Fulfilling the Promise
School of Law
Professor Steven D. Jamar
© 2004, 2005, 2007, 2012 Steven D. Jamar
last revised August 27, 2012
On July 4, 1776, a new nation was founded on the lofty words in the Declaration of Independence "that all men are created equal." Despite this auspicious start, by the time the "more perfect union" was to be created in 1789, slavery was enshrined in the U.S. Constitution with a slave being counted as 3/5s of a person for purposes of apportioning representatives to Congress. This pragmatic but immoral beginning led to a series of actions over the next 70 years ultimately culminating in the Civil War and the end of slavery.
Important stops along the road to equality occurred before the Civil War, many of them negative. Among Congress' earlier actions was its enactment in 1793 of the Fugitive Slave Act (enforcing the part of the Constitution commonly called by the same name). Fifteen years later in 1808, a slight step forward occurred when the Constitutional bar to importing slaves came into effect. As the United States expanded west, Congress reached The Missouri Compromise of 1820 which banned slavery in the Louisiana Purchase north of the southern border of Missouri (but permitted it south of that line). One of the few bright spots occurred in 1841 in a case that inspired a movie, The Amistad, 40 U.S. (16 Pet.) 518 (1840), in which the Supreme Court held that free black men recently kidnapped from Africa could not be made slaves.
In 1850, confronted with the continued success of the Underground Railroad, which was made possible in part through the collective refusal of many residents in northern states to return slaves to the South, Congress again strengthened the Fugitive Slave Act. In 1854 Congress repealed the Missouri Compromise of 1820, nominally on the grounds that the new territories should be free to decide the issue themselves when they sought statehood. Then in 1857 the Supreme Court issued its infamous decision in Dred Scott v. Sanford, 60 U.S. 393, 19 How. 393 (1857), in which it held that slaves and descendents of slaves were not and could not be citizens of the United States, but rather were merely property.
Not all was well in the state courts in the north. In 1849 in Boston, Massachusetts, the idea of "separate but equal" schools based on race was approved by the Massachusetts Supreme Court. A few years later, in 1855, this result was overturned by the Massachusetts legislature.
With the adoption of the Reconstruction Amendments in the years immediately after the end of the Civil War, the U.S. Constitution became a new document constituting a new compact among the people, the states, and the federal government. The Civil War Amendments are: Amendment 13 (banning slavery) (1865); Amendment 14 (federal guarantee that states would provide due process and equal protection to everyone) (1868); and Amendment 15 (guaranteeing the right to vote regardless of race) (1870). In concert with and in furtherance of these steps toward making the United States more just, in 1866 and 1875 Congress enacted laws guaranteeing civil rights to the newly freed men, women, and children in the south. However, in 1872, in the accidentally aptly-named Slaughter-House Cases, the Supreme Court held that the 14th Amendment did not empower the federal government to protect citizens from discriminatory actions by the states generally. About a decade later, in 1883, in the bitterly ironically-named Civil Rights Cases, the Court held that the 1875 Civil Rights Act was unconstitutional and that the 14th Amendment did not empower Congress to reach private discriminatory conduct.
In the Post-Reconstruction period (Reconstruction ended in 1877) in the South, states enacted "Jim Crow" laws which were designed to keep the races separate and to keep blacks in a state of relative peonage. (From the Wikipedia (2004) on Jim Crow laws: "The term Jim Crow comes from the minstrel show song 'Jump Jim Crow' written in 1828 by Thomas D. Rice, a white man, the originator of blackface performance. The song and blackface itself were an immediate hit. 'Jim Crow' became a standard character in Minstrel shows, being a caricature of a shabbily dressed rural black; 'Jim Crow' was often paired with the character 'Zip Coon', a flamboyantly dressed urban black. By 1837, Jim Crow was being used to refer to racial segregation.") In 1896 in the case of Plessy v. Ferguson, the Supreme Court approved "separate but equal" as a constitutional interpretation of the 14th Amendment guarantee of equal protection under the law. The decision in Plessy was based only upon segregation on transportation facilities in Louisiana, but the case was taken to approve "separate but equal" as a constitutional principle that could be applied in education, restaurants, hotels, and more throughout the country.
