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

McConnell, J., concurring in the judgment.

These cases force us to confront a moral, political, and legal issue that divides this nation more deeply than any other. Throughout the southern region of these United States, it is customary for children attending public schools to be assigned to classrooms segregated according to race. Similar laws require segregation in other public and private facilities, from swimming pools to municipal buses to courtrooms. In these states, racial segregation is a deeply entrenched social institution. By contrast, throughout the northern and western regions—and among many citizens even in the South—racial segregation has come to be recognized as a serious injustice. Segregation, it is believed, rests on the untenable idea that people of one group are inherently superior to those of another group, by virtue of nothing more than the accident of race. It falls to this Court to determine whether the system of segregated education that prevails in the schools operated by respondent Boards of Education is consistent with the Fourteenth Amendment.

This Court must approach such a question with profound humility. No one familiar with this Court's record in the field of human rights could believe that the members of this Court are especially blessed with moral foresight. It was this Court's decision in Dred Scott v. Sandford1 that, on the basis of an almost fanciful reading of constitutional text, stripped Congress of its ability to confine the expansion of slavery. It was this Court's decision in Plessy v. Ferguson2 that (as will be explained more fully below) turned its back on the original promise of the Fourteenth Amendment and inaugurated the era of Jim Crow. It was this Court that, in Cumming v. Board of Education,3 effectively abandoned even the requirement that separate schools be equal, and that, in Berea College v. Kentucky,4 forced even a private religious educational institution to segregate white students from black. It was this Court, in Giles v. Harris,5 that eviscerated the Fifteenth Amendment and left black Amer-

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