Fifty years after Brown v. Board of Education was decided, its importance in American legal and political history remains in question. It is certainly one of the most famous cases ever decided by the United States Supreme Court, ranking with Marbury v. Madison or Miranda v. Arizona as the case most Americans recognize. Chief Justice Earl Warren named it as one of the three most important cases decided by the Court when he acted as its chief. Judge Louis Pollak (former dean of both the Yale Law School and the University of Pennsylvania Law School) called it "the most important American act of government of any kind since the Emancipation Proclamation."

Does Brown deserve all of this praise today? At the time, the case eliminated the "separate but equal" doctrine, the key legal device for maintaining segregated schools in the Southern states (including such non-Southern states as Kansas and Delaware). But the concrete results achieved by the case-integration of elementary and secondary schools-have largely been reversed as a result of housing patterns and population shifts that resegregated schools in large metropolitan areas and because of white flight into the suburbs. In addition, later Supreme Court cases limited the remedies available to federal courts in formerly segregated school districts. Federal courts could not fashion inter-district remedies: sending students from one school district to another to reduce the degree of segregation (see Milliken v. Bradley, 418 U.S. 717 [1974]). No longer could federal courts undo the new segregated patterns, since they had not been caused by state laws. In a series of cases decided by the Burger and Rehnquist courts, Pasadena Board of Education v. Spangler (497 U.S. 424 [1976]), Board of Education v. Dowell (498 U.S. 237 [1991]), Freeman v. Pitts (505 U.S. 467 [1992]), and the final decision in Missouri v. Jenkins (515 U.S. 70 [1995]), the Court limited the remedies available to a federal court to a "good faith compliance" with a previously imposed desegregation decree "for a reasonable period of time." The assumption then arises that the "vestiges of segregation has been eliminated to the extent practicable."

By the 1990s segregation returned to almost all elementary and secondary schools in the nation, including the North. By 1996, black students were the majority in the public schools in most of the metropolitan large cities: over 90% of the students in public schools in Atlanta, New Orleans, San Antonio, Washington, D.C., and Richmond were minorities. In Chicago, 90% of public school students were minorities, and in New York City the figure was 84%. The white middle class sent their students to private schools. A recent law review article notes that in North Carolina, the student population in ten of fifty-four elementary schools in Winston-Salem was at least 80% black or greater. These school districts also had the highest poverty rate in the state. By contrast the schools with the highest white population had a far lower poverty rate. Gary Orfield surveys the widespread reversal throughout the States in his 1996 book Dismantling Desegregation: The Quiet Reversal of Brown v. Board of Education.

But the Brown case stands for more than the concrete results it achieved. From the end of Reconstruction to the 1950s, a vast legal structure was in place that effectively kept the black population in a second-class status. Laws segregated schools, parks, libraries, and public facilities, as well as places of public accommodations. It was a crime for a black person to go into places that the laws preserved for whites. Placing blacks in such an inferior position made it virtually impossible for them to use political power to correct their situation.

Education was clearly the heart of the problem. First, segregation in education affected the largest number of black citizens-the tens of millions of children of school age. Second, segregation and lack of political power by blacks necessarily led to inferior schools with few books or teachers, and no science labs or other teaching tools. It made it difficult or impossible for the black population to acquire the necessary skills to raise itself from its second-class status.

But separate schools were permitted by long-standing Supreme Court precedent so long as they were equal. John W. Davis argued for the State of South Carolina in one of the five cases that came before the Court under the Brown v. Board of Education rubric: ". . . somewhere, sometime to every principle comes a moment of repose when it has been so often announced, so confidently relied upon, so long continued, that it passes the limits of judicial discretion and disturbance. . . . We relied on the fact that this Court had not once but seven times, I think, pronounced in favor of the 'separate but equal' doctrine." (215)*

In the 1930s, a group of young lawyers educated at Howard Law School, led by Charles Houston, began a legal campaign to show that segregated schools by their very nature could not be equal. The lawyers belonged to the NAACP, which in 1939 set up a separate legal organization called the NAACP Legal Defense Fund, Inc., otherwise known as the "Inc. Fund." The first cases were brought against law schools, on the assumption that the Justices of the Supreme Court could appreciate whether a segregated black law school with limited resources was equal to the well-endowed schools that serviced the white population. The first such case reached the Supreme Court in 1938, argued by Charles Houston. It came from Missouri, which did not even have a law school but sent black students out of state to achieve a legal education. In an opinion by Chief Justice Hughes, the Court stated that, "The white resident is afforded legal education within the state; the negro resident having the same qualification is refused it there and must go outside the state to obtain it. This is a denial of the equality of legal right [protected by the equal protection clause]" (Missouri ex rel Gaines v. Canada [305 U.S. 337 349 (1938)]).

