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The U.S. Supreme Court's decision in Brown v. Board of Education marked its 60th anniversary in May 2014. A unanimous opinion of the Warren Court, Brown prohibited official (i.e., de jure) segregation in the public schools and rejected the doctrine of 'separate but equal'. "Separate educational facilities," Chief Justice Warren wrote, "are inherently unequal." He explained that "[t]o separate them [i.e., African-American students] from others of similar age...solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." In a follow-up opinion a year later, the Court noted that implementation of its decision would involve a "period of transition"; it ordered states to "make a prompt and reasonable start toward full compliance" with its ruling and directed the lower courts to "enter such orders and decrees...as are necessary...to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases."
While the practical impact of Brown, which took time to be felt fully (see below), was in some respects significant, the "symbolic quality of the decision," as Yale Kamisar observed in 1969, "was immeasurable," or at any rate substantial. Thurgood Marshall (later, of course, a Supreme Court justice) was the main lawyer for the successful plaintiffs, and the cases consolidated in the Brown decision were the culmination of a long litigation campaign by the NAACP Legal Defense and Education Fund.
Writing in The Atlantic around the time of the 60th anniversary, Ronald Brownstein described Brown's "core mission" as "unfinished" and went on to observe: "...racial and economic isolation remains daunting: One recent study found that three-fourths of African-Americans and two-thirds of Hispanics attend schools where a majority of the students qualify as low-income." Brownstein also noted that the "increasing diversity and shrinking white share of America's youth population" makes more urgent than ever Brown's "broader goal of ensuring all young people the opportunity to develop their talents."
How much and in what ways did the Brown decision matter and, more broadly, how much did the courts in general contribute to the civil rights movement in the U.S.? On the one hand, the prohibition of de jure segregation in the schools was important both symbolically, as already mentioned, and because it did lead, first in the border states and then eventually in the deep South (after years of 'massive resistance' and other forms of obstruction), to some school integration. In 1954, 'dual' (i.e. segregated) school systems were mandated by statute in eleven southern states and six other states, as well as the District of Columbia. The situation in the border states began to change relatively quickly after Brown, but the decision did not have any substantial effect in the deep South until the 1970s, when, as James Patterson (author of a 2001 book about Brown) notes, the decision finally was enforced. Some cities and localities have been success stories of integration -- Raleigh, N.C., to mention one, as discussed in Gerald Grant's 2009 book Hope and Despair in the American City [link].
If that's the glass-half-full side of the story, the glass-half-empty side is that there is overall still a great deal of both economic and racial segregation in U.S. public schools -- there's more segregation now in schools in the North and West than there was 30 years ago. The Supreme Court had a chance to help reverse this trend in 1974 by allowing court-ordered cross-district (urban/suburban) busing in cases of de facto (residential) segregation, but instead a 5-4 majority of the Burger Court went the other way; the case was Milliken v. Bradley. Voluntary urban/suburban integration programs -- which typically do not involve an actual merger of urban and suburban systems, as occurred in Raleigh, but instead move relatively small numbers of students across district lines -- are not an adequate substitute for larger-scale court-ordered programs, but Milliken basically precluded those. Today, according to this piece that aired last month on the PBS NewsHour, there are only eight voluntary urban-suburban 'transfer' programs in the country, involving all together a mere 40,000 students, and almost half of those are in Hartford, Ct. The same piece noted that the number of 'intensely segregated' (i.e., more than 90 percent minority) schools in Rochester, N.Y., has increased fivefold since 1989, and Rochester has one of the voluntary urban-suburban programs.
There is by now a large literature on Brown and on the broader question of the courts and social change, most of which I haven't read (I've listed a few relevant titles at the end of this post, but this list is only the tip of the iceberg). With that said, Mark Tushnet's judgment on the impact of Brown, and of civil rights litigation more generally, seems reasonable, though no judgment here will command universal agreement. In Red, White, and Blue: A Critical Analysis of Constitutional Law (1988), p.132, Tushnet wrote:
Brown galvanized black communities not so much because schools were desegregated -- except in the border states substantial [de jure] segregation continued for more than a decade after Brown -- but because it showed that one branch of the national government was on their side. Two years later the Montgomery bus boycott was the first episode in the development of the modern civil rights movement, whose sit-ins and marches prodded Congress to enact important civil rights acts in 1964, 1965, and 1968. The [Supreme] Court's response to the movement was hesitant and indirect. It never ruled that sit-ins were protected by the Constitution, but it did allow demonstrators to invoke the powers of the federal courts to limit the worst sort of harassment, and it upheld innovative efforts by the executive branch to convict white terrorists under old statutes. Overall the courts played a distinctly subordinate role in the post-1960 struggle for civil rights. It seems fair to wonder whether the pattern of race relations in 1970 or 1980 would have been dramatically different had blacks been forced to use only political methods.
