I. EVOLUTION1
Questions:
Were the Supreme Court’s opinions in the two Brown v. Board cases problematic—though for different reasons?
Would it have been better if the Court had instead ruled for true educational equality between separate schools?
How influential was Brown in stimulating the civil rights movement of the 1960s?
If Brown hadn’t spelled the end of segregation, would other instrumentalities of government have done so? If so, when?
Why did the Supreme Court support gradualism in desegregation of the public schools, then fourteen years later flash a green light for prompt action, but then six years after that allow for resegregation?
Did massive resistance to Brown help or hurt the civil rights movement?
Herbert Wechsler (in 1951): “Could it not reasonably be argued that the Negro child attending a non-segregated school would be doubly frustrated by the limited economic and social opportunity that would later confront him in a world where de facto segregation prevailed? Kenneth Clark responded: “Which is better—to be sick or to be dead? Segregated school is a sort of fatality. … No effort was made to grapple with such large and thorny questions in the first stage of the Legal Defense Fund’s appeal of the Brown decision filed the following week with the Supreme Court.”
Richard Kluger, Simple Justice: The History ofBrown v. Board of Educationand Black America’s Struggle for Equality 530 (1976).
“Segregation of white and colored children in public schools has a detrimental effect upon the colored children.”
Brown v. Board of Education, 347 U.S. 483, 494 (1954).
“The judgments below (except that in the Delaware case) are reversed and the cases are remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit the parties to these cases to public schools on a racially nondiscriminatory basis with all deliberate speed.”
Brown v. Board II, 349 U.S. 294, 301 (1955).
“For me, assuming equal facilities, the question posed by state-enforced segregation is not one of discrimination at all. Its human and its constitutional dimensions lie entirely elsewhere, in the denial by the state of freedom to associate, a denial that impinges in the same way on any groups or races that may be involved.”
Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1, 34 (1959).
“Wechsler’s rule goes a long way toward restricting—indeed, paralyzing—the Court’s enforcement of its own value choices. But by failing to provide guidance for which values are to be chosen, Wechsler’s approach admits of a high degree of internal ambiguity. How are we to evaluate the ‘neutrality’ of line-drawing except by reference to some sort of value choice?”
J. Skelly Wright, Professor Bickel, the Scholarly Tradition, and the Supreme Court, 84 Harv. L. Rev. 769, 780 (1971).
“What the [F]ourteenth [A]mendment, in its historical setting, must be read to say is that the Negro is to enjoy equal protection of the laws, and that the fact of his being a Negro is not to be taken to be a good enough reason for denying him this equality, however ‘reasonable’ that might seem to some people. … Equality, like all general concepts, has marginal areas where philosophic difficulties are encountered. But if a whole race of people finds itself confined within a system which is set up and continued for the very purpose of keeping it in an inferior station, and if the question is then solemnly propounded whether such a race is being treated ‘equally,’ I think we ought to exercise one of the sovereign prerogatives of philosophers—that of laughter.”
Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 Yale L.J. 421, 423–24 (1960).
“Exceptions have to be allowed for, but no one can read the spate of recent school cases … without feeling both that the deliberate speed limit is being distinctly raised, and that the day when blatant tokenism was deemed an adequate form of compliance by the federal courts is over.”
Alexander M. Bickel, Beyond Tokenism, The New Republic, Jan. 4, 1964, at 11.
“In 1954, the Supreme Court handed down the landmark decision Brown v. Board of Education, in which the Court ordered the end of state-mandated racial segregation of public schools. Now, more than twenty-five years after that dramatic decision, it is clear that Brown will not be forgotten. It has triggered a revolution in civil rights law and in the political leverage available to [B]lacks in and out of court. … Yet today, most [B]lack children attend public schools that are both racially isolated and inferior. Demographic patterns, white flight, and the inability of the courts to effect the necessary degree of social reform render further progress in implementing Brown almost impossible. … The late professor Alexander Bickel warned that Brown would not be overturned but, for a whole array of reasons, may be headed for—dread word—irrelevance.”
Derrick Bell Jr., Brown v. Board of Education and the Interest-Convergence Dilemma, 93 Harv. L. Rev. 518–19 (1980).
“The wider implications of Brown can be seen across the entire spectrum of the Supreme Court’s jurisprudence for the quarter-century following the decision. The immediate implications of the concept of equality, once unleashed, were of course, felt in the area of voting. It is hardly a matter of coincidence that the first federal civil rights legislation in three-quarters of a century, enacted in 1957, was voting legislation. The Act conceptually followed the extraordinary victories of [William] Hastie and [Thurgood] Marshall in the pre-Brown voting cases. The impetus for the Act, however, was the decision in Brown itself.”
