The Surprising Consequences of Brown v. Board of Ed.

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.

The adaptability of school choice as a set of policies or practices with lives of their own, assisting both movements for and against integration of different kinds of students and also advancing other goals is a pretty surprising result of Brown Some opponents of Brown went so far as to leave the public schools altogether or even seek the closure of public schools, and these efforts initially tainted arguments for school choice as a form of resistance to Brown. But when Judge Garrity in Boston and other judges and school boards pursuing school desegregation elected to incorporate forms of school choice within the public system, this practice became a technique for promoting voluntary mixing of students of different races. And then it became an attractive policy for many who believe that competition and consumer sovereignty offer incentives for improving teaching and educational results. So now school choice can include vouchers and tax credits to pay for private schooling, magnet schools within a school district, and charter schools, giving entrepreneurial groups of teachers, parents, or others public dollars to open and run a school and compete with regular public schools for students.

An element of the school choice development has its roots in the quite separate struggle started on behalf of Catholic families for public aid to Catholic schools--and now extending to other religious schools.  Michael McConnell developed constitutional arguments in this effort that drew on the ideal of equality in, Brown while emphasizing protection against viewpoint discrimination of religious and nonreligious schools rather than focusing on individuals.  Clint Bolick launched an organization pursuing vouchers for private schools on the 50th anniversary of Brown as part of a self-conscious effort to copy the long-term strategies of the NAACP Legal Defense Fund. Perhaps this is the legacy of Brown as an example of how advocates can plan a long-term strategy to change a legal framework well beyond arguments for equal protection of the laws.

JG: An even more basic question, and something I want to come back at again -- We've been talking about the unexpected implications of Brown, but let's address Brown's great and central failure. The "failure" I'm referring to might not be a failure at all -- or it might represent something that Brown, or any Supreme Court decision, wasn't meant to do, which is to change culture. Yes, we live in a legally desegregated society today, but people hoped that Brown would bring about something more dramatic -- the true mixing of races in schools, and consequently across society. But this hasn't happened. Why? How do you think this could come about? Is there anything else left to legislate (or to be ruled upon by the courts) or is this purely a matter of culture?

MM: It is not insignificant that Brown v. Board ended state-mandated segregation of schools, but there remains disappointment. It did not produce much integration. By that, I mean more than mixing people of different races, side by side--more like the ongoing creation of a shared community of mutual respect, engagement, and investment in the successes and lives of the diverse group of people.

To understand why integration didn't emerge brings us into close connection with the surge of social science research after Brown. Social scientists played a role in the litigation itself as they offered evidence of the damage to black children who experienced legally imposed racial segregation. Then, social scientists turned to study the sources and solvents of racial prejudice. Gordon Allport's book, "The Nature of Prejudice," appeared just before the Supreme Court's 1954 decision. It argued that casual contact is not likely to overcome prejudices. But, the book went on, sustained contact among people of equal status who participate in cooperative activities--such as sports teams--reduces prejudices and builds a sense of appreciation and respect. A lot of people drew on the "contact" idea without the elements of cooperative activity among people of equal status, yet Allport himself predicted that school desegregation alone would fail to reduce racial prejudice.

Recent waves of social science research documents the benefits of mixing people of different backgrounds in school and work settings. These benefits include higher academic achievement, reduced stereotypes, enhanced abilities to take the perspective of others and increased capacity to devise creative solutions to problems.

The most successfully integrated part of the nation is probably the United States military--desegregated by presidential fiat. There, studies show both African-Americans and whites report that race relations far better there than in the single race communities. What seems important there are the clear commitments to uncompromising performance standards, assignment and rotation of officers based in part on their ability to create an environment without racial bias. The record of schools run by the US Department of Defense for children of military personnel is instructive. These schools reduce the racial gap in achievement and motivate intensive parental involvement which is itself associated with higher student achievement. Why do these schools work well for students of different races? Does it matter that the military is the only sector where whites are routinely supervised by African Americans? Or is the presence of common values among the parents the key, or is it the power of the military to order parents to read to their kids and come to parent-teacher conferences? None of these qualities is likely to be replicated any time soon in civilian quarters.

This is a long way of saying that law can change practices and attitudes, but only if it's part of a long term and intensive effort that addresses hearts, minds, and comprehensive ways of life.

Right now, charter schools could overcome the residential segregation characteristic that is so many parts of the country by attracting students from different neighborhoods. Whether these schools could also help shape communities where students and parents of all races care about one another's success and well-being--integrated communities--remains to be seen but there is as great a risk that charter schools permit self-separation by race, ethnicity etc. into theme-based schools.

Law is more like a fence than a spur to inner change. Law is typically better at saying "no" than at saying "yes." It can create parameters within which parents, teachers and and others work together on common goals and experiences.