Revisiting the Supreme Court's Opinion in Brown v. Board of Education from a Multiculturalist Perspective
by Kevin Brown - 1995
Reexamines the Supreme Court's school desegregation opinions, including "Brown v. Board of Education," and concludes that a multicultural society was not part of the Supreme Court's vision of public schools. Argues that the ideology of those opinions cannot be the basis of school districts' efforts to bring together racially or ethnically diverse students. (Source: ERIC)
This article looks back at the Supreme Courts school desegregation opinions, including Brown v. Board of Education, from the perspective of a multiculturalist. A multiculturalist prefers an American society that has learned to appreciate and value the existence of multiple racial and ethnic cultures. A prerequisite to accomplishing this multicultural vision of a utopian American society is to bring diverse racial and ethnic students together in public schools. But for this appreciation to occur, more than the physical presence of a racially and ethnically diverse student body is required. Thus a multiculturalist also wants to foster meaningful cross-cultural understanding, though not necessarily cross-cultural agreement.
The Supreme Courts opinion in Brown produced significant positive changes in American society. Nevertheless, with the beginning of the termination of over 500 school desegregation decrees, the United States has entered a postdesegregation era. Racial and ethnic segregation in public schools is likely to increase. Thus the utopian vision of a multiculturalist is not where our society is currently headed. After reexamining the Supreme Courts school desegregation opinions, I conclude by stating the reason the multicultural vision is not the one our society is moving toward. This vision was simply not part of the vision of public schools articulated by the Supreme Court in the school desegregation cases. If local school systems decide to engage in further efforts to bring racially and ethnically diverse students together, it must not be on the ideological basis of the Supreme Courts school desegregation opinions. The very kind of thinking about the issues of cultural diversity that Brown I was based upon is the very kind of thinking that must be overcome in order for true multicultural education to occur.
While I recognize that it is unusual to start an article with autobiographical information, bear with me for a moment because the relevance of such a beginning will be obvious by the end. I was born in 1956, the year that Martin Luther King led the bus boycott in Montgomery, Alabama. Until the end of the fourth grade, I attended de jure segregated all-black schools in Indianapolis, Indiana.1 Before I started the fifth grade, however, my parents moved our family to a suburban area of Indianapolis. Even though our neighborhood was racially segregated, the schools were predominantly white. From the time I entered high school until I graduated from Yale Law School, less than 10 percent of the student body and faculties at the schools I attended were Negroes (later called blacks and still later African Americans). All of my significant employment has been at institutionsa local office of a national public accounting firm, a law firm, and two law schoolswhere I have been either the only one or one of two blacks or African Americans on the professional staff. Currently, I am one of two African-American law professors on a thirty-person faculty. I have two all-black children by my ex-wife. My current wife, however, is Caucasian and we have two biracial children. In short, I amand my family isa product of the desegregation of American society.
I have mentioned my personal history to show that I have long been a proponent of interracial harmony and cross-cultural understanding. By this I do not mean cultural homogeneity or domination, but individuals from diverse backgrounds appreciating and respectingthough not necessarily agreeing withthe beliefs embedded in different racial and ethnic cultures in our society. A prerequisite to accomplishing this multicultural vision of a utopian American society is to bring diverse racial and ethnic students together in public schools. I am, therefore, an avid supporter of true multicultural education in multiethnic and multiracial public schools. In order to have such an education, more than the physical presence of a racially and ethnically diverse student body is required. From my own personal experience, I know that it takes a considerable effort to understand views of the world embedded in cultures different from your own. Many times the beliefs of your native culture will consider such alien views to be products of ignorance, mistake, bias, or lack of understanding. In order to bring about appreciation of and respect for the culture of others, there must also be consistent and meaningful cultural interchanges that foster cross-cultural understanding, though not necessarily cross-cultural agreement.
