THE RULING IN THE BROWN vs. the Board of Education of Topeka Kansas case, which made segregated schools illegal, may not have ever happened had it not been for two heart attacks.
The first of the two occured when Chief Justice Fred Vinson was in the middle of dealing with a divided court in facing its biggest challenge in recent years..how to handle school segregation in the midst of a series of five NAACP lawsuits in a variety of places, Delaware, South Carolina, Virginia and Washington D.C., consolidated under one claim - that of Oliver Brown, a Topeka, Kansas welder whose daughter Linda lived in a mixed race neighborhood and wanted to go to school with her friends, not to mention got to the school six blocks away instead of walking seven blocks to then get to a bus to go to the black school. The NAACP lawyers chose the Oliver Brown case to lead because he was an upstanding man who was studying to be a minister, and also for the very reason that the Topeka case was a pure case; the black schools were, as court testimony would find, mostly equal in quality to the white Topeka schools. And only the elementary schools were segregated...integration already occured at middle and high school level. This differed from the Virginia or South Carolina cases, where the school for blacks was far inferior. With Topeka, there could be no side discussion of quality. The court couldn't just order the school sytem to bring all the schools up to par. The issue was whether seperate was equal.
50 years earlier, when a man who Lousiana considered legally black named Homer Plessy, purposely sat down in the white section of a Louisiana railroad car, was fined 300 dollars and then sued saying his 15th amendment rights were violated; the Court ruled against him.. And the case of Plessy vs. Furgeson instilled the legal doctrine of 'seperate but equal' a doctrine that made black and white schools legal. In the Topeka case, NAACP lawyers were taking on Plessy directly.
A DIVIDED COURT OF NEW DEALERS
Chief Justice Vinson's court was divided. It was made up of a majority of New Deal politicians, annointed by FDR to the top bench for a variety of reasons, mostly political. Felix Frankfuter, an Austrian immigrant and Jew, opposed school segregation and was sympathetic to the NAACP case as was former law professor William O'Douglas. Justice Stanley Reed, a Kentucky Democratic political boss appointed by FDR with no previous legal experience, was opposed to overturning Plessy. Justice Hugo Black was a former Klan member but he had voted in several cases for civil rights; however he also strongly felt the courts should not make law. Robert Jackson (who at this point wasn't speaking to Black due to his perceived betrayal) was opposed to segregation and was a liberal in some cases..he had wrote an opinion that it was not necessary to salute the flag, but moreover Jackson was sensitive to the impact of any decision on the South. And he felt that blacks had made progress in the arts and sciences and were by their own actions rather than the courts segregation was becoming old fashioned. Should the court help them, would that cripple the image of their race in the public eyes? Often used as a conservative cover for racism and Jim Crowism, in this case Jackson was making this argument from a liberal point of view.
Harold Burton, the former popular mayor of Cleveland an only Republican on the court and Sherman Minton a former Senator from Indiana were anti-segregationists but their votes weren’t' clear. Tom C Clark , Truman's Attorney General who he elevated to the Court, personally wanted to end segregation but was a conservative and doubted the court had the credibility to do it after ruling seperate but equal was acceptable for 50 years.
HISTORY OF NO HELP
Vinson felt the vote might go 5-4 with Jackson, Clark, Reed and perhaps Minton or Black voting no. Vinson, a former Kentucky congressman, himself was troubled by the role the court might take in deciding such a matter by a slim majority and wanted to hear arguments as to whether past precedent would help. He asked for the case to be reheard so that the Court could examine the 14th amendment on which civil rights rulings had been based.
And in 1953 as this research was going on, as Vinson was learning that the historical research wasn't helping....the post Civil War congress that passed the 14 amendment had little public schooling to regulate, as he was learning there was little precedent to back him up. As he learned that, If anything, the congress that passed the 14th amendment also passed a civil rights bill in 1875 that, in order to pass, was stripped of a provision that might have integrated schools, as he was seeing that It wasn't looking good for getting a stronger majority, as this was occurring, Vinson had an unexpected heat attack and died. That was the first heart attack that led to the brown decision.
IKE APPOINTS WARREN
President Eisenhower appointed Earl Warren, the governor of California and a former tough on crime prosecutor who he felt would bring to the bench conservative values. The appointment was certainly inspired by political factors. Warren had not been a judge, but he had been the Republican vice presidential candidate in 1948 and lost a narrow election. He was a 'favorite son' candidate in California but stood down for Eisenhower. And he campaigned for Eisenhower when his vice presidential candidate, Richard Nixon became embroiled in a scandal.
That Warren was a politician rather than a judge was not all that surprising. Many of FDR's new deal judges had been politicians...But Warren was an exceptional one. He had run three times and won three times for Governor of California, and remains the only California governor to have done so. He was an excellent politician. In 1946, he ran in the Republican, democratic and Progressive party primaries and won all three party primaries...and thus faced no general election opponent. He was popular and successful, setting policies leading to a boom in California and creating its university system.
