BETTER TO HAVE FORCED THE CONTRADICTIONS:

Brown v. Board of Education (Peter Augustine Lawler, 02/21/08, First Principles)

In retrospect, the Court clearly should have been bold enough actually to reverse Plessy by affirming Harlan’s view of the colorblind intention of the Fourteenth Amendment. The confusion created by Brown was largely responsible for some of the worst moments in recent U.S. history, including the South’s “massive resistance” and the chaos and resentment caused by court-ordered busing. Americans needed and still need to be taught why segregation is wrong, and they need to understand that affirmative action is wrong because it is too much like segregation. Racial distinctions, in both cases, are allegedly being used for the public good, but with both segregation and affirmative action the race that was monstrously degraded by slavery is again being stigmatized. The contemporary Supreme Court now regards all references to race in the law with strict scrutiny, and conservative justices have been doing well in explaining why. Brown is, of course, not going to be reversed, but its opinion has very little value as a precedent for today’s Court.

The Court waited a year before deciding how to implement its Brown decision. In its second Brown decision, the Court refused to grant immediate relief to the individuals whose rights it had decided had been violated. Implementation was remanded, with very little guidance, to the federal district courts. The local courts were to require that admission to public schools “on a racially nondiscriminatory basis” be achieved “with all deliberate speed.” The vagueness of that mandate placed local judges faced with hostile public opinion in an untenable position, which fact can be traced in part to the Court’s failure in Brown to articulate a principled argument against segregation. Instead of giving relief to individuals whose constitutional rights were violated, the remedy was given only in some indefinite point in the future. There was no guarantee at all that the plaintiffs—the children—who brought suit in Brown would ever get to go to a desegregated school. The subtle but real racism of the remedy of Brown II ended up paving the way for the busing ordered in Swann v. Charlotte-Mecklenburg Board of Education (1971). In both cases, expediency justified significant and damaging deviation from sound constitutional principle.

The most intriguing recent conservative criticism of Brown is found in Justice Thomas’s concurring opinion in Missouri v. Jenkins (1995). There he writes that “Brown I itself did not need to rely upon psychological or social science research in order to announce the simple, yet fundamental truth that the Government cannot discriminate among its citizens according to race.” That is because the principle of the equal protection clause of the Fourteenth Amendment is “that the Government must treat citizens as individuals, and not as members of racial, ethnic or religious groups.” Thomas’s is a noble but perhaps too transparent effort to say what the Court should have said, an effort to find principle in the Brown opinion—principle that just isn’t there.

There was one other too-little considered option available to the Court. They could have enforced the equal clause and required that those entities which wished to maintain separation had to then provide correspondingly equal facilities and services to blacks. Not only would this have turned the racists own argument against them but, had they not just conceded defeat and integrated, would have required a massive expenditure in black communities to bring their schools, hospitals, bus lines, etc. up to standard.

Posted by Orrin Judd at February 23, 2008 11:55 AM