Meaning of Brown: What was the Significance of the Brown v. Board of Education Decision?

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Editor: Robert J. Allison
Date: 2000
History in Dispute
From: History in Dispute(Vol. 2: American Social and Political Movements, 1945-2000: Pursuit of Liberty. )
Publisher: St. James Press
Document Type: Topic overview
Pages: 8
Content Level: (Level 5)
Lexile Measure: 1360L

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Page 136

Meaning of Brown: What was the Significance of the Brown v. Board of Education Decision?

On Monday, 17 May 1954, the United States Supreme Court unanimously ruled that segregated schools were in violation of the Constitution. Chief Justice Earl Warren led the Court in what would prove one of the most significant decisions of the twentieth century. With their ruling in Brown v. Board of Education of Topeka, Kansas, the Court opened the doors of change and helped fuel the civil-rights struggles of the next two decades. Ramifications of the verdict still reverberate to this day.

The Warren Court overturned Plessy v. Ferguson (1896), in which it had been ruled that separate accommodations were legal as long as they were equal. In Plessy a man who was one-eighth black was removed from a rail coach and told to sit in one with people of his own race. He refused and was jailed in Louisiana. Justice Henry Billings Brown wrote in the majority opinion: “The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either.” Justice Brown argued that the most common instance of a necessary separation based on color was “the establishment of separate schools for white and colored children....”

The Supreme Court of 1954 ruled that separate accommodations were inherently unequal. Brown was actually five cases brought together under one name. Nominally, the Court’s only legal directive was that states could no longer segregate the races in schools. In fact, however, the decision destroyed the edifice of legitimacy Plessy had given segregation, laid the foundation for the Civil Rights movement, and revolutionized what courts, lawyers, and the law might do to expand racial justice.

In the North the decision was lauded in liberal circles and by most blacks, but there were those who believed it was a step in the wrong direction. In the South the decision was met, unsurprisingly, with mixed reviews. Some southerners believed that integration was inevitable and that this judgment was just another step in the dismantling of a way of life; others felt it was their duty to fight to preserve that way of life. Overall Brown helped bring about a series of changes in the social fabric of the United States.

During World War II blacks began to make substantive advances in American society. The war effort required a massive mobilization of labor, and many jobs filtered down to blacks. Blacks were not, on the whole, satisfied with the opportunities offered during the war. In most cases they were confined Page 137  |  Top of Articleto the dirtiest, most dangerous, least prestigious positions in manufacturing. Leaders such as A. Philip Randolph pressed hard to gain more opportunities. The black community was energized and moved forward, attempting to secure that which the Constitution guaranteed.

In 1934 Charles Hamilton Houston, a Harvard-educated black attorney, became a part-time counsel for the National Association for the Advancement of Colored People (NAACP) and special counsel in 1935. Houston was determined to challenge the system through the courts and believed that the Constitution was on his side. In the mid 1930s Houston began a systematic attack on segregation in professional schools. He believed that law schools were a good place to begin because judges might be more sympathetic to a young student trying to get a legal education in his home state. Another positive to this strategy was that few women were enrolled in these schools, this would keep Houston from having to deal with the explosive issue of white women and black men sitting next to each other in classes.

These cases became the foundation for the strategy the Legal Defense Fund (LDF) pursued over the next twenty years. Houston brought one of his top students from Howard University onto the LDF team. Thurgood Marshall joined Houston in New York in 1936 and took charge of the operation when Houston left in 1938. Houston was working in Washington, D.C., on Boiling v. Sharpe, one of the cases that would make up Brown, when he died in 1950.

The LDF worked hard, using Houston’s blueprint, to eradicate segregation in public schools. A talented group of lawyers, they began to win cases centered around graduate and professional schools in the late 1940s and early 1950s. These successes helped drive LDF to expand their work to undergraduate students, high schools, and elementary schools. At the same time the Supreme Court was moving in the same direction. Discussions among the justices in the 1950s showed that they were ready to reexamine the “separate but equal” doctrine if the right case was brought. When the Brown cases were presented, the Court finally had its opportunity. These cases directly questioned the doctrine of “separate but equal” with regard to public education. The Court still needed time to figure out what remedy should be used: immediate desegregation nationwide, prompt desegregation with minor adjustments for peculiar local conditions, or gradual desegregation to take account of anticipated resistance.

