AMERICAN JOURNAL OF LAW AND EQUALITY |

ISSUE 1 | 2021

AMERICAN JOURNAL
of LAW and EQUALITY

BROWN AS SENIOR CITIZEN

Randall Kennedy*

On May 17, 2019, Brown v. Board of Education attained that notable landmark in Amer-
ican life—the age of sixty-ﬁve. One of the Supreme Court’s most esteemed decisions be-
came a senior citizen. Brown is a ruling that people tend to think they know even if they
have not actually read it. This contributes to a fate that often bedevils celebrities. Observers
project their yearnings upon Brown, neglecting its particularities. They sanctify Brown,
make it an icon, and invoke its constitutional authority to impose preferred policies. Lib-
erals have done this, 所以, 也, have conservatives.

This essay contains ﬁve Parts. Part I deﬁnes what I mean by Brown. Part II recalls its
painful birth and traumatic childhood. 然后, Part III rejects prominent claims said to be
justiﬁed by Brown. 下一个, Part IV rebuts frequently heard charges of “betrayal,” noting that
最高法院, throughout Brown’s adulthood, has never retreated from the invali-
dation of segregation in public schooling. 最后, Part V asserts that we should acknowl-
edge Brown’s limits and, renouncing ancestor worship, look to ourselves to fashion fresh
ideas that suitably address the new challenges we face.

我

When I refer to Brown v. 教育委员会, I refer to three rulings of the Supreme Court
在 1954 和 1955, all of which were authored by Chief Justice Earl Warren.1 These rulings
constitute the historical Brown—not an allegory, not a metaphor, not an emblem, 但

作者: *Randall LeRoy Kennedy is the Michael R. Klein Professor of Law at Harvard Law School, where he specializes
in contracts, freedom of expression, and race relations law. His books include For Discrimination: 种族, Aﬃrmative
行动, and the Law; 跨种族亲密关系: 性别, Marriage, 身份, and Adoption; and Race, 犯罪, and the Law.
His forthcoming book is Say It Loud! On Race, Law, History and Culture.

See Brown v. Bd. of Educ., 347 我们. 483 (1954); Bolling v. 夏普, 347 我们. 497 (1954); Brown v. Bd. of Educ.,
349 我们. 294 (1955).

238

从http下载的://direct.mit.edu/ajle/article-pdf/doi/10.1162/ajle_a_00020/1961867/ajle_a_00020.pdf by guest on 07 九月 2023

BROWN AS SENIOR CITIZEN

rather a cluster of discrete, although related, opinions that announced decisions in three
案例. The ﬁrst case is a collection of disputes that arose in certain states. Brown v. Board
of Education arose from a dispute in the State of Kansas; the other disputes occurred in
Delaware, 弗吉尼亚州, and South Carolina. At issue was the legitimacy of state constitutional
and statutory law that authorized or required oﬃcials to separate students on a racial basis
for primary and secondary schooling. The South Carolina Constitution, 例如, 的-
clared: “Separate schools shall be provided for children of the white and colored races, 和
no child of either race shall ever be permitted to attend a school for children of the other
race.”2 The companion to the Brown cases, Bolling v. 夏普, arose from the District of
Columbia, where a policy superintended by the federal government separated students on
a racial basis.3

In the cases from the states, plaintiﬀs challenged segregation under the Fourteenth
Amendment to the Federal Constitution, which declares that no state shall deny to any
person within its jurisdiction the equal protection of the laws. In the District of Columbia
案件, the plaintiﬀ challenged segregation pursuant to the Fifth Amendment, which declares
that no person shall be deprived of liberty without due process of law.

Oﬃcials defended segregation by saying it was a long-established tradition that dimin-
ished social frictions and protected “racial integrity.” They denied that segregation was an
invidious discrimination. They insisted that separate but equal facilities satisﬁed federal
constitutional requirements because insofar as segregation was implemented such that ra-
cially separated services and facilities were equal no one had a basis for justiﬁed complaint.
In the state cases, on May 17, 1954, the Supreme Court ruled that “in the ﬁeld of public
education the doctrine of ‘separate but equal’ has no place. Separate educational facilities
are inherently unequal.”4 The Court held that “the plaintiﬀs and others similarly situated
. . . 是, by reason of the segregation complained of, deprived of the equal protection of the
laws.”5 In the companion case, the Court ruled that, with respect to the District of Colum-
bia, “segregation in public education is not reasonably related to any proper governmental
客观的, 因此 [imposes] . . . a burden that constitutes an arbitrary deprivation of . . .
liberty in violation of the Due Process Clause.”6

The Court addressed the issue of remedy, in a third decision, a little more than a year
之后. On May 31, 1955, the Court remanded all of the cases to the trial courts from which
they had arisen and determined that local oﬃcials should continue to exercise primary
authority over schooling; additionally, the trial courts should appraise the good faith of

2
3
4
5
6

STATES’ LAWS ON RACE AND COLOR 406 (Pauli Murray ed., Univ. of Ga. 按 1997) (1951).
Bolling, 347 我们. 497.
棕色的, 347 我们. 在 495.
Id.
Bolling, 347 我们. 在 500.

