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Evaluating Brown v. Board: Were the revisionists right?

By Edward Lazarus, FindLaw Columnist
Special to CNN.com

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Central High School in Little Rock, Arkansas, which desegregated three years after the 1954 Brown decision.

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(FindLaw) -- Not long ago, I heard a speech by a leading black civil rights figure from the 1960s and 70s about Brown v. Board of Education, a decision that celebrates its 50th birthday on May 17. To this son of the Jim Crow South, Chief Justice Earl Warren's unanimous opinion -- famously repudiating the doctrine of "separate but equal," and ending legalized segregation in public schools -- was every bit as important a document as the Declaration of Independence or the Constitution.

This was not hyperbole on his part. Looking back from his current vantage point as a corporate titan, this man described Brown as essential not just to his success, but also to the very creation of his ambition. Quite simply, his life divided into two parts, pre-Brown and post-Brown -- one marked by humiliation and oppression, the other by possibilities and dreams.

What struck me about this speech was not so much its content, as its familiarity. I have heard many blacks of this man's generation speak about Brown. Their basic message has always been the same: Brown changed everything for blacks, as nothing had before or has since.

This message is out of fashion now. It's true that Brown's anniversary will spawn dozens of conferences, articles and books devoted to the case. And it's true that the "rightness" of Brown is now publicly unassailable. Nevertheless, the revisionists have taken hold of the decision's legacy and tell us with ever-greater certainty that its true import is much more modest than one might imagine.

Are the revisionists correct? In this column I will examine why they might, or might not, be.

The reasons for the revisionism

Both history and current social reality provide plenty of grist for the revisionist mill.

Southern resistance to Brown (abetted by President Dwight Eisenhower's negative reaction, and the Supreme Court's own decision to order desegregation to occur "with all deliberate speed," in Brown II, rather than to occur immediately) effectively delayed Brown's meaningful implementation. As a matter of fact, as opposed to law, public schools in the South remained almost totally segregated for more than a decade.

Worse still, public attitudes and the Supreme Court itself have significantly undermined the eventual progress that was made toward public school integration. The combination of "white flight" to the suburbs, and the Supreme Court's refusal to permit inter-district busing, have turned many inner-city schools into nearly all-black ghettos of inferior resources and education.

In light of this sad reality, revisionists ask whether Brown, as a practical matter, has accomplished very much at all.

Revisionists also point out that Brown had little practical impact outside the field of education. After 1954, hotels and restaurants and buses across the South remained segregated. Many states continued to outlaw interracial marriage (until the Supreme Court's decision in Loving v. Virginia), and imposed nearly insurmountable obstacles to black voter registration. Discrimination in almost every form remained a standard part of life across large swaths of America.

Racial bigotry, at least in its overt manifestations, did not recede because of Brown, these revisionists tell us. Instead, real progress occurred only in after Congress stepped in and passed the landmark civil rights legislation of the mid- and late 1960s, outlawing a host of both public and private acts of race discrimination.

Why we should not embrace revisionism

No doubt all this is true. But it is also, to my mind, largely beside the point.

As an initial matter, I have never thought that Brown's was really about segregation in public schools, except in the most literal sense. Brown was about putting an end to state-sponsored and state-approved racial oppression.

In this respect, Brown cannot be thought of in isolation. At a minimum, it must be coupled with the many other decisions of the Warren Court that embodied the spirit and principles of Brown.

What was the gist of all these decisions, taken together? Simply put, it was to demand -- and to order -- the end of four centuries of racial degradation. It was also to declare that, at least under law, the state might not humiliate blacks by setting them apart or punishing them for sharing the aspirations of their fellow citizens.

Such decisions include, most obviously, Cooper v. Aaron, in which the justices, again unanimously, stood fast during the Little Rock school crisis when Arkansas Gov. Orville Faubus defied Brown's mandate. It took federal troops to dislodge Faubus from the schoolhouse door, but in the end, the Court, and the rule of law, prevailed.

Beyond the issue of education, the justices worked to open up the political process for blacks by forcing the redrawing of electoral districts according to the principle of one-person/one-vote. Thanks to that decision (Baker v. Carr), blacks slowly started winning public office in the South.

The Court also tried to protect blacks against the worst abuses of state officials by giving them ever-wider access to federal courts to vindicate their rights. And, perhaps even more important, the justices vested Congress with ever-greater authority to outlaw race discrimination in public and private life.

All this, it seems to me, must be deemed a part of Brown's legacy -- and that is monumental, even if in these fields, as in our public schools, the achievements on the ground have been halting and imperfect.

Brown's legacy remains invaluable

Even more important, Brown's legacy is not properly discounted (as some seem to) because the decision did not achieve a magical transformation of law or society. This is far beyond the power of any single judicial decision, or even collection of decisions.

Ultimately, the effectiveness of the Supreme Court's work is hostage to the commitment of the President and Congress and, most important, to the receptiveness of the American people to legal principles announced. In the case of Brown, that commitment has too often been equivocal.

Rather, what makes the legacy of Brown so profound -- what makes blacks of a certain generation speak of it with such awe and reverence -- is its embodiment of an ideal of racial and social justice.

That ideal has eluded every society since the beginning of time. It is a Platonic form to be yearned for that may never quite be achieved.

But prior to Brown, as a matter of national law, there was not even a yearning. Brown changed that, forever. It gave Americans a measuring stick for their aspiration to be a country truly just and free -- and, better yet, it created a stick that could be seen, and held, and wielded, by a racial group ground down by 400 years of legal subjugation. (Moreover, in arguing the case before the Supreme Court for the NAACP, Thurgood Marshall became an indelible role model for all that for which he argued.)

This is an achievement well worth celebrating, and will be again in another 50 years, and 50 years beyond that, and for as long as we can remember the evil that bigotry is.

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Edward Lazarus, a FindLawexternal link columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, "Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court."


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