Brown footnote eleven in historical context: social science and the supreme court's quest for legitimacy.

• Author: Mody, Sanjay

INTRODUCTION

In the almost half-century since Brown v. Board of Education, (1) many legal commentators have come to regard the case as a leading example of scientific jurisprudence. The Supreme Court, according to the customary view, relied on social science evidence, cited in footnote eleven of the Brown opinion, to find that racial segregation caused social and psychological harm to black schoolchildren. Based on this scientific finding, the Court held that public school segregation deprived black schoolchildren of the equal protection of the law guaranteed by the Fourteenth Amendment. Thus, it is commonly remarked, social science evidence guided the Court's constitutional decision-making process.

The idea that social science played a meaningful role in the Court's decision to strike down public school segregation--what this Note shall refer to as the "conventional narrative"--is a familiar chronicle in American constitutional jurisprudence. Legal scholars have repeatedly, if at times inadvertently, fostered this reading of Brown. Scott Brewer, for instance, has described Brown as "a remarkable culmination of the legal realist project of taming abstract legal propositions with the whip of social science...." (2) Stephen Presser has observed that "[a]t the height of the Warren Court's adventures in Constitutional law-making ... sociology and social psychology were useful adjuncts to Constitutional law, most famously in Brown's Footnote 11 ." (3) Even Stephen Breyer, while an appellate judge, noted the Brown Court's "use of social science evidence ... to determine a question of law." (4)

This Note calls for a rethinking of the conventional narrative. It puts forward two primary claims about the Brown Court's use of social science. The first claim is that the Court did not in fact rely on the footnote eleven studies in holding public school segregation unconstitutional. The Note assembles evidence beyond the footnote eleven citation itself--the Court's cursory discussion of the social science studies, its contemporary race decisions, and the statements of persons involved in drafting the opinion--to make the case that social science was wholly irrelevant to the Court's desegregation verdict. The implication is that the Brown outcome would have been the same, even had the Court not invoked empirical evidence of segregation's harmful impact on black schoolchildren.

But if the Court did not rely on the footnote eleven studies--if social science did not, so to speak, "inform the judicial mind" (5)--why did it insert the footnote at all? Why did the Court not simply propose that racial segregation caused social and psychological harm to black schoolchildren without appealing to social science evidence? The Note's second claim is that footnote eleven should be understood in light of the anticipated crisis of legitimacy brought about by the Brown opinion. The Court, according to this claim, embraced the footnote eleven studies to lend authority to its highly controversial, and legally precarious, decision to strike down public school segregation. This is not to suggest that the Brown Court strategically employed social science evidence to make its opinion more persuasive. The claim is, rather, that the Justices, anxious about the social and jurisprudential consequences of their ruling, were themselves seduced by the exalted claims of mid-twentieth-century social science.

Two caveats about the scope of the argument should be mentioned at the outset. First, the Note focuses on the Court's rationale for referring to social science in the Brown opinion. It therefore does not discuss the NAACP's strategy in bringing scientific evidence of segregation's harmful social and psychological impact to the Court's attention in the first place. (6) Nor does it evaluate the scientific validity of the footnote eleven studies, except insofar as debates concerning the studies' validity obscured the underlying question of whether the Court's decision actually rested upon them. (7)

Second, it is necessary to stress the Note's modest claim to originality in drawing a link between footnote eleven and the Court's anticipated crisis of legitimacy. In recent years, a number of historians and legal scholars--for instance, Richard Kluger, Robert Bork, and Lawrence Friedman--have suggested that the Brown Court did not rely on social science evidence in striking down school segregation; notwithstanding their efforts, much of the legal academy continues to abide by the conventional narrative. (8) A large number of commentators have also noted the Justices' anxiety, prior to announcing the Brown opinion, about the decision's likely adverse consequences for the Court's legitimacy. (9) However, skeptics of the conventional narrative have not made footnote eleven the subject of sustained critical inquiry. Nor have they sought to discuss methodically the connection between footnote eleven and the Court's legitimacy concerns. This Note is an effort to assemble, for the first time, the evidence against the conventional narrative, and to explain from an institutionalist perspective why the Court felt it desirable to refer to the studies cited in footnote eleven of its opinion.

The Note is separated into three Parts. Part I summarizes the Brown opinion, focusing on the relationship between the Court's delineation of a historically changing Constitution and its finding of racial segregation's harmful impact. Part II explores the origins of the conventional narrative within the legal academy and presents evidence suggesting, to the contrary, that social science did not inform the Court's verdict. Part III elaborates upon the link between the Court's embrace of social science evidence and the anticipated crisis of institutional legitimacy brought about by the Brown opinion.

1. THE BROWN OPINION: A CRITICAL SUMMARY

   Although an exhaustive summary of the Brown opinion is beyond the scope of this Note, it is useful for present purposes to begin with a shared understanding of the Court's stated rationale for striking down school segregation. This Part recounts the major themes of the opinion, focusing on the interplay between the Court's delineation of a historically changing Constitution and its scientific finding of segregation's harmful social and psychological impact on black schoolchildren. The discussion here will help the reader follow the arguments in the remainder of the Note.

   In Brown, the Court considered for the first time whether racial segregation in the nation's public schools violated the Equal Protection Clause. The Court had upheld state-enforced racial segregation almost sixty years earlier in Plessy v. Ferguson, (10) on the ground that separating people of different racial backgrounds did not, in and of itself, imply their inequality. (11) The Plessy Court had ascribed grievances with the separate but equal standard to the "colored" race's (mis)understanding of social reality:

   [T]he underlying fallacy of [Homer Plessy's] argument ... consist[s] in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. (12) The Brown Court overturned Plessy, ruling unanimously that "in the field of public education the doctrine of 'separate but equal' has no place." (13) The opinion, drafted by Chief Justice Earl Warren, emphasized three factual themes: the Court's inability to discern the intended historical scope of the Fourteenth Amendment; the development of public education since the adoption of the Amendment; and the harmful social and psychological impact of racial segregation on black schoolchildren.

   The Court first considered whether the framers of the Fourteenth Amendment intended the Equal Protection Clause to prohibit racial segregation in the public school context. (14) It acknowledged that the parties in the case had put forward arguments relating to "consideration of the Amendment in Congress, ratification by the states, then existing practices in racial segregation, and the views of proponents and opponents of the Amendment." (15) The Court concluded, however, that the inscrutable and disparate views of members of Congress concerning the Amendment's scope rendered original intent an ineffective methodology for resolving whether public school segregation was constitutional. "[The parties'] discussion and our own investigation convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive." (16)

   The Court then reasoned that, even presuming it could discern the framers' understanding of the Fourteenth Amendment, their understanding still would not help it resolve whether school segregation was constitutional in the middle of the twentieth century. According to the Court, "An additional reason for the inconclusive nature of the Amendment's history, with respect to segregated schools, is the status of public education at [the time the Fourteenth Amendment was enacted]." (17) The Court observed that when the framers drafted the Fourteenth Amendment, public schools had not yet taken hold in the South; education of blacks in the South was almost nonexistent and was outlawed in some states; Congress had largely ignored the Fourteenth Amendment's impact in the North; and even in the North, the conditions of public education were not well-developed. (18) But the status of public education had changed substantially in the period leading up to Brown. The operation of schools had become, in the Court's view, "perhaps the most important function of state and local governments." (19) The Court concluded that, in order to resolve the constitutionality of school segregation, it would have to consider the elevated status of public education in the middle of the...