In a series of cases before 1936, the Supreme Court allowed states to exclude blacks from voting by discriminatory voter registration regulations, to apply mandatory segregation laws to private schools, to uphold private discrimination in housing, and in general to discriminate against blacks. Two bright spots in this distressing series of decisions occurred in 1880 and 1917 in which the Supreme Court held that states could not discriminate on the basis of race in jury selection and in which the Supreme Court held that state-mandated restrictions on the sale of property violated the due process of law under the 14th Amendment, respectively.
From 1889 to 1920 more than 3000 people, mostly blacks, were lynched.
Changing the direction
In 1867 Howard University was created to educate former slaves and their descendants. Two years later the law school was opened. In the 1930s, ’40s, and ’50s, Howard University School of Law, together with the NAACP (founded in 1909) and the NAACP Legal Defense and Education Fund (founded in 1940), spearheaded a strategy that led to the end of government-sanctioned legal segregation.
The founder of the legal strategy and one of its most vigorous workers was Charles Hamilton Houston. It was Houston who, together with a team of lawyers he assembled, developed and implemented the strategy that led to the overruling of Plessy v. Ferguson in Brown v. Board of Education of Topeka, Kansas (1954). Although many equalization battles were being fought throughout the south in the 1930s and 1940s, with some success with respect to equalization of transportation, facilities, and teacher salaries, e.g., Alston v. School Board of Norfolk, Va.,112 F.2d 992 (4th Cir.), cert. denied 311 U.S. 693 (1940), Houston decided to take on the separate-but-equal principle directly.
In a series of cases the courts ordered integration in settings where separate could not be equal. For example, in 1936, Houston and Thurgood Marshall won a case against Maryland in which the Maryland Court of Appeals (the highest court in the Maryland judiciary) ordered that a black student be admitted to the University of Maryland Law School, which six years earlier had refused admission to Thurgood Marshall himself. Pearson v. Murray,182 A. 590 (Md. 1936). Marshall attended Howard University School of Law, where Houston was teaching and where Houston was functionally the dean.
Pearson v. Murray was followed by a string of federal cases which required Missouri, Oklahoma, and Texas to open graduate programs, especially in law, to African Americans because the states did not and could not provide separate and equal educational opportunities in those fields. Other successes were achieved in transportation and housing.
Between 1930 and 1954 Houston and Marshall recruited the best legal minds from Howard University School of Law, as well as a number of bright, young lawyers who had attended other law schools, to work with them around the country on equalization cases and on the new strategy of finding the right test cases to take to the Supreme Court. In addition to Houston and Marshall, James Nabrit, Spottswood Robinson III, A. Leon Higginbotham, Robert Carter, William Hastie, George E.C. Hayes, Jack Greenberg, and Oliver Hill were the braintrust of the group. There were a few others of some prominence along with many nameless others who contributed at all levels, especially in doing the critically important work at the trial level and working with people in their hometowns. The NAACP's attorneys and other civil rights attorneys working with them were harassed and subjected to all manner of attack, up to and including death threats, for their work.
The broader context
World War II had ended in 1945. The United Nations had been created and one of its first acts was to adopt in 1948 the Universal Declaration of Human Rights which required nations to prohibit discrimination on the basis of race, color, religion, sex, and national origin among other things. In 1948 President Truman ordered integration of the federal government and the military and ordered that they not discriminate on the basis of race. By 1950 the Cold War was well under way with competition between Russian communism and western liberalism around the globe, including throughout Africa which was then mostly still colonized. The United States was being rightly shown to be hypocritical for promoting non-discrimination and equality around the world while allowing apartheid in a significant portion of its territory, including in its capitol. A group of African Americans brought a claim against the United States under the newly ratified Genocide Convention seeking a declaration that the United States' actions against African Americans qualified as genocide. The case was dismissed on the grounds that only states had standing to assert such claims; individuals and groups could not.
The separate-but-equal doctrine had now become adverse to the broader, international interests of the United States in fighting the Cold War and the reality of inequality had been documented beyond dispute.
In the lower courts
In 1951 and 1952 years of coordinated work around the country came together with a number of trial court decisions on the issue of the continued viability of separate but equal. Five district courts in five cases from four different states, Kansas, Delaware, South Carolina, and Virginia, and from the District of Columbia all ruled on essentially the same issue: was separate-but-equal still constitutional? The state cases were based on the Equal Protection Clause of the Fourteenth Amendment while the District of Columbia case was based upon the Due Process Clause of the Fifth Amendment (denial of liberty by such discrimination; the 14th Amendment does not apply to the federal government).
