By Linda Carty and Paula C. Johnson

It has been 50 years since the United States Supreme Court decided Brown v. Board of Education. The Brown decision was an acknowledgement that educational institutions in the United States were not only separate based on race, they were also unequal. This segregation meant that African American and all other children who were not white experienced unequal access and unequal opportunity in educational systems. In noting the historical significance of this landmark decision, Syracuse University and the Syracuse community will commemorate the 50th anniversary of Brown v. Board of Education. This is fitting, as educational institutions at primary, secondary and university levels provide the gateway to knowledge, skill, and participation in virtually every area of civic life. As the Brown Court stated in 1954, “[Education] is the very foundation of good citizenship.”

Thus in reflecting on Brown at this half-century mark, several important questions must be raised, including: What was the decision really about? What changed in the social landscape immediately following the decision? What has happened in education, specifically, since the Supreme Court’s ruling? And perhaps most importantly, based on the last 50 years since Brown, what are the prospects for the end of racial discrimination and, in fact, segregation in the United States? We attempt to address these issues only briefly here; in doing so, however, we hope to provide valuable insight into the implications of 50 years of Brown.

Of course, Brown was much more than an education case. Historians have likened its significance to the great socio-legal changes during the Reconstruction era following the Civil War. This era witnessed the passage of the 13th, 14th, and 15th Amendments, and the Civil Rights Acts of 1866 and 1875, in response to “Black Codes” that southern states implemented to limit African Americans’ participation in American society. As a package, these provisions were intended to provide full citizenship, racial equality, legal rights, legal protection and equal opportunity to formerly enslaved Americans of African descent. Despite the promise of these constitutional and legislative measures, Reconstruction era reforms failed miserably when state and federal governmental institutions, including state and federal courts, reneged on their obligations to enforce these provisions. As a result, while formerly enslaved Blacks were ostensibly free, life under the Black Codes was tantamount to re-enslavement, as their rights to citizenship, voting and other political participation, economic opportunity, and educational opportunity were not recognized by law or custom.

The societal context of the Brown decision in 1954 parallels Reconstruction in that despite grand legal pronouncements on racial equality, both eras suffered from lack of political, institutional and individual will to enforce rights and opportunities for people of color. In a more contemporary setting, Brown is significant as giving renewed momentum to the U.S. Civil Rights Movement, leading to key legislation such as the Civil Rights Act of 1964 and the Voting Rights Act of 1965. Hence, the Supreme Court’s Brown decision generated optimism that racial barriers would be dismantled throughout society – in housing, employment, and political participation, as well as in education. In addition, the innovative legal strategies employed by the NAACP lawyers in Brown have been replicated by many modern social justice movements in furtherance of broad social inclusion. Contemporary women’s rights, gay rights, disability rights, to name a few, all are influenced by the litigation strategy, legal analysis and remedial scheme of Brown.

Race, or more specifically racism stemming from racial hierarchy and racial subordination, has been salient and intractable facets of American society since the nation’s founding. Hence, the U.S. Supreme Court’s unanimous decision in Brown v. Board of Education was a pivotal moment when the highest constitutional authority in the country declared an end to state-sponsored racial segregation and inequality in public education. Initially, it is important to note that Brown v. Board of Education is the name of five consolidated cases from Kansas, South Carolina, Virginia, Delaware and the District of Columbia. The four state cases were brought under the 14th Amendment Due Process and Equal Protection Clauses; the case from the District of Columbia was brought under the 5th Amendment Due Process Clause, as the 14th Amendment only applies to states. Although the other plaintiffs often get lost in the historical account, their contributions and sacrifices toward this effort were great and lasting. They risked their lives, homes, jobs, and property to gain the guarantees of fundamental equality and opportunity in their own society.