Louis H. Pollak, The Limitless Horizons of Brown v. Board of Education, 61 Fordham L. Rev. 19, 20 (1992).
“I wish to suggest that scholars may have exaggerated the extent to which the Supreme Court’s desegregation ruling provided critical inspiration to the civil rights movement.”
Michael J. Klarman, How Brown Changed Race Relations: The Backlash Thesis, 81 J. Am. Hist. 81, 81 (1994).
“[R]ather than seeing the decision itself as the product of deep social and political forces impelling the nation gradually but ineluctably toward greater racial equality … [t]his scholarly neglect of background historical forces has produced a widespread conviction that the Court has played, and can continue to play, a more fundamental role in safeguarding civil rights and civil liberties than is plausibly the case.”
Michael J. Klarman, Brown, Originalism, and Constitutional Theory: A Response to Professor McConnell, 81 Va. L. Rev. 1881, 1934–35 (1995).
“Professor Klarman’s most serious and fundamental error lies in dismissing far too readily what he terms ‘the conventional wisdom that Brown raised the hopes and expectations of (mainly southern) [B]lacks, prodding them to adopt a more aggressive civil rights posture by rendering more realistic the possibility of genuine racial change.’”
David J. Garrow, Hopelessly Hollow History: Revisionist Devaluing of Brown v. Board of Education, 80 Va. L. Rev. 151, 153–54 (1994).
“[Klarman observes the Brown II opinion] ‘seemed to invite evasion’ rather than even a minimal pretense of compliance[;] … ‘[i]n retrospect, the justices should have been firm and imposed deadlines and specific desegregation requirements, but he immediately undercuts that bold but apt observation. … He asks, ‘Did their miscalculation matter much?’ but immediately answers, ‘Probably not,’ because the rise of ‘massive resistance’ on the part of segregationist white southerners was ‘virtually ensured’ irrespective of whatever the Court did or did not do.”
David J. Garrow, “Happy” Birthday, Brown v. Board of Education? Brown’s Fiftieth Anniversary and the New Critics of Supreme Court Muscularity, 90 Va. L. Rev. 693, 712 (2004).
“Dr. W.E.B. Du Bois accurately predicted that the South would not comply with the Brown decision for many years, ‘long enough to ruin the education of millions of [B]lack and white children.’ I was not aware of Dr. Du Bois’s warning in the early 1960s when I was litigating school desegregation suits at the NAACP LDF, and had I known about it, I would not have accepted it. At that time, I believed that my work on school desegregation might prove to be the high point of my career. I was wrong. The implementation of the court orders that I helped obtain resulted in the closing of [B]lack schools and the dismissal of thousands of [B]lack teachers and administrators. When the [B]lack children who were the beneficiaries of those court orders were admitted previously to all white schools, they often faced hostility, and only infrequently found a teaching environment that was conducive to their needs.”
Derrick Bell Jr., The Unintended Lessons in Brown v. Board of Education, 49 N.Y.L. Sch. L. Rev. (2005).
“Racial segregation in public education has been illegal for 65 years in the United States. Yet American public schools remain largely separate and unequal—with profound consequences for students, especially students of color.”
Keith Meatto, Still Separate, Still Unequal: Teaching About School Segregation and Educational Inequality, N.Y. Times (Apr. 12, 2019).
“Racial segregation and unequal school funding persist at alarming levels. … These trends perversely intersect to hit some students with a double disadvantage. School districts serving predominantly low-income students and students of color operate on thousands of dollars less per pupil than their wealthier white peers, widening the achievement gap for these students.”
Derek Black, The Lynchpin of Educational Inequality—and the Myth Behind It, 32 Poverty & Race 3, 3 (Apr.–July 2023).
“Rather, at play is a mosaic of contending forces battling over charter schools, Afrocentric schools, race-conscious integrationism, selection schemes based on standardized testing and other contested initiatives. These conflicts are marked in unprecedented ways by crosscutting fissures of class, culture and ideology as well as race—a situation much more complicated than that which Brown addressed.”
Randall Kennedy, Say It Loud!: On Race, Law, History, and Culture 420 (2021).
