The Impact of Three ΦBK Justices on Brown v. Board of Education

By Whitney Horn

The landmark case of Oliver Brown v. Board of Education of Topeka (1954) altered the Supreme Court’s interpretation of the Equal Protection Clause in the Fourteenth Amendment, which stated that people could not be denied equal protection of the laws based on race. Though the case dealt with desegregation of schools, Brown v. Board of Education led to the desegregation of all public places and began the work toward improving racial equality in the United States. Three of the justices on the Supreme Court during the era of Brown v. Board of Education were Phi Beta Kappa members: Associate Justice William O. Douglas, Associate Justice Harold H. Burton, and Associate Justice Felix Frankfurter. All three of these distinguished ΦBK members played important roles in deciding the case that provided a turning point in the journey of American Civil Rights.

Associate Justice William O. Douglas (ΦBK, Whitman College, 1920) served on the Supreme Court from 1939-1975, the longest time spent on the Court of any Justice at a thirty-six year term. Born on October 16, 1898, Douglas graduated from Whitman College in 1920 and from Columbia University law school in 1925. Before being nominated to the Supreme Court by President Franklin Roosevelt on April 15, 1939, Douglas worked at a New York law firm and served on the Securities and Exchange Commission. He retired from the Supreme Court on November 12, 1975, and died at age eighty-one in 1980.

Associate Justice Harold H. Burton (ΦBK, Bowdoin College, 1909) served on the Supreme Court from 1945-1958. Burton was born on June 22, 1888. He graduated from Bowdoin College in 1909 and from Harvard Law School in 1912. During his career, Burton worked as a lawyer in Ohio and for a public utility in Utah and Idaho. He was elected to the Ohio House of Representatives, became the Director of Law for the City of Cleveland, and served as Mayor of Cleveland before he was elected to the United States Senate. On September 22, 1945, President Harry S. Truman nominated Burton for the Supreme Court, where he served for thirteen years before retiring on October 13, 1958. He died six years later on October 28, 1964, at age seventy-six.

Associate Justice Felix Frankfurter (ΦBK, College of the City of New York, 1902) served on the Supreme Court from 1939-1962. Born in Austria on November 15, 1882, Frankfurter emigrated with his family to New York City in 1884. After graduating from the College of the City of New York in 1902 and Harvard Law School in 1906, Frankfurter worked at a New York law firm before becoming an Assistant United States Attorney for the Southern District of New York, and later a legal officer at the Bureau of Insular Affairs. He took an appointment to Harvard Law School as a faculty member before becoming more active in the United States’ War Department, holding positions as assistant to the Secretary of War, Secretary and counsel to the President’s Mediation Commission, and Chairman of the War Labor Policies Board. On January 20, 1939, President Franklin D. Roosevelt nominated Frankfurter to the Supreme Court where he served for twenty-three years before retiring on August 28, 1962. He died three years later at age eighty-two.

Justices Douglas, Burton, and Frankfurter all sat on the Supreme Court when Brown v. Board of Education was heard beginning in 1952, and when the decision was made on May 17, 1954. The unanimous decision of the Court, written by Chief Justice Warren, overturned the decision of the Court on Plessy v. Ferguson (1896). The 1896 decision said that segregation of the races in public places, including schools, was constitutional as long as the facilities were of the same quality. This decision is where the term “separate but equal” comes from, and this doctrine was used by the Court to validate Jim Crow laws for over fifty years.

In Chief Justice Earl Warren’s written opinion on Brown v. Board of Education, he explained that “separate but equal educational facilities for racial minorities is inherently unequal violating the Equal Protection Clause of the Fourteenth Amendment.” Furthermore, the Court concluded that separating children based on race led to low racial self-esteem and a sense of inferiority in African American children that could hurt their educational progress and personal development.

Because the decision was unanimous, only Chief Justice Warren wrote an official opinion on the case, but Justices Douglas, Burton, and Frankfurter each supported the Court’s opinion. Douglas declared that Warren had “done a beautiful job” in drafting the opinion on the case, adding that he wouldn’t alter a word of the opinion. Burton echoed Douglas’s praise, stating that the day of the decision “has been a great day for America and the Court.” Burton seems to have known the importance of this case to the future, emphasizing how important unanimity was in the decision. Frankfurter said that the day of the decision for Brown v. Board of Education would “live in glory” in America’s history.

However, the journey to unanimous agreement on the case was not as easy as the result might imply. At the beginning of the case, there was dissent over what should be done. All of the justices at the time were Roosevelt and Truman appointees. Four justices, including Douglas and Burton, were in favor of overturning Plessy v. Ferguson without any qualms. It was time, and the state of the nation had changed enough that desegregation was no longer tolerable to a majority of Americans, they believed. Frankfurter, along with his fellow Associate Justice Robert H. Jackson, held more complicated opinions. They were both against segregation but worried about the effects of overturning Plessy v. Ferguson as it had been used as a precedent for well over fifty years. Frankfurter was a proponent of judicial restraint, and wrote: “However passionately any of us may hold egalitarian views, he travels outside his judicious authority if for this private reason alone he declares unconstitutional the policy of segregation.” Frankfurter, along with Jackson, worried that any decision to overturn Plessy v. Ferguson, indeed the decision that was ultimately given on Brown v. Board of Education, would be impossible for the Court to enforce. This worry proved legitimate as the second case of Brown v. Board of Education came up in 1955.

The second part of the case, known as Brown v. Board of Education II, was decided on May 31, 1955, one year after the first case. This second case dealt with the implementation of the previous decision. Knowing that there would be pushback from some states and that racial discrimination was carried out in diverse ways throughout the country, the Court had to be careful when deciding how de-segregation of schools would occur. Ultimately, the Court opted for a broad solution in which local school authorities would be allowed to suggest plans that would work best for their own circumstances. The localities were asked to comply with the Court’s expectations of desegregation and equal schools for all races of children “with all deliberate speed.”

Frankfurter played an important role in the drafting of Brown v. Board of Education II. Warren originally wrote that the implementation of the Brown decision should be carried out “forthwith.” Frankfurter, adopting the suggestion of Thurgood Marshall, changed the wording to its final iteration: “with all deliberate speed.” This change was made to ensure that opponents of desegregation would feel more compelled to adhere to the decision as quickly as possible and not delay implementation. In addition, the justices’ opinion “that the decree should provide for flexible enforcement, appeal to established principles, and suggest some basic ground rules for judges of the lower courts” was helped along to consensus due to Frankfurter’s endorsement of this opinion.

The legacy that Associate Justices Douglas, Burton, and Frankfurter left during their time on the Supreme Court caused reverberations that have lasted the past sixty years, and will continue. Each of these ΦBK members and Associate Justices heard many cases during their tenure on the Supreme Court, but Brown v. Board of Education remains one of their highest profile cases. Their commitment to equal education facilities for all children regardless of race represents The Phi Beta Kappa Society’s insistence on diversity and inclusion in educational very well indeed. 

Whitney Horn is a senior majoring in English at Kansas State University. Kansas State is home to the Beta of Kansas Chapter of Phi Beta Kappa.