Kamisar in 1969 emphasized more strongly Brown's "galvanizing" effect, arguing among other things that it contributed to the subsequent enactment of civil rights legislation and that it sped up or "perhaps even precipitated" the Warren Court's "revolution" in criminal procedure ("The School Desegregation Cases in Retrospect," in the Chelsea House volume listed below, p.xxiv). Probably the only certain statement is that the legacy of Brown will continue to be debated.
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References and further reading
Carol Anderson, Eyes Off the Prize
Mary Dudziak, Cold War Civil Rights
Gerald Grant, Hope and Despair in the American City
F. Harris and R. Lieberman, "Racial Inequality after Racism," Foreign Affairs (March/April 2015)
Richard Kluger, Simple Justice
Charles J. Ogletree, Jr., All Deliberate Speed
James T. Patterson, "The Troubled Legacy of Brown v. Board" (pdf)
Gerald Rosenberg, The Hollow Hope
James Ryan, Five Miles Away, A World Apart
Mark Tushnet, Red, White, and Blue
Argument: The Oral Argument Before the Supreme Court in Brown v. Board of Education of Topeka, 1952-55, vol. 1 of the series Oral Arguments Before the Supreme Court (N.Y.: Chelsea House, 1970; paperback reprint, 1983), ed. Leon Friedman, with introductions by Kenneth Clark and Yale Kamisar.
[added later] R. Straus and S. Lemieux, "The Two Browns," New Political Science v.38 (2016)
"The face of the embassy had sheared off in great concrete slabs. Dead people still sat at their desks. The tar-covered street was on fire and a crowded bus was in flames. Next door, the Ufundi Building, containing a Kenyan secretarial college, had completely collapsed. Many were pinned under the rubble, and soon their cries arose in a chorus of fear and pain that would go on for days.... The toll was 213 dead...; 4,500 were injured, more than 150 of them blinded by the flying glass. The ruins burned for days."
Thus Lawrence Wright in The Looming Tower, describing the aftermath of the August 1998 bombing of the American embassy in Nairobi. There's no question that this and the bombing of the embassy in Dar es Salaam were reprehensible acts. Ayman al-Zawahiri had an al-Qaeda operative throw a stun grenade into the embassy courtyard in Nairobi, thereby drawing people to the windows. Wright notes: "One of the lessons Zawahiri had learned from his bombing of the Egyptian Embassy in Islamabad three years before was that an initial explosion brought people rushing to the windows, and many were decapitated by flying glass when the real bomb went off." (Looming Tower, p.307)
Despite the depraved character of these acts, however, it's not clear that the conviction of Ahmed Ghailani in New York federal district court on only one count (of conspiracy) as opposed to 200-some counts matters very much. As it is, he may well get a life sentence. Meanwhile Zawahiri, the mastermind of the operations, continues to reside ... somewhere (maybe North Waziristan, maybe not...).
The real issue that should be under discussion is why it has proved so difficult to close Guatanamo Bay (a myopically reluctant Congress deserves a fair amount of blame, no doubt), not the issue of whether detainees should be tried in civilian courts or military tribunals. That has already been debated ad nauseum, positions have hardened, and arguably the main beneficiaries of the entire discussion have been the lawyers, legal analysts, and other talking heads whom it has kept employed. When the definitive history of this whole episode is written, complete with endless litigation, the Supreme Court striking down the original military tribunals legislation, Congress rewriting and re-passing it, etcetera, not to mention the meager results to date -- unless I'm forgetting something, exactly one detainee so far has completed the military tribunal process, pleading guilty in a plea deal [added later: I am forgetting something; it's more than one] -- it will go down as one of the more monumental wastes of resources spawned by the 'war on terror'. It is hard to avoid the feeling that there had to have been a better way than this drawn-out mess. The British government has even concluded that it must pay compensation to several British citizens who were held in Guantanamo. And the talking heads on American TV go on discussing this is in little amnesiac bites, failing to see the larger picture and failing to remind people that they have been having these same factitious debates for years. All in all, a rather appalling spectacle.
