Historical Brown-Out

My operating system’s built-in dictionary defines “brownout” as “a partial blackout.” That seems to me a pretty good description of what has happened to the memory of what the NAACP Legal Defense Fund and its allies, in and out of court, argued in Brown vs. Board of Education and indeed throughout most of the LDF’s existence (and what the abolitionists and Radical Republicans had argued in the 19th Century).

I have had, and taken, a number of opportunities to discuss the “meaning of Brown v. Board of Education” — did it require colorblindness or taking race into account to produce integration? (see here, linking, “for starters,” seven others). Now, however, I want to discuss something related but narrower: the distorted memory of what the Brown plaintiffs argued.

The day after the Supreme Court’s recent decision in Parents Involved (barring racial assignment of students in Seattle and Louisville) was announced, the New York Times interviewed some of the surviving attorneys who argued Brown for their reactions.

The five opinions that made up yesterday’s decision limiting the use of race in assigning students to public schools referred to Brown v. Board of Education, the landmark 1954 school desegregation case, some 90 times. The justices went so far as to quote from the original briefs in the case and from the oral argument in 1952.

All of the justices on both sides of yesterday’s 5-to-4 decision claimed to be, in Chief Justice John G. Roberts Jr.’s phrase, ‘‘faithful to the heritage of Brown.’’

But lawyers who represented the black schoolchildren in the Brown case said yesterday that several justices in the majority had misinterpreted the positions they had taken in the litigation and had misunderstood the true meaning of Brown.

….

‘‘We have one fundamental contention,’’ a lawyer for the schoolchildren, Robert L. Carter, had told the court more than a half-century ago. ‘‘No state has any authority under the equal protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.’’

Chief Justice Roberts added yesterday, ‘‘There is no ambiguity in that statement.’’

But the man who made that statement, now a 90-year-old senior federal judge in Manhattan, disputed the chief justice’s characterization in an interview yesterday.

‘‘All that race was used for at that point in time was to deny equal opportunity to black people,’’ Judge Carter said of the 1950s. ‘‘It’s to stand that argument on its head to use race the way they use is now.’’

But is the “true meaning of Brown” identical with what attorney Carter (and his colleagues) argued in 1952 and 1953? And what exactly did Carter et al. argue? Was it what they actually said or their motives, goals, and intentions in saying what they said? What they meant? What they now say they meant then?

Jack Greenberg, who worked on the Brown case for the plaintiffs and is now a law professor at Columbia, called the chief justice’s interpretation ‘‘preposterous.’’

‘‘The plaintiffs in Brown were concerned with the marginalization and subjugation of black people,’’ Professor Greenberg said. ‘‘They said you can’t consider race, but that’s how race was being used.’’

The current views of Greenberg et al. are echoed in much of the legal academy (or vice versa). For example, Mary Dudziak, a noted legal historian at the University of Southern California, writes that

[t]he most important move in Chief Justice John Roberts’ majority opinion is to decontextualize 14th Amendment equality, and to take it out of the history of the subordination — not subordination of any individual — but of individuals who were members of certain groups….

More unfortunate than Roberts’ misuse of Brown II is the majority’s effort to wrap their handiwork in the garb of the architects of the legal struggle that achieved Brown in the first place. The Chief Justice quotes from the brief for the plaintiffs in Brown. He quotes NAACP lawyer Robert Carter, now a federal judge, who was one of the advocates, along with Thurgood Marshall, in the Supreme Court. He takes their statements out of context to imply that they argued for a form of colorblindness that is now used to undo their handiwork.

But what was their “handiwork”? Wasn’t it outlawing discrimination based on race? If so, how does barring assigning students to schools on the basis of their race “undo” it? And precisely what, and where, is this “context” out of which Roberts is accused of taking the arguments (or at least the words) of Marshall and Carter? It is certainly not the “context” of the long march of Marshall and the NAACP through all the cases they argued on their journey to Brown. In a long post on this issue several months ago I quoted Marshall’s statement from his Brown brief arguing that racial classifications are a “constitutional irrelevance” so arbitrary and capricious that they are not justified even to prevent actual violence, and then I added the following:

There was, of course, nothing new about this principled stand against the state classifying people by race. It had been a staple of NAACP argument from the beginning of its long march to eliminate the legal underpinnings of racial discrimination, as I pointed out here…. A few examples from Thurgood Marshall’s earlier arguments:

  • Classifications and distinctions based on race or color have no moral or legal validity in our society. They are contrary to our constitution and laws. Sipuel v. Oklahoma State Board of Regents, 332 U.S. 631 (1948)
  • There is no understandable factual basis for classification by race…. Sweatt v. Painter, 339 US 629 (1950)
  • Racial criteria are irrational, irrelevant, odious to our way of life and specifically proscribed under the Fourteenth Amendment. McLaurin v. Oklahoma, 339 U.S. 637 (1950)

But let us assume that Greenberg is correct now about what he and his colleagues “were concerned with” then, that their often-repeated arguments for colorblind neutrality were based not on principle, as they seemed to be saying, but instead were simply tactical and pragmatic weapons in an effort to improve the condition of blacks as a class. Even so, whatever their concerns, whatever their motives, what “[t]hey said” is that “you can’t consider race.” They didn’t say “you can’t consider race … unless doing so helps black people.”

