Brown v. Board of Education Turns 63

Brown v. Board of Education Turns 63

There are only a handful of Supreme Court cases that seep their way into the general culture, but 1954’s Brown v. Board of Education is certainly one of them. The website Ranker, which asks readers to vote on various topics, lists the case as the third most important Supreme Court case based on its non-scientific voting system. Meanwhile, legal publisher HeinOnline said the case was the most important case ever decided by the Court, topping Roe v. Wade.

Part of the reason for Brown’s enduring legacy is the very real legal impact of its ruling. Perhaps more importantly, though, the case was a signal achievement for progress in the United States and one of the best exemplars of the United States living up to the phrase in the preamble of the Constitution, “in order to form a more perfect union.” If that union could overcome the stain of slavery and grant equal rights to all citizens, surely the country must, as Martin Luther King, Jr. eloquently stated, be ‘bending toward justice.” Right?

Sixty-three years after the landmark ruling, legal segregation may still be abolished, but the cultural and economic segregation that the ruling tried to address continue to linger.

When Brown was decided, Plessy v. Ferguson had been the law of the land for fifty-eight years. Homer Plessy was a creole man, someone of mixed white, Native American, and black ancestry, living in New Orleans. He decided to challenge a Louisiana law segregating railway cars by getting arrested and arguing against the Constitutionality of the law on the basis of the 14th Amendment, which incorporated the equal protection clause to states in addition to the Federal Government.

“The Great Dissenter,” Justice Harlan. An often forgotten hero.

When the case made it to the Supreme Court in 1896 there was little sympathy for Plessy’s position. A 7-1 majority ruled that separate was not inherently unequal and so there was no Constitutional prohibition on legal segregation. The lone dissenter was the courageous, Kentucky-born John Harlan. Growing up in Kentucky may have allowed Harlan to more fully understand the starkly unequal treatment that black and white Americans received through segregated facilities. He wrote, in part:

“We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with a state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow-citizens, our equals before the law. The thin disguise of ‘equal’ accommodations for passengers in railroad coaches will not mislead any one, nor atone for the wrong this day done.”

Of all the desegregation fights, education was the most critical and most difficult. Many white families were horrified at the thought of their children being educated side by side with black children. Worse, they feared their kids may even become friends, or in the worst scenario of all, marry each other.

By the 1950s, activists in conjunction with the NAACP felt the time was right to begin challenging Plessy on the basis that segregated schools violated the Constitution. Several of these cases became consolidated at the Supreme Court level. Before the Court could rule, Chief Justice Fred Vinson died of a heart attack on September 8, 1953, and Earl Warren was nominated by President Eisenhower to fill the vacancy.

Vinson had consistently ruled that segregation was legal so long as adequate facilities are maintained for both legal groups. Draft decisions and notes indicate that if the vote was held while Vinson was alive, it was very likely to have been a 5-4 decision in favor of upholding segregation. No one was quite sure how Earl Warren would vote, though. Warren proved not only to come down on the right side of history but as the former Governor of California demonstrated his shrewd political skills.

Warren let it be known that he was going to vote to strike Plessy and voiced his opinion that the only way a vote against striking it could be maintained was if a Justice held to the belief that a black child is inferior to a white child. That changed the circumstances dramatically. With Warren on the Court, the other Justices knew how the case would be decided. The only question was the vote. They were faced with the choice of being on the right side of history or casting a symbolic vote that would not change the decision.

Warren had good reasons for exercising patience and getting a unanimous vote. Had there been a dissenting opinion, it would have inflamed Southern opinions and implementing the Court’s decision, already challenging, would be made even more difficult.

The Warren Court, 1953.

After reviewing the procedural history of the case, Chief Justice Warren announced the decision of the Court on May 7, 1954:

“We conclude that, in the field of public education, the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.”

It was a pivotal moment in America’s history. But, in many ways, the challenges were just beginning. When it came time to implement the decision, the Court demurred, choosing instead to allow southern school districts the opportunity to slowly integrate and become accustomed to de-segregation. But, they never did. A full ten years after Brown, a school district in Virginia chose to close its doors rather than integrate. Gains were made slowly and in large measure by increased Court supervision as well as a more open stance towards integration by the other two branches of government. But, by 1991, the Court took a major step in ending its own supervision of desegregation in its ruling in Board of Education of Oklahoma City v. Dowell.

The situation is barely better today. In part that’s because housing throughout the country continues growing more and more segregated and perhaps also, in part, because the views we like to believe we hold are not as evolved as we hope. It is perfectly clear that more often than not when school districts are left to their own devices, free from Court supervision, they have chosen implicitly or explicitly policies that increase segregation. Even those districts that tried to encourage integration found themselves up against serious challenges to doing so.

Some school districts developed programs that encouraged parents to exercise greater latitude on where their children attended school and combined the choices of the family with diversification measures to encourage racially diverse schools. The Court struck down those programs in 2007. The decision of Parents Involved v. Seattle School District equated those racially based school assignments to segregation prior to Brown. Chief Justice Roberts famously wrote, “The best way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Nice rhetorical flourish, but it just does not have the same ring to it as the plainspoken “We conclude that, in the field of public education, the doctrine of ‘separate but equal’ has no place.”

Overwhelming evidence suggests the school systems are continuing to become more and more segregated. One stark example is the percentage of black students in the south which attend majority white schools. At its peak, the number reached more than 40%, but now it’s back down to 23% – the same level as 1968.

Percentage of southern black students attending majority white schools, 1954-2011.

There are multiple reasons why this is so deeply troubling. One of those reasons is that children are not being exposed to diverse backgrounds during their formative years. Parents opposing desegregation were right about one thing: if students attend school together, they are likely to learn how to get along and realize that skin color has little relevance in judging character. Without that opportunity, it is far easier for those students to buy into stereotypes or believe that skin color really does separate people when they reach adulthood.

Then there is the more obvious problem of being faced with the reality that skin color is a major determinant of educational success when schools are segregated. By denying quality education to parts of the population, we are not making a successful life harder for some, but we potentially deny ourselves the opportunity to benefit from the achievements and accomplishments of children who would have made them had they been more properly educated.

The success of the civil rights movement rested on empathy more than any other quality. Non-violent protest forced supporters of a segregated system to come to terms with the system they supported. It is easy to lie to yourself. To tell yourself that separate really is equal or that black students really do get the same opportunities as white students. When you watch the National Guard escort a little girl to school so she is not harmed, or when you see law enforcement officials savagely beat a man for peacefully sitting at a lunch counter, or when you see ordinary people decimating the bodies of men so badly they are near death because they advocated equality in bus seating – what is most human within you is provoked such that you cannot abide your past viewpoints.

Most people continue to be wired to relate to others and receive a fair shot at achieving their dreams. But, today it has become far too easy to lie to ourselves and tell ourselves that problems of racism are solved. Before we can even contemplate detailed solutions to the problem, we need to be honest with ourselves and admit the problem exists.

In the next sixty-three years, we will either confront our revived segregation head-on or acquiesce to living in a world where the spirit, if not the law, of Plessy, is forced upon us.

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