The Road Not Taken in Brown: Recognizing the Dual Harm of Segregation

Essay — Volume 90, Issue 6

90 Va. L. Rev. 1579
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In Brown v. Board of Education, the Supreme Court was required to define the harm derived from segregation per se. In so doing, the Court focused solely on the psychological harm that segregation inflicted on blacks. This rationale created the impression that desegregation was a social welfare program where whites were compelled to donate in-kind contributions to blacks in the form of interracial contact.

When the Court rendered its opinion in Brown, there was another open path before it. The brief filed with the Court by social scientists also noted that segregation harms the children of the majority group, albeit in different ways. Explicit recognition of the dual harm of segregation—harming blacks by subjecting them to a false message of their inferiority and harming whites by subjecting them to a false message of their superiority—is what is referred to as the road not taken in Brown. If segregation was understood as creating a dual harm, remedies for it would not be viewed as social welfare for blacks (and other minorities) but as benefitting all school children and all Americans.

Revisiting the Court’s opinion in Brown, this Essay marks out the road indicated but not taken. Viewing remedies for segregation as beneficial to all students might have been enough to alter the decisions by the Supreme Court that severely restricted school desegregation remedies. In addition, the recognition of the dual harm of segregation could have influenced the Supreme Court’s opinion upholding affirmative action in Grutter v Bollinger. Justice O’Connor’s reliance on the benefits of diversity for all students and for American society as the justifications for affirmative action is consistent with the recognition of the dual harm of segregation. But, implicit in her opinion is the recognition that underrepresented minorities are not as academically qualified as their white and Asian counterparts. Thus, lowering admissions standards means that the Court is again sanctioning a situation where whites (and now also Asians) are compelled to provide in-kind benefits in the form of lost places of admissions to the underrepresented minorities. Recognizing the dual harm of segregation makes it easy to see how this society’s reliance on standardized tests disseminates the same dual message of segregation: the intellectual inadequacies of blacks and other underrepresented groups and the intellectual superiority of non-Hispanic whites.

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  Volume 90 / Issue 6  

What Brown Teaches Us About Constitutional Theory

By Jack M. Balkin
90 Va. L. Rev. 1537

The Road Not Taken in Brown: Recognizing the Dual Harm of Segregation

By Kevin Brown
90 Va. L. Rev. 1579

Time, Change, and the Constitution

By John Harrison
90 Va. L. Rev. 1601

Brown at 50

By Michael J. Klarman
90 Va. L. Rev. 1613