SILENT COVENANTS: BROWN v. BOARD OF EDUCATION AND THE UNFULFILLED HOPES FOR RACIAL REFORM. By Derrick Bell. (1) Oxford University Press. 2004. Pp. 230. Hardback, $25.00, Paper, $14.95.
In April 2006, the Nebraska state legislature passed the Learning Community Reorganization Act to improve the faltering educational system in Omaha City. (3) Rejecting a bid to merge majority (4)-white suburban districts with the mostly minority city schools, the legislature instead voted to divide the formerly unified Omaha City School System into three separate and autonomous school districts. (5) The perimeter of each new district would track existing residential attendance zones used to determine enrollment in local high schools under the unified system. (6) As a result, the racial composition of the student body at any one school within Omaha City would likely change little, if at all, under the reconstituted plan. Nearly every school in the city could very well remain what each had become in 1999 when Omaha discontinued compliance with a judicial desegregation order: predominantly Black, largely Hispanic, or uniformly White. (7)
The NAACP cried "segregation," and filed suit against a plan that it says "violat[es] the bedrock constitutional principle" embodied in Brown v. Board of Educations (8) by creating racially identifiable school districts. (9) But Ernie Chamber, sponsor of the plan and Nebraska's only Black state senator, quickly pointed out that Omaha schools were already segregated, and that his proposal did nothing more than alter the governing structure of existing schools by creating three new school boards and Superintendent positions. (10) Doing so, Chambers defended, would likely bring about much needed improvements to the city's faltering Black and Latino schools by giving minority communities a governing voice over educational policy. (11)
Senator Chambers will find a sympathetic ally in Derrick Bell, author of Silent Covenants, who views the contemporary status of America's schools as evidence that Brown's "current relevance is in doubt" (p. 131). Bell spent the better part of his legal career in the 1960s with the NAACP's Legal Defense Fund, seeking to implement Brown's landmark ruling that segregated schools violate the Equal Protection Clause of the Fourteenth Amendment (pp. 97-106). The task was formidable. White resistance to desegregation was so severe that Bell required the protection of federal marshalls to escort him to and from court. His clients were shot at, their homes firebombed, and he, along with them, slept under armed guard (pp. 99-103). At one point, Bell supervised over 300 desegregation cases simultaneously, pressing what he would later lament as Brown's misplaced "integrationist" ideal (p. 105). (12)
Bell now rejects the decision he once nearly died to defend, maintaining in Silent Covenants that the Court should have upheld the "separate but equal" standard established in Plessy v. Ferguson. (13) According to Professor Bell, the Court in Brown changed the constitutional status of segregated schools, but lacked the institutional capacity to address the culture of White supremacy behind those schools (pp. 94-96). (14) Had he been on the Court in 1954, Bell would have conceded the "limits of judicial authority" and cited the "predictable outraged resistance" of Whites as reasons for upholding segregation (p. 21). (15) At the same time, he would have acknowledged the "long-suppressed truth" that Plessy was seldom enforced, and would have demanded strict compliance with its "separate but equal" standard (pp. 21-24). (16) This approach would have provided legal recourse against substandard segregated schools and spared Black children the emotional agony and physical abuse they experienced from hostile Whites upon being transferred to hostile White schools (p. 112). Moreover, he writes, the approach would have ultimately led to popular support for desegregation as an economic imperative that served the financial interests of Whites by cutting the costs of funding two separate school systems (pp. 24-27). (17)
This Essay reviews the critique articulated against Brown in Silent Covenants. Part II describes the phenomenon of "racial fortuity" responsible, in Professor Bell's view, for patterns of racial reform and retrenchment following Brown and other civil rights milestones. Within that Part, section A examines the political environment leading up to Brown, while section B discusses how this likely influenced the Justices deliberations. The discussion shows that Brown reflects a primary example of "interest-convergence" that advanced the nation's foreign policy objectives without a sufficiently meaningful commitment to racial equality or educational reform. Section C examines the role of "racial-sacrifice" in Brown that arguably preserved public school segregation in practice even after the Court ruled it unconstitutional under law. Part III situates Brown within a broader historical context by examining the role of racial fortuity in major events that both pre- and post-date the decision. It explains how the short-term advantages of racial fortuity interfere with long-term progress towards actual racial justice and equality. Part IV explains how racial fortuity not only disadvantages minority interests, but undermines the independent role of the judiciary. It also introduces the concept of "forged fortuity" as an alternative strategy for promoting meaningful racial progress within the existing political framework. Part VI concludes optimistically that a commitment to forged fortuity may ultimately reconceptualize society on more equitable and just terms.