In the wake of the ruling, school boards throughout the South took one of two options: prepare for integration or dig in and fight. The attitude of many segregationists was typified by Mel Bailey, sheriff of Birmingham, Alabama, when he expressed his feelings after Brown:”. . . go to school with my little daughter? That is why. . . resistance.” In the Jackson Daily News, the major newspaper of the capital of Mississippi, an editorial on Brown declared: “It means racial strife of the bitterest sort. Mississippi cannot and will not try to abide by such a decision.” Statements in southern papers, such as this one, were contrasted by those of northern papers. In the New York Daily News, for example, the tone was much different. “We’ll join in the applause for the U.S. Supreme Court’s unanimous decision that race segregation in the nation’s public schools must start getting out.”

As for the black community, there were differing opinions on the meaning of Brown. Zora Neale Hurston rejected the logic of the Brown decision as self-defeating at best and antiblack at worst. She believed in the strength of all-black institutions. W. E. B. Du Bois did not disagree with the decision itself but was concerned that it might be shortsighted with regard to the potential for mistreatment of black students in integrated schools. Like Hurston, Du Bois believed that black culture would not be taught in integrated schools.

Brown was not the end of segregation of course, and the Court understood that the process would be a difficult one. Years of deeply entrenched segregation were built on an even longer standing belief in the inferiority of the black race and would not be changed simply by a court ruling. Just as segregationists were digging in for a fight, so were blacks. In a way, the Supreme Court was as well. When the Court rejected the “separate but equal” doctrine in 1954, it scheduled dates for arguments on the issue of remedy for the following fall. By deferring the question, the Court opened up a different phase in the litigation campaign and in the nation’s experience with the issue of race.

What came next was a series of challenges across the South. Possibly the most famous of these was in Little Rock, Arkansas, in 1957, where black students were prepared to integrate Central High School, touching off a clash between Governor Orval Faubus and President Dwight D. Eisenhower. Little Rock was considered a liberal southern city. The University had already integrated, as had the city buses, without serious incident. In an effort to comply with Brown the Little Rock school board launched a plan to integrate the high school. Nine black students were selected, based on their academic performance, and it was decided that they would attend Central in the fall. When the school year began, Little Rock became a battleground.

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Viewpoint: The Brown decision, highpoint of the NAACP Legal Defense Fund campaign against segregation, brought African-Americans into the mainstream of American political life

The 17 May 1954 Supreme Court decision in Brown v. Board of Education of Topeka, Kansas, which ordered the desegregation of public schools, was one of the most important judicial decisions in American history. Although the decision is often remembered for the resistance it sparked in much of the South and the slow path to implementation, its accomplishments are undeniable. Its contribution to the struggle for racial justice took place not only in the courtrooms but also on the battlefields of the Civil Rights movement. Brown provided a legal precedent that helped define a new era of judicial activism. Brown also offered African-Americans a sign that the federal government, while oftentimes painfully slow to act, was not blind to the racial inequities of the segregated South. It was on these two levels of legal precedent and motivational symbol that the Brown decision made its attack on racial injustice.

On behalf of a unanimous court, Chief Justice Earl Warren articulated the basic principle of Brown in clear, blunt terms: “We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate education facilities are inherently unequal.” With these words the Court overturned Plessy v. Ferguson (1896), which had given the judicial stamp of approval on the segregation system that defined southern race relations since Reconstruction. In the years leading up to Brown, the Legal Defense Fund branch of the National Association for the Advancement of Colored People (NAACP), led by brilliant lawyers such as Charles Hamilton Houston and Thurgood Marshall, won a number of crucial decisions undermining the legitimacy of segregation. The culmination of these efforts in the 1954 decision was initially greeted enthusiastically by the blacks and liberal whites. Yet, its implementation posed serious difficulties because of the entrenched nature of segregation in the South and the unwillingness of the federal government to assert itself. The Supreme Court itself contributed to the confusion with its 31 May 1955 implementation decision (referred to as Brown 71), in which it ruled that the desegregation of schools must be accomplished with “all deliberate speed,” leaving the interpretation of this phrase to local communities and lower courts. It would be many years before Brown would be put into effect throughout the South.

