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When we think of Brown v. Board of Education 50 years after the case was decided, we should not think of failure, exactly. We should think more of wasted opportunity. We should lament a victory that turned out to be more symbolic than substantive. We might even consider the limits of law. For those of us who went to law school to help the oppressed, maybe the golden anniversary of Brown is a chance to reflect on whether we chose the wrong profession. That’s a lot of gloom about one of the most storied Supreme Court decisions in American history, I know. In the celebratory version of the story, a determined Chief Justice Earl Warren, morally opposed to segregation himself, charmed and cajoled and threatened his fellow justices until they delivered a unanimous opinion abolishing the doctrine of “separate but equal” in public education. In reality, Justice Stanley Reed just pretended to agree. He was preparing a dissenting opinion until Warren persuaded him to go along with the others for the sake of the nation. As if it would make a difference to Southern hardliners that nine elite white men in Washington, D.C., agreed that black children and white children should go to school together. It did not. Many Southerners responded to Brown with a campaign of “massive resistance.” Today that strategy seems to have been remarkably effective — and not just in the South. The Harvard University Civil Rights Project recently analyzed desegregation using data from virtually every school district in the country. Among its findings: African-American and Latino students “tend to be segregated in high poverty schools that are deeply unequal in measurable ways.” Whites are actually the most segregated group, attending public schools that are, on average, 80 percent white. And Asian-Americans are the only racial group to attend meaningfully integrated schools. But those intent on celebrating Brown have not let these gloomy facts get in the way. In their triumphal version of the story, the greatest icon is Thurgood Marshall. And much of the acclaim for him is well-deserved. As the NAACP Legal Defense Fund’s lead attorney in challenging segregated schools, Marshall pretty much invented public interest litigation. Following a broad strategy devised by Howard Law School Dean Charles Hamilton Houston, Marshall filed a series of suits that led inexorably toward the eradication of the Jim Crow laws. He began by attacking the Plessy v. Ferguson doctrine of “separate but equal” in graduate education, with a special focus on law schools. The idea was that judges would be sympathetic to the argument that no matter how much money “colored” law schools were given, they could never be equal to white schools. As a legal strategy, the argument worked brilliantly. In Sweatt v. Painter (1950), the Supreme Court compared the white University of Texas Law School with the black Texas Southern University School of Law. The white school, the Court held, was so obviously superior that “it is difficult to believe that one who had a free choice between these law schools would consider the question close.” It was not such a great leap, then, for the Brown Court to hold that “segregation of white and colored children in public schools has a detrimental effect upon the colored children.” There was something, the Court opined, about forcing all the black children to attend school with each other that made them feel bad about themselves. Even if the black schools had twice as much money, in the view of the nine justices, the schools would still be substandard. Employing this argument about the inherent inferiority of all-black institutions was Thurgood Marshall’s most effective tactic. For African-American schoolchildren, it may also have been his biggest mistake. Some scholars, most prominently law professor Derrick Bell, have argued that black children would be better off today if the Legal Defense Fund had focused instead on enforcing the “equal” part of the “separate but equal” doctrine. In this view, Marshall was naive to have believed that white parents would tolerate desegregation. Harvard Law professor Charles Ogletree Jr., in his new book All Deliberate Speed, doesn’t go that far. He reserves his highest praise, however, for the all-black charter schools that educate some fortunate Boston schoolchildren after desegregation in that city failed. So, 50 years after Brown, many minority children still attend segregated schools, and the quality of their education is abysmal. What went wrong? One doesn’t have to be a conspiracy theorist to think that ensuring little Miss Brown’s equal education was not the Supreme Court’s highest priority. The Cold War, more than school desegregation, defined American life in the 1950s. The scholar Mary Dudziak has persuasively made the case that concern for international relations was a crucial element in the outcome of Brown. When the United States criticized communist nations for human rights abuses back then, it was criticized in turn for its own version of apartheid. During the Brown litigation, the Justice Department filed an amicus brief urging the Court to overturn Plessy “to prove to the people of the world . . . that a free democracy is the most civilized and most secure form of government yet devised by man.” When the decision was announced, newspapers boasted of the “blow to communism.” The Voice of America immediately broadcast the news to Eastern Europe and China. So at least one government entity responded quickly to the Court’s decision. The same cannot be said of many other officials, federal and local. The cynical view that the Court was more interested in sending a message than in integration gains support when one considers the Court’s remedy. Actually, “nonremedy” is more descriptive. The Brown Court refused to order immediate desegregation. Instead, it set another hearing in which it asked the states that legally required segregation whether desegregation would be easy or hard. Guess what they answered? The apartheid states explained that desegregation would be very, very complicated. A sympathetic Court, in its 1955 Brown II decision, ordered desegregation to proceed under the oxymoronic formula of “deliberate speed.” Accordingly, for several years after Brown, “colored” and “white” signs on schoolhouse doors were perfectly legal. Well, not “perfectly” legal: After Brown I, they were unconstitutional, but after Brown II, they still remained legal for an unspecified period of time. Unconstitutional, but legal. It’s hard to think of an area outside race relations in which such a statement would make any sense. Considering the pathetic education that African-American and Latino children from low-income families receive today, it’s difficult to think of a decision with more tragic consequences. If on May 17, 2004, we have a national day of celebration for the glory of Brown, it seems only fair that on May 31, 2005, 50 years after Brown II, we have a national day of mourning. Paul Butler is a professor at George Washington University Law School.

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