Issue 6

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.

What Brown Teaches Us About Constitutional Theory

This Essay, written for the fiftieth anniversary of Brown v. Board of Education, explains the key lessons of Brown for constitutional theory. Ironically, Brown has comparatively little to teach us about which normative constitutional theory is best, because almost every contemporary normative constitutional theory takes the correctness of Brown as a starting point. Rather Brown’s key lessons concern positive constitutional theory—the study of how constitutional development and constitutional change occur over time. 

Courts, and particularly the U.S. Supreme Court, tend, over time, to reflect the views of national political majorities and national political elites. Constitutional doctrine changes gradually in response to political mobilizations and countermobilizations; minority rights gain constitutional protection as minorities become sufficiently important players in national coalitions and can appeal to the interests, and values, and self-conception of majorities, but minority rights will gain protection only to the extent that they do not interfere too greatly with the developing interests of majorities. 

Although Supreme Court decisionmaking tends to reflect these larger institutional influences, it is largely uninfluenced by normative constitutional theories about the proper way to interpret the Constitution. In fact, there is little reason to believe that the product of Supreme Court decisionmaking could regularly correspond to the outcome of any particular normative constitutional theory. This suggests that one important function of normative constitutional theory may not be giving advice to judges but rather offering professional legitimation for the work of the Supreme Court.

Putting Pretext in Context: Employment Discrimination, the Same-Actor Inference, and the Proper Roles of Judges and Juries

The course of federal employment discrimination litigation is replete with instances of lower federal courts attempting to define and apply broad rules that, usually, though not always, have the effect of defeating plaintiffs’ claims of discrimination. The same-actor inference, first applied by the Fourth Circuit Court of Appeals 1991, aptly exemplifies this trend. The essence of the same-actor inference is that an individual who harbors discriminatory animus toward a protected class of persons would not knowingly hire a member of that class and then fire that same individual on account of his or her protected status. Since 1991, a circuit split has emerged on the question of who should evaluate the import of same-actor facts in a given case. Several circuits have followed the Fourth Circuit and employ the inference to justify summary judgment, directed verdicts, and judgments notwithstanding the verdict, all in favor of defendant-employers. Other circuits, in contrast, expressly reserve to the jury the decision regarding how to weigh same-actor facts. The Supreme Court has yet to resolve this split. This paper argues that the history of employment discrimination litigation, the Civil Rights Act of 1991, and public policy considerations require that it be juries, not courts, who determine the import of same-actor facts in a given employment discrimination case.

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