| Book Review | Law and History Review, 23.2

Book Review

Robert J. Cottrol, Raymond T. Diamond, and Leland B. Ware, Brown v. Board of Education: Caste, Culture, and the Constitution, Lawrence: University Press of Kansas, 2003. $25 cloth (ISBN 0-7006-1288-2); $15.95 paper (ISBN 0-7006-1289-0).

As the three authors of Brown v. Board of Education note, no case has more iconic stature than Brown. No one can be taken seriously if that person believes the case was wrongly decided. The opinion itself can be and has been criticized, but not the result. The authors see no reason to criticize either, and their contribution to the University Press of Kansas series on Landmark Law Cases and American Society places Brown in context and salutes all concerned.

The authors start with segregated schooling in 1848 Boston and end in the present. While much of the story evolves around the actual litigation in Brown, there are excellent chapters on early twentieth-century segregation, changing social science theories, and litigation over race from the end of one world war through the next. Additionally the authors are fully aware of the changing cultural and intellectual climate as the country progressed to mid-century. Finally, there is a brief nonchronological survey of the aftermath of Brown into the era of busing.

The authors are at their best in describing segregation and the caste system it created and illuminating the changes in American culture that impacted on race. No one reading the book would come to the erroneous conclusion that law is self-contained and unaffected by the external forces impacting the rest of society. Like all books in this series, the authors spend a lot of time on the briefs, oral argument, and the internal debates of the justices. Unlike most of the other books, this time is well spent. The briefs, arguments, and debates are vastly better than the intentionally short opinion of the Court where Earl Warren fused the dual goals of holding nine votes and saying nothing that might rile the white South.

The most interesting feature of the book is that the authors take seriously the "modern" social science evidence introduced at trial (and cited by the Court in the [in]famous footnote eleven) to show that segregated schools stigmatized African-American children. From 1956 on, the literature on Brown has been skeptical about the social science both because it seems flimsy and because it carries the implicit point that if the findings were reversed, then segregation would be constitutional again (as a federal court in Georgia found in 1963, relying on different social science). The authors, while aware of these concerns, believe that the evidence was essential because the relevant question for a hundred years had been what does segregation do to African-Americans? This could best be answered by social science experts; hence the relevance of the evidence, especially that of Kenneth Clark and his doll experiments, in footnote eleven.

With small samples, no control group, and "heads I win, tails you lose" interpretive alternatives, this was junk social science (even before the results turned out to be more pronounced for African-American students in the North). Even the NAACP lawyers were uneasy about this evidence, but when South Carolina's lawyer tried to bait the Court by panning the studies, the justices listened in silence. At its very and unskeptical best, the evidence could justify ending segregated schools, but not segregated golf courses.

There is an alternative dispositive question that does not require basing constitutional rights on changing social science. That question asks why the white South disenfranchised African-Americans and then created and maintained segregation. This is a historical and political question whose answer would not change with recreational facilities or if the children suddenly switched their choices of Clark's dolls, and the authors' emphasis on caste answers the question.

A further possible reason for the emphasis on social science evidence is the authors' claim that Brown is a "rich" opinion. That conclusion is absurd; the opinion is, at best, flat and virtually devoid of legal reasoning. Perhaps the conclusion that Brown is "rich" is not inexplicable if one is enamored by the use of the modern social science findings.

What is inexplicable is the failure to deal with Gerald Rosenberg's The Hollow Hope, which is not even cited in a fairly extensive bibliography. Its thesis, that litigation is a false hope and that Brown had little effect on school segregation or even the adoption of the Civil Rights Act of 1964 (which did effect school desegregation) is controversial and important—as shown by its receiving an American Political Science Association section award for scholarly impact of a work at least ten years old. The authors clearly reject Rosenberg's thesis (and do not deal with an alternative found in Michael Klarman's From Jim Crow to Civil Rights and my The Warren Court and American Politics) that Brown reenergized hard-line segregationists who in turn acted in ways that forced the North and therefore the Federal Government to rally to the cause of civil rights. These are important and contested understandings of Brown and they should not have been ignored no matter what the intended audience.

Finally, the book contains an irritating number of errors. To cite just three, the authors move Marbury to 1804, have Chief Justice Vinson joining a majority opinion two years before he was appointed to the Court, and, with Jackie Robinson desegregating baseball, demote Branch Rickey from the Dodgers' general manager to its manager.

Even with these criticisms, if I were teaching an undergraduate course and needed a book on segregation and Brown to assign, Brown v. Board of Education is the book I would choose. It is succinct, readable, and conveys the basics of the era very well.

L. A. Powe, Jr.

The University of Texas

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