Thus was Chief Justice Roberts’ characterization of their argument really “preposterous,” or are Greenberg, Carter, et al. in a tizzy because the Court’s current majority endorses what they actually did argue but they themselves no longer do?

An excellent starting point for this discussion is Jack Greenberg’s long rant on The Huffington Post against the Supreme Court’s recent decision in Parents Involved. His is a long post. I may come back to it later, but now I want to limit my own comments to its first part, in which he makes at some length the argument introduced above, that the Brown plaintiffs, or at least the attorneys who represented them, never intended to ban all classifications based on race and even that they never made any such argument. He begins by objecting to Justice Thomas’s and Chief Justice Roberts’ reliance on Thurgood Marshall’s own argument in Brown:

… Roberts reasoned that Brown v. Board of Education, which in 1954 held racial segregation unconstitutional, also made unconstitutional any plan that took race into account even if its purpose were to prevent segregation. In support he combed the briefs and arguments of Thurgood Marshall and other lawyers for black plaintiffs in Brown as well as the Harlan dissent. There he found:

…the position of the plaintiffs in Brown was spelled out in their brief and could not have been clearer: “The Fourteenth Amendment prevents states from according differential treatment to American children on the basis of their color or race.” … As counsel who appeared before this Court for the plaintiffs in Brown put it: “We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.”

Greenberg continues, clearly stating, and quoting others to support, the mantra that quoting the colorblind argument of the Brown plaintiffs to support, well, colorblindness turns their arguments, and thus Brown itself, on its head.

The record is clear, however, that Marshall decidedly would not have supported the Roberts position…. Anyone would have to hallucinate to believe that Thurgood Marshall would equate racial segregation with regulating school choice to maintain racial balance.

I was among those who argued alongside Marshall in Brown. Nobody at that time had heard of affirmative action. It had not yet been recognized as a public issue until required of the construction industry by Richard Nixon in 1962 [sic! Greenberg must mean 1972] and as national policy by Lyndon Johnson in 1965. [What about President Kennedy’s Executive Order 11925 in 1961? — jsr] It never occurred to me or anyone else that we were arguing for a color blind constitution that would prohibit government from affirmatively preferring African-Americans by promoting integration. All others among surviving counsel for the Brown plaintiffs emphatically disagree with the Roberts characterization and I am confident that those no longer with us would disagree too. Judge Robert L. Carter, whom Roberts and Thomas cite as supporting their position, has contradicted them: “All that race was used for at that point in time was to deny equal opportunity to black people…. It’s to stand that argument on its head to use race the way they use it now.” William T. Coleman Jr., another lawyer among counsel in Brown, later secretary of transportation in the Ford administration, said, “The majority opinion is 100 percent wrong.” ‘‘It’s dirty pool to say that the people Brown was supposed to protect are the people it’s now not going to protect.’’

United States District Judge Jack B. Weinstein, also counsel in Brown, has said that Chief Justice Roberts was completely wrong in citing argument made against racial distinctions in Brown as grounds for prohibiting schools from considering race to prevent them from becoming de facto segregated.

Greenberg is right here about only one thing: the record is indeed clear on whether or not the attorneys representing the black plaintiffs argued for a strict ban on all racial classifications, and Greenberg is clearly wrong.

Look closely at Greenberg’s claim that Roberts’ “characterization” is “preposterous.” Greenberg claims that if Marshall were alive he would not agree with the decision. In addition, he writes,

All others among surviving counsel for the Brown plaintiffs emphatically disagree with the Roberts characterization and I am confident that those no longer with us would disagree too.

But note well: Roberts made no claim whatsoever that Marshall would agree with him if he were still alive, or that any others among the surviving counsel would agree. His claim, which is true, is that his opinion is consistent with what Marshall et al. actually argued in Brown, not what they came to believe later. In fact, Roberts didn’t “characterize” the arguments of Marshall and Carter at all. He quoted them.

Greenberg is actually making two claims, or perhaps one claim supported by one type of evidence. The claim is that neither he nor “anyone else” associated with the Brown plaintiffs argued for a color blind Constitution that would bar racial classification in general, or assigning students to schools on the basis of race in particular. The support for this claim is an assertion, no doubt correct, that if Thurgood Marshall were alive today he would not agree with Roberts’ “characterization” or use of his views, a claim supported by similar statements by other surviving Brown counsel.

Let us deal with the support before moving on to the argument itself. Historians are acutely aware that one of the major problems with oral history is that what interviewees say today about what they did in the past quite often says more about their current views than their past actions. Nor does one have to be a deconstructionist literary critic to believe that authors do not enjoy the criticism-free immunity of a privileged position from which to interpret the meaning of their earlier writing. What Jack Greenberg, Thurgood Marshall, et al. actually wrote and said in the Brown proceedings is thus not only better evidence of what they wrote and said then than their current recollection or construction or interpretation; it is what they wrote and said then. And I will provide a good look at what they wrote and said in a moment.

Of course, what they wrote and said then may not establish beyond cavil either their intent at the time or the meaning of what they wrote and said, and certainly not what they would have written and said if they’d known then what they know now. As I’ve written at some length on this very point as it relates to Martin Luther King (Original Intent And Original Meaning [And Martin Luther King]), what Marshall would say today, what Greenberg et al. do say today, does not determine or change the meaning of what they actually wrote and said in the past, whatever their specific intent at the time may have been, and certainly not because of views they developed later.

