Lessons from Brown for Today's Public Interest Lawyers
Morrison, Alan B., Judicature
When Ralph Nader asked me to join him at Public Citizen more than 32 years ago and set up the Litigation Group, we decided that one of the two significant areas of public interest law in which we would generally not work was civil rights (such as discrimination in education, housing, and employment)-the other was the environment. We made that decision because other lawyers had far more expertise in those areas and there were at least some other groups working on those issues. The Public Citizen Litigation Group has done a few civil rights and environmental eases, but has generally let. others lake the laboring oar. Nonetheless, not a day went by when the long arm of lirown v. Board of Education1 did not influence our work, albeit in ways not possible to measure.
There are a number of important lessons from Brown, but its most pervasive influence on all those who seek to reform our social, economic, and political systems is that Brown stands for the proposition that the courts are available as an avenue for solving the gravest and most pervasive injustices in our society. The headnotes in Brown do not include one that says anything like, "The Supreme Court is open to hear claims that deeply embedded and widespread practices in America are unconstitutional, and to set them aside in at least some cases," but that is surely one of its major holdings.
There was truly no other means by which the public schools in the South would become integrated except by court order striking down the statutes that either required or permitted racial segregation. It was not only the laws and the physical separation of the races, but also the emotions raised in the minds of the white populace from the specter of the mixing of the races in public schools that made the problem so intractable. And it was clear to the Court that the unequal treatment of blacks was widely accepted at the time of the 14th Amendment, making the decision to rely on that provision to end racial segregation in the schools even more daunting. Yet the Court took it on and ended the legality, if not the reality, of racial segregation in our public schools.
In preparation for this essay I read Brown again. As I turned to the appropriate page, it struck me that the book did not open automatically to that spot, as other books in our library do to other path-breaking decisions. I realized later that, despite Browns undeniable significance, we rarely cited it. Its significance for us is not in the legal propositions for which it stands, although even they have been refined and updated. Rather, it is the fact that Brown represents the equivalent in the law of the ascent of Mount Everest: once it has been done, you know that it can be done and nothing can be said Io be impossible. No statutory scheme-and these were not informal practices or statutes that were only unconstitutional in certain of their applications-no matter how pervasive and long standing, would, at least in theory, be beyond court challenge. But for Brown, would the Court have been willing to strike down political gerrymandering laws, bans on the sale of contraceptives, prohibitions on virtually all abortions, and laws that criminalize sameand opposite-sex sodomy, even though none of those decisions cited Brown? Although I may never have said it, or perhaps even consciously thought it, the premise under which I worked at the Public Citizen Litigation Group was, "If the lawyers could get the Supreme Court to strike down the laws supporting segregation in the schools, I can get it to do what I am asking here, which is so much less than what had to be done in Brown."
Importance of strategy
Brown also had many specific lessons for public interest lawyers. Among the most significant is the importance of having a strategy. As the opinion in Brown notes, there had been three prior education racial desegregation cases, but all three involved graduate schools.2 Attacking graduate schools was less threatening because the mixing of races was not with impressionable young children or even teenagers, the numerical impact on the white opponents was very small (in part because so few black students had sufficient education even to seek admission to a graduate program), and because those cases could be won under even the "separate but equal" standard of Plessy v. …