The Troublesome Legacy of Brown v. Board of Education

What Progress Have We Made Since the Brown Decision?

Ask any upper elementary or middle school student in the United States about what they know about the Brown decision and the struggle for desegregation in this country, and most might mention Rosa Park’s bravery in refusing to give up her seat on a bus in Montgomery, Alabama. They may also mention Martin Luther King’s famous “I Have a Dream” speech, and how both Rosa Parks and Dr. King bravely fought for the civil rights of African Americans in this country. Many adults probably would not fare much better in terms of their understanding of the broader struggle for desegregation. While some adults might name a handful of other important civil rights leaders (i.e., Thurgood Marshall, Little Rock Nine, Malcolm X, etc.), or perhaps other significant historical events in the civil rights movement (e.g., the lunch counter protests, students getting water hosed and attacked with police dogs, etc.), their own understanding of the Brown decision and the broader struggle for desegregation may not be as clear.

The sad reality is that this country has done a fairly poor job of educating students about the civil rights movement in general, and the historical significance of Brown specifically within this broad-based movement for social change (Brown, 1995; Gay, 2004). Unfortunately, adults and children alike still do not realize that Parks’ protest happened nearly 18 months after the Supreme Court ruling in Brown, and that the Little Rock Nine attempted to integrate Central High School nearly 3 years after the famous Supreme Court ruling. Moreover, the general public has little knowledge that protesters in Birmingham were water hosed and attacked by vicious police dogs almost 9 years after Brown, and that Dr. King’s famous speech was delivered nearly 10 years after the Supreme Court issued its famous ruling in Brown. If there is a silver lining surrounding this country’s collective lack of historical awareness about the civil rights movement, it is that there is—at minimum—a concrete understanding that “separate” is inherently “unequal.”

In other words, although the general population may not know about the Brown decision specifically, they do have a generic understanding that it set in motion a broad-based policy agenda where the United States would ultimately strive to live up to its standards of equality for all people under the U.S. Constitution. They may also understand that civil rights for people of color did not come easy: It would take years of grassroots mobilization, court battles, and political struggle, to overturn Plessy v. Ferguson and the deeply rooted logic of Jim Crow, which divided a nation into separate-but-equal halves that were brought to end under Brown (NAACP, 2014). In effect, the larger lesson that Brown imparted was not that it overturned Plessy, but that a legal case needed to be made in the first place in order to achieve a certain level of equality in society for people of color in this country.

The genius of the NAACP legal strategy to overturn Plessy—spearheaded by Charles Hamilton Houston, Thurgood Marshall, and others—is not only missing in this broader discussion of the struggle for civil rights, but it is strategically disarticulated from the broader political struggle to convince the courts that students who are “denied the opportunity of an education” are also cut off from other opportunities for success (Brown v. Board of Education, 1954, p. 493). Also lost is a richer understanding of the bleak socioeconomic challenges faced by people of color within the United States, and how these challenges were, and are still, connected to a larger system of racial oppression that is perpetuated and reinforced by the ideology of White supremacy (Shapiro & Oliver, 1997). In effect, it is disingenuous to discuss Brown without discussing the sociohistorical backdrop of the United States before, during, and after this landmark court case, and how interlocking systems of oppression worked to systematically render people of color one down in the broader social, political, and economic order within the United States (Liu, 2004).

Take housing segregation, for example. The stratification of housing patterns throughout U.S. history—which is intimately connected to the issue of segregated schooling—is not only tied to socioeconomic realities, but also directly linked to racist Federal Housing Administration (FHA) policies that created and maintained housing segregation within the Unites States (Liu, 2004). In the 1936 Underwriting Manual, the FHA explicitly links home values to the racial composition of local schools. The manual specifically states,

The social class of the parents of children at the school will in many instances have a vital bearing. Thus, although physical surrounds of a neighborhood area may be favorable and conducive to enjoyable, pleasant living in its locations, if the children of people living in such an area are compelled to attend school where the majority or a goodly number of the pupils represent a far lower level of society or an incompatible racial element, the neighborhood under consideration will prove far less stable and desirable than if this condition did not exist (FHA Underwriting Manual, 1936, Section 233).

In other words, the document asserts that when White children are “compelled” to attend school with children of color, the school and surrounding property is less desirable and valuable. As such, a general understanding of how governmental and juridical policies not only encouraged, but explicitly reinforced, segregated housing and schooling patterns helps us better understand the role of government in producing and maintaining past, present, and future racial stratification while giving us a more comprehensive understanding of why the Brown decision was largely ineffective in accomplishing its stated goals in the aftermath of the Supreme Court ruling.