从http下载的://direct.mit.edu/ajle/article-pdf/doi/10.1162/ajle_a_00020/1961867/ajle_a_00020.pdf by guest on 07 九月 2023

239

AMERICAN JOURNAL OF LAW AND EQUALITY |

ISSUE 1 | 2021

these oﬃcials in implementing admission to public schooling on a nondiscriminatory
基础. The Court also decreed that, although the new dispensation could not be permitted
to yield to popular disagreement, a variety of obstacles could justify permitting local of-
ﬁcials additional time to carry out the ruling in an eﬀective manner. 棕色的, 法院
总结, required oﬃcials “to admit to public schools on a racially nondiscriminatory
basis with all deliberate speed the parties to these cases.”7

二

Most Supreme Court rulings are rendered after one round of oral arguments. Brown needed
三. To elicit the unanimous holdings that followed required a feat of diplomacy, 在-
asmuch as views diverged markedly on a bench ﬁlled with strong-willed personalities.8
Essential to the success of that diplomacy was securing the votes of at least ﬁve justices.
Crucial to securing those votes was the writing of an opinion that would be acceptable to
racial conservatives and proponents of “judicial restraint” while at the same time satisfying
the aim of racial liberals to invalidate racial segregation in primary and secondary public
schooling.

Given the reverence with which some commentators discuss Brown,9 one might expect
it to contain a searing denunciation of racist deprivation or a thrilling call for a new birth
of racial equality. If eloquence is your expectation, 然而, Warren’s opinion will bring
disappointment. Brown is strikingly wan, studiously restrained.10 It says next to nothing
about segregation’s origins, purpose, ideology, or implementation. A reader of Brown
独自的, with no knowledge of American race relations, might well be mystiﬁed by the depth

7
8

Brown v. Bd. of Educ., 349 我们. 294, 301 (1955).
For the behind-the-scenes diplomacy, see MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME
COURT AND THE STRUGGLE FOR RACIAL EQUALITY 292–320 (2004); Mark Tushnet, What Really Happened in
Brown v. 教育委员会, 91 COLUM. L. REV. 1867 (1991); Dennis J. Hutchinson, Unanimity and
Desegregation: Decisionmaking in the Supreme Court, 1948–1958, 68 GEO. L.J. 1 (1979).
For an illustration of Brown-worshipping piety, see OWEN FISS, PILLARS OF JUSTICE: LAWYERS AND THE LIBERAL
TRADITION 1–3 (2017). In his ﬁrst three pages, Fiss mentions Brown eleven times, referring to it as “an
extraordinary moment in the life of the law, transforming the law into an instrument for realizing the highest
ideals of the nation.”
J. HARVIE WILKINSON III, FROM BROWN TO BAKKE: THE SUPREME COURT AND SCHOOL INTEGRATION, 1954–1978, 在 29
(1979) (“A schoolboy of the twenty-ﬁrst century reading back and expecting to ﬁnd a Declaration of
Independence or Gettysburg Address will likely be deﬂated.”). Wilkinson, a shrewd observer, understood that the
dullness of the opinion was purposeful. “If the price of unanimity was a lack of language to anthologize, then that
价格, sensed Warren, would have to be paid.” Id. 在 31. 另一方面, the great civil rights advocate Jack
Greenberg maintained that Brown “proved to be the Declaration of Independence of its day.” Jack Greenberg, 这
最高法院, 公民权利, and Civil Dissonance, 77 YALE L.J. 1520, 1521 (1968).

240

从http下载的://direct.mit.edu/ajle/article-pdf/doi/10.1162/ajle_a_00020/1961867/ajle_a_00020.pdf by guest on 07 九月 2023

BROWN AS SENIOR CITIZEN

of the feelings surrounding the case. The opinion oﬀers little explanation of what the
ﬁghting is about.

In his opinion, Warren says that “to separate [Blacks] from others of similar age and
qualiﬁcations solely because of their race generates a feeling of inferiority as to their status
in the community that may aﬀect their hearts and minds in a way unlikely ever to be
undone.”11 He embraces the ﬁnding of a lower court that “the policy of separating the
races is usually interpreted as denoting the inferiority of the negro group.”12 In his stron-
gest negative aside, he says that “segregation in public schooling is not reasonably related
to any proper governmental objective.”13 But Warren omits explaining why segregation
generated a feeling of inferiority, or was usually interpreted as denoting the inferiority
of the “negro group,”14 or was devoid of any proper governmental purpose.

在 1896, in Plessy v. Ferguson,15 the Supreme Court upheld the constitutionality of
racial segregation in intrastate rail transportation, a policy of racial separation that metas-
tasized into every crevice of Southern society. Dissenting in that case, Justice John Marshall
Harlan wrote, “What can more certainly arouse race hate . . . than state enactments which,
实际上, proceed on the ground that colored citizens are so inferior and degraded that they
cannot be allowed to sit in public coaches occupied by white citizens?”16 Appropriately
mocking segregation’s “thin disguise” of delusive symmetry—the cunning lie of separate
but equal—Harlan remarked that “everyone knows that [segregation] had its origin in the
purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to
exclude colored people from coaches occupied by . . . white persons.”17 Harlan pointed out
that segregation was something done by whites to Blacks, that segregation was a deliberate
negation of racial equality, that segregation was a proclamation of white superiority, 那
segregation was meant to protect whites from the supposedly contaminating inﬂuence of
colored people. Harlan’s blunt exposure of segregation’s ugliness is absent from Warren’s
narrative, and Harlan’s dissent is never even cited in Brown.

