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Brown
at Fifty: Fulfilling the Promise
By
Eva Paterson, Executive Director, Equal Justice Society
The
Recorder
May 14, 2004
On
the bicentennial of the U.S. Constitution, Supreme Court Justice
Thurgood Marshall said, "We will see that the true miracle
was not the birth of the Constitution, but its life."
As
we approach the 50th anniversary of Brown v. Board of Education,
we celebrate that pivotal moment that breathed life into the Equal
Protection Clause of the Fourteenth Amendment. Before Brown, the
Reconstruction-era civil rights protections had been left for
dead after decades of Jim Crow laws systematically denied African
Americans the rights the Civil War Amendments and legislation
were meant to secure.
But
as we celebrate, we must also pause to reflect that for many years
now we have likewise faced the dismantling of the Second Reconstruction
that is the legacy of Brown. Civil rights advocates today must
emulate the legal and political strategies of Brown if we are
to succeed in fulfilling Brown's promise of equal justice.
THE
BROWN STRATEGY
The
litigation strategy of the NAACP Legal Defense Fund that led us
from legalized Jim Crow segregation to the historic 1954 victory
in Brown is one of the clearest and most enduring models of success
for the use of law for social change. The LDF's ability to move
from almost total blockage in the courts under Plessy v. Ferguson
to the landmark Brown decision was driven by long-term strategic
planning.
At
the beginning of the decades-long process, the most farsighted
LDF leaders understood that a legal sea change would have to take
place in American society for the ultimate objective of eliminating
segregation to be achieved. Segregated buses, bathrooms and drinking
fountains were the norm. In many Southern states, there were no
anti-lynching laws on the books.
The
so-called "Houston Plan" devised by Marshall's mentor
and predecessor as the NAACP's Special Counsel, Charles Hamilton
Houston, combined the use of successive legal openings created
by LDF litigation in highly conservative courts, the innovative
use of social science, and collaboration with a wide range of
civil rights organizations.
While
the "Houston Plan" appears more seamless in hindsight
than it actually was, there is no question that the strategic
model of combining what came to be known as "impact litigation"
with community-based media savvy, and well-organized social movement
groups set the standard for public interest litigation, and the
creation of a cornucopia of public interest law firms.
The
"impact litigation" model produced major landmark cases
that opened up broad avenues of social and political change. Brown
and other legal victories against the entrenched Southern racist
aristocracy contributed to the emergence of the mass-based civil
rights and other movements in the 1960s. This approach moved from
strength to strength as specialized progressive legal organizations
based on the strategic litigation archetype emerged, and won landmark
cases ranging from consumer rights to reproductive rights, to
defendants' rights and breakthroughs in civil justice law and
economic rights. Legal advocates, working with countless grassroots
and social justice activists, secured for progressive law a firm
place in the American courtroom and, many thought, in black letter
constitutional law.
THE
BENEFIT OF SOCIAL SCIENCE
In
a well-known footnote in Brown, the Supreme Court declared that
it was persuaded by social science that segregated schooling has
a profoundly harmful impact on African American children. This
was based on a statement which was endorsed by 32 social scientists
led by Dr. Kenneth Clark, who had pioneered psychological tests
using Black and White dolls to identify segregation's injury to
African American children. This kind of evidence ultimately had
a substantial impact on the nation's understanding of the psychological
costs of racism.
In
addition to Clark's famed doll studies, the Brown litigation team
compiled research covering the environmental (as opposed to genetic)
basis of learning; polling data of social scientists indicating
90 percent viewed segregation as harmful; the psychological, social,
and economic impact of segregation; and - for good measure during
the height of the Cold War - Gunnar Myrdal's research on the chasm
between the concept of democracy and Blacks' unequal status in
America.
We
again need to broaden our conception of social science research
and to cross-fertilize analytical frameworks rooted in disciplines
and communities of legal practitioners, scholars, and activists
that have not traditionally worked together.
