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What Brown v. Board of Education Should Have Said

What Brown v. Board of Education Should Have Said: The Nation's Top Legal Experts Rewrite America's Landmark Civil Rights Decision

Bruce Ackerman
Jack M. Balkin
Derrick A. Bell
Drew S. Days
John Hart Ely
Catharine A. MacKinnon
Michael W. McConnell
Frank I. Michelman
Cass R. Sunstein
Copyright Date: 2002
Published by: NYU Press
Pages: 257
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    What Brown v. Board of Education Should Have Said
    Book Description:

    Brown v. Board of Education, the Supreme Court's landmark 1954 decision ordering the desegregation of America's public schools, is perhaps the most famous case in American constitutional law. Criticized and even openly defied when first handed down, in half a century Brown has become a venerated symbol of equality and civil rights. Its meaning, however, remains as contested as the case is celebrated. In the decades since the original decision, constitutional interpreters of all stripes have found within it different meanings. Both supporters and opponents of affirmative action have claimed the mantle of Brown, criticizing the other side for betraying its spirit. Meanwhile, the opinion itself has often been criticized as bland and uninspiring, carefully written to avoid controversy and maintain unanimity among the Justices. As the 50th anniversary of Brown approaches, America's schools are increasingly divided by race and class. Liberals and conservatives alike harbor profound regrets about the development of race relations since Brown, while disagreeing heatedly about the proper role of the courts in promoting civil equality and civil rights. In this volume, nine of America's top constitutional and civil rights experts have been challenged to rewrite the Brown decision as they would like it to have been written, incorporating what they now know about the subsequent history of the United States but making use of only those sources available at the time of the original decision. In addition, Jack Balkin gives a detailed introduction to the case, chronicling the history of the litigation in Brown, and explaining the current debates over its legacy. Contributors include: Bruce Ackerman, Jack M Balkin, Derrick A. Bell, Drew S. Days, John Hart Ely, Catharine A. MacKinnon, Michael W. McConnell, Frank I Michelman, and Cass R. Sunstein.

    eISBN: 978-0-8147-2304-3
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface
    (pp. ix-xii)
    Jack M. Balkin
  4. PART I: Brown v. Board of Education—A Critical Introduction

    • Chapter 1 Brown as Icon
      (pp. 3-28)

      On May 17, 1954, the Supreme Court of the United States handed down one of its most famous opinions—Brown v. Board of Education of Topeka, Kansas.¹ The case calledBrownwas actually a collection of five cases, from Delaware (Gebhart v. Belton), Kansas (Brown v. Board of Education), South Carolina (Briggs v. Elliott), Virginia (Davis v. County School Board of Prince Edward County), and the District of Columbia (Bolling v. Sharpe). The Court heard them together because each raised the issue of the constitutionality of racially segregated public schools, albeit with slightly different facts and circumstances. In fact, Thurgood...

    • Chapter 2 The History of the Brown Litigation
      (pp. 29-43)

      The plaintiffs’ victory inBrownwas the result of a long and carefully orchestrated legal campaign by the NAACP Legal Defense and Education Fund.¹ The campaign began in 1935 and achieved a string of impressive victories. The original architect of the NAACP’s strategy was Charles Hamilton Houston, dean of the Howard University Law School. However, by 1939 the leadership passed to his student and protégé Thurgood Marshall. Marshall was probably the most important American lawyer of the twentieth century. He devised the basic strategy forBrownand its companion cases, and for many years he was the NAACP’s main advocate...

    • Chapter 3 Rewriting Brown: A Guide to the Opinions
      (pp. 44-74)

      In this book, nine constitutional scholars have rewritten theBrownopinion. Acting as Chief Justice of this mock Supreme Court, I have issued an opinion announcing the judgment of the Court. It is joined by two other participants, Bruce Ackerman and Drew Days. Their concurrences do not mean that they agree with everything in the opinion, only that they do not object too strenuously to its general contours. The best evidence of their own views is their individual opinions, which differ in many interesting and important respects.

      Five other participants, Frank Michelman, John Hart Ely, Catharine MacKinnon, Michael McConnell, and...

  5. PART II: Revised Opinions in Brown v. Board of Education

    • BROWN ET AL. v. BOARD OF EDUCATION OF TOPEKA ET AL. No. 1 SUPREME COURT OF THE UNITED STATES 347 U.S. 483 May 17, 1954, Decided Reargued December 8, 1953. PRIOR HISTORY: APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS. Chief Justice Balkin announced the judgment of the Court:
      (pp. 77-91)

      These are school cases. They come from different parts of our country: from Kansas and South Carolina, from Delaware and Virginia. They involve a national question, and, indeed, one case comes from the District of Columbia, our nation’s capital. Each case presents different facts and different local conditions, but each presents a single common question, which justifies our consolidated treatment.

      In each of these cases, black schoolchildren, through their legal representatives, seek admission to public schools on a nonsegregated basis. They argue that they have been denied admission to schools attended by white children due to laws that either require...