II. DERRICK AND ME
For several years in the early 1960s, Derrick Bell and I, both staff attorneys, shared a closet-like office at the NAACP Legal Defense Fund (LDF), at a time when most southern states had totally avoided the mandate of Brown v. Board. As Derrick was later to concede, like all our colleagues, we worked to implement Brown, pressing ahead with a share of the over 100 southern school desegregation cases that appeared on the LDF docket. Later in the decade, when the number of lawyers at LDF significantly increased, some newly hired staff members specialized exclusively in other forms of litigation, such as employment discrimination cases brought to enforce Title VII of the Civil Rights Act of 1964. But in those early years, staff meetings featured dreary staff reports of the tedious progress with school cases in a legal world dominated by the “all deliberate speed” formulation of Brown II and the hostility of local school boards. Derrick left LDF in the mid-sixties for the federal government and then a career path that saw him become a fierce critic of Brown v. Board’s total focus on integration, an author of powerful fables charting his pessimism over America’s antiracism prospects, and an ever-present mentor for a new generation of Black academics.
For the remainder of the decade, before joining the faculty of Columbia Law School in 1970, I continued to litigate school desegregation cases. As disappointing as the outcomes were in many of these cases, unlike Derrick, I maintained my faith in the value of school integration. I have never lost it but have sadly watched with increasing frustration the promise of Brown become degraded and then almost totally shelved by a judicial system responding to white hostility and residential segregation and indifference as well as demographics to make true integration seemingly impossible. Derrick’s solution, one I think impractical—massively increasing the quality of public schools attended almost solely by Blacks—may seem one of the few alternatives left. My view to this day, however, is that public school integration should be understood as a means of increasing the opportunity of Black and other minority students to receive a superior education and that Derrick correctly focused on the right goal—excellent education—but failed to recognize the many powerful obstacles to obtaining the range of resources required to create the separate schools he favored.
Despite the continued segregation and in some cases resegregation of the public schools at the behest of the Supreme Court, Brown is commonly called “sacrosanct.” It would be a wary politician who expressed disrespect of its noble status. At the very same time, a long list of critics have lamented the defects of the Warren Court’s 1954 opinion, the approach of Brown II, and current school attendance statistics. Ironically, few of these critics, even while blasting the reasoning of Chief Justice Warren’s opinion, question the result in Brown damning the “separate but equal” formulation of Plessy v. Ferguson.
Even before the springtime moments between 1968 and 1974, when it appeared that true desegregation might thrive, and the subsequent pullback that began with the Supreme Court’s rejection of interdistrict remedies in the Detroit case, Milliken v. Bradley, and that has gained increasing force to this day, I had decided that there were at least two ways of thinking about Brown v. Board. The first is explicit focus on the language of the decisions, its legal coherence, and, more generally, the contested notion that it may have achieved little. As I regarded the literature in question as an interesting academic sideshow that had little to do with the reality I was living, it wasn’t until years later when writing a memoir2 that I felt impelled to challenge the overdrawn criticism of the value of human rights litigation that enamored several academics. By focusing on the record of admittedly limited accomplishments of this Brown, critics opined that 1954 had not only failed to produce integration, it was also not that influential in stimulating civil rights movement advocacy. Surveying its evolution, some of these critics went on to decry the use of litigation as a means of promoting social change.
Of course, no one doing the work at LDF could be unaware of the many failures to integrate the public schools or the controversy in the law reviews over the Brown opinions. The debates had a particular salience for me, as Alexander Bickel was not only my law school constitutional law professor but he had recommended that Thurgood Marshall and Jack Greenberg hire me. Charles Black and Lou Pollak were faculty members at Yale Law when I was a student; both men also served as pro bono consultants to LDF and were often found visiting at our Columbus Circle offices. Pollak had told me—correctly—that the brief I was writing in an important jury discrimination case called Swain v. Alabama (later reversed by the landmark decision Batson v. Kentucky) was in a losing cause. Black also wrote poetry for Monocle, a political satire magazine started at Yale by Victor Navasky. I had served for a time as its associate publisher. But the essence of my experience with Brown in the almost ten years I was a staff lawyer and then first assistant counsel was as a litigator. My close relationship with Derrick continued even after he left LDF in the mid-sixties. We talked often about his growing disenchantment with LDF’s commitment to public school integration. He also was upset that LDF had insufficient interest in a broad campaign against segregation in the North. When we both became law teachers and later deans, we saw each other less, but we never stopped talking and cordially agreeing to disagree, even as he became embroiled in public controversies at both the University of Oregon and Harvard.