The Supreme Court summarized the four state cases as follows (in footnote 1 of the Brown decision):
In the Kansas case, Brown v. Board of Education, the plaintiffs are Negro children of elementary school age residing in Topeka. They brought this action in the United States District Court for the District of Kansas to enjoin enforcement of a Kansas statute which permits, but does not require, cities of more than 15,000 population to maintain separate school facilities for Negro and white students. Kan. Gen. Stat. 1949, § 72-1724. Pursuant to that authority, the Topeka Board of Education elected to establish segregated elementary schools. Other public schools in the community, however, are operated on a nonsegregated basis. The three-judge District Court, convened under 28 U.S.C. §§ 2281 and 2284, 28 U.S.C.A. §§ 2281, 2284, found that segregation in public education has a detrimental effect upon Negro children, but denied relief on the ground that the Negro and white schools were substantially equal with respect to buildings, transportation, curricula, and educational qualifications of teachers. 98 F. Supp. 797. The case is here on direct appeal under 28 U.S.C. §§ 1253, 28 U.S.C.A. § 1253.
In the South Carolina case, Briggs v. Elliott, the plaintiffs are Negro children of both elementary and high school age residing in Clarendon County. They brought this action in the United States District Court for the Eastern District of South Carolina to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. S.C. Con st. Art. XI, § 7; S.C. Code 1942, § 5377. The three-judge District Court, convened under 28 U.S.C. §§ 2281 and 2284, 28 U.S.C.A. §§ 2281, 2284, denied the requested relief. The court found that the Negro schools were inferior to the white schools and ordered the defendants to begin immediately to equalize the facilities. But the court sustained the validity of the contested provisions and denied the plaintiffs admission to the white schools during the equalization program. 98 F. Supp. 529. This Court vacated the District Court's judgment and remanded the case for the purpose of obtaining the court's views on a report filed by the defendants concerning the progress made in the equalization program. 342 U.S. 350, 72 S. Ct. 327, 96 L. Ed. 392. On remand, the District Court found that substantial equality had been achieved except for buildings and that the defendants were proceeding to rectify this inequality as well. 103 F. Supp. 920. The case is again here on direct appeal under 28 U.S.C. § 1253, 28 U.S.C.A. § 1253.
In the Virginia case, Davis v. County School Board, the plaintiffs are Negro children of high school age residing in Prince Edward County. They brought this action in the United States District Court for the Eastern District of Virginia to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. Va. Const. § 140; Va. Code 1950, § 22-221. The three-judge District Court, convened under 28 U.S.C. §§ 2281 and 2284, 28 U.S.C.A. §§ 2281, 2284, denied the requested relief. The court found the Negro school inferior in physical plant, curricula, and transportation, and ordered the defendants forthwith to provide substantially equal curricula and transportation and to "proceed with all reasonable diligence and dispatch to remove" the inequality in physical plant. But, as in the South Carolina case, the court sustained the validity of the contested provisions and denied the plaintiffs admission to the white schools during the equalization program. 103 F. Supp. 337. The case is here on direct appeal under 28 U.S.C. § 1253, 28 U.S.C.A. § 1253.
In the Delaware case, Gebhart v. Belton, the plaintiffs are Negro children of both elementary and high school age residing in New Castle County. They brought this action in the Delaware Court of Chancery to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. Del. Const. Art. X, § 2; Del. Rev. Code, 1935, § 2631, 14 Del. C. § 141. The Chancellor gave judgment for the plaintiffs and ordered their immediate admission to schools previously attended only by white children, on the ground that the Negro schools were inferior with respect to teacher training, pupil-teacher ratio, extracurricular activities, physical plant, and time and distance involved in travel. Del. Ch., 87 A.2d 862. The Chancellor also found that segregation itself results in an inferior education for Negro children (see note 10, infra), but did not rest his decision on that ground. 87 A.2d at page 865. The Chancellor's decree was affirmed by the Supreme Court of Delaware, which intimated, however, that the defendants might be able to obtain a modification of the decree after equalization of the Negro and white schools had been accomplished. 91 A.2d 137, 152. The defendants, contending only that the Delaware courts had erred in ordering the immediate admission of the Negro plaintiffs to the white schools, applied to this Court for certiorari. The writ was granted, 344 U.S. 891, 73 S. Ct. 213, 97 L. Ed. 689. The plaintiffs, who were successful below, did not submit a cross-petition.
