April 3, 2018

Why Brown v. Board of Education Still Matters

Gregg Ivers Professor of Government, American University

Linda Brown, who passed away early last week, became the most famous school-age child in American history when, in September 1950, her father, Oliver, attempted to enroll her at the all-white Sumner School in Topeka, Kansas. Although the Browns lived just a few blocks from Sumner, Linda was not permitted to attend school with white children. The Browns lived in an integrated neighborhood and played with white children who attended Sumner. But, like all black children, Linda was required by law to attend the all-black Monroe School, located about a mile and a half further away. Linda literally walked by Sumner to catch a bus, if it showed up, to get to Monroe. If not, Linda would walk to Monroe, whether in the bitter cold of winter or the oppressive heat of late summer. Less than a year later, Oliver Brown would take the witness stand in a federal courtroom after the NAACP Legal Defense Fund, which had been carefully recruiting African American plaintiffs around the country to challenge racial segregation in elementary and secondary public education, made him the principal litigant in what would become, less than three years later, the most famous case ever decided by the Supreme Court.

Since that historic moment in the early afternoon of Monday, May 17th, 1954, when Chief Justice Earl Warren announced the Court’s unanimous judgment and opinion in Brown v. Board of Education (1954), generations of trees have given their lives to a still-ongoing debate over Brown was correctly decided, whether it mattered then and matters now and what the decision said about the possibilities and limits of judicial power. Naturally, criticism from the editorial pages in the seventeen Southern and border states that required racial segregation in public education was almost uniformly critical, with the exception of moderate progressives like Ralph McGill of the Atlanta Constitution and a few others who noted that, for all the bluster coming from unreconstructed segregationists throughout the region, the Court’s decision was moderate in tone and order. No immediate desegregation was required, noted McGill, and the decision did not mean that “Negro and white children” would attend school together in the fall. Warren concluded his reading of Brown by announcing that the Court would hear new arguments during the October 1954 Term on how to implement the ruling. Not by accident, the Court did not even hear arguments in Brown IIuntil April 1955 and would not hand down its decision until six weeks later, towards the very end of the term. In a nod to the South’s “unique culture,” the Court substituted original draft language in the opinion requiring de-segregation at the “earliest practicable date” to “all deliberate speed.” We all know how that turned out.

But it was not just the editorial pages and governors of the Jim Crow states that condemned Brown as wrong as a matter of law and wrong as a matter of history. Elite legal academics and prominent newspaper columnists in the North, such as James Reston of the New York Times, faulted the Court for rejecting “history, philosophy and custom” and instead relying on “the social scientists than on legal precedents.” In what would become a common refrain among Brown’s “respectable” critics in the coming years, Reston wrote that the Court “insisted on equality of the mind and heart rather than on equal school facilities. . . . [t]he Court’s opinion read more like an expert paper on sociology than a Supreme Court opinion.” In 1959, just as massive resistance to Brown was beginning to wane and the South would begin the slow process of desegregation, the noted Columbia law professor Herman Wechsler – certainly no segregationist – criticized the Court’s decision in a famous and influential law review article for failing to rely on what he called “neutral principles of constitutional law.”

All this criticism of Brown misses the point of what that case was really about. It was not about whether elementary and secondary public education for African Americans met the “separate but equal standard” of Plessy v. Ferguson, a rule the Court rejected in Brown as it applied to public education but a decision it failed to overturn outright.  It was not about whether the “framers” of the Fourteenth Amendment intended to bar segregated public schools, evidence for which the Court ruled in Brown was “inconclusive.”  Congress did not have a single African American member when it approved the Fourteenth Amendment in June 1866. No state legislature counted an African American among its ranks in July 1868, not even those that formed the necessary three-fourths for ratification. Only a nation so steeped in white supremacy as a cultural and legal norm could pretend that somehow the meaning of African American citizenship and the rights stemming could and should be defined by the institutions that deliberately had established a racial caste system that placed blacks at the bottom. No, what Brown was about was far more fundamental: it was about the right of black children to attend school. Period. Not, equal schools. But school.

Until Brown and then for many years after, particularly in Southern states, black children did not attend public school at the same rate as whites. The persistence of racially and economically exploitative sharecropping economies meant that black children were needed in the fields during the fall and spring, and that meant that school attendance, especially in rural communities in the most oppressive Southern states such as Mississippi, Alabama, Georgia, Louisiana, Florida and South Carolina, was limited to the winter months. Truant officers knew better than to inquire about the whereabouts of black school-age children in such areas because it was the dominant agricultural interests, aligned with the politicians deeply aligned with their racial and economic interests, that determined who went to school and who did not. Even in cities that fashioned themselves as moderate or even progressive on race, education for black children was rarely, if ever, within a standard deviation of what white students were receiving. Atlanta, for example, did not establish its first high school for black students until 1924, when it opened Booker T. Washington High School on the city’s Southwest side. Until then, black students in Atlanta, like black students everywhere else in the region, attended schools that served all grades, from early primary through the 9th and 10th grades. Black students did not begin attending high school in significant numbers in the South until well after Brown was decided.