    • Drew S. Days III (concurring)
      (pp. 92-99)

      For almost three generations, this Court has defaulted in its duty to enforce the Equal Protection Clause of the Fourteenth Amendment with the full force and vigor that it justly deserves. In declaring racial segregation in public education unconstitutional, we take a major stride on the road toward rectifying that default. As the Court’s opinion today reminds us, the central purpose of the Civil War Amendments was “the freedom of the slave race, the security and firm establishment of that freedom and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised...

    • Bruce Ackerman (concurring)
      (pp. 100-123)

      Four score and six years ago, our fathers struggled to find meaning in a bloody war that took 600,000 lives, tearing apart families, friends, and the nation itself. With the solemn ratification of the Fourteenth Amendment, America chose the revolutionary path of free and equal national citizenship. We consider today how far we have come, and where we must go, if we are to remain faithful to this great commitment.

      Before the Civil War, this Court systematically read the Constitution in favor of slavery. It showed no patience with free states that refused to cooperate with the return of fugitive...

    • Frank I. Michelman (concurring in part and concurring in the judgment)
      (pp. 124-134)

      The Chief Justice and Justice Days show compellingly that no state-mandated system of race-based segregation, whether in public places generally or specifically in the public schools, can stand against a constitutional principle of civil equality. I join the Court’s conclusion that such a principle is brought to bear on the states by the Equal Protection Clause of the Fourteenth Amendment, and thatPlessy v. Fergusonmust accordingly be overruled.

      As I understand it, the legal principle that decides these cases is one of equality of membership in the civil community. It is an antimonarchical, anti-aristocratical principle of one-size-fits-all civil membership,...

    • John Hart Ely (concurring in the judgment except as to the remedy)
      (pp. 135-142)

      Defendant school boards are probably right in asserting that most of the framers and ratifiers of the Fourteenth Amendment did not expect that ratification would result in the immediate desegregation of the public schools. This is, however, of scant if any relevance to the cases before us. The “public school system” in 1868 bore essentially no resemblance to its contemporary counterpart.¹ More fundamentally, the Equal Protection Clause—like the other clauses of section 1 of the Fourteenth Amendment—is among the Constitution’s clearest examples of a provision whose exact content was understood not to be frozen in time. This does...

    • Catharine A. MacKinnon (concurring in the judgment)
      (pp. 143-157)

      Beneath and beyond the victory for Black schoolchildren in these five cases—a step for all toward what Mr. Silas Hardrick Fleming, a plaintiff testifying inBrown, called “the light”¹—lie hazards for the principle of equality under law and for the social equality it aims ultimately to promote.

      The risk we run today is not of going too far too fast, as defendants fear, but of going too slowly and not far enough. Insuring a future consistent with the Fourteenth Amendment’s purpose and promise, as my colleagues document and interpret it, calls not only for dismantling racially segregated public...

    • Michael W. McConnell (concurring in the judgment)
      (pp. 158-173)

      These cases force us to confront a moral, political, and legal issue that divides this nation more deeply than any other. Throughout the southern region of these United States, it is customary for children attending public schools to be assigned to classrooms segregated according to race. Similar laws require segregation in other public and private facilities, from swimming pools to municipal buses to courtrooms. In these states, racial segregation is a deeply entrenched social institution. By contrast, throughout the northern and western regions—and among many citizens even in the South—racial segregation has come to be recognized as a...

    • Cass R. Sunstein (concurring in the judgment)
      (pp. 174-184)

      While I agree with his conclusion, I cannot join the opinion of the Chief Justice, which, like those of several other members of this Court, seems to me to decide too many complex questions, many of them not properly presented here. Rather than embarking in new directions, or offering adventurous interpretations of constitutional provisions on which the parties do not rely, I would emphasize the continuity of our decision today with the whole fabric of existing law. Indeed, the result in this case is nearly foreordained by our precedents, and the ruling ofPlessy v. Fergusonhas become an extraordinary...

    • Derrick A. Bell (dissenting)
      (pp. 185-200)

      I dissent today from the majority’s decision in these cases because the detestable segregation in the public schools that the majority finds unconstitutional is a manifestation of the evil of racism the depths and pervasiveness of which this Court fails even to acknowledge, much less address and attempt to correct.

      For reasons that I will explain in some detail, I cannot join in a decision that, while serving well the nation’s foreign policy and domestic concerns, provides petitioners with no more than a semblance of the racial equality that they and theirs have sought for so long. The Court’s long-overdue...

    • Comments from the Contributors
      (pp. 201-214)

      The contributors to this book were asked to give a short account of why they wrote theirBrownopinion as they did, and what goals they were trying to accomplish. They were also invited to give credit where it was due for sources written after 1954, which they could not quote directly in their opinions. Here are their responses:

      Brownis typically viewed as the shining example of a Court playing the part of moral revolutionary—proclaiming a new and better law of equal protection for the country, blazing a path toward racial redemption.

      I take a different line. The...

  6. Appendix A: The Supreme Court’s Original Opinions in Brown I, Bolling, and Brown II
    (pp. 215-232)
  7. Appendix B: The Constitution of the United States of America: Selected Provisions
    (pp. 233-236)
  8. Brown v. Board of Education: A Selected Bibliography
    (pp. 237-242)
  9. About the Contributors
    (pp. 243-246)
  10. Table of Cases
    (pp. 247-250)
  11. Index
    (pp. 251-257)