The Court summarized the case from the District of Columbia, Bolling v. Sharpe, as follows:
This case challenges the validity of segregation in the public schools of the District of Columbia. The petitioners, minors of the Negro race, allege that such segregation deprives them of due process of law under the Fifth Amendment. They were refused admission to a public school attended by white children solely because of their race. They sought the aid of the District Court for the District of Columbia in obtaining admission. That court dismissed their complaint. The Court granted a writ of certiorari before judgment in the Court of Appeals because of the importance of the constitutional question presented.
In the Kansas case the court was directly confronted with a situation where the schools were "equal" in externals such as buildings, transportation, resources, and faculty salaries. In the South Carolina and Virginia cases, courts had found inequality of resources and ordered equalization, but did not order integration pending equalization. In Delaware the court found inequality of resources and ordered integration with the right of the state to petition for relief from the order in the event the resources were in fact equalized. In the District of Columbia the question of equalization was not raised, the attorneys instead opting for a frontal attack on the legal point only.
The four state cases were consolidated for appeal with the District of Columbia case being considered at the same time, but not consolidated due to the different issue. They were later consolidated for consideration of the remedy.
Round 1 in the Supreme Court
The cases were argued before the court in 1952 before a split court. Four justices were solidly in favor of overturning Plessy. The others were either clearly for not changing the law or were leaning that way. Chief Justice Vinson favored letting Plessy stand, particularly in light of more than 50 years of Congressional acquiescence in it. (Cass R. Sunstein, "Did Brown matter? On the fiftieth anniversary of the fabled desegregation case, not everyone is celebrating," The New Yorker p. 102 (May 3, 2004)). Two other justices were in favor of states rights or were simply not in favor of overturning segregation. The final two were very reluctant to overturn long-standing precedent, regardless of the issue at stake. The court took the unusual act of setting the case for reargument the following term, in 1953. As noted by Sunstein: "In September of 1953, just before Brown was to be reargued, Vinson died of a heart attack, and everything changed. 'This is the first indication that I have ever had that there is a God,' [Justice] Frankfurter told a former law clerk." President Eisenhower appointed Earl Warren, Governor of California, as the next chief justice.
Round 2 in the Supreme Court
After reargument in 1953, the new Chief Justice was able to craft a unanimous decision that in the field of education separate cannot be equal. As stated by Chief Justice Warren: "We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal." This decision sounded the death knell for Plessy's state-sanctioned separation as a constitutionally viable principle. The four state cases were decided on the basis of the Equal Protection Clause of the Fourteenth Amendment.
The companion case, not yet consolidated with Brown, out of the District of Columbia, Bolling v. Sharpe, was decided at the same time, but in a separate opinion. The court again unanimously agreed that separate but equal was unconstitutional. This time it was held unconstitutional as a denial of the right of liberty under the Due Process clause of the Fifth Amendment, thus binding the federal government as well as the states to the single principle of separate is not equal in education.
The court wanted further argument on the remedy and consolidated Bolling with Brown and the other three cases for argument the following year on the remedy.
Round 3 in the Supreme Court
The court ordered desegregation of all schools "with all deliberate speed." Thereupon followed decades of resistance in some areas of the country and the still ongoing debate about the meaning of Brown for matters such as affirmative action.
In 1832 the Supreme Court, under Chief Justice John Marshall, ruled that the Cherokee Indian's treaty with the United States was valid and binding on the United States and that it could not be unilaterally abrogated by state or Congressional legislation. Worcester v. Georgia, 31 U.S. 515 (1832). President Jackson's purported response was, "John Marshall has made his decision. Let him enforce it now if he can." The non-enforcement of the Court's decision permitted the Trail of Tears relocation of Native Americans from east of the Mississippi to a reservation (what became the State of Oklahoma) west of the Mississippi.
President Eisenhower took a different approach: In 1957 he sent troops to Little Rock, Arkansas to enforce Brown.