Warren’s diﬃdence was neither negligent nor inadvertent. It was part of his diplomacy.
Warren wrote privately that he sought to craft an opinion that was “short, readable by the
lay public, non-rhetorical, 和, 首先, non-accusatory.”18 He did just that. Warren’s

11
12
13
14
15
16
17
18

Brown v. Bd. of Educ., 347 我们. 483, 494 (1954).
Id.
Bolling v. 夏普, 347 我们. 497, 500 (1954).
棕色的, 347 我们. 在 494.
163 我们. 537 (1896).
Id. 在 560.
Id. 在 557.
See RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD OF EDUCATION AND BLACK AMERICA’S STRUGGLE
FOR EQUALITY 699 (克诺夫 2004).

从http下载的://direct.mit.edu/ajle/article-pdf/doi/10.1162/ajle_a_00020/1961867/ajle_a_00020.pdf by guest on 07 九月 2023

241

AMERICAN JOURNAL OF LAW AND EQUALITY |

ISSUE 1 | 2021

Brown opinion managed to invalidate segregation without castigating the oﬃcials who de-
signed and imposed Jim Crow oppression. It depicted stigma without stigmatizers, injustice
without perpetrators. It struck down school segregation policies in twenty-one states and
the District of Columbia without setting forth clearly the basis for this momentous action.
Judicial opinions are typically lauded for clariﬁcation as well as resolution. Brown is a tes-
tament to delphic ambiguity.

Perhaps the Chief Justice was right to engage in obfuscation. Perhaps he was prudent
to avoid candor. Perhaps he was sensible in eschewing immediate compliance and permit-
ting instead the gradualism of “all deliberate speed.” Perhaps he was wise to be evasive for
the purpose of securing unanimity behind the Court’s ruling.19

We should, 然而, be aware of the realities attending Brown’s birth. As with other
positive developments in the American law of race relations, Brown was conceived in com-
承诺. The Emancipation Proclamation left unaﬀected the legal status of around
800,000 slaves.20 The Fourteenth Amendment permitted the states to continue racial ex-
clusion at the ballot box, imposing only a penalty for doing so.21 The Fifteenth Amend-
ment was among the narrowest of the voting rights provisions considered during the First
Reconstruction and was promulgated despite the foreseeability of easy evasion.22 Perceiv-
ing a need to compromise, Warren omitted from Brown central aspects of the segregation
故事, most notably white supremacists’ rationale for racially separating children pursuant
to the coercive force of state power. Largely absent from the most honored race relations
decision in American constitutional law is a candid reckoning with racism.

Despite Warren’s eﬀort to soften the blow that the Court delivered to the white su-
premacist “Southern way of life,” Brown triggered an extraordinary negative reaction.
Echoing Confederate ancestors, lawmakers in several segregationist states promulgated
resolutions of interposition that proclaimed the authority of states to disregard the United
States Supreme Court’s ruling. Nineteen senators and eighty-two members of the House of
Representatives endorsed the Declaration of Constitutional Principles, better known as the
Southern Manifesto, which denounced Brown as “a clear abuse of power” and voiced an
intention to resist and reverse it.23 Mississippi’s governor, Hugh L. 白色的, called Brown

20
21
22
23

The unanimity of Brown is often portrayed as a key feature of its attractiveness. 看, 例如, WILKINSON, supra note 10,
在 30 (“It was precisely the unusualness of unanimity on so divisive an issue that made Brown so eﬀective.”). Justin
Driver bracingly challenges this conventional view, suggesting that “the veneration of Brown’s unanimity appears
to rest on a severely exaggerated understanding of the Supreme Court’s ability to stiﬂe opponents by speaking
with one voice.” JUSTIN DRIVER, THE SCHOOLHOUSE GATE: PUBLIC EDUCATION, THE SUPREME COURT, AND THE BATTLE FOR
THE AMERICAN MIND 253 (2018).
ERIC FONER, THE SECOND FOUNDING: HOW THE CIVIL WAR AND RECONSTRUCTION REMADE THE CONSTITUTION 28 (2019).
Id. 在 87.
Id. at 107–09.
See WALDO E. MARTIN JR., BROWN V. BOARD OF EDUCATION: A BRIEF HISTORY WITH DOCUMENTS 220 (1998).