Despite the trials of implementation, the impact of Brown as a legal precedent should not be underappreciated. Legal historian Morton J. Horwitz, in The Warren Court and the Pursuit of Justice (1998), described the decision as “a nuclear event in American constitutional law.” It was the first momentous step away from a court dedicated to judicial restraint (for example, an appearance of neutrality and nonintervention with regard to social issues), and led to a series of groundbreaking civil-rights decisions. While judicial restraint tended to benefit the most powerful segments of society, this decision addressed the needs of, in Horwitz’s words, “the weak and the powerless, the marginal and the socially scorned.” The belief gained legitimacy that the Constitution was a “living” document that could be interpreted to deal with pressing societal needs. In his decision Warren pushed aside the need to interpret the Fourteenth Amendment solely in the context of its original framing: “In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation.” The faith in a living Constitution was accomplished in large part by the Court’s use of the Equal Protection Clause of the Fourteenth Amendment. It would act as a precedent to support the rights of minorities and women in many future court decisions.

Although the Court limited the language of Brown to apply only to segregation in public schools, it soon became apparent that its impact went well beyond this into all forms of state-sanctioned segregation. In the years following the decision, the Supreme Court struck down segregation of transportation, public buildings, housing, recreational facilities, and restaurants. For the most part, desegregation of such public facilities took place much more quickly and smoothly than the integration of public schools, although there were notable exceptions such as the brutal attacks on the 1961 Freedom Riders, who were testing the ruling desegregating interstate transportation carriers and facilities. In Johnson v. Virginia, the 1963 decision desegregating public buildings, the Court demonstrated the natural expansion of the scope of Brown with the broad assertion, “[I]t is no longer open to question that a State may not constitutionally require segregation of public facilities.”

Some of the most important decisions to grow out of Brown were in reapportionment. Page 139  |  Top of ArticleWith shifting demographics resulting from the urbanization of African-Americans during the twentieth century, government officials who feared the strengthening of the black vote allowed the distribution of voting districts to become skewed. Thus, a minority of voters, usually representing rural interests, effectively controlled state legislatures; the granting of benefits to the cities by these legislatures was chronically inadequate. A major hurdle for the Supreme Court was simply deciding whether this issue was one on which they had the right to decide. The 1962 Baker v. Carr decision, in which the Court decided it had the right to intervene on the reapportionment issue, was, like Brown, a major move away from the doctrine of judicial restraint. It was followed in 1963 by Gray v. Sanders, in which the Court held that there must be equal apportionment (“one person, one vote”) in elections for U.S. senators and statewide officials, and in 1964 Reynolds v. Sims held that the Equal Protection Clause of the Fourteenth Amendment (the same clause used as the basis for Brown) required equal distribution for state legislatures. These reapportionment cases were born from the atmosphere created by Brown in which the Supreme Court decided to get involved with such “political” issues and assert its authority, especially on behalf of African-Americans.

Another important decision that Brown made possible was Loving v. Virginia (1967), in which the Court struck down a Virginia law prohibiting interracial marriages. This ruling dealt directly with the southern fears of miscegenation that underlay much of the initial motivation for segregation-many whites defended Jim Crow laws and customs as necessary to protect white women from black men, thousands of whom were lynched as a result of these fears. Yet, just thirteen years after Brown, the Loving ruling was issued to relatively little reaction. Even if the Brown decision had a tortuous road to implementation, it had initiated a reevaluation of cultural assumptions that, by 1967, had changed the way the courts and many in the South viewed the interaction of blacks and whites. The Supreme Court had established itself as a powerful antidote to obvious inequities of racism.