The next year, in 1958, the Supreme Court was confronted with assertions by states and state officials that they were not bound by Brown because they had not been parties to the suit in Brown and that under principles of state sovereignty, the federal courts had no power to reach them. The Supreme Court ruled explicitly that states and state officials, including municipal officials and school boards, were indeed bound by Brown and that because of the Civil War Amendments, especially the Fourteenth Amendment, the states and state officials were under the jurisdiction of the federal courts for these issues. Cooper , 358 U.S. 1 (1958).
Official disobedience to the law of the land continued in many parts of the south and in other segregated areas of the country. Private schools were created to maintain segregation. In Virginia a county shut down its schools entirely for five years rather than integrate. Griffin v. County School Board of Prince Edward County, 377 U.S. 218 (1964). In 1968 the Supreme Court was still needing to issue decisions mandating the elimination of the vestiges of segregation "root and branch." Green v. County School Board of New Kent County (Va.), 391 U.S. 430 (1968). It was not until 14 years after the infamous "all deliberate speed" rhetoric of Brown II that the Supreme Court finally ruled that time had finally run out and compliance was overdue. In Alexander v. Holmes County Board of Education, 396 U.S. 19 (1969), the court held that "The obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools. "
In the 1970s resistance to court-ordered busing continued; school districts were gerrymandered to maintain segregation; and state and local attempts to support private segregated schools continued. The federal courts continued to play an active role in implementing the mandate to dismantle the vestiges of segregation.
At the same time, the reach of remedial action in schools was beginning to be limited by the court. Integration was not the end in itself. State-sanctioned segregation was prohibited, but proportional integration was not required. If schools were segregated because of uncoordinated private decisions about where to live, no provision of the constitution and no statute was violated. Once desegregation had been achieved, resegregation through demographic change did not require constantly changing the compliance orders.
By the mid-1980s and continuing through the 1990s, school districts were starting to be relieved of court supervision of desegregation plans. States did not need to force integration; they only needed not to engage in discrimination and segregation.
In an attempt to achieve integration and equal opportunity, many states and private institutions, especially colleges and universities, created affirmative action programs under which they sought to take affirmative steps to redress historical racial imbalances. These programs were challenged on the grounds that they themselves violated equal protection because they were giving preferences to people on the basis of race. The issue thus became: Was inclusive discrimination constitutional or was all recognition of race in decision-making a violation of equal protection? Could states act in favor of including some historically disadvantaged groups in order to try to redress the received unfairness, as a group?
The answer today is generally in the negative, with some small space for race to be considered still. In 2003, the Supreme Court ruled that states can still take race into account, but must do so in an individualized way as part of an overall assessment of the individual. Grutter v. Bollinger, 123 S. Ct. 2325 (2003). In 2007 the Court, in a 4-1-4 split decision, effectively narrowed Grutter to its facts and all but ruled out using race as a means for advancing societal interests in diversity and integration. Parents Involved v. Seattle School District No. 1, 127 S.Ct. 2738 (2007). Five justices held that strict scrutiny applies to all racial classifications so that the state needs to show a compelling state interest and to show that the classification was narrowly tailored to achieve the compelling end sought. There was some disagreement among the five about what constituted a compelling interest and about how the narrowly-tailored prong was to be applied. Four justices joined in an opinion that held that race could be used as a factor only (1) when remedying past de jure discrimination and (2) when used as a minor factor mixed in with many others for making individualized assessments of applicants to post-secondary educational institutions.
One justice wrote a concurring opinion that racial integration and diversity were permissible aims, but that race should not be used to achieve those aims unless the school board could show that no other means would achieve the desired and persmissible results.
Four dissenters would have applied intermediate scrutiny in situations where race is used to include rather than to exclude. The intermediate standard proposed was that the state need only show that an important interest (such as diversity) was being served and that the means chosen were proportionate or closely related to accomplishing those ends. They also would have found that racial diversity is a compelling state interest and that the use of race is a permissible means to accomplish that end.
The effect of the Parents Involved decision is that governmental affirmative action programs based on race can be used only to remedy ongoing de jure discrimination. Though lip service was paid to Grutter, it was narrowed to the vanishing point with respect to using race as an effective factor. Diversity as a compelling interest received five votes, but the interpretation of it by the swing vote (Justice Kennedy) narrowed it significantly by limiting the use of race as the means to achieve racial diversity and integration to only those instances where all other means and bases of classifications, like geography or economic status had been exhausted.