Also, while reflections frequently focus on the legal significance of Brown, racial segregation was never about law as law. Instead, law was just another – albeit very significant – social instrument that reinforced the ideology that deemed whites superior to all other racial and ethnic Americans. This ideology was particularly pronounced in the Jim Crow South, where the belief in Black inferiority was virulently inscribed in every public and private realm of life and absurdly adhered to by strict rules of racial separation. In public education, racial inequities were reflected in the disparate allocation of public resources for white and African American school children. In the early 1950s, for example, African American school children comprised three-quarters of the student population of Clarendon County, South Carolina; however white students received over 60 percent of educational funding. Further, in Clarendon County, per capita spending was $179 per year for white students and $43 per year for African American students; the teacher-student ratio was 28:1 for whites, and 47:1 for African Americans.

Next, it is important to note that Brown was not the first legal challenge to racial segregation in public education to reach the Supreme Court. However, the previous cases did not directly challenge the doctrine of separate but equal in public education. For instance, in Cumming v. Richmond County Board of Education (175 U.S. 528 (1899)), African American taxpayers sought to enjoin the operation of a high school for white children until the school board provided a high school for African American children. However, the Court in Cummings refused to interfere with the Richmond County school board’s decision to provide a high school education for whites but not for African Americans. In Gong Lum v. Rice (275 U.S. 78 (1927)), petitioners argued that the state of Mississippi had wrongly applied the doctrine of separate but equal to Chinese American students by classifying them with African American children under the segregated public school system. Again, the Supreme Court did not disturb the state’s decision.

The Supreme Court heard four other education cases prior to Brown. These cases challenged unequal treatment and access to graduate and law school programs accorded to African American students. NAACP attorneys brought these higher education cases before Brown in a strategy to systematically dismantle the legal bases for racial inequality in the United States. In these cases – Missouri ex rel. Gaines v. Canada (305 U.S. 337 (1938)); Sipuel v. Oklahoma (332 U.S. 631 (1948)); Sweatt v. Painter (339 U.S. 629 (1950)); McLaurin v. Oklahoma State Regents (339 U.S. 637 (1950)) – the Court found that African American students were denied equal benefits enjoyed by white students having the same educational abilities.

Gaines was a key decision in which the Supreme Court required the University of Missouri to provide a law school for African Americans that was substantially equal to that which the state provided white law students. In this regard, the Court emphasized the “equality” requirement in the “separate but equal” doctrine. Similarly, in Sipuel, the Supreme Court ordered Oklahoma to provide an equal legal education to the African American woman whom the University had denied admission to the state law school. Oklahoma flouted the Court’s ruling when the state university admitted an African American man to the graduate program in education, but ostracized him in the most inhumane ways. The school made him sit in the hall outside the classroom and at separate tables in the library and dining room. There was no interaction with peers or professors. The Supreme Court unanimously found that this egregious treatment violated the Equal Protection Clause. Still, it was not until Sweatt v. Painter in 1950 that the Court intimated that the doctrine of separate but equal was legally and practically unsound and indefensible. In Sweatt, the Court found that the separate state law school created for African American students did not compare in quality to the racially exclusive University of Texas law school.

Other significant legal challenges to segregated public schooling did not reach the Supreme Court. For example, in Méndez v. Westminster (1946), five Latino families sued several school districts in Orange County, Calif., for racially segregating their children. Indeed, Méndez presaged Brown in its use of social science research to demonstrate the impact of racial segregation, and in finding that the segregation of Mexican Americans in public schools violated state law and the Fourteenth Amendment Equal Protection and Due Process Clauses. The Méndez case resulted in successful abolition of segregated public schools in California. The case also applied to judicial decisions in Texas and Arizona.

The earlier cases methodically chipped away at the separate but equal doctrine, leading to Brown, which provided the direct assault on the doctrine and required the Supreme Court to confront legal precedents and cultural messages established long ago in Dred Scott v. Sandford (60 U.S. 393 (1857)) and Plessy v. Ferguson (163 U.S. 537 (1896)). Together, Dred Scott and Plessy represent two of the most important and notorious decisions in U.S. constitutional history. In Dred Scott, Chief Justice Roger Taney declared that no African Americans, slave or free, had rights that were recognized under the U.S. Constitution. Although the Dred Scott decision was overturned by passage of the 13th Amendment in 1865, its cultural currency regarding racial hierarchy and the second-class or non-citizenship status of African Americans lasted long after the official reversal.