Later desegregation cases were argued by Thurgood Marshall, who became head of the Inc. Fund in the late 1930s. In Sipuel v. Bd. of Regents of the University of Oklahoma (332 U.S. 631 [1948]), the Court again emphasized that the State must provide equal legal education for black students. Finally in McLaurin v. Oklahoma State Regents for Higher Education (339 U.S. 336 [1950]), the Court held that a black student could not be relegated to a separate screened-off seat in the lecture halls and a separate table in the library and dining room in the University of Oklahoma graduate school. In the same year, the Court decided Sweatt v. Painter (339 U.S. 629 [1950]), where it ordered the black plaintiff to be admitted to the Texas Law School on the same terms as white students.

At that point, the lawyers from the Inc. Fund believed that the next step was to attack other schools of higher education such as colleges or other professional schools. The purpose was to establish a series of precedents that could finally lead up to an attack on segregation in elementary schools. But in 1950, the local students and citizens took matters away from the strategy of the lawyers. As told in Richard Kluger's brilliant work "Simple Justice," a group of black parents in Clarendon County, South Carolina, led by Rev. Joseph DeLaine, demanded a school bus for their own children. (The white students had thirty busses to take them to school.) They commenced a lawsuit to demand equality of treatment, which soon became the test case to challenge the entire structure of segregated elementary and secondary schools.

The case was joined with another suit from Virginia, where high school students organized a strike in Prince Edward County, Virginia, complaining about the inadequate facilities in the black schools. Another suit was brought in Topeka, Kansas (the Brown case), another case in Delaware, and a final case in the District of Columbia.

The lower courts (except in Delaware) found against the black plaintiffs, generally relying upon three Supreme Court precedents: (a) Plessy v. Ferguson (163 U.S. 537 [1896]), the cornerstone of the "separate but equal" doctrine; (b) Cumming v. County Board of Education (175 U.S. 528 [1899]), which held that a Georgia County did not have to provide a separate high school for black students, and (c) Gong Lum v. Rice (275 U.S. 78 [1927]), a case when the Supreme Court unanimously held that a Chinese student could not attend the white schools but was required to attend the separate schools primarily attended by blacks.

The lower courts found that the facilities for black and white students were not equal in the districts in South Carolina and Virginia. But they noted that efforts were being made to equalize the schools. In the South Carolina case, the lower court noted that, ". . . under the leadership of Governor [James] Byrnes [a former Justice of the Supreme Court] the legislature of South Carolina had made provision for a bond issue of $75,000,000 with a 3 per cent sales tax to support it for the purpose of equalizing educational opportunities and facilities throughout the state and of meeting the problem of equal educational opportunities for Negro children where this has not been done." Briggs v. Elliott (98 F.Supp. 529, 531 [E.D. S.Car. 1951]). (John W. Davis, arguing for the State of South Carolina in the Supreme Court, made a major argument based on these efforts of the State). The lower court rejected the argument that elementary schools should be treated the same way as the professional schools. "The problem of segregation as applied to graduate and professional education is essentially different from that involved in segregation in education at the lower levels." It further noted:

The problem of segregation at the common school level is a very different one. At this level, as good education can be afforded in Negro schools as in white schools. . . . Moreover, education at this level is not a matter of voluntary choice on the part of the student but of compulsion by the state. The student is taken from the control of the family during school hours by compulsion of law and placed in control of the school, where he must associate with his fellow students. The law thus provides that the school shall supplement the work of the parent in the training of the child and in doing so it is entering a delicate field and one fraught with tensions and difficulties. In formulating educational policy at the common school level, therefore, the law must take account, not merely of the matter of affording instruction to the student, but also of the wishes of the parent as to the upbringing of the child and his associates in the formative period of childhood and adolescence. If public education is to have the support of the people through their legislatures, it must not go contrary to what they deem for the best interests of their children. (98 F.Supp. at 535)

Only the Delaware judges and Judge J. Waries Waring, a courageous district court judge from South Carolina, dissented from this analysis and would have declared segregation in education inherently unconstitutional. (Judge Waring left South Carolina immediately after writing his dissent because of the intense hostility directed toward him because of his decisions favoring equal rights.)

These were the cases that made up the School Desegregation cases argued before the Supreme Court, first in 1952, again in 1953, and finally in 1955, on the remedies to be afforded.

