Reflections on Brown v. Board of Education, Topeka: 60 Years and Counting

 

The Brown Family, Topeka, 1954

The Brown Family, Topeka, 1954 clip from An American Legacy, Teaching Tolerance, Spring, 2004

 

Today, May 17, 2014, marks the 60th anniversary of the landmark 1954 Supreme Court decision in Brown vs. Board of Education of Topeka, Kansas.  Many articles and historical memorials of this watershed event have appeared leading up to this anniversary. See examples at:

http://www.splcenter.org/get-informed/news/living-up-to-the-promise-of-brown-v-board

http://www.nps.gov/brvb/index.htm

http://politicalticker.blogs.cnn.com/2014/05/16/60-years-after-brown-v-board-michelle-obama-tells-topeka-students-that-are-its-legacy/

http://www.nydailynews.com/news/politics/obama-honors-brown-v-board-education-ruling-article-1.1795681

In addition, many excellent resources appeared in 2004 for the 50th anniversary of this case. See the excellent piece by the Southern Poverty Law Center in Teaching Tolerance Magazine at:

http://www.tolerance.org/magazine/number-25-spring-2004/department/brown-v-board-american-legacy

The parents of Linda Carol Brown and Terry Lynn Brown refused to accept that their two daughters were made to walk past a nearby white school and cross a dangerous railroad yard to catch a bus to a black school several miles away.  Their courage and the courage of four other cases combined in the famous “Brown” decision that restored the protections of the 14th Amendment to the issue of where children go to school.

What is, perhaps, not as well known is that tomorrow, May 18, 2014, marks the 118th anniversary of the case that created the need for Brown in the first place, the decision in Plessy v. Ferguson in 1896.

In 1890, the Louisiana legislature passed the Separate Car Act that required blacks and whites to ride in separate cars on Louisiana railroads. A group of black, white and Creole residents in New Orleans formed the Comite’ des Citoyens (Committee of Citizens) to fight the law.  They prevailed upon Homer Adolph Plessy, a freeman, to engage in a deliberate act of civil disobedience by buying a ticket for a ride from New Orleans to Covington on the East Louisiana Railroad; and deliberately sitting in the “whites only” car and not in the “colored” car. Interestingly, the railroad company opposed the law as well because it was causing the company to purchase more railroad cars. The company was aware of and cooperated in the plan.  As Mr. Plessy was of mixed racial heritage, the railroad company was informed in advance that he was black. On June 7, 1892, Mr. Plessy took a seat in a “whites only” car. He was asked to change cars, and he refused.  According to the plan, the train was stopped; Mr. Plessy was arrested by a train detective and removed from the train.

To the challenges to the charges against Mr. Plessy, Judge John Howard Ferguson ruled that Louisiana had the right to regulate its railroads as long as it remained within the boundaries of the state. The Committee of Citizens then appealed, and lost, before the Louisiana Supreme Court; and the case was appealed to the U.S. Supreme Court in 1896.  On May 18, 1896, the Supreme Court upheld the decision of the lower court by ruling that Mr. Plessy had not been denied his right to ride on the train and had access to a railcar of comparable quality. Therefore, in the opinion of the court, Mr. Plessy’s 14th Amendment rights to equal protection had not been violated. In addition, the court held that separation of races was not necessarily the result of beliefs in superiority of one race over another, but, rather, an attempt to avoid discomfort of mixing people together who didn’t want to mix.

“So far, then, as a conflict with the Fourteenth Amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and, with respect to this, there must necessarily be a large discretion on the part of the legislature.  In determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort and the preservation of the public peace and good order.” 163 U.S 537, Error to the Supreme Court of the State of Louisiana, Supreme Court of the United States, Mr. Justice Brown delivering the opinion of the Court, May 18, 1896.

Thus, the principle of “separate but equal” public accommodations became the law of the land and applied to many elements of public life, including public education.  The Supreme Court’s position was, basically, that people should not be required to do things that make them uncomfortable.

For 58 years almost to the day, from May 18, 1896 to May 17, 1954, it was the established policy of the United States, upheld by the Supreme Court, that children of different races should attend separate schools. It was more comfortable that way. It took painstaking, deliberate legal strategy of the National Association for the Advancement of Colored People and their young lead attorney, Thurgood Marshall, to gradually build the legal precedents to challenge this.  Starting with the provision of access in the states to law schools for students of color, a series of victories in Cumming v. Richmond Board of Education, Missouri ex rel. Gains v Canada, Sipuel v. Board of Regents of the University of Oklahoma, Sweatt v. Painter and McLaurin v Oklahoma State Regents for Higher Education  helped build the case for both equal access to all facilities and to the key provision that segregation into inferior institutions was not “equal;” and that such inferiority produced psychological damage and created negative self-image.