When African Americans obtained constitutionally recognized citizenship rights, Southern (and Northern) states adopted Jim Crow laws to enforce racial separation. The Supreme upheld such practices in Plessy v. Ferguson. The Court found that the 13th Amendment did not apply to the Black petitioner’s claim, and that the Equal Protection Clause of the 14th Amendment was not violated by state laws depriving African American citizens of equality in public or private accommodations or services, as long as the facilities were “separate but equal.” The Plessy case involved a Louisiana state law that required private railroad companies to transport African Americans and white citizens in separate cars. Yet, the case significantly forecast the issues later addressed in Brown when the Court compared transportation to education as the reason to maintain racial segregation and racial inequality.

In announcing the Brown decision on May 17, 1954, the Supreme Court finally concluded that:

[In] the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.

With that, the Supreme Court and the nation finally laid to rest the ignoble history of racial segregation at all levels of public education and by extension, all other areas of American life. Or so it appeared. The years after the Brown decision brought tremendous social upheaval as the civil rights movement gathered force and the violent reaction of many whites to these changes produced vehement acts of intolerance. Despite its unanimous and sweeping nature, the Court was not finished with Brown in 1954. In order to forge a unanimous opinion, Chief Justice Warren agreed to divide the case in two. Brown I, outlawing separate but equal public education, was decided in 1954. Further hearings were scheduled on the remedial scheme to implement the 1954 ruling. Known as Brown II, this decision resulted in the Supreme Court’s order to desegregate the public schools “with all deliberate speed” in 1955. However, the Supreme Court’s vague call for “all deliberate speed” in essence meant no speed at all. Thus, well into the current century, we continue to deal with lasting inequities flowing from the Court’s capitulation to Southern governments’ antipathy toward the remedies called for in Brown II.

Furthermore, despite calling for the demise of racially separate education, the Brown decision is based on questionable assumptions. Brown I, for instance, rests on the dubious claim that racial segregation inured solely to the detriment of Black children. In a material sense, African Americans were disadvantaged by unequal funding, resources and facilities for education. Also, there is no question that numerous African Americans internalized others’ beliefs in their inferiority. However, the growth of African American societies and institutions for self-affirmation and to blunt the force of Jim Crowism belies the notion that African American were preoccupied with desire to intermingle with whites as the basis for their own self-worth. Instead, W.E.B. DuBois, Malcolm X, and others have noted the absurdity of this notion. Writer James Baldwin pointedly observed, “A child cannot learn from someone who despises him.” Plessy, then, was premised on the profoundly disingenuous assumption that racial segregation in America carried with it no harm. This clearly was incorrect. Yet, when Brown overruled Plessy, it was premised on the equally suspect assumption that the harms associated with segregation were inherently injurious to African American children. This, too, was incorrect as an exaggeration of the impact of racial segregation on African Americans’ intrinsic sense of self-worth and racial identity.

Secondly, the remedial scheme in Brown II was a compromise that left near-total discretion in states to implement or not implement the order to create unitary public school systems. Where the decision was carried out, it generally occurred under begrudging circumstances. Thus, even where violence (such as in Little Rock) did not accompany white resistance to the Brown order to desegregate, implementation nevertheless was thwarted by every means. Busing to achieve school integration provides the starkest example of this phenomenon.

The Supreme Court itself made fulfilling its order in Brown II extremely difficult by predicating enforcement of desegregation decrees on the basis for racially imbalanced school systems. In this regard, the Court distinguished between de jure racial imbalance – which results from intentional policies of racial segregation as expressed in state laws or other intentionally discriminatory practices – and de facto racial imbalance – which results from segregated residential patterns. The former is deemed to be the product of constitutionally impermissible discrimination, while the latter is considered the product of constitutionally permissible discretion for purposes of devising school districts, school busing programs, and related determinations.

