In recognition of the fifty-first anniversary of the Supreme Court's historic decision in Brown v. Board of Education, a case often cited as the milestone in America’s march towards racial equality, I recently discussed the legacy of Brown with students at Bragaw Avenue School in Newark, New Jersey.  

I explained to the students that before the Supreme Court’s ruling in Brown states were permitted to segregate students by race in public primary and secondary public schools.  The justification for segregating students by race was proffered by the Supreme Court in 1896 in Plessy v. Ferguson, which recognized that whiteness was a tangible item to be owned – indeed, a property right – much like the sneakers or coveted sports paraphernalia worn by the students, that was protected by the Fourteenth Amendment.  The Supreme Court made it clear, however, that whiteness could not be the property of Blacks, and that if a Black person was assigned to a segregated train, as the Louisiana statute in Plessy required, “he has been deprived of no property, since he is not lawfully entitled to the reputation of being a white man.” 

Despite recognizing that the purpose of the Fourteenth Amendment “was undoubtedly to enforce absolute equality of the two races before the law,” the Supreme Court noted that it “could not have been intended to abolish distinctions based upon color” or to enforce “social…equality, or a co-mingling of the two races upon terms unsatisfactory to either.” 

In his dissent, Justice Harlan asserted what Justice Brown and other segregationists knew but would not admit:  that the real meaning of Louisiana’s legislation was to communicate to Blacks that they were “so inferior and degraded” that they could not be allowed to sit in public trains occupied by white citizens.  Justice Harlan warned that Louisiana’s law would “certainly arouse race hate” and “create and perpetuate a feeling of distrust between these races.” 

The Plessy decision led to the swift creation of the society that Justice Harlan feared:  a society so divided by relentless and complete state-mandated segregation that communication between Blacks and whites, let alone an understanding of each other’s humanity, was virtually impossible. 

By 1900, each Southern state had segregated railroad trains, and segregation laws were extended to cover all travel facilities.  Segregation laws also flourished in all public facilities and private facilities open to the public.  Hospitals, parks, courthouses and prisons contained segregated waiting rooms, water fountains, toilets, telephone booths, stairways, entrances and exits.  To ensure separation of the races even after death, states segregated graveyards. 

On May 17, 1954, the Supreme Court in Brown overturned the “separate but equal” doctrine of Plessy, and held that racial segregation in public schools violates the U.S. Constitution.  Chief Justice Warren described education as “perhaps the most important function of state and local governments” and the “very foundation of good citizenship.”  Where a state has undertaken to provide education, Warren continued, “it is a right which must be made available to all on equal terms.”  With this background, Warren addressed the central issue in the case:  “Does segregation of children in public schools solely on the basis of race, even though physical facilities and other ‘tangible’ factors may be equal, deprive children of the minority group of equal, educational opportunities?  We believe that it does.” 

The Supreme Court went on to recognize that separating students, particularly grade school and high school students, 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 to ever be undone.”  Warren concluded that, “in the field of public education the doctrine of ‘separate but equal’ has no place.  Separate educational facilities are inherently unequal.”  At the same time, the Supreme Court held that the Due Process Clause of the Fifth Amendment prohibited the federal government from segregating students according to race in the District of Columbia, applying the same principle to the federal government. 

I explained here to the students at Bragaw that the Supreme Court, having overruled Plessy’s “separate but equal” doctrine, considered the following year in Brown v. Board of Education (II) the question of what remedy should be granted.  Although courts usually award prevailing parties an immediate remedy, the Supreme Court rejected the plaintiffs’ demands in Brown that they immediately be allowed to attend integrated schools. 

The prospect of immediately integrating schools and therefore placing resistant white students – who had been told by the Supreme Court, and had come to believe, that their whiteness was a property right – in classrooms to learn with and from Black students was wholly unacceptable.  Instead, the Supreme Court returned the cases to the district courts with the admonition that orders and decrees be entered to admit plaintiffs to public schools on a racially nondiscriminatory basis “with all deliberate speed….”

Commenting on the Brown II opinion, Robert Carter, a federal district court judge, former NAACP General Counsel and one of the lawyers who argued Brown before the Supreme Court, asserted that it was “clear that what the [‘all deliberate speed’] formula required was movement toward compliance on terms that the white South would accept.”  Judge Carter stated that the Supreme Court failed to fully appreciate the enormity of the segregation problem, and in showing compassion to the white South by regulating desegregation at a pace acceptable to them, both failed to develop a willingness to comply and, in fact, encouraged white resistance to defy integration. 

