The End of the Brown Era

The Emancipation Proclamation remains a positive moment in American history despite its mainly symbolic character. Brown v. Board of Education has achieved and will probably retain similar status. The three decades of campaigning to desegregate school systems, though, came to a less-than-exultant end. Black parents recognized long before their civil rights lawyers that the effort to racially balance the schools was not working. Desegregation plans were designed to provide a semblance of compliance with court orders while minimizing the burden on whites. Judges, many more conservative than their predeces­sors, found ways to declare the schools desegregated even in districts where the percentage of black children rose in the wake of white flight. Finally, the statistics on resegregation of once-nominally desegregated schools painfully underscores the fact that many black and Hispanic chil­dren are enrolled in schools as separate and probably more unequal than those their parents and grandparents attended under the era of “sepa­rate but equal.” Because the value of integrated schooling proved elusive, black parents and educators began looking for a more viable vehicle for their educa­tional goals. The search was opposed by those civil rights leaders who maintained that Brown could only be read to require an end to intentional discrimination against black children through their assignment to integrated schools. With an advocate’s hindsight, Robert Carter suggested that while Brown was fashioned on the theory that equal education and inte­grated education were one and the same thing, the goal was not integration but equal educational opportunity. If equal educational opportunity can be achieved without integration, Carter reasoned, Brown has been satisfied. In this, he parted company with those claiming that the inescapable conclusion of the Court’s decision in Brown is that racial separation is itself an injury, regardless of parity in the facilities. By the time of his article, Carter had been out of the civil rights movement for a dozen years, but he now supported those who focused on quality of education and challenged proponents of racial-balance remedies in the courts. When groups not committed to racial balance obtained a court order for educationally oriented forms of relief, they were often opposed by civil rights organizations committed to inte­gration, who intervened with more expertise and resources. This sometimes resulted in open confrontations between the NAACP and local blacks who favored plans oriented toward improving educational quality.

Plessy’s Long Shadow

The supreme court’s 1896 Decision in Plessy v. Ferguson served to bring the law into a dismal harmony with the nation’s view of race in life. The Court decided that segregation in public facilities through “separate but equal” accommodations for black citizens would satisfy the equal protection clause in the Fourteenth Amendment. The years since the sporadically enforced policies of Reconstruction ended in 1876 had been hard for those former slaves and their offspring whose slavery had legally ended with the passage of the Thir­teenth Amendment in 1865. To ensure their rights to due process and the equal protection of the law, the Fourteenth Amendment in 1868 provided that “all persons born or naturalized in the United States, . . . are citizens of the United States and of the State wherein they reside.” Despite legislation intended to provide enforcement of these rights, the laws were poorly enforced and most were subsequently declared unconstitutional. Corrupting law but relying on intimidation and violence, southern governments stripped blacks of political power. Given meaningful if unspoken assurances that the federal government would not protect black civil rights, conservative southerners regained power utilizing racial fear and hatred to break up competing populist groups of poor black and white farmers. In addition to the disenfranchisement of blacks, whites sought to secure their power through intensive anti-Negro propaganda campaigns championing white supremacy. Literary and scientific leaders published tracts and books intended to “prove” the inhumanity of the Negro. In this hostile climate, segregation laws that had made a brief appearance during Reconstruction were revived across the South, accompanied by waves of violence punctuated by an increase in lynchings and race riots. In an effort both to protest the indignity of segregation and challenge its validity, Homer Plessy, acting for a New Orleans civil rights group, attempted to ride in a railroad car reserved for whites. He was arrested and convicted of violating Louisiana’s 1890 segregation law. On appeal, the Supreme Court acknowledged that the Fourteenth Amendment required absolute equality of the two races before the law, adding: “but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either.”