The arbitrariness of de facto and de jure designations was pronounced in cases such as Milliken v. Bradley (418 U.S. 717 (1974)), in which a divided (5-4) Supreme Court ruled that Detroit area suburbs were off limits for crafting a solution to racially segregated school patterns in the City of Detroit. The school systems in suburban Detroit, which the Court in Milliken permitted school officials to exclude from the plan to desegregate Detroit’s inner-city schools, were unitary systems because their overwhelmingly white character had resulted from residential patterns rather than from an official policy of school segregation, i.e., they were de facto rather than de jure. Milliken signified the Supreme Court’s retrenchment in asserting the staunchness of its Brown decision. Rather, the Court’s denial of inter-district remedies for racial segregation in urban public school districts encouraged the proliferation of suburban flight by middle-class white families, thereby eviscerating the central goal of Brown to integrate the nation’s public schools, not just those where housing patterns serendipitously or by default resulted in racial integration.

Thus, for Brown to have worked in its broadest sense necessitated government policy addressing inequality in housing, employment, social welfare, health care, the legal system, and many other realms of society. Because this did not occur, it is no wonder that today, fifty years after the decision, we face the enormous irony that life for Blacks in the U.S. has scarcely increased beyond pre-1970 levels (in some cases pre-1960), indicating living standards that have either not improved or have declined dramatically.

In January 2004, the nonprofit organization United for a Fair Economy (UFE) published a report, The State of the Dream 2004, which it compiled from U.S. Census and Federal Reserve data. The data are quite disturbing and show that the perceived success of the civil rights movement must be questioned. For example, in 2003, the unemployment rate among Blacks, at 10.8 percent, was more than twice that of whites, at 5.3 percent. This is higher than it was 30 years ago in 1972. Black infant mortality rates in 2001 were 146 percent higher than those for whites. In 1970 that gap was 37 percent lower. In 1968, the income gap between African Americans and whites was 45 cents; while in 2001, thirty-three years later, it was closed by 2 cents. African Americans earned 57 cents for every dollar whites earned. The UFE report points out that at this pace income parity between African Americans and whites would take 581 years!

While African Americans made some immediate gains in education as a direct result of Brown, because Brown cannot be viewed in isolation from the other necessary measures to address inequality in society, we note that on closer examination many of those early educational gains have recently been lost. Indeed, some indices have fallen below levels that preceded Brown. The Trends in College Admissions 2000 Survey showed a decline in Black achievement in education. For example, the percentage of all Black students who were accepted for admission at a four-year state institution and who eventually enrolled in 1985 was 59 percent. In 1999, that number was only 37 percent. It is worth pointing out that over the same period, the average number of applications received by four-year state colleges and universities in the country from Black students increased as did those to four-year private universities.

This increase in applications must be juxtaposed with the increasingly high attrition rate of African American students at many of the nation’s prestigious universities, which stands at approximately 65 percent. If we were to add the attrition rate for Black athletes this would be much higher. Most NCAA universities refuse to release attrition rates for athletes; however, an NCAA study in the 1990s showed that nearly 75 percent of Division I Black athletes failed to graduate. The high attrition rates also are clearly related to the decline in the number of Blacks who teach at the college level.

