I’ve been asked to speak on the subject of the 50th Anniversary of the Supreme Court’s decision in Brown v. Board of Education.  I have to assume that I was asked in part because I’m a lawyer.  I’ll try not to disappoint you, in one sense:  I will be talking about it from a lawyer’s point of view.  And I’ll try not to disappoint you in another sense:  I’ll try not to talk about it too much like a lawyer. 

But I may not be able to help myself. 

Many of us look to the United States Supreme Court as a source of wisdom and justice, especially social justice, and within that category, especially civil rights.  We also look to the Constitution of the United States as the basis for this justice and for the Court’s finest rulings.  It may seem strange, then, that almost without fail, whenever the Supreme Court announces a major decision, one that goes down in history as a turning point in the civil rights of Americans, a close look reveals that what the Court did was not clearly justified on the basis of the Constitution.  Many times when we look back we can say “they did the right thing”; but often we cannot, with any confidence, say “they did what the Constitution says.”

Let’s look at a few examples. 

In separate rulings in 1914 and 1961, the Court ruled that prosecutors may not try to convict a person on the basis of evidence that seized in violation of the Constitution – the so-called “exclusionary rule.” There is nothing in the Constitution that clearly requires this; the Justices said so themselves.  Clearly the men who wrote the Constitution would not have thought so.  But the modern Court found it necessary in order to protect the rights of the citizens. 

In 1963, they ruled that the “establishment” clause of the First Amendment prohibits starting the school day with a prayer.  Most people had not thought this before.  You can be sure that James Madison’s school day started with a prayer, and he thought nothing of it. 

In 1966, in Miranda v. Arizona, the Court held that prosecutors may not use an arrested suspect’s statements against him, unless he was properly warned about his Fifth Amendment rights.  Though this seems perfectly reasonable now, it was a startling departure from traditional law; and you can’t find anything in the Constitution to point to for direct support. 

Similarly in Furman v. Georgia, where they ruled that the death penalty is unconstitutional if there are not sufficient protections against unequal application, and in Roe v. Wade, where they decided that many state laws on abortion excessively interfere with the privacy rights of the mother, the Court was not relying on any clear words of the Constitution.  Nowhere is privacy mentioned in it; and its authors would have been shocked by the notion that the death penalty, in a humane manner and without torture, could be called “cruel and unusual punishment.”

Over the generations, the Supreme Court has taken a lot on itself.  They started right at the beginning, in the case of Marbury v. Madison, when the first Court decided to tell President Jefferson that he had to follow the Constitution in appointing Federal officers.  What was strange about this? Nothing in the Constitution says that the Supreme Court has the right to tell the Executive Branch what to do at all.  They simply decided it was necessary – and they’ve been doing so ever since. 

Now, make no mistake, I’m not suggesting that this is wrong – I hate to think where we’d be today if the Supreme Court thought it had no authority to tell the Government what the Constitution requires it to do.  But I want you to keep it in mind when thinking about what happened in the Brown decision.  As a nation, we have allowed the Supreme Court to tell all the rest of us when something is fundamentally wrong and contrary to our concepts of civilized, democratic society.  By and large, the perspective of history says they’ve been right – but not always.  The same Supreme Court that decided in 1943 that school children could not be coerced by law to salute the flag ruled one year later that the imprisonment of thousands of Japanese-Americans, without evidence that they were likely to be guilty of any wrongdoing, did not violate the Constitution.  The point is not that these decisions were both right or both wrong:  the point is that most of them were based on concepts of fairness and public necessity that are not found anywhere in the words of the Constitution. 

Now, sometimes people have to step outside of their official roles and do what conscience demands.  President Lincoln probably had no Constitutional authority to issue the Emancipation Proclamation.  We do not now think he did the wrong thing – he did what was morally right and what was best for the country.  The point I am making is that when the Supreme Court decides to step outside its role as judge of the law, and do what it thinks is right, it is treading on very dangerous ground. 