I never knew what the phrase “happy warrior” meant until I compared the cheerful pleasure of his company—and his amused listing of the absurdities of our racial landscape—with his embrace of deadly serious challenges to adversaries.3 I remember particularly his telling me that he was going off to a retreat at the McDowell Colony in New Hampshire to try and write about the law in a different way. I was impressed with his commitment and energy but privately thought he might be chasing gossamer. The late Jewel Bell, his truly glorious wife, might have said, “There you go again, chasing stuff.” But regardless of what you think of the stories that emerged from that experience—and I love them—his invention of a whole new way of tackling racism help solidify his place as a prominent and influential mentor to dozens of up-and-coming Black scholars.
III. TRENCH WARFARE
But there was a second Brown for me. It flowed from my engagement in a series of grinding school desegregation lawsuits while at the same time I dealt with trials and appeals challenging racial policies in criminal, employment, and healthcare cases. The school cases fit the description my boss Jack Greenberg had of the sit-in cases we handled in the early and mid-sixties—he called them “trench warfare.” They felt consistently stalemated and never seemed to end. In one infamous case, the young child who was the lead plaintiff later became a teacher in the very school system that had been sued in his name years before. Ironically, the case persisted with his name attached to it. My work had little to do with the debates that consumed the academics. I’m going to describe the more prominent of these cases because I regard them as typical in many respects of the way the LDF staff coped with public school segregation in the sixties. At first, I wasn’t sure about how typical they were so I inquired of one of LDF’s most accomplished lawyers, William Bennett Turner, who joined the staff in 1967 but whose experience apparently was similar to mine. Here’s what he said:
I had fifteen school districts in the Western District of Louisiana, including Shreveport (Caddo Parish), where our Speaker of the House [Mike Johnson] went to school. I was in Louisiana when men landed on the moon. I did what the Fund did in all the cases: moved for “further relief,” fought against “freedom of choice” plans, and tried to get the schools ordered to affirmatively integrate. Judge Dawkins, in Shreveport, was a racist, an alcoholic and a pill junkie. At the close of one especially contentious hearing, he asked everyone in the crowded courtroom to stand and recite the Lord’s Prayer.4
I had a few rough jurists in my time—one had a pistol within reach while on the bench; another liked to smoke during trials; still another implied he would charge me with suborning perjury—but I never had to cope with the Lord’s Prayer, the reference to which, by the way, Dawkins ordered the court reporter to remove from the trial transcript. My first case in many respects set the tone. Not the intense hostility Bill encountered but a kind of passivity and closed-mindedness in the face of what I, of course, regarded as injustice that at first baffled me and soon turned into what I expected from several trial judges in the Fourth and Fifth Circuits. I was sent to Lynchburg, Virginia, in 1962 to learn how to try a desegregation case with my more experienced colleague Jim Nabrit. Virginia had been as rabid as a deep South state in opposing Brown, but the Lynchburg school committee had decided to attempt to preempt a lawsuit by planning what was called a “pupil placement plan” that would minimize any significant movement of Black students into the white schools by requiring an application from each individual family. Labeled attractively “freedom of choice,” the choice was only free for those who were immune from intimidation, retaliation, and economic loss.
In the Lynchburg case, Kennedy appointed federal district judge Thomas Michie, who approved a desegregation plan of at least one grade a year starting with the first grade that gave the school superintendent wide discretion to ignore the “at least” language as well as to draw school attendance zone lines as he thought best. Brown in our view required that school systems convert a segregated, dual system into a nonracial unitary system, not just allow movement of a few Black students into a white school. However, the judge, relying on the ruling in Brown II, wasn’t interested in a fully integrated system. On the rocky Ozark Airlines DC-3 ride back to Washington, the usually calm and contained Nabrit was livid. He railed against judges who saw their role as being community pacifiers—“statesmen,” he sarcastically called them—rather than following the law. What I learned most from Jackson v. School Board of City of Lynchburg5 was that you could win the general principle—ending segregation—and find the specific remedy offered by the courts unsatisfactory.
