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What Happened to ‘Brown’?

When the justices of the United States Supreme Court travel abroad, their counterparts in other lands marvel at one thing above all else: their ability to have their decrees obeyed. In many nations, this is not a power taken for granted. Few images capture this point about the American constitutional system more powerfully than the stark news photographs of African-American students entering previously all-white public schools under National Guard escort after the Supreme Court’s 1954 decision holding segregated public schools unconstitutional in Brown v. Board of Education. Walking with quiet dignity past jeering, taunting white crowds, those students’ brave passage symbolized the supremacy of law over mob rule, and helped to cement the Court’s reputation as a powerful institution standing against the majority.

Now, fifty years later, Brown has had a mixed commemoration. To be sure, the decision has been widely celebrated this year at academic conferences, public ceremonies, and American Bar Association events. Supreme Court Justice Stephen Breyer journeyed to Topeka, Kansas, to pay the Court’s respects to the residents of the school district in which the case originated. And participants in the nation’s first gay marriages in Massachusetts this past May 17 cheered the coincidence of their own first day of judicially decreed equality with the precise fiftieth anniversary of the decision in Brown.

But elsewhere the celebration has been muted, and in some quarters, the occasion has been marked by outright lament. While Brown condemned segregated public schools as “inherently unequal,” public schools today persist in remaining racially unbalanced in many large metropolitan areas. White students make up two thirds of the American school-age population, but on average they attend schools that are 80 percent white. Fewer than 10 percent of black students attend schools whose students are mostly white, and only 10 percent of white students attend schools in which minority students predominate. The students in some school systems, like the Mott Haven elementary schools in the Bronx, are over 99 percent black or from other minorities, making them statistically indistinguishable from students in the pre-1954 public schools whose racial segregation was enforced by Jim Crow laws. And while many African-Americans have moved into the middle class since Brown, on average blacks continue to lag behind whites in nearly every socioeconomic index.

To the authors of three books published for Brown‘s fiftieth anniversary, these ongoing racial inequalities show Brown‘s disappointing outcome, or even its catastrophic failure. In the postscript to the new edition of his superb and fascinating 1976 history of the Brown litigation, the Pulitzer Prize– winning journalist Richard Kluger describes a “widely prevalent mood of disappointment” among black Americans that Brown “gave rise to so much hope and yet left so many heightened expectations well short of fulfillment.”

Charles Ogletree, a Harvard law professor born the same year as Brown into the segregated society of Merced, California, recounts movingly how much Brown helped make possible his own education at Stanford and Harvard and his subsequent successful career, but concludes that “far too many African-Americans…have been left behind, while only a relative few have truly prospered.”

And in a jeremiad whose excoriating bitterness is softened only by its elegant prose, NYU law professor Derrick Bell, a veteran of early school desegregation litigation, goes so far as to say that Brown has had perverse effects that make it an “unintended but nonetheless contributing cause of current statistical disparities” between the races. He even outlines an alternative opinion in which Brown would have come out the other way, reaffirming the doctrine of “separate but equal” but putting teeth in the requirement of material equality between black and white schools. The reader might hope that this modest proposal is meant as Swiftian satire, but the rest of Bell’s fatalistic dirge for Brown makes clear that it is not.

1.

The story of the Court’s 1954 decision in the four cases consolidated under the caption Brown v. Board of Education begins decades earlier in the 1920s and 1930s, when Thurgood Marshall and other lawyers for the NAACP, especially Charles Hamilton Houston, began to prepare a legal strategy that would challenge segregation by taking Plessy v. Ferguson, the infamous 1896 “separate but equal” decision, at its word. Plessy had approved the exclusion, under law, of a black man from a whites-only railway car. After all, said the Court, black and white riders alike were excluded from each other’s traveling compartments. Separate but equal was still equal, the Court ruled, and if Homer Plessy chose to construe that as discrimination against him on the basis of his race, then he was just being overly sensitive.

The Jim Crow laws that arose in response to Reconstruction required similar racial apartheid in other public institutions, including the growing number of free and universal public schools. Concentrating on education as the main battlefront, Marshall and his colleagues figured that if they could demonstrate, case by case, that Plessy rested upon a legal fiction, and that in fact black and white schools had woefully unequal resources, they could force increased spending on black schools that would make segregated schools prohibitively expensive. In that event, they predicted, racial integration would eventually take place for economic reasons.

