the tyranny of the majority in Brown v. Board of Education.”

Check out our previous posts for Document A, an excerpt from the Virginia criminal code; Document B, a section of the Fourteenth Amendment; and Document C, an excerpt from the majority opinion of Plessy v. Ferguson (1896).

Dissenting Opinion, Plessy v. Ferguson (1896)

[I]n the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law….The destinies of the two races, in this country, are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law.

>Compare and contrast the ideas in this comment with those in Document B.

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Check back each week to see the next document and how it might change your thinking on this important question that affects all public school teachers and students in the U.S.! If you are enjoying this DBQ – be sure to check out our curriculum Supreme Court DBQs: Exploring the Cases the Changed History.

Do you use document-based questions in your classroom?

This fall the Bill of Rights Institute is blogging a document-based question on the Supreme Court case Brown v. Board of Education (1954). Each weekly post will feature an excerpted document related to the case, along with some questions to guide your thinking on it. Each document should be used to address the question: “Assess the role played by the Court as the protector of individual rights against the tyranny of the majority in Brown v. Board of Education.”

Check out our previous posts for Document A, an excerpt from the Virginia criminal code; and Document B, a section of the Fourteenth Amendment.

Majority Opinion, Plessy v. Ferguson, 1896 

The object of the [Fourteenth] amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a co-mingling of the two races upon terms unsatisfactory to either.…

Laws permitting, and even requiring, the separation [of races] in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power….

>Restate this opinion in your own words.

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Check back each week to see the next document and how it might change your thinking on this important question that affects all public school teachers and students in the U.S.! If you are enjoying this DBQ – be sure to check out our curriculum Supreme Court DBQs: Exploring the Cases the Changed History.

Do you use document-based questions in your classroom?

This fall the Bill of Rights Institute is blogging a document-based question on the Supreme Court case Brown v. Board of Education (1954). Each weekly post will feature an excerpted document related to the case, along with some questions to guide your thinking on it. Each document should be used to address the question: “Assess the role played by the Court as the protector of individual rights against the tyranny of the majority in Brown v. Board of Education.”

Check out our previous post for Document A, an excerpt from the Virginia criminal code.

Section of the Fourteenth Amendment (1868)

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

>What was the historical context of the passage of this amendment?

>What level of government does this amendment limit? What prohibitions did it create?

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Check back each week to see the next document and how it might change your thinking on this important question that affects all public school teachers and students in the U.S.! If you are enjoying this DBQ – be sure to check out our curriculum Supreme Court DBQs: Exploring the Cases the Changed History.

In discussions of the First Amendment and the limits of free speech, it is common to hear references to Justice Oliver Wendell Holmes’s famous quote from Schenck v. U.S. 1919 – “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.” It is a well-crafted line that certainly has a measure of truth to it, as for practical purposes even our most treasured freedoms can have justifiable constraints placed upon them. However the Schenck case is far from a model of First Amendment jurisprudence; in later decades it would be criticized as a decision that undermined individual liberty. So to understand the phrase and its meaning we’d do well to understand Schenck v. U.S.

During World War I there were widespread fears that German and Communist sympathizers would undermine the war effort, threatening U.S. interests and security. This fear frequently led to the persecution of minorities and non-mainstream political groups. In 1917, shortly after the entry of the U.S. into WWI, Congress passed the Espionage Act, which prohibited attempts to interfere with or undermine U.S. military operations or recruitment. Socialists, who frequently expressed their opposition to the draft, were identified as potential subversive elements.

Charles Schenck served as Secretary for the Socialist Party of America. In that role he was responsible for mailings to prospective draftees that advocated dissent and political opposition to the draft. (See one of his leaflets in our document-based lesson on the case).  He was arrested and prosecuted under the Espionage Act, a conviction he challenged on free speech grounds. The case made its way to the Supreme Court, where a unanimous verdict upheld his conviction. In the decision Holmes put forward the “clear and present danger” test, saying that Schenck’s critique of the military’s draft constituted a clear danger to U.S. military recruitment efforts. It is here where Holmes added his rhetorical flourish , suggesting Schenck’s actions were as indefensible as falsely shouting fire in a crowded theater

Schenck was imprisoned for ten years as a result of his activism. At the conclusion of the war President Woodrow Wilson pardoned or commuted the sentences of more than 200 people imprisoned on Espionage Act charges. In future cases, the Supreme Court, Holmes, led by Justice Louis Brandeis, overturned some of the precedent set in Schenck. It wasn’t until Bradenburg v. Ohio 1969 that the modern conception of limits on the First Amendment, namely the ‘imminent danger’ test, was articulated. The clear difference between these two tests is the bright line principle; speech must be directly responsible for inciting immediate violence for it to be criminalized.

