Brown at 50
Prior to the landmark Supreme Court rulings in Brown v. Board of Education and Bolling v. Sharpe, the US government and the states were permitted to segregate students racially in primary and secondary public schools. The official rationale for this arrangement was that students--black as well as white--would all fare better in their own, racially distinct schools. Schooling would be separate...but equal, and thus fair. The "separate but equal" formula was coined in Massachusetts in 1850 but elevated to national influence in 1896 when, in Plessy v. Ferguson, the Supreme Court affirmed the constitutionality of a Louisiana statute that required racial segregation on trains.
Dissenting in Plessy, Justice John Marshall Harlan stated forthrightly what everyone actually knew: that racial segregation arose not from any mutual, reciprocal, respectful desire for social distance and group autonomy but rather as an expression of white supremacist subordination of people of color. Noting that segregation proceeds "on the ground that colored citizens are so inferior and degraded" that they cannot be allowed to share public space with whites, Harlan predicted that segregation would "stimulate aggressions...upon the admitted rights of colored citizens," "arouse race hate" and "perpetuate a feeling of distrust between [the] races."
The half-century after Plessy confirmed Harlan's dire prophecies. White supremacists bent on undoing the gains achieved during the Reconstruction Era disenfranchised blacks, severely limited their economic and educational opportunities, terrorized them through mob violence and systematically stigmatized them by extending segregationist laws and customs to practically every sphere of social life, from hospitals to prisons, beaches, restaurants, bathrooms and schools. In some courtrooms, witnesses of different races were required to take oaths on separate Bibles.
On May 17, 1954, the Supreme Court in Brown invalidated state laws requiring or permitting racial segregation in public primary and secondary schools. Such laws, the Court concluded, violate the equal protection clause of the Fourteenth Amendment. Simultaneously, in Bolling the Court held that the due process clause of the Fifth Amendment prohibited the federal government from racially segregating students in the District of Columbia. "In the field of public education," the Court declared, "the doctrine of 'separate but equal' has no place."
These decisions marked a major step forward in the struggle for racial justice--one that surely warrants commemorating on its fiftieth anniversary. The rulings reflected and encouraged developments that would soon spark that burst of humane, bold and heroic action we now know as the civil rights movement. Brown and Bolling stemmed from an extraordinary campaign of social reform litigation mainly led by black attorneys who had themselves suffered cruel deprivations imposed by segregation. These decisions demonstrated that at least some sectors of the white establishment were willing to begin cautiously to challenge open, unembarrassed, official discriminations against blacks and other peoples of color.
Although Brown and Bolling are often lauded as "eloquent" opinions, they were in fact remarkably modest in their rhetoric, their scope and their remedial approach. Seeking to create a unanimous decision in the face of ambivalence and resistance from some of his colleagues, Chief Justice Earl Warren intentionally penned opaque and non-accusatory opinions keenly attentive to the sensibilities of segregationists. As a result, the language of the opinions had "all of the moral grandeur of a bill of lading," as the historian Richard Hofstadter once said of another enormously consequential declaration, the Emancipation Proclamation. One looks in vain in Brown and Bolling for the candid and vivid articulation of segregation's purpose that one finds in Justice Harlan's dissent in Plessy. One looks in vain for a reckoning with segregation which explains that it was what Professor Charles Black termed a "child eating lie," one of many ways in which white supremacists armed with state power kept blacks in "their place." The sobering fact is that in 1954 the Supreme Court of the United States could not yet tell the truth about segregation.
Although Brown and Bolling are often celebrated as if they invalidated official segregation broadly, the opinions only expressly struck down de jure segregation in schooling. Only after a long, difficult campaign by civil rights activists did the Court extend its antisegregationist logic to other areas. For example, despite attempts soon after Brown to prod the Court to invalidate segregation at the marriage altar, it was not until 1967 that the Justices got around to striking down remaining state laws prohibiting matrimony across the race line.
Usually courts grant a remedy to prevailing petitioners. In Brown and Bolling, however, the Court rejected the plaintiffs' demands to be permitted immediately to attend schools on a nonracial basis. Instead, after yet another hearing on the matter, the Court deferred to "moderate" segregationists by making clear that it would refrain from insisting upon a quick transition to nonracial schooling. It would suffice, the Court declared, for desegregation to proceed "with all deliberate speed." A full decade after Brown and Bolling, a little more than 1 percent of black children in the former Confederate states attended schools that were at all desegregated.
The Supreme Court decisions of May 1954 did not mark the end of purposeful, state-mandated racial segregation in public schooling; they marked only the beginning of a new phase of struggle. The reformist Justices of the Supreme Court played an important role in that struggle. But it would be wrong to permit their handiwork to eclipse the achievements of activists such as Medgar Evers, Modjeska Simkins, Fannie Lou Hamer, Myles Horton, James Reeb, Robert Moses, Septima Clark, Ella Baker, James Farmer, Thurgood Marshall, Roy Wilkins and John Lewis--people who, assisted by Brown and subsequent rulings, attempted with considerable success to uproot segregation and its kindred abominations. Brown's symbolic stature today would be much diminished were it not for the accomplishments of the civil rights movement--its leveling of racial barriers beyond the reach of litigation, its elevated image of the black American and its impressive legislative legacy, particularly the Civil Rights Act of 1964 and the Voting Rights Act of 1965.
We invited a wide range of commentators to participate in this special issue of The Nation, and they offer varying, sometimes conflicting assessments of Brown, its companion cases and its legacy. Judge Robert L. Carter revisits his ideas and motivations as one of the lead attorneys who argued the cases at trial and on appeal. Michael J. Klarman reconsiders the social milieu that surrounded the 1954 Supreme Court and evaluates Brown's place in civil rights history. Jack Bass shows how a remarkable cadre of progressive judges in the lower federal courts (most of them Republican appointees) were critical to enforcing Brown's mandate. Alan Richard returns to Clarendon County, South Carolina, to probe lingering tensions in a rural locale where school desegregation plaintiffs fifty years ago were brutally repressed. Michael Honey illuminates the ways in which desegregation struggles have intersected with efforts to advance the interests of urban black workers. Peter Schrag and Claude M. Steele each offer concrete strategies for improving the lot of disadvantaged minority students today. And the diverse participants in the forum that follows weigh the impact of Brown on an American society still afflicted by profound racial inequalities.
A recurrent message in this issue is that Brown v. Board of Education and its companion cases contributed in a major way to bettering America by delegitimizing racial segregation in public schooling. A second key theme, however, is that Brown's promise remains, to a considerable extent, unfulfilled. Jim Crow schooling is not a wrong inflicted in ancient times on people long since dead; it is an all too recent injustice that created unhealed wounds. A century ago, W.E.B. Du Bois wrote the famous words, "The problem of the twentieth century is the problem of the color line." Despite all that has changed since Brown, his words remain a challenge for the twenty-first.