And defy integration is precisely what whites did.  To resist the Supreme Court’s desegregation order in Brown and Brown II, whites closed public primary and secondary schools, and, in some cases, literally blocked – through fierce intimidation – entrance to schools that remained open for Blacks.  Not surprisingly, integration moved, to the extent it moved at all, at glacier-like progress in the years following Brown.  Indeed, by 1963, the 11 states of the old Confederacy had less than 2 percent of their Black students attending school with white students, and with the help of the Civil Rights Act of 1964, the percentage climbed to a meager 6 percent. 

I was hopeful, at this point, that this sobering critique of Brown would not lead the students to believe that Brown’s only accomplishment was the articulation of an illusory standard.  At a minimum, Brown, in addition to recognizing that Blacks are entitled to equal treatment under the law, laid the foundation for a society in which no state could require racial segregation in public schools.  Not only this, but the Supreme Court's desegregation order in Brown galvanized the civil rights movement and eventually led to the dismantling of American apartheid in various arenas beyond education, including employment, political participation, and housing.

But what of Brown's relevance in 2005 to the students in Newark at Bragaw Avenue School?  And what of Justice Warren’s lofty language over 50 years earlier about education, which he described as the “very foundation of good citizenship,” being made available “to all on equal terms?”  And, finally, what of Warren's contention that the “separate but equal” doctrine, even where physical facilities are equal, is inherently unequal and generate feelings of inferiority in minority students in a way “unlikely to ever be undone?”

Today, Bragaw Avenue School, a public primary school, has a student body that is nearly as racially segregated as schools were in 1954.  Bragaw’s student population is 98 percent Black and 2 percent Latino.  Not one white student attends Bragaw.

I absolutely do not mean to assert here that Black students cannot learn and indeed flourish in predominantly Black public primary and secondary schools.  (In fact, a strong argument could be made that, if better resourced, Black students would perform better in predominantly Black schools.)  Instead, I recognize that educational resources have historically followed and continue to follow white students, that predominantly minority-race schools are more likely to be high-poverty schools, and that children who attend high-poverty schools, on average, do less well academically.  Indeed, nearly all of Bragaw’s students live below the poverty line.

Despite having the benefit of many outstanding teachers, recent statistics report, tragically, that of the students who graduate from the 8th grade in Newark, only 4 out of 10 will graduate from high school.    

I shared with the students that Brown's principles – that the “separate but equal” doctrine is inherently unequal, and that all people are entitled to equal treatment under the law – are embraced by most Americans.  Indeed, praise for the Brown decision can rise to the level of worship.  However, the purpose of Brown was more than the assertion of a principle.  To be sure, the purpose of Brown was to end the “separate but equal” practices in America’s classrooms.  As an articulation of principle, Brown has succeeded in making state-sponsored segregation illegal.  As an instrument of integration, however, Brown's legacy has been less successful. 

Bragaw Avenue School does not stand as an anomaly in an educational system of otherwise racially diverse primary and secondary schools across the country.  Indeed, one would not need the benefit of a telescope to find numerous Bragaws – although recognized by different names, of course – in inner cities across the country. 

In all fairness to Brown, the law has limited ability to change behavior.  Brown dismantled the "separate but equal" regime, an end that could be understood intellectually by all.  But what Brown could not and cannot do – indeed what no law or Supreme Court ruling can ever do – is change the hearts of people. 

This is precisely what Judge Carter noted, nearly 40 years ago, when he spoke of race relations in America, saying: “the preexisting pattern of white superiority and black subordination remains unchanged; … Few in the country, black or white, understood in 1954 that racial segregation was merely a symptom, not the disease; that the real sickness is that our society in all of its manifestations is geared to the maintenance of white superiority ….”

And there I stood.  In front of a classroom of beautiful, inquisitive and sharp Black children at Bragaw Avenue School.  My challenge to them was to dedicate their talents to becoming “social engineers,” a term Charles Hamilton Houston used to describe lawyers, who would challenge the white superiority fallacy.  I am hopeful that they will embrace that challenge, particularly because, as I could tell from their eyes, many of them never believed that old tale in the first place.

Ryan Paul Haygood is an attorney in New York City.

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