The Journal of Appellate Practice and Process: symposium discussion.

Publication: Journal of Appellate Practice and Process

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COPYRIGHT 2004 University of Arkansas at Little Rock William H. Bowen School of Law

The following is an edited transcript of the discussion that took place during the afternoon session of "Fifty Years Later: Brown in the Appellate Courts," a Journal-sponsored symposium held on April 2, 2004, at the University of Arkansas at Little Rock's William H. Bowen School of Law. Mark V. Tushnet, Carmack Waterhouse Professor of Constitutional Law at Georgetown University, chaired the panel. Joining him were Regina Austin, William A. Schnader Professor of Law at the University of Pennsylvania; Paul D. Carrington, Chadwick Professor of Law at Duke University; Tony Freyer, University Research Professor of History and Law at the University of Alabama; Dennis J. Hutchinson, William Rainey Harper Professor in the College and Senior Lecturer in Law at the University of Chicago; and Mildred Wigfall Robinson, Henry L. and Grace Doherty Charitable Foundation Professor of Law at the University of Virginia. The footnotes have been added by the editors.

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PROFESSOR TUSHNET: We thought that one way to frame the conversation among the panelists would be to pose the quite general question about the enduring significance of Brown v. Board of Education. This morning you heard a number of probes into the question of what Brown's enduring significance is, and we thought it would be useful to have those generalized and in some ways made more speculative than we were willing to be in formal presentations.

I want to begin by framing the question in actually two and a half ways. The first way is to mention something that has come up earlier today, which is what might be called the revisionist historian's view of Brown. This is represented in political science by Gerald Rosenberg, who has written a book which many of you may have read in your undergraduate work called The Hollow Hope. (1) The subtitle is something like "Can the Courts Bring about Social Change?" and the answer is "No," or at least no in the circumstances of Brown v. Board of Education. And Rosenberg examines Brown and its effects and argues that Brown did not accomplish essentially anything significant on its own. That is, the courts couldn't bring about social change. There was some effect in terms of desegregation of the schools, but that occurred only after Congress signed onto the program, essentially in the Civil Rights Acts of 1964 and 1965, and Congress signed onto those programs primarily because of the mobilization and political effects of the civil rights movement, which Rosenberg says didn't take much inspiration from Brown itself. So he doesn't see Brown as playing an important causal role in the development of whatever degree of desegregation occurred after 1965.

Another revisionist view is posed by law professor Michael Klarman in a number of articles now collected in a book that has literally just been published in the past month. (2) Klarman's argument is that actually Brown did have an effect, but in some ways a perverse effect. It did not encourage desegregation directly; what it did was, in Klarman's telling, interrupt a gradual, probably quite gradual, transformation of southern politics in the direction of ameliorating the southern system of segregation. So, he says, before 1954, moderate southern politicians were ameliorating segregation, but what the Court's intervention did was to energize and transform southern politics so that the moderates lost out systematically to the strong segregationists. So there was an immediate backlash in the South, which stopped the transformation that Klarman said was gradually occurring.

But Klarman says that's not the end of the story because the backlash in the South involved a fair amount of violence against the civil rights movement and that violence was widely publicized in the North. And northern whites reacted to the violence that they were seeing by coming to agree with the political program of the civil rights movement. So in the end Brown contributes to the transformation--to the extent it occurred--of race relations by provoking a backlash and violent white racism that in turn produces a change in the politics, essentially in the North.

Now, a final version of this revisionist approach would be to ask what if Brown had come out differently. That is, don't remove Brown entirely from your thinking, but imagine two possible alternative outcomes to Brown. The first would be the Court saying, "Well, Plessy v. Ferguson (3) is right; separate but equal is constitutional. We haven't met equality seriously until now, but right now we're going to start taking equality seriously, and so we're going to require those states that maintain segregated schools actually to provide equal educational facilities in the schools for African Americans and the schools for whites." What if the Court had done that? What can you imagine the course of history being? Would the world look different in 1965, 1985, 2004, had that been what the Court said instead of what it did in Brown I and II?

The other what-if question is what if the Court had said, "Plessy v. Ferguson is right, separate but equal is constitutionally permissible, and basically we're not going to insist on serious enforcement of the equality requirement. Make some gestures in the direction of equality and that's going to satisfy us"? And then ask what's going to happen: What's the world going to look like in 1965, 1985 and 2004?

Obviously, doing this sort of counter-factual history is impossible, but the reason for asking the question is to bring out the possibility of or thinking about what a mobilized civil rights movement might have looked like without Brown, whether there would have been such a movement without Brown, and so on, and what its effects would have been.

And here's the sort of half question I wanted to pose, particularly the second what-if question: What if the Court had said, "Plessy v. Ferguson, and no real serious judicial enforcement, but equality"? The half question is then: Does what actually happened tell us something about the capacity of the courts to effectuate at least certain kinds of social change? And that goes back to Rosenberg's subtitle as well.

The other framing question is to note that the question of the enduring significance of Brown can be addressed in a lot of different contexts, some of which we heard this morning. What were the effects of Brown on the level, in the context, of the lives lived by ordinary people? Did Brown make a difference in the lives people lived? These questions I'm going to pose are actually not analytically sharply distinct but they may elicit some different kinds of responses.

So one, what was the effect on the personal level? Second, what were the effects more broadly in the society as a whole of Brown? And the third point is one I want to make sure we distinguish: Are there differences between the effects of Brown in the society as a whole, and its effects on education?