242

从http下载的://direct.mit.edu/ajle/article-pdf/doi/10.1162/ajle_a_00020/1961867/ajle_a_00020.pdf by guest on 07 九月 2023

BROWN AS SENIOR CITIZEN

“the most unfortunate thing that ever happened,” and he said that his state was “not going
to pay any attention to the Supreme Court.”24 Repudiating the Court’s gradualism, Georgia’s
governor, Marvin Griﬃn, declared that “no matter how much the Supreme Court seeks
to sugarcoat its bitter pill of tyranny, the people of Georgia and the South will not swal-
low it.”25

Over the next several years, states moved from rhetoric to action. Louisiana enacted
school segregation statutes anew that denied credits to any student who attended deseg-
regated instruction, decertiﬁed any teacher who delivered instruction in a desegregated
班级, ﬁred any principal who permitted desegregated schooling, and threatened prosecu-
tion of any agent of the federal government who attempted to implement Brown. 一些
jurisdictions rescinded laws requiring mandatory school attendance. Others enacted laws
empowering oﬃcials to close schools that were ordered to desegregate. In a county in
弗吉尼亚州, oﬃcials did away with public schooling altogether for ﬁve years in order to avoid
any desegregation (and would have continued the shutdown even longer if not for judicial
干涉).26 In Little Rock, Arkansas, Governor Orval Faubus called out the state’s
National Guard to prevent the court-ordered desegregation of a high school, and he sub-
sequently closed all of the city’s high schools for a year rather than see any of them deseg-
regated. Voicing a sentiment consistent with the governor’s conduct, a white teenager
bluntly announced why she would prefer no schooling to schooling governed by Brown.
The teen said that she would “rather be stupid than go to school with a nigger.”27

三、

Seldom, if ever, has a Supreme Court ruling met with as much sustained, outspoken,
deﬁant, and intermittently violent resistance as the backlash against Brown v. Board of
教育. 然而, as a matter of law, the Supreme Court’s invalidation of Jim Crow segre-
gation in schooling has never been rescinded. To the contrary, the Court supported the
champions of the civil rights movement with rulings that enabled them to spread
anti-segregationism beyond schooling to recreation, 住房, 就业, 运输,
seating in courtrooms, prisons, matrimony, and just about every other conceivable facet of
social life.28 Jim Crow was routed. 今天, nothing like the segregation provision of the

26
27
28

See REED SARRATT, THE ORDEAL OF DESEGREGATION: THE FIRST DECADE 1, 5 (1966) (quoting Mississippi Governor
Hugh L. 白色的).
See YASUHIRO KATAGIRI, BLACK FREEDOM, WHITE RESISTANCE, AND RED MENACE: CIVIL RIGHTS AND ANTICOMMUNISM IN
THE JIM CROW SOUTH 98 (2014) (quoting Georgia Governor Marvin Griﬃn).
See Griﬃn v. Prince Edward Cnty, 377 我们. 218 (1964).
See KAREN ANDERSON, LITTLE ROCK: RACE AND RESISTANCE AT CENTRAL HIGH SCHOOL 195 (2010).
See Greenberg, supra note 10.

243

从http下载的://direct.mit.edu/ajle/article-pdf/doi/10.1162/ajle_a_00020/1961867/ajle_a_00020.pdf by guest on 07 九月 2023

AMERICAN JOURNAL OF LAW AND EQUALITY |

ISSUE 1 | 2021

South Carolina Constitution exists in the United States as an eﬀective law-giving force.
This is not to say that racial injustice in all its manifold incarnations has been overcome.
In many domains, whiteness continues to elicit privilege, while coloredness continues to
attract deprivation. But the type of racial oppression that Brown speciﬁcally targeted has
been vanquished.

After Heman Sweatt, an African American, applied for admission to the University of
Texas School of Law in 1947, state oﬃcials, conﬁdently reliant upon the validity of segre-
gation, openly rejected him on a racial basis, admitting that “he possessed every essential
qualiﬁcation for admission, except that of race.”29 Fourteen years later, when James
Meredith, another African American, applied for admission to the University of Missis-
sippi, a profound change had occurred that prevented racist oﬃcials from conﬁdently
relying upon the validity of segregation. That change was Brown. It had moved the needle
of legitimacy. Now the segregationists could no longer be honest. Brown forced them
abjectly to lie. The State now claimed that it no longer maintained a policy of segregation
at the university, an obviously untrue assertion at which a U.S. Court of Appeals scoﬀed.
Deprived of the legal high ground they had long enjoyed, the segregationists resorted to
暴力, 欺诈罪, and corruption of the judicial process.30 But eventually, albeit after frus-
trating delay, Meredith did enroll at Ole Miss, a step forward that could not have been
achieved without Brown. Meredith’s advance has now been replicated on innumerable
场合. 现在, nowhere in the United States can an oﬃcial say without fear of legal
repercussion that he or she is using governmental authority to separate pupils on a racial
basis to create or maintain racially homogeneous “white” schools. Oﬃcials said that loudly
and assuredly prior to May 17, 1954. No more.

