Book Reviews

Brown Out?

The Supreme Court's landmark decision is coming under fire. Why it's worth defending.

By Mary Frances Berry

Tagged Civil RightsJudiciary

The Lost Promise of Civil Rights By Risa Goluboff • Harvard University Press • 2007 • 384
pages • $35

There was a time, not that long ago, when racial discrimination was so widespread that even its opponents had a hard time imagining its defeat. But racial discrimination–in our laws, if not in our hearts and minds–has been eradicated. How did it happen, and were the approaches taken the right ones? The view in the popular mind–and the predominant argument in academia–has been that the litigation campaign culminating in the 1954 Brown v. Board of Education decision, ending de jure segregation of our nation’s schools, was a moral high-watermark of the last century that sparked the civil rights movement. Yet, precisely because the challenge of bringing racial justice to our nation was so daunting, civil rights advocates in the years leading up to Brown devised a variety of other approaches to dismantling segregation. These strategies have been overlooked for years, but in her new and intellectually stimulating book The Lost Promise of Civil Rights, University of Virginia Law Professor Risa Goluboff mines the legal pre-history of Brown and unearths a long-forgotten approach–specifically, civil rights claims based on class and economic opportunity. Asking us to put aside the reverence we have for the landmark decision, Goluboff argues something that, on the surface, sounds heretical: that the full-frontal attack on Jim Crow that defined the civil rights era may not have been the best strategy for winning equality and justice.

Goluboff’s analysis is well-timed. The renewed debate over remedies for
segregation, marked by the Supreme Court’s June 28, 2007, decision
involving school districts in Seattle and Louisville that prohibited
voluntary school integration plans, implicitly calls the legacy of Brown into doubt. Thus the questions raised by Goluboff are uncomfortable, but pressing: Was the NAACP’s victory in Brown a pyrrhic one? And if so, what does that mean for the last half-century of civil rights achievements?

Since 1954, generations of judges, lawyers, and ordinary people have
viewed civil rights as a project of breaking down formal legal barriers
to integration, especially in the context of public education.
Goluboff, however, describes a period in which lawyers were not so sure
of that course, and in which they considered many conceptual approaches
to achieve equal opportunity for African Americans and to overcome the
crude and blatant denials of equality. For example, in the 1930s and
1940s, black agricultural workers in the American South and industrial
workers across the nation signed petitions calling for an assault on
economic and legal inequalities. Lawyers in the Civil Rights Section of
the Department of Justice (established in 1941) and at the NAACP made
employment cases a priority, arguing that the due process clause of the
Fourteenth Amendment protected a fundamental right to work as central
to American life. They filed suits against federal and state government
entities, labor unions, and private employers to end wage
discrimination and to gain and retain jobs for black workers. They also
worked to blur the distinction between private and state action in
order to win suits against private employers.

But, Goluboff concludes, this emphasis on economic inequality was
abandoned by NAACP lawyers in 1950, when they ended litigation of
worker’s cases and decided to focus their efforts on segregation in
public education and public facilities. After World War II, industry
had begun downsizing and all workers lost jobs. Arguing for racial
inclusion when workers were being laid off in droves was unproductive,
and industrial workers were no longer as important in the NAACP
membership. Further, with the founding of its Leadership Conference on
Civil Rights in 1950 to lobby for legislation beneficial to labor
organizing and nondiscrimination, the NAACP became a part of the
liberal pro-labor, anti-communist coalition. Under these conditions,
civil rights lawyers naturally turned to middle-class issues, such as
segregation in graduate schools, dining cars, and public education. As
a result, in Goluboff’s view, “this new civil rights would prove
fundamentally unable to redress the economic hierarchies of Jim Crow

In her telling, NAACP lawyers did not focus on the rights of
blue-collar workers again until the passage of the Civil Rights Act of
1964, which, in its Title VII, prohibited discrimination in the
workplace and by labor unions. And although she is careful in her
choice of words, Goluboff clearly believes that while Thurgood Marshall
and the NAACP lawyers won the Brown case, their new legal strategy did a disservice to the majority of African Americans who suffered from economic inequality. Brown, in her view, only partially addressed the need to uproot discrimination. Doctrinally, the legal strategy that yielded Brown abandoned the more powerful argument for equality found in the Due Process Clause and replaced it with the Equal Protection clause, thus blunting efforts to downplay the distinction between discriminatory private action and state action, which needed remedying.

In this line of argument, the choice of pursuing public education
litigation was not so much the problem as was its emphasis. In Brown, the school children’s “economic circumstances were beside the point.” The result was to separate “the caste system from its economic roots.” Goluboff then concludes that the focus on psychological “stigma and state action in Brown subordinated the problems most acute for working African Americans to those most acute for the privileged of the race.”

Of course, we can never know whether a consistent focus on the problem
of employment discrimination would have been more fruitful to the cause
of racial equality. Employment-centered civil rights litigation met
with some success, especially after the Civil Rights Act of 1964 was
enacted, but like school-desegregation cases it has foundered in the
courts in recent years. Today, workplace equality is uneven; visible
minorities and women workers have fewer problems gaining employment
than they do obtaining promotions or equal pay. This was obvious in the
Supreme Court’s cramped decision this past term, Ledbetter v. Goodyear Tire and Rubber Co. The Court ignored the fact that many victims of wage inequities may not find out for years that they have been mistreated in order to sue under Title VIII of the Civil Rights Act of 1964, which covers race and sex discrimination.

