107oag140 ( 2022 )

140 [107 Op. Att’y
CONSTITUTIONAL LAW
EQUAL PROTECTION – REJECTING THE CONTINUING VALIDITY
OF PRIOR OPINIONS THAT UPHELD OR APPLIED RACIALLY
DISCRIMINATORY LAWS
November 21, 2022
The Honorable Bill Ferguson, President of the Senate
Maryland General Assembly
The Honorable Adrienne A. Jones, Speaker of the House
Maryland General Assembly
Earlier this year, we commenced a review of the validity of
prior official opinions of the Attorney General that upheld or
applied racially discriminatory Maryland laws that were later found
to be unconstitutional. This inquiry was inspired by a recent
opinion of the former Virginia Attorney General, Mark R. Herring,
who analyzed whether prior opinions in that state that “relied
upon—or promoted—racially discriminatory laws” were “still in
effect.” Va. Op. Att’y Gen. No. 21-103, 2022 WL 173637 (Jan.
12, 2022), https://www.oag.state.va.us/files/Opinions/2022/21-
103-Locke-and-Bagby-Issued.pdf. Like the Virginia Attorney
General, we conclude that some of the prior opinions of the
Attorney General of Maryland are no longer good law. More
specifically, in searching for prior opinions of the Attorney General
that upheld or applied racially discriminatory laws, we found many
such opinions that either explicitly relied on or implicitly accepted
two discriminatory legal principles that we now recognize as
abhorrent to the Constitution: (1) the notion that the State may
restrict interracial marriage and (2) the doctrine of “separate but
equal” in public facilities, especially public education. To the
extent that any prior opinions explicitly or implicitly upheld either
of these clearly invalid legal principles, we expressly overrule
them.1
1
We note that, in some instances, these opinions may have applied
other principles, such as the standard rules of statutory interpretation.
These opinions also sometimes involved analysis that can be separated
from the analysis that upheld or applied the discriminatory law at issue.
To be clear, we are focused here on the parts of these prior opinions that
explicitly or implicitly upheld racially discriminatory laws that we now
understand to be unconstitutional, or explicitly or implicitly upheld the
invalid legal principles that served as the basis for those laws. We
express no view as to any other aspects of those opinions.
Gen. 140] 141
I
Background
Maryland, like many states, has a long and unfortunate history
of racially discriminatory laws. In 1664, for example, the colonial
General Assembly passed a statute providing that all Black persons
in Maryland would be enslaved for life, codifying a practice that
had already existed for decades. 1664 Md. Laws, at 533-34; see
also Ross M. Kimmel, Blacks Before the Law in Colonial
Maryland, ch. 3 (Jan. 24, 1974) (M.A. thesis, Univ. of Md.),
https://msa.maryland.gov/msa/speccol/sc5300/sc5348/html/chap
3.html (last visited Oct. 26, 2022). Although a free Black population
eventually developed in the State, free Black Marylanders during the
time before the Civil War could not vote and could be sold back into
slavery if they were unemployed. See Maryland State Archives, A
Guide to the History of Slavery in Maryland 10 (2007),
https://msa.maryland.gov/msa/intromsa/pdf/slavery_pamphlet.pdf.
The Constitution of 1864 abolished slavery in Maryland, see
Md. Decl. Rights Art. 24 (1864), but legally sanctioned racial
discrimination persisted. For example, as we discuss in more detail
below, Maryland maintained a segregated system of public
education until the Supreme Court held such systems
unconstitutional in 1954, and the State restricted certain interracial
marriages until just before such laws were also held
unconstitutional in 1967. State and local governments enacted
other “Jim Crow” laws as well, such as laws mandating the
segregation of railroad passenger cars, 1904 Md. Laws, ch. 109;
1908 Md. Laws, ch. 248, restricting voting rights under a
“grandfather clause” in certain local elections, 1908 Md. Laws, ch.
525, and segregating residential neighborhoods, Baltimore City
Ord. No. 692 (May 15, 1911).2 Only during the era of the Civil
Rights Movement did the trend of discriminatory laws begin to
reverse in a significant way, with the enactment of civil rights
legislation such as a prohibition on discrimination in places of
public accommodation. 1964 Md. Laws (1st Spec. Sess.), ch. 29.
