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 3
Rewriting Brown
A Guide to the Opinions

In this book, nine constitutional scholars have rewritten the Brown opinion. Acting as Chief Justice of this mock Supreme Court, I have issued an opinion announcing the judgment of the Court. It is joined by two other participants, Bruce Ackerman and Drew Days. Their concurrences do not mean that they agree with everything in the opinion, only that they do not object too strenuously to its general contours. The best evidence of their own views is their individual opinions, which differ in many interesting and important respects.

Five other participants, Frank Michelman, John Hart Ely, Catharine MacKinnon, Michael McConnell, and Cass Sunstein, concur in the judgment, meaning that although they agree with the basic holding that segregated schools are unconstitutional, they do so for different reasons. Their different approaches illuminate many of the tensions implicit in the original Brown decision.

Finally, Derrick Bell offers a dissenting opinion. He disagrees with the conclusion that the separate but equal doctrine of Plessy v. Ferguson should be overruled. Instead, he gives a provocative argument for why Plessy should be read strictly to require genuine equalization of facilities for blacks and whites. Strict enforcement of the “equal” strand of Plessy's “separate but equal” doctrine, Bell believes, would put such severe economic pressures on school boards that they would have to disestablish their dual school systems owing to budgetary necessity rather than judicial mandate.

To understand the issues these opinions raise, it is helpful to go back to Warren's original work and see how he dealt with the issues in the five cases that became Brown I, Brown II, and Bolling v. Sharpe. These include the issues Warren specifically chose to address, the issues that he chose to gloss over or leave in the background, and the issues that were immanent in the case but whose importance only became apparent

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