Equal Protection Clause - Brown and Its Consequences

Brown and Its Consequences

When Earl Warren became Chief Justice in 1953, Brown had already come before the Court. While Vinson was still Chief Justice, there had been a preliminary vote on the case at a conference of all nine justices. At that time, the Court had split, with a majority of the justices voting that school segregation did not violate the Equal Protection Clause. Warren, however, through persuasion and good-natured cajoling—he had been an extremely successful Republican politician before joining the Court—was able to convince all eight associate justices to join his opinion declaring school segregation unconstitutional. In that opinion, Warren wrote:

To separate 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.... We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal.

The Court then set the case for re-argument on the question of what the solution would be. In Brown II, decided the next year, it was concluded that since the problems identified in the previous opinion were local, the solutions needed to be so as well. Thus the court devolved authority to local school boards and to the trial courts that had originally heard the cases. (Brown was actually a consolidation of four different cases from four different states.) The trial courts and localities were told to desegregate with "all deliberate speed".

Partly because of that enigmatic phrase, but mostly because of self-declared "massive resistance" in the South to the desegregation decision, integration did not begin in any significant way until the mid-1960s and then only to a small degree. In fact, much of the integration in the 1960s happened in response not to Brown but to the Civil Rights Act of 1964. The Supreme Court intervened a handful of times in the late 1950s and early 1960s, but its next major desegregation decision was Green v. School Board of New Kent County (1968), in which Justice William J. Brennan, writing for a unanimous Court, rejected a "freedom-of-choice" school plan as inadequate. This was a significant act; freedom-of-choice plans had been very common responses to Brown. Under these plans, parents could choose to send their children to either a formerly white or a formerly black school. Whites almost never opted to attend black-identified schools, however, and blacks rarely attended white-identified schools.

In response to Green, many Southern districts replaced freedom-of-choice with geographically based schooling plans; but because residential segregation was widespread, this had little effect, either. In 1971, the Court in Swann v. Charlotte-Mecklenburg Board of Education approved busing as a remedy to segregation; three years later, though, in the case of Milliken v. Bradley (1974), it set aside a lower court order that had required the busing of students between districts, instead of merely within a district. Milliken basically ended the Supreme Court's major involvement in school desegregation; however, up through the 1990s many federal trial courts remained involved in school desegregation cases, many of which had begun in the 1950s and 1960s. American public school systems, especially in large metropolitan areas, to a large extent are still de facto segregated. Whether due to Brown, to Congressional action or to societal change, the percentage of black students attending school districts a majority of whose students were black decreased somewhat until the early 1980s, at which point that percentage began to increase. By the late 1990s, the percentage of black students in mostly minority school districts had returned to about what it was in the late 1960s.

There are, very broadly speaking, two ways to explain America's marked lack of success in school integration in the five decades since Brown. One way, sometimes voiced by political conservatives, argues that Brown's relative failure is due to the inherent limitations of law and the courts, which simply do not have the institutional competence to supervise the desegregation of whole school districts. Moreover, the federal government's, and especially the Supreme Court's, hubris actually provoked the resistance of locals, since education in the United States is traditionally a matter for local control. The other way to explain what has happened since Brown often has political liberals as its proponents; it argues that the Court's decree in Brown II was insufficiently rigorous to force segregated localities into action, and that real success began only after the other two branches of the federal government got involved—the Executive Branch (under Kennedy and Johnson) by encouraging the Department of Justice to pursue judicial remedies against resistant school districts, and Congress by passing the Civil Rights Act of 1964 and the Civil Rights Act of 1968. Liberals also point out that Richard Nixon's "southern strategy" was premised on a tacit support of segregation that continued when Nixon came to office, so that after 1968 the Executive was no longer behind the Court's constitutional commitments. Moreover, some, such as Erwin Chemerinsky, argue that courts may have had sufficient ability to ensure widespread integration but simply were not allowed enough time to perform this role, since Milliken v. Bradley, in 1974—barely a decade since desegregation began in earnest in the South—severely curtained the thoroughgoing methods (e.g. busing) which might have achieved the goal of desegregation, particularly in the South, and even more particularly in the state of Georgia.