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From Racial Liberalism to Racial Literacy: Brown v. Board of Education and the Interest-Divergence Dilemma
Lani Guinier
| On its fiftieth anniversary, Brown v. Board of Education no longer enjoys the unbridled admiration it once earned from academic commentators. Early on, the conventional wisdom was that the courageous social engineers from the National Association for the Advancement of Colored People Legal Defense and Educational Fund (NAACP LDEF), whose inventive lawyering brought the case to fruition, had caused a social revolution. Legal academics and lawyers still widely acclaim theBrown decision as one of the most important Supreme Court cases in the twentieth century, if not since the founding of our constitutional republic. Brown's exalted status in the constitutional canon is unimpeachable, yet over time its legacy has become complicated and ambiguous.1 |
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The fact is that fifty years later, many of the social, political, and economic problems that the legally trained social engineers thought the Court had addressed through Brown are still deeply embedded in our society. Blacks lag behind whites in multiple measures of educational achievement, and within the black community, boys are falling further behind than girls. In addition, the will to support public education from kindergarten through twelfth grade appears to be eroding despite growing awareness of education's importance in a knowledge-based society. In the Boston metropolitan area in 2003, poor people of color were at least three times more likely than poor whites to live in severely distressed, racially stratified urban neighborhoods. Whereas poor, working-class, and middle-income whites often lived together in economically stable suburban communities, black families with incomes above $50,000 were twice as likely as white households earning less than $20,000 to live in neighborhoods with high rates of crime and concentrations of poverty. Even in the so-called liberal North, race still segregates more than class. Gerald N. Rosenberg, emphasizing the limited roles courts can generally play, bluntly summed up his view of Brown's legacy: "The Court ordered an end to segregation and segregation was not ended." If Brown was a decision about integration rather than constitutional principle, Mark Tushnet observed in 1994, it was a failure.2 |
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Even as constitutional principle, the Court's analysis and the formal equality rule it yielded became more troubling in the intervening years. Presented with psychological evidence that separating black children from whites "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," Chief Justice Earl Warren led the Court to declare segregation unconstitutional. Brown's holding became the gold standard for defining the terms of formal equality: treating individuals differently based on the color of their skin was constitutionally wrong. However, once the Court's membership changed in the 1970s, advocates of color blindness used Brown's formal equality principle to equate race-conscious government decisions that seek to develop an integrated society with the evils of de jure segregation. The new social engineers on the right adapted the Warren court's rhetoric to create a late twentieth-century constitutional principle that forbids government actors to remediate societal discrimination. They changed Brown from a clarion call to an excuse not to act.3 |
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