Commemorating Brown at 60, Pursuing Our Unfinished Agenda
By Howard University School of Law Interim Dean Okianer Christian Dark, Associate Dean Lisa Crooms-Robinson, and Associate Professor Aderson B. Francois.
The U.S. Supreme Court decision in Brown v. Board of Education is the high-water mark of American constitutional law. Insofar as it held that American state sponsored racial apartheid was inconsistent with the Constitution’s Equal Protection guarantees, the Court implicitly repudiated the moral obscenity of Plessy v. Ferguson’s separate but equal doctrine. No decision the Court has rendered in the last one hundred years has had a more profound and lasting impact than Brown. No other educational institution – or indeed no other institution – has had a deeper connection to and greater responsibility for Brown than Howard University School of Law (HUSL). Charles Hamilton Houston devised the legal strategy for, and initiated the early cases that led to, Brown while serving as HUSL Dean. Many of Houston’s colleagues and students, including George E.C. Hayes, Oliver Hill, Spotswood Robinson, James Nabrit, Leon Ransom, Robert Carter, Harold Boulware, and Thurgood Marshall, went on to serve as lead lawyers in Brown and related desegregation cases. Today, Brown remains the core of HUSL’s identity and the lodestar of our mission. No student enters our doors without learning about Brown, and none leaves without understanding HUSL’s role in it.
And yet, as much as we rightfully see ourselves as keepers of Brown’s legacy, with six decades behind us, we also know that the Court’s opinions in Brown, and its companion cases were fundamentally flawed. (1) Specifically, in Brown, the Court reasoned that the constitutional harm caused by segregation was the feeling of inferiority it engendered in black children because “[s]egregation with the sanction of law, …has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system’.” (2) By the Court’s logic, segregation causes black kids to feel inferior and once they feel inferior they cannot learn properly. While we appreciate why Chief Justice Warren’s opinion is so narrowly written, it does not change the fact that nowhere in an opinion that is ostensibly about race and education does the Court mention that one of the central tenets of American slavery was the legal ban on black education because white masters understood well enough that educated slaves posed a fatal threat to the “peculiar institution”.
Nowhere in the opinion does the Court mention that a remarkable number of American educational institutions, including our most prestigious Ivy League universities, were founded upon slave labor, and indeed kept slaves on their campuses. Nowhere in the opinion does the Court mention that the first statutory attempts to provide for education of emancipated men and women through the Freedmen’s Bureau were met with fierce resistance by both Southern and Northern legislators. Nowhere in the opinion does the Court mention that in the Jim Crow era influential social scientists argued that the “black mind” was receptive not to education but rather to criminality and that, as such, educating blacks might turn them into more cunning criminals. Nowhere in the opinion does the Court mention that, until Brown, the school systems established in the South for blacks were set up to teach blacks all they needed to be sharecroppers and peons.
In short, nowhere in the opinion does the Court acknowledge what the lawyers and litigants understood – that is, the fundamental problem was that education had been used as a tool of white supremacy, and the constitutional harm to blacks was not mere feelings of inferiority but longstanding and systemic inequality that could never be remedied by symbolic – or even real – integration. Curing this inequality would require measures as longstanding and systemic as those that had engendered it.
Casting racism as only a problem for children of color left not only the white supremacy at the root of that racism undisturbed, but also the harms caused by false notions of supremacy held by the “superior” group unaddressed. Most would agree with the Court that education “is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment.” (3) This is true for all children, whether those children are deemed racially inferior or superior by the white supremacy on which the racial segregation is based.
Brown’s fundamental flaws stymie continuing efforts to achieve desirable racial and ethnic diversity in public primary and secondary schools. The flaws support narratives of the relationships of different groups to the institutions and benefits up for grabs based on false notions of equivalency deployed in a legal context devoid of the racial specificity of the white supremacy which was absolutely essential to the maintenance of racial segregation. Under the guise of color blindness, the normative position of not just whiteness but rather white supremacy remains embedded in the law. Equality now means the Constitution will not distinguish race-based measures intended to promote racial diversity or integration from the Jim Crow laws central to the architecture of “separate but equal.”
Today we live not in a post-racial country but in a post-Brown world. Every single American living today is a product of Brown. The way we all learn, work, vote, play and even pray has been shaped in one way or another by Brown. But it is important on this anniversary to understand what that means. If today the narrative and effects of the doctrine of white supremacy remain imbedded in American life, it helps to understand that is in part because Brown, a decision that is sometimes described as “nothing short of a reconsecration of American ideals,” was written in a way that neither laid bare the doctrine’s role in American history nor challenged its continuing effects in American society. In 1987, on the two hundredth anniversary of the U.S. Constitution, Justice Thurgood Marshall explained that the Constitution was a flawed document from the very start and that it took “several amendments, a civil war, and momentous social transformation” to correct for the drafters’ lack of “wisdom, foresight and a sense of justice.” It is then fitting that here at Howard, the place where Brown was first conceived, we are able to get past nostalgia and sentimentality and look upon the decision with clarity and an urgent sense of all that remains to be done.
(1) Brown v. Board of Education was argued and decided as one of a group of five cases. The other four cases were as follows: Belton v. Gebhart (Delaware), Briggs v. Elliot (South Carolina), Davis v. County School Board (Virginia) and Bolling v. Sharpe (District of Columbia).
(2) Brown v. Board of Education, 347 U.S. 483, 494 (1954).
(3) Brown, 347 U.S. at 493.
updated: May 19, 2014