Had the South been even remotely serious about meeting the “separate but equal” rule in Plessy for public education, it would not have been necessary for the white philanthropist Julius Rosenwald to join forces with Booker T. Washington to establish over 5,300 schools for black children between 1912 and 1948 in the former Confederate states and several others outside the region as far west as Oklahoma and as far north as Michigan. The “Rosenwald Schools” provided education to nearly one-third of black school children in the South during this period, mostly in rural areas. Compounding the problem was the near complete disenfranchisement of African American voters throughout the South. Blacks had no voice in Southern politics. And the white economic and political power structure of the region made sure it would stay that way by sanctioning the use of violence to intimidate and even kill without consequence African Americans who believed they should have the right to vote. African Americans who spoke out about their condition could expect to lose their jobs, have bank notes called in or receive informal visits to their home from the Ku Klux Klan and others who operated with the support of law enforcement. Nowhere in the law reviews, the social science journals or the columns of elite opinion-makers was there ever a reference to other, more concrete and powerful forms of resistance to Brown. These included the establishment of White Citizens Councils, first in Mississippi and then in every other Southern state, expressly designed – and, in some cases, funded by state legislatures – to resist Brown and then later, as the civil rights movement progressed, any form of desegregation and, in the ultimate insult, the renewed construction of Confederate memorials on public lands. Post-Brown response in the South also included, in a new twist, the naming new schools and the re-naming of old ones for such Confederate heroes such as Robert E. Lee, J.E.B. Stuart, Jefferson Davis and Nathan Bedford Forrest, the latter, of course, the founder of the Ku Klux Klan. This was not about honoring fallen soldiers or former Confederate presidents and politicians. It was about reminding African Americans who was in charge. And the reluctance of cities, towns and communities throughout the South to take down or, at minimum, to relocate to museums the markers of its Confederate past, as about anything other than placing false honor to a shameful past underscores the unspoken power of white supremacy in our political culture.

All judicial decisions operate on two levels. The first is abstract, a conversation among elites about what this or that constitutional framer meant, what lawmakers intended when they crafted a particular piece of legislation, whether precedent, no matter how ill-conceived, should bind the Court when it considers contemporary and future questions of public import. Too often, the conversation between elites is only between elites, and rarely includes the voices of those affected by a rule that deliberately disadvantages them. That somehow the decision of the Topeka school board to establish a racially segregated school system, one not required by Kansas law, which neither required nor prohibited segregated schools, gives lie to the idea that the status quo simply reflected a neutral principle. Plessy, in affirming the legal codification of American apartheid, reflected the American, not just Southern, belief that African Americans were an inferior class of people who should neither expect nor were entitled to the benefits of full citizenship.

The second level is more concrete and individual. For African Americans, Brown was about much more than just the right of black children to attend school with white children, particularly if that school would have served them if not for a rule requiring segregation. The NAACP LDF’s victory in Brown, after a twenty-year campaign to dismantle racial segregation in public schools, marked the first visible time an elite white institution ruled against the interest of millions of white Americans, more than a few them quite powerful, knowing full well that it would shake the foundations of American culture well beyond the walls of public schools. Brown would offer some hope, considerable hope really, that America was prepared to deliver on the parchment promises of the Constitution, that almost ninety-years after the Civil War the nation, after an entire history of attempting to prevent the education of its black citizenry and then straight-jacketing what little schooling was available to the trades, agriculture and other skills to serve the white economy, was about to change.

No single decision has ever liberated an oppressed or disadvantaged an entire class of persons. The interaction between law, politics and culture is far too complex for such an expectation. But Brown has borne an unusual weight since the Court decided it almost sixty-four years ago. Rather than taking an icepick to Brown for what it should have done or has not done, it should be seen for what it was – the first crack in the legal architecture of American race law. Brown would inspire the legal team representing the women not named Rosa Parks to challenge Montgomery, Alabama’s bus segregation law in federal court. And win. That would form the dual strategies running throughout the burgeoning civil rights movement – that law and direct action were complimentary, not mutually exclusive strategies, and that mass protests against racial segregation had a better chance of succeeding with an affirmative legal foundation in place. Brown allowed nine African American teenagers to attend, for one year anyway, previously all-white Central High School in Little Rock, Arkansas, even if it meant the president of the United States enlisting the 101st Airborne Division and a federalized Arkansas National Guard to do so, further turning the spotlight on racial injustice in the South. Resistance to Brown would affect liberal-minded white students in Southern states that chose to shut down their schools rather than integrate them, and lead many, outraged that the commitment to white supremacy would cost them their chance to finish high school and attend college, to join the Freedom Rides and Sit-Ins of the early 1960s. And there are countless more examples for why Linda Brown’s passing should remind us why the decision bearing her family’s name mattered then and still matters now.

Equality and Liberty, Racial Justice