Of course, legally sanctioned racial discrimination in
Maryland was not limited to discrimination against Black people.
For example, the colony of Maryland did not recognize the
property rights of the Indigenous peoples who inhabited what is
now Maryland at the time of English colonization, see Robert J.
2
At the State level, however, multiple attempts to add a “grandfather
clause” to the State Constitution failed. See Garrett Power, Eugenics,
Jim Crow and Baltimore’s Best, 49 Md. Bar J. 4, 8 (Nov. 2016).
142 [107 Op. Att’y
Miller, The Doctrine of Discovery in American Indian Law, 42
Idaho L. Rev. 1, 23 (2005), and these Indigenous peoples were
gradually forced out of the colony or onto reservations that were
later abolished, see Maryland Manual, “Native Americans,”
https://msa.maryland.gov/msa/mdmanual/01glance/native/html/01
native.html (last visited Oct. 27, 2022); see also Letter from
Kathryn M. Rowe, Assistant Attorney General, to Del. Peter A.
Hammen, at 4 & n.3 (Mar. 31, 2009). In addition, members of
other racial and ethnic groups were sometimes grouped into the
disfavored legal category of “colored.” See, e.g., State v. Gurry,
121 Md. 534, 552 (1913) (discussing discrimination between
people who were categorized as “white” and those categorized as
“colored”); see also Isabel Wilkerson, Caste 122-27 (2020)
(discussing shifting boundaries of the “white” category throughout
U.S. history). Certain groups were also singled out for
discrimination, such as members of the “Malay race,” who were
prohibited from marrying white or Black people in Maryland in
1935. See 1935 Md. Laws, ch. 60.
In more recent years, the State and our Office have attempted
not only to eliminate discrimination going forward but also to
confront the discrimination of the past. For example, in 2007 the
General Assembly formally expressed “profound regret for the role
that Maryland played in instituting and maintaining slavery and for
the discrimination that was slavery’s legacy.” 2007 Md. Laws,
Joint Res. 1. Indeed, our Office has supported the work of
addressing the State’s history of discrimination by, for example,
helping to staff the Maryland Lynching Truth and Reconciliation
Commission. 2019 Md. Laws, ch. 41, § 1(d)(2). But we also have
a responsibility to acknowledge our Office’s own past actions that
might have perpetuated racial discrimination in the State. To that
end, we have reviewed the official opinions of the Office of the
Attorney General, dating back to the first published volume in
1916, to search for any opinions that might have applied,
interpreted, or upheld racially discriminatory laws.3
As much as we might prefer otherwise, our research showed
that the Office of the Maryland Attorney General was sometimes
complicit in the State’s history of racial discrimination. Both
before and during the Civil Rights Movement, prior Attorneys
General were asked questions about the interpretation and the
3
Although the Attorney General undoubtedly issued written opinions
prior to 1916, the first published volume of opinions was issued that year,
which is the same year that the Department of Law (the predecessor of
our Office) was first created. We thus began our review with 1916.
Gen. 140] 143
enforceability of racially discriminatory laws. In particular, our
predecessors were asked on several occasions about Maryland’s
laws prohibiting interracial marriage and its laws imposing racial
segregation in the State’s public schools. As we shall see, in some
cases, the opinions explicitly advised that racially discriminatory
laws should continue to be enforced and, in other cases, interpreted
or applied racially discriminatory laws or legal principles without
acknowledging or grappling with the constitutional problems they
raised.
II
Analysis
Our Office’s published opinions serve as the official
pronouncements of the Attorney General on questions of law. See
Md. Const., Art. V, § 3(a)(4). Although these official opinions are
not binding on the courts, they “serve as important guides to those
charged with the administration of the law.” Mitchell v. Register
of Wills, 227 Md. 305, 310 (1962). Thus, we ordinarily “stand[] by
[our] precedent, much as a court would,” and we “will not overrule
a prior opinion simply because we might have resolved a close
question the other way.” 72 Opinions of the Attorney General 200,
202 (1987). “At the same time, we will not perpetuate a significant
mistake in legal reasoning” and are always “prepared to recognize
that a prior opinion has been eroded by changed circumstances.” Id.With those principles in mind, we consider the continuing
validity of prior opinions of the Attorney General that involved
racially discriminatory laws. Based on our research, these opinions
fell into two general categories: those involving laws that restricted
interracial marriage and those involving school-segregation laws.
