The way the story is typically told, Brown v. Board of Education was a moment in history when the Supreme Court got it right. When the eight associate justices fell in line behind Chief Justice Earl Warren’s opinion in the spring of 1954, it marked a powerful refutation of the fallacy that legalized racial segregation could ever satisfy the constitutional requirement of “equal protection of the laws.” The ruling legitimized a modern conception of racial equality, premised on an integrationist ideal and the necessity of government supervision to ensure the protection of civil rights.

Yet is this story, repeated time and time again this past week during the fiftieth anniversary of the decision, actually right? In the context of its times, Brown was surely revolutionary. But this evaluation really says more about the sad state of racial affairs in the first half of the twentieth century than about the vision or rightness of the decision. From our viewpoint today, it is impossible to avoid being struck not only by the sad failure of school integration efforts of the past fifty years, but also by the severe limitations of the Brown decision itself.

To put it bluntly, Brown was the product of an insidious delusion being replaced by a beneficial one. The delusion of separate but equal was no longer tenable for liberals in mid-twentieth century America. But Brown replaced this delusion with another: that of mid-century racial liberalism. This exchange was undoubtedly for the better. The rejection of the white supremacist assumptions at the heart of Plessy v. Ferguson, the 1896 ruling that established the separate-but-equal principle, was a major step forward in the long march from the legacy of America’s original sin of slavery. But just because Brown was immeasurably better than that which it replaced doesn’t mean that the justices necessarily got it right.

The people who did the most to make Brown possible—the lawyers for the NAACP, the liberal activists, scholars, and press supporting their cause, and the justices who were willing to accept the NAACP argument—tended to agree on certain basic ideas about race and the America system. For one, they believed that America’s racial problems could be solved without major social upheaval. The direct-action protest of the civil rights movement was simply not on their radar screen at the time. For that matter, neither was the frighteningly effective counter movement of Massive Resistance. Furthermore, they believed that the race problem could be solved without the necessity of major social programs or class-based legislation (ideas that were suffocating at the time from the twin nooses of economic prosperity and McCarthyism).

Rather, these racial liberals argued, legal reform was the key. Laws had created the problem in the first place—as historian C. Vann Woodward, the single most influential voice on the history of segregation during this period, told the nation in his widely read 1955 classic, The Strange Career of Jim Crow. So laws were what would remedy the problem. The real problem of segregation, Thurgood Marshall told the Supreme Court during oral arguments, was “the state-imposed part of it”—that is, the segregation laws were the fundamental problem, more than the fact of segregation itself. Assumedly, segregation would disappear once the laws were fixed.

The great irony of the decision was that without these shared delusions, the decision would never have happened. One of the main pressures in favor of the decision was the perception among the justices—and most of liberal America—that the larger trend toward racial equality was well underway, and a desegregation ruling would be simply building upon progressive changes already taking place. It is hard to imagine the justices issuing their decision (surely not unanimously) if they could have envisioned the scope of the backlash it would create. “The Court expected some resistance from the South,” Warren wrote in his memoirs. “But I doubt if any of us expected as much as we got.” It should not be forgotten that after the Brown rulings, with the rise of Massive Resistance, the Supreme Court essentially checked out of the business of school segregation for almost a decade, only returning after the civil rights movement pressured the rest of the government to get involved. Although often lost in the aura that has come to surround Brown, it is important to keep in mind that the justices did not consider themselves social pioneers and they did not intend to get into the business of inspiring social movements.

Even Thurgood Marshall could not foresee the extent of the problem following such a sweeping desegregation ruling. Following the decision, he confidently predicted that schools would be integrated in five years and complete national integration would take place by 1963. After the implementation ruling in 1955—which introduced the often maligned call for desegregation “with all deliberate speed”—Marshall retained much of his optimism. “I think it’s a damned good decision,” he told a friend. As Marshall recalled later in life: “I had thought, we’d all thought, that once we got the Brown case, the thing was going to be over.” Delusions can be empowering, and the right delusions can, under the right conditions, produce needed social reform—as Brown surely was.

