Getting Right with Brown

Brown vs Board teamBrown v. Board team. (Photo: NAACP Legal Defense Fund)

For over sixty years, no matter where you stand on the constitutional spectrum, you have had to get right with Brown v. Board of Education. Decided sixty-one years ago this coming May 17, Brown is one of the best-known decisions of the U.S. Supreme Court, one of the Court’s most beloved – or at least well-regarded – decisions, and a key juncture in the development of American constitutional law.

There are several reasons why Brown should matter that much.

First, Brown was a watershed decision by the Supreme Court, putting an end, at least on paper, to nearly sixty years of “separate but equal” as a constitutional rule governing access to public facilities and accommodations. Ever since the 1896 Plessy v. Ferguson decision, in which the Court established the “separate but equal” rule as a guide to interpreting the Fourteenth Amendment’s equal protection clause, a central goal of the NAACP’s Legal Defense Fund (usually called the “Inc Fund”) was to end “separate but equal.” For years, Thurgood Marshall led the Inc Fund in combating “separate but equal” by applying legal ju-jitsu to the rule: if facilities were not equal, they could not be separate. If they were unequal and the state insisted on separation, the state had to create a whole new facility equal to the segregated facility for African-Americans to use. Thus, in a lawsuit requiring the University of Oklahoma to integrate its law school, the Court held that a roped-off desk in the Oklahoma Supreme Court’s library was not an equal law school for the African-American who had been admitted to the University of Oklahoma’s law school. Either the state had to create a new law school matching the existing one lecture-hall for lecture-hall, library for library, moot-court society for moot-court society, brick for brick, or it had to integrate its existing law school and admit the black student. Thurgood Marshall had tired of this incremental game, realizing that segregationists would apply legal ingenuity to create new ways of segregating so that the Inc Fund would have to fight each one, step by step. Thus, Marshall concluded, it was time to “go for the whole hog” and mount a head-on attack on segregation as inherently unequal.

Second, Brown was a triumph for public-interest lawyering. Marshall and his colleagues at the Inc Fund had won, at least on paper, an epochal victory for equality before the law. It would encourage lawyers taking on many other kinds of cases – for women’s equality, for equality of gays and lesbians, to name just two categories – and to use American constitutional law as an instrument of reform. In particular, when political processes were unresponsive to the growing demand for embracing racial equality, lawsuits seeking judicial action would prove to be an effective and versatile tool of forcing social change.

Third, Brown was a test of the Supreme Court and the lower federal courts. It opened the door for a generation of litigation and appeals focusing on defining what the commands of the original Brown decision meant and should mean. Brown launched an era of judicial intervention in school governance, in public accommodations, and in other areas of law. The courts would superintend the ways that an entire society treated the black and white races. No longer could discrimination continue in schools or in other forms of public accommodations, without having to meet the scrutiny of courts and judges using the equal-protection clause as a yardstick.

Fourth, Brown was a test of the Constitution itself, and of ways to interpret it. The debate sparked by Brown (and the line of cases following and developing its holdings) focused on the Court’s interpretation of the Fourteenth Amendment and its history. The Court had decided that the passing of time and the evolution of values might render a rule of constitutional interpretation no longer valid. Scholars debated whether the Court had overreached in deciding Brown as it had. Some emphasized the need for “neutral principles” of constitutional law as the only sound basis for sweeping constitutional change via courts – and disputed whether Brown was based on such principles. Some emphasized the need for judicial prudence and self-restraint in exercising judicial review – and disputed whether Brown had been consistent with or in gross violation of such judicial prudence and self-restraint. Some insisted that the Court had to be bound by the original intent of the framers of the Fourteenth Amendment, while others argued that an originalist methodology of constitutional interpretation needlessly froze the Constitution as of 1868. Many disputes still roiling the waters of American constitutional jurisprudence can trace their roots to the dispute over Brown.

At the same time, a fifth significance of Brown is that the decision found surprisingly swift acceptance by many Americans as just, symbolizing the Court’s role in American life as distilled by the inscription over the front door of the Supreme Court Building: EQUAL JUSTICE UNDER LAW. The decision signaled a major shift in public opinion about how the nation ought to treat African-Americans and a major public reconceptualization of the Court itself, one that to some degree is still with us. One source of the anger that many Americans feel against the Supreme Court’s recent decisions on gun rights and campaign finance is the disparity that they see between such decisions and what the Court achieved in Brown.

On May 17, 1954, the announcement of the Court’s unanimous decision of Brown v. Board of Education set off a constitutional earthquake that shook all of American society and law. That earthquake still reverberates among us, as it enters its seventh decade – and we all should remember it.

About the Author

R. B. Bernstein

R. B. Bernstein teaches at City College of New York's Colin Powell School and New York Law School; his books include Thomas Jefferson (2003), The Founding Fathers Reconsidered (2009), the forthcoming The Education of John Adams, and the forthcoming The Founding Fathers: A Very Short Introduction, all from Oxford University Press.

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