We discuss each category of opinions in turn.4
A. Laws Restricting Interracial Marriage
In 1664, Maryland enacted its first law restricting interracial
marriages. That law was specifically designed to prevent marriage
between white English women and enslaved Black men. Kimmel,
supra, ch. 3. Over the ensuing centuries, Maryland continued to
pass similar laws. See, e.g., 1884 Md. Laws, ch. 264 (prohibiting
“marriages between white persons and persons of negro descent to
4
In some cases, even when the result and the legal reasoning of an
opinion may not have been discriminatory, the opinions used outdated
or racist terminology. See, e.g., 54 Opinions of the Attorney General 207
(1969). We disavow the use of such language.
144 [107 Op. Att’y
the third generation”); 1935 Md. Laws, ch. 60 (prohibiting a white
or Black person from marrying a person of the “Malay race”). In
fact, the State had such a law on the books until just days before
the Supreme Court held, in Loving v. Virginia, 388 U.S. 1 (1967),
that such laws violated the United States Constitution. See 1967
Md. Laws, ch. 6, § 3 (repealing the law restricting interracial
marriages, effective June 1, 1967); Loving, 388 U.S. at 1 (noting
that the opinion was issued on June 12, 1967). That law provided,
in relevant part:
All marriages between a white person and a
negro, or between a white person and a person
of negro descent, to the third generation,
inclusive, or between a white person and a
member of the Malay race or between a negro
and a member of the Malay race, or between
a person of negro descent, to the third
generation, inclusive, and a member of the
Malay race, are forever prohibited, and shall
be void.
Md. Code, Art. 27, § 398 (1967). Before the Supreme Court’s
decision in Loving, the Office of the Attorney General was asked
about these laws on several occasions.
For the most part, the Office interpreted these laws without
expressly considering their constitutionality. For example, in a
1928 opinion, the Clerk of the Court of Common Pleas asked if it
was proper to issue a marriage license to a white man and a woman
whose paternal grandparents were Black. 13 Opinions of the
Attorney General 164, 164 (1928). The Attorney General at the
time responded that Maryland law prohibited a Black person from
marrying a white person and advised the clerk to refuse to issue the
license, but the opinion did not consider whether the statute was
constitutional. Id. Similarly, in 1940, the then-Attorney General
opined that State law prohibited a white woman from marrying a
Filipino man, again without considering whether the prohibition
was constitutional.5 25 Opinions of the Attorney General 127, 127-
28 (1940); see also 18 Opinions of the Attorney General 346, 347
5
In the same opinion, the Office concluded that there was no
prohibition on marriages between a Japanese person and a white person
or between a Chinese person and a white person. But that was because
there was no statutory prohibition on such marriages, not because our
predecessors thought that such a prohibition would raise any
constitutional issues. 25 Opinions of the Attorney General at 128.
Gen. 140] 145
(1933) (mentioning without further comment, in an opinion about
a different topic related to marriage and divorce, that Maryland law
prohibited marriages between a white person and a Black person or
a person with Black ancestry).
In other instances, however, the Office acknowledged the
constitutional questions raised by these discriminatory laws but
nonetheless proceeded to treat them as enforceable or advise that
they should continue to be enforced. For example, in 1961, the
clerk for the Circuit Court for Harford County asked if his office
should continue to refuse marriage licenses to interracial couples
when their marriage would be prohibited under Maryland law, and
the then-Attorney General advised that the clerk should indeed
continue to enforce the State’s law prohibiting certain interracial
marriages. 46 Opinions of the Attorney General 44, 44-48 (1961).