The Justices know this, and they knew it in 1954.  They worry about it.  They are generally reluctant to make decisions on the basis of personal concepts of justice rather than what the Constitution clearly says.  That is one reason that the decision in Brown v. Board of Education is so remarkable. 

Now let’s put the decision in context. 

Following the Civil War, and the passage of the 13^th and 14^th Amendments in 1865 and 1868, there was a continual series of legal disputes about just what those amendments required.  Congress passed the first major “Civil Rights Act” in 1875 – not in 1964.  The 1875 Act required equal access to public lodging, without regard to race.  In 1883, the Supreme Court held this law unconstitutional, on the basis that the 14^th Amendment did not authorize Congress to regulate private transactions, but only state infringements of civil rights.  Contract matters within the states were the business of the states.  For many years, the Supreme Court had followed the principle that civil rights are granted by two sources – the Constitution and law – and that Congress has the power to pass laws only on the basis of the Constitution. 

This was legally sound, and safe.  No one could accuse the Court of making up its own laws.  The same logic is seen in the famous Dred Scott decision, which of course was issued well before the 13^th and 14^th Amendments; there was then no law to say that a slave – property – became a free citizen – not property – merely by relocating to a “free” state.  There was no law, and the Justices were not going to make one up.  That was for the legislature and the people to do.  Once the 14^th Amendment became part of the Constitution, they would begin enforcing it – but only for what it actually said, not what it might possibly imply. 

The same logic held true in 1896, when they decided Plessy v. Ferguson.  The issue was a Louisiana law that required railroad companies to provide “separate but equal” accommodations for white and colored passengers.  The Supreme Court had no great trouble finding this constitutional – there is nothing in the Constitution that seems to say otherwise.  One Justice, Harlan, dissented, saying that “our Constitution is color-blind and neither knows nor tolerates classes among its citizens.”

He was on the cutting edge; you might even say the radical fringe.  It's clear that some of the people who participated in the writing of the 14^th Amendment would have agreed with him – but not the majority.  If the 14^th Amendment actually said that racial distinctions and separations were no longer permitted, it would not have passed.  In 1868, only a fairly small minority thought that segregation was automatically bad.  Abraham Lincoln himself, if he were still alive, would have been surprised by such an idea – he never thought blacks and whites should be expected to live together, but only that slavery was wrong.  Why would blacks and whites have to share the same cars on trains? Everyone would be just as happy sitting separately.  If they are not kept off the trains, Lincoln would have thought, what is there to complain about?

Now, Plessy v. Ferguson was not an education case.  At that time, no one seriously suggested that “separate but equal” schools presented any Constitutional issue.  In fact, it would have been hard to see how public schools could present any Constitutional issues at all – since there is, or at least was, no Constitutional right to public education. 

But over the next few decades, things changed:  two things, in particular.  One was the rise in public education. 

Public education in the United States goes back to the Massachusetts Bay Colony, which had its first public grammar schools as early as 1647.  But progress across the nation was slow.  In 1790 Pennsylvania legislated free public education, but only for the poor.  A few other states followed slowly.  The first public high school in the United States, in Boston, was opened in 1820.  But for a long time, public education was limited to the Northeast and, when it spread to the South, was limited to whites. 

Until at least the 1890’s, if not later, public education was viewed as a benefit granted by some state and local governments, but not a right.  When the 14^th Amendment was passed, requiring “equal protection of the laws,” no one would have thought of “protection of the laws” as in any way related to education – education was a whole different area.  In fact, the very same Congress that adopted the 14^th Amendment also passed the law establishing separate white and colored schools in the District of Columbia.  There was no incongruity; “protection of the laws” had to do with equality in the face of criminal prosecution, and the right to sue for property interests, and that sort of thing.  School was not in the picture. 

Eventually most states did accept the notion that if they spent tax dollars on educating white children, they had to do something for Negro children as well, but neither before nor for a long time after Plessy v. Ferguson did most people think Negro children had any sort of right to be educated in the same way or the same place as white children.  At least on the Federal level, there was still no legal right to be educated at all. 

