The Ambiguous Legacy of Brown

May 17th marks the 50th anniversary of the landmark Supreme Court decision, Brown v. Board of Education. By officially desegregating public schools in America, a unanimous high court prompted the most productive decade of the modern civil rights movement, culminating in the 1964 Civil Rights Act and 1965 Voting Rights Act. However, the legacy of Brown remains mixed as its praiseworthy conclusion stands at odds with its flawed reasoning.

To arrive at their conclusion, the Court had to sidestep a notorious but longstanding precedent, the 1896 Plessy v. Ferguson case. By a 7-1 decision, Plessy had upheld racially segregated railway cars in Louisiana as permissible under the 14th Amendment’s “equal protection” clause. Even though the Court acknowledged that the aim of the 14th Amendment “was undoubtedly to enforce the absolute equality of the two races before the law,” Justice Henry Brown argued that “it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality.”

Although Plessy is usually associated with the concept of “separate but equal,” the Court’s argument centered on the “reasonable” exercise of a state’s police power. Brown argued that to determine the reasonableness of a state’s law, the Court was obliged to give “a large discretion on the part of the legislature.” Specifically, a state was “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.” Translation: The prejudices of white Southerners, which threatened mob reaction to commingling of the races, could dictate how citizens of different races could travel together. Almost 60 years would pass before the Court would question Plessy’s authority.

In Brown v. Board of Education, newly-appointed Chief Justice Earl Warren argued that because “compulsory school attendance” was not prevalent in the United States when Congress debated the 14th Amendment, how that amendment applied to segregated public education in the 19th century was uncertain. But even Plessy noted that the same Congress had authorized separate schools for blacks and whites in the District of Columbia with no apparent breach of the Constitution. Warren simply ignored this history in order to base his ruling on more recent history and Court precedents.

Specifically, because education had become commonplace by the mid-20th century and “perhaps the most important function of state and local governments,” it had to be provided “to all on equal terms.” How then did the Court define “equal”?

Warren could not rule that segregated schools were unconstitutional under the Plessy precedent because all four of the state cases involved in Brown dealt with schools that were “equalized, or… being equalized” with respect to “tangible factors,” such as facilities, books, and teacher qualifications. Relying on a fairly recent case involving a Texas law school (Sweatt v. Painter, 1950), Warren argued that the mere separation of black students from white students produces “a feeling of inferiority” that resulted in unequal educational opportunities. His conclusion? “Separate educational facilities are inherently unequal.”

Here is where the problems mounted for Warren’s logic. The “modern authority” he cited to support his thesis actually concluded the opposite. The lead study by Kenneth B. Clark, which used different colored dolls to compare black children’s self-esteem in segregated and integrated schools, showed that a greater percentage of the segregated kids than the integrated kids chose the black dolls as their favorite. Mere separation did not generate low self-esteem.

Assume for the moment that social science did support the Court’s claim. Is this really the best way to determine if someone’s rights have been violated under the Constitution? Equal treatment under the law should be secured on a more solid basis than the purported outcomes of an emotional assessment.

How strongly the high court still follows this specious line of reasoning was seen just last year in its affirmative action cases involving the University of Michigan. In Grutter v. Bollinger, Justice Sandra Day O’Connor argued that Michigan’s law school could consider race in admissions without violating the equal protection of the laws because confidence in “our Nation’s leaders” depends upon a perception of legitimacy. It required that “the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.” Instead of reinforcing the 1964 Civil Rights Act, which requires that institutions and procedures be equally administered under the 14th Amendment, O’Connor turned mere racial representation into a constitutional imperative.

Brown formally rejected the concept of white supremacy as a “reasonable” enforcement of equality under the law. But it reinforced a judicial scrutiny that remains only skin deep when it comes to securing civil rights. Full acceptance of blacks into the American body politic will remain an illusion as long as race remains the measure of a person’s rights.

Lucas E. Morel is associate professor of politics at Washington and Lee University in Lexington, Virginia and is an adjunct fellow at the Ashbrook Center.