Their lawsuits against whites-only public graduate schools and professional programs brilliantly exploited this strategy, beginning with the victory of Houston and Marshall in a 1936 state court decision that forced the University of Maryland Law School, which had been closed to Marshall himself some years earlier—he went instead to all-black Howard Law School, where Houston taught for much of his life—to admit Donald Murray, its first black student. In the 1940s and early 1950s, Marshall and his colleagues went on to achieve similar results for Lloyd Gaines at the University of Missouri Law School, Ada Louise Sipuel at the University of Oklahoma Law School, Herman Marion Sweatt at the University of Texas Law School, and Dr. George McLaurin at the University of Oklahoma Graduate School of Education.

This methodical campaign required enormous political self-restraint while the NAACP lawyers were patiently hoisting the odious doctrine of separate but equal on its own petard. Only after this series of victories did Marshall decide that the time had come to argue that segregation was inherently unequal, and that, in our constitutional order, the doctrine of separate but equal had no place. The Brown cases—arising from challenges to segregated school districts in Kansas, South Carolina, Virginia, and Delaware—had to be argued before the Supreme Court twice, once in 1952 and once in 1953. After the first argument the justices were divided, with some hesitant to strike down racial practices so long entrenched. In the interim, though, the Kentuckian Chief Justice Fred Vinson suddenly died, and President Eisenhower replaced him with former California governor Earl Warren, prompting Justice Felix Frankfurter to comment, “This is the first indication I have ever had that there is a God.”

Warren, who had expressed pro– civil rights views during his political career and who later said, “It seemed to me a comparatively simple case,” managed to unite all nine justices behind a single opinion that struck down, as a violation of the constitutional guarantee of equal protection, the segregation of public schools in all four states. (A separate decision in a fifth case invalidated segregation in the federally administered D.C. public schools.) The Court, however, held over for the following term the question of how remedies would be applied. Partly in order to obtain the unanimity he deemed vital, the Chief Justice wrote an opinion for the Court that was terse, oracular, and somewhat vague.

As a result, the opinion is susceptible to at least four different interpretations, which are sometimes used to reinforce one another, sometimes to exclude one another: that racial classifications have no place in public decision-making; that public institutions such as schools set up under white supremacy laws lack political legitimacy; that racial classifications are invalid when they psychologically stigmatize minorities; and that racial integration is a useful and desirable social policy.

The first interpretation arises from the opinion’s majestic conclusion that “in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” As Justice John Marshall Harlan, the sole dissenter in Plessy six decades earlier, had put it, “our Constitution is color-blind.” According to this view, the Constitution’s equal protection clause precludes the use of race as a basis for distributing public benefits and burdens, period. This interpretation would be taken up years later not only by civil rights advocates but also by opponents of new programs of affirmative action that sought to use race preferences to correct the racial discrimination of the past.

Under the second interpretation, the Court was acknowledging the political reality that segregation had been enacted by white-dominated governments elected largely by white voters, with blacks disenfranchised. In this interpretation, Brown simply repudiated Plessy‘s pretense that segregation was racially symmetrical, and at last acknowledged that “the policy of separating the races is usually interpreted as denoting the inferiority of the negro group.” According to this view, the Court’s decision turned on the fact that segregation involved racial subordination, not merely racial separation. Harlan had anticipated this approach, too, in his Plessy dissent, stating that “there is in this country no superior, dominant, ruling class of citizens. There is no caste here.” Advocates of affirmative action would later see this interpretation of Brown as preferable to the “color-blind” approach. They reasoned that, despite Brown, the use of race may sometimes be a permissible basis for public policy when such a policy, like the Brown decision itself, helps to eliminate the continuing heritage of racial hierarchy and black subordination.

In the third and most controversial interpretation, the Brown Court relied on modern psychological evidence, unknown to the justices who decided Plessy v. Ferguson, demonstrating racial segregation’s stigmatizing effects. The prominent black sociologist Kenneth Clark and others had studied psychological evidence such as children’s ascriptions of relatively positive or negative qualities to black and white dolls, and found persistent patterns of low self-esteem among black children. Citing these findings in a footnote that was much criticized, Chief Justice Warren declared that racial separation of black children from white children of the same age “generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone,” and thus retards their “educational and mental development.”

This interpretation, of course, leaves open the possibility that separate education might be permissible in some other time, place, or set of social circumstances, if evidence from social science could demonstrate that it had different psychological effects, such as empowering minority students or improving their academic performance. Some advocates later made similar arguments for same-race and same-sex private schools, and even their occasional analogues in public education systems.

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