Slate's Bizbox
jurisprudence: The law, lawyers, and the court.

The Battle Over BrownHow conservatives appropriated Brown v. Board of Education.

By Risa Goluboff
Posted Monday, July 2, 2007, at 3:33 PM ET

(Continued from page 1)

At the time, that strategy made a lot of sense. The main goal in Brown was to overturn Plessy v. Ferguson. In upholding segregation in 1896, Plessy had said that a governmental racial classification was not, in and of itself, constitutionally harmful. In order to argue that indeed a state racial classification could be unconstitutional, the lawyers in Brown (and the court, in turn) deliberately left problems of substantive equality to one side.

Thus—much as we might wish it otherwise—the conservatives' modern distortion of Brown is embedded in the case itself. Justice Breyer laments that "Brown held out a promise." That it did. But even then, and especially in the ways it has been read since then, that promise was already in some sense lost in 1954. By the time the Supreme Court decided the case, the question of material equality, of truly meaningful outcomes, had been sacrificed to formal nondiscrimination, and was thus already off the table in the legal imagination.

Before Brown, lawyers had attempted to challenge not only the stigma of state-mandated segregation, but also the public and private, racial, economic, political, and social harms that flowed from the massive and complex system of racial and economic subordination that was Jim Crow. The civil rights law they aimed to construct would have prohibited state-mandated segregation, to be sure. But that was only the starting point for a fundamental transformation of the American racial caste system.

Such a transformation required challenges to government policies in education, employment, voting, housing, and more, as well as to the policies adopted by private employers and business owners. The civil rights movement aimed to create true, substantive equality with integrated schools and workforces, with average incomes and academic achievement at the same level. Upending the clearly wrong premise of Plessy—that governmental classifications passed by all-white legislatures in states where African-Americans could not vote placed no stigma on African-Americans—was certainly part of this process. But it was only a part.

No doubt, a single case would have been hard-put to tackle both state-mandated segregation and de facto segregation and inequality; to have undone Plessy and simultaneously decreed substantive rights to integration or material equality. And certainly, readings of Brown as portending actual integration and not simply an end to state-mandated segregation are still possible.

But once Brown was constructed as it was, Jim Crow became synonymous in popular understanding with state-mandated segregation. And the answer to Jim Crow became the "color-blind Constitution." If the Constitution is color-blind, goes the reasoning of today's conservatives, then the harm of classification is felt no less when intentions for racial progress are good than when they are bad; and no less by white schoolchildren than by black ones.

Of course, Justice Stevens is right to point out that none of his brethren in 1975 would have understood Brown and its progeny in the cramped way the court does today. Cases after Brown sought to address de facto segregation, too. And the Warren Court found ways to redress the material harms, and to facilitate actual integration. But that jurisprudence always fought against the canonical image that Brown had created; an image of Jim Crow as a problem of state classification and of civil rights as a solution to that problem. The court found ways—when it wanted—to circumvent and to expand the limited vision of civil rights Brown had led lawyers, laypeople, and judges to embrace. But that vision remained the constraint, just as it does today.

The fact that Brown itself offers up a formalistic vision of racial harm does not preclude it from offering up other visions. It does mean, however, that when the dissenters accuse the court of forsaking the promise of civil rights, to some extent they merely point out a promise that was, in fact, broken half a century ago.

VIEW AS SINGLE PAGE
Print This ArticlePRINTDiscuss this in The FrayDISCUSSEmail to a FriendE-MAIL
Share on FacebookPost to MySpace!Share with MixxDigg ThisShare with RedditShare with del.icio.usShare with FurlShare with Ma.gnolia.comShare with SphereShare with Stumble Upon
Risa L. Goluboff is professor of law and history at the University of Virginia and the author of The Lost Promise of Civil Rights.
Photograph of Chief Justice John Roberts by Paul J. Richards/AFP/Getty Images
Join the Fray: our reader discussion forum
What did you think of this article?
POST A MESSAGE | READ MESSAGES

Remarks from the Fray:

Professor Goluboff seems to have come full circle rhetorically, and essentially agrees with the conservatives who she accuses of appropriating the Brown decision. The only argument against their interpretation of the case is that there are also other ways to interpret it. However, the author admits that the "structure" of the case makes the conservative interpretation the most correct one.

The answer to the professor's most important question, that of how the case came to be used against progressive desegregation, is that the legal backdrop changed. Current segregation is not an imposed constraint, but a reflection of societal and political structures. People choose to live in racially divided communities, and that division is naturally reflected in schools. Absent the forced constraint, there is no harm.

The professor ignores the harm done by forced integration, claiming that only hurt feelings are the result. However, each case has a specific harm at its core, and those harms need to be addressed. The professor seems to think that the harms should be judged by the color of the victim's skin. I don't think so.

--Fitzpatrick

(To reply, click here.)

What is the harm that comes from a school board voluntarily integrating schools? Are white children given inherently inferior educations because the schools are integrated? On principle, the integration would make the schools in the district more equal, so all students should have an equal chance to attend a good school. Is a school district required to keep it's schools segregated?

I agree with the author that the abstracted reading on Brown ignores the fact that forced segregation violates the 14th amendment and harms entire groups of people, while local integration doesn't deny equal protection or harm a group of people.

--scottyhope

(To reply, click here.)

What liberals are wringing their hands over in this decision is that the court has reaffirmed what America is all about: equality of opportunity.

The liberals have been for 60+ years been advancing the notion of equality of outcome. Thus brought us the vastly failed welfare state and other nefarious programs of wealth transfer.

If you look at the data, unemployment among blacks had been steadily declining since the depression. It is very debatable whether Brown had an impact on this or not. I would allow that maybe it had some impact if not to further raise awareness of the plight of the blacks and other minorities in this country at the time but the unintended consequences of Brown became painfully apparent as time went on.

I hope this decision is looked on as the benchmark that our society finally came back our senses and once again embraced true equality of opportunity and forever left our attempts at social engineering behind.

--Bladernr1001

(To reply, click here.)

As someone who was bused for 8 of his 12 years in school there was no integration amongst the races outside of Football, Basketball and Track and maybe the creative arts in their schools. As an African- American what I saw was only 5-10 percent actually making an actually olive branch effort across racial lines. The only thing that busing taught me was that whites could be devious in their dealings with African- Americans either through school adminstrations or white students acting like they were God's little angels and they weren't as bright and slick as they thought they were.

So I think the Civil Rights leaders believed too much in the goodness of white Americans when they should have never allowed our children to be educated by our white enemies. White Americans believed in racial equality in theory—not in practice—and that has not changed in the 53 years since that moment. This society will never accept African- Americans as its fellow citizens.

African- Americans do not need to live, sleep, have sex or get along with the white population to live in this country. African- Americans need to be racial atheists when it comes to the white population—Justice John Roberts and the white posters' phony "colorblind" mantra notwithstanding.

I think getting away from each other would ease the racial conflicts amongst black males and white teachers and give us as African- Americans a chance to develop our infrastructure in educating our children. There is a big world and we as Black Americans should embrace other cultures, educational ideas and those whites around the world who respect us as human beings and not as problem citizens. White Americans are corrupt with privilege and dealing with them will only give you mental and physical problems.

--soulgroove07

(To reply, click here.)

(7/7)

Washington Post
The Washington Post
OPINIONS
Assessing Sarah Palin
| Newt Gingrich, Grover Norquist, John Podesta and others weigh in.
Colbert King: She's No HillaryEditorial: Is She Ready for This?
PLUS » PostPartisan: Quick Takes from Opinions