What Brown v. Board of Education Should Have Said: The Nation's Top Legal Experts Rewrite America's Landmark Civil Rights Decision

By Jack M. Balkin | Go to book overview

Chapter 1
Brown as Icon

On May 17, 1954, the Supreme Court of the United States handed down one of its most famous opinions—Brown v. Board of Education of Topeka, Kansas.1 The case called Brown was actually a collection of five cases, from Delaware (Gebhart v. Belton), Kansas (Brown v. Board of Education), South Carolina (Briggs v. Elliott), Virginia (Davis v. County School Board of Prince Edward County), and the District of Columbia (Bolling v. Sharpe). The Court heard them together because each raised the issue of the constitutionality of racially segregated public schools, albeit with slightly different facts and circumstances. In fact, Thurgood Marshall, the main architect of the NAACP's legal strategy to overturn Jim Crow, actually represented the plaintiffs in the South Carolina case, Briggs v. Elliott. The District of Columbia case, Bolling v. Sharpe,2 was treated separately from the others because it raised distinct issues about the federal government's duty to respect racial equality. It was handed down on the same day. Finally, the Supreme Court decided to delay the issue of the proper remedy for segregated schools for another year. It issued a second opinion in Brown v. Board of Education on May 31, 1955,3 to deal with remedial issues, concluding with the order to go forward “with all deliberate speed.” This opinion is usually referred to as Brown II, to distinguish it from the first opinion, called Brown I. Together, the three opinions of Brown I, Brown II, and Bolling have come collectively to be known as “Brown” or “the Brown opinion” in the popular imagination, and in the discussion that follows I will refer to them in this way.

In the half century since the Supreme Court's decision, Brown has become a beloved legal and political icon. Brown is one of the most famous Supreme Court opinions, better known among the lay public than Marbury v. Madison,4 which confirmed the Supreme Court's power of judicial review, or McCulloch v. Maryland,5 which first offered an expansive interpretation of national powers under the Constitution. Indeed, in terms of sheer name recognition, Brown ranks

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