The Home of American Intellectual Conservatism — First Principles

December 17, 2017

Brown v. Board of Education
Peter Augustine Lawler - 11/28/12

Brown v. Board of Education (1954) is the Supreme Court decision that employed the equal protection clause of the Fourteenth Amendment to declare racially based segregation in primary and secondary public schools unconstitutional. The Court’s decision was unanimous, and all the justices joined in the opinion of the Court by Chief Justice Earl Warren. Many conservatives opposed the Court’s decision at the time, and still more objected to the argument given by the Court in its opinion. Conservatives generally oppose judicial activism, and this decision was certainly that. Conservatives also tend to be partisans of federalism or states’ rights, and this decision did constrain state governments in unprecedented ways. Some conservatives, in fact, regret the existence of the Fourteenth Amendment; a few even believe it unconstitutional. Another conservative argument against Brown might be called democratic. The initiation of a successful social revolution by judges turned out to set a terrible precedent, leading to subsequent, much less justifiable judicial revolutions, such as the one inaugurated by Roe v. Wade (1973).

Today, however, there is a broad conservative consensus that the Court’s decision—but not its opinion—in Brown was constitutional, and that America is better off without the burden of racial distinctions in the law. The conservative constitutional argument today is that all such distinctions are unconstitutional, and they use it to fight against the racial preferences granted by various affirmative action schemes. Thus, many conservatives now applaud judicial activism when it is directed against race-based preferences in employment and higher education. The two most able conservative members of the Supreme Court—Justices Antonin Scalia and Clarence Thomas—both view our Constitution and the law as colorblind.

From one viewpoint, the Supreme Court erred in its Brown opinion by being too conservative, too unwilling to overrule the reigning precedent in constitutional interpretation. In Plessy v. Ferguson (1896), a case concerning railroad transportation, the Court held that Louisiana law could require the separation of passengers by race as long as equal treatment was given to all. The view now held by Scalia and Thomas, but never affirmed by a majority of members of the Court, was put forward in a lone dissent by Justice John Marshall Harlan. The Court, in Brown, did not really reverse Plessy, much less affirm Harlan’s view that American law should never take race into account.

The Court in Brown dealt first with evidence that the Congress that passed the Fourteenth Amendment failed to apply its principles against segregation in public education. The Court’s response was that the intention of the amendment was protecting the rights of citizens. In 1868, public education was plausibly not such a right, given that the states did not offer compulsory public education and that service in the armed forces—the most basic duty of a citizen—could be performed by illiterates. In 1954, the provision of compulsory public education was “perhaps the most important function of state and local governments” and was widely regarded as “the very foundation of good citizenship.” It now was required for military service. Principles remain the same, the Court explained, but circumstances change.

The Court then had to explain why separate educational facilities for the two races were “inherently unequal.” It relied on recent precedents that claimed equality in education encompassed not only “tangible” facilities but also “intangible considerations” such as a school’s reputation for greatness and a student’s ability to interact with fellow students. In elementary and high school education, the Court argued, the relevant intangible or psychological consideration is that separating children “from others of similar age and qualification solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely to be undone.”

For evidence of both this feeling and its connection with educational equality the Court added a footnote full of social scientific studies. The first and most important of these “modern studies,” by social psychologist Kenneth Clark, has been thoroughly discredited, and even Clark himself later acknowledged that he had not shown any connection between racially based feelings of inferiority and legally based educational segregation. The Court implied that the only thing wrong with Plessy was the 1896 Court’s unavoidable ignorance of modern social science. But in truth, by 1954 social scientists had discovered nothing that would justify a reversal of Plessy. Plessy had to do with transportation, not education; passengers lacking in self-esteem do not keep the train from getting to the station on time. The Court did not really show that there was anything wrong with Plessy. Its intention was to seem to reverse Plessy without actually doing so. Brown does not even attempt to show why segregation, in general, is unconstitutional.

The resisting South’s main argument against Brown was that it was based on bad applied social science rather than on sound principles of law, and the hope in some quarters was that if the studies were discredited segregation could return. This hope was unreasonable. Within a year, the Court, citing Brown as a precedent, struck down laws segregating recreational facilities and within two years, transportation itself. The Court made it clear enough that the social science was window dressing, but at the cost of great confusion, for it gave no other argument for the inherent unconstitutionality of racial distinctions in the law. It was, strictly speaking, ridiculous for the Court to say that Brown could provide any guidance concerning the constitutionality of segregated golf courses. Without an argument justifying its action, the Court rightly stands accused of judicial imperialism. But that does not mean that Brown was wrongly decided.

In retrospect, the Court clearly should have been bold enough actually to reverse Plessy by affirming Harlan’s view of the colorblind intention of the Fourteenth Amendment. The confusion created by Brown was largely responsible for some of the worst moments in recent U.S. history, including the South’s “massive resistance” and the chaos and resentment caused by court-ordered busing. Americans needed and still need to be taught why segregation is wrong, and they need to understand that affirmative action is wrong because it is too much like segregation. Racial distinctions, in both cases, are allegedly being used for the public good, but with both segregation and affirmative action the race that was monstrously degraded by slavery is again being stigmatized. The contemporary Supreme Court now regards all references to race in the law with strict scrutiny, and conservative justices have been doing well in explaining why. Brown is, of course, not going to be reversed, but its opinion has very little value as a precedent for today’s Court.

The Court waited a year before deciding how to implement its Brown decision. In its second Brown decision, the Court refused to grant immediate relief to the individuals whose rights it had decided had been violated. Implementation was remanded, with very little guidance, to the federal district courts. The local courts were to require that admission to public schools “on a racially nondiscriminatory basis” be achieved “with all deliberate speed.” The vagueness of that mandate placed local judges faced with hostile public opinion in an untenable position, which fact can be traced in part to the Court’s failure in Brown to articulate a principled argument against segregation. Instead of giving relief to individuals whose constitutional rights were violated, the remedy was given only in some indefinite point in the future. There was no guarantee at all that the plaintiffs—the children—who brought suit in Brown would ever get to go to a desegregated school. The subtle but real racism of the remedy of Brown II ended up paving the way for the busing ordered in Swann v. Charlotte-Mecklenburg Board of Education (1971). In both cases, expediency justified significant and damaging deviation from sound constitutional principle.

The most intriguing recent conservative criticism of Brown is found in Justice Thomas’s concurring opinion in Missouri v. Jenkins (1995). There he writes that “Brown I itself did not need to rely upon psychological or social science research in order to announce the simple, yet fundamental truth that the Government cannot discriminate among its citizens according to race.” That is because the principle of the equal protection clause of the Fourteenth Amendment is “that the Government must treat citizens as individuals, and not as members of racial, ethnic or religious groups.” Thomas’s is a noble but perhaps too transparent effort to say what the Court should have said, an effort to find principle in the Brown opinion—principle that just isn’t there.

Further Reading
  • Berger, Raoul. Government by Judiciary: The Transformation of the Fourteenth Amendment. Cambridge, Mass.: Harvard University Press, 1977.
  • Graglia, Lino. Disaster by Decree: The Supreme Court Decisions on Race and the Schools. Ithaca, N.Y.: Cornell University Press, 1976.
  • McDowell, Gary L. Equity and the Constitution. Chicago: University of Chicago Press, 1982.
  • Thernstrom, Stephan and Abigail Thernstrom. America in Black and White: One Nation, Indivisible. New York: Simon & Schuster, 1997.
  • Wolters, Raymond. The Burden of Brown. Knoxville, Tenn.: University of Tennessee Press, 1984.
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