Sweatt v. Painter, 210 S.W. 2d. 442, 443 (Tex. Civ. 应用程序. 1948), rev’d 339 我们. 629 (1950). The Texas Constitution,
echoing the South Carolina Constitution, provided that “separate schools shall be provided for the white and
有色 . . . and impartial provision shall be made for both.” TEX. CONST. 艺术. VII, § 7. 美国. 最高法院
ordered that Sweatt be admitted to the University of Texas, but only because the state failed to oﬀer to colored
applicants a law school that was equal to that oﬀered to whites. The Court made it practically impossible for the
state to create racially segregated law schools that could be deemed “equal” under the Court’s analysis. 仍然, 作为一个
formal matter, the Supreme Court did not extinguish the legal vitality of segregation in Sweatt v. Painter.
我们. District Court Judge Sidney Mize, forsaking his obligation to be truthful, sought to ratify the deceitful claim
of state educational oﬃcials who swore that they rejected Meredith’s application for nonracial reasons. Judge Mize
“found” that the University of Mississippi no longer engaged in racial segregation and that its rejection of
Meredith’s application had nothing to do with race. See Meredith v. Fair, 202 F. Supp. 224 (S.D. Miss. 1962).
Reversing Judge Mize, in a sardonic opinion penned by Judge John Minor Wisdom, the Fifth Circuit Court of
Appeals noted that “from the moment the defendants discovered Meredith was a Negro they engaged in a
carefully calculated campaign of delay, harassment, and masterly inactivity. It was a defense,” the court observed,
“designed to discourage and to defeat by evasive tactics which would have been a credit to Quintus Fabius
Maximus.” Meredith v. Fair, 305 F.2d 343, 344 (5th Cir. 1962), cert. denied, 371 我们. 828 (1962). All too little
attention has been paid to the corruption of the legal process that occurred when segregationist judges lied
repeatedly in order to avoid the conclusions demanded by Brown v. 教育委员会.

244

从http下载的://direct.mit.edu/ajle/article-pdf/doi/10.1162/ajle_a_00020/1961867/ajle_a_00020.pdf by guest on 07 九月 2023

BROWN AS SENIOR CITIZEN

For a decade after Brown, segregationist deﬁance succeeded impressively. 经过 1964 only a
little bit more than one percent of Black children in Dixie attended schools with whites.31
然后, by dint of private litigation initiated by brave plaintiﬀs who refused to back down even
in the face of frightening intimidation, by dint of federal legislation, and by dint of nudging
by the Johnson and Nixon administrations, the situation on the ground was transformed.
The dam broke and desegregation ﬂowed, even in the Deep South. Black children crossed
the race line to enter schools, even though segregationists had vowed, “Never!”

Reﬂective of that profound change in American life and law was the trajectory of
Brown’s reputation. Segregationists who viliﬁed Brown at its birth and during its early
years received a degree of succor from others who distanced themselves from the Court’s
ruling or spoke of Brown skeptically, sometimes even with disdain, because of objections
to Warren’s ruling, including to its theoretical thinness and allusions to ill-supported so-
cial science. 随着时间的推移, 然而, Brown’s prestige grew and solidiﬁed to the place where
its justiﬁability ascended to the rank of an unquestionable assumption. Its acclaim grew as
millions were transﬁxed and transformed by the morally resplendent oratory of Martin
Luther King Jr.; the disciplined militancy of the Student Nonviolent Coordinating Com-
mittee, the heroic persistence of the National Association for the Advancement of Colored
人们; the exposure of injustice that led to the Civil Rights Bills of 1957, 1960, 1964, 1965,
和 1968; and the shocking sacriﬁce of brave activists such as Medgar Evers, 安德鲁
古德曼, Michael Schwerner, James Chaney, Jimmie Lee Jackson, Viola Liuzzo, James
Reeb, and Vernon Dahmer. As the civil rights movement won inﬂuence and admiration,
so too did Brown.

By the late 1960s, former declared enemies of Brown were abandoning open opposi-
的. 在 1952, a law clerk to Supreme Court Justice Robert Jackson wrote a memo entitled
“A Random Thought on the Segregation Cases,” in which he posited that Plessy v.
Ferguson ought to be reaﬃrmed. Nineteen years later, that clerk, William Hubbs
Rehnquist, came before the U.S. Senate for conﬁrmation as President Richard Nixon’s
nominee as an associate justice of the Supreme Court. Rehnquist insisted that, 在那里面
memo, he had articulated not his own thinking but that of his boss. Fifteen years after
那, when he was nominated to become chief justice, Rehnquist again distanced himself
from the memo. Both times, he realized that his chances for conﬁrmation would be
seriously diminished were he to admit what is almost certainly true: as a young attorney
he saw no constitutional inﬁrmity in racial segregation, and as a mature attorney he had
continued to doubt Brown’s justiﬁability. 所以, he pinned the substance of the memo upon
his deceased boss and engaged in a belated conﬁrmation reassessment: “I wish to state

GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 52 (2d ed. 2008).

245

从http下载的://direct.mit.edu/ajle/article-pdf/doi/10.1162/ajle_a_00020/1961867/ajle_a_00020.pdf by guest on 07 九月 2023

AMERICAN JOURNAL OF LAW AND EQUALITY |

ISSUE 1 | 2021

unequivocally that I fully support the legal reasoning and the rightness from the stand-
point of fundamental fairness of the Brown decision.”32

By oﬀering ratiﬁcation from the right wing of the legal establishment, Rehnquist and
other conservatives grudgingly completed Brown’s canonization. Since the late 1960s, 很少
ambitious jurists have been willing to publicly dispute the rightness of Brown. 这是, 作为
Professors Jack Balkin and Sanford Levinson observe, “normatively canonical.
. . . [氧]这是
establishes oneself as a properly acculturated lawyer by aﬃrming Brown’s correctness.”33

Brown’s beatiﬁcation has prompted advocates of all sorts to enlist it in support of their
causes. They want to associate its aura with their aims. Racial liberals did this in the
1970s and 1980s, when they successfully invoked Brown as a justiﬁcation for requiring
authorities not simply to desist from segregating schools but also to take aﬃrmative steps
to ensure that schools be racially mixed. Although Brown had initially declared that “thou
shalt not segregate,” reformers came to interpret it as declaring “thou shalt integrate.” The
original Brown prohibited racial segregation in schooling as a matter of governmental pol-
icy. 棕色的, as later recast, required authorities to create racially heterogeneous schools,
even if doing so required burdensome busing.34 In retrospect, this recasting is remarkable
given the modesty of the original Brown decisions. Warren’s rulings in 1954 和 1955
oﬀer an implausible predicate for the sweepingly aﬃrmative actions taken in its name
随后.

