Why, so many years after the world-changing ruling in Brown v. Board of Education, does the world seem so unchanged? To note only the extremely obvious, schools across the country are more segregated than ever. Has the ruling's original promise been unfulfilled? Martha Minow, the Jeremiah Smith, Jr. Professor of Law at Harvard Law School, and the school's dean (she succeeded Elena Kagan) grapples with the long-term consequences of Brown, and in particular with some of its unexpected, and salutary consequences, in her book "In Brown's Wake: Legacies of America's Educational Landmark." It is a fascinating book, even for laymen, in part because Minow explains clearly and cogently how the Brown decision has radiated out in surprising ways. I recently had an e-mail conversation with Minow about Brown, its disappointments, and successes. (Full disclosure: Minow and I both sit on the board of the Charles H. Revson Foundation; Minow chairs the board; I kibitz at meetings.)
Jeffrey Goldberg: It seems to me, and probably other people, that Brown changed
everything and nothing at the same time. In other words, the Supreme
Court could ultimately not mandate true racial integration. Much of
your book is about the non-race consequences of Brown; did you focus on
this because Brown's impact on integration has been so disappointing?
Or am I wrong in my assumptions?
Martha Minow: I wrote the book in the context of so many public discussions about disappointments around Brown v. Board of Education--and I share the disappointment that public K-12 schools today are in most parts of the country racially imbalanced in their enrollments. I did want to give Brown its due for shattering the racial apartheid of Jim Crow laws, where statutes and ordinances mandated segregation by race not only of school children, but also their textbooks in summer storage; and where racial hierarchy enforced by vigilante justice and lynching deprived African-Americans of access to public accommodations, good jobs, political participation, and more. That era is over, and the social movement surrounding Brown generating the 1964 Civil Rights Act and political and economic changes that at least in some measure contributed to the successes of people like Oprah Winfrey, Ken Chennault, and Barack Obama.
Even racial desegregation of schools--for a time--made real progress; the most racially mixed schools in 1971 were those in the South because of federal court and administrative enforcement of desegregation orders. Yet political backlash and the backing off of federal enforcement by courts and agencies followed; the 1974 Supreme Court decision drawing a line at the suburbs for any remedy for segregated and failing schools in Detroit was one indication of this change. And white families that wanted to avoid desegregation and failing schools moved to the suburbs or private schools. The disappointing status of school desegregation reflects both the loss of public enforcement and patterns of private residential and schooling choices; most white children in American now attend schools with predominantly children and most African-American and Hispanic students attend schools with few white children. Equal opportunity remains the residual goal--with bi-partisan support for investing in schools and working to reduce the racial gap in achievement scores, but racial integration has largely receded from public priorities when it comes to K-12 public schools.
Yet the impact of Brown spreads way beyond that context. In colleges and universities, workplaces, and media depictions, racial integration remains a significant goal. And beyond the context of race, Brown inspired social movements and advocacy efforts on behalf of immigrants, students learning English, girls, and persons with disabilities--with court cases and legislation renovating public schools to promote equality across these lines and often, though not always, integration, too. Equality as framed by Brown became a framework for some advocates addressing poverty and others working on behalf of gay, lesbian, bi- and transgendered youth. Brown and the litigation strategy and rhetorical around it guided others interested in opening up public support for religious schools. I wanted to highlight these huge influences while also exploring in all these contexts, when and how equality has come to signal a demand for integration, and when instead "separate but equal" seems a sensible result. Even where "separate but equal" seems permitted--as with single-sex education, for example--there's a big change in the law and in public demand for real and comparable opportunities, regardless of a person's gender, disability, or other identity. I wanted to focus on these other realms to do justice to Brown to reclaim the path it represents: people can work together, using law and organizing socially and politically, to change the opportunities and practices for all kinds of people.
JG: Apart from desegregating (as opposed to truly integrating) public schools, what in your opinion has been the greatest unintended consequence of Brown? Which is to say, which group, or class, did it wind up helping, even inadvertently?
MM: Among the unintended or unexpected consequences of Brown v. Board of Education; four vie for position of "most surprising":
1) the advocacy for gender equality in public school that first took the form of seeking co-education but over time has taken the shape of policies supporting single-sex public education;
2) the push to "mainstream" students with disabilities--including students with mental disabilities so that they may attend part or all of the school day with other students;
3) the emergence of school choice, first as a device for avoiding court-ordered desegregation, then as a technique for encouraging racial desegregation, and then as a technique intended to promote competition and school improvement;
4) the ultimately successful effort to secure constitutional approval for the use of public funds in support of private religious education.
The first two seem remarkable given that part of the argument defending racially segregated schools--as made by lawyer John Davis on behalf of South Carolina in the Brown litigation--was the warning that racial desegregation could deprive state's of the "right to segregate its pupils on the ground of sex or on the ground of age or on the ground of mental capacity." These potential consequences seemed so undesirable as to be part of the argument against racial desegregation. Yet lawyers and parents pursued claims on behalf of girls and on behalf of students with disabilities soon after Brown In a twist, though, in both circumstances, arguments for pursuing equality at times through separate instruction along lines of gender or disability have also emerged and in many situations prevailed.