No one much likes to be taxed. Many Americans, however, actively hate to be taxed. The U.S. is, relatively speaking, an undertaxed society, especially since the Reagan years, and local, state, and federal governments must try to find ways to raise money that do not involve taxation. This is a problem even in good economic times, and in bad times an acute one. Here's a small example: Every two years I receive a notice in the mail telling me that I must take my car to a facility to have its emission system checked to make sure that it's not violating Maryland's emissions laws. I duly take my car to the facility, fork over fourteen dollars, watch while the technician does something -- and the 'something', to someone's credit, seems to have gotten quicker and more streamlined over the years -- and am handed a piece of paper saying that my car has passed the test. What does this accomplish? Well, I suppose it gives a number (albeit a relatively small number) of people jobs, and I am, all things weighed, definitely in favor of that. It also may make a very marginal contribution to cleaner air, but this is doubtful it seems to me, since how many owners of polluting vehicles are going to obey the notice? -- more than likely they're just going to rip it up. That leaves the real purpose of the exercise: to raise money for the local and perhaps the state governments, and to raise it in a way that does not involve taxation. (I think I'd rather pay fourteen extra dollars in tax every two years and be spared the time and inconvenience of taking my car in for the emissions check, but my preference is presumably not widely shared.)
This is all by way of preface to expressing some -- well, outrage seems the appropriate word -- at seeing tonight's NewsHour report on so-called DUI checkpoints in California. I say "so-called" because the real purpose of these checkpoints, the report made clear, is to find people driving without licenses, impound their cars for thirty days, and then either collect the fines that people pay to retrieve them or, if no one retrieves the vehicle, auction it off. The result is that millions of dollars flow into local government coffers, specifically the coffers of the local police agencies (with a chunk going to the towing companies). Never mind that the people whose cars are impounded are overwhelmingly undocumented immigrants (who often need their cars in the most imperative sense as their survival may depend on driving to a job); and never mind that the U.S. Court of Appeals for the Ninth Circuit has already ruled that the warrantless impoundment of cars under these circumstances is unconstitutional. (The state's legal powers-that-be claim to be waiting for another ruling from the Ninth Circuit but I couldn't see anything unclear about the first one, judging from this report.) After all, the Ninth Circuit ruling is just a piece of paper to those who want to ignore it, and it would be hard as a practical matter (though not impossible, I think) to hold the entire police force of a city in contempt of court.
Now there are probably good reasons from a safety standpoint to get unlicensed drivers off the road, as a Berkeley professor suggested at the outset of the piece. But it's not clear that the impoundments accomplish this. One person interviewed said that when his car was impounded he just went out and bought another. He knew he was doing something illegal by driving unlicensed but he needed a car to get to his construction job. (Presumably some people in that situation can't afford to buy another car, but there were no statistics presented on that. And if you search hard, you can find some pretty inexpensive cars out there. How about driving unlicensed and in a clunker? What gain for safety then?)
If you want to reduce unlicensed driving, do it openly, not under the cover of a DUI check. If you want to reduce drunk driving, how about raising the age for a driver's license? If you want to raise revenue, do it the old-fashioned way, however unpopular. Don't have local police run ostensible DUI checkpoints whose real aim is to find undocumented immigrants driving without licenses and impound their cars for thirty days before selling them to the highest bidder. These checkpoints are discriminatory. They are unconstitutional. They are one small but not insignificant result of a society too immature, and a political system too dysfunctional, to fund essential public services in a conscionable, sensible way: by paying for them directly. The country of course is in the midst of an economic crisis and a recession, but this story underscores a more permanent problem in the U.S.: the survival of a me-first, devil-take-the-hindmost mentality that may have been in some ways beneficial during the first century or so of the republic's existence but became counterproductive in the twentieth century and is unqualifiedly disastrous in the twenty-first.
I have two brief things to say on this:
1) While the decision can legitimately be questioned, Republican senators' criticisms today (to the extent I heard them) -- e.g., Lindsay Graham saying something like 'this makes horrible history' or sets a horrible precedent -- were overblown.
2) If it was going to be a federal court, better to do it in the Southern District of New York than in the Eastern District of Virginia which, as I understand it, was the other federal venue considered. Some years ago I observed part of a trial in the Eastern District of Virginia. Based on that and some other things, I think Manhattan is the better choice.
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