The Attorney General concluded that he could only advise that
existing laws enacted by the General Assembly were unconstitutional
“where there has been the clearest indication that a decision of the
courts of our State or of the United States is applicable to and
invalidates those laws.” Id. at 46. In his view, because the
Maryland and federal courts had yet to clearly declare these types
of laws to be unconstitutional, the clerk was required to continue to
enforce Maryland’s law. Id. at 46-48.6 The Attorney General then
gave the same answer a few years later, in response to a question
from a member of the House of Delegates about the statute’s
constitutionality, despite acknowledging that “[i]n view of the
recent decisions of the Supreme Court of the United States, of the
federal courts, and the courts of this State, it might very well be
found that this statute is in violation of the federal constitution.” 51
Opinions of the Attorney General 150, 153 (1966).7
6
The question of when the Office of the Attorney General should
advise that an existing State law is unconstitutional in the absence of
binding precedent directly on point is an admittedly difficult one that
raises challenging questions about the separation of powers and the role
of the Attorney General under our State’s system. Indeed, this is a
question that we have continued to grapple with over the years in other
contexts. See, e.g., 106 Opinions of the Attorney General 82, 91-92
(2021); 93 Opinions of the Attorney General 154, 160-61 (2008). The
point of our opinion here today is not to decide the exact contours of that
question but rather simply to disavow and to overrule the Office’s prior
opinions to the extent that they upheld racially discriminatory laws that
are now clearly unconstitutional.
7
The Attorney General also noted that there was no law prohibiting
couples of different races, who had been married in another jurisdiction,
from living together in Maryland. 51 Opinions of the Attorney General
146 [107 Op. Att’y
Similarly, when the Office was asked shortly thereafter
whether someone with one parent who was white and one parent
who was of the “Malay” race was prohibited from marrying a white
person, the Attorney General acknowledged that laws banning
interracial marriages had been found unconstitutional in at least
some other states and that the United States Supreme Court was
currently considering the question in Loving v. Virginia. 52
Opinions of the Attorney General 35, 35-36 (1967). But the then-
Attorney General nevertheless proceeded to consider the question
of statutory interpretation that had been asked, noting that “[u]ntil
such a Supreme Court decision clearly and unqualifiedly applicable
to the Maryland statute or a final judgment of a Maryland court of
appellate jurisdiction holds our law invalid, we must proceed
without questioning the overall constitutional propriety” of the
statute. Id. at 36.
Ultimately, the opinion concluded that a marriage between a
white person and a person with one white parent and one “Malay”
parent was permissible, but not on the ground that there was
anything constitutionally problematic about the law. Id. at 38.
Rather, the Attorney General concluded as a matter of statutory
interpretation that the statute’s prohibition applied only to persons
who were of the “Malay” race, not persons of Malay descent. Id.
Obviously, these opinions are inconsistent with the Supreme
Court’s holding in Loving v. Virginia and with our current
understanding of the Constitution. As the Supreme Court declared
in its seminal decision in Loving, “[t]o deny th[e] fundamental
freedom [to marry] on so unsupportable a basis as the racial
classifications embodied in these statutes, classifications so
directly subversive of the principle of equality at the heart of the
Fourteenth Amendment, is surely to deprive all the State’s citizens
of liberty without due process of law.” 388 U.S. at 12.
Even though some of these prior opinions were framed as
resolving questions of statutory interpretation and so did not
expressly consider the constitutionality of the underlying laws, they
nonetheless applied and interpreted the laws as if they were
constitutional. Thus, these opinions upholding or applying these
statutes are no longer good law and are overruled to the extent that
at 153. But the opinion stopped short of saying that such out-of-state
marriages would be recognized as valid in Maryland. Cf. 95 Opinions of
the Attorney General 3, 6 (2010) (concluding, prior to Maryland’s
legalization of same-sex marriage, that Maryland law would likely
recognize such marriages if “contracted validly in another jurisdiction”).
