On the 62nd anniversary of the Supreme Court's decision that started the end of segregation, one leading academic believes conservatives and liberals today are missing a key point about the ruling.
On May 17, 1954 the Supreme Court unanimously said in Brown v. Board of Education that “the doctrine of ‘separate but equal’ has no place” in education. The decision came 58 years after the Court's endorsement of segregation in public facilities in Plessy v. Ferguson.
The Brown decision vindicated a lone Plessy dissent by Justice John Marshall Harlan, who declared in no uncertain terms that “the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case.”
In his recent book, We the People, Vol. 3: The Civil Rights Revolution, Yale law professor Bruce Ackerman observesd the modern debate among liberals and conservatives about the meaning of Brown.
Conservatives, he said, invoke Brown for an “anti-classification” principle that views any state action which classifies people on the basis of race as constitutionally unsound. Liberals, on the other hand, draw out an “anti-subordination” principle, in which any state action that socially subordinates a group of people is unconstitutional.
They both miss the main thrust of the decision, Ackerman argued, which champions an “anti-humiliation” principle.
“Brown is an anti-originalist opinion,” he told an audience in 2014 at the National Constitution Center. “People, [Chief Justice Earl Warren] says, have argued about this in the court; we can’t figure it out, it’s indeterminate—they didn’t really have public education in a serious way in 1868 [when the Fourteenth Amendment was ratified]. We’re going to have to think ourselves about this. Anybody who is living in America today knows that separate can’t be equal.”
“In anticipation of Brown, there’s a tremendous effort in the South to actually make schools for blacks physically equal,” Ackerman went on. “What Warren is saying is, even if the school was identical in the quality of instruction, in the books, in the buildings, it’s unconstitutional. Why? Because simply having these kids go on a school bus past the white school to their school … [is] humiliating.”
Indeed, writing for the Court, the Chief Justice declared that “to separate them from others 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.”
“We have to appreciate that Brown said something actually new, knew that it was saying something actually new, and that this invitation was then taken up by the movement,” said Ackerman.
Steven Calabresi, a professor of law at Northwestern University and co-founder of the Federalist Society who joined Ackerman at a 2014 event to discuss his book, cited Judge Robert Bork: “The world changes, in which unchanging values find their application.”
“I think Bork thought that the principle … of no systems of caste or class-based legislation was an enduring value, and it was put there during Reconstruction,” Calabresi said. “The world changed in such a way such that that principle could take on a whole new life and meaning and be realized in the 1960s.”
“Certainly, there was constitutional change,” he added. “You’d have to be blind to say otherwise.”
Tomiko Brown-Nagin, a professor of law and history at Harvard University who also participated in the conversation, said it matters which Brown you’re asking about when considering its legacy.
“Brown changed over time,” she explained. “There’s the Brown of 1954, where Justice Warren clearly said it was unclear what the Framers [of the Fourteenth Amendment] thought. … There’s the Brown of the mid-1960s, where the Court starts to imbue Brown with a more expansive meaning. … The Brown of the 1970s is more complicated still—it’s a Brown that requires bussing of students beyond neighborhood schools.”
“Brown is an opinion that, like many Supreme Court opinions, has no single, unitary meaning,” she concluded. “It means many things … and I personally think that’s a fine thing.”
Even today, what Brown means—and what is left in its wake—is a matter of study and debate.