Despite my personal predilections, however, I am forced to live with the current realities regarding race and ethnic relations in American society. A Harvard report published in December 1993 indicated that two-thirds of African-American students and over 70 percent of Latino students are currently attending majority-minority schools.2 These percentages actually reflect increases in racial and ethnic separation from what existed in the late 1980s. Also, the U.S. Supreme Court in a 1991 opinionDowell v. Board of Education3and a 1992 opinionFreeman v. Pitts4articulated what de jure segregated school systems must do in order to free themselves from the yoke of federal court supervision. At one time over 500 school systems were operating under some form of school desegregation decree.5 With the termination of federal court supervision and the consequent dissolution of those decrees, large numbers of public school districts will regain plenary control over student school assignments. The goal of student assignments in those districts will no longer be motivated by the compelled need to maintain integrated student bodies. The foreseeable future for our nations public schools is, therefore, one of increased racial and ethnic separation. To state it bluntly, we have already seen the maximum amount of integrated public schools that we are likely to see in our lifetime.
As a supporter of multicultural education, I have had to reluctantly conclude that my utopian vision of public schools is not going to materialize. While the vision of true multicultural education in multiethnic and multiracial schools can exist for a minority of African Americans and Latinos, this kind of public education will be unattainable for the majority of these minority students. Because of this realization I am now willing to look back to the desegregation of Americas public schools in order to assess what prevented this multicultural vision of public education from becoming our present-day reality. If local public school districts are going to engage in local efforts to racially and ethnically integrate their public schools, they must learn the lessons that were taught by court-ordered desegregation in the 1960s and 1970s. If not, such efforts to physically integrate public schools will run the risk of repeating an unnecessary mistake.
Though political and educational forces were also involved, the primary impetus for school desegregation was as a legal remedy for the violation of the constitutional rights of black school children. To find the blueprint for school desegregation, the place to look is to the Supreme Courts de jure segregation jurisprudence. In 1954, the Supreme Court struck down statutes that used race to segregate students in public school in Brown v. Board of Education of Topeka, Kansas (Brown I).6 The following year, in Brown II,7 the Court addressed the remedy that was required in order to meet the constitutional obligations articulated in Brown I. In Brown II the Court required that public schools effectuate a transition to a racially nondiscriminatory school system.8 The precise parameters of what was meant by a racially nondiscriminatory school system were originally left to the discretion of school authorities. Many of them and southern federal judges relied on the dictum from the District Court opinion on remand in the companion case with Brown I from South Carolina, Briggs v. Elliot9 In Briggs the District Court interpreted the meaning of Brown I as not requiring the mixing of persons of different races in the schools or of depriving parents of the right to choose the schools their children attended. The Constitution, in other words, does not require integration. It merely forbids discrimination. It does not forbid such segregation as occurs as the result of voluntary action. It merely forbids the use of governmental power to enforce segregation.10
In its 1968 opinion in Green v. New Kent County, the Supreme Court moved beyond a possible interpretation of Brown I as merely forbidding discrimination.11 Under a freedom-of-choice plan adopted by the New Kent County School Board, no whites had enrolled in the black schools, and only 15 percent of blacks had enrolled in the formerly all-white school.12 In striking down the plan, the Court explicitly rejected the argument of the New Kent County School Board that the Fourteenth Amendment did not require compulsory integration.13 The Court placed the obligation on public schools to dismantle their dual school systems and to do so immediately. The Court justified placing the obligation on school boards to achieve racial balancing by stating that the constitutional rights of Negro school children articulated in Brown I required the desegregation of public schools.14 To find the rationale articulated by the Supreme Court for court-ordered school desegregation we must do as the Court commanded in Green v. New Kent County and journey back to Brown I.
