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On the bicentennial of the U.S. Constitution, Supreme Court Justice Thurgood Marshall said, “We will see that the true miracle was not the birth of the Constitution, but its life.” As we approach the 50th anniversary of Brown v. Board of Education, we celebrate that pivotal moment that breathed life into the Equal Protection Clause of the 14th Amendment. Before Brown, the Reconstruction-era civil rights protections had been left for dead after decades of Jim Crow laws systematically denied African- Americans the rights the Civil War amendments and legislation were meant to secure. But as we celebrate, we must also pause to reflect that for many years now we have likewise faced the dismantling of the Second Reconstruction that is the legacy of Brown. Civil rights advocates today must emulate the legal and political strategies of Brown if we are to succeed in fulfilling Brown’s promise of equal justice. THE �BROWN’ STRATEGY The litigation strategy of the NAACP Legal Defense Fund that led us from legalized Jim Crow segregation to the historic 1954 victory in Brown is one of the clearest and most enduring models of success for the use of law for social change. The LDF’s ability to move from almost total blockage in the courts under Plessy v. Ferguson to the landmark Brown decision was driven by long-term strategic planning. At the beginning of the decades-long process, the most farsighted LDF leaders understood that a legal sea change would have to take place in American society for the ultimate objective of eliminating segregation to be achieved. Segregated buses, bathrooms and drinking fountains were the norm. In many Southern states, there were no anti-lynching laws on the books. The so-called “Houston Plan” devised by Marshall’s mentor and predecessor as the NAACP’s special counsel, Charles Hamilton Houston, combined the use of successive legal openings created by LDF litigation in highly conservative courts, the innovative use of social science, and collaboration with a wide range of civil rights organizations. While the Houston Plan appears more seamless in hindsight than it actually was, there is no question that the strategic model of combining what came to be known as “impact litigation” with community-based media savvy, and well-organized social movement groups set the standard for public interest litigation and the creation of a cornucopia of public interest law firms. The “impact litigation” model produced major landmark cases that opened up broad avenues of social and political change. Brown and other legal victories against the entrenched Southern racist aristocracy contributed to the emergence of the mass-based civil rights and other movements in the 1960s. This approach moved from strength to strength as specialized progressive legal organizations based on the strategic litigation archetype emerged, and won landmark cases ranging from consumer rights to reproductive rights, to defendants’ rights and breakthroughs in civil justice law and economic rights. Legal advocates, working with countless grassroots and social justice activists, secured for progressive law a firm place in the American courtroom and, many thought, in black letter constitutional law. THE BENEFIT OF SOCIAL SCIENCE In a well-known footnote in Brown, the Supreme Court declared that it was persuaded by social science that segregated schooling has a profoundly harmful impact on African-American children. This was based on a statement which was endorsed by 32 social scientists led by Dr. Kenneth Clark, who had pioneered psychological tests using black and white dolls to identify segregation’s injury to African-American children. This kind of evidence ultimately had a substantial impact on the nation’s understanding of the psychological costs of racism. In addition to Clark’s famed doll studies, the Brown litigation team compiled research covering the environmental (as opposed to genetic) basis of learning; polling data of social scientists indicating 90 percent viewed segregation as harmful; the psychological, social and economic impact of segregation; and — for good measure during the height of the Cold War — Gunnar Myrdal’s research on the chasm between the concept of democracy and blacks’ unequal status in America. We again need to broaden our conception of social science research and to cross-fertilize analytical frameworks rooted in disciplines and communities of legal practitioners, scholars and activists that have not traditionally worked together. RETRENCHMENT AND DISMANTLING OF CIVIL RIGHTS Today we face a retreat from America’s commitment to civil rights for all, particularly for those suffering most from historic forms of discrimination. Piece by piece, a divided Supreme Court has dismantled civil rights. The court has been doing so under the 14th and 15th Amendments by requiring plaintiffs to meet an exceptionally high burden in proving discriminatory intent, invalidating affirmative action programs, limiting federal court powers to monitor school desegregation, rejecting proof of racially discriminatory impact in death-penalty sentencing, countermanding state voter redistricting designed to ensure that votes of minorities count, and handing down setbacks in many other arenas. Certainly there are key cases in which the court has upheld civil rights, but these are the exceptions. In Brown, the Supreme Court found persuasive the social science demonstrating that segregated schooling has a profoundly harmful impact on black children. Fifty years later, today’s social science reaffirms a similar lesson: Racial and socioeconomic integration bring about enhanced educational and economic mobility for poor minority students. A quarter-century of hard-fought progress toward the integration of America’s public schools has been steadily unraveling since the mid-1980s. A study by the Civil Rights Project at Harvard University found that in nearly all of the largest districts in the U.S., black and Latino students were more racially segregated from whites in 2000 than in 1986. Today, 70 percent of African-American students attend schools in which racial minorities are a majority, and fully a third are in schools 90 to 100 percent minority. This unmistakable resegregation over the last 15 years is a consequence of the Supreme Court relaxing standards of judicial oversight, and federal courts dissolving desegregation plans and making voluntary desegregation more onerous. America’s failure to provide equal educational opportunities in primary and secondary school translates into dashed dreams in higher education and beyond. Today nearly 200,000 more black men are incarcerated in prison than are enrolled in college. Affirmative action is a very personal issue for me. When I graduated from Northwestern University in 1972, I was one of 5,000 applicants vying for 270 spots in the first-year class at UC Berkeley’s Boalt Hall School of Law. I know that while I was strongly qualified, being African-American was a positive factor in the admissions process. Without affirmative action, my potential contribution to the Boalt community and the legal profession may have been overlooked. Boalt Hall is a telling example of why affirmative action is essential to the continued life of Brown. When the Civil Rights Act of 1964 became law a decade after Brown, Boalt, like many other institutions of higher learning, enrolled a first-year class with zero African-Americans. It was only because of the adoption of affirmative action amidst the unrest of the late 1960s that my class had 34 African-Americans. Now, because of Proposition 209′s ban on affirmative action at the University of California, Boalt Hall has come full circle. After six years of “race-blind” admissions, there are three-quarters fewer African- Americans enrolled at Boalt than when I was a law student there 30 years ago. RENEWED VISION OF THE �BROWN’ STRATEGY We are again at a crossroads on race in this country. The Brown decision came at a time when our government needed to prove to the world that the ugliness of Jim Crow was being ended in America. In Brown, the Justice Department intervened for the first time in a school discrimination case, arguing, “It is in the context of the present world struggle between freedom and tyranny that the problem of race discrimination must be viewed.” Today, the world’s view of our government’s commitment to democracy and equality is again at stake. In the wake of the exposure of the brutality toward prisoners in Iraq, for the first time the U.S. State Department decided to postpone its annual report on human rights abuses in other countries. Armed with the wisdom of the Brown strategy, we must continue to forge lasting cross-boundary alliances with the academy, practicing lawyers, philanthropy, media and policy makers to remake civil rights law and practice over time into a viable tool of progressive change. This is a unique and timely opportunity to work together across lines of race, national origin, gender, sexual orientation and disability in the courts, legislatures, city halls, schools and community and religious institutions in pursuit of long-term structural change. During the Brown v. Board of Education oral argument before the U.S. Supreme Court, Thurgood Marshall argued, “Equal means getting the same thing, at the same time and in the same place.” Now, 50 years later, there exists great potential for us to work toward making that statement a reality for all. Eva Jefferson Paterson is the executive director and founder of San Francisco’s Equal Justice Society.

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