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B, Brown v. Board of Education,

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 09 August 2020

Brown v. Board of Education,

347 U.S. 483 (1954), argued 9 Dec. 1952, reargued 8 Dec. 1953, decided 17 May 1954 by vote of 9 to 0; Warren for the Court (Brown I); 349 U.S. 294 (1955), reargued, on the question of relief, 11–14 April 1954, decided 31 May 1955 by vote of 9 to 0; Warren for the Court (Brown II). With a brisk, nontechnical and unexpectedly unanimous opinion running only ten pages, Chief Justice Earl *Warren ignited a legal and social revolution in race relations and constitutionalism. “Brown was the beginning,” Alexander M. *Bickel later wrote—the beginning not only of substantive changes in the American social structure but also in the nature and expectations of how the Supreme Court interpreted the Constitution.

Background

The decisions—on the merits (Brown I) and on relief (Brown II)—culminated a litigation campaign by the *National Association for the Advancement of Colored People (NAACP) and its legal arm, the *Legal Defense and Education Fund, Inc., that began twenty years earlier. Beginning in the mid-1930s, the NAACP brought suits first at the state and then at the federal level challenging, on constitutional grounds, the legal regime of “Jim Crow”—state-imposed racial segregation in public accommodations and in education (see segregation, de jure). The goal was to abolish Jim Crow and to spur substantive improvement in public education for African-Americans. The primary obstacle facing the NAACP was *Plessy v. Ferguson (1896), in which the Supreme Court had held 7 to 1 that state-imposed racial segregation in public facilities was not “unreasonable” and therefore did not violate the *Equal Protection Clause of the *Fourteenth Amendment.

The initial steps in the strategy did not confront Plessy frontally but sought to undermine it. When the Supreme Court invalidated Missouri’s out-of-state tuition program for African-American law students in 1938 (*Missouri ex rel. Gaines v. Canada), everyone knew that the legal superstructure of Jim Crow was vulnerable. Successive decisions by the Court, largely involving cases brought by the NAACP, continued the erosion of Jim Crow in public transportation and in *education.

The biggest break occurred in 1948, when the United States attorney general, for the first time, signed an *amicus curiae brief in a race case (*Shelley v. Kraemer), which signaled the federal government’s symbolic support for the NAACP strategy. The Court held racially *restrictive covenants unconstitutional in that case, but the watershed did not come until two years later in 1950, when the Court invalidated segregation in graduate schools (*McLaurin v. Oklahoma State Board of Regents) and in law schools (*Sweatt v. Painter). The Court’s opinions in both cases noted the inequality of facilities created by Jim Crow, but disapproved, for the first time, the “intangible” but genuine harms of racial segregation—such as inability of blacks to associate with white colleagues and the consequent limitation to their education. Unbeknownst outside the Court, many of the justices concluded privately in 1950 that McLaurin and Sweatt sealed the fate of Jim Crow and of Plessy itself.

The stumbling block in the Brown litigation, which affected more than a dozen states and the District of Columbia, and their millions of schoolchildren, and which was in progress when the 1950 cases were decided, was the scope of relief. When Brown was first argued in 1952, the Court internally was divided not so much on the merits but on how, and at what pace, to order relief. The Court remained at loggerheads over the issue during the summer of 1953 when fate intervened. Chief Justice Fred *Vinson, who wrote Sweatt and McLaurin but hesitated to require massive desegregation, died suddenly. His replacement, Earl Warren, responded to the situation by convincing his colleagues to decide the merits in one opinion and to defer the question of relief to a second opinion following reargument. At the time, Warren’s greatest achievement was (p. 112) thought to be massing a Court unanimous in both vote and opinion; to do so, he had to convince at least two justices, Robert H. *Jackson (concurrence) and Stanley F. *Reed (dissent), to suppress opinions that they were then preparing. The Court’s ultimate unanimity was publicly applauded and was said to buttress the wisdom of the result.

Opinions

Warren later revealed in his memoirs that he wrote Brown I in a short, nonaccusatory and nontechnical style so that it could be understood by laymen and even be reprinted widely in the public press. The opinion elided all of the hard questions: the evidence of the historical understanding of the Equal Protection Clause (see history, court uses of)—upon which the parties had been directed to focus their reargument—was deemed “inconclusive”; Plessy’s claim that segregation caused no harm was refuted by modern social science data (including highly controversial works cited in *Footnote 11); and Plessy itself was disingenuously circumscribed (“In the field of public education, *separate but equal has no place” [p. 494]). Warren tried to show that the Court had incrementally chipped away at Plessy in the preceding cases and, in a larger sense, that the logic of Plessy had self-destructed over time, as African-Americans became more successful in various fields, and as education became more central to American life. Indeed, Brown self-consciously avoided questioning the entire structure of Jim Crow in all of its applications but focused exclusively on segregated education and on its harm to those separated because of their race.

If Brown I contained moral clarity without explicit doctrinal foundation, Brown II—rendered one year later—lacked both. The NAACP urged desegregation to proceed immediately, or at least within firm deadlines. The states claimed both were impracticable. The Court, fearful of hostility and even violence if the NAACP views were adopted, embraced a view close to that of the states—but with insistence that progress begin soon. Nonetheless, the opinion equivocated on every line and essentially returned the problem to the courts where the cases began for appropriate desegregative relief—with, in the phrase that soon was condemned for its invitation to recalcitrance, *“all deliberate speed.” A Court admirably unanimous on the merits in 1954 became ambiguously, indeed emptily, unanimous on the key issue of relief in 1955.