Gen. 140] 147
they upheld—either explicitly or implicitly—the discriminatory
legal principle that the State was permitted to prohibit interracial
marriages.8
B. School Segregation
Although Maryland had made sporadic attempts to establish
a free public school system since the early nineteenth century, the
State’s 1864 Constitution made the first provision for a Statewide
system of public schools. Md. Const., Art. VIII, § 4 (1864); see
also Maryland Manual, “State Department of Education: Origin,”
https://msa.maryland.gov/msa/mdmanual/13sdoe/html/sdoef.html
(last visited Oct. 27, 2022). That system was segregated from the
start. The General Assembly’s 1865 implementing legislation
required each school district to have “one or more schools
. . . which shall be free to all white youth,” 1865 Md. Laws,
ch. 160, at 282, and separately provided for “schools for colored
children” to be funded, if at all, exclusively by donations and by
taxes paid by Black Marylanders, id. at 296-97. This was the
beginning of “a formal system of segregated schooling that
continued for ninety years.” “State Department of Education:
Origin,” supra; see also 99 Opinions of the Attorney General 88, 91
(2014) (noting that Maryland retained de jure segregation in public
education at the time of the Supreme Court’s Brown decision).
The State also maintained a segregated system of higher
education, again relying on the principle of “separate but equal”
even where the separate facilities for Black students were
demonstrably unequal. See, e.g., Recommendations of the
Maryland Commission on Higher Education, at 24-25 (1947).
Indeed, prior to 1920, Maryland offered no public higher education
opportunities to Black students at all. See Coalition for Equity &
Excellence in Md. Higher Educ. v. Maryland Higher Educ.
Comm’n, 977 F. Supp. 2d 507, 513 (D. Md. 2013). Over the
following decades the State gradually developed what are now its
historically Black colleges and universities (sometimes by
acquiring formerly private institutions, as in the case of Morgan
8
To be clear, we do not necessarily mean to cast doubt on the
principles of statutory interpretation that these opinions employed
(though, in at least some cases, the Office’s statutory interpretation too
may have been tainted by discriminatory reasoning). As noted above,
supra note 1, it is not within the scope of our opinion here today to
consider whether the Office properly interpreted the laws then in effect
as written. The point is instead that the opinions are no longer good law
to the extent that they explicitly or implicitly upheld the constitutionality
of prohibiting interracial marriage.
148 [107 Op. Att’y
State University). See id. at 513-15. The Maryland courts also
ordered the integration of the University of Maryland School of
Law in 1936, because the State had no law school at all for Black
students. See University of Md. v. Murray, 169 Md. 478, 487-88
(1936). But the system as a whole remained segregated.
In 1954, of course, the U.S. Supreme Court declared the
segregation of public schools to be unconstitutional. Brown v.
Board of Educ., 347 U.S. 483 (1954). The Court held that “the
doctrine of ‘separate but equal’ has no place” in “the field of public
education” and declared that “[s]eparate educational facilities are
inherently unequal.” Id. at 495. The Attorney General subsequently
advised the State Superintendent of Schools, first informally and
then in an official opinion, that Brown was “crystal clear” and that,
under its holding, “all constitutional and legislative acts of
Maryland requiring segregation in the public schools in the State
of Maryland are unconstitutional, and hence must be treated as
nullities.” 40 Opinions of the Attorney General 175, 175-77
(1955). However, as we will discuss, the Office was more resistant
to the idea of extending Brown to require desegregation in other
areas.
Although the cases consolidated in Brown arose from
elementary and secondary schools, it was quickly recognized that
Brown required desegregation in higher education as well. Mary
Ann Connell, Race and Higher Education: The Tortuous Journey
Toward Desegregation, 36 J. Coll. & Univ. L. 945, 951-52 (2010).
After Brown, then, the Supreme Court and lower courts had little
difficulty confirming that public colleges, universities, and
graduate schools must desegregate. See, e.g., Florida ex rel.
Hawkins v. Board of Control, 350 U.S. 413, 414 (1956) (per
curiam) (involving the University of Florida College of Law);
Meredith v. Fair, 305 F.2d 343, 344, 361 (5th Cir. 1962) (involving
the University of Mississippi).
