March 2004 - #11. Remembering and Forgetting Brown.

Vermont Bar Journal

2004.

March 2004 - #11.

Remembering and Forgetting Brown

Vermont Bar Journal - March 2004

Remembering and Forgetting Brown

We hold these truths to be self-evident: that all men are created equal.

Declaration of Independence (1776)

Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. Justice John Marshall Harlan, dissenting in Plessy v. Ferguson (1896)

The guarantees of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. Justice Lewis Powell, in Regents of the University of California v. Bakke

On May 17, 1954 - fifty years ago this spring - the Supreme Court decided Brown v. Board of Education, putting an end in law, if not in fact, to state-supported segregation in education.i The anniversary of Brown has drawn considerable attention, as it should, not only from the legal profession, but also from a diversity of political, social, professional, and religious groups, all intent on demonstrating their continued commitment to the ideal of racial equality enunciated in Brown.ii Justly called "the defining event of modern American constitutional law,"iii Brown not only struck down laws segregating public schools but also, through its progeny, sounded the death knell for government-sanctioned segregation generally.

Brown has an iconic status in American constitutional jurisprudence. The blow Brown struck for equality - one of the founding principles of our democratic republic - cannot be gainsaid. But what goes unacknowledged by those enamored with Brown is that Chief Justice Warren's decision was deeply, tragically flawed. Some of the flaws were apparent at the time the decision was issued; others have emerged over time. Subsequent decisions on the connection between equal protection and education have revealed a Court lost in the wilderness of its own jurisprudence. Befuddled by the intractability of the "American dilemma,"iv the Court has wandered from case to case, choosing this path and that, seldom regretting the road not taken, and slowly losing sight of the point of the journey. Coming before the Court, good-hearted souls, bent on transformation of the social environment and those who live in it, protest that they walk in the footsteps of Brown. But they have killed its spirit, and the courts having simply acquiesced in the killing. In their zeal to make America more just, they have invented principles upon which the nation was never founded and, more to the point, jettisoned the principles embodied, however obscurely, in Brown. This spring we will endure a celebration of Brown that misses its point, an anniversary party for principles in which many no longer believe.

Instead, the party will be about a new value - diversity. We will be treated to a round of public relations events designed to lead us to assume - if we do not do so already - that Brown was about diversity. We will be told to respect diversity, to teach diversity, to value diversity everywhere, from schoolrooms to offices to construction sites to bookshelves. Diversity is the current hot topic, the word on everyone's lips, the mantra chanted by millions who feel quite good about their "progressive" attitudes toward race and the other factors that continue to divide us from one another. Diversity has many admirers, but few who can say what exactly it means or what is so good about it.v First mooted in the labyrinthine reasoning of the Bakke case,vi diversity has come to be the predominant value in education - however odd it may be that the central focus of education has come to be the nature of the faces in the room rather than the content of what is taught (let alone the content of the characters of the students). More startlingly, diversity has taken its place as a prime value in American society, on a par with liberty and equality (which is quite a different thing). But diversity is not an extension of the logic of Brown, and we make a grievous mistake to think that it is.

In this essay, I want to recover the meaning of Brown so as to salvage it from the patina of misunderstandings it admirers have bequeathed to us. For if we are to commemorate Brown, we must revisit it without engaging in the "Whig interpretation of history" - one that urges us to read present ideology back into the past and treat the present features of things as the inevitable development of what went before.vii

Separate But Equal

In 1896, in Plessy v. Ferguson, the United States Supreme Court adopted the doctrine of "separate but equal," under which persons of minority races could be given separate services or treatment so long as it was "equal" to that afforded whites.viii The Court in Plessy upheld a Louisiana law of 1890 that required "equal but separate accommodations" for "white" and "colored" railroad passengers - a classic example of Jim Crow legislation. With the blessing of the Court, Jim Crow soon came to figure in every aspect of southern public life.ix

Early interpretations of the fourteenth amendment had construed it as proscribing all state-imposed discrimination on the basis of race.x But by 1883, the Supreme Court began to pull back in the face of a new desire on the part of northern liberals to conciliate the South and a desire on the part of southern conservatives to abandon their moderate policies.xi Justice Bradley, writing in the Civil Rights Cases, gave the Court's approval to the new hands-off policy toward southern race relations:

When a man has emerged from slavery, and by the aid of beneficent legislation

has shaken off the inseparable concomitants of that state, there must be some

stage in the progress of his elevation when he takes the rank of a mere citizen, and

ceases to be the special favorite of the laws, and when his rights as a citizen, or a

man, are to be protected in the ordinary modes by which other men's rights are

protected.xii Bradley insisted that the power to legislate on matters of race belonged to the states rather than to the federal government - a view long espoused by John Calhoun, the political theorist of southern separatism.xiii

Plessy ended, at least for a time, attempts to find in the fourteenth amendment a barrier to racial discrimination at the state level. Justice Brown's majority opinion turned on the assertion that legislation

is powerless to eradicate racial instincts or to abolish distinctions based upon

physical differences, and the attempt to do so can only result in accentuating the

difficulties of the present situation. . . . If one race be inferior to the other socially,

the Constitution of the United States cannot put them upon the same plane.xiv According to Justice Brown, the fourteenth amendment "could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either."xv Since the law at issue was "a reasonable regulation," the Court must step back before the "large discretion" available to the state legislature.xvi

Only Justice Harlan dissented, noting that, in his view, the Civil War Amendments aimed at removing "the race line from our governmental systems."xvii For Harlan, the Constitution should be colorblind, and could not support laws designed to protect "a dominant race - a superior class of citizens," while imposing a "badge of servitude" on others.xviii But Harlan, despite his prediction that the decision would "prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case,"xix was a voice crying in the wilderness, and segregation became the order of the day.

While the courts wrestled with the separate but equal doctrine for more than fifty years, it never sat comfortably in the constitutional framework. In a series of cases beginning just prior to the World War II, the Court began to find black petitioners entitled to relief on the grounds that the facilities offered to them were not "equal" to those offered to whites.xx But though the Court had established in Korematsu v. United States the principle that classifications by race were "suspect," therefore requiring "the most rigid scrutiny" by the courts,xxi it did not confront head-on the separate but equal doctrine.

Intangible Considerations

As late as the 1950s, twenty-one states and the District of Columbia still required or permitted racial segregation in public schools. The four cases consolidated under Brown, however, involved schools that had made significant (if belated) efforts to equalize facilities, curricula, and faculty qualifications and salaries.xxii Products of a carefully designed litigation strategy crafted by NAACP attorneys (including future justice Thurgood Marshall), each case involved black schoolchildren who sought admission to public schools on a nonsegregated basis.xxiii In each the lower court had based its decision on the separate but equal doctrine. The consolidated case was briefed and argued on two separate occasions: first in 1952 before a Court that included Chief Justice Fred Vinson; and again following Vinson's death and his replacement in 1953 by former California governor Earl Warren.xxiv

Warren chose to ground his opinion, written on behalf of a unanimous Court, on what he called "intangible considerations" concerning the effects of segregation.xxv It is important to note with precision the intangible effects Warren had in...

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