RACIAL FORTUITY AND THE QUEST FOR DEMOCRATIC LEGITIMACY IN BROWN
Professor Bell's critique of Brown takes into account the role of "racial fortuity" in determining the social, economic and political fortunes of Blacks and other racial minorities. He describes the phenomenon of racial fortuity as a two-part formula. First, according to Professor Bell, policymakers throughout history have willingly sacrificed "basic entitlements of freedom and justice" (p. 9) for Blacks in order to resolve economic and political differences among competing groups of Whites (pp. 9, 69). Second, policymakers will recognize and remedy racial injustices only when such action "will benefit the nation's interests without significantly diminishing whites' sense of entitlement" (p. 9). (18) The pace of racial progress is thus dictated by repetitive cycles of "racial sacrifice" and moments of "interest-convergence."
Silent Covenants explains Brown's pronouncement against segregated schools and the subsequent difficulty in implementing desegregation as a prime example of racial fortuity in a decision that promoted Black equality to meet a different end. What motivated the outcome in Brown and other mid-century civil rights gains, says Professor Bell, was a realization that America could not proclaim the moral superiority of democratic governance over Soviet styled communism while tolerating the South's apartheid regime (pp. 59-68). The outcome in Brown was never about integration or better schools, he says. Brown, at bottom, was about the Cold War. (19)
COLD WAR PRECURSORS TO BROWN
The Cold War was the Court's "unacknowledged motivation" in Brown (pp. 60-67). In the years preceding the decision, communist expansion into Eastern Europe and Asia threatened global stability and the interests of United States' allies abroad. (20) Yet Americans, emotionally drained and financially strapped from hard-fought battles in Europe and Japan, would not support military intervention against the Soviet Union. (21) President Truman thus adopted a strategy of peaceful communist containment, relying on diplomacy and strategic alliances to nudge newly independent post-colonial nations towards a democratic form of government. (22)
Key to the "Truman Doctrine" was the United States' ability to lead by example--to showcase to the world its own commitment to self-governance premised on the principles of fairness, justice and equality. (23) Domestic segregation naturally tarnished America's international reputation, leading to efforts by the state department to convey a positive message about race relations abroad (pp. 60-61). Publications of the United States Information Agency showcased the "tremendous pace" at which democratic societies progressed by juxtaposing the conditions of free Blacks at mid-century to the degradation they experienced under slavery. (24) Broadcasts on Voice of America Radio carried the speeches of Black attaches dispatched to foreign nations by the State Department to speak of their amicable relationships with Whites and the rights available to them in the American South (pp. 60-61). (25) Alongside its efforts to downplay the impact of domestic segregation abroad, the Executive Branch emphasized to White Americans how segregation undermined the nation's standing in the world. Professor Bell describes a statement made by Chester Bowles, ambassador to India, in a 1952 speech at Yale University:
A year, a month, or even a week in Asia is enough to convince any perceptive American that the colored peoples of Asia and Africa, who total two-thirds of the world's populations, seldom think about the United States without considering the limitation under which our 13 million Negroes are living (p. 64). The Executive department refused to countenance any criticism of America's racial policies at the international level, however, taking drastic measures to hide America's harsh treatment towards Blacks (pp. 62-64). Paul Robeson, Josephine Baker and Louis Armstrong are just a few of the influential public figures who found themselves subject to federal surveillance after speaking out against domestic segregation to international audiences. (26) At a speech in Paris in 1949, Robeson compared the racial policies of the United States "to that of...