To this effect, we must keep in mind that the Brown decision was actually rendered in two distinct parts. The initial decision, often referred to as “Brown I” (347 U.S. 483), was handed down in 1954 and effectively declared the unconstitutionality of separate but equal schools—irrespective of whether the segregated schools were equal in every respect. In other words, racially segregated schooling facilities could never be “equal” in the eyes of the law.

The second decision, referred to as “Brown II” (349 U.S. 294), was handed down in 1955, to assist the school districts involved in the initial court case in determining how to best meet the spirit of the law while upholding sound constitutional principles in the process. It should be noted that several of these districts—along with various other school districts in numerous Southern states—had specifically requested exemption from the Brown desegregation mandate citing logistical complications and demographic barriers that they believed made it impossible to comply with the 1954 court ruling (Liu, 2004). Since these concerned school districts were located in different states and cited unique challenges specific to their respective districts, the Brown II Supreme Court determined that the best course of action was to charge the lower courts with the judicial duty to oversee compliance with the law “with all deliberate speed” (Brown v. Board of Education of Topeka, 1955). In other words, it was local school districts that were charged with determining the structure and pace of the desegregation effort, while the lower courts were given responsibility for ensuring the school district’s compliance (Alemán, 2013).

Did Integration Work?

Given the vagueness of the Brown II mandate, along with no uniform method for effectuating the requirements of the unanimous opinion in Brown I, desegregation efforts were slow to come. In effect, school districts found a juridical loophole to carry out the desegregation process at the pace they felt was most “deliberate” (Bell, 2005). Given the absence of a court order, states could essentially take as little—or as long—as they wanted in order to desegregate their schools. As a result, in the years immediately following the Brown II decision, both the lower courts and the Supreme Court were forced to deal with a number of blatant violations of the desegregation mandate in addition to handling a number of cases whereby school districts minimally complied with the tenets of Brown I while simultaneously testing limits of Brown II (Wenger, 2004). To be certain, most states were not in any hurry to desegregate and followed the general principle of “state-neutrality” (Bell, 1979). This meant that states would neither block desegregation efforts outright, but would not actively encourage integration either.

In 1968, nearly 14 years after segregated schools were deemed unconstitutional the Supreme Court heard a court case involving a small school district in Virginia. This particular district had only two schools (both K-12), where one school was primarily Black and one was primarily White. The district’s approach to achieving the stated goals of Brown II was to embrace a “freedom-of choice” plan: where parents were free to choose the school in which to enroll their children.

The Virginia school district argued that since choice was offered to parents, any resulting segregation was the result of individual choices as opposed to state-sanctioned de jure policies. The Supreme Court disagreed with this logic, conceding in Green v. County School Board (1968) that state neural policies were insufficient and that states needed to take affirmative steps to ensure that schools eliminated school differences with respect to the following six criteria: (1) facilities, (2) student composition, (3) faculty, (4) staff, (5) extracurricular activities, and (6) transportation. Indeed, the Court’s opinion in Green was not only bold, but also appeared to be quite progressive and innovative. Numerous states that were not in compliance with the Brown I Court opinion were sanctioned and quickly put on a corrective path (McCarthy, Cambrone-McCabe, & Eckes, 2013).

This particular strategy worked quite well, but it was specifically intended for states that were out of compliance prior to the 1954 Supreme Court decision in Brown. In other words, the new law applied only those states that specifically embraced “separate but equal” as the official policy prior to 1954. On the other hand, states where de facto segregation was a matter of course and/or did not have a history of de jure segregation prior to the Brown decision, could not be held to the same standard, since the Court felt there was no intentionality on the part of the state to segregate children on the basis of race (Bell, 2005).

In 1973, the Court clarified this position in the majority opinion in Keyes v. School District No. 1, Denver, Colorado (1973). In the Keyes case, the facts before the Court were that the Denver School Board had engaged in a scheme to keep area schools racially segregated. Within the district, Black and Latino students were systematically kept from enrolling in predominantly White schools through the strategic manipulation of school attendance zones, the use of mobile classrooms, the creation of random ad hoc policies, and other district-sanctioned practices intended to keep children of color away from their White counterparts. These discriminatory practices went on for more than 10 years in the district (413 U.S. 189). However, rather than declaring the entire district in violation of Brown, the Court believed that said practices were incorrectly evaluated by the lower courts, since Denver did not have an official policy of segregation in the books that existed prior to 1954.

