Was Brown v. Board Wrongly Decided?

01rosen_CA1.600Scalia thinks it was. Except, he doesn’t. Irresponsible, slapdash journalism notwithstanding, America’s second most conservative — and, arguably, most intelligent — Supreme Court justice stands quite firm in his defense of the case that created the modern civil rights movement and, thereby, modern America. But this vignette in journalistic ethics raises a more interesting question: we all know Brown v. Board, by terminating the practice of racial segregation in schools, was the morally right decision for the Supreme Court to make. But was it legally sound? This question deserves to be asked. After all —

However apparent the injustice of [segregation] may be, we have only to consider whether it is consistent with the constitution of the United States. Plessy v. Ferguson, 163 U.S. 537, 553 (1896) (Harlan, J., dissenting).

Well, let’s see.

Despite the seminal place Brown v. Board has attained in our jurisprudence, it was by no means a slam-dunk decision (don’t let the unanimous opinion convince you otherwise). Seeking to bring to a successful conclusion a fifty-plus year campaign for racial equality, the newly-minted Chief Justice Warren worked long and hard to build a consensus opinion, but the resulting opinion seems to rest more on sociology than true constitutional interpretation. Contrary to popular understanding, Brown v. Board never explicitly rejected the idea that “separate but equal” satisfied equal protection — it simply concluded, after examining extensive expert reports, that separate can never be equal, at least in the context of education:

Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected. We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Brown v. Board of Education, 347 U.S. 483 494 (1954).

That Brown‘s ultimate significance has become, in legal circles as well as public discourse, “segregation is always illegal,” is a happy coincidence, but not, strictly speaking, what the opinion says, and deliberately so. An outright reversal of Plessy would’ve been earth-shattering. Brown‘s half-step is a concession to history: while the framers of the Equal Protection Clause did, in fact, probably intend their text to forbid segregation (a discussion for another day), the practice of segregation grew contemporaneously with the South under Reconstruction, as schools were built and rail lines restored. This organic history makes it very difficult indeed to parse the distinction between the America the Fourteenth Amendment was built to create, and that which it actually did create. Consequentially, an analytical approach built on originalism would be somewhat inadequate to the task, which Warren acknowledges, before changing the question to address whether segregation is fair to modern eyes.

In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws. Id. at 493.

So, let’s summarize — “separate” can still be “equal”; but not in the context of education; and, decisions about the meaning of “equality” should be reckoned by modern, rather than 19th century notions of fairness. This is an elegant, beautifully written opinion, and unequivocally right, but there’s a lot to question here, from a conservative perspective. If a liberal justice today leaned on sociology to answer controversial culture war issues, she’d be pilloried; if the same justice argued that “fairness” should be judged by modern values, her name would surely be cursed from here to WorldNetDaily. They may not want to admit it, but from a conservative perspective, there is an argument that Brown was wrongly decided.

Of course, no politician who wants to be taken seriously would ever admit as much, even if they would disagree with Brown‘s reasoning being used today, to decide more present issues in equal protection law. By any reasonable rubric, Brown was rightly decided in 1954, but conservatives are still fighting its major premise, fifty years later. That should say a lot.



  1. Can you go into the logic behind the decision that separate cannot be equal in education?

  2. Happily! Wlll in more depth later, but until then:

    We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other “tangible” factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.

    In Sweatt v. Painter, supra, in finding that a segregated law school for Negroes could not provide them equal educational opportunities, this Court relied in large part on “those qualities which are incapable of objective measurement but which make for greatness in a law school.” In McLaurin v. Oklahoma State Regents, supra, the Court, in requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangible considerations: “. . . his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession.” [347 U.S. 483, 494] Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications 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 ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs:

    “Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system.” 10

  3. “If a liberal justice today leaned on sociology to answer controversial culture war issues, she’d be pilloried; if the same justice argued that “fairness” should be judged by modern values, her name would surely be cursed from here to WorldNetDaily.”

    Yet in some arenas of the law, judges and Justices routinely rely on non-legal reasons for deciding cases – and Conservative ones are no exception – but it’s almost to the point where those non-law factors are expected to be dominant, rather than text/precedent. Take Criminal Amendments law, in particular cases dealing with the 4th. A routine justification given in opinion is the detrimental effect the contrary ruling would have on police functioning. That isn’t a legal reasoning, though, and the briefs that presented it weren’t making legal arguments. It’s a consequentialist policy argument. After all, saying “X needs to be upheld as constitutional because police departments rely on X” doesn’t point to a yes or no answer to the question “Does the Constitution permit the police to do X?”. Arguing reliance is either the circular argument “The police rely on X being Constitutional, so X is Constitutional”, or it’s the argument “X is un-Constitutional, but the Police rely on X so you should say it’s Constitutional.”

    But nobody pillories judges for relying on that when deciding a case…

    And if judges are going to be pilloried for ruling based on sociology… seems to me that’s like locking the front door but leaving the back door propped open, if you aren’t also going to pillory lawyers for giving Brandeis briefs.

  4. That’s only ‘not legal’ if your definition of ‘legal’ is way too narrow. Policy balancing is the definition of legal.

    1. Huh? I thought legal meant “text”, or “text + precedent”. You’re saying there’s more to properly consider when judging (and arguing) than statutory/constitutional exegesis, relevant precedent, and the rational application of those and logic to the extant facts?

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