Howard University was founded in 1867, two years after the end of the Civil War, to provide education for freed slaves and their descendants. Though the expression of the mission and the focus of it has kept pace with the changing times, including providing leadership for the United States and the world community, the driving purpose remains much the same -- to provide educational opportunities to exceptional students with particular focus on promising African American students.
Two years after the founding of Howard, the Law School was founded in 1869. (HUSL's history) Perhaps at no time and in no setting has the dedication to the mission and fulfillment of it been more evident than in the work involving the law school and Howard University generally leading up to and in seeing to the implementation of Brown v. Board of Education. The main architect of the strategy that led up to Brown was a professor and dean at the law school, Charles Hamilton Houston. His drive and vision and talent led to the creation of a team of dedicated lawyers who worked tirelessly in the decades leading up to Brown and in the decades thereafter to make it a reality. Houston participated in most of the cases involving the NAACP and the LDF until his death in 1950.
Thurgood Marshall was denied admission to the University of Maryland School of Law in 1930. He then attended Howard University School of Law, graduating first in class in 1933. One of his first major cases was a suit against the State of Maryland to admit blacks to University of Maryland's law school; Marshall won. Marshall was the founder of the NAACP Legal Defense and Education Fund and counsel to the NAACP for many years. He was one of the lead attorneys on the Brown case and argued it before the Supreme Court.
Other lawyers with a close connection to Howard who were deeply involved in paving the road to Brown and in making it a reality after the decision include: George E.C. Hayes (’18); Oliver Hill (’33); Spottswood Robinson III (’39) who taught at the law school from 1939-1947 and served as its dean from 1960-64; Robert Carter (’40); James M. Nabrit Jr. who taught at the law school beginning in 1936 and served as its dean from 1958 until 1960 when he became Howard University's president; and Julian Dugas (’49) who worked on Bolling and who has taught at and been associated with the law school for more than 50 years. A number of these attorneys went on to become highly-respected federal judges.
Howard Law's connection was not only through the lawyers it trained and the professors who taught there. The Brown braintrust also used the law school resources in many ways including for legal research, for practice arguments, as a meeting place for discussion, and as a source for the many lawyers who spread out throughout the South working in local communities for social justice. These luminous leaders did not do it themselves; they had the support of many who they molded into social engineers and dedicated lawyers. Howard provided lawyers, leaders, and resources that proved critical to undoing Plessy.
The tradition continued after Brown, for the work was not done. Even after doors began to open to African Americans at other law schools around the country in the late ’60s and ’70s, Howard continues to have as its core mission advancing the cause of social justice in many of its protean manifestations, including economic empowerment through such programs as the Institute for Intellectual Property and Social Justice.
The impact of Brown on the law has been immense. Ten years after Brown was decided, the Civil Rights Act of 1964 was enacted giving statutory rights enforceable against private corporations and others. The statutory rights are significantly more far reaching than the more fundamental, but narrower, constitutional rights enforceable only against state and local governments. The Civil Rights Act of 1964 was followed a year later by the Voting Rights Act of 1965 and then the Fair Housing Act of 1968. Discrimination became unlawful not just on the basis of race, but also on the basis of color, national origin, religion, and sex. Over time the laws were expanded to ban discrimination on the basis of disability and age. The principle of non-discrimination became the norm in employment, education, housing, transportation, and public accommodations such as hotels and restaurants.
Through these federal laws and through the adoption of many similar state and local laws, both official and private discrimination in many important parts of the very fabric of society became unlawful. That was, at the time, a stunning achievement, howsoever much we may take it for granted today.
Brown essentially recast the entire frame of reference of equality for the past 60 years.
The importance and impact of Brown on the country and the movement toward social justice cannot be overstated. Although it did not accomplish all that was hoped for, it accomplished much. The United States would be very different today without it. Virginia was intransigent in resisting desegregation, going so far in certain communities as to close down the school system entirely. And yet, as a measure of the changes wrought within two generations, Virginia elected an African American as its governor in 1990: L. Douglas Wilder (HUSL ’59) (he could not have attended the University of Virginia Law School because he was black).
