107oag140

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.