This Essay, which commemorates the fiftieth anniversary of Brown v. Board of Education, canvasses three issues: (1) why Brown was a hard case for the justices; (2) how the justices were able to overcome their legal doubts about invalidating school segregation to achieve a unanimous decision invalidating that practice; (3) and the consequences of Brown. With regard to the last point, the essay summarizes an argument developed at greater length in my book From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality, asserting that Brown radicalized political opinion in the South, thus creating a climate ripe for violence. When the brutalization of peaceful black protestors by white law enforcement officers was broadcast on national television, it helped transform national opinion on race, leading directly to the enactment of landmark civil rights legislation.
Issue 6
Time, Change, and the Constitution
This Essay seeks to apply some standard tools of constitutional theory to Brown v. Board of Education, and the history of the Reconstruction Amendments more generally, and thereby derive four principles of interest to Americans who are considering changing their Constitution. First, expect that judicial fidelity to framer-made norms will depend on (1) the conformity of the norm with the judge’s own view, (2) the felt importance of the issue, and (3) the clarity of the norm—the amount of wiggle room it leaves the judge. Second, framers are well-advised to put more faith in structural provisions like the two-Senators rule than in substantive provisions like the First Amendment. Third, rules beat standards. Finally, the success of entrenchment depends on the initial reasons for adopting constitutional provisions. This Essay applies these principles to the Federal Marriage Amendment and an amendment that would revise the continuity-of-government rules.
The Road Not Taken in Brown: Recognizing the Dual Harm of Segregation
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.