THE FOURTEENTH AMENDMENT AND THE SEPARATE BUT EQUAL DOCTRINE

Recent cases in which the Court has overthrown enforced separation in public higher education on the ground of inequality but without consideration of the merits of the separate but equal rule have been the occasion for an outpouring of law review discussion on the subject. The present paper is a part of this stream. Its purpose is two-fold: first, to set forth the judicial history of the modern separate but equal rule, noting its pre-Fourteenth Amendment origin and the rather uncritical manner in which courts permitted it to infiltrate its way from one area of the law to another; and second, to present briefly a scheme of analysis for constitutional review of the rule if the Supreme Court should be prevailed upon to consider the question