A measure of the importance of Brown to the African-American community was expressed eloquently by Martin Luther King, Jr., when during an address to the Urban League in 1960 he listed several important factors contributing to black pride. Among the factors was this: "For all men of good will May 17, 1954, came as a joyous daybreak to end the long night of enforced segregation. . . . It served to transform the fatigue of despair into the buoyancy of hope." Martin Luther King Jr., “The Rising Tide of Racial Consciousness,” I Have A Dream: Writings and Speeches That Changed the World, p. 65 (James M. Washington, ed. 1986 Harper San Francisco).
Brown not only inspired the racial Civil Rights Movement, but it inspired others as well. The women's rights movement, rights for disabled, rights for the aged, and now rights for homosexuals all have looked to the racial Civil Rights Movement for inspiration and strategies about how to the use of the legal system for to advance social justice and equality for everyone.
Brown v. Board of Education has its critics. For the most part the criticisms relate more to disappointment that things have not moved more quickly or that the vision of some of a colorblind society has not been realized. The work symbolized by Brown, the work of advancing the cause of social justice, is never ending. Nonetheless, the fundamental changes wrought by Brown have been for the better.
Despite the advances Brown achieved and those it sparked, the law of unintended consequences applies. Schools are still segregated, though not as a result of laws mandating segregation. People often still judge people on the basis of the color of their skin. Within schools students form groups along racial lines. Some people in power still sometimes discriminate on the basis of race. Racial profiling continues. Some of the African American economic and social infrastructure throughout the south was dismantled along with segregation with some loss of autonomy and economic empowerment. And there is much work yet to be done.
Furthermore, although the need for affirmative action is obvious, Brown can be turned either way: for affirmative action or against it and in favor instead of a technical (though empirically false) colorblind approach to equal protection. Brown is also about freedom for groups, but the current Supreme Court tends to think of freedom as purely an individual matter. This creates tensions in the law as well.
At a minimum Brown stands for the fundamental proposition that the government cannot, "by law, separate citizens from one another by race, simply because forcible separation imposes a kind of stigma, or second-class citizenship, that offends the most minimal understanding of human equality." Cass R. Sunstein, supra, p. 106. Brown eliminated the state-sanctioned separate-but-equal of Plessy and set the United States law back on the right track toward "a more perfect union" and toward more genuine social justice, but it did not do or decide everything.
Brown did not promise a perfect world. It did not presume to set in motion all that needs to be done to perfect society for the general welfare of all. But it did remove a logjam in the river of justice by overturning Plessy and prohibiting states from mandating separate treatment on the basis of race. It did cause a spark of hope and led to three decades of progress. Challenges remain, particularly with respect to economic disparities and full access to equal treatment and equal dignity not only under law, but also within the full polyglot culture.
We have grafted the vision of universal social justice onto Brown, but it is not in the case. Brown just stated that separate is not equal and that the state cannot create second-class citizens on the basis of race. The rest of the work is still up to us.
Genna Rae McNeil, Groundwork: Charles Hamilton Houston and the Struggle for Civil Rights (U. Pa. Press 1983)
Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality (Vintage Books 1975)
Cass R. Sunstein, "Did Brown matter? On the fiftieth anniversary of the fabled desegregation case, not everyone is celebrating," The New Yorker p. 102 (May 3, 2004)
Jack Greenberg, Brown v. Board of Education: Witness to a Landmark Decision (Twelve Tables Press 2004)
Jack Greenberg, Crusaders in the Courts: Legal Battles of the Civil Rights Movement (Twelve Tables Press 2004)
Martin Luther King Jr., “The Rising Tide of Racial Consciousness,” I Have A Dream: Writings and Speeches That Changed the World, p. 65 (James M. Washington, ed. Harper San Francisco 1986)
Waldo E. Martin, Jr., Brown v. Board of Education: A Brief History with Documents (Bedford/St. Martins 1998)
William L. Patterson, ed., We Charge Genocide: The Historic Petition to the United Nations for Relief from a Crime of the United States Government against the Negro People (Civil Rights Congress 1951)
Mark V. Tushnet, Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936-1961 (Oxford University Press 1994)
Mark V. Tushnet, The NAACP's Legal Strategy against Segregated Education, 1925-1950 (U. North Carolina Press 1987)
Juan Williams, Thurgood Marshall: American Revolutionary (Three Rivers Press 1998)