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.
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.
Finally, according to a fourth view, Brown interprets the equal protection clause as entailing a policy judgment that integrated schools are good for social welfare. Here the Court gave up on its attempt to divine what the framers of the Fourteenth Amendment might have thought about integrated public schools in 1868, since there were hardly any public schools during that era at all. Instead the Court stressed that, by 1954, public education had become necessary in preparing children for civic and professional life: “In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education,” the Chief Justice wrote, and educational benefits would be greater for blacks, he predicted, in integrated than in segregated schools. This prediction rested on a basic economic assumption similar to Thurgood Marshall’s in the law and graduate school cases, namely that white citizens would never allow the schools their own children attended to be as poor in resources as schools run exclusively for blacks.
In view of the intuitive plausibility of that assumption, why did Brown fail to bring about greater racial integration of the public schools? There were, in effect, four escape hatches from Brown’s mandate for integration.
First, the Court is dependent upon the political branches of government to enforce its orders; it has neither money nor police power at its disposal. Aware of the potential for a violent backlash by a resistant South, the Court heard further arguments the next term in the Brown cases over what remedies would be appropriate. In 1955, the Court issued a judgment (Brown II) requiring segregated schools to “make a prompt and reasonable start toward full compliance” with Brown, but it allowed that “additional time” might well be needed to implement racially nondiscriminatory admissions policies, and it ordered the lower courts to proceed only “with all deliberate speed.”
To Thurgood Marshall at the time, the decision in Brown II was mildly disappointing but not daunting; he still believed that the schools would be desegregated within five years. To Charles Ogletree looking back in hindsight, the decision proved nothing less than Brown’s undoing. As the ironic title of Ogletree’s book suggests, “with all deliberate speed” in fact meant very slowly, and in his view, the “timidity expressed in Brown II nullified [the] import” of Brown I’s bold pronouncement by allowing prolonged and largely successful popular resistance to Brown in many school districts, including resistance by actual and threatened mob violence.
While Ogletree correctly and poignantly observes the various ways in which the progress of integration was stymied, he perhaps overstates somewhat the effects of the Court’s decision not to require immediate compliance. In fact, the Court did condemn resistance to the lower court’s integration orders by such recalcitrant white Southern officials as Arkansas Governor Orval Faubus. In its 1958 decision in Cooper v. Aaron, the Court issued an unusual, jointly signed opinion reaffirming Brown as “the supreme law of the land.”
During that litigation, President Eisenhower, who had earlier been skeptical about the Brown decision, ordered national guardsmen to defend lower court integration orders by escorting black schoolchildren safely up the steps of Little Rock High School and protecting them at other sites of violent anti-Brown protest. The President went on national radio and television to assure citizens that he would abide by the decision of the Court and not allow mob rule. Still, despite these statements, very few schools were integrated during the next decade; it was not until the Civil Rights Act of 1964 specified that school integration was a condition for a state’s receiving federal education subsidies, and the executive branch began to threaten to cut off funds to segregated schools, that integration of the public schools began to become statistically significant.
Other social and legal forces likely proved more important than the Court’s caution in preventing the full integration that many had hoped for after Brown. The second big escape hatch was the use of private schools. While attending school is mandatory, attending public school is not. Since the early twentieth century, the Supreme Court has held, in such cases as Meyer v. Nebraska and Pierce v. Society of Sisters, that the right of parents to send their children to private and parochial schools is a fundamental constitutional liberty. In protesting judicial orders to bus black and white children from one neighborhood to another, working-class Bostonians angrily pointed out that the children of the judges who issued those orders often attended tony, private, mainly white schools. Private academies for whites allowed segregationist parents in the South to circumvent Brown’s mandate of integrated schooling for their children until a 1976 Supreme Court decision held that the nation’s first civil rights statute, prohibiting race discrimination in contracts, forbade even private all-white schools.
But parents hardly needed private schools when they could move to largely white suburbs, and there was relatively cheap land just outside cities on which new housing could be built. The third escape hatch from Brown was white flight to effectively segregated suburban public school districts separated from cities by municipal boundaries. While the lower federal courts were aggressive in the 1970s in ordering cross-town busing to in-tegrate school systems within city borders, whether in Oklahoma City, Charlotte-Mecklenburgh, or Boston, the Supreme Court’s 1974 decision in Milliken v. Bradley held that an order for busing inner-city Detroit children across jurisdictional lines into surrounding, whiter communities exceeded the court’s powers. The Supreme Court has long considered local political control over school districts to be a deeply rooted American tradition, one not lightly to be overridden by courts.
Such local control helps to produce inequalities in the amounts spent on education, depending on where students happen to live. The fiscal autonomy of the nation’s many local school districts has thus provided a fourth escape hatch from Brown’s holding that education “is a right which must be made available to all on equal terms.” Since schools are paid for principally by local property taxes, tax-poor school districts can’t raise as much money for education as tax-rich districts, even if they are willing to tax themselves at the same rates. A legal movement to invalidate such inequalities in school financing under the federal Constitution was defeated decisively in a 1973 decision called San Antonio School District v. Rodriguez. In that case, the Supreme Court upheld a pattern of funding in which annual educational expenditures per student in a predominantly Mexican-American school district were $356 per year while they were $594 in a nearby mostly white suburb. The Court found the groups harmed by such inequalities too amorphous (unlike the “discrete and insular” minorities typically protected by the courts), and the remedies too daunting, to wade into what it considered a political thicket. Similar lawsuits have been more successful when brought under state constitutions in such states as New York, New Jersey, Texas, and California, leading to the payment of subsidies to poorer districts. But the discrepancies in financing and therefore in class sizes and teachers’ salaries are often very large.
