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Opposing Views

Brown Vs. Board: Opposing Views

In the 50 years since Brown v. Board was decided, discussion over the case has not abated. Were the rulings in the school cases an abuse of judicial power or judicial redress in the face of segregationist lawmakers? Was Brown a considerable legal triumph or the most over-glorified Supreme Court decision in American history?

The Report invited two civil rights experts to answer questions about the case. They are Professor Jack Greenberg '48, and Lino Graglia '54, the A. Dalton Cross Professor in Law at the University of Texas at Austin and the author of Disaster by Decree: The Supreme Court Decisions on Race and the Schools (Cornell, 1976)

Columbia Law School Report (CLSR): In your opinion, what were the positive effects of the decision handed down in Brown v. Board of Education?

Greenberg: It set a moral standard for the nation. No longer could anyone argue the correctness of segregation. It initiated a process that led to breaking up white, racist hegemony in the South, that in effect dominated the nation. It accomplished this as a critical force in launching the civil rights movement that led to the Civil Rights Acts of the mid-60s. Since then, for example, the number of black congressmen has gone from two to 40; CEOs of major corporations like Time-Warner, Merrill Lynch, and Xerox are black. At the time of Brown in some states there was only a single black lawyer, and in most Southern states there was no more than a handful. Now there are 10,000 black law students. This must, of course, be balanced against all that has not been accomplished. Black unemployment is double that of white; black income is 60 percent of white; and black wealth, longevity, or other measurable standards are well below those of whites.

Graglia: The 1954 Brown decision purported to prohibit school racial segregation and, it soon appeared, all official racial discrimination. The court was not able, however, and did not attempt to enforce the prohibition. Resistant states had the option of responding by simply ending free public education and thereby making Brown appear to be a disaster. The 1955 Brown decision, therefore, held that the states did not have to end segregation until it was "practicable" to do so, which in the Deep South meant never.

School racial segregation ended in the South as a result of the great 1964 Civil Rights Act, which ratified and made effective what Congress and everyone else thought was the Brown principle: a prohibition of all official race discrimination. The act also extended the principle to private discrimination, as in public accommodations and employment. The positive effect of Brown, if any, is that it may have given impetus to the Act, but it is possible to argue that segregation and all race discrimination - everywhere in retreat by 1954 - would have ended sooner without the Brown decision.

CLSR: What, if any, are the negative effects?

Greenberg: I am not aware of "negative" effects of Brown, as such. In some places, as in Little Rock, Ark., resistance provoked turmoil and, in the Meredith case, death. But this was caused by resistance to Brown, not Brown. Courts now engage in administrative tasks that they had not performed before Brown. I would not call that negative, but different, although some find it objectionable. Of course, Brown did not succeed in integrating to the extent it should have and its advocates would have wanted. Some would call that negative.

Graglia: The overwhelming negative effect of Brown is that it changed the view of many people - certainly of most professors of constitutional law and, most important, of the justices themselves - as to the proper role of the Supreme Court in our system of government. If the court (as was believed) could do so great and good a thing as end racial segregation, what other great and good things could it not do? Did not Brown demonstrate that decision-making by judges on issues of basic social policy is superior to decision-making by elected representatives? The result has been a perversion of the system of government created by the Constitution, the basic principles of which are self-government through elected representatives, decentralized power (federalism), and separation of powers. At least in part as a result of Brown, we have arrived at the antithesis of this system: government by majority vote of a committee of nine unelected, life-tenured lawyers making the most basic policy decisions for the nation as a whole from Washington, D.C. The acclaim the court received as a result of Brown emboldened it to go on to such further decisions as Roe v. Wade, purporting to find that the Constitution, incredibly enough, guarantees rights of abortion, thereby converting an issue that was being peacefully settled on a state-by-state basis into an intractable national controversy.

On the race issue itself, the eventual success of Brown as a result of the 1964 Civil Rights Act emboldened the court to move from Brown's prohibition of segregation - prohibiting the assignment of students to separate schools by race - to a vastly more ambitious and questionable requirement of integration - requiring the assignment of students to schools by race, now to increase racial mixing. Compulsory school racial integration, given residential racial concentrations, could only be attempted by ordering cross-district busing, but the justices now felt powerful enough to think that they could order even that. The result has been not to lessen but to increase school racial separation - as middle-class parents, black as well as white, fled school systems subject to busing orders - and the expenditure of billions of dollars and devastation of public school systems across the nation with no educational or other benefit.