Do you think that under an imminent danger test Schenck would have been convicted?

Do you use document-based questions in your classroom?

This fall the Bill of Rights Institute is blogging a document-based question on the Supreme Court case Brown v. Board of Education (1954). Each weekly post will feature an excerpted document related to the case, along with some questions to guide your thinking on it. Each document should be used to address the question: “Assess the role played by the Court as the protector of individual rights against the tyranny of the majority in Brown v. Board of Education.”

Virginia Criminal Code (1847)

Any white person who shall assemble with slaves, [or] free Negros … for the purpose of instructing them to read or write … shall be punished by confinement in the jail … and by fine.…

>What does this law reveal about African Americans’ access to education in mid-nineteenth century Virginia?

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Check back each week to see the next document and how it might change your thinking on this important question that affects all public school teachers and students in the U.S.! If you are enjoying this DBQ – be sure to check out our curriculum Supreme Court DBQs: Exploring the Cases the Changed History.

What could be more frightening than violations of our constitutional rights? But is everything that appears to be a violation actually one? Join us as we explore some current constitutional issues. We hope you enjoy our Bill of Frights!

When accused of a crime, every citizen possesses the right to a fair trial–some details of what a fair trial encompasses are laid out in the Constitution and the Bill of Rights. But some worry that mandatory minimum-sentencing guidelines are shifting the scales of justice and placing too much power in the hands of prosecutors, thus making it challenging for citizens to receive a fair trial.

The past few decades have seen a steady decrease in the number of felony cases brought to trial. In the 1970s, the ratio of felony cases that made it to trial was about one in 12. Today, some estimates put the number at fewer than one in 40. Observers of the criminal justice system partly attribute this shift to sentencing laws prosecutors leverage when negotiating with individuals accused of a crime.

There are practical reasons that explain the criminal justice systems increase use of plea bargains including a near three-fold increase in felony case loads. With courts around the country clogged up with cases, is it reasonable to expect every single case will find its way to trial?  In addition, the idea that a plea bargain–a voluntary agreement (or rather contract) between the accused and a prosecutor–could be construed as potentially subverting or undermining the right to a fair trial is itself problematic. If the accused desires to have a trail, then a trial of some form will commence.

Still, some contend that the “choice” aspect of plea bargains is not as robust as it may appear. In an interview with PBS’s Frontline, Yale law professor John Langbein said, “the problem with choice arguments is that they neglect the main dynamic of plea bargaining which is the pressure that the prosecutor puts on you to do it his way. Plea bargain works by threat. What the prosecutor says to a criminal defendant in plea bargaining is, ‘Surrender your right to jury trial, or if you go to trial and are convicted of an offense, we will see to it that you are punished twice. Once for the offense, and once for having had the temerity to exercise your right to jury trial.’ That is a coercive system.”

In 2004, Judge William Young, a federal magistrate in Boston, lambasted the criminal justice system in a 177-page decision in which he said, “the focus of our entire criminal justice system has shifted away from trials and juries and adjudication to a massive system of sentence bargaining that is heavily rigged against the accused.”

Despite these complaints, some experts point to the notion that the problems surrounding plea bargains are procedural in nature. In a 2003 article for Regulation Magazine, Timothy Sandefur of the Pacific Legal Foundation wrote, “But there are sufficient justifications for plea bargaining. Its flaws are procedural, not constitutional, and it needs reform, not abolition.” And even though the Framers did not include plea bargains in the Constitution (only jury trials are mentioned), that, in of itself, does not prove the mechanism unconstitutional. The Supreme Court has ruled on the constitutionality of plea bargains on several occasions. In Santobello v. New York (1971), the Court found that plea bargains are not only constitutional, but “an essential component of the administration of justice” and that “[so long as it is] properly administered, [plea bargaining] is to be encouraged.”

The most famous Supreme Court case on plea bargains is North Carolina v. Alford (1970). In that case, the Court found plea bargains to be constitutional regardless of whether the accused only plead guilty to avoid the possibility of a harsher sentence at trial. (In Alford, a defendant who claimed innocence pleaded to a sentence of life in order to avoid a mandatory death penalty sentence that would have resulted had he lost the trial.)

But critics of the plea bargaining method still see a problem with a system that makes going to trial seem so unreasonable the innocent people will plead out to crimes they didn’t commit.

What do you think? Does the combination of harsh sentencing laws and plea bargains undermine the accused right to a fair trial?