Goluboff’s perspective is not entirely new, but rather reinforces the
revisionist scholarship which first arose around the fiftieth
anniversary of Brown. In Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes of Racial Reform (2004), New York University Law Professor Derrick Bell, Jr. implies that the Brown attack on school segregation was misguided, and that civil rights energies should have been focused on fulfilling the mandate of Plessy v. Ferguson by making separate schools equal. And University of Virginia Law Professor Michael Klarman argues in From Jim Crow to Civil Rights that Brown was errant because it created a backlash from white southerners, who were beginning to show signs of more enlightened racial attitudes post-war.

These revisionists’ claims, however, are suspect. Led by Marshall and
his predecessor, Charles Hamilton Houston, the NAACP lawyers tried
mightily to win the equality guarantee of Plessy but met resistance. As Houston’s prize-winning biographer, Genna Rae McNeil, and Harvard’s Kenneth Mack have noted, even as Houston was formulating the NAACP’s civil rights strategy, he was serving on the school board that administered segregated schools in Washington. In fact, one of his last civil rights cases was an attempt to gain more resources for its black schools–an argument he was still pushing as the Brown litigation developed. The evidence of a backlash specifically instigated by Brown is equally weak. After a few years of post–World War II optimism on racial conciliation, by the end of the decade Southern whites were backsliding into demagoguery and violence. The gruesome, but not rare, lynching in June 1949 of a black North Carolina prisoner and the acquittal of 28 defendants who had admitted lynching a black man in South Carolina led the Justice Department to press Congress, again unsuccessfully, to pass an anti-lynching law. In addition, it is not the case that the NAACP shifted fully away from laborers’ rights. Yale’s Sophia Lee and other scholars have shown that the NAACP consistently pursued workers’ rights issues in the National Labor Relations Board and the courts, even as the work began that led to Brown.

Goluboff’s analysis, then, like that of other revisionists–and of the
majority in the recent Louisville and Seattle desegregation cases–too
narrowly focuses on Brown as desegregation doctrine instead of as a
decision based around equal access to educational quality. In Brown, the Warren Court’s unanimous decision said, “Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro [sic] children and to deprive them of
some of the benefits they would receive in a racially integrated school system.” Desegregation, while a moral imperative, was not an end in itself; the NAACP lawyers and the Warren Court wanted to achieve a quality education for black children. They believed desegregation would achieve that result. Moreover, from personal experience, I know that the lawyers and others involved in Brown, including Thurgood Marshall, honestly saw that litigation as a necessary step–not the final destination–in the struggle to gain full equality for African Americans.

Nevertheless, it is not surprising that such revisionism has been
finding an audience even before the Supreme Court’s recent school
desegregation decision. Over a half century since Brown, the majority of school children still attend mostly segregated schools, euphemistically called “racially isolated.” The Bush Administration’s reporting under the No Child Left Behind law shows that two thirds of black children and three fourths of Latino children attend racially isolated schools, as do most white students, just as sociologist Gary Orfield has been reporting since the 1980s. Add in the fact that the Roberts-led Supreme Court has clearly announced that it is out of the desegregation business, and it may seem easy to say that seeking an end to segregation was not an optimal choice for the NAACP lawyers.

As a legal matter, however, if there had been no redefinition of equal protection in Brown, the Montgomery bus boycott might have ended in failure, and the whole civil rights movement–and the laws that flowed from it–would have had no constitutional basis. It was, in no uncertain terms, the inspirational fount for all the followed. Brown is not just a school desegregation case; it is emblematic of our national will to renounce segregation and to live up to the promises of American democracy.

Since the decision in the Louisville and Seattle cases, education and
civil rights advocates, in their despair, have been searching for such
inspiration. And, as such, they have placed their hopes in Justice
Anthony Kennedy’s concurring opinion, which affirmed that a school
district “may consider it a compelling interest to achieve a diverse
student population. Race may be one component of that diversity, but
other demographic factors, plus special talents and needs, should also
be considered.” He then invited school districts to develop plans that
might achieve their objectives without “resorting to widespread
governmental allocation of benefits and burdens on the basis of racial
classifications.” Kennedy’s suggestion seems to indicate that he would
allow techniques such as school site selection, minor boundary
adjustments, and active, targeted recruitment for schools of choice. He
may even permit schools to consider race as one of multiple factors in
a student assignment plan, as long as each applicant was considered
individually. Though more burdensome and less effective, according to
Orfield and other scholars, these techniques can still foster some
integration in small districts with minimal pockets of segregation
where political support exists.