Moving Beyond Racial Fortuity

Agospel Song Asks: “What do you do when you’ve done all you can and it feels like it’s never enough?” The answer, “Just stand,” seems so passive, but as interpreted by those who framed those words out of the difficulties of their own lives, it means to keep on, to not give up in the face of seemingly fruitless struggle. It draws on a necessary maxim of the oppressed: to “make a way out of no way.” Those of us who have labored for decades in racial-justice campaigns can identify with that gospel lyric, particularly civil rights lawyers whose primary mission was trying to desegregate school systems. The school issues of today grow out of societal conditions that affect educational efforts across the economic spectrum. They can’t all be laid at the doorsteps of Brown’s failure, but looking back over the decades, I wonder whether the long school desegregation effort was an unintended but nonetheless contributing cause of current statistical disparities that some critics angrily attribute to the continuing effects of racism. Others, not all of whom are white, assert with equal vehemence that blaming failure on racism is an excuse; that we need to get up off our dead asses, drop the welfare tit, stop having “illegitimate” babies, and find jobs like everybody else. More objective observers of black distress view the source as the lack of employment, the bedrock of survival and success in this society. In the post–World War II years, racial reformers felt that gaining racial equality would eliminate the barriers that underlay the economic disparities between blacks and others. While a powerful symbol, the call for equality was easier to make than for a great many blacks to realize. Just as the Brown decision in 1954 did not open up law-firm jobs when I graduated from law school in 1957, the hard-fought liti­gation to erode public manifestations of segregation meant little to those black people far less fortunate than I as they looked in vain for openings in schools, jobs, and housing.

Searching for Effective Schools in the Post-Brown Era

In 1980 I Had Resigned My Faculty Position at the Harvard University Law School in order to accept the deanship at the University of Oregon’s law school. Following the public announcement, I received an urgent request from Ron Herndon, a militant black leader in Portland, Oregon. Herndon explained that the school board there was resisting the black community’s efforts to interpret Brown as requiring improve­ments in the mainly black schools rather than integrating them under a plan blacks feared would close many of them and reassign their children to white schools where they did not wish them to go. Herndon urged me to speak for the black community’s position at an upcoming school board meeting. I wondered about the propriety of myself—the new and, probably of some significance, the first black dean of the state’s only public law school—appearing on one side of a heated racial debate. I decided that, appropriate or not, I would appear, and did so. My defense of the black communities’ position gave pause to the school board’s members and much satisfaction to the black community. It was a reprise of my hear­ings in southern courtrooms years before, more theater than substance, but perhaps of some value. While the school board’s meeting was covered on television and in the local papers, I don’t recall that anyone at the law school ever mentioned my appearance. The more telling point is that as a veteran of the efforts to implement the Brown decision, I found myself opposing the school board’s efforts to use Brownprecisely as I had urged beforedozens of courts several years earlier. Now, tardily, having abandonedmy integrationist idealism, I recognized my obligation to supportblack parents’ efforts to provide effective schooling for their children.Where, I wondered, had Brownor our understanding and expectations for Browngotten derailed? Disenchantment with desegregation as a means of solving educational inequalities led to alternative means of achieving effective schooling for those not able to escape to the suburbs or enroll inexpensive private schools. Two major directions are worth examining. One is the effort, now three decades old, to eliminate or reduce the serious disparities in funding school districts within a particular state.

School Litigation in the Nineteenth Century

Ancient Humans Were Aware Of The Tides, but did not know that the far-off moon influenced the ebb and flow of the earth’s oceans. Similarly, the forces that over two hundred years caused black parents to oscillate between segregated and integrated education for their chil­dren were often hidden or disguised. What was obvious was the desire to provide their children with an education. Black children were taught in churches and community halls. Beginning in the nineteenth century, black parents in a few northern cities enrolled their children in public schools as soon as those schools were available,. When, as was often the case, the schooling proved disappointing, frustrated parents attributed the ineffective instruction at the schools to one of two assumptions that turned out to be faulty:…1. If the schools were all black, failure was attributed to the racially segre­gated character of those schools. “If whites were attending these schools,” black parents concluded, “conditions would be better.” This has been the predominant diagnosis both in the nineteenth and, as I shall describe in chapter 10, in the twentieth century. 2. If their children were attending predominantly white schools, blacks assumed that these schools were demonstrably better in physical resources and, thus, the quality of education would be better. In fact, however, school officials provided better schools for middle- and upper-class white students than for the children of the working class. And whatever a white school’s quality, it might not be available to black children or, if it were, it might not be appropriate to meet their needs. Because school officials favor whites, black parents often conclude, our children don’t stand a chance in the integrated schools…. The experience of black parents in Boston, Massachusetts, with separate and integrated school policies, is both instructive and repre­sentative. When public schools opened in Boston in the late eighteenth century, black children were neither barred nor segre­gated. But by 1790, racial insults and mistreatment had driven out all but three or four black children. In this regard, the Boston children’s experience was no different from those of other “free” black children in northern schools. Racial hostility rendered educational equality for black children impossible even though they were attending the same schools as whites.