Before going back to Brown I, however, I want to emphasize that over forty years have elapsed since the Supreme Court rendered this opinion on that famous spring day in 1954. At the time the Court delivered that opinion, people of African descent were call Negroes out of respect, and were called nigger, darkie, and even black as an insult. America had not yet experienced the civil rights movement, the Black Consciousness Movement, or the Afrocentric Movement. Segregation and conscious racial discrimination were not only the explicit law of the land in many places, but also standard American business, educational, political, and social practice. To discriminate based on race in merchandising stores, eating facilities, places of entertainment, and hotels and motels was generally accepted as a fact of life. Negroes seldom occupied positions in American businesses and corporations above the most menial levels. Even lower-level management positions were for the most part unobtainable. What in the 1990s is referred to as the glass ceiling, forty years ago was a firmly implanted outright concrete barrier. In 1954 only a handful of Negroes attended prestigious colleges and universities in this country and almost none of them taught there. A colored man had not been elected mayor of a major U.S. city in the twentieth century. And there were only four Negroes serving in Congress, none having been elected from the South since 1900. In 1954, many places in the country had separate water fountains, waiting rooms, transportation facilities, rest rooms, schools, hospitals, and cemeteries for whites and coloreds. The Courts opinion in Brown I preceded by ten years the Civil Rights Act of 1964, which was the single most sweeping piece of civil rights legislation in the countrys history. It also preceded by eleven years the Voting Rights Act of 1965, which effectively secured the right to vote to most Negroes living in the South. This is where the majority of Negroes lived at the time and most had been disenfranchised since the 1890s.
In 1954, the collective history of race relations in North Americawhich had spanned almost 335 yearswas primarily one of slavery and, after a period of Reconstruction following the Civil War, one of legally enforced and sanctioned segregation. It was a history of almost uninterrupted use of race as a means to classify people of African descent for purposes of subjugation.
According to the Courts opinion in Brown I, the harm of de juresegregation was not limited to intangible stigmatic harms, but also included tangible harms. In one of the most quoted phrases from Brown I, the Court said that to separate [African-American youth] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.15 The Court went on to quote approvingly from the district court in Kansas:
Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to retard the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system.16
We must first understand the breadth of the Courts conclusions about the harm of segregation. Since the Court indicated that the harms suffered were unlikely ever to be undone, they persumably also affected those blacks who had attended segregated schools prior to 1954. As a result, it was not just black school children who were psychologically damaged by segregation, but black adults as well. In an opinion that today may come close to group slander, the Supreme Court explicitly states that Negroes have had their educational and mental development stunted by segregation. Despite the presence of sociological testimony of the harm suffered by whites as a result of segregation, the Supreme Courts opinion is based on the fact that only African Americans were damaged by segregation.17 It therefore implicitly assumes that the psychological and mental development of whites was unaffected by de juresegregation.
Let me first note that there is an importantcriticaldistinction to be drawn between segregation as being based on a false premise that African Americans are not the equals of whites and believing that segregation actually distorted the cognitive, psychological, and emotional development of blacks. According to the former, the structure of education was based on the false premise. According to the latter, because of segregation blacks were actually inferior to whites. Under the former, racism was irrational because the premise it was based on was false. According to the latter, racism has a rational basis, but the inferiority of blacks is presumed to be curable. According to the former, since both blacks and whites were being indoctrinated with the false premise of black inferiority, both were victimized by de juresegregationthough in different ways. According to the latter, the harm of de juresegregation affected only blacks. According to the former, desegregation as a remedy for segregation would have benefited both blacks and whites. According to the latter versionand the Supreme Courtinterracial exposure of Caucasians to African Americans was not beneficial to white students. In effect, the Supreme Court accepts the idea that blacks are inferior to whites, but simply changes how that inferiority should be treated. Desegregation was needed because ofnot in spite ofthe fact that whites were thought by the Supreme Court to be superior to blacks.
I do not wish to be perceived as voicing the proposition that the Supreme Court was wrong in striking down de juresegregation in 1954. It seems to me that only a fool would take such an outlandish position. It is obvious that had the Court not struck down de juresegregation in Brown I, I, an African-American law professor, would not be in the position to write this comment. I extol the valor that the Court exhibited in breathing life into the moral imperative of equality enshrined in Americas most important legal documents. As a decision to strike down de juresegregation, Brown I should be looked on and revered as a fundamental effort by the Supreme Court that sparked a historic effort by American society to attempt to break with its racially oppressive past. Without question the opinion helped to open doors for African Americans that prior to it were permanently barred. Certainly there were extralegal implications for an opinion like Brown I that made it important for the Court to reach unanimity. And considerations about the inflammatory nature of the subject matter may havequite correctlycaused the Court to write the opinion in the way that it did. I am therefore willing to concede that the Court delivered the best opinion that it possibly could have for the American society that existed in 1954.