Political and judicial reversals undercut the ability of racial liberals to implement some
of their plans.35 But ideas that animated those plans have persisted. They manifest

Brad Snyder, How the Conservatives Canonized Brown v. 教育委员会, 52 RUTGERS L. REV. 383, 445 (2000)
(quoting Rehnquist).
J.M. Balkin & Sanford Levinson, The Canons of Constitutional Law, 111 HARV. L. REV. 963, 997 (1999); see also
迈克尔·J. Klarman, Brown v. 教育委员会: Facts and Political Correctness, 80 VA. L. REV. 185, 185 (1994)
(describing Brown as “politically sacrosanct”); Louis Michael Seidman, Brown and Miranda, 80 CAL. L. REV. 673,
675 (1992) (opining that genuﬂection to Brown is the “admission ticket for entry into mainstream constitutional
dialogue”). It should be noted, 然而, that some jurists nominated for judgeships by President Trump declined
to state their belief that Brown speciﬁcally was rightly decided. They justiﬁed their nonresponse on the ground
that sharing their personal view of Brown would put pressure on them to share their personal view on other cases,
most notably Roe v. Wade (410 我们. 113 [1973]). See Laura Meckler & Robert Barnes, Trump Judicial Nominees
Decline to Endorse Brown v. Board Under Senate Questioning, WASH. POST, 可能 16, 2019.
看, 例如, Keyes v. Sch. Distr. 不. 1 丹佛, 413 我们. 189 (1973); Swann v. Charlotte-Mecklenburg Bd. of Educ.,
402 我们. 1 (1971).
看, 例如, Milliken v. Bradley, 433 我们. 267 (1977).

246

从http下载的://direct.mit.edu/ajle/article-pdf/doi/10.1162/ajle_a_00020/1961867/ajle_a_00020.pdf by guest on 07 九月 2023

BROWN AS SENIOR CITIZEN

themselves in eﬀorts to revise the meaning of certain highly emotive terms, 最为显着地
“segregation.” Many racial liberals now erase the distinction between the “segregation” of
the pre-Brown era, when the law expressly required racially homogeneous institutions, 和
the “segregation” of today, when that term is often used to refer to institutions that are
said to be “racially imbalanced”—having populations that do not mirror the racial demo-
graphics of the surrounding community.36 Although for some this usage is merely imita-
tive habit, for others this usage is part of a strategy to discredit those institutions by tarring
them with a label associated with the state-sanctioned racial stratiﬁcation that was openly
and unapologetically practiced prior to Brown.

If schools are bad or unjustly organized, they should be exposed and made better or
fairer. “Segregation” with its accompanying connotations, 然而, is a misleading term
to use in seeking to understand and remedy some of the problems we currently face,
including circumstances under which, in the absence of current state-sanctioned eﬀorts
to separate students on racial grounds, students of color nonetheless suﬀer strikingly
poorer educational outcomes in comparison with white peers. “Segregation,” properly
明白了, means racial separation in schools that has been deliberately engineered by
public authorities. 通常, 尽管, this is not what is at play as dissension erupts among
白人, Blacks, Latinos, Native Americans, people of Asian ancestry, and still others over
optimal or permissible ways to organize public schooling. 相当, at play is a mosaic of
contending forces battling over charter schools, Afrocentric schools, race-conscious inte-
grationism, selection schemes based on standardized testing, and other contested initia-
特维斯. These conﬂicts are marked in unprecedented ways by cross-cutting ﬁssures of class,
文化, and ideology, as well as race—a situation much more complicated than that
which Brown addressed.

Overlooking complication will lead us awry. But that is the fate to which we consign
ourselves when we apply terminology that suitably illuminated the problems of an earlier
time but that is unsuitable to the illumination of looming diﬃculties today. 问题
of the school from which Blacks are racially excluded categorically, notwithstanding
grades or test scores or anything else, should be viewed diﬀerently from the problem of
the selective school in which the Black population is disproportionately small because
relatively few Blacks have applied and a large number of those who have applied are

See Spangler v. Pasadena, 311 F. Supp. 501 (C.D. 卡尔. 1970), for an early example of judicial revision of
“segregation” that expressly collapsed the distinction between the racial separation of students directly caused
by purposeful governmental policy and a condition of racial separateness stemming from a variety of causes.
According to the district judge in Spangler, “[r]acial segregation and racial imbalance are two names for the same
现象, racial separation.” He then notes that he uses the two terms “interchangeably.” Id. 在 506 n.4. 这
Supreme Court ultimately disapproved of much of the district court’s ruling in Pasadena City Bd. of Educ. v.
Spangler, 427 我们. 424 (1976).