The Brown decisions represented a bubble of optimism that was shattered by the reality of powerful southern opposition and presidential indifference (Eisenhower’s unwillingness to stand behind the Court’s decision was a tragic lost opportunity). This was perhaps the most ironic impact of Brown of all: it undercut the foundations of the very assumptions that made it possible. Brown marked the end of an era in which racial change was thought to be possible without a major social upheaval, without anything like what would take place with the civil rights movement. It marked the end of an era in which liberals, both black and white, thought that the power of the law, combined with a dose of clear reasoning, would be sufficient to rid the nation of the plague of racial inequality. It was an inspiring vision, in a way. If only it were not so sadly mistaken.

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HNN Index: Brown v. Board of Education, Fifty Years Later

Rex RexCurry.net Curry - 8/25/2004

As an attorney, I am asked about important court cases, including Brown v Board of Education (May 17, 1954; 50th anniversary passed recently). No one can measure the monstrous impact of government schools imposing racism and teaching racism as official policy for so long. Government school racism did much more damage than private enterprise could ever have afforded to do. It would have been better if government had stayed out of schools altogether. http://members.ij.net/rex/stopthepledge4.html

The Brown decision ignores how government schools started the problem that Brown ended. When government began socializing schools in the late 1800's, it expanded government-mandated racism. Brown is another example of government peeing on everyone and then claiming that it was rain.

The Pledge of Allegiance (1892) was written by a bigot who was a self-proclaimed National Socialist and advocated that government should operate all schools as a socialist monopoly and end all of the better alternatives. http://members.ij.net/rex/pledgebigot.html

The government forced children to attend segregated schools where they recited the Pledge using it’s original straight-arm salute. http://members.ij.net/rex/pledgeracism.html

The U.S. Pledge of Allegiance was the origin of the salute of the National Socialist German Workers’ Party. http://members.ij.net/rex/pledgesalute.html

It is a myth that it was an old Roman salute.


(with eye-popping photo there or below)

The practice began three decades before it was adopted by the National Socialist German Workers' Party, and the government school racism continued through WWII and beyond, and the government schools still exist to this day.

If the government had taken over all churches then the same horror would have resulted, with government-mandated racism in government churches. The libertarian solution would have been to end socialized churches. It is fortunate that the Constitution prevented government churches. It is unfortunate that the Constitution did not prevent government schools, though they are no where authorized.

In addition to ending government’s racism, Brown should have ended government schools. The separation of school and state is as important as the separation of church and state. http://members.ij.net/rex/schoolsmain.html

Its not too late.

http://RexCurry.net is the first, or one of the first, to use the phrases on the webpage below, according to searches of the internet and newsgroups. The number on the left is the web search result total, the number on the right is the newsgroup search result total. The searches show how the fault for segregation is not placed upon the government via government mandate, nor even upon "government schools" (for which the misleading term "public schools" is often substituted in the media).http://members.ij.net/rex/schoolbrown.html

Ralph E. Luker - 5/29/2004

I agree with Jim Lindgren and Derek Catsam that the Eisenhower appointments to the Southern federal bench were many degrees better than the Kennedy appointments and better, even, on the whole, than the Truman appointments. It had to do with the peculiar character of the minority status (a almost insignificant minority in many places) of the Republican Party in the South at the time. There was actually a crucial turning point at the 1952 Republican convention when Eisenhower-pledged delegations, led by men he would later appoint to the bench, were seated in place of competing Taft delegations. Ultimately, it meant the difference in Eisenhower's election, Earl Warren's appointment to the Supreme Court, and some very crucial appointments to the Southern bench.
That said, while I don't see much in Schmidt's piece to explicitly disagree with, at the end of the piece I'm still left with a question about what he thinks the Warren Court should have done in _Brown_ that it didn't do. Short of an implied answer to that question, it seems to me that we're left with only the obvious: that it is easy to criticize.