More prosaically, however, I think the Brown record amply demonstrates that Greenberg is simply wrong when he asserts that “[i]t never occurred to me or anyone else that we were arguing for a color blind constitution that would prohibit government from affirmatively preferring African-Americans by promoting integration.” He and others no doubt did not foresee that in the future blacks would be beneficiaries of benefits — and whites and Asians the victims of burdens — distributed by the state on the basis of race alone, but they surely knew that the arguments they put forward with great cogency and force would bar any and all discrimination based on race, not simply discrimination against blacks.

Let’s look at a small part of the record of what the attorneys for the Brown plaintiffs argued before the Supreme Court. Unless otherwise noted (such as in the first example below), these quotations are taken from Leon Friedman, ed., BROWN v. BOARD OF EDUCATION: THE LANDMARK ORAL ARGUMENT BEFORE THE SUPREME COURT (2004), to which the page numbers refer.

  • “The Fourteenth Amendment precludes a state from imposing distinctions or classifications based upon race and color alone. The State of Kansas has no power thereunder to use race as a factor in affording educational opportunities to its citizens. “[Marshall’s Brief in Brown v. Board, p. 5. This brief was also signed by Robert Carter, the Judge Carter quoted by Greenberg above]
  • Robert Carter: “… no state can use race, and race alone, as a basis upon which to ground any legislative, any lawful constitutional authority and, particularly, this Court has indicated in a number of opinions that this is so because it not felt that race is a reasonable basis upon which to ground acts; it not a real differentiation, it is is not relvant and, in fact, this Court has indicated that race is arbitrary and an irrational standard…. “(15)
  • Carter: “…here we are contesting the power of the state to make any classification [on race] whatsoever….” [19]
  • Carter: “…our position is that there is no rational basis for classification based on [race].” [26]
  • Thurgood Marshall: “So on both the Fourteenth Amendment and the Fifteenth Amendment, this Court has repeatedly said that these distinctions on a racial basis or on a basis of ancestry are odious and invidious….” [43]
  • Marshall: “the broader point [is] that racial distinctions in and of themselves are invidious….” [45, emphasis added]
  • Marshall: “… The only thing that we ask for is that the state-imposed racial segregation be taken off, and to leave the county school board, the county people, the district people, to work out their own solution of the problem to assign children on any reasonable basis [other than race] they want to assign them on.” [47]
  • Marshall: “… you cannot use race as a basis of classification.” [65]
  • James Nabrit arguing Bolling v. Sharpe (against the District of Columbia): “[the 13th, 14th, and 15th Amendments] removed from the federal government any power to impose racial distinctions in dealing with its citizens…. [they] robbed any dubious power which the federal government may have had prior to that time to deal with people solely on the basis of race or color.” [119]
  • Louis Redding (Jack Greenberg co-signed this brief), arguing Gebhart v. Belton: “… what rights has the individual to protection against arbitrary action by the government? [emphasis added] …. [Redding argues] that classification on the basis of race to determine what educational facilities may be enjoyed is arbitrary and unreasonable, and because it is arbitrary and unreasonable, it is unconstitutional.” [161]
  • Spottswood Robinson, arguing (with Thurgood Marshall) Briggs v. Elliott: “I think the evidence [from the debate over the 14th Amendment] is clear that it was contemplated and understood that the state would not be permitted to use its power to maintain a class or caste system based upon race or color, and that the Fourteenth Amendment would operate as a prohibition against the imposition of any racial classification in respect of civil rights.” [193, emphasis added]
  • Marshall, arguing Briggs: “… the Fourteenth Amendment was adopted for the express purpose [of correcting] the situation theretofore existing in regard to the treatment of Negroes, slave or free, in a different category from the way you treated the others.” [197]
  • Marshall: [Opposes, and urges the Court to reject, the holding of Gong Lum v. Rice that] “a state has a right to classify on the basis of class, race, or ancestry…. [Argues instead that] the state is deprived of the power to make distinctions [based on race or ancestry].” [201]
  • Marshall (pressed by Frankfurter): “I think so far as our argument on the constitutional debates is concerned, … the state is deprived of any power to make any racial classification in any governmental field…. [Allows one exception — taking account of race in the census — then continues]: … but in any area where it touches the individuals concerned in any form or fashion, it is clear to me, to my mind, under the Fourteenth Amendment that you cannot separate people or denote that one shall go here and one shall go there [even] if the facilities are absolutely equal; that is the issue in this case.” [202, emphasis added]
  • Marshall: “And for the life of me, you can’t read the debates … without an understanding that the Fourteenth Amendment took away from the states the power to use race.” [234]
  • Marshall: “Ever since the Emancipation Proclamation, the Negro has been trying to get what was recognized in Strauder v. West Virginia, which is the same status as anybody else regardless of race.” [236, emphasis added]
  • Marshall [Referring to Justice Holmes’s opinion in Nixon v. Herndon, outlawing the white primary in Texas]:” …the Fourteenth Amendment said that the states can do a lot of classifying which we, speaking as a Court, can’t seem to understand, but it is clear that race cannot be used in suffrage.” [237]
  • J. Lee Rankin (U.S. Attorney General): “… the pervading purpose of the 14th Amendment was to establish that all men are equal, that they are equal before the law, that they are entitled to equal protection of the law, that no distinction can ever be made upon the basis of race or color…. [I]f there was anything the Fourteenth Amendement tried to do for this country, it was to make it clear that no discrimination could ever be made, based upon race or color, and that is the position of the Department of Justice in this matter.” [249, emphasis added]

