Strengthening Constitutional Self-Government

No Left Turns

What’s Really Wrong with BROWN

Here I’m hastily reacting to Rob’s post below, shamelessly using my power to create a new entry every time I want to pontificate about God, nature, the Constitution or whatever:

BROWN would have seemed less punitive had it been more assertive. BROWN II was racist in its lack of a timetable for implementation, in its "all deliberate speed." The remedy was not guaranteed to the particular kids whose rights were violated (and they were) but to members of their race at some indefinite time in the future. The South correctly saw in BROWN II a sort of license to stall--and that stalling made the Civil Rights movement necessary, was the real cause of much of the violence and corresponding use of federal troops and eventually of the perceived need for busing etc. Had the Court set a deadline for taking race out of the law of, say, 1958, then implementation might have been somewhat harsher initially but more benign over the long run. I tend to think that more damaging than anything in BROWN I is the more explicit racism or anti-individualism of Brown II. I actually think the strange BROWN I opinion is not oriented toward indefinite progress toward perfection integration but is better understood as a misguided tactical move to shape a radical decision with a seemingly moderate and limited argument--one that didn’t reverse PLESSY (because it had no implications for segregated transportation) and was limited only to primary and secondary education. The argument used in BOLLING v. SHARPE (announced the same day) about racial distinctions in the law being hostile to our tradition or something like that showed that the Court knew better than BROWN and a lot about their real intention.
Listen, the Second Reconstruction could have been handled better but certainly was necessary: The South rose to American dominance only after the end of segregation and the coming of air conditioning.

Discussions - 12 Comments

Well, I'm writing and thinking hastily too, about stuff I don't have on my mind EVERY day, but.... the discussion has taken a real interesting turn. Your point about Brown I is thought provoking. Do I understand you? Brown should have been less constitutionally modest (not ceding the constitutional ground to the states righters who were at least making a constitutional argument!) and more assertive remedy-wise--but not insisting on coerced integration as opposed to desegregation. Also, a timetable for a remedy should have been made explicit. I wonder though how that would have avoided resistance and the use of federal troops, though it might have happened more quickly. (And I assume you also mean that, since Lawler's Brown decision would have clearly overruled Plessy, the remedies would have applied to all racial segregation and not just schools.) I guess you say it would have "seemed" less punitive because it would have been clearly based on law and more moderate or reasonable in its reach. And if it had made the socially destructive theatrics of the Civil Rights Movement unnecessary that would surely have been good. The punitive stance toward the South in actual fact, however, cannot be denied. PERHAPS not in Brown I, but certainly evident when one looks at The Warren Court throughout the entirety of the civil rights era. And the effect of this ire had effects beyond civil rights law itself--as witness the NYT/Sullivan Case, for example. I agree it would have been better for the country to have gotten this over more quickly (given that it was necessary), for the underlying question here is how the destructive and harmful effects of the civil rights era could have been avoided--for the sake of the country as a whole, I emphasize. For one thing, look at what it helped to do to the old liberalism of the Democratic Party. It also would have helped in keeping liberalism in a Locke Box, something I know is dear to your heart! You are right that the South is more influential nationally than it was pre AC and desegregation, so maybe in the end we as a whole will be leavened by it in spite of the partisans of both sections.

Gentle People,

Just wondering....How much of the decline of education is due to race-conscious social engineering, how much is due to other kinds of bad judicial decisions, and how much is due to the general decline of everything?

I've been thinking more about this and can't for the moment agree with you Peter on some fundamentals of your account. First, I don't see as much liberalism (individualism) in Brown I as you do. Apart from what I have said before, it also, for example, emphasizes group identity and group self-esteem, and sees public schooling in the Deweyite sense as an engine of mass democratic socialization. Thus I do not see the great difference of principle between Brown I and II that you do. (I do need to look again at Bolling. Who was new to the Court in Brown II, by the way?) Second, there's real doubt in my mind that a more assertive Judicial/Executive blitzkrieg on the South would have had the effect you suggest. Coming but six years after the southern revolt of 1948, it might have revivified and stimulated a movement to reform a third political force in American politics to take the place of the old 2/3's rule for the Democratic nomination repealed by FDR in 1936. Memories were still very short then, and it could be that the deliberate speed tactic actually worked in the end to wear down and diffuse opposition, especially as the South continued to "modernize." Perhaps it all couldn't have been avoided. For it WAS a radical decision, as you suggest, not in the principle behind it (properly understood), but in what it asked or demanded of the South. So.....in the end, Roberts and Thomas are more liberal than the Brown Court was, and the South, I think, is now more classically liberal (and more religious) than most of the rest of the country, with still a southern twist, or twists. How does it happen, if it does, that the South today is more moderate in its understanding of liberty but more confident in it than the rest of the country? Is this related to the dynamics of the last 50 years or even longer? As the South became more free and equal, it didn't cease to be conquered and to remember the past more, its good and its ill. Sometime I must write about my southern students, but I've gone on too long.....

Christina, I don't think these guys hold that such engineering has been up the main, or even a major secondary, cause of the decline of our schools. Regardless of that, and in the spirit of Thomas' great opinion in the "Bong Hits 4 Jesus" case, (We must all pledge to always refer to it by this name!) someone could write a book about the judicial decisions regarding discipline and the lack of ability for public systems to kick out repeat troublemakers. Those decisions are mostly state-by-state, and so the necessary reverse-work to give our public school adminstrators and teachers a sane level of authority could only occur very slowly. But conservative edu-wonks would rather drone on about the insta-magic of vouchers, than explore an issue with which they could win the acclaim of 2/3 of the teachers in America.

