THR Blog   /   May 16, 2014

Happy Birthday, Brown v. Board of Education!

Jay Tolson

(Above: Poster used in the April 1, 2003, Civil Rights March on Washington; Library of Congress)

May 17, 2014, marks the sixtieth anniversary of the U.S. Supreme Court's landmark ruling, Brown v. Board of Education, and I only wish the occasion was as happy, in an unqualified way, as the exuberant headline above sounds.

Certainly, there are still reasons to rejoice.  One of the most powerful bulwarks of Jim Crow segregation began to fall that day in 1954, when the high court justices unanimously overruled the "separate but equal" doctrine encased in the 1896 Plessy v. Ferguson decision. President Barack Obama is surely justified in his proclamation that Brown "shifted the legal and moral compass of the Nation."

Nevertheless—and here the other shoe must drop—no longer separate still falls abysmally short of accomplishing the other, equally important goal of the ruling.  As I wrote ten years ago (in US News & World Report, March 22, 2004) in the run-up to the fiftieth anniversary, the unfinished business of Brown remained unfinished:

 But the great tragedy of Brown, many commentators agree, is that its original emphasis on racial integration as a means toward equal education somehow shifted toward an emphasis on integration as the end itself. Lost in the shuffle of subsequent rulings and interpretations was the other desired result: educational equality. Things could have been otherwise, argues Yale legal scholar Jack Balkin. After all, in Brown, Chief Justice Earl Warren wrote that education was "a right which must be made available to all on equal terms." And in Bolling v. Sharpe, which desegregated Washington, D.C., schools concurrently with the Brown decision, he almost stipulated that education itself was a fundamental constitutional right. "It would have changed the way people talked about Brown," Balkin says. "If you can say what is really at stake is equality of education, you can talk about whether you are creating equal opportunity."

Without such clarity, subsequent decisions reached by courts more conservative than Warren's produced much narrower interpretations of Brown. In San Antonio Independent School District v. Rodriquez (1973), the majority concluded that the state had no obligation to equalize funding for an urban school district whose tax base was considerably lower than that of nearby suburban districts. The 14th Amendment "does not require absolute equality or precisely equal advantages," the majority argued, adding that education was "not a fundamental interest" under the Constitution.

Similarly, Milliken v. Bradley (1974) overturned a federal district court ruling that found integration in greater metropolitan Detroit could be achieved by busing children from the city school district to suburban ones. Noting that the suburban districts had not themselves practiced discrimination, the Supreme Court determined that the remedy was inappropriate. Foes of affirmative action, sometimes resorting to similar logic, have also used Brown's implicit embrace of colorblindness to argue against racial preferences in admission

policies.

No one needs to be told that law is an imperfect instrument for redressing social ills and injustices. Laws can even be turned against what might seem to have been their original intent—which is only to say that laws seldom rise above the times that interpret them.

And that may be the saddest comment on the times that surround this anniversary of the landmark ruling: that there is now so little public passion, and perhaps even less political will, to provide the kind of equal education that is the true foundation of equal opportunity.

So, yes, Happy Birthday, Brown!  Let's acknowledge the good.  But may the next anniversary gives us even greater cause for celebration.