Moreover, the Keyes Court also noted that although these discriminatory practices were happening in one particular area of the city, other schools in the city that were not intentionally segregated via these practices were still segregated as a matter of course. Therefore, a second issue before the Court was whether the same reasoning applied when the segregation was the result of explicit de jure policies or de facto living arrangements.

Rather than reverse the decision of the lower courts, the Keyes Court remanded the case, and asked that the Denver School Board to provide further evidence that these policies were not directly responsible for the racial imbalances in other parts of the city. In effect, the Court held that unless a state had an explicit history of segregation, or if it can be proven that school segregation was the direct result of state action, then de facto segregated schools should not be held to the same standards of integration as other schools.

In short, the Keyes decision made it clear that the mere “existence” of segregation had to be considered separately from the actual intent of segregation. Latter Supreme Court cases such as Milliken v. Bradley (1974), reinforced this particular logic by placing the burden on the plaintiffs to “prove”—at the prima facie level—that school officials and/or their policies/practices, were specifically responsible for segregated outcomes. In short, the Keyes decision marked the beginning of the end of Brown by shifting the focus away from the issue of prima facie segregation as such, and focusing instead on the issue of segregationist intent writ large. Unfortunately, the Keyes Court affirmed that segregation was perfectly fine so long as it was not done intentionally and/or was not the explicit policy of the state or its apparatuses (Montoya, 2000; Orfield & Lee, 2006).

Have We Achieved Racial Equality in the United States?

When taken holistically, the larger “lesson” imparted by Brown is not so much that separate is inherently unequal, but that separate is wholeheartedly acceptable—so long it is carried out in a benign fashion and/or is the “natural” result of stratified living arrangements (Orfield & Lee, 2006). A second lesson learned, is that Brown technically applies only to those states where there was an official policy of segregation prior to 1954. As the Court affirmed in Keyes:

We have never suggested that plaintiffs in school desegregation cases must bear the burden of proving the elements of de jure segregation as to each and every school or each and every student within the school system. Rather, we have held that, where plaintiffs prove that a current condition of segregated schooling exists within a school district where a dual system was compelled or authorized by statute at the time of our decision in Brown v. Board of Education , 347 U.S. 483 (1954) (Brown I), the State automatically assumes an affirmative duty “to effectuate a transition to a racially nondiscriminatory school system,” Brown v. Board of Education, 349 U.S. 294, 301 (1955) (Brown II)… (p. 200, emphasis added)

In other words, in every desegregation decision following Brown I, the Supreme Court has consistently held that states should not be responsible for providing remedies in the present if there was no explicit state policy for segregation in the past. This held true even if segregation is a fact of life in that particular state (Bell, 1979).

Moreover, and by extension, it also meant that even states that were found in violation of the 1954 decision would “not be responsible for correcting any future [italics added] racial imbalance they have not created” (McCarthy, Cambrone-McCabe, & Eckes, 2013, p. 134). Stated somewhat differently: If a formerly segregated district reverts to its original segregated status after successful integration, the district has no duty to correct the imbalance if the resegregation happened through nonintentional means.

As such, a third lesson learned in Brown, is that ideology and symbolism are critically important. The belief that mere “integration” is an indicator of “equality” is one example of an ideology influenced heavily by the Brown ruling. Symbolically, the mere illusion of progress is perhaps as important as the progress itself. What matters to the courts is not whether there are segregated outcomes per se, but whether these outcomes are the direct result of segregationist intent. In short, a fourth lesson learned in Brown and other cases discussed, is that the courts have played a critical role in shaping race relations in the larger social order.

As we discuss below, the role of Brown in fundamentally reshaping racial politics in this country cannot be overstated. In the aftermath of this court decision, it would appear that a new form of Court-sanctioned racism has slowly taken hold. As important as the Brown decision was in dismantling a system of segregation in this country, the Court has continually chopped away at the effectivity of its impact through subsequent court decisions and rulings.

Are We Living in a Postracial Society?

In the 60 years following the Brown decision, we have witnessed the courts move increasingly away from the claim that racism is a salient characteristic in this country (Bell, 1993; Delgado & Stefancic, 2012). Racism is no longer viewed as a widespread social ill that materially contributes to the production and maintenance of segregated spaces, as was the case under Plessy and Brown. Rather, the Supreme Court now views racism as an individual construct that is intentionally perpetrated by particular social actors (López, 2003). Barring tangible evidence of racial intent, the courts have shifted away from the need to proscribe broad-based remedies to address the impact of segregation in governmental institutions, and have chosen instead to focus on individual acts of discrimination on a case-by-case basis (Delgado & Stefancic, 2012).