In Winter 2002-03, The Journal of Blacks in Higher Education (JBHE) reported that from 1993 to 1997, Labor Department statistics showed a huge 52 percent surge in the number of Blacks teaching at the college level, going from slightly more than 37,000 to 56,485. This was due mainly to many Blacks being hired at the part-time and adjunct levels as colleges and universities showed a rise in the use of instructors of all races at these levels across the country. Since 2000, however, there has been a steady decline in the number of Blacks teaching at the college/university level. Some may claim that this decline is related to a slowdown in the economy and an exacerbation of economic stress in the post-September 11, 2001, period. As JBHE suggests, however, in light of a White House and U.S. Attorney General who are actively opposed to many affirmative action proposals that have historically helped Blacks in education, many colleges and universities have concluded that the climate is conducive for retreating on equal employment opportunities. Even following the Supreme Court’s recent decision upholding race-based admissions, the nationwide attack on affirmative action has eased pressure on colleges and universities to increase their numbers of Black students and faculty. The Harvard Civil Rights Project recently released a study that underscores our point that many gains that Blacks made in education between the decision in Brown and 1988 have since been lost. The primary author of the study, Gary Orfield, notes, “We are celebrating a victory over segregation at a time when schools across the nation are becoming increasingly segregated. . . We are not back to where we were before Brown but we are back to when King was assassinated.”

In his book, Two Nations, sociologist Andrew Hacker points out that Black professors hold less than 5 percent of faculty positions; this was still the case in 2001. Furthermore, of all the doctoral degrees awarded in 1990, just 3.5 percent went to Blacks. Because education has a causal effect on earning power, there is a corollary racial income gap in this society. In the mid-1990s, Hacker showed that Black college men end up just a few dollars ahead of whites that attained only a high school education. He pointed out that from 1939 to 1959, the earnings of Black men relative to whites improved by over one-third. But from 1972 to 1992, the period of enforced affirmative action, these relative earnings of Black men tapered off. For as long as unemployment data have been kept in this country, African American rates historically have been at least twice those of whites. Hence, there is clearly a pattern of Blacks losing ground at all levels of the education system and this has negatively affected their employment and earning power. African Americans also have lost ground in other areas in society since the Brown decision and since the post-Civil Rights period.

As the foregoing discussion has revealed, Brown raised many expectations, but left much undone. For these reasons, we are less inclined to celebrate this 50th anniversary of the decision, than to commemorate the significance of what it could still mean for this society and all of the children of color who have been shortchanged by empty promises of educational equality. As the Harvard Civil Rights Project has documented, in recent decades, children of color, particularly African Americans and Latinas/os, attend substantially segregated and poorly funded primary and secondary schools. Moreover, the courts have increasingly foreclosed effective remedies to these problems. One notable exception is the 2003 New York Court of Appeals decision requiring equitable funding allocations for public schools throughout the state.

Furthermore, as members of racial and ethnic groups, we have moved farther and farther away from each other, rather than toward the integrated society predicted when Brown was decided in 1954. Thus, in this retrospective year, we acknowledge gains in social progress and racial interaction. Despite persistent disparities, surely things are better for many people of color in American society. However, overall regression in this regard results from basic steps that have not been taken to fully realize equal educational opportunity that democracy demands.

As we look back, we must also seek the way forward and ask ourselves what kind of society do we want and how do we accomplish it? To us, it is inconceivable that equitable education for all sectors of American society can be achieved without addressing racism at all levels. If, indeed, we continue to aspire to the goals of Brown v. Board of Education, lo 50 years after the decision, we must finally invest more reality than rhetoric to ensure equal educational opportunity for children of all racial and ethnic backgrounds. If, on the other hand, we prefer to live in a separate and unequal society, let us abandon any pretense to the ideals of equality and democracy. If we choose the latter course, the moral bankruptcy of American society will be abundantly clear. If instead, we choose the former course, there will be no limits to the accomplishments and contributions that Americans of diverse backgrounds will make to the society and the world at large.

The choice is ours: Will Brown become an historic relic, trotted out every 50 years for ceremonial commemorations; or will Brown become an actualized hallmark of a fair, just and inclusive society? The good intentions of Brown alone could not change the social relations of rule in American society. However, with renewed commitment, we can decide that now is the time to do so.
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Linda Carty is Chair of the African American Studies Department at Syracuse University. Paula C. Johnson is Professor of Law at Syracuse University College of Law, and is Co-Chair of the Syracuse University Brown v. Board of Education Commemoration Committee.