20 Sep By explaining that the original meaning of Education

Brown v. Board of Education I

Along with Miranda v. Arizona and Roe v. Wade, Brown is probably the most recognizable U.S. Supreme Court decision in American history. For progressives, Brown symbolizes the kind of good that the judiciary can do with respect to racial justice in America. Today, –unlike in 1954– it is virtually impossible to find anyone who believes that Brown is wrongly decided. Brown has been called a litmus test for theories of constitutional interpretation; it has to come out right under any such theory or that theory ought to be rejected. However, people still disagree on its meaning and its effects. Some scholars have mixed feelings about Brown because they believe that it wasnt the civil rights victory that it has been made out to be; its influence has been overstated. The Court has been given too much credit to the detriment of other political actors and social movements that deserve just as much credit for the success of the civil rights movement. Other scholars believe that Brown had perverse effects; it made a bad situation worse by antagonizing the white South and hardening white attitudes toward desegregation.

The Brown opinion is three cases: Brown I (1955) (the unconstitutionality of racial segregation of public schools), Bolling v. Sharpe (1954) (racially segregated schools in Washington D.C.), and Brown II (1955) (the remedy). At the time Brown was decided, racial segregation by law was largely a southern phenomenon. For years, as part of FDRs New Deal Coalition, Southern Democrats had blocked civil rights legislation. Only later, beginning in the 1960s, do the Democrats become the party of Civil Rights.

In the 1930s, 40s, and 50s, the NAACP brought a series of lawsuits challenging racial segregation in transportation, housing, the white primary system, and forcing graduate and professional schools in the South to admit blacks. The integration of graduate schools was less controversial than that of K-12 because white Southerners felt by that time each race, so to speak, already knew its place in the racially hierarchy. For K-12 public schools, the original NAACP litigation strategy was to use separate but equal to render it too expensive to maintain racially segregated schools. These were called equalization lawsuits. This was a more conservative, less confrontational strategy, as it was consistent with Plessy. The Brown litigation began when Oliver Brown, a welder and pastor in Topeka, Kansas, let his daughter participate in the NAACPs lawsuit against the Topeka school board. Kansas was a choice state. School districts could choose to racially segregate their schools. The position of the NAACP was that the segregation of Topeka K-12 schools even if they were equal– violated the Equal Protection Clause (EPC).

Brown I was originally argued in 1952. It was a collection of five cases from Delaware, Kansas, South Carolina, Virginia, and Washington D.C.. Thurgood Marshall, later the first black justice to serve on the Court, was lead counsel in the South Carolina case. He was replaced by Justice Clarence Thomas in 1992.

In 1952, the Court consisted of Justices Black,[1] Douglas, Burton, Minton, Jackson, Frankfurter, Vinson (the Chief Justice), Reed, and Clark. The last three were Southerners. Rehnquist was clerking for Justice Jackson at the time.[2] Because the Court was divided, it postponed a decision, claiming that it needed more historical evidence about the original meaning of the EPC. If the case had been decided at that time, the decision wouldve been 5-4 or 6-3. The Court reheard the case in 1953. In the interim, Chief Justice Vinson died. He was replaced by Earl Warren, who was determined to render racially segregated schools unconstitutional.[3] Warren was convinced that the decision, about such an important issue, had to be unanimous. As such, he lobbied the remaining justices who favored separate but equal Reed and Clarkand convinced them to join the majority, creating a unanimous opinion. Without Warrens efforts, it is doubtful that there would have been such an opinion. Justice Jackson, one of the dissenters in Korematsu, planned a concurrence but never finished it because he suffered a heart attack and died a few weeks after Brown I was handed down. He was replaced by Justice John Marshall Harlan, the grandson of the lone dissenter in Plessy, who participated in Brown II a year later.

Note: Warrens opinion is short and accessible; it reads more like a sociology paper than a typical Supreme Court opinion. It was tailor-made for the media so that the country could understand what the Supreme Court had done. Warren wanted the holding of the case as narrow as possible, focusing only on public schools. That way, the remedy could be left to another day. Warren wrote the opinion in a manner that was designed to avoid antagonizing the white southerners (he doesnt accuse them of racism) and to get the other justices on board.

In his unanimous opinion, Chief Justice Warren begins by explaining that the original meaning of the EPC is inconclusive; there just isnt enough historical evidence on whether the EPC was intended to abolish racially segregated schools. Note: Today, most historians think that the EPC was intended to permit racially segregated schools. For instance, in 1868, when the Fourteenth Amendment was ratified, Washington D.C. had racially segregated public schools. Also, recall that in Plessy, such schools are used as an example of a social right, where separate but equal applies. Be that as it may, Warren then goes on to explain that the clock cannot be turned back. The value of public education is much greater than it was in the Nineteenth Century. Warren kept the decision deliberately narrow by making it about children and their education. Notice how he doesnt explicitly mention Jim Crow laws or racial segregation more generally. For Warren, even though the physical facilities and other tangible factors may be equal, racial segregation still sends a harmful message of racial inferiority. Separate but equal deprives black children of equal educational opportunity. Warren writes We conclude in the field of public education the doctrine of separate but equal has no place. Separate educational facilities are inherently unequal.

Footnote 11 is probably the most famous footnote in American constitutional history; it refers to Dr. Kenneth Clarks doll study, where black children were given two dolls one black and one whiteand asked which one was prettier. That many black children chose the white doll was supposed to show that racial segregation had caused them to internalize feelings of racial inferiority. Later, this study was criticized for not being methodologically sound. For example, the study didnt contain a random sample or a control group. Keep in mind that social science wasnt well-developed at this time.

I think that it is a mistake to place too much weight on footnote 11. What Warren really wanted to say as Harlan did say in dissent in Plessyis that racial segregation is wrong; it is based on the false idea that black persons are inferior to white persons. In my view, Warren didnt want to say what he really believed because he hoped, naively, that the white South would be more likely to comply with the Brown decision if it wasnt attacked in the opinion.

Note: The Court put off the remedy for a year, wanting to see how the white South would react to the decision. Normally, for a violation of constitutional rights, the remedy is immediate. 

As a response to Brown, the white South engaged in massive resistance, including violence. In some places in the South, rather than desegregating the public schools, all of them were closed. In one instance, President Eisenhower sent the 101st Airborne Division down to Little Rock, Arkansas to force the integration of Central High School.