Derek Charles Catsam - 5/27/2004

Good point, James. Trust me when I say that I am not much of a booster of Kennedy when it comes to civil rights. Judicial appointments were absolutely crucial, and Kennedy really did make huge mistakes thinking he could placate the South by throwing them a bone.
dc

James Lindgren - 5/27/2004

I agree with the jist of the comments that are critical of Eisenhower, but one should also note that Eisenhower was appointing pro-integrationist judges in the South, unlike Kennedy who tended to appoint segregrationist judges for political expediency.

According to Yale's Akhil Amar, most of the judges who made the tough desegregation orders in the South in the 1960s were Eisenhower appointees. It wasn't until Lyndon Johnson that we had another civil rights President to rival Truman--and Grant a century earlier.

On the main point of the article, we tend to forget just how strongly most educated elites genuinely believed that, if legal barriers were removed, enormous progress would happen very quickly. One piece of evidence for this is to read the briefs. Thurgood Marshall and the lawyers were asking for a color-blind rule, but the Supreme Court wasn't willing to go that far. Indeed, years later the Supreme Court refused cert on a case that held a state anti-miscegenation statute constitutional, waiting instead to strike down racial inter-marriage statutes until 1967 (Loving v. VA). It is highly unlikely that Marshall and others would have been pushing so hard for a color-blind rule in Brown if they had anticipated that they might want a lot more active state on their side.

James Lindgren - 5/27/2004

I agree with the jist of the comments that are critical of Eisenhower, but one should also note that Eisenhower was appointing pro-integrationist judges in the South, unlike Kennedy who tended to appoint segregrationist judges for political expediency.

According to Yale's Akhil Amar, most of the judges who made the tough desegregation orders in the South in the 1960s were Eisenhower appointees. It wasn't until Lyndon Johnson that we had another civil rights President to rival Truman--and Grant a century earlier.

On the main point of the article, we tend to forget just how strongly most educated elites genuinely believed that, if legal barriers were removed, enormous progress would happen very quickly. One piece of evidence for this is to read the briefs. Thurgood Marshall and the lawyers were asking for a color-blind rule, but the Supreme Court wasn't willing to go that far. Indeed, years later the Supreme Court refused cert on a case that held a state anti-miscegenation statute constitutional, waiting instead to strike down racial inter-marriage statutes until 1967 (Loving v. VA). It is highly unlikely that Marshall and others would have been pushing so hard for a color-blind rule in Brown if they had anticipated that they might want a lot more active state on their side.

Derek Charles Catsam - 5/26/2004

Wait, so our standard is apartheid South Africa? As someone who is a scholar of both countries and their racial histories I am well aware of the differences (but also their similarities), but is the bar really set that low? There was no Sharpeville in the US, therefore the decades of violence and denial of fundamental rights and degredation, well, it just ain't that bad? Thank you, Jesse, for giving me exhibit A for the next time some nitwit conservative tries to use the term "relativism" as a defining mark of leftism.
As for the civil rights workers being "protected by the mobs in Birmingham in 1961" well, you'll need to read my forthcoming book on the Freedom Rides, but in fact there was no protection for the riders in Birmingham when they first came through, there was none in Montgomery when the students went through the first time, and the beatings were brutal, the violence appalling. but it was not Sharpeville! And this time it was Kennedy and his appalling reliance on federalism to allow states and individuals to subvert the Constitutional mandates of the Courts. "The prudence" of Eisenhower. My God. You mean the "prudence" to put off rudimentary justice and Constitutional rights for another day? Eisenhower or Kennedy could have decided on their own what "all deliberate speed meant," but certainly in the face of the Autherine Lucy debacle and for a month of the Little Rock crisis, Eisenhower was willing to allow mob action to rule the day. Eisenhower failed on civil rights.
dc

Jesse David Lamovsky - 5/25/2004

Derek-

I won't doubt Eisenhower's ambivalence toward the Brown decision, or his slowness to act. I simply don't think that slowness was necessarily the wrong course: there is the possibility that an increased and expedited use of federal enforcement may have not made the integration process "progress more smoothly", but instead would have stiffened Southern resistance even more. An increased resistance may very well have led to more violence of the kind seen in Little Rock in '57, and that wouldn't have been good for blacks, whites, the Feds, or anyone else. And when push came to shove at Central High School, for better or for worse, Eisenhower did use force.