The arguments before the Court are important documents of legal history, social science, and political theory. In addition, they contain some of the most important and eloquent instances of legal argument before the Court. The chief lawyer representing the South was John W. Davis, former Democratic presidential candidate in 1924, leader of the American bar, founder of a major law firm, who argued before the Supreme Court more times than any lawyer had done before and declined a nomination to the Supreme Court in the 1920s because it would involve too great a cut of his income as an attorney. He was a native of West Virginia and believed in the principles of segregation. He was enlisted by Governor James Byrnes to argue the case for South Carolina.

His chief opponent was Thurgood Marshall, who was forty-four when he argued the Brown case in 1952. He had argued five cases in the Court before Brown, including Sweatt v. Painter, McLaurin, and Sipuel. There were six other attorneys arguing for the plaintiffs in the other cases, Robert Carter (later appointed as a federal district court judge in New York), Spottswood Robinson III (later a Court of Appeals judge in Washington), James Nabrit (Dean of the Howard Law School and later United States Deputy Representative to the United Nations), Jack Greenberg (later Director of the Inc. Fund and a Columbia Law School Professor), and Louis Redding and George E. C. Hayes, private practitioners.

The arguments contained many brilliant bursts of legal rhetoric, sharp exchanges between lawyers and judges, steady focusing on the key legal issue by the Inc. Fund lawyers, as well as many ironic touches (such as the segregationist lawyers quoting Dr. W. E. B. DuBois in support of their position (60-61)). John W. Davis was at the height of his powers. He argued in the second round of arguments in 1953:

Neither this Court nor any other court, I respectfully submit, can sit in the chairs of the legislature of South Carolina and mold its educational map. If it is found to be in its present form unacceptable, the State of South Carolina must devise the alternative. It establishes the schools, it pays the funds, and it has the sole power to educate its citizens. . . .
Let me say this for the State of South Carolina. It does not come here as Thad Stevens would have wished in sack cloth and ashes. It believes that its legislation is not offensive to the Constitution of the United States.
It is confident of its good faith and intention to produce equality for all of its children of whatever race or color. It is convinced that the happiness, the progress and the welfare of these children is best promoted in segregated schools, and it thinks it a thousand pities that by this controversy there should be urged the return to an experiment which gives no more promise of success today than when it was written into their Constitution during what I call the tragic era [of Reconstruction].
I am reminded-and I hope it won't be treated as a reflection on anybody-of Aesop's fable of the dog and the meat. The dog, with a fine piece of meat in his mouth, crossed a bridge and saw the shadow in the stream and plunged for it and lost both substance and shadow.
Here is equal education, not promised, not prophesied, but present. Shall it be thrown away on some fancied question of racial prestige? (216)

Thurgood Marshall was not to be outdone. His argument was solid, with few flourishes:

Those same kids in Virginia and South Carolina-and I have seen them do it-they play in the streets together, they play on their farms together, they go down the road together, they separate to go to school, they come out of school and play ball together. They have to be separated in school.
There is some magic to it. You can have them voting together, you can have them not restricted because of law in the houses they live in. You can have them going to the same state university and the same college, but if they go to elementary and high school, the world will fall apart. And it is the exact same argument that has been made to this Court over and over again
They can't take race out of this case. From the day this case was filed until this moment, nobody has in any form or fashion . . . done anything to distinguish this statute from the Black Codes, which they must admit, because nobody can dispute, say anything anybody wants to say, one way or the other, the Fourteenth Amendment was intended to deprive the states of power to enforce Black Codes or anything else like it.

We charge that they are Black Codes. They obviously are Black Codes if you read them. They haven't denied that they are Black Codes, so if the Court wants to very narrowly decide this case, they can decide it on that point.

So whichever way it is done, the only way that this Court can decide this case in opposition to our position, is that there must be some reason which gives the state the right to make a classification that they can make in regard to nothing else in regard to Negroes, and we submit the only way to arrive at this decision is to find that for some reason Negroes are inferior to all other human beings.
Nobody will stand in the Court and urge that, and in order to arrive at the decision that they want as to arrive at, there would have to be some recognition of a reason why of all of the multitudinous groups of people in this country you have to single out Negroes and give them this separate treatment. (239)

During the first argument in 1952, Chief Justice Fred M. Vinson presided over the case. His questions during oral argument showed he was not sympathetic to the black students' position. He focused on the impracticality of ordering desegregation. He asked one of the Inc. Fund lawyers: "If you did not have the facilities [to equalize facilities] and did not have the teachers, how would you take care of them?" (78)

As we now know from Richard Kluger's book and from studies of Justices Burton's and Jackson's notes, the Court was badly split after the first argument, with Vinson and Reed opposed to overturning segregation (primarily because of the impracticality of any remedy), four others in favor, and the others undecided. At that point Justice Frankfurter thought up the idea of postponing decision by ordering reargument the next term, based on five new questions to be answered by the parties. Two of the questions seemed to favor the Southern states and three seemed to favor the plaintiffs.

