Brown at 50: The Road That Lies Behind Us and the Challenges Ahead

By Clark, Hunter R. | Judicature, September/October 2004 | Go to article overview

Brown at 50: The Road That Lies Behind Us and the Challenges Ahead


Clark, Hunter R., Judicature


An African American reporter described Monday, May 17, 1954, the day the U.S. Supreme Court delivered its unanimous decision in Brown v. Board of Education,1 as "the day we won; the day we took the white man's law and won our case before an all-white Supreme Court witIi a Negro lawyer. And we were proud."

Justice Felix Frankfurter, in a personal note to Chief Justice Earl Warren, said it was "a day that will live in glory." He added, "It is also a great day in the history of the Court." Justice Harold Burton, also in a note to Warren, called it "a great day for America and the Court." The justices' law clerks remembered it as a day on which they felt "good-and clean. It was so good."

Thurgood Marshall, who as director of the NAACP Legal Defense and Educational Fund was chief counsel for the victorious plaintiffs, saw the day as a turning point. The Brown decision, he said, "probably did more than anything else to awaken the Negro from his apathy to demanding his right to equality." He expressed a fervent optimism that integration would proceed in compliance with the Court's ruling.

"I think that, even in the most prejudiced communities, the majority of the people has some respect for truth and some sense of justice, no matter how deeply it is hidden at times," he told an interviewer in August 1954. "If we keep up the educational process, as well as the legal suits, 1 have no doubt of our eventual victory. We now have the tools with which to destroy all governmentally imposed racial segregation. To hear some people talk, one would get the impression that the majority of Americans are lawless people who will not follow the law as interpreted by the Supreme Court. This simply is not true."2

Was optimism warranted?

Whether Marshall's optimism was warranted is debated to this day. In some places, desegregation went smoothly. In others, it proceeded, if at all, in fits and starts as Marshall, the Court, and the executive branch officials charged with enforcing the Brown decree struggled to overcome massive resistance at the grassroots level, and racist demagoguery by politicians.

Nevertheless, as Marshall observed, Brown had in fact provided the tools and, slowly but inexorably, the American system of state-enforced apartheid crumbled. In the south, courageous federal district court judges issued desegregation orders, often at their own personal peril. Ambivalent or reluctant U.S. presidents enforced those decrees, even when they had to deploy the army to do so.

The result was school desegregation. According to Charles T. Clotfelter, professor of public policy studies, economics and law at Duke University, "In 1954, four out of every 10 students in the United States attended schools that were segregated by law. Today the region that accounted for the bulk of those states, the South, has the least segregated schools in the country."3

He goes on, "Black and white students march in bands, sit in class and compete on teams together to an extent unimagined in the pre-1954 South. Nationwide, on average, the school a white student attends is now one-quarter minority. The black student is in a school where, on average, half the students are white."4

Congress, for its part, responded in the decade of the 1960s that followed Brown by passing civil rights, voting rights, employment, fair housing, and other anti-discrimination legislation. Recognizing that not even equal treatment would be enough to offset the vestigial effects of segregation, government and private industry instituted racial preferences and other affirmative action policies to promote diversity and racial inclusiveness. Earlier this year, the U.S. Supreme Court upheld the continued, limited use of such preferences in graduate school admissions.5

A recent report by the Brookings Institution's Center on Urban & Metropolitan Policy came to the striking conclusion that the United States is less racially segregated today than at any time in modern history.

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