In more recent court decisions, the courts have increasingly revealed their thinking about race and racism in several key cases. For example in 2003, the U.S. Supreme Court in Gratz v. Bollinger (2003), found the University of Michigan’s undergraduate affirmative action admissions policy to be unconstitutional on the grounds that it indiscriminately awarded 20 points to underrepresented applicants in the university’s 150-point admissions scale. The University of Michigan asserted that diversity was a compelling government interest and that the use of race was narrowly tailored to serve that interest. The courts agreed that the use of race may, indeed, be used in very specific cases, but found that the point system operated like a virtual “quota” system, which was not constitutional under the law.

In a related case involving law school admissions at the same university filed that year, the U.S. Supreme Court found, in Grutter v. Bollinger (2003), that the use of race was narrowly tailored because the law school took race into account merely as a “potential ‘plus’ factor” and not as an automatic variable in the overall admission process. The two Michigan cases provide unique insights into the thinking of the Supreme Court and the extent that race is considered when making university admissions decisions (Ledesma, 2013). In both Gratz and Grutter, the Court acknowledge that while race can be used in very specific circumstances to advance a compelling state interest such as diversity, it should never be an automatic consideration. In fact, the majority opinion in Grutter hinted of an idealized “colorblind” future, where the use of race is not considered at all in admissions decisions:

The Court takes the Law School at its word that it would like nothing better than to find a race-neutral admissions formula and will terminate its use of racial preferences as soon as practicable. The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today. (pp. 21-31)

Despite the fact that a newer affirmative action case was heard by the Court in 2013 (Fisher v. University of Texas, 2013), that particular case was vacated and remanded to the lower courts on the grounds that the lower courts failed to determine whether the university’s use of race was narrowly tailored. The Court’s strongly worded opinion, indicates that unless the “university’s admission process meets strict scrutiny in its implementation” and that the “means chosen by the university to attain diversity are narrowly tailored to that goal”, the university should receive no deference by the lower courts. Clearly, the Supreme Court is sending a signal to the lower courts is that race should rarely be used to make these types of admissions decisions. Despite this warning, the lower courts ruled that the university’s use of race was narrowly tailored, and upheld the constitutionality of the affirmative action protocol at the University of Texas. On July 29, 2014, the plaintiff in the case filed for an en banc rehearing by the U.S. Fifth Circuit Court of Appeals on the grounds that the lower courts ignored the orders set forth by the U.S. Supreme Court regarding strict scrutiny. At the time of publication, the outcome of the case remains uncertain.

In a different court case in 2007, Parents Involved in Community Schools v. Seattle School District No. 1 (551 U.S. 701), the U.S. Supreme Court also relied on the “narrowly tailored” rhetoric, arguing that the Seattle School District’s approach to racially-balanced schools indiscriminately relied on racial classifications to achieve racial integration. The approach used by Seattle classified students as “White” or “Non-White” and allocated these students to different schools according said classifications in order to achieve a racial composition that parallels the racial composition of the school district as a whole.

Concerned parents of predominantly White students who were denied acceptance into a particular school claimed that the district’s allocation of students on the basis of race was in violation of the Equal Protection Clause of the U.S. Constitution. (Note: The constitutionality of a similar desegregation approach used by a school district in Kentucky was also decided along with the Parents Involved case. The Supreme Court consolidated the two cases since they surrounded similar grievances.) In Parents Involved, the school district claimed, and the lower courts agreed, that overcoming past racial discrimination was a “compelling state interest” and that the use of race was a narrowly tailored approach to achieving that goal. The Supreme Court, however, disagreed, finding that since Seattle was “never segregated by law, nor subject to court-ordered desegregation,” there was no compelling interest to overcome. In line with previous rulings, the Parents Involved Court held that Seattle School Board had no duty to provide such remedies to students because such segregation was deemed unintentional.

Notwithstanding, since a remedy was pursued anyway, and Seattle Public Schools used race as the sole criterion for sorting students into schools, the Parents Involved Court found the use of race to be particularly problematic. In the end, the case was remanded to the lower courts, since the Supreme Court felt there were other methods that could have been used by the district that did not involve the use of racial classifications to achieve the desired ends of the district. Chief Justice Roberts, who delivered the plurality opinion, then closed the opinion with the following statement: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race” (p. 41). This statement not only echoed the familiar colorblind rhetoric of the Court, but signaled its insistence that race should only be used in very exceptional circumstances and only when serves a compelling government interest (Bell, 2005).