One of the things that routinely comes up in discussions of the enduring significance of Brown is that--the timing of this, again, is a little tricky--since the 1990s, the racial composition of urban schools throughout the country has reverted to the state that it was at in 1954 or worse. That is, if you look at the country as a whole and urban schools in particular, there are fewer--again formulating this precisely is tricky--white kids attending schools with African Americans in the nation's major cities today than there were in 1950. There are fewer African-American kids attending schools with white kids than there were in the 1950s. Obviously for the South that's not entirely accurate because the numbers then were zero, but what you want to say is they were zero in 1950, they got to be not insubstantial by 1970, and they're back to near zero today.

So if that's the story about segregation in the schools or racial separation in the schools, so as not to give it a specific legal label, what is the enduring significance of Brown for education?

And then finally I have a note about what was the significance of Brown in terms of the social meaning of race in our country? Did Brown do something permanent about the way Americans think about race?

So those are the questions I want to pose to the panel. Maybe we should start at Mildred.

PROFESSOR ROBINSON: Okay. Let me talk a little bit about what if Brown had come out differently, and I'm going to choose the B option: Plessy v. Ferguson is correct, no serious enforcement required, equality. My reaction is segregation really had matured into apartheid in this country. I think there would have been continued black migration out of regions, out of the South; it had been ongoing for some time. There were enclaves of black people living in all of the large northern cities, more isolated than anyone, I think, had appreciated at the time. But I think that those enclaves would grow and be no less isolated because de jure segregation did not exist in the North, and theoretically anybody could move in a seamless fashion through any part of society.

I think in the South, black people who were left in the South, would be similarly very isolated, segregated. The black belts of Alabama, and Mississippi, and Arkansas, because there's a black belt along the Arkansas Delta, would have been, again, emphatically even more so. It would have locked in the poorest and least well-educated black people in the South in those enclaves, and I think the situation would have deteriorated very dramatically, and it would be far worse now than we could even have imagined at that point.

PROFESSOR TUSHNET: Again, I want to pose two questions about that scenario. One is to suggest that there would have been a real difference in racial separation in the North from racial segregation in the South, the difference being that in the South the racial segregation was backed up by disfranchisement enforced by terror. And in the North there was no parallel phenomenon. That is, when African Americans migrated from the South to the North, they became full participants in the political process. And the thought, the suggestion, is the enhanced political power of African Americans located in the North would have brought about some transformation in national law, statutory law, regarding segregation. That's the first part.

The second is in the situation that you're imagining, what happens to the incipient civil rights movement? There had been some protest activities before Brown, bus boycotts in Baton Rouge, and I want to say Jacksonville, but I could be wrong about that. And what's your thought about what would have happened to the mobilization of the African-American community in the South had Plessy been reaffirmed?

PROFESSOR ROBINSON: Well, I think in my worst-case scenario, and I'll agree this is very much a doomsday scenario, you would have had some segment of the population bled off. So theoretically this would have been the most able and the most economically viable people, if you will, or a large percentage of them, who would ultimately have given up and left. So those who may have been most instrumental in bringing a civil rights movement to the fore will no longer have been in the region. It's true they would have been in some northern cities and more or less able to operate from those bases, but that's so unpredictable that it's hard to know nationally what kind of impact they may have had. It's likely to be isolated again on a regional basis. I can't see them having much effect necessarily in the West or the Midwest, for that matter. It may have made a difference in the North but not necessarily for other parts of the country.

So I'm not sure we would have had a civil rights movement that would have be very effective in the South, and this assumes there wouldn't have been very much at all. I guess I'll stop there. I don't want to monopolize.

PROFESSOR CARRINGTON: Well, I'm having trouble imagining the decision you posed. I can't imagine the Supreme Court saying, "Oh, well, Plessy v. Ferguson has got it all right." That wasn't one of the options that was on the agenda in the 1950s. Something had to give. Now, they didn't have to do exactly what they did. Maybe there were some other responses possible, but that particular aspect of it just seems to me not a real option because there was a lot of political and moral pressure to do something about segregation generally, not just about segregated schools.

PROFESSOR HUTCHINSON: Let me ask a historical question about that. Recently there's been a fair amount of attention to the foreign-affairs aspects of segregation. I'm just wondering from your standpoint, Mark or Tony, how much of a factor do you think that was? Because Phillip Elman's recently published oral history4 indicates that Elman, working in the Solicitor General's Office, was the one who asked for a letter from Dean Acheson that would be produced in the briefs in the Brown litigation to say that segregation hurts the United States overseas. The communists had exploited it for twenty years. It was tied into the whole Scottsboro affair. And then certainly, with respect to Little Rock, it was a concern for John Foster Dulles as Secretary of State. How much of a role did that play, how significant was it?

PROFESSOR FREYER: There's been a lot of work on that very aspect, but the key point is that the Soviets didn't have to lie in their propaganda campaign. And so there is no doubt whatsoever from all of the station offices--CIA, the embassies and so forth--that the United States was unsuccessful in presenting an effective rejoinder to the Soviet Union in places like Malaysia and Africa. Even when Nixon went to South America, it was used as an illustration. There's no doubt it was bad. The United States was not able to rebut it.

But the key finding of Dudziak (5) is that all Eisenhower needed to counter it was a symbolic minimalist reaction, which in Little Rock was the 101st Airborne. In other words, that use of force had incredible symbolic power which everyone could understand. And the Soviets were put in a position of having to rebut it. Using force in your own country and this kind of thing, but it was minimalist.

And that really goes to this other point that was raised that Eisenhower didn't like Brown, and he said Warren was the worst mistake he had ever made. All of that is true, but it's also really important to remember that the counter side is what was the most he had to do? He wasn't concerned as much about Little Rock as Little Rock; he was concerned about what Little Rock meant internationally. And what it showed him internationally is that he didn't have to do very much from the...

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