247

从http下载的://direct.mit.edu/ajle/article-pdf/doi/10.1162/ajle_a_00020/1961867/ajle_a_00020.pdf by guest on 07 九月 2023

AMERICAN JOURNAL OF LAW AND EQUALITY |

ISSUE 1 | 2021

outperformed by peers of diﬀerent races.37 Although the former school should be labeled
“segregated,” the latter school ought not. By hypothesis, the rules pursuant to which the
latter school is organized are racially unbiased in design and implementation. The racial
demographics of the school do not stem from eﬀorts by oﬃcials to deter, exclude, or in
any way diminish the presence of students of color on account of race. 相当, the racial
demographics of the student body almost certainly reﬂect the obstructive power of debil-
itating disadvantages left by vestiges of racial injustice, including historically victimized
parents who, relative to others, have fewer resources to impart to their children. 这些
and other diﬃcult-to-remedy problems will be obscured by portraying the school as “seg-
regated,” when, 实际上, its problems lie elsewhere.

Commentators who wield loosened deﬁnitions of “segregation” invoke the specter of
the “New Jim Crow.” The outstanding articulation of this concept is Michelle Alexander’s
inﬂuential critique of the administration of criminal justice.38 But invocations of the New
Jim Crow have now reached to other domains as well, indeed to apply to American society
一般来说. The central theme of the New Jim Crow is that the racial hierarchy that gave
rise to old-style segregation remains intact. Social reforms (例如, Jackie Robinson breaking
the color bar in baseball and Vanessa Williams breaking the color bar at the Miss America
pageant), judicial reforms (例如, Smith v. Allwright39 and Shelley v. Kraemer40), and legis-
lative reforms (例如, the Civil Rights Act and the Voting Rights Act) have etched signiﬁcant
changes into the fabric of American life. Oprah is a media sensation. A few Blacks are
CEOs of major corporations. Colin Powell was the most admired military oﬃcer since
World War II. Every presidential cabinet since 1964 has featured at least one African
美国人. Barack Obama was elected and reelected president of the United States. 一个
African American woman, Kamala Harris, has been elected vice president of the United
状态, while an African American man, Raphael Warnock, has been elected to serve as a
我们. senator from Georgia. But despite these indicia of change, analysts who propound
the idea of the New Jim Crow insist that America remains a pigmentocracy. They assert
that racial hierarchy manifests itself in educational regimes in which, systematically and

38
39
40

See generally JOSHUA GOODMAN & MELANIE RUCINSKI, INCREASING RACIAL DIVERSITY IN BOSTON’S EXAM SCHOOLS
(Oct. 2018); Jelani Cobb, Back to School Reform, NEW YORKER, Sept. 8, 2019, https://www.newyorker.com
/magazine/2019/09/16/back-to-school-reform; Eliza Shapiro, 仅有的 7 Black Students Got into Stuyvesant, N.Y.’s
Most Selective High School, Out of 895 Spots, N.Y. TIMES,
三月. 18, 2019, https://www.nytimes.com/2019/03/18/nyregion/ black-students-nyc-high-schools.html; 苏珊
Dynarski, Evidence on New York City and Boston Exam Schools, BROOKINGS ( 七月 19, 2018), https://布鲁金斯学会
.edu/research/evidence-on-new-york-city-and-boston-exam-schools/.
See generally MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF COLORBLINDNESS (2010).
321 我们. 649 (1944).
334 我们. 1 (1948).

248

从http下载的://direct.mit.edu/ajle/article-pdf/doi/10.1162/ajle_a_00020/1961867/ajle_a_00020.pdf by guest on 07 九月 2023

BROWN AS SENIOR CITIZEN

predictably, whites fare far better than people of color. They argue that these circum-
stances are the result of decisions in which oﬃcials have chosen, with varying degrees
of self-awareness, to privilege policies advantageous to whites over policies that would
be advantageous to non-whites. An example, they say, is the Supreme Court’s choice to
condemn as unconstitutional de jure segregation while putting “de facto segregation” be-
yond the reach of constitutional regulation.

The New Jim Crow analogy taps into the memory of a notorious, older regime of racial
injustice. Those who deploy it are determined to make vivid the current situation in which
Blacks continue to be relegated to the bottom tiers of American society as measured by all
manner of indicia of well-being—from longevity and wealth to access to employment,
住房, 卫生保健, 和教育. Purveyors of the New Jim Crow analogy, 然而,
use it for more than exegesis; they also use the analogy for purposes of political mobili-
扎化. They implore audiences to resist assurances of mission accomplished and to reject
claims that we have overcome. It was sure to happen, as it has, that a law professor was
going to assert that “the new Jim Crow is the old Jim Crow.”41

There is much that is laudable about the aims and tactics of those sounding alarms
about the supposed New Jim Crow. The analogy has assisted in triggering indignation that
has fueled new activism challenging formidable problems. Purveyors of the New Jim Crow
analogy, 然而, tend to erase crucial distinctions, insisting upon a continuous, unchang-
ing narrative of white supremacist ascendancy. Although proponents of the New Jim Crow
analogy decry triumphalism, their central rhetorical trope derives its power from the fact
那, overwhelmingly, Americans condemn the (老的) Jim Crow system. The widely per-
ceived unacceptability of that system prompts and undergirds the eﬀort to associate it with
contemporary policies and conditions also deemed to be unacceptable. This strategy, 如何-
曾经, holds dangers of its own. One is relying too much on the intellectual and political
labors of precursors—echoing overmuch imagery that is now overused. If nothing much
has changed between the segregation regime and what exists today, it would seem that no
harm will ensue from continuing to use the same old vocabulary of protest. If much has
改变了, 然而, deploying obsolescent terminology is bound to mislead.