In short, social forces opposed to integration, abetted by deep constitutional commitments to values other than equality—commitments to the liberty of parents and to the autonomy of local school districts within a federal system—foiled the progress Brown might otherwise have set in motion toward a nation of fully integrated public schools. American education would have looked quite different if there were no constitutional right to opt out of public education by attending private schools, or if education were a task assumed by state governments rather than left to the decentralized decisions of localities. In the end, the political and social forces that were accommodated in such cases as Meyer and Pierce, and Milliken and Rodriguez, did more to stop the Brown decision from being implemented than did any judicial timidity in Brown II.
The failures to carry out the Brown decision have inspired many attempts to reconsider it and suggest new approaches, of which the deeply felt and impassioned books of Ogletree and Bell are among the most important recent examples. The revisionist claims so far have fallen into several camps. The first debunks the importance of the Court’s role in advancing social change. In this view, the Court should not be heralded as in the vanguard of challenging political majorities. Instead, it generally lags behind popular sentiment, or at least the sentiment of ruling elites. This view emphasizes the point that social reform depends far more directly on the actions of the legislative and executive branches than it does on the courts.
The most widely cited scholarly exponent of this position is the University of Chicago political scientist Gerald Rosenberg, whose 1991 book The Hollow Hope: Can Courts Bring About Social Change?1 answered that question resoundingly and controversially “No,” generating a small industry of debate and comment. The University of Virginia law professor Michael J. Klarman’s just-published exhaustive and magisterial volume, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality,2 extends this analysis with particular emphasis on the accomplishments of the civil rights movement, asserting that the effect of the Brown decision was more symbolic than real.
As Klarman tells the story, Brown happened only because public opinion had already crystallized against segregation by the late 1940s. It did so as black soldiers returned from World War II, Truman desegregated the military, black laborers moved from the rural South to the urban North where they could vote freely, and Jackie Robinson crossed the color line in major league baseball. In Klarman’s view, reform of racial segregation was socially and politically inevitable, Su-preme Court or no Supreme Court. Indeed, Klarman claims that the greatest effect Brown had was the perverse one of galvanizing violent Southern resistance that in turn led the Northerners to enact civil rights legislation.
The second strand of Brown revisionism goes a step further, claiming that the Court’s legal rejection of segregation not only reflected growing popular sentiment favoring improved conditions for blacks but also served the interests of predominantly white political elites, particularly those involved in US foreign policy. According to this view, it was a mounting embarrassment for a nation engaged in the cold war to have its formal commitments to freedom and equality undermined, for example in the Soviet press, by the fact of legalized racial segregation. The University of Southern California legal scholar Mary Dudziak has presented the evidence for this possibility with subtlety and care in her book, Cold War Civil Rights: Race and the Image of American Democracy, which was published in 2000.3 For her the Brown decision was less a constitutional interpretation than a State Department brief that would be useful to Dean Acheson and others in US foreign relations.
Derrick Bell’s book carries this realpolitik argument one step further, expressing deep cynicism about the role of Brown. As his title, Silent Covenants, suggests, he contends that Brown, in effect, was a deal between the Court and political elites who controlled, among much else, the two major parties and Congress. It was a deal not only driven by white self-interest but positively harmful for the blacks who were never more than indirect, third-party beneficiaries. In Bell’s view, no racial reform, from Lincoln’s Emancipation Proclamation to recent affirmative action to achieve “diversity,” has ever occurred unless it served national and in particular white self-interest. The gratitude that blacks and other minorities feel for such apparent blessings is in his view naive and foolish since such reform always turns out to be more symbolic than substantive—witness, he writes, the resegregation of schools in the aftermath of Brown. To Bell, formal declarations of racial equality like that in Brown represent deliberate efforts to obfuscate the realities of racial subordination and lure minorities into false consciousness, and this deceptiveness makes things worse than if they hadn’t happened at all.
Bell’s cup of bitterness runs over in his seven-page mock judicial opinion that rewrites Brown, reaffirming Plessy v. Ferguson rather than overturning it, but insisting that separate schools maintained for blacks in fact be made truly equal. Bell’s imagined process, by which judges would redistribute funds and teachers across a color line enforced by law, is meant to shock, and does so. It is radical and untenable except as legal irony. Ogletree, too, moves into legally dubious territory when he suggests that there are valid grounds for demanding broad racial reparations:
The reparations movement has momentum today because African-Americans have inadequate health care and are more susceptible to disease as a result. All too many are victims of redlining and predatory lending, even though both practices are illegal. Others are denied access to quality eduation and, as a result, cannot take advantage of opportunities for social mobility. In short, these circumstances have created a frustrated, exasperated, and increasingly angry community that, in ever-increasing numbers, is demanding reparations.
