What Brown v. Board of Education Should Have Said

The Nation's Top Legal Experts Rewrite America's Landmark Civil Rights Decision

Jack Balkin

• Publisher: NYU Press
• Year: 2001
• ISBN:
  9780814709115
• Topic: Jura
• Subtopic: Bürgerrechte

Brown v. Board of Education, the Supreme Court's landmark 1954 decision ordering the desegregation of America's public schools, is perhaps the most famous case in American constitutional law. Criticized and even openly defied when first handed down, in half a century Brown has become a venerated symbol of equality and civil rights.

Its meaning, however, remains as contested as the case is celebrated. In the decades since the original decision, constitutional interpreters of all stripes have found within it different meanings. Both supporters and opponents of affirmative action have claimed the mantle of Brown, criticizing the other side for betraying its spirit. Meanwhile, the opinion itself has often been criticized as bland and uninspiring, carefully written to avoid controversy and maintain unanimity among the Justices.

As the 50th anniversary of Brown approaches, America's schools are increasingly divided by race and class. Liberals and conservatives alike harbor profound regrets about the development of race relations since Brown, while disagreeing heatedly about the proper role of the courts in promoting civil equality and civil rights.

In this volume, nine of America's top constitutional and civil rights experts have been challenged to rewrite the Brown decision as they would like it to have been written, incorporating what they now know about the subsequent history of the United States but making use of only those sources available at the time of the original decision. In addition, Jack Balkin gives a detailed introduction to the case, chronicling the history of the litigation in Brown, and explaining the current debates over its legacy.

Contributors include: Bruce Ackerman, Jack M Balkin, Derrick A. Bell, Drew S. Days, John Hart Ely, Catharine A. MacKinnon, Michael W. McConnell, Frank I Michelman, and Cass R. Sunstein.

Part I

Brown v. Board of Education
A Critical Introduction

Jack M. Balkin

Chapter 1

Brown as Icon

On May 17, 1954, the Supreme Court of the United States handed down one of its most famous opinions—Brown v. Board of Education of Topeka, Kansas.¹ The case called Brown was actually a collection of five cases, from Delaware (Gebhart v. Belton), Kansas (Brown v. Board of Education), South Carolina (Briggs v. Elliott), Virginia (Davis v. County School Board of Prince Edward County), and the District of Columbia (Bolling v. Sharpe). The Court heard them together because each raised the issue of the constitutionality of racially segregated public schools, albeit with slightly different facts and circumstances. In fact, Thurgood Marshall, the main architect of the NAACP’s legal strategy to overturn Jim Crow, actually represented the plaintiffs in the South Carolina case, Briggs v. Elliott. The District of Columbia case, Bolling v. Sharpe,² was treated separately from the others because it raised distinct issues about the federal government’s duty to respect racial equality. It was handed down on the same day. Finally, the Supreme Court decided to delay the issue of the proper remedy for segregated schools for another year. It issued a second opinion in Brown v. Board of Education on May 31, 1955,³ to deal with remedial issues, concluding with the order to go forward “with all deliberate speed.” This opinion is usually referred to as Brown II, to distinguish it from the first opinion, called Brown I. Together, the three opinions of Brown I, Brown II, and Bolling have come collectively to be known as “Brown” or “the Brown opinion” in the popular imagination, and in the discussion that follows I will refer to them in this way.

In the half century since the Supreme Court’s decision, Brown has become a beloved legal and political icon. Brown is one of the most famous Supreme Court opinions, better known among the lay public than Marbury v. Madison,⁴ which confirmed the Supreme Court’s power of judicial review, or McCulloch v. Maryland,⁵ which first offered an expansive interpretation of national powers under the Constitution. Indeed, in terms of sheer name recognition, Brown ranks with Miranda v. Arizona,⁶ whose warnings delivered to criminal suspects appear on every police show, or the abortion case, Roe v. Wade,⁷which has been a continual source of political and legal controversy since it was handed down in 1973.