A far more troubling example of anachronism is supplied by the Supreme Court, par-
ticularly Chief Justice John Roberts. 在 2007, in Parents Involved in Community Schools v.
Seattle School District No. 1,42 in a set of cases arising from Kentucky and Washington, 这
Court invalidated policies undertaken voluntarily by local school boards that used race as
one of several possible factors in determining placements for students in primary and

41
42

Katie R. Eyer, The New Jim Crow Is the Old Jim Crow, 128 YALE L.J. 1002 (2019).
551 我们. 701 (2007).

249

从http下载的://direct.mit.edu/ajle/article-pdf/doi/10.1162/ajle_a_00020/1961867/ajle_a_00020.pdf by guest on 07 九月 2023

AMERICAN JOURNAL OF LAW AND EQUALITY |

ISSUE 1 | 2021

secondary schools. The school boards’ purpose was to sustain as much racial heterogeneity
尽可能.

At the end of his plurality opinion for the Court in Parents Involved, the Chief Justice
wrapped himself in Brown. Because Brown required admission to public schools on a non-
discriminatory basis, Roberts reasoned, it should be impermissible for school boards on
their own, absent judicial compulsion, to take race into account in making student assign-
评论, even if maintaining racial integration was the aim. “The way to stop discrimination
on the basis of race,” Roberts concluded, “is to stop discriminating on the basis of race.”43
Chief Justice Roberts’s equation of racial discrimination at issue in Brown and the
racial discrimination at issue in Parents Involved is obtuse. It is an awful example of my-
opic formalism. The segregation challenged in Brown was a regime that oppressed Blacks.
It categorically disadvantaged them with a policy signaling that in the estimation of oﬃ-
cials African Americans were an inferior group that should be publicly labeled as such.
The policy challenged in Parents Involved can hardly be said to have oppressed whites.
The upshot of predominantly white school boards, those policies contained nothing that
could plausibly be seen as signaling a belief that whites are racial inferiors. Brown featured
oﬃcials separating the races in order to quarantine all Blacks. Parents Involved featured
policies that adversely aﬀected some whites—not all, but some—for the purpose of secur-
ing racially mixed schooling. Roberts says that drawing racial distinctions to create seg-
regation and to create integration are both similarly violative of the Constitution’s
directive to government to oﬀer to all persons equal treatment before the law. This po-
sition is ridiculous and ought to be rejected. It purports to erase the diﬀerence between
the policies in question in Brown and those in Parents Involved. That polarity is the dif-
ference between a sign that says “People of Color Are Welcome!” and a sign that says
“People of Color Are NOT Welcome!”44 Both signs draw racial distinctions. But the ﬁrst
is a benign, positive racial discrimination, while the second is a malign, negative racial
歧视. Brown addressed the latter, which was all too prevalent in the United
States of 1954. The former—positive discrimination aimed at fostering integration or rec-
tifying past injustices or enhancing diversity—hardly had a presence in American life back
然后. Brown simply did not speak to the permissibility or wisdom of such policies. 什么时候
Chief Justice Roberts justiﬁes his views on the matter by reference to Brown, he is engag-
ing in bamboozlement.

43
44

Id. 在 748.
Justice John Paul Stevens made the point nicely: “There is no moral or constitutional equivalence between a policy
that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination.” To ignore the
gulf that should be seen as separating positive from negative racial distinctions, he rightly complains, is to
“disregard the diﬀerence between a ‘No Trespassing’ sign and a welcome mat.” Adarand v. Peña, 515 我们. 200,
243–47 (1995) (Stevens, J. dissenting).

250

从http下载的://direct.mit.edu/ajle/article-pdf/doi/10.1162/ajle_a_00020/1961867/ajle_a_00020.pdf by guest on 07 九月 2023

BROWN AS SENIOR CITIZEN

We would do well now to appreciate the historical Brown and continue to deploy it to
invalidate any governmental action undertaken for the purpose of separating people on
a racial basis to signify and accomplish racial hierarchy. We should also acknowledge
Brown’s boundaries and retool ourselves to confront a very diﬀerent racial landscape
than that confronting Americans in 1954. The creators of Brown—the brave plaintiﬀs,
their justly celebrated lawyers, and the justices who allowed themselves to break from
tradition—all warrant congratulations and gratitude. Brown is a vehicle that carried
essential freight. But it should not be looked to longingly as a vehicle that can carry
all of the burdens of racial justice. To adequately address the crises we confront now
requires more than habitual incantations of Brown and allusions to “segregation” and
the “New Jim Crow.” It requires forging new law, new ideas, and a new vocabulary
pertinent to current demands.

从http下载的://direct.mit.edu/ajle/article-pdf/doi/10.1162/ajle_a_00020/1961867/ajle_a_00020.pdf by guest on 07 九月 2023

251
下载pdf