And then there's that small problem of the "general decline of everything" you refer to.

Carl, I am taking the pledge re: Bong Hits 4 Jesus--can't decide if I should bow my head or not--

Good point about vouchers since they won't magically improve the sorry preparation for teaching available in most colleges and universities, nor the discipline problems if the courts use vouchers as an excuse to turn private schools into public. Vouchers could actually contribute to the general decline of everything.

B4J was nothing more or less than a small, needlessly small, hit for judicial restraint. The Court should have very little to say on how high schools restrict speech and kick out troublemakers, as Thomas says. To say Brown was the bulldozer of social engineering is to whine in a very southern way by abstracting from its basic justice. The bulldozer of enforcement was what the rights of the little black kids required; they had a right not to have their public educational opportunities determined by the lie of separate but equal, even if the Court psychobabbled the content of the lie. The promise of punishment would have had to be real to induce southern compliance, and I might agree the likelihood of such resoluteness from Eishenhower would have been small. And to Christina and Carl, the first principle of Tocquevillian social science is that things are almost always getting better and worse. If I were a lefty, I would whine about the burgeoning inequality of educational opportunity. For the smart and rich kids with savvy parents things may be better than ever; the average kid is pretty much warehoused in way too many places. Carl is right about the very limited promise of vouchers; it's irresponsible not to worry about public schools, even if your kids go nowhere near one. Schools were surely much more helpful for "at risk" minority kids on the whole under segregation than they are now. The South is, as Rob says, more self-confident because it's put the burden of racial injustice behind it; its aspiration should be to combine what's best about aristocratic excellence and middle-class justice. That's not quite the aspiration of the evangelicals, of course.

Yes, those are my students, combining middle class justice and aristocratic excellence (diluted to middle class ambitions). Lovely point on Tocquevillian political science. And I almost mentioned the evangelicals as being a bastard child of our times, since, as we have learned below, they are really descended more from the hippies than the old South. In answer to your rebuke, the Brown Court did fashion its justification for defending the rights of little black children by speaking of the changed conditions of education in a mass society rather than the 14th Amendment. I think, if memory serves, that's where the turning back the clock language comes from. The context was the extent of "individualism" in the Brown argument, and I stand by my point.

Look, let me try to be clear before this ends. The social engineering in Brown comes from the combination of the education for mass society argument and the self-esteem argument, which itself is based on social psychology. It is also terribly paternalistic. It also seems clear that, in part because of the untouchable and manifest justice of the spirit and outcome of the Brown decision, this became a prototype for the touchy-feely identity psychobabble that has come to substitute for real education and came into full flower as multiculturalism. What I have been trying to say the last two days is that Brown was a terribly and embarrasingly argued opinion, and that Roberts and Thomas are trying to correct it for the sake of the American future and the black schoolchildren's future too. Juan Williams does understand this. Maybe its better to pretend Brown was fine from the beginning and to remember the good things rather than the bad, especially since what has happened has happened, and the bad stuff that came in the train of the good can't be made not to have been. Either way, we agree that it's good for the Breyer type arguments to be snuffed out, because the consequences of the bad arguments won't likely go away of their own accord. More I hope on the South later.

Here's the Brown context as I remember it: The principle remains the same--citizens treated equally. In 1868, public education could not be considered the right of a citizen. Evidence: public education far from universal and soldiers can be illiterate. In 1954, conditions had changee--public education is universal and literacy is a requirement for military service (the fundamental duty of a citizen). It's not "conditions of mass society." The argument may or may not be a reach. But the point is the stability of the principle under changed circumstances concerning the requirements and so rights of individual citizens. The 14th A is clearly in play. That's not really the controversial part of Brown--surely the Court had the power under the 14th A to consider whether separate is really equal in public education, as well as public accomodations etc. In Plessy, the Court had concluded that separate is really equal, ignoring what Harlan says "everyone knows" about the law's real purpose in humoring white pride. In Bollng v. Sharpe, the burden of proof is on govt to show a legitimate point to the separation, and the Court couldn't find one. In Brown, a Harlan-based argument would have shown that it remained the case that the only real point to segregation is to humor white pride. It wouldn't try to prove what can't be proved--that the legal fact of segregation was the cause of black kids feeling so inferior that equal education was impossible for them.

Was writing as you wrote. I agree on your analysis of the relation of Plessy and Brown, as well as Harlan, and will reconsider the upshot and reach of the education argument. On 14th A, Brown begins with a demurral by the Court on what it means a priori, which leads to a subsequent reliance on the internal coherence of separate but equal as it pertains to education of school children. Tired. Talk later.

A last simple note to your #8 on Brown context: Plessy says separate but equal is consistent with 14th Amendment. Brown says, can't agree that 14th Amendment trumps separate but equal, but we all agree that separate but equal doesn't produce equal opportunity in practice, due to changed conditions of education (I don't think they say a "right") and social science research. Therefore must have integration for black kids to succeed. That requires racial lists.

Loose end: Multiculturalism is more tenuously related to Brown than I indicated yesterday. It is true that in Brown white pride must give way to the lack of pride in black kids, but the remedy is for black kids to go to school with white kids, There is not yet an attack on white pride, or on the oppressor class. The blacks are not yet spoken of as victims per se. The goal of the litigants is truly equality. But still, the dignity of the individual human soul is not the explicit object of the opinion, and in continuing Plessy's theme of racial pride it did us no great service.

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