In fact, in 1899, the Supreme Court decided the case of Cumming v. County Board of Education of Richmond County, Georgia.  The issue was a decision by a county school district to spend some of its tax dollars on an exclusive school for white girls while not maintaining any comparable facilities for black children.  It did have public schools for both races, but something extra for white girls.  Writing for the majority, Justice Harlan – the same one who dissented from the Plessy decision because “our Constitution is color-blind and neither knows nor tolerates classes among its citizens” – ruled that this was not a denial of equal protection of the laws.  He looked carefully at the phrases of the 14^th Amendment, and simply could not find any that it violated. 

But by 1950, as I said, things had changed.  Education had become virtually universal.  By then the laws of all states required children to attend school.  The industrial age had so transformed society that it became clear that the ability to gain a good education was as important as the ability to use public transportation or public accommodations, or to get a job.  The GI Bill at the end of World War II sent thousands of young men to college – highlighting the fact that many of them, good, capable men who had fought for their country, had been unable, because of their color, to get a decent education in their home states. 

The second thing that happened was that it became increasingly clear – not only to blacks, and not only to social reformers, but also to the courts – that three and four generations after the abolition of slavery, and especially in some parts of the country but to some extent everywhere, black Americans were still little more than freed slaves – they had the bare legal status of being free, but not much more.  The 13^th and 14^th Amendments had set a legal standard – but it was painfully clear that they had not changed nearly as much about American society as some had hoped. 

As early as 1935, the NAACP had set its sights on education.  They recognized it as a key to the eventual economic, political, and social leveling of society across racial lines.  In that year, the legal team of Charles Houston and Thurgood Marshall forced the University of Maryland to admit a black law student.  Law schools were the first targets – because it was clear that if the cause of equal rights was ever going to move forward, one thing the movement needed was black lawyers.  Marshall himself had been denied admission to the University of Maryland because of his race, and had to get his education in a traditionally black college. 

Of course, at first the schools that had opposed admissions of Negroes until forced to accept them by the courts maintained that they could admit them, but they would not put them together with white students any more than necessary.  “Separate but equal” was still the law. 

In 1950, the NAACP successfully took on Texas, and then Oklahoma, winning rulings that the black students could not be separated from white students in their law schools, because “separate but equal” did not really exist – that is, the facilities available to black students clearly were not equal. 

This is an important point to keep in mind.  The rulings in these cases were not that the concept of “separate but equal” was invalid, but that in some cases it was a sham – the so-called “equal” facilities were not, in fact, equal.  And since the facilities in question were state-funded schools, there was a fairly simple argument that for the state to grant meritorious white students the right to use one set of facilities and meritorious black students the right to use relatively inadequate facilities was not “equal protection of the laws.”

But that was not what Houston and Marshall were looking for. 

On December 9, 1952, the Supreme Court first heard argument in the cases of Oliver Brown and other students, from Kansas, South Carolina, Virginia, and Delaware.  These were simply four representative cases chosen by the NAACP.  At that time, 17 states still had laws either allowing or requiring “separate but equal” schools.  The case of Oliver Brown v. Board of Education of Topeka, Kansas, was, arguably, the least significant:  most of Kansas already had integrated schools, and by the time the case reached the Supreme Court the city of Topeka had decided to integrate its schools as well, although it had won a lower-court ruling.  In fact, Kansas only argued for the constitutionality of its separate-but-equal statute because the Supreme Court directed it to do so.  By sheer administrative chance, though, Oliver Brown’s name was the first on the decision and so it is the one we remember. 

It was clear from the outset that this would be a difficult case.  The NAACP had intentionally chosen cases in which the school districts had made a bona fide effort to make the separate schools actually equal.  They did not want a result which left open just how equal is equal, and which allowed districts to maintain segregation on the basis that no one was really being harmed by it.  The argument was that segregation itself was impermissible, and that denying black students education as part of the very same system as white students was denial of equal protection of the laws. 