What is more likely is that this decision will give new life to the
calls for socio-economic integration. Long touted by the Century
Foundation’s Richard Kahlenberg, this technique is designed to bring
the benefits of middle-class schools to poor children who are
disproportionately black and Latino. Since Kahlenberg first proposed
the idea in his 1996 book The Remedy: Class, Race, and Affirmative Action, private selective institutions of higher education have taken the long-overdue step of admitting and financing the cost of education for low-income students, a move which has increased economic diversity. These institutions also take race into account in admissions, as permitted in the University of Michigan Grutter v. Bollinger case and left untouched by the Roberts Court. Wealth-based plans seem legally permissible because there is no prohibition against decisions based on poverty or wealth in the Constitution. Nor is there any legal penalty for not ignoring class. (One wonders, though, were wealth-based plans in public K-12 and higher education widely implemented and did lead to an increase in racial integration, whether they would be attacked as an impermissible means of achieving racial balance and thus also declared unconstitutional by the Roberts Court.)

That said, class-based approaches are necessarily more diffuse. Just as
there are more white poor than black and Latino poor, there are more
white students to draw from than black and Latino students. Thus,
because the number of slots is limited, it is easy to admit an incoming
class that is overwhelmingly white unless admissions officers notice
how many under-represented, qualified, visible minorities were
admitted. Unless African Americans and Latinos are targeted as a goal,
few will be admitted–which just puts us back where we started. Until
comprehensive studies are available, we will not know how much racial
diversity results from class-based approaches in higher education or
even in K to 12, except in small, compact districts. This leaves those
who believe in the importance of diversity and equal education
opportunity without reliable remedies.

Thus, we now face–as Goluboff’s study reminds us–the same fundamental
problem the NAACP lawyers faced over 50 years ago: It is not enough to
seek to open opportunities for everyone; we must resolve, as a matter
of policy and politics, who or what is responsible for the perpetuation
of discrimination and its effects, and what remedies may be pursued.
Contemporary political actors necessarily worry about crafting the
least-polarizing policy to meet goals of inclusion and increasing human
capital, rather than risk confrontation as Marshall and the NAACP
bravely did. And, as in the past, this is not just a matter of public
morals, but of necessity. Leaders in industry, the military, and higher
education all know, a critical mass of students of color is the best
way to improve the education of everyone. The legitimacy of
governmental entities and the value of investing taxpayer funds in
publicly supported colleges, universities, and other institutions rely
on it. Our policies must recognize, in the words of Justice Sandra Day
O’Connor writing for the majority in the University of Michigan Law
School decision, that “just as growing up in a particular region or
having particular professional experiences is likely to affect an
individual’s views, so too is one’s own, unique experience of being a
racial minority in a society, like our own, in which race unfortunately
still matters.”

We can lament the rightward shift of the Supreme Court and tinker
around the edges of how to achieve more racial integration. However,
Goluboff’s overarching conclusion is correct. If the goal was to gain
greater inclusion and prosperity for blacks as a group and to remedy
the harm done by slavery and Jim Crow, then embarking on the
equal-protection strategy that downplayed material harm might not have
been the best way to go. Since Brown and the civil rights movement, large numbers of individuals have benefited from enhanced opportunities, but masses of African Americans have been left behind. And we have discovered that the color of these elevated individuals does not automatically lead them to support making available for others of their complexion the legal protections that helped them to succeed–a case in point is Justice Clarence Thomas’ opposition to the affirmative action that cleared his own path to the Court. One wonders if socioeconomic integration would disappoint similarly, with the elevated poor disinclined to support socioeconomic integration to lift up others. As NAACP lawyers did in the period before Brown, it is time to rethink the entire legal and social enterprise.

While a new approach is developed, there are still ways to advance
individual inclusion and diversity. Selective private colleges and
universities can use flexibility to admit blacks, Latinos, and other
under-represented groups if they have the will to do so. Congress could
also enact a policy in federal higher-education funding to connect
taxpayer funds to the progress of public institutions in serving all of
the racial groups in their state, by whatever means they choose. They
may, for example, form partnerships with K to 12 schools, or operate
preparatory schools tied to a specific campus. Concentrated efforts
directed toward improving institutions of higher education that serve
predominantly visible minorities–including historically black colleges
and universities, which have been severely underfunded for years–might
also prove effective in increasing their capacity for producing
high-quality graduates. States, the federal government, and the private
sector should make it possible for these institutions to pay more
generous salaries and provide perquisites to attract scholars from
selective institutions. Ultimately, none of these suggestions alone
will ensure the end of invidious discrimination, but they might make
some impact and maintain social peace while employers and the military
continue the search for ways to promote workplace diversity, and while
an entirely new approach to the equal opportunity problem is developed.

Whatever new strategies are developed, make no mistake. We can not
abandon Brown. It is iconic, representing our image as the world’s leading exemplar of justice in a multiracial democracy. The European Union, South Africa, and other countries have enshrined the principles of Brown in their fundamental law. This symbolism is the signal philosophical contribution made by Thurgood Marshall and the other NAACP lawyers and the Supreme Court in Brown: They forged a legal basis for racial justice in our nation. Despite the Roberts Court’s decision, we are still building on that foundation.

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Mary Frances Berry , the Geraldine R. Segal Professor of American Social Thought at the University of Pennsylvania, was chairwoman of the U.S. Commission on Civil Rights from 1993 to 2004.

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