As far as we have been able to tell, the Office of the Maryland
Attorney General did not issue any opinions expressly considering
the constitutionality of school-segregation laws prior to the
Supreme Court’s decisions overturning such laws.9 Instead, the
9
The Office of the Attorney General did recognize, before Brown,
that when a Black student was admitted to a normally all-white
institution, the Black student had to be given access to the institution’s
facilities, such as dormitories, on the same terms as white students. 36
Opinions of the Attorney General 334, 334-35 (1951). But the opinion
Gen. 140] 149
Office received questions about how to interpret various laws that
supported the State’s regime of segregated schools, and our
predecessors generally interpreted or otherwise cited those laws
without raising any questions about their constitutionality.10 For
example, in 1937, the Office considered whether the University of
Maryland could remove two Black students who had been admitted
to its law school on the basis of a new statute that afforded
scholarship funds for Black students to attend out-of-state higher
education institutions when they were otherwise qualified for
admission to Maryland programs (like law school) that were not
offered at the State’s colleges for Black students. 22 Opinions of
the Attorney General 827, 827-28 (1937). Although the Office
concluded that the law did not apply retroactively to allow the
removal of those two students, id. at 828, the opinion did not
question the legality of the new legislative scheme, even though a
clear purpose of that scheme was to try to provide a legal argument
justifying the re-segregation of the University of Maryland’s law
school on the grounds that Black students had now been given
scholarships to attend a supposedly “separate but equal” law school
outside the State.11
did not question or consider the constitutionality of a separate-but-equal
regime more generally.
10
See 6 Opinions of the Attorney General 146, 146-48 (1921)
(interpreting the statutory funding requirements for a “central colored
industrial school” in Charles County without questioning the creation of
a separate school for Black students); 19 Opinions of the Attorney
General 527, 527-28 (1934) (analyzing whether a scholarship program
for Black students was limited to use at “Princess Anne Academy”—
which was a State higher education institution solely for Black
students—without questioning the legality of having a segregated
college); 21 Opinions of the Attorney General 807, 807-08 (1936)
(deciding which entity had the legal duty to fund a “training school” for
“colored girls” without considering the legality of segregation of such
schools); see also 5 Opinions of the Attorney General 136, 137-38
(1920); 5 Opinions of the Attorney General 139, 140 (1920); 6 Opinions
of the Attorney General 556, 556-57 (1921); 8 Opinions of the Attorney
General 113, 114 (1923); 10 Opinions of the Attorney General 105, 105
(1925); 12 Opinions of the Attorney General 85, 86 (1927); 19 Opinions
of the Attorney General 343, 344-45 (1934); 24 Opinions of the Attorney
General 577, 577-78 (1939); 27 Opinions of the Attorney General 79, 79
(1942).
11
The next year, the U.S. Supreme Court found that such a
scholarship scheme in a different state did not satisfy that state’s
constitutional obligations even under the pre-Brown standard of
“separate but equal.” Missouri ex rel. Gaines v. Canada, 305 U.S. 337,
348-50 (1938).
150 [107 Op. Att’y
In fact, in one instance, our predecessors even suggested
continuing approval of the doctrine of “separate but equal,” though
that was not the focus of that opinion. More specifically, when
considering the same scholarship program that was at issue in the
1937 opinion, the then-Attorney General acknowledged that “the
State [was] constitutionally required to extend to its citizens, white
and colored alike, substantially equal treatment in the facilities it
provides from the public funds” but went on to say that “[t]his
equality does not require that the privilege be provided members of
the two races in the same place.” 27 Opinions of the Attorney
General 278, 278 (1942).
Although these pre-Brown opinions generally did not
consider the constitutionality of school-segregation regimes, they
also did not question the legality of such regimes. We thus overturn
these prior opinions to the extent that, by interpreting and applying
Maryland’s racially discriminatory laws, they implicitly upheld the
principle that segregation of public schools was constitutionally
permissible.12
After the Supreme Court’s decision in Brown, the Office of
the Attorney General was asked on multiple occasions to address
the constitutionality of some of the State’s remaining school-
segregation laws. The Office’s opinions responding to those
questions, however, were not always consistent with the spirit of
the Brown decision (or with our current understanding of the
Constitution).
