What Brown V. Board of Education Should Have Said

What Brown V. Board of Education Should Have Said

The Nation's Top Legal Experts Rewrite America's Landmark Civil Rights Decision

Book - 2001
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Brown v. Board of Education , the Supreme Court's landmark 1954 decision ordering the desegregation of America's public schools, is perhaps the most famous case in American constitutional law. Criticized and even openly defied when first handed down, in half a century Brown has become a venerated symbol of equality and civil rights.

Its meaning, however, remains as contested as the case is celebrated. In the decades since the original decision, constitutional interpreters of all stripes have found within it different meanings. Both supporters and opponents of affirmative action have claimed the mantle of Brown, criticizing the other side for betraying its spirit. Meanwhile, the opinion itself has often been criticized as bland and uninspiring, carefully written to avoid controversy and maintain unanimity among the Justices.

As the 50th anniversary of Brown approaches, America's schools are increasingly divided by race and class. Liberals and conservatives alike harbor profound regrets about the development of race relations since Brown, while disagreeing heatedly about the proper role of the courts in promoting civil equality and civil rights.

In this volume, nine of America's top constitutional and civil rights experts have been challenged to rewrite the Brown decision as they would like it to have been written, incorporating what they now know about the subsequent history of the United States but making use of only those sources available at the time of the original decision. In addition, Jack Balkin gives a detailed introduction to the case, chronicling the history of the litigation in Brown, and explaining the current debates over its legacy.

Contributors include: Bruce Ackerman, Jack M Balkin, Derrick A. Bell, Drew S. Days, John Hart Ely, Catharine A. MacKinnon, Michael W. McConnell, Frank I Michelman, and Cass R. Sunstein.

Publisher: New York : New York University Press, [2001]
Copyright Date: ©2001
ISBN: 9780814798898
0814798896
Branch Call Number: 344.730798 W556
Characteristics: xii, 257 pages ; 24 cm
Additional Contributors: Ackerman, Bruce A.
Balkin, J. M.

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oldhag May 20, 2012

An apropo book to read in the week that contains the date that the Brown I decision was handed down by the U.S. Supreme
Court, May 17th, and the birthday of Malcolm X, May 19th. This book presents an academic challenge to 9 scholars, including Derrick Bell, and Catharine MacKinnon, to answer the question: "How would you have written the Brown opinion in 1954, if you knew then what you know now about the subsequent history of the country and the progress of race relations in the past half century?" This feels to me like: "Let's burnish our liberal credentials". Sort of like, what would you have done in Sunday's game from Monday morning's perspective? Not very useful, and seemingly, a perpetual exercise by intellectuals. But let's play along. The good news is that much has changed since 1954 when, in many places, "segregation laws extended to housing, jobs, public transportation, restrooms, sports and recreation facilities, hospitals, orphanages, prisons, asylums...funeral homes, morgues, and cemeteries". The especially bad news is that public schools are more segregated than ever, with teacher unions under assault, and a Presidential candidate, Rick Santorum, suggesting that children should be homeschooled. If Brown II, the remedy that was decided after Brown I was affirmed, had mandated in Chief Justice Warren's intended language that desegregation be implemented "at the earliest practicable date" instead of the phrase that ultimately appeared, with "all deliberate speed" (commonly understood to mean "when you get around to it" ,and its attendant understanding, "that will be never") I wonder if durable integration could have been accomplished, if not faster, at least with less bloodshed. Plaintiffs could have been offered immediate relief in their respective schools, while all other school districts could have been specifically instructed to desegregate one grade per year, every year thereafter, beginning with kindergarden.
Michael McConnell's re-written Brown I decision agrees with the outcome, but disagrees with the reasoning upon which it was decided. Instead of claiming, as Thurgood Marshall did, that even "equal" but segregated schools caused mental and psychological distress to "Negro" schoolchildren, McConnell posits that the case could have been decided based on the clause in the 14th Amendment which forbids States to "make or enforce any law which shall abridge the privileges or immunities of citizens of the United States". The problem then, and now, is the unwillingness of too many white Americans to acknowledge that black Americans are citizens, and are entitled to all of the rights, priviledges, and immunities authorized by the Constituion. This book itself, published in 2001, before Obama but after the most recent Civil Rights movement, exemplifies the ongoing problem. Bruce Ackerman's re-written Brown I opinion states: "Negroes had earned their claim to citizenship by sacrificing for the Union during the darkest hours of the Civil War; dying by the thousands so our great experiment would endure". Besides the lack of recognition that "This... white man's country" was built by black labor, there is the more odious failure to recognize that black people have fought and died in every war this nation has ever had including the Revolutionary War. It's as if, every generation of white Americans "discovers" a la Columbus, the existence of black Americans. Fundamentally worse is that black people are not presumptively accorded citizenship as a birthright like every other American, but must "earn" their citizenship, apparently, by dying while fighting this nation's battles. How far is that from the only good negro is a dead negro? Would Malcolm X have said, "I told you so"?

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