Civil Rights
May 18, 2004
Americans Must Build on History to Honor 'Brown'
Forum Column - By Stephen F. Rohde - Fifty years ago today, the United States Supreme Court issued its historic and unanimous decision in Brown v. Board of Education. The simplicity of its powerful holding seems self-evident today, but was unprecedented at the time.
Stephen F. Rohde
Email: rohdevictr@aol.com
Stephen is a retired civil liberties lawyer and contributor to the Los Angeles Review of Books, is author of American Words for Freedom and Freedom of Assembly.
By Stephen F. Rohde
Fifty years ago today, the United States Supreme Court issued its historic and unanimous decision in Brown v. Board of Education. The simplicity of its powerful holding seems self-evident today, but was unprecedented at the time.
"We conclude that in the field of education," Chief Justice Earl Warren wrote, "the doctrine of separate but equal has no place. Separate educational facilities are inherently unequal."
Brown was re-argued on the question of relief, and in 1955, the court issued Brown II ordering that desegregation proceed "with all deliberate speed."
The Brown decision has assumed iconic status in the minds of most Americans. It symbolizes a pivotal moment when we as a nation turned away from a society where racial segregation was perfectly legal, under the Supreme Court decision in Plessy v. Ferguson (1896), which upheld "separate but equal" railroad cars for black and white passengers. Instead, we turned toward a society dedicated to racial equality.
Half a century later, the promise of racial equality remains largely unfulfilled, and many see the decision in Brown as part of the problem rather than the solution.
Derrick Bell, an NAACP Legal Defense & Educational Fund attorney in the 1960s and now a law professor at New York University, in his new book, "Silent Covenants," argues that he and other civil rights lawyers failed to realize that "racism is permanent in this country" and that single-minded devotion to integrationist ideals has harmed black students' education.
Without adopting Bell's depressing fatalism, many observers bemoan the fact that, while Brown eliminated the constitutional and legal endorsement of white-supremacist subordination of people of color, it failed to empower the law to act as an engine of integration. Instead, by only gently instructing lower courts to implement its holding "with all deliberate speed," Brown handed defiant racist school boards and recalcitrant judges a loophole they exploited for decades.
When one of the five cases consolidated within the Brown decision was remanded to South Carolina, Circuit Judge John Parker construed Brown to mean that the Constitution "does not require integration."
"It merely forbids discrimination" and "forbids the use of governmental power to enforce segregation," Parker wrote.
Such foot-dragging wordplay would dominate the rulings of most lower federal courts, retarding integration and providing intellectual cover for blatant resistance to Brown's patient mandate.
The court and the Constitution faced one of the most defiant challenges to their authority in 1958, after Arkansas Gov. Orval Faubus ordered National Guard troops brandishing bayonets to keep nine black children from entering Little Rock's Central High School. The local school board's efforts to delay integration eventually reached the U.S. Supreme Court in Cooper v. Aaron.
Thurgood Marshall, who had argued Brown and who in less than a decade would himself become the first African-American justice of the Supreme Court, appeared on behalf of Little Rock's black children and accused the school board of trying to return "from desegregated to segregated schools."
The day after oral argument, the court unanimously ruled that integration of the schools must proceed without delay. Two weeks later, in another unanimous decision, the court declared that Brown "is the supreme law of the land" and that the constitutional rights of black children "are not to be sacrificed or yielded to the violence and disorder which have followed upon the actions of the Governor and Legislature."
The court affirmed that the principles announced in Brown "and the obedience of the States to them, according to the command of the Constitution, are indispensable for the protection of the freedoms guaranteed by our fundamental charter for all of us."
"Our constitutional ideal of equal justice under law is thus made a living truth," the court wrote.
Regrettably, the living truth for the black children of Little Rock was hardly equal justice. The school board not only defied the courts but also closed all high schools - black and white - until 1959. Finally, parents and voters who understood Brown elected school board members committed to desegregation. But by 1964, a decade after Brown, only 1.17 percent of formerly segregated school districts had experienced any desegregation.
"I reach the sad conclusion," writes Charles J. Ogletree Jr., professor of law at Harvard University Law School, that "the important goal of full equality in education following slavery and Jim Crow segregation was compromised from the beginning, and that 50 years after Brown there is little left to celebrate."
When it comes to schools, "we honor Brown more in principle than in practice" says Ted Shaw, the incoming head of the NAACP Legal Defense & Education Fund.
What do we expect from a single Supreme Court decision? The passage of time obscures what America was like in 1954 when the nine justices confronted centuries of slavery, lynching and Jim Crow laws.
The unanimous decision in Brown was hardly a foregone conclusion. According to a private memorandum written by Justice William O. Douglas, had a vote been taken when the case was first argued in 1952, it would have been "five to four in favor of the constitutionality of segregation in the public schools."
The appointment of Earl Warren to replace Chief Justice Fred Vinson, who died Sept. 8, 1953, changed more than one vote. (Vinson's death, Justice Felix Frankfurter told a friend, represented "the first indication I have ever had that there is a God.")
Given that a Gallup poll taken the summer after Brown revealed that nearly half of all Americans opposed the decision, are we expecting too much of even a unanimous Supreme Court decision to quickly transform a society so infected with racial prejudice?
That America remains plagued by unacceptable educational, social and economic equalities isn't Brown's fault. It's ours. The pernicious relationship between race and class in America perpetuates the legacy of slavery, segregation and discrimination.
"In 2004, the profile of educational opportunity for a significant segment of African-American children mirrors the pre-Brown era," Patricia Sullivan, who teaches history at the University of South Carolina, writes.
"Predominantly black and minority schools are most often housed in crumbling facilities, suffer from starved budgets and lack essential resources," Sullivan says. "The persistence of racial inequality, as measured by income, joblessness and underemployment, and rates of incarceration is closely linked to an educational system that barely functions for a large number of black children and fails to address the needs of many more."
Instead of steady improvement in educating minority children since Brown, in communities across the county, "separate but equal" has been replaced by "separate but unequal."
Today, less than a third of African-American students attend racially integrated schools.
"During the 1990s," as the Harvard Civil Rights Project has observed, "the proportion of black students in majority white schools" decreased "to a lower level than in any year since 1968."
In Illinois, children in all-black East St. Louis receive a public education worth $8,000 annually, while children in Lake Forest, a predominantly white suburb of Chicago, receive an education worth $18,000.
Unequal spending is not the only problem.
"The squalor of decrepit infrastructure, the assignment of the least prepared and often uncredentialed teachers to the schools in greatest need, the demoralization of intensely concentrated poverty and the visceral message given to children by the very fact of racial sequestration continue to be potent forces in perpetuating the caste divisions of American society," Jonathan Kozol, a leading expert on public education and author of "Savage Inequalities," writes.
The hope of Brown was that removing the "official sanction" of segregation would remove the belief in the inferiority of blacks. But changing the law is often easier than changing hearts and minds. The decision in Brown is worth commemorating, not because it was sufficient to eliminate racial inequalities in public education but because it was a necessary step in that direction.
The 50th anniversary of Brown v. Board of Education affords us a special opportunity to assess how far we have come in guaranteeing equality to everyone in America and how much remains to be accomplished. It also presents a unique opportunity for each one of us to redouble our efforts, personally and professionally, to ensure that, in our lifetimes, the promise of Brown becomes "a living truth."
Stephen Rohde is an attorney with Rohde & Victoroff in Los Angeles. He is also president of the Beverly Hills Bar Association.
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