The Many Confusions of Brown v. Board

The form of the opinion in Brown v. Board of Education is curious. The opinion’s lack of parsimony and its reliance on social science evidence regarding the impact of segregated schools are bewildering. Ironically, if the Court simply mirrored the form of constitutional argument it used in the lesser known companion case of Bolling v. Sharpe, which was decided the same day as Brown, not only would Brown have a better legal argument, it would have presented a pedagogically better argument as well.

The Brown opinion’s lack of parsimony is most puzzling. It misses the legal point by, apparently, attempting to make a policy argument. The problem starts with the curious way in which the Court framed the question in the case: “Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other ‘tangible’ factors may be equal, deprive the children of the minority group of equal educational opportunities?”

Comparing the question’s phrasing in Brown to the more traditional phrasing of the question in Bolling highlights the oddity of the Court’s choice in Brown. Setting aside the important but unrelated issue that the Court applied the Fifth Amendment in Bolling rather than the Fourteenth Amendment (because Bolling dealt with segregation in DC schools, so the Fourteenth Amendment did not apply) the Court framed the issue applying a traditional means-ends test familiar to even casual students of American constitutional law. The Court asked simply whether “segregation in public education is … reasonably related to any proper governmental objective.” Racial animus being an illegitimate governmental objective, the Court struck down racial segregation in DC schools.

Simple and clear.

Adapting the due process language from Bolling to the equal protection question asked in Brown, the Court could easily have asked whether the classification of the students was reasonably related to any proper governmental objective. Racial animus, again, being an improper governmental objective, segregated schooling would be perforce unconstitutional whether it had a detrimental impact on the education of minority children or not.

To be sure, Bolling’s ostensible “reverse incorporation” of equal protection via the Fifth Amendment due process clause is another matter. But given the application of the due process question, the two-pronged, means-ends test, and the evidentiary burden of proof being placed on the government to justify any discriminatory classification, is straight forward. And provides a straight-forward answer that does not rely on conclusions from any social science research.

In framing the legal question in Brown as an empirical question about whether segregation deprived children of equal educational opportunities, the Court missed the pedagogical opportunity to instruct the nation that when governmental classifications touch on race, it’s not a matter of whether the discriminatory classification measurably hurts someone or not. The government bears the burden of proof. It needs to prove that the purpose of the classification is legitimate (compelling in today’s judicial language) and the government bears the burden of proving that the classification attains its purposes (or is necessary to obtain the purpose in today’s judicial language).

The Court summarized in Bolling what was traditional jurisprudence even at that time, “Classifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions, and hence constitutionally suspect.”

So why did the Court in Brown then aim to answer a more-complicated, empirically-based question which the law at the time did not require it to answer?

One reason might have been that the justices thought striking down legal segregation on the basis of a failure to meet the burden of proof was too weak of a legal reed on which to rest such a propitious decision. If so, that was a missed opportunity for the Court, both legally and pedagogically. The mode of the Court’s reasoning in Brown suggests a weaker policy position relative to Bolling. Worse, it logically implies that segregation is permissible unless discrimination has some measureable, negative impact of racial minorities!

A different reason for the Court’s use of empirical studies in Brown might be that it aimed to answer a crucial empirical claim relied on in Plessy v. Ferguson to sustain the constitutionality of state-required racial discrimination. The majority wrote, “[E]very exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion for the public good, and not for the annoyance or oppression of a particular class.”

So far so good. The majority then advanced this empirical claim:

We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

In his dissent, Justice Harlan pointed out the disingenuousness of the majority’s claim. Harlan in essence articulated the two-pronged, means/ends approach to racial classifications, one in which the government has the burden of affirmatively establishing the legitimacy of need for the discriminatory classification.

Harlan had the better approach compared to the Court sixty years later in Brown. As in Bolling, Harlan simply pointed out that the governmental objective at issue in Plessy was constitutionally invalid.

While the Court in Brown might have thought it was advancing persuasive policy arguments to end racially segregated schools, the irony of Brown and Bolling being companion cases is that the more-parsimonious argument in Bolling is the more persuasive argument relative to the policy-oriented argument in Brown. More importantly, it is better in terms both of constitutional jurisprudence and for purposes of civic pedagogy.

Reader Discussion

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on January 15, 2018 at 06:33:32 am

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on January 15, 2018 at 10:38:29 am

Nice take. I liked Harlan's opinion in Plessy that I named my first son after him.

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on January 15, 2018 at 17:22:16 pm

Let's say the black school and the white school are educationally identical. They have equally good teachers in all subjects and equally well-funded classrooms in all subjects. They have equal disability-access, equally qualified psychologists to deal with school tragedies, etc.

But even with all of this, the average SAT score at the black school is 100 points lower than the average white SAT score (as is the case today nationally). The black kids are literally going to class with people who are less-intelligent or less-educated than the white kids are. But the smarter the other people in your class are, the harder you work (social facilitation). So the black kids are disadvantaged, even if they don't know it, because they've never been in a situation with smarter kids that caused them (subconsciously) to work harder.

Is there school environment still "equal"? Or does an "equal school environment" mean that the average graduation rate, suspension rate, and teenage-pregnancy-rate of the students in the class must be about the same? If the women at the black school are more likely to give birth and dropout, is the school environment really "equal"?

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Dave Rues the Day
on January 15, 2018 at 17:53:49 pm

I think the problem with the idea of "equal" schools is not realizing that even when all the kids are the same race, parents pick the school based on the perceived grades, crime rate, and pregnancy rate at the school, i.e., the quality of the peer group. There's just no denying that people who have daughters will send their kids to the school with the lowest pregnancy rate, and the people who have sons will send their kids to the school with the lowest crime rate (hoping their son won't join the criminals).

Blacks on average nationwide have lower grades, higher suspension rates, and higher pregnancy rates than whites and hispanics. So two schools that are racially-segregated, the black school will have the "worser" statistics and the "worser" peer group--even all other things being equal, and the parents will want to send their kids to the white school, because it is "more equal" than the black school. The only way to equalize the schools is to equally distribute the pregnant teens, the law-breaking teens, and the IQ teens to each school--so that they all have the same peer group.

The Asian school will have even higher grades, lower suspension rates, and lower pregnancy rates than the white school. Asians are even more equal than the more equal whites. And it is this increased equalness that parents notice when picking schools.

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Shadow Dossier

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