After reading these affirmations and endorsements of colorblindness from the record, perhaps someone can explain to me the “context” out of which Roberts is alleged to have taken his quotations of the Brown counsel. In any event I believe this record of the plaintiffs’ arguments in Brown leads to some conclusions that are beyond reasonable dispute:

1. Although today’s retrospective commenters maintain that their Brown arguments were concerned (and concerned only) with dismantling a caste system that subjugated blacks, the record is abundantly clear that they attacked segregation on two grounds: not only that it denied equality to blacks, but also that it was based on the inherently impermissible practice of classifying people by race, an authority that was denied to the states in all circumstances. (And if Brown counsel believed the state is barred from classifying people by race, you can imagine what they believed about the authority of the state to treat people differently because of their race.)

These two attacks on segregation are often conflated, but they are, and were recognized at the time to be, quite distinct and independent. Indeed, of the two the attack on racial classification was the more fundamental. Thus in his opening argument for his Brown clients from Topeka, Robert Carter stated quite clearly:

We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no state has any authority under the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.

We say that for two reasons: First, we say that a division of citizens by states for public school purposes on the basis of race and color effect [sic] an unlawful and unconstitutional classification within the meaning of the equal protection clause; and secondly, we say that where public school attendance is determined on the basis of race and color, that it is impossible for Negro children to secure equal educational opportunities within the meaning of the equal protection of the laws….

It is our position that any legislative or governmental classification must fall with an even hand on all persons similarly situated.” [14]

Spottswood Robinson made the same point (quoted above from p. 193), i.e., that the Fourteenth Amendment did two things: it barred a caste system, and in addition it prohibited “the imposition of any racial classification in respect of civil rights.”

As we have seen in the above quotes, the argument that racial classification was illegitimate even where it did not lead to inequality was made repeatedly. Note again, as one example, Marshall’s assertion, quoted above from p. 47:

… you cannot separate people or denote that one shall go here and one shall go there [even] if the facilities are absolutely equal.

Marshall returned to this point more than once, as when he argued (partially quoted from p. 202 above):

… it is clear to me, to my mind, under the Fourteenth Amendment that you cannot separate people or denote that one shall go here and one shall go there [even] if the facilities are absolutely equal; that is the issue in this case, because in the South Carolina case especially it is admitted on record that every other thing about the schools is equal, schools, curricula, everything else. It is only the question of the power of the state to….

As I have pointed out here,

Nor were Marshall and the NAACP alone in taking this principled stand against all racial classification. They were supported by a number of amicus briefs, typical of which was a brief from the ACLU, the American Jewish Committee, and the Anti-Defamation League that asserted that segregation was unconstitutional not because it led to unequal facilities or impeded the learning of black students but because it is based upon “an inadmissible classification.” Those prototypical liberal organizations opposed all “differential treatment by State authority predicated upon racial classifications or distinctions.”

2. Retrospective commenters also argue that the purpose or “promise” of Brown was to promote, or even require, integration, but the arguments of Marshall et al. were quite explicit about demanding an end only to “state-imposed” segregation. As Marshall argued (quoted above from p. 47]:

The only thing that we ask for is that the state-imposed racial segregation be taken off, and to leave the county school board, the county people, the district people, to work out their own solution of the problem to assign children on any reasonable basis [other than race] they want to assign them on.

And again:

But my emphasis is that all we are asking for is to take off this state-imposed segregation. It is the state-imposed part of it that affects the individual children. 49]

Because one hears so often today that the “promise” of Brown was to promote integration and thus that both classifying and assigning by race are legitimate (some would say mandatory) practices, it is worth emphasizing here that Marshall explicitly rejected this view. After his statement quoted above, about doing no more than removing state-imposed segregation and letting local jurisdictions do whatever they chose, so long as they did not use race, Marshall was pressed hard on this point by Justice Frankfurter.

Justice Frankfurter: You mean, if we reverse, it will not entitle every mother to have her child go to a nonsegregated school in Clarendon County?

Mr. Marshall: No, sir.

Justice Frankfurter: What will it do? Would you mind spelling this out? What would happen?

Mr. Marshall: Yes, sir. The school board, I assume, would find some other method of distributing the children, a recognizable method, by drawing district lines…. I think whatever district lines they draw, if it can be shown that those lines are drawn on the basis of race or color, then I think they would violate the injunction. If the lines are drawn on a natural basis, without regard to race or color, then I think that nobody would have any complaint. [47–48, emphasis added]

Now it is true that the Brown record is filled with arguments that the Fourteenth Amendment was not intended to and does not prohibit reasonable classification based on race, and that courts have no business telling states or local school boards how to assign their students. (Not even the Supreme Court: “Your Honors do not sit, and cannot sit as a glorified Board of Education for the State of South Carolina or any other state.” [216])

For more examples, see the transcript of the oral arguments at pp. 51, 56, 134, 137, 141, 215, and 268. Those arguments, however, were all made by attorneys defending the racial assignment policies that the plaintiffs were attacking.

