May 13, 2014
Private: The Unfinished Promise of Brown v. Board of Education
Brown v. Board Symposium, Erwin Chemerinsky
by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law
*May 17 is the 60th Anniversary of the landmark Supreme Court opinion, Brown v. Board of Education. This post is part of an ACSblog symposium noting the landmark decision and exploring the ongoing inequalities in our society.
The sixtieth anniversary of the decision in Brown v. Board of Education, on May 17, is an occasion for celebrating what it accomplished and reflecting on how it failed. Brown began a social revolution that ultimately ended the apartheid and Jim Crow laws that segregated every aspect of life in the south and in many other places as well. Brown was a crucial part of the foundation for the Civil Rights Act of 1964 and the Voting Rights Act of 1965, the most important federal civil rights laws since Reconstruction.
Yet, it is a mistake to think that Brown brought about an end to the enormous racial inequalities in American society. The most recent census data indicates that 9.7 percent of whites live below the poverty line, compared with 25.6 percent of Latinos and 27.22 percent of African–Americans. Seventeen percent of white children are in families below the poverty line, compared with 32.5 percent of Latino and 35.3 percent of African-American children. This is the legacy of slavery and Jim Crow laws and the racism that has existed throughout American history.
It also is a reflection of the historic and continued inequality in American public education. The profound irony is that schools, the focus of Brown, are the area where racial segregation most persists. The tragic reality is that American public schools remain separate and unequal and are becoming ever more so.
Public school systems in major cities are comprised almost entirely of students of color and they are surrounded by suburban school systems that are almost entirely white. In 2012-13, only 12 percent of the students in the Boston public schools were white, but this was better than Chicago where only 8.8 percent of the public school students were white or Dallas where it was only 4.8 percent.
Schools are not only racially separate, but they are terribly unequal. Suburban school systems, through larger property tax bases and parents’ contributions, generally spend far more on education than city school systems. The titles of two books by Jonathan Kozol convey the current reality: “Savage Inequalities,” and “The Shame of the Nation: The Restoration of Apartheid Schooling in America.”
Separate and unequal schools have a dramatic effect on society. In 2006, 28.4 percent of white Americans reported having graduated from college, compared with 18.5 percent of blacks, and 12.5 percent of Latinos. Unemployment rates for African-Americans and Latinos are far greater than for whites. Every study shows that average income levels rise and chances of unemployment fall as education increases. Education always has been thought to be the vehicle for social mobility and educational opportunities in this country depend enormously on the race and wealth of the student.
There are undoubtedly many causes for the failure to achieve equal educational opportunity in the United States. None of the recent presidents – not Reagan, or either Bush, or Clinton, or even Obama so far – have done anything to advance desegregation. None have used the powerful resources of the federal government, including the dependence of every school district on federal funds, to further desegregation or equality in education. “Benign neglect” would be a charitable way of describing the attitude of recent presidents to the problem of segregated and unequal education; it has been neglect, but there has been nothing benign about it.
The Supreme Court deserves a great deal of the blame for the separate and unequal schools. In a series of decisions over the last 40 years, the Court has failed to advance equal educational opportunity and actually has impeded it. In 1973, in San Antonio Independent School District v. Rodriguez, the Court ruled 5-4 that disparities in school funding among school districts in the same metropolitan area do not deny equal protection or violate the Constitution. Indeed, the Court said that there is no right to education under the Constitution.
A year later, in Milliken v. Bradley, the Court, again by a 5-4 margin, ruled that there generally cannot be inter-district remedies to segregated schools in a metropolitan area; students generally cannot be transferred across district lines to achieve desegregation. The combination of Rodriguez and Milliken is to ensure that schools in urban areas across the country would be unequal in term of resources and racially separate.
In Board of Oklahoma City v. Dowell, in 1991, the Supreme Court compounded the problem by holding that desegregation orders, even ones that were tremendously successful had to be ended once there was a unitary school system. This resulted in the lifting of many federal court desegregation orders and the resegregation of many school systems.
In 2007, in Parents Involved in Community Schools v. Seattle School District Number 1, the Court limited the ability of school boards to adopt voluntary desegregation plans. The Court, in a 5-4 decision, held that school systems cannot use race as a factor in assigning students to schools to achieve diversity. Voluntary desegregation efforts across the country were placed in jeopardy or ended.
Thus over the last 40 years, the Supreme Court has failed to advance equal education and unfortunately has frustrated it. The starting point must be for the Court to hold, clearly and unequivocally, that there is a fundamental right to an education under the Constitution. In coming to this conclusion, the justices need go no further than Chief Justice Earl Warren’s opinion in Brown: Chief Justice Warren eloquently expressed this view in Brown v. Board of Education:
Today, education is perhaps the most important function of 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.
It seems very unlikely that the current Court, with five conservative justices, will find a constitutional right to equal educational opportunity. But it must be at the core of a progressive agenda for the future. The task today is to provide the foundation for a future Court that will finally take the actions needed to make Brown’s promise a reality.