In short, recent court cases indicate that the U.S. Supreme Court has not only moved away from using race as a vehicle to remedy past social injustices, but has consistently signaled that racism is not an institutional or societal ill perpetrated on people of color, but an individual construct that can be enacted on anyone from any race. Indeed, what Gratz, Grutter, Fisher, and the Parents Involved cases collectively demonstrate is that racism has been turned on its head and rearticulated by the courts as a deviant form of “reverse racism” under the guise of Equal Protection. The courts have not only endorsed such claims by White plaintiffs, but have reprimanded the respective educational institutions for trying to correct past injustices through different affirmative strategies. In effect, the same legal principles that were used by Brown to overturn years of legally sanctioned segregated schools are now being used by the courts to protect the often narrow interests of White plaintiffs.

The Need to Symbolically “Let Go” of Brown and Pose New Questions About Its Impact

Despite the troublesome legacy of Brown v. Board of Education, we, as a society, continue to celebrate and pay tribute to this court decision and use its anniversary to periodically reflect how far we have come as a society on issues related to race and racism in this country. Indisputably, much progress has been made. We may wrestle with occasional setbacks delivered by the courts and vigorously debate the extent/scope of social progress made since the Brown decision, but very few individuals are willing to part ways with the decision itself, despite its many flaws and failed promises. Simply put: We believe in Brown and we hang onto it dearly like an old teddy bear or a precious family heirloom.

Perhaps we hang onto it because it imparts a particular sense of comfort and security. After all, the case not only embodies a specific moment in this country’s history, but it represents the collective struggle of a people that pushed and fought for justice and social change in this country. In effect, Brown embodies the symbolic dismantling of the legally sanctioned structure of “separate but equal” under Plessy, and has come to symbolize the precise moment when hopelessness and despair were transformed into hopefulness and optimism for our country. To be certain, the case ignited an entire generation to push for social change through protest, resistance, struggle, defiance, confrontation, and endurance. With their “Eyes on the Prize,” our forefathers and foremothers, sisters and brothers, aunts and uncles, all mobilized for equal rights, no longer afraid to challenge and defy the structural arrangements and institutions of power that firmly maintained racism in place. There is no doubt that Brown’s impact was truly profound, spiritually uplifting, and transformative.

However, over the past 60 years, we have also come to understand that the very same courts that gave it life, also limited Brown’s promise and potential at every turn and with each subsequent decision. And while the decision remains one of the most significant in U.S. history, it also remains one of the most unfulfilled. Sadly, the data speak for themselves: Our country is perhaps more segregated than it was in the late 1960s (Orfield & Frankenberg, 2014). Moreover, since social opportunity is intimately connected to issues of segregation, the racial progress made since Brown has all but diminished (Sharkey, 2013). Sixty years have passed and there is still an overemphasis on the Brown case itself—with little attention paid to the social, historical, and racist conditions that created the need for Brown in the first place.

This lack of progress makes us wonder whether we—as a society—are stubbornly holding onto the promise and potential of Brown because it symbolizes what the country is capable of achieving, or whether we are holding on to it because we are genuinely fearful of what the failure of Brown signifies and represents about our country. In other words, “letting go” of Brown, not only forces us to acknowledge the intractable problem of race and racism in the United States, but it opens up an ontological space to question whether Brown was truly intended to bring about equality at all. Derrick Bell (2005) for example, suggests that interest convergence, and not racial equality per se, was the driving force behind the Brown decision.

Regardless of whether we believe Brown was the greatest equalizer or the greatest smokescreen, the fact remains that racial inequality is still alive and well in this country. We could debate the progress we have made since Brown (or lack thereof) ad nauseam, but such a discussion will not move us any closer to addressing the permanence of racism in this country and what to do about it (Bell, 1993). In other words, we need to have a radically different conversation about Brown, and entertain an entirely different set of questions about its effectivity: Instead of asking “Have we arrived?” we need to be asking “What social, institutional, juridical, and ideological factors prevent us from arriving?” Instead of asking “Did integration work?” we need to be asking “Why do we continue to believe in integration as the primary indicator of equality?” Instead of asking “Are we living in a postracial society?” we need to be asking “Why do we still have faith in the efficacy of our governmental institutions to address issues of inequality, when the all indicators seem to show that we are still separate and unequal?” To paraphrase Justice Roberts in his plurality opinion in Parents Involved: If we want to stop asking the same questions about the efficacy of Brown’s impact, we simply need to stop asking the same questions. Only then can we have a fundamentally different conversation about the shortcomings, promises, and future of this troublesome case.