I used to think it odd — as I’ve argued here and here, among others — that (taken from the former)

preferentialists actually echo the argument of the majority opinion in Plessy v. Ferguson, which was based on the argument that the 14th Amendment does not require colorblindness and hence that racial discrimination in many circumstances can be reasonable and hence constitutional. The primary legal (not moral) difference between preferentialists and segregationists is not over principle — they both reject the non-discrimination principle favored by neutral colorblinders — but over which races it is reasonable and desirable to favor.

Now I find it equally odd that those who worked so hard and so well to persuade a unanimous Supreme Court that, as Thurgood Marshall put it, “racial distinctions in and of themselves are invidious” [45] and thus that “you cannot use race as a basis of classification” [65] have, in order to promote racial preference policies today, abandoned their principled arguments and now echo not only the Plessy majority who rejected Justice John Marshall Harlan’s famous plea for a colorblind Constitution but even the very arguments of their opponents in Brown.

I have argued — and, I think demonstrated — that, whatever their contemporary motives or current misgivings or second thoughts or creative re-interpretations, the attorneys for the Brown plaintiffs did in fact argue in favor of strict racially neutral colorblindness. They did not qualify their principled arguments against racial discrimination by saying or implying that, of course, the arguments only applied to policies that put blacks at some disadvantage. Indeed, when now Judge Robert Carter states, as he was quoted above, that

all that race was used for at that point in time was to deny equal opportunity to black people…. It’s to stand [the colorblind] argument on its head to use race the way they use is now,’’

and when Jack Greenberg says “[we] said you can’t consider race, but [subjugating and marginalizing blacks is] how race was being used,” I believe it is they who abandoned their own argument. Even worse, they demean it, by implying that they never would have argued that states are barred from classifying and preferring citizens based on race if they had realized that such an argument would ever be used to prevent school policies that they favor.

It is clear that many people today, not just the surviving Brown attorneys, believe that racial classification and preference are not prohibited by the Fourteenth Amendment, that Justice Harlan’s assertion that “our Constitution is colorblind” was and is mistaken, that racial preference policies are not only legitimate but necessary. They are entitled to their beliefs, but they are not entitled to say that such beliefs are consistent with the arguments that were actually made against segregation in Brown.

One final point: the nature and even the meaning of the plaintiffs’ arguments in Brown do not necessarily determine the “meaning of Brown” itself, either initially or later. The meaning of Brown itself, as opposed to the nature and meaning of the plaintiff’s arguments, requires a separate discussion. In that regard, if Brown had been perfect, had decided the race issue once and for all exactly the way we (whoever we are) would prefer, there would be no need for books like the thoughtful collection edited by Jack Balkin, WHAT BROWN V. BOARD OF EDUCATION SHOULD HAVE SAID: THE NATION’S TOP LEGAL EXPERTS REWRITE AMERICA’S LANDMARK CIVIL RIGHTS DECISION. Perhaps Balkin should invite Greenberg, Carter, Weinstein, and others to contribute to a similar collection of essays on WHAT THE BROWN PLAINTIFFS SHOULD HAVE ARGUED.

What Brown itself decided is another story, but it will come as no surprise to readers here that I believe that the fundamental principle inherent in the Brown decision is that official racial classifications, and especially racial preferences by the state, are prohibited because they are both inherently wrong and unconstitutional.

Certainly that was the original understanding in the years immediately after it was decided. As the historian Raymond Wolters has written (wisely and well) (citations omitted),

…. Because it held that government officials could not separate blacks from whites “solely” on the basis of race, Brown was initially understood to require only that states must desist from official racial discrimination. In the 1950s and early 1960s hardly anyone favored the formal assignment of students (or the employment of workers) on the basis of race so as to achieve more racial mixing than could be achieved by racially neutral policies. Desegregation would be required. But integration would not be imposed. Until the late 1960s, Brown was understood to forbid the public schools from practicing any sort of racial discrimination. At that time most civil rights activists said that race and color were irrelevant to the proper consideration of a person’s worth. They sought the advancement of blacks but assumed this could be accomplished if the schools treated students as individuals, without regard to race, color, or creed.

The idea that official racial discrimination was prohibited also seemed to be implied in Bolling v. Sharpe (decided the same day as Brown), in which the Supreme Court ruled against segregation in the public schools of the District of Columbia—on the grounds that racial classifications were too arbitrary to satisfy the requirements of the due process clause. That Brown prohibited official racial discrimination also seemed to be the message in several per curiam decisions in which the Court later invalidated laws requiring segregation of municipal parks and recreational facilities. In 1955 the implementation decision in Brown was worded so as to condemn “discrimination” rather than “segregation” in education. Three years later, in Cooper v. Aaron (1958), a case that arose in Little Rock, Arkansas, the Court held that Brown had established that children have “the constitutional right … not to be discriminated against in school admission on grounds of race or color.” Civil rights activists and sympathizers understood this to mean that the Court had declared that official classification by race was unconstitutional per se.

