On May 17, 2004, the Boston Bar Association joins the nation in
commemorating the 50th anniversary of the decision of the United States Supreme
Court in the case of Brown v. Board of Education. The anniversary will be an
opportunity to recognize the contributions of the architects of the legal
strategy for eliminating legally sanctioned discrimination against
African-Americans and the courageous plaintiffs lawyers Thurgood Marshall and
Constance Baker Motley and others represented. The Brown anniversary also offers
an occasion to reflect on the progress toward the goal of making the values and
ideals enshrined in the Constitution a reality for all.
impediments stood out among a myriad of formal inequalities disadvantaging
African Americans during the first half of the last century. In her eloquent
introduction to The Civil Rights Chronicle, Myrlie Evers-Williams catalogues
other impediments: the inability to vote or hold public office; the
disqualification from serving on juries; prohibitions on using municipal pools,
parks, and libraries; denials of access to public accommodations such as hotels,
restaurants, and dressing rooms in retail stores. In movie theatres,
African-Americans had to sit in the balconies, and on public buses,
African-Americans had to sit in the back and to yield their seats to whites when
no other seats were available. Historian Drew Gilpin Faust, the Dean of the
Radcliffe Institute for Advanced Study at Harvard University, reminds us that in
the 1950s, help wanted notices in national newspapers specified "colored men" or
"men over 18 (white)" and that real estate advertisements announced
"Colored-bargain. Modern Two Family Brick." Interracial marriages were
prohibited by statute or constitutional provision in numerous states.
Rosa Parks's refusal to give up her seat to a white passenger on the Memphis
city bus was, in the words of the Neville Brothers, "the spark of our freedom
movement," the Brown decision was the catalyst that gave her and other
accidental and intentional activists the confidence that the legal system would
uphold the right of African-Americans to participate fully in American society.
In her recent memoir, Open Wide The Freedom Gates, Dorothy Height, who served as
President of the National Council of Negro Women for 41 years, looks back on
efforts to eradicate these barriers: "We declared: 'Jim Crow must go.' And now,
legally, Jim Crow has gone."
Although there were hundreds of other legal
and practical events the collective impact of which razed the official edifice
of formal discrimination, Brown resonated like no other court decision when the
Supreme Court unanimously declared that schools segregated by race could never
be equal. The Brown decision was what Mamphela Ramphele , the first African
woman to head the University of Cape Town, would describe as a transgression
across social boundaries that divide and exclude.
The civil rights laws
and court decisions in the decades after the Brown decision stood on its
shoulders. If the most important institutions in shaping and forming the social
and civic fabric outside the family - schools - could no longer be segregated,
then no legally valid justification existed for segregation in other less
significant aspects of human interaction.
One year after deciding that
segregated schools were not constitutional, the Court ordered that the lower
courts fashion remedies to accomplish desegregation "with all deliberate speed."
The Supreme Court's 2003 decision in Grutter v. Bollinger endorsing the validity
of affirmative action programs to achieve diverse student populations in
institutions of higher education stands, however, as an explicit acknowledgment
that the educational and societal equality promised in Brown has not yet
evolved. In a concurring opinion in the Grutter case, Justice Ruth Bader
Ginsburg wrote that: "it is well documented that conscious and unconscious race
bias, even rank discrimination based on race, remains alive in our land,
impeding realization of our highest values and ideals. As to public education,
data for the years 2000-2001 show that 71.6% of African-American children and
76.3% of Hispanic children attend a school in which minorities made up a
majority of the student body. And schools in predominantly minority communities
lag far behind others measured by educational resources available to them.
However strong the public's desire for improved education systems may be, it
remains the current reality that many minority students encounter markedly
inadequate and unequal educational opportunities."
University Civil Rights Project documents important educational and civic
benefits that derive from racially diverse schools. Despite these benefits, the
project also documents the growing isolation of whites, African-Americans and
Latinos from each other in the public schools. Boston is among the school
districts with significant declines in exposure among whites, African-Americans
and Latinos in recent years. The volunteer efforts of lawyers through the BBA's
Children and Youth Outreach Task Force program try to bridge the inequalities
resulting from this racial divide, but don't substitute for routine interaction
in the schools.
Why has Brown, on the one hand, had amazing
transformative impact, but on the other hand, why do most children of color
still attend schools in 2004 that are not racially diverse? The broad holding of
Brown has certainly been incorporated superficially into the society and
culture, though racism still infuses all sorts of practices. The narrow holding
- that public schools should be integrated - has failed to take hold. What
accounts for this failure?
UCLA Law Professor Erwin Chemerinsky has
explained that court decisions bear responsibility for the current segregation,
and inequalities among, public schools. After Brown, the federal courts became
timid in actually imposing remedies that would have been effective in
desegregating schools. He argues that courts failed to establish rigorous
timetables for achieving desegregation, did not permit city-suburban remedies to
promote desegregation, declined to identify education as a fundamental right or
to mandate reform for school financing systems, and ended desegregation orders
prematurely before desegregation could be firmly institutionalized in
communities. Boston's public schools bear witness to these and other failures.
Dissenting in Milliken v. Bradley, the case in which the Supreme Court
ruled out city-suburban remedies, Justice Thurgood Marshall identified the real
reason desegregation matters: "We deal here with the right of all children,
whatever their race, to an equal start in life and to an equal opportunity to
reach their full potential as citizens. Those children who have been denied that
right in the past deserve better than to see fences thrown up to deny them that
right in the future. Our nation, I fear, will be ill served by the Court's
refusal to remedy separate and unequal education, for unless our children begin
to learn together, there is little hope that our people will ever learn to live
While most children of color still do not experience the
promise of integrated education and all the resources and opportunities that
might follow, the Brown decision succeeded in opening the doors of opportunity
to African Americans in all walks of life. The impact of Brown may not yet be
sufficiently deep, but it has been broad. Ramphele notes that the small changes
one is able to achieve "are like fuel which keeps you going."
Height writes that part of our responsibility is to absorb the lessons of the
past "not because there has been no change, but because knowing just how much
has changed" will instill the courage and energy necessary to honor the legacy
of the Brown decision and the efforts of all who work for civil rights by active
stewardship of future progress.
Renée M. Landers, a Professor of Law at Suffolk
University Law School, is President of the Boston Bar