The Supreme Court justices were not happy.  They saw the injustice of segregation; but it was not at all clear how they could say it violated the Constitution.  They had been expecting a challenge like this and dreading it.  In fact, one of the four cases, Briggs v. Elliott, from Clarendon County, South Carolina, had been raised to them in 1951, and sent back to the lower courts early in 1952, without a ruling on the main issue.  Justice Felix Frankfurter was known as an extreme liberal, particularly on civil rights issues – but he did not want to decide this one either.  He explained one of his reasons to his clerk:  the case would have to be heard in an election season, and would become a political football.  “Neither candidate will actually read the decision,” he said, but everyone would fight over it anyway.  “Is this how you want this kind of issue decided?” he asked.  Instead, by waiting for one more appeal, the case was argued just after the elections. 

At the close of arguments in 1952, they were faced with a quandary.  Four of the Justices felt that it was not a matter that could be decided on the basis of the words of the Constitution – if the legislature or the states wanted to make integrated public education a right, they would have to do so.  Four believed that segregation of any kind, endorsed by law, was unconstitutional – but they were not clear on a single rationale.  All of them were afraid that any decision they reached – especially if they could not agree on the reasoning – would spell tremendous trouble.  Chief Justice Vinson was afraid that it might mean the destruction of the public school system in many places.  So they compromised:  they said that they needed the parties to do extensive research and provide briefs on the history of the 14^th Amendment and how it could be interpreted to answer the question, and come back next year. 

At this point I should mention that the group of Justices who were prepared to rule right away that segregation was unconstitutional did not include the civil rights liberal, Frankfurter.  It also did not include Robert Jackson, who had been chief prosecutor of the Nuremberg war crime trials and had dissented from the Korematsu decision that permitted the Japanese-American internments.  Both of them wanted a clear, convincing legal argument rather than only a moral one.  But it did include Hugo Black, from Alabama, a former member of the Ku Klux Klan.  As far as he was concerned, according to the notes he kept, it was a simple issue.  Segregation was obviously based on the notion that Negroes were inferior – there was no other rationale for it – and the Civil War was fought to eliminate such divisions.  He had wanted to rule on this basis the year before, in the Briggs v. Elliott case. 

Eventually, of course, it became public knowledge that Justice Black took this position.  As a result he was ostracized in Alabama.  He was unable to visit his home openly for ten years.  His law school class refused to send him an invitation to its 50^th reunion; and his son, who was also a practicing lawyer, was drummed out of business and had to leave the state. 

My point is that the divisions in the Court, as far as we can tell, had nothing to do with concepts of right and wrong.  No one there thought that segregation was a desirable thing.  The division was based on the difficult issue of whether the Constitution gave the Federal courts the authority to tell the States they must change, or whether by doing so they would be simply substituting their personal moral beliefs for those of the state voters.  Several of them strongly felt that this was going too far; included in this group was Chief Justice Vinson.  Vinson was in fact a strong supporter of civil rights; but in general, he was concerned about over-reaching by the courts, making decisions that should be left to the legislature and the people.  Justice Reed went further, and referred to this as creating a Critocracy, meaning government by judges.  Of all of them, Reed was the strictest of strict constructionists – that is, a judge who believes in applying only what the Constitution clearly says, and not reading all sorts of extra things into it – and he was expected to be the last holdout if all other members gave in to a more liberal reading. 

In any event, a second argument was held on December 8, 1953, just short of a year after the first.  The lawyers focused on what the writers of the 14^th Amendment meant, what they might have meant, and what they probably would have meant if they were writing in 1953.  And the Justices found themselves no further ahead.  They recognized quite clearly that they could not rely on what the authors thought in 1868, if for no other reason than that they clearly must have thought all sorts of different things. 

