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

Preface

This is a book about America's most honored civil rights opinion, Brown v. Board of Education, and about what that opinion means for us today. For that reason, it is also a book about the modern law of race relations in the United States and the role that courts play in promoting racial equality.

For this book, I asked a group of distinguished constitutional scholars to rewrite the opinion in Brown v. Board of Education. I asked each one of them the same 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? The results were staged at a session of the American Association of Law Schools in January of 2000, where the nine of us assumed the roles of a mock Supreme Court.

The rules were quite simple. Each person was asked to write an opinion using only materials available as of May 17, 1954, when the first opinion in Brown was handed down. The opinion could be structured as a majority opinion, a concurrence, or a dissent. The participants were allowed to predict events if they chose but they could not refer to anything in the future as fact. Thus, they could not cite a 1995 study on school desegregation or a law review article written in 1996, although they were free to make any arguments or predictions about the future they wanted. Although the opinions were to be written as of 1954, a few anachronisms remain. In 1954 the polite term for African Americans was “Negro.” Some contributors retained that expression, while others used the (less appropriate then but more appropriate now) expression “black.”

The contributors had to address three different sets of issues. The opinion we call Brown is actually three opinions. The first of these, usually called Brown I, was decided on May 17,1954. It held that state-enforced racial segregation of public school children violated the Equal

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