Politics in Brown and White: Resegregation in America

By Cann, Steven | Judicature, September/October 2004 | Go to article overview

Politics in Brown and White: Resegregation in America


Cann, Steven, Judicature


A half-century after the historic decision in Krown v. Board oj Education (Brown I),1 we are again where we were in 1896 when the U.S. Stipreme Court created the separat ("-but-equal doctrine. Except that then, when the Court wrote "separate but equal," everyone knew that it. really meant separate and unequal. Today, the reality in urban America is that the schools are still separated by race. The minority schools of our central cities are under-supplied, under- funded and often physically deteriorating.2 Every indicator from drop-out and graduation rates to lest scores indicates that students of color in central city school districts are not receiving the same educational opportunities as their white counterparts in well-funded suburban schools.

This article will attempt tu shed some light on why resegregation in America has become a reality. It will summarize the history of the decisions in Brown I and in Brown //'' (which was designed to implement the lirst Brown decision). A third case from Topeka, Kansas, Brown III,' decided some 40 years after the first two Brown rulings, will also be examined to the extent that it exemplifies the struggle over race in this country generally, as well as the specific legal debate over daacio segregation in education. The article will conclude with a broader discussion of racial jurisprudence and politics.

The history leading up to the Brown /case is well established. The 1954 Brown litigation (Brown /) was a consolidation of five separate cases/' Two were from the Deep South-South Carolina and Virginia, respectively-where the trial court found that the separate schools were not equal and ruled in favor of the plaintiffs. Two other cases were from the border jurisdictions of Delaware and Washington, D.C. The trial court in Delaware found that the separate schools could not be made equal and ordered them desegregated. The District of Columbia court dismissed the suit. The lead case was from Topeka, Kansas, and its distinguishing feature was that while the primary schools were separate, they were virtually equal. In deciding that separate schools can never be equal, the U.S. Supreme Court in Browncreated the right to attend equal schools without the sligma of race.

Brown /ordered the parties Io return for the ensuing Court term to argue implementation of the decision. This would become known as Brown IL The Court's ruling iu Brown Il remanded the cases to the trial courts thai had heard them initially. The defendants in the cases were ordered to make a "prompt and reasonable start" toward compliance with Brown I. The defendants could seek extra time for good reasons but, if challenged, (lie burden of proof would he on the defendants to disprove invidious discrimination. The federal district courts would retain jurisdiction of the cases until desegregation was achieved. They were to consider, among other things, administrative and teacher assignments, conditions of physical plants, and revision of district lines and attendance zones-all of which was to he done "with all deliberate speed." Obviously, these orders applied to the defendant school districts, but because Brown I was a class action suit, the holding in Brown I and the remedy in Brownw. // applied to any jurisdictions in which there was de jure segregated education.

The "massive resistance" to the Brown decision in the south, the vagueness of the Court's "all deliberate speed" language, and the wide discretion given to local federal judges meant that there was not a lot of progress toward desegregation throughout the remainder of the 1950s. By 1960, not a single black child in Alabama, Georgia, Louisiana, Mississippi, or South Carolina attended a public school with white children.''

Eventually, a number of factors caused the partial desegregation of the south.7 First, the U.S. Court of Appeals for the Fifth Circuit, which at that time consisted of Alabama, Florida, Georgia, Louisiana, Mississippi, and Texas, became staffed with judges committed to ending segregation. …

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