What "Brown" Means Today

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On the morning fifty years ago today that Brown v. Board of Education was decided, Thurgood Marshall and many of the lawyers from his legal team sat nervously in the Supreme Court chamber. The lead counsel on the case, Robert Carter, whose name appeared just above Marshall's on the legal briefs, remained in New York City. He would hear about the unanimous decision by a phone call from his overjoyed team. By then, Carter was already looking ahead. "I don't think I can say I was ecstatic," Carter noted recently in the Newsletter of the Federal Courts. "Thurgood and many others thought that, with the Brown decision, the civil rights fight was over. I didn't share that view. I was pretty sure there would be a whole lot of work handling the backlash."

A lot of work there was — and still is. Fifty years after Brown the effort to desegregate schools in the U.S. and grant equality to African-Americans is far from over, and while there has been real progress, blacks still lag behind whites in income and education, and some school districts are as segregated today as they were before Brown. The issue today: How has Brown succeeded or failed — and why?

Just two lawyers from the team that argued Brown are still alive, and they answer that question in very different ways. Yet both are still involved in civil rights work and both become contentious when asked about current racial disparities. "The schools we have today with black kids were the kind of schools we had before Brown," says Carter, 87, from his roomy chambers in downtown Manhattan where he has been a U.S. District Court judge for the Southern District of New York since 1972. Professor Jack Greenberg, 79, is more sanguine. "Do you want to take a glass half-empty or a glass-half full approach?" he asks. "In 1954, that glass was 100 percent empty."

Still, the numbers aren't pretty. Harvard's Civil Rights Project shows that the proportion of black children in the South's white-majority schools has dropped significantly over the past fourteen years, fom an average of 43.5% to 32.7%. But the most segregated schools are found in the North with New York, California, Michigan and Illinois having the lowest percentages of black students in majority-white schools. Ironically, many blacks have moved back to the South because the conditions there are better than in places like Detroit, Cleveland and Baltimore.

Beyond segregation, blacks continue to lag behind educationally. More than 70% of white students graduate from high school on time; just over half of black and Hispanic students do. Blacks make up 8.5% of all students in U.S. graduate programs, well short of their percentage of the young adult population. That can lead to economic disparity: the black unemployment rate is almost double the rate of whites. In 2002, the U.S. Census Bureau reported that the poverty rate for whites was 7.8% whereas for African Americans it reached 24.1%.

A lot of these numbers result from socio-economic trends: many schools are funded by local property taxes which have caused gross disparities among districts, often built on income and race. Even though the law desegregated schools, many blacks never made it out of the poor inner cities to the better-funded schools usually found in the suburbs. Carter sees affirmative action as one way to bridge the gap. Once blacks were free to go ahead and attend white schools, "they were supposed to be on the same starting line. But, they need some kind of help to get them into the mainstream."

But, Carter argues, the biggest reason Brown hasn't been a complete success lies in the Supreme Court. When the 1954 Brown decision came down, the Court did not specify a remedy for school segregation. A year later it issued Brown v. Board of Education II, which said that the transition to integration should happen "with all deliberate speed." That, says Carter, paved the way for years of foot-dragging, and institutionalized resistance. "When the Supreme Court made that decision 'over time' I lost all respect for it, because they departed from all precedence," said Carter. "I have never known a case where the Supreme Court held that you're entitled to a right that is not vindicated immediately. 'Over time' allowed the South to prepare and work and believe they could defy the Court."

Even though the effects of Brown were slow in coming — real desegregation only occurred with the 1964 Civil Rights Act and aggressive enforcement by the Department of Justice, which denied federal funds to any segregated school — they were revolutionary. Greenberg cites encouraging evidence today as the half-full approach: there are black Cabinet members in Democrat and Republican administrations; blacks hold top management positions in major corporations like Citibank, Xerox, Time Warner, and Merrill Lynch. When Greenberg started practicing law in 1949 there were only two black U.S. Congressmen. Today there are 39.

Brown "broke up the frozen political system in the country at the time," Greenberg notes. Southern congressmen made it a priority to keep African-Americans from obtaining power, but Brown allowed for change. Judge Carter believes that the greatest accomplishment of the ruling was to create a black middle class: "The court said everyone was equal, so now you had it by right."

Where do we go from here? Stanford law professor R. Richard Banks, a leading scholar on racial discrimination, believes that litigation needs to be combined with other advocacy strategies, but should take care to leave room for politics. More and more African Americans are in positions of political power and they need the leeway to institute social change. At the same time, however, litigation should not be ignored because it can galvanize social movements, says Banks, and might alter people's values the way Brown did.

For Carter, the solution still comes back to education. "If I could pick any case to argue today, I'd argue a case to secure equal education for black kids. Well, I guess I'd be arguing Brown."