In response to the decisions of the Supreme Court, lower federal courts affirmed that racial discrimination was prohibited and that the Constitution required the government to treat each person as an individual without regard to race. Stated most fluently, perhaps, by Circuit Judge John J. Parker in Briggs v. Elliott (1955), this point of view was frequently called the Briggs dictum. For more than a decade it was the authoritative construction of Brown: “It is important that we point out exactly what the Supreme Court has decided and what it has not decided…. The Constitution … does not require integration. It merely forbids discrimination.” [NOTE: This article is no longer available online, but Wolters has made and documented the same argument at greater length in his books, THE BURDEN OF BROWN and RACE AND EDUCATION, 1954-2007.]

More than a decade after Brown, the Supreme Court did move to require integration (although that, too, changed over time), and liberals who for their entire careers had argued for non-discriminatory colorblind neutrality began to support preferential treatment based on race.

As I said, that is another story, but whatever its own merits it is not sufficient to deny or revise what the plaintiffs actually argued in Brown.

Say What? (18)

  1. FreeMan August 19, 2007 at 11:15 pm | | Reply

    Words are based on context if the context is support for Anti-Affirmative Action 1 says we support equal rights for everyone – if the context is support for Affirmative Action 1 says currently Women suffer under sexism & People of Color suffer under racism & if 1 treats Women & People of Color = to White European-American Males that are the US’ most socially powerful group then in a wholistic sense Women & People of Color will be under injustice

    Under the Republican US Supreme Court’s new interpretation Race can not be used as a factor in school assignments –

    Schools in the US are still racially segregated despite the 1954 Brown decision that calls “for all deliberate speed” to integrate public schools

    The words of the ’54 argument may be identical but the context is different – the difference is in 1954 US public schools Black Afrikans could not attend public schools with White European-Americans because they were Black Afrikans

    Now based on those words after there has been some racial desegregation 53 years later – public schools that are still racially segregated can not be racially integrated based on the the US Supreme Court’s ban on the use of race in public school assignment

  2. David August 20, 2007 at 10:43 am | | Reply

    As a Supreme Court Justice, did Marshall ever join a decision that was restrictive or hostile towards AA or preferences? So give his former co-counsels their octa- or nonagenarian due- their memories of what his positions post-1954 are certainly clear. It would actually be interesting to see how the principles advanced in the Brown briefs changed over the years. It’s obvious that pro-AA folks distinguish between invidious uses of race vs. appropriate uses of race. It’s also apparent that their conception of appropriate, or beneficial uses of race (e.g., Parents United) is contingent upon reliance of so-called experts to develop and apply these uses. The notion of race-neutral becomes a quaint or unattainable condition that is the province of unreasonable, unyielding utopians (and conservatives).

  3. John Rosenberg August 20, 2007 at 2:12 pm | | Reply

    So give his former co-counsels their octa- or nonagenarian due- their memories of what his positions post-1954 are certainly clear.

    I didn’t criticize their memories of his positions on the Court.

    It would actually be interesting to see how the principles advanced in the Brown briefs changed over the years.

    I agree. I’m working on it.

    It’s obvious that pro-AA folks distinguish between invidious uses of race vs. appropriate uses of race.

    But the Brown counsel argued that all racial classifications, not to mention all differential treatment based on race, was invidious. They and friends later abandoned that position and now act like they always believed what they believe now. Moreover, those of us who oppose all racial discrimination believe that race preferences themselves are invidious, because they reinforce the notion that the beneficiaries couldn’t succeed without special treatment.

    It’s also apparent that their conception of appropriate, or beneficial uses of race (e.g., Parents United) is contingent upon reliance of so-called experts to develop and apply these uses.

    I’m not sure I understand this, so this isn’t apparent to me. You mean preferentialists don’t know when/where to distribute preferences until they hear from experts?

    The notion of race-neutral becomes a quaint or unattainable condition that is the province of unreasonable, unyielding utopians (and conservatives).

    I assume you mean that this is what preferentialists think. They remind me of the Southern diehards I grew up with who said you could never legislate or judicially impose racial equality.

  4. willowglen August 20, 2007 at 5:33 pm | | Reply

    The notion of race-neutral becomes a quaint or unattainable condition that is the province of unreasonable, unyielding utopians (and conservatives).

    _________________

    Isn’t this worldview really the problem? Courts exist to settle cases or controversies. They don’t exist to engage in social engineering, or further any state of utopia or non-utopia. Be liberal or conservative, to have expectations that the Court can resolve these problems, or somehow on their own “make” for a better society: 1) ignores the role that our Courts are supposed to play under Article III; and 2) is actually the province of the lazy, who (whether conservative or liberal) would rather see a convenient result in a case rather than pursue substantive programs that could make a difference.

    Besides, raising the issue as to whether race neutrality is ever an attainable condition really is the worst form of a straw man. Yes, a total absence of murders in society will never be attainable either, but that doesn’t mean that we will cease trying to prevent them or make positive changes to our criminal justice system to reduce them.

  5. eddy August 20, 2007 at 11:16 pm | | Reply

    Since the nature of the underlying issue relates to our fundamental treatment of people, does it make sense to entertain incredibly nuanced positions? “I argued broad principles, but I intended subtle benefits” is not the stuff that that makes for solid foundations of fairness.

    If the essence of Brown I and the figurative Brown II can’t be distilled into one pithy paragraph, then we haven’t arrived at our essential understanding of whatever civil liberties we wish to acknowledge as the property of free people. If we can’t agree on basic civil liberties, we have no hope in gauging the cost/benefits in suspending those rights in the name of whatever ancillary gains that might arrive from integration or other progeny of the optimistic social sciences.