A man who had wielded power, Warren had no time for arguments about the limitations of the Courts power or separation of power between the branches. His opinion was that once it had decided the court could act, and Warren's philosophy changed American law in the late 20th century. Later Eisenhower would say that appointing Warren was the biggest damned fool mistake he ever made, though he said this to a friend and not in public and he probably meant it more about some of the criminal rights cases than Brown since Eisenhower’s administration argued for the black students in the Brown case.
BROWN IN CONTEXT
History likes heroes and so the Brown case, and this Warren court is often thought of as the heroes, standing alone in the crowd. but that's not really the right image. We should also put the Brown decision in a context that we often don’t' think of. Brown was not about a group of robed individuals sitting in a room deciding something that no one agreed with. Brown represented a building change in American opinion about segregation. Earl Warren's new supreme court was taking a stand. but not so much on a limb alone. Lower district courts had put the issue at the Supreme Courts door issuing rulings that while the law stood plessy was the law of the land... with a a Delaware judge saying.. I believe segregation is unlawful but I think the Supreme court must be the one to overturn it. The Eisenhower administration and its Attorney General argued for the reversal of Plessey and the integration of schools "with all deliberate speed." Even the U.N. had weighed in against racial segregation, which possibly gave integrated Soviet Union a propaganda advantage over the segregated u.s., and added an issue of fighting communism to the segregation battle. And the court itself , in two separate Court Decisions, Sweat v. Painter and McGaran vs. Okalahoma, had already cast doubt on Plessey by insisting that black students be allowed to attend white schools in higher education where facilities were unequal. and it would have been difficult for the court to find Brown any other way given those precedents..
These foundations don't take away from the fact that Warren quickly came to see the importance of the case and quickly surmised as Vinson did that politically, the decision had to be unanimous. There could not be one dissent that could spark any hope of overturning, that southerners could use to delay the decision. After arguments were heard in the case, he used his deft political skills to convince others. He refused to entertain old arguments about the courts power or precedent. Forget the 14th amendment; forget Plessey, forget precedent...Segregation was wrong and the court needed to right it. He saw a new way to think about the courts power. I believe an added advantage was that Warren agreed to lead the charge.
THE SECOND HEART ATTACK
Finally, The holdouts seemed to be Stanley Reed and Robert Jackson. Warren didn't want a 7-2 decision. Only a unanimous decision could send the right message. Then, in the second heart attack, that would be crucial to the vote on Brown vs. the Board of Education, Jackson had a heart attack, and went to a hospital where Warren went to see him several times and eventually got him to agree to go along. As Jackson died soon after the Brown decision, Jackson didn't speak much about Brown and no one is quite sure what Warren said to convince him; but he did agree to include language about how blacks had advanced in art and science into the decision incorporating Jackson's argument for a different conclusion.
Once Jackson's vote was in the bag he moved in on Justice Stanley Reed. "Stanley, you are all by yourself now. You've got to decide if that's really what's best for the country." Justice Reed never agreed with the Brown decision, but cajoled by Earl Warren, not wanting the spotlight on him, he agreed to go along. All the justices, including Jackson who came out of the hospital for the session, sat as Warren read a short decision that he authored, short enough that it could be printed in newspapers, that the Supreme Court of the land ordered schools to integrate. "Segregation of educational facilities is inherently unequal' the court found. What is really historic about the Brown decision is that Warren, the politician and executive turned jurist, relied little on legal arguement - the court made the simple statement that separate facilities hurt children. He admitted there was nothing decisive in the 14th amendment. Scholarly works, UN statements and plain simple statements of fact were used in place of precedent.
FAST FORWARD TO 2007
Now in 2007, there is no Earl Warren on the court. Again a fairly new justice and again the court was divided. In Parent's Involved in the Community Schools vs. the School Board of Seattle. The Seattle schools system used parental choice to determine where children would go to school. But if the school was filled, the tiebreaker was racial; if the choice was between two students, the racial makeup of the school would determine who would get to go to that school. Whichever student best contributed to the racial makeup got entry. A similar system was used in Louisville Kentucky, a case joined with this one into Parents Involved in Community Schools vs. The School Board of Seattle.
Chief Justice Roberts, Justice Antoine Scalia and Samuel Alito, as well as Clarence Thomas, thought the system of using race in decision about school attendance was unconstitutional. Roberts felt he was preserving Brown. 'The best way to end race discrimination in school is to end race discrimination in schools. " Anthony Kennedy concurred with the plurality but thought the Chief justice went to far; he wrote his own opinion. In that Kennedy becomes the third case involving race in education, Bakke, Grutter and now Parents vs. Seattle where one single justice whose vote is crucial. Kennedy's concurrent opinion was that eliminating race altogether was too far; Where Kennedy's decision will come into play is in setting attendance zones or building new schools. There school districts can take race into account, and per Kennedy's concurrence be in alignment with the law. But there is no difference in the Kennedy position when it comes to individual students; race cannot be a factor.
