ESSAIS

On Brown v. Board of Education

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Proust once said there are few things as irritating “as an initiate who prides himself the secrets which he possesses and is burning to divulge.” So when I tell you, poor reader, that I would like to discuss the landmark 1954 Supreme Court case Brown v. Board of Education, and that my knowledge of the case was only acquired recently via a new job which requires me to cover the decisions of the Supreme Court, I am fully aware that I am treading in waters surveyed far more expansively by others, waters plumbed with intellectual machinery far more advanced than what I possess, and hence, have the prospect of a reader’s irritation and my own burden of proof to overcome. But I so far have not read what Proust thinks about the sound of throat-clearing, which may be more grating to the ears than the initiate’s monograph on things he has just discovered. So let’s just hang it all and begin.

The case Brown v. Board of Education is simple on its surface, its decision known to most American schoolchildren. Brown concluded that it was unconstitutional for a student to be denied admittance to a school based on the color of his or her skin, and thus abolished the “separate but equal” precedent used to further the cause of segregation between races. Brown affirmed the Constitution’s promise that all will receive equal protection under the law.

But as I have discovered in recent weeks, there is not a single Supreme Court decision that can be qualified as simple, and Brown is no exception. Chief Justice Warren, in expressing the unanimous opinion of the court, arrived at a logical outcome that belies the radical logic used to make it. For if a judge is merely an interpreter of the law, if he holds the Constitution as the sacred paragon of law, then he must find the rationale for his decisions only in law. This Warren found hard to do.

For a moment let us consider, as Warren did in his written opinion, the tangible factors of the case. Let us imagine one school with only black students and one school with only white students. Let us say each school has the same amount of students, the same amount of teachers, and the same amount of books. Let us go further, into the future, and assume that each school has wireless internet, swimming pools, and jungle gyms, each school feeds each student a pint of milk with his beef stroganoff and chicken nuggets, each school each year buys shiny new uniforms for each player on the soccer team. The two races are separate, but can you argue that they are not equal? Do they not each receive all the benefits that the education system has to offer?

I am not suggesting that a black school in the 1950s was up to par with a white school, but this was the argument presented to the court by defenders of the “separate but equal” precedent, and these are the tangible factors with which the court wrestled. If Warren had simply ruled that each school receive an identical amount of tax dollars, he arguably would have been in keeping with the guarantees afforded by the Constitution. For after all, while the Constitution secures every person freedom and equality, it does not say that we all have to play with each other during recess.

Warren, in his ruling, introduced what he called intangible factors. How does a precedent like “separate but equal” affect the mind of a black child? Does it stunt his intellectual and emotional growth? Does it forever whisper into his ear that he is inferior, that he is not quite human? Does it, like shackles placed on a newborn’s legs, produce a soul that limps? What, in essence, is the relationship between the specter of law and the individual who trembles before it?

Warren, and the court, found that the precedent was injurious. Thus he found that a black child’s education would never be equal to that of a white child, thus the black child did not receive equal protection under the law, and thus the precedent was a violation of the Fourteenth Amendment.

A mere fifty years later, we find Warren’s conclusions obvious, “self-evident” as the framers of the Constitution might have put it. But a judge who steps outside the purview of the law, a judge who interprets not precedent but the human condition, is suspect. The use of intangible factors breaks the bounds by which the judges are confined, bounds put in place to rein in discretionary power. If we find Warren’s judgment just, it is only out of a faith in what he and we are able to imagine: the plight of a black child under a law that causes a powerful internal harm. It is a faith that goes beyond a faith in the Constitution, and one that cannot be proven with tangible factors, with facts, with visible scars of the whip.

These are old arguments, old concerns. But if the judges themselves debate about them ad infinitum, perhaps it is worthwhile for the layman to reexamine them as well. Especially in light of recent events. I’m not entirely sure if it’s a new phenomenon, but politicians on the news have recently taken to defining the branches of government like schoolteachers, as if someone in power had forgotten or chosen to ignore the limits of his power. Especially in light of one of the latest Supreme Court decisions, Parents Involved in Community Schools v. Seattle School District No.1.