In addition to its role as a legal precedent, Brown had an important impact on the burgeoning Civil Rights movement. This is not to say that Brown began the movement—its heritage in the black community was largely separate from the doings of the Supreme Court. But the decision left an indelible mark on the direction and shape of the movement, especially in its early stages. It not only acted as a legal precedent instrumental in achieving legal and legislative victories, it also became a symbol to activists of the potential for change in the white-dominated power structure—it represented, as Richard Kluger wrote in Simple Justice: The History of Brown v. Board of Education and Black America’s

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. . . In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.

Today, education is perhaps the most important function of the state and+ local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment, 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. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms....

We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment....

Source: Brown v. the Board of Education of Topeka, Kansas, 347 U.S. 483, 1954, Appeal from the U.S. District Court, District of Kansas.

Struggle for Equality (1975), “nothing short of a reconsecration of American ideals.” It demonstrated that the government was not blind to the injustices of racism, and the symbolic importance of this gesture should not be overlooked when examining the optimistic, interracial approach of the Civil Rights movement between 1954 and 1965. One elated black remembered his reaction to the decision: “My inner emotions must have been approximate to the Negro slaves’ when they first heard about the Emancipation proclamation.. . . I felt that at last the government was willing to assert itself on behalf of first-class citizenship, even for Negroes. I experienced a sense of loyalty that I had never felt before. I was sure that this was the beginning of a new era of American democracy.” This Page 140  |  Top of Article

kind of unqualified optimism was not uniformly felt in the black community—the government had let them down too many times. Yet, many saw this as a victory of at least a crucial battle within the struggle for equality.

Brown served as a rallying point for many of the leaders of the early Civil Rights movement. In the year following the first decision and preceding the implementation decision there was a period of hope and action in much of the South that is often overshadowed by the repression and violence of white supremacists in their campaign of “massive resistance” against the integration orders. In Mississippi, for example, it was during this period that the NAACP established itself as a significant organization. It was, as John Dittmer wrote in Local People: The Struggle for Civil Rights in Mississippi (1994), “an exhilarating time for NAACP activists. After years of frustrating, mostly unsuccessful efforts to register voters (or even sign up NAACP members), here was an opportunity to confront the state on a Constitutional issue where the U.S. Supreme Court has spoken directly.” Although this initial optimism would be undermined by the resistance of the South to abide by the Court’s decision, along with the government’s inability to enforce it, essential organizational growth took place as a result of Brown. It gave many civil-rights leaders a clear objective, and it helped increase membership in the organizations. Brown-motivated activism was not limited to school segregation. The decision helped spark drives to desegregate public facilities and increase African-American voter registration. It was only six months after Brown II that Rosa Parks refused to give up her seat on a bus in Montgomery, Alabama, setting in motion the bus boycott that would mark the beginning of the direct-action phase of the Civil Rights movement.

Even in the darkest moments of conflict resulting from Brown, the importance of the decision was evident. Following Brown, opposition to changes in the Jim Crow system in the South coalesced into massive resistance, resulting in delays in implementing the Court’s decision. In the spring of 1956 more than one hundred southern members of Congress signed what came to be know as the “Southern Manifesto,” declaring Brown unconstitutional and demanding that it be ignored. Through the efforts of southern governors, mayors, judges, and others in power, only a fraction of the schools in the South had begun to desegregate when in September 1957 the situation became focused on a dramatic confrontation in Little Rock, Arkansas. President Dwight D. Eisenhower had been wary of directly involving executive power in the issue of school desegregation—he had commented that he did not believe one could change people’s beliefs with laws or court decisions—but here was a situation where the governor was openly defying the power of the federal government. A lower court ordered Central High School to desegregate, but implementation was thwarted by the threat of violence when a white mob surrounded the school. Segregationist governor Orval Faubus did nothing. Eisenhower responded by federalizing the Arkansas National Guard and sending in troops; only then were the black children able to enter the doors of the school. Whether this was a victory for the Civil Rights movement is up for debate. The president had acted only reluctantly, and Faubus eventually shut down the schools rather than abide by the decision. Yet, from a broader perspective the importance is apparent. The movement gained much-needed publicity: the nation saw the confrontation between the law, as defined by Brown, and open rebellion. The lines of the movement were being drawn, and the power and authority of the Constitution and federal government—even if divided and more often than not reluctant to act—was on the side of the activists.

