The Lost Brown V. Board of Education of Immigration Law

Gabriel J. Chin, Cindy Chiang, and Shirley S. Park
Published in
Social Science Research Network, Paper 346 (2013), 102-141

This Article proposes that in 1957, the Supreme Court came close to applying Brown v. Board of Education to immigration law. In Brown, the Supreme Court held that school segregation was unconstitutional. Ultimately, Brown came to be understood as prohibiting almost all racial classifications. Meanwhile, in a line of cases exemplified by Chae Chan Ping v. United States and Fong Yue Ting v. United States, the Supreme Court held that Congress enjoyed plenary power to discriminate on any ground, including race, in immigration law. These holdings have never been formally overruled. Immigration, then, is said to be an exception to the general rule of Brown and Bolling v. Sharpe.