But one important event had happened between the first and second arguments.  On September 8^th, Chief Justice Vinson had died, and was quickly replaced by Earl Warren. 

Warren was not particularly liberal, but he was a consensus-builder – he had been elected Governor of California three times, twice with the endorsement of both the Republicans and the Democrats.  He strongly believed that whatever the Court said in this important area, they needed to say clearly and unanimously.  After the oral arguments in December 1954, he said to the other Justices that the time for delay was over – the time had come to overturn Plessy v Ferguson – the problem was, how?

More than one Justice tried to draft an opinion, but got bogged down on the historical problems.  Warren took it on himself.  While drafting it, he decided to take a trip to visit a number of Civil War monuments throughout the South.  The first night, still in Virginia, he had his Negro driver drop him off at the front door of a hotel, with instructions to pick him up there in the morning.  When he saw him the next morning, he realized that the driver had slept in the car – because he’d been unable to find a place that would accept Colored guests.  Warren turned around and went back to Washington to finish his opinion.  When he finished, he distributed copies by hand to all the other judges.  Justice Jackson had suffered a serious heart attack and was in the hospital, so Warren brought it there. 

The Court decided to issue its opinion on May 17, 1954, with no advance notice.  Thurgood Marshall had been attending court regularly, whenever new decisions were to be announced, just in case.  All nine justices appeared, including Jackson, who left the hospital over his doctors’ objections, to help show unanimity.  Chief Justice Warren read his opinion aloud.  He explained that

In approaching this problem, we cannot turn the clock back to 1868, when the Amendment was adopted, or even to 1896, when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.

He then reviewed the role of education in American society, explaining that

In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

He turned to the effects of segregation:  he pointed out, in few words, that “a sense of inferiority affects the motivation of a child to learn.” And, he said,

We conclude – unanimously – that, in the field of public education, the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal.

He intentionally added the word “unanimously.” Thurgood Marshall looked over at Justice Reed, the strict constructionist.  Reed nodded at Marshall, and Marshall nodded back. 

Now, if you read the decision, it seems very simple.  There are no dissents.  It says:  “In the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”

It never clearly says why.  The statement that public education has become a right is a questionable one; nothing in Federal law or the Constitution requires that people be given education at all.  Presumably, if a state had decided to simply stop all public education, all hell would have broken loose, but the Court would have had a hard time saying “you can’t do that.”

The decision seems to say that the psychological impact of children being kept apart is itself a denial of “equal protection of the laws.” The apparent rationale for the decision is that if the state provides a valuable benefit, it can become a right, and it must provide it in such a way as to avoid even psychological harm.  It is quite clear to most people who look at the issue that telling children in one group that they are unfit to sit with those of another group is unfair, even cruel.  It is quite clear that ending it is a good thing.  But it is hard to see how all of the Justices could ever have been convinced that it was required by the Constitution as written.  Apparently, like President Lincoln when he wrote the Emancipation Proclamation, they just decided that it was the right thing to do. 

Unfortunately, as the Justices knew, this was not the end of the story.  The lawyers for both sides were called back once more to argue about how the ruling would be implemented.  Argument lasted for four days in April 1955.  This was unheard of; to the best of my knowledge the Court has never dedicated four days to one case, especially one that has already been decided.  But then, they may never before have issued a decision that would directly affect so many ordinary people’s lives.  Ultimately the court decided that the implementation had to be left to local school boards, but under supervision of the Federal District Courts, and had to be accomplished “with all deliberate speed.”

No one knew what that meant. 

Eventually they found out.  There was massive resistance to implementation in many parts of the country, from Mississippi to California to Massachusetts.  In some places the public schools closed for years.  In others, they were open to blacks in theory, but it was clearly understood that no blacks would dare go there.  (This was known as the “free choice plan” – presumably meaning everyone was free to risk his child’s safety.)  President Eisenhower had to send the National Guard in to enforce the District Court’s order to desegregate the schools in Little Rock. 