On May 17, 1954, the Supreme Court struck down the separate but equal interpretation of the 14th Amendment. Delivering the opinion of the court, Chief Justice Earl Warren wrote:

“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.”  Brown v. Board of Education, 347 US 483 (1954), Chief Justice Warren delivering the Opinion o f the Court.

However, the Brown decision only reversed the Plessy decision by striking down the legal principle of separate but equal facilities and public services.  It ordered no remedy.  States were stuck with the question of what to do about their schools if separate schools violated the Fourteenth Amendment.  The Supreme Court addressed this problem on May 31, 1955, in a second decision, known as Brown II, in which the Supreme Court remanded all school desegregation cases before the Court back to their respective lower courts requiring that states desegregate their schools “with all deliberate speed.”  This left open the question of when desegregation had to be in place, leaving the decisions up to the states to decide how and when these goals would be accomplished.  If progress was not made, the federal courts could rule on mandatory desegregation orders.  This set off many years of lower court cases and challenges to develop and implement desegregation plans that would eliminate segregated schools. Of course, this proved to be the source of significant conflict as states and local districts resisted desegregation orders, and sought approval for plans that did not adequately address racial balance.  Significant community differences surfaced around the country as some areas resolved desegregation issues on a voluntary basis, while others spent years in federal courts trying to reach agreements on mandatory plans and court orders.

Conflicts, at times violent, arose as some cities and communities aggressively resisted the expectation that children of different races would go to school together. We recall the “Little Rock Nine” being escorted by federal troops into Central High School in Little Rock, Arkansas, in September, 1957. We recall Alabama Governor George Wallace’s infamous inaugural speech on January 14, 1963, where he passionately pledged, “Segregation now! Segregation tomorrow! Segregation forever!”  Beginning in 1971, following the ruling in Swann v. Charlotte-Mecklenburg Board of Education that the federal courts could include student busing as part of desegregation orders, desegregation plans increasingly included mandatory student busing to achieve desegregation goals. In 1974, the mandatory desegregation of South Boston and Roxbury High Schools led to violent confrontations, walk outs and an enrollment decline estimated by some at 40,000 from the Boston Public Schools.  By the 1980’s, busing plans had begun to decline and populations shifted with many families leaving cities for the suburbs or placing their children in private schools. Neighborhoods and neighborhood schools tended to reflect the segregated housing patterns that dominated most urban areas.  Clearly, the absence of a level of “comfort” in communities responding to the expectation that local communities desegregate their schools as a result of Brown had become an enormous barrier to the hope of Brown.

Strategies then shifted in the 1980s and 1990s to developing plans in which choice and incentives would lead to increased integration across neighborhood boundaries.  Magnet schools and special programs with a special curricular or an academic focus were made available.  Many of these programs worked well in the beginning, but, as funds and interest declined, so did their success.  Much of the uniqueness of these programs required considerable additional funding for specialized staff and program operations.  Economic pressures, declining enrollments, population shifts and other forces took a toll on these programs.  Districts continued to attempt to revise their desegregation plans, but public interest and enforcement by the courts had dissipated considerably.  The lack of community support for these plans and the changing demographics of communities made it harder and harder to sustain desegregation as a goal in communities. The public will was not there.

On June 28, 2007, the Supreme Court issued another landmark decision in Parents Involved in Community Schools v. Seattle School District No. 1. The Court reviewed two voluntary desegregation plans, Seattle and Louisville, KY, that had been challenged. The Seattle school district was never subject to a mandatory desegregation order, but had voluntarily maintained a desegregated system through the use of voluntary transfers and schools of choice.  Students were classified as white and non-white and these categories were used to maintain balance and serve as “tiebreakers” in allocating students to programs in the district. The Seattle plan was challenged by parents whose white students were not able to get into desired schools because of the use of racial balance in the assignment of students.  Arguing that assigning students on the basis of race violated the 14th Amendment, they brought suit against the district. Both the Seattle Federal District Court and the Ninth Circuit Court of Appeals upheld the district’s plan as meeting a compelling government interest in maintaining racially diverse schools.  However, the Supreme Court in a 5-4 split decision reversed the lower courts.

Writing for the majority, Chief Justice Roberts took the very legal precedent established in the original Brown decision and used it to undo the Court’s commitment to desegregation.  Chief Justice Roberts wrote that assigning a student on the basis of race for desegregation purposes was no different than assigning a student on the basis of race in a “separate but equal” system.