In a 1956 opinion, for instance, the then-Attorney General
considered whether Brown and related cases also invalidated the
Maryland statutes that created segregated “training schools.” 41
Opinions of the Attorney General 120, 120 (1956). The training
schools in question had been created as “places to separate erring
minors from the corrupting influence of improper circumstances”
and, given that the minors resided there by order of the Maryland
courts, the training schools functioned in part as schools and in part
as correctional institutions. Id. at 127. The Attorney General
concluded that the “training schools” were different enough from
the public schools that had been at issue in Brown to leave some
question about whether the Maryland laws providing for
12
Again, we express no view on whether the prior opinions correctly
interpreted the statutes in question as they existed at the time and no view
about the other aspects of the opinions that did not involve the implicit
or explicit approval of the legal principles underlying the State’s
segregation regime.
Gen. 140] 151
segregated training schools had been invalidated by Supreme
Court’s decision. Id. More specifically, in the then-Attorney
General’s view, the fact that the training schools served in part as
correctional institutions meant the Supreme Court’s rationale in
Brown, which he claimed was based only on concerns about
educational equality, did not necessarily apply. Id. at 128-29.13
Even when given an opportunity three years later to change his
mind, the then-Attorney General reiterated his view, finding again
that the segregation of the State’s training schools had not yet been
rendered clearly unconstitutional by Supreme Court precedent. 44
Opinions of the Attorney General 123, 125 (1959).
Eventually, Maryland’s highest court decided the question
and held, unsurprisingly, that the segregation of Maryland’s
training schools clearly violated the Constitution under Brown.
State Bd. of Pub. Welfare v. Myers, 224 Md. 246, 253-55 (1961).
The Court explained that the U.S. Supreme Court in Brown had
“flatly stated that in the field of public education the doctrine of
‘separate but equal’ has no place” and had “repudiated” the “basic
rationale” of the “separate but equal” doctrine from Plessy v.
Ferguson. Id. at 253. Thus, the Maryland courts found, “[t]here
can be no doubt the principle extends to public education at all
levels,” including the “educational programs offered in the training
schools.” Id. at 253-54. Following the decision in Myers, the
Attorney General issued an opinion which acknowledged that the
segregation of training schools was unconstitutional. 46 Opinions
of the Attorney General 51, 51 (1961). Although the two prior
opinions upholding segregation in training schools were effectively
overturned by that 1961 opinion, we now formally overturn them
as well.
III
Conclusion
The U.S. Supreme Court and the Maryland courts have made
clear that laws prohibiting interracial marriage and providing for
the racial segregation of public schools are illegal and contrary to
13
In drawing that comparison, the then-Attorney General relied on
the disturbing argument that desegregation of the training schools “could
have the effect of enforcing social as well as educational association
among the inmates for twenty-four hours a day.” 41 Opinions of the
Attorney General at 129 (emphasis in original). The undeniably racist
notion appeared to be that requiring white children to live with Black
children (and vice versa) could somehow lead to societal harms that
requiring them to go to school together would not.
152 [107 Op. Att’y
the values of our federal and State constitutions. Thus, the prior
opinions of the Attorney General involving such laws are no longer
good law to the extent that they explicitly or implicitly upheld
either these discriminatory laws or the discriminatory legal
principles used to justify such laws. Although, as a practical
matter, those aspects of the opinions were long ago rendered
unenforceable by changes in the law, we recognize that the
opinions continue to serve as a reminder of the history of racial
injustice perpetuated through the legal institutions of our State
government. We thus formally overrule the portions of those
opinions that upheld or relied on the erroneous view that the State
could prohibit interracial marriages and impose the segregation of
public facilities under the doctrine of “separate but equal.”
Renouncing these unfortunate opinions cannot change the past, but
we hope that it will serve to reinforce our Office’s current
commitment to equality under the law.
Brian E. Frosh
Attorney General of Maryland
Thomas S. Chapman
Assistant Attorney General
Patrick B. Hughes
Chief Counsel,
Opinions and Advice
* Whitney Grimm and Sharon Kimemia, former interns for the
Office of the Attorney General, contributed significantly to the
preparation of this opinion.