The Darker Face of Brown: The Promise and Reality of the Decision Remain Unreconciled
Fair, Bryan K., Judicature
The great American Creed shall remain an empty promise so long as the nation refuses to honor the high road offered by the majestic anticaste moorings of Brown.
For many people, Brown v. Board of Education1 is the most significant U.S. Supreme Court decision of the 20th century. As I mark its 50th anniversary, I am filled at once with exuberance and frustration because Brown is vexing, like so much of American law, appearing to give substantive reform with one hand only to take it away with the other.
Brown has two faces. One is a face of joy, hope, and the promise of equal educational opportunity for every child. The other is of continuing despair, hopelessness, and racialized educational caste for American children with darker skin. The reality is that constitutional amendments and federal statutes proscribing discrimination and assuring equal protection of the laws have had the most modest substantive impact, giving little relief from discrimination or inequality. These two aspects of Brown, its promise and the reality, remain unreconciled throughout the country after a half-century of litigation.
In Brown, on the one hand, I am reminded of Justice John Marshall Harlan's majestic promise in his Plessy dissent: "There is no caste here. Our Constitution is colorblind and neither knows nor tolerates classes among citizens."2 Of course, Justice Harlan was simply wrong. From the beginning of the American experiment, caste was extant: masters, indentured servants, subdued Native tribes, and slaves defined the society. Moreover, the Crowns and merchants of Europe sought to exploit labor and to extract the America:' resources for their personal economic gain. And that pattern of avarice and exploitation has caused caste throughout every corner of the world, including the ghettoes, barrios, and slums across the United States and its territories. Nonetheless, Justice Harlan's rhetorical panache provided a place for the aspirations of those mired in caste. In his declaration of the anticaste principle, he presented a constitutional pathway up from and out of cumulative racial caste.
On the other hand, as I reflect on Brown's legacy, I also recall Justice Harlan's admonition, "The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time. . . ."' In Justice Harlan's declaration of racial supremacy, I locate one of the worst traditions of American law. Harlan was not wrong here, but he did not explain how whites had misused the law to abuse the civil rights of colored people to establish white supremacy. He did not mention the legalized thefts and government-sponsored brutality against Native tribes, slaves, mulattos, free persons of color, Chinese and Japanese aliens, or Mexicans. He did not recall the links among Manifest Destiny, American imperialism, and while supremacy.
White supremacy could not exist without its codification in law. The fallacy of white superiority would be obvious without the manipulation of the law. White hegemony is a consequence of discriminatory laws, not evolution. It is now impossible to know what might have become of the American experiment., absent misuse of the law. But there are good reasons to believe things would be quite different.
Hope and promise
One face of Brown rests on a theory of equal citiy.enship and dignity of all peinons. Brown overruled Plessy's lie, heralding a new promise of equal educational opportunity never achieved in the era of separate but equal, Brown held that separate educational systems for white and colored children were inherently unequal, violating the equal protection guarantees of the Constitution.' The Court underscored the importance of equal educational opportunity in the life of every child and the permanent status injury to colored children from statesponsored segregation. …