The most important and illuminating early writing on Brown v. Board of Education is a nine-page essay by Charles Black. Black memorably shows that segregation was a crucial part of a racial caste system. At the same time, he cuts through legal abstractions that made it difficult to answer the question whether the Court’s decision was sufficiently “neutral.” At the same time, Black’s argument suffers from two serious problems: formalism and institution-blindness. Black writes as if his interpretation of the equal protection clause can be simply read off the clause, and he does not engage the complex institutional problems that were raised by the Court’s decision. Nonetheless, the legal culture needs more voices like Black’s.
Brown, School Choice, and the Suburban Veto
Many who are familiar with Brown v. Board of Education and the Southern response to the decision are at least vaguely aware that Southern states and school districts relied on school choice as one tool in their strategy of massive resistance. This Essay argues that Brown’s relationship to school choice, however, is more complicated, more long-lasting, and more important than this limited and familiar connection. It describes that relationship in more detail and explains why it is not only of historic interest, but of contemporary concern as well.
Brown, ironically and unintentionally, helped make the use of vouchers at religious schools constitutional. That is, Brown helped create the political and social conditions that made possible the Supreme Court’s 2002 decision in Zelman v. Simmons-Harris, upholding the use of vouchers at religious schools. The Court’s approval of vouchers, in turn, is helping to fuel a broader school-choice movement. While once a threat to the realization of Brown’s promise, school choice may now be one of the only ways to achieve integration. Whether school choice will successfully promote integration, however, depends to a large degree on whether the political legacy of Milliken v. Bradley—what this Essay calls “the suburban veto”—can be overcome.
Brown at 50
This Essay, which commemorates the fiftieth anniversary of Brown v. Board of Education, canvasses three issues: (1) why Brown was a hard case for the justices; (2) how the justices were able to overcome their legal doubts about invalidating school segregation to achieve a unanimous decision invalidating that practice; (3) and the consequences of Brown. With regard to the last point, the essay summarizes an argument developed at greater length in my book From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality, asserting that Brown radicalized political opinion in the South, thus creating a climate ripe for violence. When the brutalization of peaceful black protestors by white law enforcement officers was broadcast on national television, it helped transform national opinion on race, leading directly to the enactment of landmark civil rights legislation.