The student sit-in movement of the early 1960s also revealed the influence of Brown. In the city where the movement began, Greensboro, North Carolina, black parents had been trying unsuccessfully to force the school board to integrate the school system. Integration throughout the South had been discouraging: by 1960 one-sixth of 1 percent of black children attended integrated schools. It was largely as a result of the racist attitude of many whites in Greensboro, coupled with the knowledge that they had not only the moral high-ground but also the legal one, that four black college students decided to stage a sit-in at the local segregated Woolworth’s lunch counter. This sparked similar acts of resistance around the South. The frustration of undelivered promises, most prominent of which was the inability to accomplish what Brown so clearly demanded, contributed to the heroic activism of the students and countless others. The decision heightened aspirations, and when these were not met, blacks took to the streets. Even as Brown demonstrated the potential for institutional change, it also revealed its limitations, and this was a necessary precondition for the success of the philosophy of civil disobedience that dominated the movement of the late 1950s and early 1960s.

On the two fronts of legal precedent and symbol of federal support Brown made its essential contribution to the movement. Both showed the limitations of the decision: legally, the color-blind ideal behind Brown has been used to attack more-recent attempts to address racial inequality, most notably in affirmative-action cases; symbolically, the decision was often noted for its ineffectual implementation as much as for its far-reaching statement on racial justice. Yet, despite these difficulties, the decision had a monumental impact on American law and society. For all its flaws and weaknesses, Brown is one of a handful of Supreme Court Page 141  |  Top of Articledecisions that has significantly and irreversibly moved the United States closer to its true ideals.


Viewpoint: In the short term Brown did not help African-Americans achieve true equality, and in the long term it has become implicated in the reaction against affirmative action

Brown v. Board of Education of Topeka, Kansas (1954) was the result of a long-standing legal campaign waged by the National Association for the Advancement of Colored People (NAACP), and its legal arm, the Legal Defense Fund (LDF), to remedy the effects of Jim Crow laws, which segregated public facilities along racial lines throughout many southern states. Starting in the 1930s, the NAACP, led by Thurgood Marshall and Charles Hamilton Houston, sued state and local governments using the Supreme Court’s decision in Plessy v. Ferguson (1896), which had held that Jim Crow laws did not inherently violate the Equal Protection Clause of the Fourteenth Amendment. Plessy’s doctrine-known as “separate but equal”—helped to legitimate poor physical maintenance of black public institutions, low pay for black public workers, and dismal employment prospects for blacks. At first Marshall and the NAACP tried to enforce the “separate but equal” doctrine by bringing suits against governments to make them equally support segregated public facilities. This strategy of enforcing Plessy, however, increasingly seemed impractical. Therefore, NAACP lawyers began focusing on overturning Plessy itself.

By the late 1940s, following a series of legal victories for the NAACP in which the Supreme Court ruled that racial segregation related to election primaries (Smith v. Allwright in 1944), housing (Shelley v. Kraemer in 1948), and law school admissions (Sweatt v. Painter in 1950) was unconstitutional, Marshall turned his attention to public schools. At the time few public schools were integrated in many of the districts straddling the Ohio River and Mason-Dixon Line. In states further south, almost all public schools were racially segregated by law. By taking Brown to the Supreme Court, Marshall presented to the justices the heroic opportunity to overrule Plessy and steer the country on a course toward racial equality under the law. In 1954 the Court embraced the opportunity and made an attempt at ending segregation. Despite good intentions, Brown did not meet its authors’ expectations.

First, it failed in the short term, because for ten years most public schools in the South remained radically segregated. In North Carolina and Virginia, for instance, less than one-tenth of 1 percent of black children attended desegregated schools seven years after Brown. In South Carolina, Alabama, and Mississippi not one black child attended an integrated public grade school in the 1962-1963 school year. One historian, Michael Klarman, characterized the results of Brown: “For ten years, 1954-1964, virtually nothing happened.”

