Essay

Crime Severity and Constitutional Line-Drawing

Some speech risks inciting or aiding serious crimes. Other speech risks causing only minor crimes. Some searches and seizures are aimed at catching kidnappers, others at catching bookies. 

Should constitutional doctrine draw lines that turn on crime severity? And if it should, how should these lines be drawn? Commentators and judges have often urged that the first question be answered yes. And yet the trouble with a yes answer is that it requires courts to answer the second question – which isn’t easy, given how bitterly people often disagree about the severity of various crimes (for instance, white-collar crimes, drug crimes, copyright infringement, or even burglary). 

Surprisingly, this matter has rarely been discussed broadly, cutting across various constitutional provisions, such as free speech, the Fourth Amendment, the right to jury trial, and the Eighth Amendment. This Essay tries do so. It identifies four possible approaches to judging crime severity in constitutional doctrine. It discusses the pluses and minuses of each approach. And it concludes that two simple answers—that such severity distinctions are always improper, and that they are unproblematic—are mistaken.

The Space Between School Desegregation Court Orders and Outcomes: The Struggle to Challenge White Privilege

This Essay reports on the results of a five-year study of six communities that tried to racially balance their public schools during the 1970s. This research reveals the details that lie between the court orders (or whatever desegregation policy existed) and the student outcome and demographic data that have been captured in quantitative analyses. In the space between the mandates of desegregation and the results, we found that the schools and communities often unwittingly reproduced racial inequality by maintaining white privilege within the context of desegregated schools. Yet at the same time, these schools provided spaces where students and educators crossed the color line in ways they had never done before and have not done since.

This Essay argues that the school desegregation policies that existed in these school districts, though better than nothing, simply were not enough to change the larger society single-handedly. It illustrates how difficult it was for the people in these schools to live up to the goals of school desegregation given the larger societal forces—including racial attitudes and politics, housing segregation, and economic inequality—working against them. It also documents how deeply committed some of these actors, both educators and students, were to trying to bring about change. In this way, the study speaks to larger lessons about the role of schools in society and the uphill but worthwhile efforts of lawyers and judges to use schools as one of very few tools for social change.

Racial inequality and the resultant segregation did not begin in the public schools; thus, we should not expect remedies in the public schools to solve the problem alone. But we can rely on racially diverse public schools—to the extent that current policies allow them to exist—to be important sites in the struggle for a more just society. Lawyers and legal scholars who helped fight for school desegregation and who continue to push for racial diversity in educational settings need to understand this more complex view of the history and reality of school desegregation in the United States in order to move forward with new legal strategies.

Some Legacies of Brown v. Board of Education

This Essay examines three legacies of Brown v. Board of Education. First, it describes the way in which the litigation campaign that culminated in Brown became the model for other strategic litigation campaigns aimed at obtaining court decisions substantially changing the law. Second, it explains how Brown should be understood as part of American political development, the collaboration by the Warren Court with the main lines of the political commitments of the New Deal and (later) the Great Society. Finally, it offers an account of the dissipation of Brown’s legacy in desegregating the schools that connects that development to the transformation of American politics in the 1970s and thereafter.

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