Hailed as the most important Supreme Court case of the 20th century, Brown v. the Board of Education on its diamond anniversary is no more than a gorgeous corpse. Brown today prevents state and local governments from hanging a “colored only” sign on the schoolhouse door – unfortunately it allows them to do everything they need to do to produce precisely the same outcome, without need for the sign. Eviscerated by subsequent decisions, Brown’s awesome potential is unrealized, and unlikely to ever be, doing nothing for an increasing fraction of students who attend legally segregated schools across the US. The nation should end its sardonic celebration of Brown’s 60th, and be rededicated to the task of desegregation.
Brown invalidated the Jim Crow establishment of parallel white and colored schools, repudiating the infamous “separate but equal” doctrine with its overruling of Plessy v Ferguson (1896). Brown was truly a giant leap forward for the US, predating the Civil Rights Act by a decade. So it was for the Warren Court: ever on the vanguard, dragging a reluctant nation into modernity. But Earl Warren, the chief justice, author and architect of Brown‘s 9-0 decision, retired in 1969. Nixon replaced him and 3 other justices, setting the stage for Brown‘s demise.
While every schoolkid learns the historical significance of Brown, few are taught Millken v. Bradley, which in 1974 cut Brown off at the knees. Board of Ed. of Oklahoma City v. Dowell was a conservative Court’s 1991 coup de grace,* rendering Brown a nullity.
Milliken is a quintessentially cynical conservative decision, in which 5 justices feign ignorance to the most basic facts in order to arrive at an indefensible decision. Milliken‘s majority observed that neighborhoods can become segregated by socio-economic factors. School districts in such neighborhoods, they explain, can as a consequence become segregated without any action on the part of the government. And thus may poor black neighborhoods beget poor black schools, and rich white neighborhoods beget rich white schools – and Brown, those 5 conservatives pronounced, has nothing to say about that. “Segregation is dead – long live segregation, y’all,” – their holding might well have been
Justice William O. Douglas takes Milliken‘s shiftless majority to task in a dissent that expounds the obvious: where school district lines are drawn and whether they get redrawn; where schools are erected; where municipal lines begin and end; where public housing projects are put up; and nearly every factor that integrates or segregates a given community’s public schools is determined by the government. The government’s decision to countenance racially segregated schools, rather than working to integrate them, is precisely that: a government decision. The Milliken majority acknowledges that where Detroit meets its suburbs there’s a line in the dirt, and the black kids on one side get routed into poor black schools, while white kids on the other side get routed into well-funded white schools. At this point the majority pretends to not grasp the obvious fact that the government chooses where that line is drawn, and whether it is redrawn to integrate schools, as Brown commands, or left alone.
5 conservative justices finished Brown off in its 1991 Oklahoma City decision. Oklahoma has among the most egregious records on segregation. The cordoning off of black kids into black-only schools was written into the state constitution from the day Oklahoma achieved statehood in 1907. Despite Brown, the Civil Rights Act, and an 11 year federal court battle, Oklahoma City schools were still segregated in 1972. Finally a new plan was implemented – and it worked: in 1977, a federal judge declared Oklahoma City schools to be integrated – 23 years after Brown!
But just 8 years later, Oklahoma City enacted a different plan to allocate students – and by 1989, its schools were segregated again. When plaintiffs sought to reopen the federal case that ended 70 years of Oklahoma City school segregation, 5 conservatives on the Supreme Court slammed shut the courthouse door. Never mind those 70 years, this conservative majority argued, asking us to believe that this more recent variety of segregation is the permissible Milliken kind, driven by economic decisions by private citizens. A mere 10 years of desegregation in the preceding 80 had miraculously turned Oklahoma into Massachusetts. Segregation is dead – long live segregation.
Justice Thurgood Marshall, who argued Brown before the Court in 1954, took on the Oklahoma City majority in his pointed dissent. The effect of Oklahoma City is to allow miscreant school districts – who were once subject to a desegregation order, and who subsequently satisfied that order by integrating – to backslide into segregation again by “private economic decisions” – and then when they get sued, they can hide behind Milliken, throw up their hands, and claim that this “new” segregation is not the result of government action. Long live segregation, y’all!
Milliken made sure that Brown could not apply outside of the south, allowing states like New York and California to have some of the most segregated school systems today. Oklahoma City next gave southern school districts the opportunity to be treated like New York and California – they need only desegregate for a few years, after which they can return to segregated business as usual.
Yeah I know it sucks – sorry to be the bearer of bad news – but Brown, in many respects now does more harm than good. Ironically, Plessy v. Ferguson might produce better results today, since it requires EQUAL to go along with separate. Brown, twisted from its original meaning by 40 years of conservative jurisprudence, is now the facilitator and protector of a system of separate and unequal schools across the country.
* CT kindly requests that all world citizens, francophonic or otherwise, enunciate the final c in “coup de grace.” Failure to do so results in “coup de gras”, which – though it may be poetically construed as a drink on Fat Tuesday, or, more farfetched, a judo move involving the buttocks – is unbearably grotesque in ears of a certain stripe. Grazi-yay a todo.