It might well be appropriate to compensate living victims of specific past racial atrocities such as the 1921 destruction in a riot of the prosperous black neighborhood of Greenwood in Tulsa, Oklahoma—a case Ogletree is now litigating—but arguments for broadening reparations far beyond this scope are bound to face large difficulties.
Latent in the analyses of both Bell and Ogletree, however, is a new strand of revisionism with respect to Brown, in which the pessimism of their books gives way to some unexpected and welcome cause for optimism. This view starts by recognizing that a half-century of efforts to pursue integration through the courts has come to a dead end. The judges of earlier eras who issued integration decrees showed remarkable personal and professional courage. And some of the school systems they integrated through force of law remain so; for example, the Harvard Civil Rights Project recently reported that three of the four school systems desegregated in Brown remain among the most integrated school systems in the nation today. But elsewhere, as Bell accurately summarizes, “the courts have taken almost every opportunity to release school districts from court ordered desegregation, even where a substantial number of racially identifiable schools remain or might emerge.”
Instead of judicial decree, Bell and Ogletree emphasize the possibilities of new, decentralized experiments in which local districts and community groups are working to improve educational quality and achievement for minority students. They suggest that these bottom-up experiments may work better than the top-down approach of the courts. Bell has a fine chapter summarizing efforts now taking place in the inner cities through independ-ent schools, charter schools, Catholic schools, and supplemental school programs; he describes new efforts to support such experiments through school finance reform and the use of voucher systems. He takes on the political opponents of such experiments, arguing that “the ineffectiveness of existing schools tends to become institutionalized by bureaucratic school administrators, blame-shifting politicians, and status quo–protecting teachers’ unions.”
Voucher and charter programs, Bell contends, should be considered according to their individual merits and not rejected out of hand. Ogletree, for his part, is passionate in describing the work he and his wife, Pamela, have done in helping to organize “programs designed to address the undereducation of minority children in our community,” including a charter school, and the efforts of his own Harvard Law School students to organize programs for gifted minority youth such as BELL (Build Educated Leaders for Life).
The question nervously hovering over these new experiments is just how concentrated on minorities they should be. Bell and Ogletree both express some sympathy for all-black institutions. Ogletree writes with wistfulness about the strong community of black shopkeepers and civic leaders that existed in his segregated childhood, and laments that “some distinctively African-American institutions have been permanently destroyed and others crippled” in the aftermath of the Brown decision. Ever since his well-known 1976 Yale Law Journal article called “Serving Two Masters,” Bell has been suggesting that all-black schools might have been better than integrated ones in educating black youth. He writes:
Zealous faith in integration blinded us to the actual goal of equalizing educational opportunities for black children, and led us to pursue integration without regard to, and often despite, its ultimate impact on the well-being of students.
And while they both criticize the African-American Supreme Court Justice Clarence Thomas for his political ideology, Bell and Ogletree share Thomas’s resentment, expressed in his occasional angry asides, that any institution might be thought inferior by white people just because it is predominantly black.
The Brown decision gives us a simple if partial answer to the question whether hope for the future lies in reinvigorated all-black schools. No American public schools, even if experimental, independent, or charter, may ever again be legally closed to any child on the explicit basis of race. Whatever its rate of progress in changing social policy, Brown’s integrationist principle made that much clear in a moral judgment of fundamental importance to our political order. Certainly the experiments endorsed by Bell and Ogletree may be constructed so as to aim at geographically concentrated minority communities, and they are thus likely to be predominantly black or brown as a matter of social fact. Contemporary civil rights advocates—recalling Thurgood Marshall’s use of the legal defeat in Plessy—may take advantage of the Court’s decision in the Milliken case to protect local control and use it to build up inner-city schools in ways the authors of Milliken never envisioned.
Private schools, community groups, and organizations are a different matter. The law of equal protection permits private entities to undertake race-conscious remedial action foreclosed to government. One of the most important contributions Bell’s and Ogletree’s books make to contemporary debate is to remind us of the extent to which private institutions throughout American society need not mirror its social makeup. Racially identifiable private groups and institutions could take a vital part in remedying the discrimination of the past through an energetic version of community self-help.
But nothing in such views requires that Brown be minimized or denigrated as it has been by so many revisionist accounts, including Bell’s and Ogletree’s. The Court’s declaration that no public school—and through the principle’s extension in later cases, no other public institution—could exclude citizens because of their race was a profound and historic statement. It is too much to ask of a legal decision that it generate on its own the vast and complicated set of social policies needed to fulfill it. It cannot bring people together; it can only supply a morally justified basis for their doing so. True, popular culture may inform and influence constitutional change as much as judges do or more. It is not far-fetched to suggest, for example, that the Supreme Court’s recent decision in Lawrence v. Texas, declaring a fundamental right to express gay sexuality and overturning a decision made seventeen years earlier, had been made possible in some part by television shows like Will and Grace. But such decisions are also brought about by will and grace—the will of lawyers and, on the part of judges, a grace that can sometimes amaze.
September 23, 2004