Besides, to the best of my knowledge, there was no specific timetable for integration laid out by the Warren Court- other than "with all deliberate speed", which of course leaves a lot of room for interpretation.

And the generally peaceful nature of the transition to a legally equal society in the South makes it difficult to cast aspersions on the prudence of Eisenhower, or on the speed with which the FedGov saw fit to enforce the Court edict. Try not to tear me up on this one, Derek- yes, there was violence in the Civil Rights struggle, but compared to what transpired in South Africa, the fall of Jim Crow was accomplished with a remarkable speed as well as lack of bloodshed. I doubt as many men and women were killed as a direct result of their activities in the American movement as were gunned down in one day in Sharpeville. The fact that we can remember individual victims- Schwerner, Chaney, Liuzzo, et al- speaks to this relative paucity of bloodshed. The fact that Meredith at Ole' Miss in '62, and Dr. King and Fred Shuttlesworth in Birmingham in '61, were protected from white mobs by federal marshals armed with nothing more lethal than tear-gas guns speaks to this as well. Again, this is not to minimize or soft-pedal the violence that did take place, but it's easy to point out what went wrong, or what fell short, with the actions of the Federal authorities. What went right was that, within about a decade of the Brown decision, the legal caste system of the South was up in smoke. For this to happen as quickly, and as (relatively) bloodlessly as it did, is a fairly remarkable accomplishment. It can be plausibly argued that had the Federal government gone in for a more heavy-handed approach right from the fall of '54 on, the body count might have been a lot higher. Resistance does invite force, yes- but force can invite heightened resistance as well. I must say that, all things considered, Eisenhower split the difference fairly well.

Jesse Lamovsky

Derek Charles Catsam - 5/25/2004

The problem with the last part of your argument, Jesse, is that it should not matter what those who were violating the Constitution thought of the use of force, force that only came about as the result of their own resistence. Progressives never thought that the only solution was the federal government. This is nonsense, as anyone who has any idea about the myriad attempts of progressives to deal with the situation at the local level (never heard of bus boycotts and sit-ins that did not involve the federal government at all at first, Jesse?)Rather they thought that the federal government was one mechanism, and by the way, the best and most logical one to enforce either Constitutional law or judicial decree, especially when it was clear that they would get no relief locally, or at the statewide level. How, beyond federal involvement, would you have dealt with integration in Mississippi that progressives did not try and try and try (at much risk to their physical, social, and economic well being).
As for Eisenhower's reluctance, there is little doubt about this. Yes, the use of force was his reluctant duty as it should have been, but had he spoken out more forcefull in 1954, 1955, 1956, or most of 1957, had he made it clear that he supported Brown or at least that he would enforce it, had he made it clear that he would use force if necessary, perhaps things would have progressed more smoothly. Instead Eisenhower made it clear through inactyion and silence that he would only act in the most dire of circumstances. And so the most dire of circumstances he got.
dc

Jesse David Lamovsky - 5/24/2004

It doesn't seem very fair to President Eisenhower to accuse him of "unwillingness to stand behind the Court" following Brown v. Board. He did, after all, employ Federal troops to enforce the desegregation order at Central High School in Little Rock. And he shouldn't be faulted for not acting more vigorously to enforce the Court's edict- after all, the notion of using military force against American citizens, whatever the reason, should give any sober-thinking Chief Executive pause, and Eisenhower was a more prudent man than most.

I think the basic problem is that progressives like Mr. Schmidt bemoan the resistance to Brown vs. Board and other civil rights measures throughout the white South, yet their only solution to the racial problems in the South, from Reconstruction to the Civil Rights era, consists of reliance on government fiat and the legalized violence of the State to force the white South to toe their particular line. Small wonder there was "massive resistance"- who on this earth is going to willingly accede to any demand, no matter how well-intentioned, when it comes from the end of a bayonet?