Brown II imposed substantial costs on all concerned. The burden of producing multimillion-student desegregation plans was placed on the plaintiffs and the NAACP, who were undermanned, thinly financed, and targets of hostility. The justices had privately hoped that the Department of Justice, which had participated in all of the Brown arguments, would energetically support the plaintiffs, but President Eisenhower chronically avoided the issue and promised no more than “to obey the law of the land.” School districts were caught in a political whipsaw between a handful of reform-minded residents who wished to make desegregation work and the vast majority who resisted change and saw the issue as fuel for their own devices. Southern congressional leaders and regional governors were especially outspoken in their defiance of the decisions.

The Court itself suffered symbolically to some extent. If Brown I was a clarion call, Brown II’s ambivalence implicitly diminished the moral imperative of the first decision. As organized resistance, especially in Congress, and less organized resistance at the grass roots, mounted, the Court retreated and did not hear another case involving segregation for more than three years after Brown II. Then, in *Cooper v. Aaron (1958), the Court’s opinion on the Little Rock, Arkansas, school crisis of 1957–1958, spoke more to the importance of the Court’s own power than to the substantive issue of *equal protection of the laws.

Aftermath

Between Brown II and Cooper v. Aaron, the Court refused to hear further cases involving segregation and the scope of Brown but issued a series of controversial *per curiam decisions based solely on requests for review of lower court decisions. The Court invalidated segregated state parks, beaches and bath houses, golf courses, and even public transportation. The final decision (Gayle v. Browder, 1956), was tinged with irony, because it effectively overruled Plessy—a step the Court found unnecessary to take in Brown and that the per curiam order did not even admit was in issue. The reasonless per curiam orders prompted many legal scholars to warn that the Court was acting more out of conviction than principle and urged the justices to explain their actions, both to refute southern charges of willfulness and to provide guidance for future cases involving racial issues in nonsegregation situations. *Bolling v. Sharpe (1954), the companion case to Brown from the District of Columbia, provided the rudimentary doctrinal apparatus to meet the need, but the Court eschewed the opportunity.

Because Brown II provided so little guidance, either as to relief or as to the precise doctrinal foundation of Brown I, the Court put itself in the position of reexplaining, and effectively remaking, the basic principle in every successive segregation case. After reaffirming Brown against gubernatorial resistance in 1958 at Little Rock, the Court turned a doctrinal and substantive corner (p. 113) with *Green v. County School Board of New Kent County in 1968 when it held that compliance with Brown II required not simply abolition of state-imposed segregative practices but the effective desegregation of formerly segregated schools. After Green, busing for racial balance was inevitable, which the Court confirmed in *Swann v. Charlotte-Mecklenburg County Board of Education (1971).

On one level, Brown was remarkably ineffectual. By 1964, a decade after the first decision, less than 2 percent of formerly segregated school districts had experienced any desegregation. As Brown was applied outside the original jurisdictions where segregation was imposed or permitted by law, local resistance became even more fierce and sustained. Yet Brown was a potent catalyst for ambitious social change, both in Congress, where the aspirations of Brown helped prompt the *Civil Rights Act of 1964 and the *Voting Rights Act of 1965 among others, and in the federal courts themselves, where the decision’s bold moral hopes and impatience with formal doctrinal obstacles encouraged a generation of lawyers and activists to improve society under the rubric of constitutional exegesis. Inspired by Brown, lawyers and judges breathed new life into not only the Equal Protection Clause of the Fourteenth Amendment but also its *Due Process Clause (in both its procedural and its more controversial substantive senses). (See due process, substantive.) The Court itself was emboldened in part by the experience of Brown to expand federal protection for state defendants in criminal proceedings and to strengthen the protection of the *First Amendment to critics of first state and then of the federal government during the decade following Brown. For example, the constitutional doctrine of “freedom of association,” which was created by the Court in *NAACP v. Alabama (1958), was directly related to school desegregation: state officials tried to compel the publication of the organization’s membership lists in part to discourage support for desegregating schools.

Earl Warren’s opinion for the Court in Brown I made the decision seem inevitable, and today, as Warren said in the companion case, a contrary result seems unthinkable. Yet the outcome was the product of a lengthy process that involved more than the NAACP and critical maneuvers inside the Court during the 1953 term. In many respects, the seeds for Brown were sown in the early 1930s, when the justices were presented with case after case in which black criminal defendants in the South were victimized by police, judges, and all-white juries. The stark reality of Jim Crow, and its routine brutality, impelled the Court to begin the process of dismantling Jim Crow piecemeal well before the NAACP strategy hit full stride during *World War II. The courage of African-American servicemen during the war, and President Harry Truman’s willingness to make civil rights a national issue in 1948—with a presidential commission and at the Democratic Convention as well as in Shelley v. Kraemer—provided the important symbolic presence of national support that helped to steel the Court’s will to move from protection of African-American individuals to African-Americans as a class, and, inevitably, as a social movement. Whatever the consequences borne out by the case law, Brown remains a potent symbol of the aspiration for the Constitution and the values it enshrines.

See also race and racism.

Alexander M. Bickel, The Least Dangerous Branch (1962). Charles L. Black, Jr., “The Lawfulness of the Segregation Decisions,” Yale Law Journal 69 (1960): 421–430. Dennis J. Hutchinson, “Unanimity and Desegregation,” Georgetown Law Journal 68 (1979): 1–96. Richard Kluger, Simple Justice (1975). Philip B. Kurland, “Brown v. Board of Education Was the Beginning,” Washington University Law Quarterly (1979): 309–405. Gerald Rosenberg, The Hollow Hope (1990). Mark Tushnet, The NAACP’s Legal Strategy against Segregated Education, 1925–1950 (1987).

Dennis J. Hutchinson