School districts were faced with difficult decisions.  They could not afford to tear down and rebuild schools as needed; and they could not keep the black students in their segregated neighborhood schools while obeying the Supreme Court’s direction.  They began to implement mandatory busing programs. 

In 1969, fifteen years after the Brown decision, of the school districts that had actually taken part in the Supreme Court case, the Kansas and Delaware schools were largely desegregated.  But in Prince Edward County, VA the public schools were closed from 1959 to 1964.  By 1969 only two white students attended the public schools.  In Clarendon County, South Carolina, there was essentially no progress at all. 

That year, in Mississippi, the District Court came up with a viable desegregation plan, but the White House had the Justice Department ask for a delay, ostensibly – and probably at least partly in truth – to minimize violence.  The Court of Appeals agreed to the delay.  The ruling was appealed to the Supreme Court.  Justice Black issued the opinion, saying, in effect, that “all deliberate speed” did not mean endless delay, and time was up. 

In 1971, in a unanimous opinion by Warren Burger, the Supreme Court upheld mandatory busing in Charlotte, NC.  But it was seen fairly quickly that the problems of busing might, in some cases, be even worse than the evils it was intended to cure.  Few, if any, cities with significant black populations could avoid going to court over the issue. 

The busing ordered in 1973 by the District Court in Boston, between South Boston, then a heavily Irish neighborhood, and Roxbury, which was mainly black, resulted in rock-throwing, beatings, and even deaths.  The National Guard was called out to protect school children while forcing them to get on the buses, in the city that historically had been the home of free public education. 

By 1974, the tide had begun to turn and the Court overturned a Detroit plan, which involved busing from the suburbs to the city, as too intrusive.  (By then Thurgood Marshall was a member of the Court, and dissented from the decision, saying it “made a mockery” of the Brown decision.)

So did busing work? In immediate practical terms, certainly, not very well.  In many places, white residents left in droves rather than deal with what they viewed as an invasion.  Teachers were often unable to deal with the problems of racial strife in the classrooms while providing a decent education.  By the late 1970’s, it was seen that there was a limit to how much these programs could help, and how much pain the communities could be put through, in hopes that there would be more benefit – a sort of law of diminishing returns on desegregation.  In Board of Education of Oklahoma City v. Dowell, in 1991, the Supreme Court ruled that it was appropriate for lower courts to dissolve their desegregation orders when “the vestiges of past discrimination had been eliminated to the extent practicable.”

According to a recent Harvard study, in many school districts that had desegregation plans, there has been a major increase in re-segregation since they were ended, in part simply on the basis of where people have chosen to live.  This is especially true in major cities.  But there is a ray of hope:  in three out of four of the states actually involved in the Brown decision, there is a continuing trend toward increased integration.  The most integrated state for African Americans is now Kentucky. 

I suggest that the main benefit of the decision has not been in what it ordered people to do, but in the way people think about the issue:  after all, to many people, what the Federal Government has fought so hard to accomplish can't be entirely wrong, can it?  And in places where the state and at least some school districts actually tried to comply, they found that the world did not come to an end, and their children were not traumatized, and maybe children going to school with other children who look a bit different wasn't as horrible a thing as they had always been taught.  Most important is what the schoolchildren themselves experienced:  even if their parents tried to keep telling them that those children are different and not as good as you are, that didn't match what the children learned first-hand.  As a result, in few places, even in the deep South, do most schoolchildren now think “she doesn’t belong in this class – she’s the wrong color.” Yet at the same time, in the cities of the Midwest and Northeast, many white students have little contact with minority students.  And in many of these areas, the schools are still not equal. 

So what good does it do when the Federal Government and the courts get involved in these issues? It causes a lot of controversy.  It causes hate and discontent, and usually a flood of politicians talking loudly about “states’ rights” and tyranny of the courts.  But it also sends a message – that the United States and its Constitution do stand for something, and that some practices are just wrong, and that eventually, slowly, some things must change.