Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Brown v. Board of Education is as important to America as any war we have won, any machine we have invented, any city we have built, or any cultural masterpiece we have created. Its contribution first and foremost was one of basic justice. But beyond that, we could not hope to contend with the challenges of a global order, had not Brown begun to match American reality to rhetoric so many years before. The half-century since Brown falls roughly into two 25-year periods, each with landmark litigation of its own. The first primarily involved school desegregation cases, principally at the elementary and secondary levels. The second focused on the controversy over affirmative action, most notably in higher education. The heroes of the first period were those black schoolchildren who endured taunts and threats on their way into Little Rock, Ark.’s Central High School. “I tried to see a friendly face,” recalled Elizabeth Eckford, one of the nine. “I looked into the face of an old woman, and it seemed friendly, but when I looked at her again, she spat on me.” President Dwight Eisenhower federalized the Arkansas National Guard in 1957, and the Supreme Court in Cooper v. Aaron (1958) came at last to the students’ aid. But initially federal power seemed remote, and state governors mined the tensions for their immediate political aims. In the years after Brown, the law was strangely ambivalent. It was unclear whether Brown‘s mandate was to actively integrate the schools or simply to stop segregating them. School boards exploited this ambivalence with stratagems such as “freedom of choice” plans, which kept actual integration to a minimum. Eventually, in Green v. County School Board of New Kent County, Va. (1968) and Swann v. Charlotte-Mecklenburg Board of Education (1971), the Supreme Court came to insist upon results, as measured by the actual numbers of whites and blacks in school together. These numerical benchmarks were understandable in light of the prolonged intransigence, but they also opened the way for race-based means, sometimes even in nonremedial settings. The counter to Swann came in Milliken v. Bradley (1974). Swann had seemed to exalt the equitable discretion of district courts in fashioning school desegregation plans. But Milliken emphasized that judges were not free to disregard jurisdictional lines in devising metropolitan desegregation plans, at least in the absence of some inter-district constitutional violation. After Milliken, the elementary and secondary phase of the school desegregation controversy began to ebb. Some resegregation took place, and some school districts slowly achieved “unitary” (officially desegregated) status. The street tensions that marked the first breaches of de jure segregation in the South and the dismantling of neighborhood schools in cities such as Boston were less prevalent as the debate shifted over to affirmative action. Still, the controversy in this second phase was, in some ways, just as intense. It involved two rather different visions of America. One held that America still had miles to go before it realized true equal opportunity for minorities, especially African-Americans, who had borne the brunt of past discrimination. The other held that America must never repeat the ancient error of judging human beings by racial criteria. The Supreme Court viewed the issues in this second phase to be less morally clear-cut than those of the first years after Brown. So it steered something of a middle course between the two visions, condemning race-based means — see Adarand Constructors v. Pe�a (1995) — even as it refused to invalidate all uses of them — see Grutter v. Bollinger (2003). The racial problems of America at mid-century had involved the relationship of whites and blacks. The great challenge for the Court today is to adapt Brown to the promising advent of American multiculturalism. The welcome diversity of America poses special temptations toward racial categorization. Yet the great purpose of law is not to accentuate racial distinctions but to reaffirm the indivisibility of human dignity. This is Brown‘s ultimate promise: that we are each human beings in the sight of God and citizens in the eyes of the law. The strength of America is a function of power and example. Absent either, the eagle flies on but one wing. In a world riven by racial, ethnic, and religious hatred, this country must surely show the way. But how much can law do? The hope of Brown was that stateways could change folkways, and in many respects they did. Changes of heart and mind were possible because law removed barriers that had set Americans apart. But there is a large private sphere that law would not presume to touch. It is in these inner circles of our lives, in our homes, places of worship, and friendships, that the real struggle for inclusion and openness will be won or lost. No one can predict when the promise of Brown will fully come to pass. In race relations, we tend to see problems in the short run, progress only over the long haul. Shortly before Brown, an African-American by the name of G.W. McLaurin matriculated at the University of Oklahoma to pursue a doctorate in education. The section of the classroom where he sat was surrounded by a rail, and he was assigned to a separate table in the cafeteria. It is worth remembering indignities such as these — not to congratulate ourselves on so belatedly removing them, but to recall that the attitudes the Supreme Court confronted in Brown were deeply entrenched, and that judicial courage in the face of injustice should be honored not just on the occasion of a 50th anniversary but through the ages. Judge J. Harvie Wilkinson III sits on the U.S. Court of Appeals for the 4th Circuit in Richmond, Va. He is the author of From Brown to Bakke: The Supreme Court and School Integration (1979).

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.