CLSR: Some critics of the Brown decision have suggested that its reasoning was weakened by its reliance on sociological principles rather than on a so-called "neutral" legal basis, or that school desegregation should have been left to state legislatures rather than the courts. With the benefit of 50 years hindsight, what advice would you give to a group of young lawyers about to draft the argument for Brown or to activists then involved in fighting segregation?

Greenberg: As to state legislatures, or Congress, that's a bad joke. Blacks couldn't vote. At the time of the 1965 Voting Rights Act, black voting in the 100 counties with the largest black populations was at most 8 percent, in many places about 2 percent.

The sociological principle objection is nonsense. In 1880, in Strauder v. West Virginia, the Supreme Court embraced the same sociological principles as a matter of common sense. Of excluding blacks from juries, it wrote that excluding them "because of their color [is] practically a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race...[equal justice]."

Plessy v. Ferguson, which embedded separate but equal in constitutional law, was all sociology: "Laws permitting, and even requiring...separation...do not necessarily imply the inferiority of either race...."We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is...solely because the colored race chooses to put that construction upon it." I could multiply the examples. All that Brown did was to applythe court's contemporary understanding of racial segregation and point out that the assumptions in Plessy, based on nothing, were inconsistent with such research and scholarship that exists today. The court did not say that the social science evidence made a case on which the opinion rested.

The only advice I would give would be to write or argue something that makes clear what I just have written. Our case did not rest on sociological research. It rested on a clear perception of what enforced racial separation meant. It referred to studies of the subject that support those perceptions. Some years after Brown in a case in Savannah, Ga., the school board put on evidence by two witnesses, Ernest Van den Haag of NYU and Henry Garrett of Columbia, both of whom informed the court that segregation did not disadvantage black children. The trial court, presided over by a racist federal judge, agreed and refused to desegregate the schools. The Court of Appeals reversed immediately, making clear that Brown did not rest on social science evidence.

Graglia: The Civil War and Reconstruction Amendments established that the race issue was one that was not to be left to the states. Segregation should have been ended by Congress, as it in fact eventually was, and it is most unfortunate, as shown above, that the issue was purportedly decided instead by the court. The court's supposed reliance on the totally discredited so-called sociological evidence in Brown illustrates only that constitutional law need have no relation to truth or reality.   My advice to young lawyers would be that as long as they are seeking to advance the politically correct causes favored by liberal academics - the source of the justices' views and preferences - they will be almost sure to obtain the necessary ruling of unconstitutionality regardless of what they argue. They will be virtually guaranteed the votes of the four committed liberal activists, Justices Stevens, Souter, Ginsberg, and Breyer, and have an excellent chance of getting the crucial fifth vote from either Justice O'Connor or Justice Kennedy or, as with recent invalidation of the Texas anti-sodomy law, both.

CLSR: On the eve of Brown's 50th anniversary, many public schools in America remain segregated, though not officially by law. It is now estimated that a third of minority students attend schools where they represent more than 90 percent of the student population. What is further required to achieve a greater racial balance in schools, whether through the courts, legislatures, or by other means?

Greenberg: Most of the segregation is a product of residential segregation. Black children should have access to schools where whites live, that is, mainly in the suburbs. That, of course, presents logistical problems and in many places cannot be accomplished. But in many places it would be possible. In those areas, white suburbs should understand that it is their patriotic duty. Such voluntary projects exist in Boston (METCO) and elsewhere and are quite successful.

Graglia: It is misleading to state that "public schools in America remain segregated," even after adding "though not officially by law," seeming to suggest some inconsistency with Brown when in fact it is compulsory integration that violates Brown's prohibition of all official race discrimination. For social, economic, and perhaps other reasons, areas of residential racial concentration are the norm, and neighborhood schools (which have many advantages) necessarily reflect residential patterns. This does not make the schools "segregated" any more than the neighborhoods are "segregated." The pursuit of school "racial balance" is not only largely futile or counterproductive, but essentially pointless. The problem to be faced in regard to black education is the astounding fact that the average black 12th grader performs at about the level of the average white or Asian eighth grader in reading and math, and blacks from high income homes score below whites and Asians from low income homes. Some schools with the highest per pupil expenditures, as in Washington, D.C., and New York City, have the lowest levels of pupil performance. The pursuit of school "racial balance" - the dispersal of black students among whites and Asians (but not among Hispanics who have similar, though lesser educational difficulties) - will do nothing to change these facts. It will serve only to divert attention from possibly effective efforts and keep racial activists in business.

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