The attack on Jim Crow Brown V. Board of Education of Topeka (Brown I) – School desegregation

• Warren 1954. SCt explicitly rejected the “separate but equal” doctrine, at least insofar as public education was concerned.

• Holding. SCt held that (1) public education is so important today that it must be provided on equal terms, (2) racially segregated education is per se not equal because black children get worse educations in segregated schools, and therefore (3) segregated schools are unconstitutional.

• Rationale. SCt reasoned that even where all-black and all-white schools were equal in terms of “tangible” factors, intangible factors necessarily prevented children who were restricted to all-black schools from receiving equal educational opportunities. In particular, racial segregation “generates [in African American students] a feeling of inferiority as to their status in the community that my affect their hearts and minds in a way unlikely ever to be undone. Separate educational facilities are inherently unequal.” [SCt reasoned this way because it did not want to impugn the motives of southern state legislatures.]

• Expert Opinion:

1. What does footnote 11 imply about the basis of the decision?

2. In reaching this conclusion, SCt relied on findings of psychologists and educators who had concluded from their research that segregation gave African American pupils a sense of inferiority, which in turn impaired their motivation to learn and their success at learning.

3. If the sociological evidence now pointed in a different way, would the constitutional result change? SCt’s empirical claim was very contested; weakest component of SCt’s argument.

• Fourteenth Amendment’s history irrelevant. One factor upon which the Brown court did not particularly rely was the legislative history of the 14^th Amendment itself. SCt noted that, at the time that the Amendment was adopted, blacks in the South were not educated at all, and even in the North there was no compulsory public education system for whites, let alone blacks. Therefore, nothing in the legislative history of the Amendment gave the SCt any real clue about what Congress intended with respect to school segregation. Instead, the SCt decided to focus on public education as it stood in 1954, not as it stood when the Amendment was adopted in 1868.

• Koppelman. This case is arguably at the center of the modern constitutional law canon.

• Cass Sunstein has claimed that “an approach to constitutional interpretation is unacceptable if it entails the incorrectness of Brown v. Board of Education.

• Does Warren’s opinion identify the aspect of the case that gives it its enduring power? Would it have been better if the SCt had been as intellectually honest as Charles Black was in defense of that decision?

• What does Professor Black think that the 14^th Amendment prohibits? [What (if anything) does his argument imply about judicial protection of groups other than blacks? ]

1. “True” reasoning of Brown: 14^th Amendment’s neutral principle is that blacks cannot be discriminated against or disadvantaged. There is something deeply unconstitutional about a system of racial hierarchy/segregation that extends beyond the schools.

2. It is obvious that segregation was intended to disadvantage blacks.

3. Brown’s sociological reasoning was not as effective an argument; completely misses the point. By writing an education-specific opinion, SCt missed areas that are equally applicable; point was that segregation per se was contrary to 14^th Amendment.