    It is hard to believe that our fundamental rights can only be elucidated though the intellectual flatulence of those who speak of the ‘promise’ of Brown rather than the principles that secured its decision. The ultimate answer must be simpler than the strained explanation they offer. Fundamental truths don’t require tortuous rationales, they resonate clearly.

  6. David August 21, 2007 at 10:53 am | | Reply

    Some quick follow ups to points from my post that were misunderstood…

    The preferentialists are the experts. I can’t imagine that too many parents of children in public schools would concoct the type of racial assignment schemes that were recently struck down. When school assignment depends on fulfilling quotas and the types of racial classifications that were used in Seattle and Louisville, it is self-evidently an “expert” solution. Are there alternatives to the common sense approach, i.e., geographic proximity, that are not reliant on arguments like the “benefits of diversity”? Once the diversity ball starts rolling, a parent’s simple request to send his kid to a neighborhood campus is quaint in comparison to the testimony of all them learned perfessers.

    To take this a little further, geographic school assignment is race-neutral. It is a simple and logical scheme, and in many cases reflects the desire of the community- people like to move to neighborhoods with good schools. For the AA crowd, it’s not good enough. Dubious notions such as structural racism and disproportionate impact are elaborated to overcome race neutral policies. In support of this, race neutral policies must be derided as inherently racist, not reflective of “real” conditions, and violations of our sense of “social justice”. Therefore, race neutral policies are only acceptable in a perfect world, free from the ills that supposedly infect our society. Who would oppose a world free of prejudice and fairness? Only utopians who cling to the notion that race neutral is desirable. These people also happen to be political opponents of the preferentialists, which is convenient. Never mind that the utopians in this case advocate an approach that is relatively simple and thus easily understood. Want your kids in a better school? Move to a neighborhood that supports a better school. Can’t afford it? Then invest your time so that your kid overcomes the limitations of his school (which are likely to be the limitations of your neighbors). On the other hand, the preferentialists offer a complex solution that focuses on anticipated yet ultimately imaginary outcomes, not clear cut rules to which parents can readily respond.

  7. FreeMan August 21, 2007 at 11:40 am | | Reply

    Geographic residential housing paaterns are not race neutral – because despite Racial Discrimination in residential housing being illegal – it still happens against People of Color – & there is the residual effect of racial discrimination in housing since 1968 1st time declared illegal

  8. John Rosenberg August 21, 2007 at 11:58 am | | Reply

    Geographic residential housing paaterns are not race neutral

    Then why not impose integration”diversity” on

    neighborhoods? Should be easy. Simply prohibit mortgage loans to home

    purchasers who don’t contribute to, or maintain, the appropriately

    “diverse” mix where they want to buy or build. Why force children to endure

    two hour+ cross town bus rides when you can more easily require their

    parent(s) to live/move in “diverse” neighborhoods?

  9. David Nieporent August 23, 2007 at 5:34 am | | Reply

    A. That was a really really really long post.

    B. I think Greenberg might be telling the truth when he says “It never occurred to me or anyone else that we were arguing for a color blind constitution that would prohibit government from affirmatively preferring African-Americans by promoting integration.” But that raises two points:

    1. If that HAD occurred to him and Marshall and the other civil rights fighters, does that mean they wouldn’t have said what they said? What would they have said? “No state has any authority under the equal protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens. Ha! Just kidding! We think the Fourteenth Amendment means that states can’t use race unless it helps the people we represent.”

    2. If the “context” has changed so much now that something that was unthinkable in 1954 — that government would be using race to help blacks rather than hurt them — is now reality, then doesn’t that suggest that the “context” of so-called “segregated” schools is very different now and Brown is irrelevant to this “context”? And if Brown is irrelevant, then isn’t all this talk about “undermining” Brown, or being “unfaithful” to it, completely misplaced?

  10. John Rosenberg August 23, 2007 at 7:46 am | | Reply

    That was a really really really long post.

    Boy, tell me about it. You should see how long it was from this end! (Do you think I should avoid long posts?)

    If that HAD occurred to him and Marshall and the other civil rights fighters, does that mean they wouldn’t have said what they said? ….

    In fact, apparently it was so long that by the time you got to the end you forgot that earlier on I made, or tried to make, exactly your point (which means I think it is a very good one):

    But let us assume that Greenberg is correct now about what he and his colleagues “were concerned with” then, that their often-repeated arguments for colorblind neutrality were based not on principle, as they seemed to be saying, but instead were simply tactical and pragmatic weapons in an effort to improve the condition of blacks as a class. Even so, whatever their concerns, whatever their motives, what “[t]hey said” is that “you can’t consider race.” They didn’t say “you can’t consider race … unless doing so helps black people.”

    And later on, more obliquely:

    He [Greenberg] and others no doubt did not foresee that in the future blacks would be beneficiaries of benefits — and whites and Asians the victims of burdens — distributed by the state on the basis of race alone, but they surely knew that the arguments they put forward with great cogency and force would bar any and all discrimination based on race, not simply discrimination against blacks.

    If the “context” has changed so much now that something that was unthinkable in 1954 — that government would be using race to help blacks rather than hurt them — is now reality, then doesn’t that suggest that the “context” of so-called “segregated” schools is very different now and Brown is irrelevant to this “context”? And if Brown is irrelevant, then isn’t all this talk about “undermining” Brown, or being “unfaithful” to it, completely misplaced?

