Abstract

Excerpted From: David A. Weinstein, People ex rel. King v. Gallagher and the Forgotten Legal Struggle over Racial Segregation in New York State Public Schools, 20 Judicial Notice 32 (2026) (Full Document)

The traditional account of the legal struggle to desegregate America’s schools is centered on the United States Supreme Court, and bookended by the Court’s upholding of the principle of “separate but equal” in Plessy v. Ferguson and its unanimous reversal in Brown v. Board of Education. In this narrative, the fight over de jure segregation took place south of the Mason-Dixon line, and to the extent the North was a front in that battle, it focused on efforts to remedy the effects of de facto segregation in disputes over busing or residential segregation, and not on the legally enforced barriers that characterized the South. To the extent the North was a front in that battle, it focused on efforts to remedy the effects of de facto segregation in disputes over busing or residential segregation, and not on the legally enforced barriers that characterized the South.

There are several problems with this account. For one thing, legalized school segregation existed in the North--and in New York in particular--long after the Civil War. Moreover, the courts’ role as guardians of segregation long pre-dated Plessy, and the doctrine of “separate but equal” was promulgated first by northern state courts, in the progressive bastions of Massachusetts and New York. In New York State, courts not only refused to find racial segregation unconstitutional but declined to enforce legislative mandates aimed at allowing Black students to attend their neighborhood public schools.

This article tells the story of the late nineteenth century legal conflicts over school segregation in New York State, and the challenge to it rejected by the Court of Appeals in People ex rel. King v. Gallagher (hereinafter ““King”) and its aftermath. King attracted virtually no attention from the public and press at the time and is almost completely forgotten today. The primary history of the Court of Appeals during this period makes no mention of it. But King had a profound impact on subsequent jurisprudence upholding segregation, including Plessy itself. Therefore, the ignominious role played by New York’s high court in the early history of the civil rights struggle merits re-telling.

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In the north as in the south, education developed under a regime of racial exclusion that kept African Americans from reaping its full benefits, and led to the creation of African American institutions to fill the gap. While the Black community broadly supported efforts to open up public schools to all students, it showed ambivalence about potential closure of Black schools, and loss of jobs by Black teachers.

One key difference between school segregation in New York and the post-Reconstruction south was the presence of legislators and local officials sympathetic to the civil rights cause, who were at times able to push that agenda forward. But such advances were often hindered by the courts, which not only rejected constitutional arguments for desegregation, but narrowly read legislation clearly intended to foster that goal. The most remarkable aspect of King is that the legislature had made a clear effort to outlaw the practice of excluding Black students from their neighborhood schools, and the Court rendered it a nullity.

By defending judicial inaction in the fight for racial equality, the King Court left a stain on New York’s judicial legacy, providing Jim Crow a veneer of legitimacy. In Plessy, the Court observed that segregation had “been held to be a valid exercise of the legislative power even by courts of states where the political rights of the colored race have been longest and most earnestly enforced.” That stain lived on in numerous subsequent court rulings throughout the south, which cited the New York Court of Appeals’s skepticism towards the ability of law to bring about social change as their legal rationale for racial exclusion.

David Weinstein is a Judge of the New York State Court of Claims and an Acting Justice of the New York State Supreme Court