The Interest-Convergence Covenants

Given Theirhistory Of Racial Subordination, how have black people gained any protection against the multifaceted forms of discrimination that threaten their well-being and undermine their rights? The answer can be stated simply: Black rights are recognized and protected when and only so long as policymakers perceive that such advances will further interests that are their primary concern. Throughout the history of civil rights policies, even the most serious injustices suffered by blacks, including slavery, segregation, and patterns of murderous violence, have been insufficient, standing alone, to gain real relief from any branch of government. Rather, relief from racial discrimination has come only when policymakers recognize that such relief will provide a clear benefit for the nation or portions of the populace. While nowhere mentioned in the Supreme Court’s Brown opinion, a major motivation for outlawing racial segregation in 1954, as opposed to the many failed opportunities in the past, was the major boost that this decision provided in our competition with communist governments abroad and the campaign to uproot subver­sive elements at home. This fortuity continues a long history of similar coincidences motivating the advancement or sacrifice of black interests. Three major examples of what I call interest-convergence covenants involve the abolition of slavery in the northern states, the Emancipation Proclamation, and the Civil War amendments to the Constitution. Lincoln’s issuance of the Emancipation Proclamation in 1863, and the divergent responses of blacks and whites to his action, were foreshad­owed by abolition policies in the northern states a half-century earlier. In the northern states, slavery was abolished by constitutional provi­sion in Vermont (1777), Ohio (1802), Illinois (1818), and Indiana (1816); by a judicial decision in Massachusetts (1783); by constitutional interpretation in New Hampshire (1857); and by gradual abolition acts in Pennsylvania (1780), Rhode Island (1784), Connecticut (1784 and 1797), New York (1799 and 1827), and New Jersey (1804). In varying degrees, abolition in the North was the result of several factors: idealism stemming from the Revolution with its “rights of man” ideology; the lesser dependence of the northern economy on a large labor force; the North’s relatively small investment in slaves combined with the great hostility of the white laboring class to the competition of slaves; the fear of slave revolts; and a general belief that there was no place for “inferior” blacks in the new societies.

Brown Reconceived: An Alternative Scenario

Having Read An Early Draft Of This Manuscript, longtime friend and Harvard University professor Frank Michelman asked: “Was there any way that they, as a Court acting subject to certain public expectations about the differences among courts, legislatures, and constitutional conventions, could have framed their intervention differ­ently from, and better than, the way they actually chose?” I think the answer is yes. Despite decades of efforts to reverse Plessy v. Ferguson and the NAACP lawyers’ well-researched legal arguments supported by reams of social science testimony, the Supreme Court might have determined to adhere to existing precedents. Suppose that, while expressing sympathy for the Negroes’ plight, the Court had decided that Plessy v. Ferguson was still the law of the land? Suppose, moreover, they understood then what is so much clearer now: namely, that the edifice of segregation was built not simply on a troubling judi­cial precedent, but on an unspoken covenant committing the nation to guaranteeing whites a superior status to blacks? On this understanding, could the Court have written a decision that disappointed the hopes of most civil rights lawyers and those they represented while opening up opportunities for effective schooling capable of turning constitutional defeat into a major educational victory? Again, I think the answer is yes. And I have imagined such an alternative. Today we uphold our six decades old decision in Plessy v. Ferguson, 163 U.S. 537 (1896). We do so with some reluctance and in the face of the argu­ments by the petitioners that segregation in the public schools is unconstitutional and a manifestation of the desire for dominance whose depths and pervasiveness this Court can neither ignore nor easily divine. Giving full weight to these arguments, a decision overturning Plessy, while it might be viewed as a triumph by Negro petitioners and the class they represent, will be condemned by many whites. Their predictable outraged resistance could undermine and eventually negate even the most committed judicial enforcement efforts.