But over forty years have passed since the Courts opinion in Brown I. This America is not the one that existed before the civil rights movement and the Black Consciousness Movementmore than twenty-five years have passed since those movements. Many of the people who were called Negroes as a term of respect in 1954 would be offended to be called a Negro today. To call such a person black is not an insult, but a sign of respect. And in most circles the term used is African American, making an explicit link with and showing respect for both past and present homelands. Americans no longer live with white-only and colored-only signs etched above water fountains, waiting rooms, transportation facilities, rest rooms, schools, hospitals, and cemeteries. This is not the America that existed before the Civil Rights Act of 1964, nor the America that existed before the 1965 Voting Rights Act. Even in contexts where it is not against the law to use race to consciously discriminate, the general American ethos makes it clear that it is at least considered wrong or in bad taste to discriminate against blacks solely on the basis of race. In brief, Americans today live in a society that has been altered by Brown I and not in the society that existed before it. American society is considerably different forty years later because of that opinion and many of those changes have been stunning.
I am not going back to the Courts opinion in Brown I for the purpose of criticizing an opinion written against the background of a 1954 American society. Rather, I am examining the legacy of that opinion to elucidate why the vision of public education as true multicultural education is not the reality our present society is moving toward.
Nineteen years after Brown I, the Supreme Court explicitly extended the Brown I presupposition about the effect of de juresegregation on the development on African Americans to Latinos in the Southwest. Keyes v. School District No. 1was the first Supreme Court opinion addressing de juresegregation in a cityDenver, Coloradothat was located in a state where in 1954 the public schools were not segregated pursuant to state statutory authority.18 Keyesis noteworthy for three reasons: First, the Court accepts the de jure/de facto segregation distinction. Second, the Court also adopts a procedural rule that a finding of intentional school segregation in a meaningful part of a school district creates a strong presumption that segregated schooling throughout the district was similarly motivated. Finally, Denver was also a tri-ethnic as distinguished from a biracial community. Hence the Court had to address how Latinos should be treated for purposes of school desegregation lawsuits. The Court concluded that in the Southwest Hispanos and Negroes have a great many things in common. . . . In fact, the District Court itself recognized that one of the things which the Hispano has in common with the Negro is economic and cultural deprivation and discrimination. Although of different origins Negroes and Hispanos in Denver suffer identical discrimination in treatment when compared with the treatment afforded Anglo students.19
The Supreme Courts school desegregation opinions have operated as barriers to the institution of the kind of multicultural education in multiethnic and multiracial public schools that I spoke about earlier. Educational reform movements that arose in the wake of the Courts school desegregation opinions relied on the Courts explicit proposition that blacks were the only ones damaged by segregation. Hence these reforms not only perceived the assimilation premises and structures of American education as basically sound, but were also dominated by a cultural deprivation paradigm for African Americans.20 As aptly stated by James M. Jones, the popular notion of cultural deprivation as a description of black children attests to the wholesale disregard of black life and culture.21
Given the Supreme Courts assertion that only blacks and Latinos in the Southwest were culturally damaged by segregation, it follows that their cultural beliefs are not worthy of being respected and appreciated. Just the oppositethose cultural beliefs reflect the distorting influence of segregation and need to be excised. The Courts school desegregation opinions were opinions directed at forcing black and brown people to accept the dominant American culture as their own. These were opinions based not on multicultural education, but on cultural homogeneity and the hegemony of the dominate culture.
I can now succinctly state the reason that my vision of public education as one of diverse racial and ethnic students learning to appreciate and respect each others cultural beliefs is not the reality that our society is moving toward. This vision was simply not part of the vision of public schools articulated by the Supreme Courts school desegregation cases. If local school systems decide to engage in further efforts to bring the racially and ethnically diverse students together, it must not be on the ideological and structural basis of the Supreme Courts school desegregation opinions. The very kind of thinking about the issues of cultural diversity that Brown I was based on is the very kind of thinking that must be overcome in order for true multicultural education to occur.