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May 2019 marked 65 years since the passage of the seminal case on access to public education in the United States—a little case you might know as Brown v. the Board of Education of Topeka, 347 U.S. 483 (1954). On May 17, 1954, in a unanimous opinion authored by then Chief Justice Earl Warren, our nation’s highest court reexamined the doctrine of “separate but equal,” previously affirmed in cases such as Plessy v. Ferguson, 163 U.S. 537, and held that segregation in public schools deprived children of the minority race of equal educational opportunities.
As members of the legal profession, we all recognize the name of this case and the principles for which it stands. But what do we remember of the details? Moreover, despite the significance and magnitude of this decision, 65 years later, American public schools today are largely segregated by race, with unequal opportunities and outcomes. How is that even possible?
There is no easy answer to the latter question. But we might begin a discussion through examination of some of the details of Brown that are easy to forget after our 1L year. Here are a few points, interspersed with a bit of my own reflection and commentary as a lawyer of color.
I clearly remember asking myself as a law student, “Could that really be true?” Could it be accurate that no one in those prior cases questioned the equality of the racial segregated schools? At least one of the lower court cases that were part of the Supreme Court’s Brown litigation clearly contained allegations that the schools were not equal. In the Kansas litigation, the district court had noted that “As against the school district of Topeka they contend that the opportunities provided for the infant plaintiffs in the separate all Negro schools are inferior to those provided white children in the all white schools; that the respects in which these opportunities are inferior include the physical facilities, curricula, teaching resources, student personnel services as well as all other services.” Brown v. Bd. of Educ., 98 F. Supp. 797, 797-98 (D. Kan. 1951). And, of court, the lower courts in Delaware had ruled for the Plaintiff, in spite of Plessy, because the schools were not separate, but equal.
How, exactly, would one square state-sanctioned racially separate-but-equal practices with a constitutional proscription against racial discrimination?
"Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, 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."
Id. at 494-95. The Supreme Court then overruled Plessy, stating with finality that “in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal.” Id. at 495.
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As an African American attorney, educated in public schools (until college), I take this anniversary of Brown to reflect on what it has meant for my own education and opportunities. I do not believe that I would be writing this piece if Plessy had not been overturned. But, despite undeniable gains, there is one thing about this case that always bothered me—that the decision didn’t simply deem state mandated racial segregation to be inherently unconstitutional, without regard to intangibles.
I keep wondering … how might history have been different if the United States Supreme Court had been willing to make bold interpretations of the Thirteenth and Fourteenth Amendments? If the Court had been as concerned with a black girl’s right to an equal educational experience as it was moved by proof of the feelings of inferiority allegedly induced by racial discrimination? Was this “intangible” route the only way?
And what would public education look like now if, a hundred years ago, federal courts had forced states to educate all children equally, regardless of race? Because we still haven’t figured that part out…