Affirmative Action and Racial Fortuity in Action

The Conclusions Of Legal Commentators about the less than crit­ical role of Brown in post–World War II racial reform are not well known and would probably not be accepted by much of the public. It thus should not be surprising that the mostly unrecognized racial fortuity that so influenced the outcomes in school desegregation campaigns are also central to the decades-long controversy over the legality and fundamental fairness of affirmative action in general, and minority admissions to colleges and professional schools in particular. Once again, the rhetoric obscures the issues, allowing the argument to focus on the cost to whites of racial remedies rather than their necessity or appropriateness. As a result, few persons have recognized why, without the pressure of law, white-dominated institutions began opening schooling and employment areas to minorities long excluded both by outright bias and by discrimination’s debilitating effect on their qualifi­cations. The major cases I will review in this chapter reflect the pressures of interest-convergence and the resistance to any reform that threatened alteration of the racial status quo. As we have seen, an implicit stumbling block impedes society’s approach to racial remedies. The issues of cost and cost assessment crucial to earlier racial remedies, though, were not closely examined during the tumult of the late 1960s. Then, urban rebellions, sparked by the 1968murder of Dr. Martin Luther King, Jr., served as scary reminders that, more than a dozen years after Brown and a half-dozen years after enactment of federal civil rights laws, most corporations, government tagencies, and institutions of higher learning remained virtually all-white and mostly male. At these organizations, managers chose toestablish “racial and gender preferences” to accomplish the admission, hiring, and upgrading of a moderate number of white women and people of color. They did so rather than overhaul the policies and practices that, beyond blatant racial and sexual discrimination, were responsible for their institutions’ all-white and all-male culture. The affirmative action approach served the immediate need of breaking down this culture, and as a bonus it brought in competent individualsable and willing to advance the institutions’ goals. This was certainly the case with minority admissions programs. Faced with social and political pressures to increase the minuscule number of minority students, colleges and professional schools typically opted to use minority racial status as a positive admissions factor.

Brown as Landmark: An Assessment

Planning For The Future requires an accurate assessment of what Brown accomplished either directly and indirectly, and what it failed to do. Such a critique is difficult because Brown has become a legal land­mark, an American icon embraced as a symbol of the nation’s ability to condemn racial segregation and put the unhappy past behind us. Indeed, the Brown decision has become so sacrosanct in law and in the beliefs of most Americans that any critic is deemed wrongheaded, even a traitor to the cause. Certainly, few veterans of the efforts to implement Brown through the racial-balance model are objective about the obstacles they faced. A typical response when confronted with their meager progress might be: “Sure, school integration has not worked because real integration has not been tried.” And despite its short-lived effectiveness in desegregating public schools, no one will deny the statistics of improved performance by some of the minority students who attended desegregated schools and their often-positive anecdotes of achievements under fire. The general view remains that Brown was the primary force and provided a vital inspirational spark in the post–World War II civil rights movement. Defenders maintain that Brown served as an important encouragement for the Montgomery bus boycotters, and that it served as a key symbol of cultural advancement for the nation. Even my progres­sive law students accept the view that Brown achieved more than it did. When I shared my alternative Brown decision (see chapter 3) with my constitutional law class, most students resisted the notion that affirming and enforcing “separate but equal” would have led to more progress than occurred under Brown. Nonetheless, my New York University colleague Paulette Caldwell and I both teach against the view of Brown as the icon of equality. At a dinner honoring Professor Caldwell, one of her students, Stacie Hendrix, told the gathering that she had viewed Brown v. Board of Education as a symbolic victory intended to change the state of race relations in America.

The Racial-Sacrifice Covenants

In Prehistoric Times, a people fearing that they had irritated their gods would seek to make amends by sacrificing a lamb, a goat, or sometimes a young virgin. Somehow, the shedding of innocent blood effected a renewed connection between the people and their gods. A similar though seldom recognized phenomenon has occurred throughout American racial history. To settle potentially costly differences between two opposing groups of whites, a compromise is effected that depends on the involuntary sacrifice of black rights or interests. Even less recog­nized, these compromises (actually silent covenants) not only harm blacks but also disadvantage large groups of whites, including those who support the arrangements. Examples of this involuntary racial-sacrifice phenomenon abound and continue. Afew of the more important are: the slavery understandings, the Constitution, universal white male suffrage, the Dred Scott v. Sandford case, the Hayes-Tilden compromise, and the southern disenfranchisement compromise. Contemporary sacrifices of black rights and interests underlie policies on the death penalty, drug-penalty sentencing rules, and reliance on standardized test scores in college and graduate school admissions procedures. Historian Edmund Morgan explains that plantation owners in the early seventeenth century recognized that they needed a stable work force to grow and profit from tobacco. Because Native Americans woulde scape or die, and the indentures of whites came to an end, the solution, over a decade or so, was to sentence African laborers to slavery indenture for life. The landowners convinced working class whites to support African enslavement as being in their interests, eventhough these yeoman workers could never compete with wealthy land owners who could afford slaves. Slaveholders appealed to working-class whites by giving them the chance to vote and by urging them, owing to their shared whiteness, to unite against the threat of slave revolts or escapes. The strategy worked. Wealthy whites retained all their former prerogatives, but the creation of a black subclass enabled poor whites to identify with and support the policies of the upper class. With the safe economic advantage provided by their slaves, large landowners were willing to grantpoor whites a larger role in the political process. Thus, paradoxically, slavery for blacks led both to greater freedom for poor whites and aneconomic structure that would keep them poor.