Briefly: At issue was whether a school district could use classifications of race in assigning students to schools. The school districts in question sometimes denied students their choice of schools and sent them to another school, all in the name of promoting a racially diverse student population for each school in the district. The court found, voting 5 – 4, that the practice violated the Fourteenth Amendment.

In an opinion for the majority, Chief Justice Roberts cited the precedent of Brown. Roberts argued that Brown had underlined the fact that the Constitution was blind to the color of a person’s skin. He said that before Brown, a child was told where he could and could not go to school on the basis of his race. He argued that the school districts’ placement programs did the same thing—even if their intention was to promote the integration of races rather than the segregation of them.

Justice Clarence Thomas wrote a concurring opinion. He said the purported benefits of the placement programs were based on a social theory, one that was speculative and vulnerable to the shifting currents of time. The school district’s social theory of race was as objectively valid a theory as those of white slaveholders who held that blacks were inherently inferior. He said the court could not put the fate of minorities in the hands of a select few merely because it agreed with their theory at the time.

Justice Breyer wrote the dissent. He said the placement programs represented local efforts to fulfill the promise of Brown: Racially integrated schools. He wrote an opinion twice as long as Roberts's that strove to find in precedent and law justifications for keeping the programs in place. He argued that without these programs, schools would eventually resegregate, as evidenced by the way cities and townships naturally divide along racial and/or socioeconomic lines.

The final decision put the law above other considerations, placing it on a higher pedestal than on which it previously rested. I can’t say whether this is right or wrong, good or bad. These opinions (and there were others) all resonate with me on some level. As I have summarized decision after decision in the past few weeks, it has become clear to me that every justice on the bench is supremely impressive. Not only in the sublime quality of their thoughts and reasoning, but in the quality of their writing as well. I can think of few modern writers who are as brutally eloquent as Antonin Scalia, as passionate about their work as Breyer, or as sage as John Paul Stevens. Even when the scales are overwhelmingly tipped to one side on a vote of 8 – 1, the lone dissenter almost always offers a glimmer of insight into how the majority may be wrong. Perhaps this is my naïveté speaking, but I think that the justices are more beholden to the law (and their interpretation of it) than any temporal political agenda. To challenge the decision flippantly, as an editorial in the New York Times did, seems to me foolish.

But as I read parts of Breyer’s opinion, which at times felt more like an elegy than a legal argument, it seemed to me that the future of the country was less on his mind than the loss of a type of jurisprudence embodied in Warren’s opinion in Brown v. Board of Education. He described it as “the court’s finest hour.” How so? I wondered. I couldn’t tell whether he was referring to the historical significance of the decision or the way in which the court came to its conclusion.

It is, in my mind, related to Warren’s incorporation of intangible factors. I read Warren’s opinion afterwards, and I felt I had found for the first time a reason to think America is a great country. I can view with cynicism the motivations that led to the Declaration of Independence, the Constitution, and the Emancipation Proclamation. But not so with Warren’s argument. Furthermore, the sentiments of these other documents, while honorable, are too lofty, and like balloons detached from the earth, they threaten to become mere specks in the sky. On the other hand, Warren’s opinion is grounded on earth. Without aid from God or the law, he asks us the simplest and most difficult questions. How are we to conduct ourselves? How are we to act? As inhabitants of this country, how are we to live?

Nabokov wrote that a great work of art is a combination of beauty and pity. Brown is not a work of art, and so to that formulation I would add that Warren incorporated what the artist does not have: Power. It is rare to find a space where the cold codifications of the law can embrace the warmth of humanity. It is rare to find within a government document so unassailable a reason for that government to exist. A government that tries to understand the effect of its laws on a human scale, the one that takes that trembling individual into account, is the one that is most legitimate. I was shocked to find that such a government existed. Brown is that rare, almost mythical beast, the one that wields its power with empathy.

Though the court has become a bit colder, though it has turned away from empathy as a guiding light, perhaps it is better this way, as the judges in the majority argued so well. However, I feel as if the judges have pulled their black robes over their faces and receded into that unknowable darkness called justice. All that remains is the law itself. Their decision reminds me of something another expert in intangible factors once wrote, “Where was the Judge whom he had never seen? Where was the high Court, to which he had never penetrated? He raised his hands and spread out all his fingers.”

—RS

ESSAIS