PUBLISHED:March 31, 2008

Civil rights luminaries reflect on Brown v. Board of Education

March 31, 2008 — On March 27, a capacity Duke Law audience heard how three key participants in Brown v. Board of Education viewed their roles and goals in the landmark litigation, and their reactions to its contemporary interpretation by the current Supreme Court in decisions striking down race-based school assignment plans.

Professor Jack Greenberg of Columbia Law School, long-time director-counsel of the NAACP Legal Defense and Educational Fund (LDF), served as co-counsel with Thurgood Marshall in Brown. U.S. District Court Judge Lewis Pollack was another key member of the LDF team in crafting legal strategy for the cases combined under the Brown umbrella. Renowned historian John Hope Franklin, James B. Duke Professor Emeritus at Duke University, helped write the plaintiffs’ briefs and prepare the advocates for their Supreme Court arguments, transforming them into “experts in constitutional history,” he said.

The contributions of these civil rights luminaries to Brown and the decision itself were put into context by Professor Guy-Uriel Charles of the University of Minnesota School of Law.

“To recognize these individuals is to begin to grapple with the political and social phenomenon that came to be memorialized as Brown v. Board,” said Charles. “In Brown, the Court concluded that segregation of children in white and colored schools had a detrimental effect upon the children. The Court concluded that … separate educational facilities are inherently unequal. And with that, the Court declared the formal end of the caste system.”

While many constitutional law scholars view Brown as being primarily concerned with ending state-sponsored formal inequality, he said, others see it as being about equal citizenship and racial outcomes. Charles asked whether the “inequality of outcome” demonstrated by the higher infant mortality rates, fewer educational opportunities, more divorces, and shorter life spans of African Americans as compared with those of white Americans are “consistent with the meaning of Brown that has presaged and helped us to understand full citizenship as it should be under the Constitution.”

In response, Franklin expressed disappointment at social progress subsequent to Brown, saying it got off to “a terrible start” with its denunciation by a large number of lawmakers from which it never recovered. “There was never a time when I thought the country was really interested in doing something significant [about segregation] in the schools or anywhere else. Every time I looked at what was going on I was discouraged. I was pessimistic about the possible realization that there would ever be a significant move to eliminate segregation,” he said, adding that as an associate Supreme Court justice, Marshall frequently appeared similarly discouraged with the decisions of his colleagues on the Court. “The Court did its job in Brown, but nobody else did the job that needed to be done in order to move significantly toward a society of equals.”

Greenberg and Pollak were blunt in stating that the Supreme Court’s 2007 plurality decision striking down race-based school assignment plans in Seattle, Wash., and Louisville, Ky., ran contrary to the intent of Brown, strongly disagreeing with Chief Justice John Roberts’ use of the Brown plaintiffs’ briefs in his opinion in Parents Involved v. Seattle School District No. 1. Writing for himself and Justices Scalia, Thomas, and Alito in an opinion joined by Justice Kennedy, Roberts called the position of the plaintiffs in Brown clearly spelled out in their brief as follows: “‘The 14th Amendment prevents states from according differential treatment to American children on the basis of their color or race.’” He then found that the racial classifications at issue in Seattle and Louisville also improperly told schoolchildren where they could and could not go to school based on the color of their skin.

“There are five surviving lawyers who participated in this case — and if we include John Hope Franklin there are six,” said Greenberg. “All of us have unanimously said that Chief Justice Roberts was wrong in his characterization of [our intent] in the briefs.” He pointed out that in two Supreme Court arguments and in the various cases consolidated in the Supreme Court as Brown, the plaintiffs’ attorneys variously argued the non-discrimination, non-classification principle as well as the non-subjugation principle. “They were trying to make arguments that were persuasive to the court — that’s what advocates do. To take one or two sentences out of the briefs makes it non-sensical,” he said.

The parties to the Louisville and Seattle cases should not have been held responsible for what the Brown plaintiffs may have written, said Pollak, calling Roberts’ use of the brief “inappropriate,” taking its language out of its historical context. “Brown was about the use of governmental authority to segregate people by race for the purpose of subordinating minority interests,” he said characterizing the Seattle and Louisville plans as using race to undo forms of disadvantage that may flow from decades of disparaged treatment of blacks.

“The question of what Brown meant was put in focus by Professor Charles’ initial remarks when he set up two possible ways of looking at Brown,” said Pollak, noting that it should stand as both a declaration of commitment to formal equality and as affirmation of the plaintiff’s intent to gain, for all citizens, “full participation" in the American community. “That is what we hoped to achieve…and to take the decision in a case which resolved systematic disparagement and transfer it to what contemporary communities are trying to do for all its citizens in [this context] was, in my view, highly inappropriate and demeaning of what Brown [sought to do].”

The extraordinary discussion of Brown represented the launch of the Duke Forum on Law and Social Change (DFLSC), a proposed ninth student journal at Duke Law, and was co-sponsored by the Office of the Dean. DFLSC has the goal of effecting change through discussion of key social issues that affect the everyday lives of Americans and will devote its first year to a consideration of education, said 2L Melvin Hines, one of its founders.

Brown v. Board of Education: Past, Present, and Future” can be viewed as a webcast.