Even if Brown is less well known than Miranda or Roe, there is no doubt that it is the single most honored opinion in the Supreme Court’s corpus. The civil rights policy of the United States in the last half century has been premised on the correctness of Brown, even if people often disagree (and disagree heatedly) about what the opinion stands for. No federal judicial nominee and no mainstream national politician today would dare suggest that Brown was wrongly decided. At most they might suggest that the opinion was inartfully written, that it depended too much on social science literature, that it did not go far enough, or that it has been misinterpreted by legal and political actors to promote an unjust political agenda. The use made of Brown is often criticized, but the idea of Brown remains largely sacred in American political culture.

It was not always thus. In the decade following 1954 the Supreme Court and its opinion in Brown were villified in terms far stronger than many of the attacks leveled against Roe and Miranda. Even many defenders of the result had little good to say about the opinion, arguing that its overruling of previous precedents was abrupt and unexplained and that its use of social science to demonstrate the harm that segregation imposed on black children was unconvincing. The day after the decision, May 18, 1954, James Reston wrote in the New York Times that the Court had rejected “history, philosophy, and custom” in basing its decision in “the primacy of the general welfare. . . . Relying more on the social scientists than on legal precedents—a procedure often in controversy in the past—the Court insisted on equality of the mind and heart rather than on equal school facilities. . . . The Court’s opinion read more like an expert paper on sociology than a Supreme Court opinion.”⁸ If the defenders of Brown were uneasy, its opponents were positively incensed by the decision. People who accuse the contemporary Supreme Court of abusing its office may forget how deeply Brown was resented, especially in the South. In March of 1956, southern senators and congressmen issued a “Southern Manifesto” denouncing Brown as a “clear abuse of judicial power” that substituted the Justices’ “personal political and social ideas for the established law of the land.” This proved to be one of the more moderate reactions. Although congressional leaders pledged to “use all lawful means to bring about the reversal of this decision which is contrary to the Constitution,”⁹ other opponents of the decision were less committed to peaceful legal methods. Brown gave rise to the era of “massive resistance” in the South, leading President Eisenhower at one point to call in federal troops to enforce a desegregation order in Arkansas. Yet, by the close of the twentieth century, Brown had achieved a special place of honor.

One reason for that special status is that Brown fits nicely into a widely held and often repeated story about America and its Constitution. This story has such deep resonance in American culture that we may justly regard it as the country’s national narrative. I call this story the Great Progressive Narrative. The Great Progressive Narrative sees America as continually striving for democratic ideals from its founding and eventually realizing democracy through its historical development. According to the Great Progressive Narrative, the Constitution reflects America’s deepest ideals, which are gradually realized through historical struggle and acts of great political courage. The basic ideals of America and the American people are good, even if America and Americans sometimes act unjustly, and even if people acting in the name of the Constitution sometimes perpetrate terrible injustices. The basic ideals of Americans and their Constitution are promises for the future, promises that the country eventually will live up to, and, in so doing, confirm the country’s deep commitments to liberty and equality.

It is easy to see how Brown fits into this narrative and confirms its truth: Through years of struggle and a great Civil War, America gradually freed itself from an unjust regime of chattel slavery. The country’s failures were redeemed by the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution. To be sure, the Civil War was followed by retrenchment and the establishment of Jim Crow, which was given official sanction in the 1896 decision in Plessy v. Ferguson.¹⁰ Nevertheless, eventually the country redeemed itself once again by overturning that unjust precedent and firmly establishing the principle of racial equality. Seen in this way, Brown represents the Good Constitution—the Constitution whose deeper principles and truths were only fitfully and imperfectly realized, rather than the Constitution that protected slavery and Jim Crow. By extension, Brown also symbolizes the Good America, rather than the country that slaughtered Native Americans, subordinated women, and enslaved blacks.