    This is a truly excellent point. I wish I’d made it. I didn’t think of it, but I almost made it anyway by citing an OpEd in the New York Times by Juan Williams that makes almost this same argument, thought not quite as well as you do here. (Article now behind Times Select barrier.) If I had linked to Williams, I would have gone on to note that the “Brown is no longer relevant” argument, i.e., “segregation” today is not what it was then, is inescapable if one believes what Marshall argued (believes that Marshall believed what Marshall argued?) when he emphasize that it was the state-imposed nature of segregation that made it unconstitutional, not the mere fact of physical separation.

  11. FreeMan August 23, 2007 at 8:50 pm | | Reply

    Deception – The US government no longer supports race to help People of Color or supports gender to help Women – Bush & the Republicans – the Ruling Political organization in the US oppose Affirmative Action

    Brown is relevant because Brown said public schools are to be racially integrated with “all deliberate speed” in 1954 – but today public schools are still racially segregated

    Brown didn’t say that the States should remove state imposed sergregation – Brown says public schools are to be racially integrated

  12. John Rosenberg August 23, 2007 at 10:59 pm | | Reply

    Brown is relevant because Brown said public schools are to be racially integrated with “all deliberate speed” in 1954 – but today public schools are still racially segregated. Brown didn’t say that the States should remove state imposed sergregation – Brown says public schools are to be racially integrated

    This is not only wrong. It is demonstrably, flatly, completely wrong.

    In Brown II, the decision implementing Brown, the Court said clearly and specifically that “full compliance” with its decision required school districts “to achieve a system of determining admission to the public schools on a nonracial basis.” The Court emphasized, clearly and specifically, that what was “[a]t stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis,” and what was required was “determining admission to the public schools on a nonracial basis.” Brown II, 349 U.S., at 300-301 (emphasis added).

    You must not have actually read my post. If you had, you would have seen the quote from Thurgood Marshall stating, clearly and emphatically, that even schools that were made up completely of students of one race, either white or black, would not violate the order he was seeking (and received) from the Court so long as the segregation was not the result of the school district assigning the students by race.

  13. FreeMan August 24, 2007 at 6:07 am | | Reply

    Did I say Brown II – Deception legal technical distinction based upon racism against People of Color- Did Brown say that US public schools are to be “integrated with all deliberate speed”? Yes or No? Brown II is the US Supreme Court’s responding to US racism against People of Color to slow down the affect of Brown –

    But the bottom line is the recent Republican US Supreme Court decision makes it easier to not integrate public schools because race can no longer influence school assignment decisions

  14. John Rosenberg August 24, 2007 at 8:20 am | | Reply

    Did I say Brown II

    No, you didn’t. But you should have, since that is the part of “Brown” that actually told school districts what to do.

    Deception legal technical distinction based upon racism against People of Color…

    Pure rant, says nothing.

    Did Brown say that US public schools are to be “integrated with all deliberate speed”? Yes or No?

    No. N-O. What part of “no” do you not understand? Brown I (347 U.S. 483), which seems to be the only opinion you care about, DID NOT say this, or anything like it. There is no requirement in Brown I to do anything with “all deliberate speed.”

    Here is the relevant language. It is from the last paragraph, or the last one before “It is so ordered,” from Brown II (349 U.S. 294):

    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. [Emphasis added]

    What Brown ordered, in short, was implementing “with all deliberate speed” school assignment policies that assigned students on “a racially non-discriminatory basis. Nowhere, in Brown I or Brown II, did it order that schools be “integrated with all deliberate speed.”

    You may continue to argue this point, but you’ll have to, you know, actually argue it. I’m not posting any more comments that consist entirely of rant, invective, and rank, unsupported assertions.

  15. David Nieporent August 25, 2007 at 7:10 am | | Reply

    Boy, tell me about it. You should see how long it was from this end! (Do you think I should avoid long posts?)

    Not at all. Substantive posts, as opposed to quick hit-and-run comments (not that there’s anything wrong with that), are quite informative.

    But I would suggest putting it in the “extended entry” part of the blog post so that when looking at the front page of Discriminations, it isn’t quite so overwhelming.

  16. […] and affirmation of the principle that discrimination on the basis of race is wrong. Just as the meaning of Brown v. Board of Education  has been distorted in an attempt to justify the very race-based treatment that it rejected, […]

  17. […] I should have stated in my review that this characterization of Humphrey and his liberal argument for civil rights is not only unjustifiably condescending; its attack on white racial liberalism is both offensive and completely wrong. The “racial liberalism” espoused by Humphrey and other supporters of the 1964 Civil Rights Act was thoroughly and completely indistinguishable from the racial liberalism advocated by the NAACP Legal Defense Fund over its long and illustrious career undermining Jim Crow and by Thurgood Marshall and his colleagues in their briefs and arguments to the Supreme Court in Brown v. Board of Education. I have quoted a sampling of their views in several  long posts, here, here and here. […]

  18. The Historical Brown-Out Continues May 13, 2014 at 10:11 pm |

    […] here) of many of the participants in that historic event. Nearly seven years ago, in “Historical Brown-Out,” I began by noting […]

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