Part of the reason for Brown’s ineffectiveness was that it failed to offer lower courts bold legal remedies to achieve its objectives. Brown, in fact, consisted of two separate opinions, referred to as “Brown I” and “Brown II.” Brown I provided the legal, moral, and social-scientific justifications for racial integration of public schools, and, in a much criticized ruling, Brown II set forth vague remedies to achieve Brown I by declaring that desegregation be pursued “with all deliberate speed.” This rhetoric signaled the justice’s hope that school districts would develop their own timetables for desegregation that would be consistent with Brown. Instead, most school districts did nothing, and in some cases local politicians, most infamously Governor Orval Faubus, cynically stymied the integration of public schools by blaming the Supreme Court for illegitimately interfering in southern institutions. Thus, rather than supplementing the high-minded principles of Brown I with detailed legal rules, Brown II failed to give lawyers and judges any legal weapons to wield in concrete cases as local school boards and politicans flouted constitutional laws.

Though it may be accurate to say that Brown eventually contributed to desegregation of public schools by the late 1960s and early 1970s, it is also true that such change was not directly the result of the action of the Court, and, in fact, largely resulted from grassroots efforts. In particular, the Civil Rights movement fostered dozens of confrontations involving students, demonstrators, troublemakers, police, lawyers, and federal troops. Rather than Brown, it was these confrontations that drew the attention of television cameras, thereby shocking moderate white voters, most of whom were otherwise deeply indifferent to issues concerning racial justice. Only after President Lyndon B. Johnson signed the 1964 Civil Rights Act, in response to the organized pressure of the leaders of the Civil Rights movement, most prominently Martin Luther King Jr., can one observe a clear change in the reporting of the racial make-up of formerly segregated schools. In this light, Brown’s beneficial consequences appear unintended, as the decision helped to foster the dramatic, and often brutal, conflicts from which eventually emerged

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political support for the desegregation of public schools.

Second, Brown failed because it helped focus Northern attention away from itself and toward the South, thereby obscuring how suburban development in the North fostered its own patterns of racial segregation. By changing property, zoning, and tax laws, northern voters intensified school segregation in the late 1960s through the 1970s and 1980s—at the same time politicians devised a vocabulary to name urban spaces inhabited by African Americans as the “inner city.” Though achieved without Jim Crow laws, Northern segregation was indistinguishable from its southern counterpart, except that Brown, by itself, provided little equipment to name it as such.

Finally, Brown represents a failed decision in the long term, because it helped shape certain ideas about racial identity that proved to be ultimately self-defeating. Though intended to accomplish many things, the decision helped portray blacks as powerless and victimized. As argued by historian Daryl Michael Scott, in Contempt and Pity: Social Policy and the Image of the Damaged Black Psyche, 1880-1996 (1997), Brown represented the black mind as “damaged” by racism and racial segregation. Indeed, among Chief Justice Warren’s stated reasons for ending segregation was his view that public education helped a child “to adjust normally to his environment.” According to Warren, since black schools were legally segregated, and thereby rendered inferior, the law failed to mainstream and normalize black children to American society. According to Scott, “Warren had crafted a psychiatric appeal that subtly but effectively conveyed the plight of the victim without censuring the guilty.”

Warren’s nod to psychology in his opinion was related to the Supreme Court’s intellectual commitment to individualism in the 1950s and 1960s. By talking about racial justice in psychological terms, the Court made it appear that racism mainly resulted in individual pain and suffering rather than collective struggle. Failing to call attention to the shared history of African-Americans resisting slavery and struggling both within and against segregation, Warren caricatured African-Americans as individuals victimized by law. Thus, their difference from whites was judicially rendered as a simple legal difference, the erasure of which promised to effect a liberation of all individual Americans.