RETRENCHMENT
AND DISMANTLING OF CIVIL RIGHTS
Today
we face a retreat from America's commitment to civil rights for
all, particularly for those suffering most from historic forms
of discrimination. Piece by piece, a divided Supreme Court has
dismantled civil rights. The Court has been doing so under the
Fourteenth and Fifteenth Amendments by requiring plaintiffs to
meet an exceptionally high burden in proving
discriminatory intent, invalidating affirmative action programs,
limiting federal court powers to monitor school desegregation,
rejecting proof of racially discriminatory impact in death-penalty
sentencing, countermanding state voter redistricting designed
to ensure that votes of minorities count, and handing down setbacks
in many other arenas. Certainly there are key cases in which the
Court has upheld civil rights, but these are the
exceptions.
In
Brown, the Supreme Court found persuasive the social science demonstrating
that segregated schooling has a profoundly harmful impact on Black
children. Fifty years later, today's social science reaffirms
a similar lesson: racial and socioeconomic integration bring about
enhanced
educational and economic mobility for poor minority students.
A quarter-century
of hard-fought progress toward the integration of America's public
schools has been steadily unraveling since the mid-1980s. A study
by the Civil Rights Project at Harvard University found that in
nearly all of the largest districts in the U.S., Black and Latino
students were more racially segregated from Whites in 2000 than
in 1986. Today, 70 percent of African-American students attend
schools in which racial minorities are a majority, and fully a
third are in schools 90 to 100 percent minority.
This
unmistakable resegregation over the last fifteen years is a consequence
of the Supreme Court relaxing standards of judicial oversight,
and federal courts dissolving desegregation plans and making voluntary
desegregation more onerous.
America's
failure to provide equal educational opportunities in primary
and secondary school translates into dashed dreams in higher education
and beyond. Today nearly 200,000 more Black men are incarcerated
in prison than are enrolled in college.
Affirmative
action is a very personal issue for me. When I graduated from
Northwestern University in 1972 I was one of 5,000 applicants
vying for 270 spots in the first-year class at UC Berkeley's Boalt
Hall School of Law. I know that while I was strongly qualified,
being African American was a positive factor in the admissions
process. Without affirmative action, my potential contribution
to the Boalt community and the legal profession may have been
overlooked.
Boalt
Hall is a telling example of why affirmative action is essential
to the continued life of Brown. When the Civil Rights Act of 1964
became law a decade after Brown, Boalt, like many other institutions
of higher learning, enrolled a first-year class with zero African
Americans. It was only because of the adoption of affirmative
action amidst the unrest of the late-1960s that that my class
had 34 African Americans. Now, because of Proposition 209's ban
on affirmative action at the University of California, Boalt Hall
has come full circle. After six years of "race-blind"
admissions, there are three-quarters fewer African Americans enrolled
at Boalt than when I was a law student there 30 years ago.
RENEWED
VISION OF THE BROWN STRATEGY
We
are again at a crossroads on race in this country. The Brown decision
came at a time when our government needed to prove to the world
that the ugliness of Jim Crow was being ended in America. In Brown,
the Justice Department intervened for the first time in a school
discrimination case, arguing "It is in the context of the
present world struggle between freedom and tyranny that the problem
of race discrimination must be viewed." Today, the world's
view of our government's commitment to democracy and equality
is again at stake. In the wake of the exposure of the brutality
toward prisoners in Iraq, for the first time the U.S. State Department
decided to postpone its annual report on human rights abuses in
other countries.
Armed
with the wisdom of the Brown strategy, we must continue to forge
lasting cross-boundary alliances with the academy, practicing
lawyers, philanthropy, media and policy-makers to remake civil
rights law and practice over time into a viable tool of progressive
change. This is a unique and timely opportunity to work together
across lines of race, national origin, gender, sexual orientation
and disability in the courts, legislatures, city halls, schools,
and community and religious institutions in pursuit of long-term
structural change. During the Brown v. Board of Education oral
argument before the U.S. Supreme Court, Thurgood Marshall argued,
"Equal means getting the same thing, at the same time and
in the same place."
Now,
fifty years later, there exists great potential for us to work
toward making that statement a reality for all.
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