“Before Brown, school children were told where they could and could not go to school based on the color of their skin.  The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again, even for very different reasons.  For schools that never segregated on the basis of race, such as, Seattle, or that have removed the vestiges of past segregation, such as Jefferson County, the way “to achieve a system of determining admission to the public schools on a nonracial basis,” Brown II, 349 U.S., at 300-301, is to stop assigning students on a racial basis. The way to stop discrimination on a racial basis is to stop discriminating on a racial basis.” Parents Involved in Community Schools v. Seattle School District No. 1, Chief Justice Roberts presenting the Opinion of the Court.

Justice Breyer, writing the dissenting opinion joined by Justices Stevens, Souter and Ginsburg, argues that the majority opinion fails to make the case that the Seattle and Louisville plans fail the Equal Protection Clause.  First, the plans of Seattle and Louisville intentionally further, not impede, the goals of desegregation.  Second, the tradition of the court has always been to promote, not detract from, bringing people of different races together.  Third, the two plans address a compelling state interest in a narrow and focused manner. Fourth, the majority’s questioning of the use of race-conscious criteria will delay and impede the work of school districts to bring about racially diverse schools. In a moving conclusion, Justice Breyer questions what this decision will do to the “hope and promise of Brown.”  Calling the Brown decision “this Court’s finest hour,” he wrote that the decision meant that equal protection of the law for all races was more than words on paper, and brought the promises of the Constitution into the reality of how we actually live as a nation.  He warns of the loss of these principles.

And in light of those challenges, they have asked us not to take from their hands the instruments they have used to rid their schools of racial segregation, instruments that they believe are needed to overcome the problems of cities divided by race and poverty.  The plurality would decline their modest request.

The plurality is wrong to do so.  The last half-century has witnessed great strides toward racial equality, but we have not yet realized the promise of Brown.  To invalidate the plans under review is to threaten the promise of Brown.   The plurality’s position, I fear, would break that promise.  This is a decision that the Court and the Nation will come to regret. Parents Involved in Community Schools v. Seattle School District No. 1 ET AL, Dissent opinion delivered by Justice Breyer joined by Justices Stevens, Souter and Ginsburg, Section VI, Conclusions.

We find ourselves today 118 years from the decision of the Supreme Court on May 18, 1896, still limiting racial equality as a nation “with reference to the established usages, customs , and traditions of the people, and with a view to the promotion of their comfort and the reservation of the public peace and good order.” (Plessy v. Ferguson)  The Brown decision happened 58 years after Plessy and 53 years before Parents v. Seattle. Now, today, 60 years after Brown, it seems more accurate to consider today as another step along a journey that began with the passage of the Reconstruction Amendments to the U.S. Constitution following the Civil War. Those amendments abolished slavery (13th); guaranteed equal protection and due process (14th) and provided the right to vote (15th).  But in Plessy the issue was not the law; but, rather, the level of comfort white people had with racial equality. It was about not wanting to sit next to a black person on the train. Brown resolved the legal issue of the applicability of the 14th Amendment to school desegregation, but it did not resolve the resistance to implementing it because we were uncomfortable as a nation and as local communities with sending our children to the same schools. In many ways, we still are.  And the Seattle decision ends up denying protections for equal accessibility to education choices because some of us are uncomfortable not getting everything we think we are entitled to.

Perhaps, then, the meaning of the 60th anniversary of the Brown decision is not a celebration of what was accomplished on May 17, 1954, but, rather, an awareness that we have not resolved the basic issue of racial equality from 118 years ago in Plessy. The Brown decision is actually a middle point of a series of events beginning with the end of the Civil War and continuing to today that center on whether we are comfortable, i.e., physically, socially, politically, economically, culturally comfortable with the idea of genuine racial and ethnic equality and full and equal participation for all in American life. We have to become comfortable with each other in far deeper ways than riding on the same railcar. We appear, instead, to be comfortable with racial and cultural discrepancies in education, income, employment, health, housing, and so on. This is to say, we do not appear to be prepared to eliminate these discrepancies; we accept them. Elimination will mean sharing full participation in all areas; sharing genuine economic and political power; sharing access to wealth and decision making; sharing access to opportunities; searching out and eliminating bias in our systems; and accepting that justice demands that we, as a society, are prepared to take action to recognize and reverse the effects of racism, classism and abuse of power that have characterized so much of our past.

 

Pat Burk, Ph.D.

Department of Educational Leadership and Policy

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