Thanks to the civil rights revolution, de jure segregation is dead. But vast social, economic and educational inequalities continue to plague American society. Moreover, while the black-white paradigm has never fully described American race relations, we are far more aware today than in the past of the multiracial nature of our society. With this in mind, we asked a range of scholars, writers and activists to reflect on the legacy of Brown and the prospects for future change. Should education be the primary focus of social activism? What strategies will most effectively promote educational betterment in black and other communities? Can we expect the courts to play a role at the forefront of change, as they did for much of the 1950s and '60s, and if not, what other institutions are positioned to adopt that role? Is the goal of educational desegregation irrelevant today? Their responses follow.    --The Editors

Frank H. Wu

The 1954 Supreme Court decision in Brown v. Board of Education is perhaps the most important judicial ruling in the history of our diverse democracy. It deserves to be more than merely symbolic, as admired as it is empty. Ever since the Justices ruled that the doctrine of racial segregation was constitutionally wrong, even if it were somehow hypothetically separate but equal (never mind that separate had never been equal), much of the nation has engaged in "massive resistance," even shutting down public schools rather than admit black students.

Ironically, passive indifference has succeeded where massive resistance failed. The orders of desegregation have not created an imperative for integration. To the contrary, the High Court has rendered judgments since Brown that insure its ineffectiveness. The Court has, for example, endorsed racial divisions if they coincide with city-suburb boundaries, and has accepted racial patterns that emerge from housing choices.

Even at the level of technical doctrine, it is not clear what Brown means--if it means anything substantive at all. The controlling precedent for the interpretation of the Fourteenth Amendment's guarantee of equal protection has become, instead of Brown, the cases allowing the internment of Japanese-Americans during World War II. It was not Brown but Hirabayashi v. United States and Korematsu v. United States that created the notion of "strict scrutiny" as it applies to racial classifications. Indeed, a law school graduate sitting for the bar exam could not be fairly tested on the implications of Brown but must be able to recite the factors involved in strict-scrutiny review.

This is bizarre. After all, Brown was a case everyone understood to be about race, arising from the ongoing subjugation of African-Americans, in which the Justices unanimously reached a result that virtually all now celebrate as right. In contrast, Hirabayashi and Korematsu were cases the majority denied were about race, addressing the situation of Japanese-Americans during the alleged exigencies of wartime, in which the Justices were divided but acquiesced in a government program virtually all now condemn as wrong.

We can confirm the demotion of Brown and the accompanying promotion of Hirabayashi and Korematsu by reading the Supreme Court's affirmative action opinions. In Bakke, Adarand and the recent University of Michigan litigation, the Justices have cited not Brown but Hirabayashi and Korematsu. They have insisted that efforts to remedy racial discrimination, like any bigotry of the Jim Crow era, must conform to strict-scrutiny review. When Justice Sandra Day O'Connor announced that diversity was a compelling state interest and the use of race as a factor was narrowly tailored, she was finding that affirmative action passed the strict-scrutiny test.

Supporters of affirmative action invoke the spirit of Brown; opponents of the programs complain that there is no comparison to be made. Yet if Brown is to stand for something, ought it not at least to stand for the proposition that, if we believe we must have institutions that are inclusive, we also should take action to insure that they are so?

---

Frank H. Wu, a professor of law at Howard University, is the author of Yellow: Race in America Beyond Black and White (Basic).

• « Previous
• 1
• 2
• 3
• 4
• 5
• 6
• 7
• 8
• Next »

• Get The Nation at home (and online!) for 75 cents a week!
• If you like this article, consider making a donation to The Nation.