SMACKDOWN IN THE SUPREME COURT
Justices Breyer, Stevens, Ginsburg and Souter dissented, with Breyer's taking the unusual step of reading his dissent from the bench for 20 minutes, saying "Its not so often in the law that so few have changed so much." accusing the majority of misreading the Brown decision. Their strong decent through a spotlight on the fact that unlike Earl Warren's court, this was a 5-4 dcision, truly a 4-4-1 decision, and they sought to attack this credibility.
Chief justice Roberts responded to Breyer's dissent as an exagerration. judge Thomas took it a step further, saying that 'Bryer's good intentions will last as long as his tenure'. John Paul Stevens wrote a dissent saying that 'not a single member of the 1975 court on which he started would have approved of this decision, a clear inference that the court had gotten even more conservative under Roberts than under Renhquist. In Supreme Court terms, this was a smackdown and far cry from the united court that in 1954 that kept its differences quiet and issued its brown decisiion and several reinforcing decisions afterward.
What is fascinating about the decision is how much history plays a role. for Chief Justice Roberts, he drew a line from this decision directly to Brown and said he felt that he was completely in compliance with Brown. He even read a statement from a brown lawyer that said that "no state may make a law that to use race as a factor in affording educational opportunities among its citizens" He may not have count on the man who said that "Robert l. Carter, now 90 years old, saying he his view was being stood on its head. Another lawyer from Brown , William T. Coleman called the opinion 'dirty pool.' And the justices in dissent also used history, saying the case had overturned the settled law of Brown and cases afterward. I find all of this fascinating from a historical point of view.. because it shows the uses and sometimes misuses of history - especially a complete time warp from one historical event to another 50 years prior without consideration of intervening events.
WAS BROWN OVERTURNED?
Did Parent's Involved in the Community really overturn Brown? Not exactly. Justice Roberts specifically stated in his decision that school districts may use racial tests to remedy deliberate segregation, the essential ruling of Brown. It is still illegal, obviously in this country to have black and white schools. What it does effect however is the remedies that came well after Brown. But to understand the Seattle and Louisville decisions; its worthwhile to look at what happened after Brown.
You cannot understand what happened between Brown in 1954 and Parents v Seattle, without thinking of about at least eight other cases: Brown II, Cooper, Green, Montgomery, Swann, Miliken, Bakke and Grutter, and to look at what happened after that moment when the court handed down its decision so you know where Parents fits in.
After the Brown decision, Per the Eisenhower justice department instructions, the Supreme Court, again unanimous and again written by Earl Warren said in what's called the Brown II decision that given that segregation is illegal, school systems "must correct segregation with all deliberate speed." not surprisingly schools in the South were in an uproar. many refused to participate. In Louisiana, schools attempted to simply reorganize their public schools as private ones, invalidated by the court in 1962 in Hall vs. St. Helena Parish school board.. Prince Edward County, VA closed its public schools entirely for five years, until the court in Griffin vs. Prince Edward county ordered them to open. In Little Rock, Arkansas, after a problem with admitting 9 black students to Little rock High, Eisenhower sent federal troops to escort students and restore order. The Little Rock School Board, wanting to comply but under pressure.. then tried to get out of it saying they wanted to desegregate, tried to, but public opinion would not allow.. and so in 1958 Earl Warren wrote another "shot across the bow" opinion in Cooper v. Aaron stating that no, they cannot, Brown is the law and districts can't just ignore it.
In fact, in addition to many historic rulings, Earl Warren spent much of his career on the Supreme Court putting out fires related to Brown. A 1968 decision, 14 years after Brown, in Green vs County School board. indicated that schools could not comply with Brown by a 'free choice system.' alone. and in US VS. Montgomery, the Court upheld a desegregation offer insisting on a ratio of races for each school. If schools were located in separate areas and needed to be integrated, busing became the only possibility and many district courts were ordering it.
SWANN DECISION
It was not until 1971, two years after Earl Warren had retired and Nixon appointed Chief Justice Warren Earl Burger to the court (yes, we strangely went from Earl Warren to Warren Earl), that the Court faced a decision that is probably more relevant to the decision of today, and that is the Swann vs. Charlotte-Mecklenburg decision. The Charlotte -Mecklenburg School District of north Carolina was segregated despite many court orders. After orders were not heeded, and the school stalled on its own plan, The district court judge their ordered busing of black students to the white school so the population would reflect 9 to 33 percent black vs. white. In another unanimous decision. The Berger Court affirmed unanimously the district courts right to order busing. But Warren Berger was quite different from Earl Warren. Rather than insist on unaminimity; Berger actually was against Busing, but switched so that he would not be on the losing side and could write the opinion limiting its scope.
