Ackerman's Brown.

• Author: Kennedy, Randall L.
• Position: Law professor Bruce Ackerman's understanding of Brown v. Board of Education - The Meaning of the Civil Rights Revolution

ESSAY CONTENTS INTRODUCTION I. WHAT DID BROWN SAY? II. HOW SHOULD WE ASSESS THE BROWN OPINION? III. WHAT WAS THE RELATIONSHIP OF THE BROWN OPINION TO THE CIVIL RIGHTS ACT OF 1964? IV. WHAT ROLE SHOULD BROWN PLAY IN PROGRESSIVE MOVEMENTS? INTRODUCTION

The judicial decision that Professor Bruce Ackerman discusses most intensively in his sprawling, creative, and instructive account of the civil rights revolution (1) is Brown v. Board of Education. (2) In Brown and its companion case, Bolling v. Sharpe, (3) the Supreme Court invalidated government action authorizing or requiring the racial separation of pupils in primary and secondary public schools. I pose four questions about Brown, relating my answers to Professor Ackerman's analysis.

1. WHAT DID BROWN SAY?

   According to Professor Ackerman, Chief Justice Earl Warren's opinion for the Court in Brown deployed "judicial situation-sense" to tell "the commonsense truth," which was that white "southerners were humiliating black children by refusing to allow them to attend common schools with their white peers." (4)

   Is that characterization a realistic portrayal or translation of Warren's Brown? I think not. Warren penned an opinion that, with regard to the regulation of race relations, said as little as possible beyond concluding that "in the field of public education the doctrine of 'separate but equal' has no place" and that "[s]eparate educational facilities are inherently unequal." (5) Conspicuously absent from the opinion is any account of white Southerners' humiliating black children. This omission was deliberate. Warren wrote privately that he sought to craft an opinion that was "short, readable by the lay public, non-rhetorical, unemotional, and, above all, non-accusatory." (6) Warren succeeded. His Brown opinion manages to invalidate de jure segregation without castigating or indeed even mentioning the officials who imposed Jim Crow oppression.

   To be sure, Warren's opinion deals very differently with segregation than previous opinions of the Court. In Plessy v. Ferguson, (7) the Court's most influential affirmation of segregation's constitutionality, a majority of the Justices scoffed at the idea that a governmentally imposed regime of separate but equal facilities could reasonably be viewed as an unfriendly, indeed stigmatizing, form of discrimination against blacks. According to the Plessy Court, if blacks felt insulted by the requirement of a separation of the races, the insult arose "not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it." (8) Subsequently, scores of jurists, including some of the most esteemed of the twentieth century, complacently affirmed the baleful notion of separate but equal, accepting the blatant lie that state-mandated racial separation could somehow be squared with equality before the law. (9) By contrast, Warren's Brown gave no rhetorical support to segregation.

   Still, the Chief Justice's description of segregation in Brown is strikingly wan. It says remarkably little about segregation's origins, ideology, implementation, or aims. A reader of Brown alone, with no knowledge of American race relations, might well be mystified by the hurt and anger of those protesting against segregation, simply because Warren's opinion is so diffident. Warren avers that "[t]o separate [blacks] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." (10) He embraces the finding of a lower court that "the policy of separating the races is usually interpreted as denoting the inferiority of the negro group." (11) He also asserts in Bolling v. Sharpe that "segregation is not reasonably related to any proper governmental objective." (12) But Warren's opinion says nothing about the aims of segregation. He concludes that it has baleful effects but avoids mentioning whether those consequences were intentional. Because Warren insisted upon writing an opinion that was non-accusatory, he omitted a central aspect of the segregation story: the reason why white supremacists desired to separate whites and blacks pursuant to the coercive force of state power. Missing from the most honored race relations decision in American constitutional law is any express reckoning with racism. (13)

   Dissenting in Plessy, Justice John Marshall Harlan did reckon with segregation's racism. Harlan's observation with respect to public railway coaches was applicable to public school classrooms as well: "What can more certainly arouse race hate ... than state enactments which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens?" (14) Appropriately mocking segregation's "thin disguise" of delusive symmetry, Harlan remarked that " [e]veryone knows that [segregation] had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by ... white persons." (15) Harlan pointed out that segregation was something done by whites to blacks (and other racial minorities). Harlan recognized that segregation was a deliberate negation of racial equality and a deliberate assertion of racial superiority. Harlan noted that segregation was meant to "protect" whites from the supposedly contaminating influence of colored people. None of these points is driven home, or even much hinted at, in Warren's non-accusatory opinion. The Chief Justice never even cites Harlan's dissent.

2. HOW SHOULD WE ASSESS THE BROWN OPINION?

   Professor Ackerman is unstinting in his praise of Warren's Brown opinion. It is, he writes, "the greatest judicial opinion of the twentieth century." (16) Whether Ackerman is correct depends on what he means...