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February 19, 2004

50 years later: Revisiting Brown v. Board of Education

Derrick A. Bell

Derrick A. Bell

The Supreme Court decision that outlawed public school segregation is “irrelevant” in today’s society and its benefits for blacks mostly symbolic, a noted legal scholar and trial lawyer said here.

Derrick A. Bell, visiting professor of law at New York University law school and a 1957 alumnus of Pitt’s School of Law, was the keynote speaker at the law school’s Feb. 6 day-long symposium marking the 50th anniversary of the Brown v. Board of Education decision.

Bell and other national experts on race relations examined the impact of Brown, which in 1954 declared racially segregated public schools to be unconstitutional.

When the ruling was issued, and in succeeding years, the Brown decision was much ballyhooed by black and white progressives as a mechanism that would lead to racial equality in education, Bell told a crowded William Pitt Union ballroom audience. But he said little has changed since the ruling.

“The Brown decision, while never overturned, has become irrelevant,” Bell said. “Today, we find most black and Hispanic students attending public schools that are both racially separate and educationally ineffective.”

Moreover, the Supreme Court’s motivations for ending school segregation in Brown were not altruistic, according to Bell. Rather, like Abraham Lincoln’s Emancipation Proclamation of 1863, Brown came about through pragmatic self-interest protection of the white elite power structure. That structure dates to the days of the nation’s Founding Fathers and remains firmly in place today, Bell maintained.

“The Brown decision in 1954 is the 20th century equivalent of the Emancipation Proclamation,” Bell said. “Both had symbolic value for black people, promising racial justice; and neither provided substantive government enforcement to eliminate the oppression blacks suffered — first from abject slavery and then from racial segregation.”

What Brown and Lincoln’s proclamation share is a foundation in “interest convergence,” that is, the motivation to preserve or strengthen the existing power structure while seeming to remedy racial injustice, Bell said. “I call this racial fortuity,” he said, that is, the two-sided coin with involuntary racial sacrifice on the one side and interest-convergent remedies on the other.

In both Brown and the Emancipation Proclamation, “the benefits to the blacks were more symbolic than real, and when conditions changed, policy makers gave way to the still enraged whites, often leaving blacks in a worse position, or only marginally better than they were before,” Bell said.

Lincoln’s motivation for issuing the Emancipation Proclamation, according to Bell, was threefold: to disrupt the Southern workforce by promoting migration of slaves to the North and insurrection in the South; to prevent France and England from entering the Civil War in support of the Confederacy by pacifying abolitionists in those countries, and to enlist blacks in the Union army.

Two years later in 1865, more than 200,000 blacks were serving with the Blue army against the Grays and were suffering casualties at a disproportionate rate compared with whites, Bell noted.

“For the rest of the 19th and well into the 20th century, black people were exploited, harassed and lynched,” Bell said. “The conditions, while not slavery, were hardly the freedom and citizenship for which they had hoped for so long.”

Brown v. Board of Education repeated this pattern of pretense, Bell said.

Rather than making a decision to remedy injustice, Bell said, the Supreme Court was motivated by counteracting the effects of segregation on the nation’s international image and reputation, particularly in Communist countries, which during the Cold War were competing with America for footholds in Third World, predominately non-white countries.

The decision also was a response to the widespread fear during the McCarthy era of subversive activity at home, he said. “The historic attraction to granting recognition and promising reform of racial injustice when such action converges with the nation’s interests provided an unacknowledged motivation for the court’s ringing statement in Brown,” Bell maintained. “Not since the Civil War had the need to remedy racial injustice been so firmly aligned with the country’s vital interests at home and abroad.”

Thus, the Brown decision reflected the Supreme Court’s consensus that for reasons of foreign policy and domestic tranquility, constitutional protection for segregation must end, Bell added.

And, like the Emancipation Proclamation, Brown lacked effective enforcement. Desegregating schools fell well short of  “with all deliberate speed” mandated in Brown II, which the court issued a year later to provide guidelines for public school desegregation.

Civil rights lawyers, including Bell, fought for court orders requiring compliance with Brown. “Success in those cases led to the admission of black children to white schools, seldom the reverse,” he said. In fact, hundreds of black schools were closed and black teachers and administrators lost their jobs in the aftermath of Brown, Bell said.

“We could win cases requiring racial balancing of schools and the busing of children, but we could not require whites to remain in the schools we had worked so hard to desegregate.”

Instead, whites moved to the suburbs and “hid their children in white schools, private or suburban, that court orders could not reach. After many years, the courts stopped trying,” Bell lamented.

The lessons of Brown can be summarized in three rules of race law, Bell said.

  • Racial equality will be accommodated only when that interest converges with the interest of whites in policy-making positions. This convergence is far more important to gaining relief from the courts than the degree of harm suffered by blacks or the quality of arguments offered to prove this harm.
  • Even when there is this interest convergence, remedies are abrogated when the remedial policy is threatening the superior societal status of middle- and upper-class whites.
  • The rights of blacks are always vulnerable, subject to be sacrificed or used as catalysts enabling empowered white elites to settle policy differences with poor whites.

Examples of Bell’s third rule date back to the Constitutional Convention, where the framers concluded they could not win passage of the Constitution unless slavery was maintained. Another example is the Hayes-Tilden Compromise of 1877, which ordered the withdrawal of Northern army forces from the defeated Southern states, exposing blacks to widespread and decades-long abuse.

Similarly, between Reconstruction and the beginning of World War I, Jim Crow laws  that eventually segregated blacks in every aspect of public life emerged from a series of unofficial racial agreements between white elites and poorer whites. “Poorer whites demanded segregation to ensure their official recognition of their superior status over blacks with whom, save for color, they shared a similar economic plight,” Bell said.

More recently, the U.S. courts’ undermining of non-discrimination rights is returning the country to the days when the law of the land was Plessy v. Ferguson, which in 1896 established that separate but equal schools were constitutional, Bell said.

Contemporary race jurisprudence approximates the Plessy era in a number of ways, he said. Primarily, today’s courts have undermined the equal protection clause by assigning the federal government a subordinate role relative to the states in protecting freedom from discrimination. Courts therefore are embracing the same states’ rights logic that constituted the foundation of the segregationist platform, Bell maintained.

“Racial policy actions may be influenced, but are seldom determined, by the seriousness of the harm blacks are suffering, by the earnest petitions they have argued in courts, by the civil rights bills filed in legislative chambers or even by impressive protests conducted in the streets,” Bell concluded. “These commitments were made when those making them saw that they themselves could derive benefits that were at least as important as those blacks would receive.

“Symposiums like this one may help us to learn the lessons regarding race and education that the Brown decision did not intend to teach.”

—Peter Hart  

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