MILLIKEN DECISION
But just three years later, a more divided court would put a limit on the Swann decision, ruling in Milliken versus Bradley that busing could not be used to bring students from Detroit into the suburbs and vice versa. And that is where the court system in effect left Brown. Integration was for inside school districts only. This meant that while segregated districts had to integrate by busing if necessary, the Brown decision was not seen as a mandate to totally integrate society. This meant that the Brown decision would effect the South more than the North. Brown could only correct de jure - or purposeful segregation. Not de facto or segregation that occurs somewhat naturally, of course aided by whites moving out of suburbs.
This is the context that we must understand the Parents Involved in the Community Schools vs. Seattle School Board cases. Brown did not integrate all the schools in the land; it simply made, after two decades, forced segregation impossible. Milliken ensured that Brown would not represent a first step in a building movement to integrate schools, but would be fairly limited to the dynamics of the Topeka and joined cases.
After Milliken, school cases would not dominate the courts agenda and by the 1970's most school districts were in compliance in their intra-district plans. Then the battle shifted to higher education a Vietnam Vet and trained engineer named Allan Bakke came back from the war and decided he liked medicine. Bakke who was white, applied to the University of Davis Medical school....
MR. BAKKE GOES TO SCHOOL
in 1973 and 1974, UC Davis used a system where there were a group of seats reserved for minority students which used lower test scores. And when Bakke applied, was rejected, and found that a lesser test score than his from black applicants resulted in an acceptance, he sued. And in the 1978 decision of board of Regents of the University of California vs. Bakke, the court ordered the university to admit Bakke, found the quota system employed in the 1973 and 74 years violated Bakke's constitutional rights, but did not agree with a lower court that said that race could not be used at all Bakke is interesting though though because it was another plurality decision. Where 4 of the justices concurred, 4 justices dissented, and 1 justice, Lewis Powell decided to declare the Medical School policy unconstitutional and allow entrance to Bakke, making him part of the majority. But he then decided to set up a constitutional test that the other 4 who made up the majority did not agree with but which the dissenters did.. making it a real strange case. However, Powell's test became officially the opinion of the court and law of the land because without his vote the majority decision would not be a majority - similar to what's happening here in Parents with Anthony Kennedy - and interestingly enough Kennedy replaced Powell. Powell's decision said that scrutiny must be applied to any racial preference, saying that it was ok to consider race among other factors, but the test is does it serve a compelling interest and one compelling interest is diversity in the student body.
SANDRA DAY OCONNOR AND THE TIME OUT
The next case to understand is Grutter vs. Bollinger, the case of 2003, better known as The Michigan University Law Case. The Michigan law school considered GPAs, LSAT, score, personal statement, letters and essay in admissions. Another factor was - did the student increase 'diversity' the law school did not define that as racial diversity, though the university itself had a goal of reaching "critical mass" of racial diversity. but cleverly not defining a number. In a narrow decision, With Sandra Day O'Connor as the deciding vote, the Supreme Court upheld what the Michigan law school did. O' Connor said that racial consideration must be 'narrowly tailored' and fit a 'compelling government interest.' That was merely fitting into Powell's test. But she also held that there must be a time limit to race programs, and trusted that Michigan would time out.
In his descent in the Parent’s case, Breyer accused the majority of silently overturning Grutter without saying so, a charge Roberts denied. But it is clear the Court did.
SO WHAT DID PARENTS OVERTURN?
With the Brown II Cooper, Green, Montgomery, Swann, Miliken, Bakke and Grutter decisions considered, the Parents decision can now be seen as proponents or opponents would like to see it as a line between Brown and itself, but as a zig zag between the decisions of a changing court and now three in a row lone-holdout decisions. Given that, the opinion of the 4 justices to end all race consideration in education seems to be a bit hasty.
After reviewing these cases, I can see that Sandra Day O’Connor did a service to the further goal of racial balance in education in her decision, a and I must agree with that her take on how to handle the issue in the current time. It is her case, Grutter, and not Brown that has been chipped away at and that save Kennedy's concurrent position has been wiped out. I think there must be a point at which racial consideration ends. To that end thought, the history of cases since Brown shows that the Court itself will change and adapt and provide this time out. Or a time out might have been defined directly by the Court in a decision. I see merit in the Kennedy opinion, and I think others will, and remember that any challenge that come to the court again involving the Parent's case, sans Court member changes, will essentially be a petitioner arguing to Kennedy. Race can still be used in attendance zones. though are still problems if the problem is that schools are lopsided, how do you make an attendance zone that integrates? If a school has a spaghetti-shaped zone, we may see that issue come before the court.
Some people who like this sort of commentary also enjoy this podcast:
My History Can Beat Up Your Politics Podcast