By the time reargument occurred the next year, an important change had taken place on the Court: Earl Warren replaced Fred Vinson as Chief Justice. That change turned out to be decisive in the final outcome in the case. Chief Justice Warren came from a political background, not a legal one-attorney general of California, Governor, Republican vice-presidential candidate in 1948. He had never served as a judge. But as a politician, he knew he had to create a consensus. He knew that the prevailing sentiment among the other Justices was to avoid recriminations for the past and to arrange for a peaceful transition in the schools.

Although some of the Justices were prepared to write strong attacks on segregation and Justice Reed was insistent on dissenting, Chief Justice Warren waged a quiet campaign to issue a unanimous decision that did not look backward, that would outlaw segregation in the schools and that would postpone the difficult issues of implementation for another time. He succeeded. He enlisted Justices Clark and Jackson by preparing an opinion that did not look backward and did not attack the South for its past transgressions or go through an elaborate legal and historical analysis on the meaning of the equal protection clause. The final decision read:

In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws. (347 U.S. at 492-493)

With respect to Justice Reed, Chief Justice Warren took him out to lunch (with Justice Burton) about twenty times after the argument was held. When the opinion was ready, Warren asked Reed: "Stan, you're all by yourself in this now. You've got to decide whether it's really the best thing for the country."

The final opinion, issued on May 17, 1954, is short, quiet, and nonaccusatory.

We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other 'tangible' factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.
In McLaurin v. Oklahoma State Regents, . . . the Court, in requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangible considerations: 'his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession.' Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.
We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. (347 U.S. at 493-94)

Thereafter, the Court heard argument again on the type of decree that should be entered to implement the decision. The lawyers for the Southern states made the most racist remarks imaginable, insisting that black students cannot be placed in the same classroom as white students because of the low scores of black students on intelligence tests and the high incidence of syphilis and gonorrhea and the "promiscuity" of the black population.

When the decree was finally issued, in May, 1955, it did not establish any deadlines for compliance with the Brown decision and gave the school districts time to work out a plan for desegregation:

The courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems. They will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system. During this period of transition, the courts will retain jurisdiction of these cases.
The judgments below . . . are accordingly reversed and the cases are remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.

The rest of the history of Brown is found in the decades of "massive resistance" by the Southern states, the use of every device imaginable to resist integration, including closing the schools in Prince Edward County, the Virginia district that was part of the original group of Brown cases. It was not until Congress included a provision in the 1964 Civil Rights Act that required compliance with desegregation orders of federal courts as a condition of receiving federal education funds that any real advance was made in eliminating segregation. In addition, the Supreme Court gave federal courts wide power to order bussing to implement a desegregation decree in Swann v. Charlotte-Mecklenburg Bd. of Educ. (402 U.S. 1 [1971]). By 1972-73, 91% of Southern schools were desegregated, that is, they had some minority students attending. The figure is deceptive, however, since the large majority (62%) of black students attended schools that were primarily attended by minorities, and 32.7% were in schools that were 90% minority.

So is Brown a failure? In legal terms, it destroyed the chief weapon that the Southern states had used to ghettoize the black population. "Separate but equal" was found to be illegal and unconstitutional because legal separation by race was necessarily stigmatic. When the states told the black population to stay on its side of the line and deprived it of voting power and furthermore made it a crime for whites to marry blacks or associate intimately with them, it established a virtually im-pregnable system of apartheid. Brown undercut the foundation of that structure. Not only were separate schools unconstitutional, but so were separate parks, libraries, and public facilities of all kind. Blacks could not legally be kept apart or kept down.

Brown was one of the sparks that ignited the Civil Rights Movement. From Brown, came the Montgomery bus boycott in 1955, which was about keeping blacks separate on busses. Then came the lunch-counter sit-ins in 1961, which attacked forced separation in restaurants. Then came the Civil Rights demonstrations in Birmingham in 1963, which also attacked separate facilities. By that time, Congress was forced to legislate in accordance with the developing Civil Rights campaign. The 1964 Civil Rights Act prohibited discrimination in places of public accommodation, in employment, and in any program that received federal funds. The 1965 Voting Rights Act broke down the last legal barriers to voting.

Brown could not solve all the problems created by a hundred years of legal restriction and societal separation. Indeed, it could not even solve the problem of segregation in schools. But it is there as a first, necessary step that we should celebrate on its fiftieth anniversary.


November 2003

Other essays on Thurgood Marshall:

The Brown Decision and its Discontents by Waldo E. Martin, Jr.
Remembering Thurgood Marshall by Randall L. Kennedy