A. Brown and the State of Education Today

In many respects the honor Brown has received is ironic. Brown was a case about public school desegregation, but by the end of the twentieth century many public schools in the United States remained largely segregated by race. Indeed, the United States has been in a period of re-segregation for some time now. The tendency is most pronounced in the South, which, during the 1970s and 1980s, was transformed from a region of virtually complete educational segregation to one of the most integrated parts of the country. The present tendency toward segregation of Latinos is, if anything, even more pronounced than that with respect to blacks.¹¹ Perhaps equally important, the increasing resegregation of schools is strongly correlated with class and with poverty. Although only 5 percent of segregated white schools are in areas of concentrated poverty, over 80 percent of segregated black and Latino schools are.¹² Schools in high poverty areas routinely result in lower levels of educational performance; even well-prepared students with stable family backgrounds are hurt academically by attending such schools.

The pace of desegregation has slowed since the middle of the 1970s, due in part to Supreme Court decisions that made it very difficult to implement desegregation orders that would encompass both increasingly white suburban and increasingly minority inner city school districts. The 1974 case of Milliken v. Bradley,¹³ involving metropolitan Detroit, largely freed white suburban districts from any legal obligation to participate in metropolitan desegregation efforts. As a result, in metropolitan areas where minorities were concentrated in inner cities, significant desegregation became virtually impossible, because fewer and fewer white children lived in those school districts and fewer still attended public schools. Nevertheless, desegregation actually increased a bit during the 1980s, even though the Reagan Administration repeatedly tried to persuade courts to scale back their intervention in school districts.¹⁴

However, during the 1990s, the Supreme Court began to signal strongly to the lower federal courts to relax their supervision of school districts. In the 1991 case of Board of Education of Oklahoma City v. Dowell,¹⁵ the Supreme Court held that courts could end desegregation orders in school districts that had attempted in good faith to comply, even if this would result in immediate resegregation. The replacement of Justice Thurgood Marshall by Justice Clarence Thomas in 1991 consolidated a general trend toward restricting court supervision. In 1992, in Freeman v. Pitts,¹⁶ the Supreme Court held that courts could end some aspects of school desegregation orders even if other aspects had never been fully complied with. And in the 1995 case of Missouri v. Jenkins,¹⁷ the Supreme Court overturned an ambitious plan for magnet schools in Kansas City designed to attract white students back into the inner city as unjustified and unnecessary to achieve desegregation. It also rejected the argument that increased spending on education could be justified in order to remedy reduced achievement by students in inner city schools. Justice Thomas, concurring, chastised those who thought of integration as a panacea for the problems of the black community, arguing that the theory that black children suffer psychological harms from segregation “rest[ed] on an assumption of black inferiority.”¹⁸

The Supreme Court’s decisions have accelerated the federal courts’ drive to end existing desegregation orders. In other cases school districts have remained technically subject to court orders but now face virtually no enforcement activity. These districts have not even bothered to press for termination of existing court orders because the necessary litigation would impose new legal costs and subject them to renewed judicial scrutiny.¹⁹ Both of these trends have enhanced the tendency toward resegregation in the 1990s.

Racial segregation today is the result of a complicated mix of social, political, legal, and economic factors, rather than the result of direct state commands ordering racial separation. Yet whatever the causes, it remains overwhelmingly the case that minority children in central cities are educated in virtually all-minority schools with decidedly inferior facilities and educational opportunities. Even when minorities in suburban and rural schools are included, a majority of black and Latino students around the country still attend predominantly minority schools.²⁰

In a way, the subsequent history of school desegregation mirrors the Supreme Court’s original separation of the principle of racial equality (Brown I) from the remedy for previous injustices (Brown II). Brown I is venerated for declaring segregation unconstitutional, but the desegregation remedies begun in Brown II have been honored in the breach more than the observance. The shift in attitudes over the past half century is well symbolized by the fact that the Supreme Court seat once held by Thurgood Marshall, the acolyte of integration as the path to equal opportunity for blacks, is now held by Clarence Thomas, who argues that integration will not help blacks, that one-race schools do not necessarily violate the Constitution, and that the only concern of the courts should be whether schools have deliberately classified students by race.

The effective compromise reached in the United States at the close of the twentieth century is that schools may be...