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By eliding the history of black public institutions and achievements of African-Americans in the name of normalizing individuals through constitutional law, the Supreme Court helped reinforce a broader consensus about individual happiness then dominating postwar American culture. An important and overlooked consequence of this post- Brown valorization of the normal and happy individual has been an inability for judges in the last two decades to provide an intellectual bulwark supporting affirmative action against its critics.

Affirmative action represents a conscious attempt to consider race in the redistribution of public resources, but, as its critics readily complain, race-conscious remedies often perpetuate collective racial identities that appear to contradict the goal of rewarding and promoting individual talent. At their worst, critics of affirmative action argue, with Brown in mind, that the law should neither discriminate according to race nor acknowledge its political relevance at all. Often they uphold the vision of a “colorblind” Constitution, as Harlan expressed in Plessy. They also argue that race hardly matters any longer, or they argue that it has been transformed into something of a collective national identity, which all Americans supposedly share. Supreme Court Justice Antonin Scalia has written in a recent Supreme Court opinion that limited affirmative action: “In the eyes of the government, we are just one race here. It is American.” By celebrating American identity in racially explicit terms, critics of affirmative action such as Scalia cynically appropriate Brown’s vision of an integrated society. At the same time, however, Scalia’s reading of Brown is not tortured. His bad-faith appropriations can be read as ironically consistent with Brown’s promotion of equality under the Constitution, since the decision elevates as one of its goals the education of normal, individual Americans enjoying the fruits of affluence.

Brown is viewed today as a fixed star in the constellation of American rights. If viewed from another perspective, the most important Supreme Court decision of the twentieth century appears to have had little social effect as intended. It also appears to have disserved African-Americans by hampering the struggle against ways of thinking in racist terms. Therefore, the promotion of racial justice may require going back to Brown, reconsidering first principles, and reaching for something deeper than normalizing people into the affluence of an imagined American race.



Taylor Branch, Parting the Waters: America in the King years, 1954-1963 (New York: Simon & Schuster, 1988);

William H. Chafe, Civilities and Civil Rights: Greensboro, North Carolina, and the Black Struggle for Freedom (New York: Oxford University Press, 1980);

John Dittmer, Local People: The Struggle for Civil Rights in Mississippi (Urbana: University of Illinois Press, 1994);

W. E. Burghardt Du Bois, “Does the Negro Need Separate Schools,” Journal of Negro Education (July 1935): 328-335;

Jack Greenberg, Crusaders in the Courts: How a Delicate Band of Lawyers Fought For the Civil Rights Revolution (New York: BasicBooks, 1994);

Morton J. Horwitz, The Transformation of American Law, 1870-1960 (New York: Oxford University Press, 1977);

Horwitz, The Warren Court and the Pursuit of Justice: A Critical Issue (New York: Hill & Wang, 1998);

Michael Klarman, “How Brown Changed Race Relations: The Backlash Thesis,” Journal of American History, 81 (June 1994): 81-118;

Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality (New York: Knopf, 1975);

Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring about Social Change? (Chicago: University of Chicago Press, 1991);

Austin Sarat, ed., Race, Law, and Culture: Reflections on Brown v. Board of Education (New York: Oxford University Press, 1997);

Daryl Michael Scott, Contempt and Pity: Social Policy and the Image of the Damaged Black Psyche, 1880-1996 (Chapel Hill: University of North Carolina Press, 1997);

Harvard Sitkoff, The Struggle for Black Equality, 1954-1992, revised edition (New York: Hill & Wang, 1993);

Mark V. Tushnet, Making Civil Rights Law: Thur-good Marshall and the Supreme Court, 1936-1961 (New York: Oxford University Press, 1994);

Tushnet, The NAACP’s Legal Strategy Against Segregated Education, 1925-1950 (Chapel Hill: University of North Carolina Press, 1987);

Tom Wicker, Tragic Failure: Racial Integration in America (New York: Morrow, 1996);

Patricia Williams, “Metro Broadcasting, Inc. v. FCC: Regrouping in Singular Times,” Harvard Law Review, 104 (1990): 525.

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Gale Document Number: GALE|CX2876200025