What I remember most about Charleston, South Carolina, in 1963: “the August heat that no courtroom fan could defeat.”6 But also, how my remarkable co-counsel Constance Baker Motley dealt with a bizarre effort to get a federal trial court to declare the Supreme Court’s decision in Brown wrongly decided on the basis of testimony the school board’s lawyers offered that Blacks were mentally inferior to whites. The result of the case was approval of another freedom-of-choice plan, but the well-financed presentation of junk science was so scandalous that I wrote a chapter about it in my 2017 memoir. Briefly put, Charleston and several other southern communities presented a package of supposedly scientific witnesses in defense of cases LDF brought to end segregated schooling. Testimony was offered about comparative test scores and brain weights of Blacks, whites, and dolphins as well as the negative aspects of integrated neighborhoods, the latter of which was argued by a fringe academic who lived in New York’s Greenwich Village. Judge Robert Martin let this testimony into evidence, though plainly he intended to disregard it; we decided not to dignify the display of bigotry with cross-examination. But when the superintendent of schools testified, Mrs. Motley, whose conduct in this case I have also described in this journal,7 found a way to publicly shame him for his disregard of the Black children in his care. As a result of the suit, two students were admitted to the Rivers High School in 1963, the first two Black children to attend a previously white high school in South Carolina, where they were bullied and taunted. One of them, Millicent Brown, who later earned a PhD in U.S. history, became a college professor and a civil rights and civil liberties activist.8
In 1966 and 1967, I argued two cases involving rural Arkansas school districts before the Eighth Circuit Court of Appeals. The trial courts had dismissed both cases; one involved the dismissal of Black teachers after a segregated school was closed and the other involved efforts to preserve segregation by school construction siting as well as by taking conventionally hostile actions against Black students and teachers. The desegregation landscape was still frozen in the freedom-of-choice era, but by time these cases reached the Court of Appeals, there were signs of a significant meltdown. The 1964 Act prohibited discrimination in federal aid programs, potentially sanctioning recipients with loss of funds—which many school districts needed—and also authorized the federal government to file school desegregation cases. In addition, as a result of the 1964 Civil Rights Act, the Department of Health, Education, and Welfare (HEW) published guidelines for desegregation. The guidelines included a stronger test of effectiveness for the free-choice plans, in effect requiring measurable progress in replacing segregated, dual systems. They also contained an exception for cases already in the courts, which provided a potential loophole for recalcitrant school districts, enabling them to preserve their right to federal funds while pursuing desegregation plans far less stringent than what they would have been subject to under the guidelines for voluntary adoption. At first, there was confusion over the meaning of the regulations, but increasingly, courts welcomed the possibility of telling localities to conform to them. Derrick Bell, who was then deputy director of HEW’s Office of Civil Rights, was at work supporting implementation of the guidelines, a direction very different than what he would be recommending a few years later.
In the earlier of my two cases,9 the Morrilton School Board had closed a Black school and dismissed all the Black teachers. In a lengthy opinion, then Judge Harry Blackmun decided that although the guidelines were not binding on the court, they were entitled to serious deference, that they covered the teachers who had been let go in discriminatory fashion, and that the teachers might be entitled to damages. But when it came to reinstatement of those teachers who wanted to return, so much time had passed that they would be entitled only to a one-time preference in filling such vacancies that existed at the time of the court’s decision. Here was another example of a victory for principle followed by a much narrower remedy than the situation demanded.
By the time I journeyed to St. Louis the following year to present our appeal from a district court dismissal of a case against the school board of the small city of Altheimer in Jefferson County,10 the guidelines had been welcomed by the courts and the three-judge panel I confronted was composed of at least two decidedly liberal jurists from Minnesota and Nebraska. The court issued a comprehensive order ending transportation policies that had two buses traveling the same route: one Black, another white. Complete faculty integration had to begin in the 1969–70 school year. But the judges failed to require that recently constructed school buildings be integrated rather than segregated facilities. Though the guidelines’ insistence on ending the dual system was accepted, freedom of choice as a means of getting there was acceptable. While both the ruling and the tone of the decision were heartening, much discretion was left to the trial judge and school authorities who had opposed meaningful desegregation in the past.
My last school cases were by far the most satisfying, even though my role was only as a contributor to the Supreme Court brief. The Court heard argument in three cases in which I was involved from Virginia, Tennessee, and Arkansas, but the key opinion was from New Kent County, Virginia.11 Located east of Richmond, New Kent was a small rural county forested with pine and hardwood trees. There were only two schools: one Black and one white. The county had little residential segregation; racially divided school buses traveled the same routes. When sued by a group of Virginia lawyers backed by the LDF in 1965, eleven years after Brown, the county adopted the usual freedom-of-choice plan; 115 Black pupils, a relatively large number, ultimately enrolled in the formerly all-white school, but eighty-five percent of the Black students in the system still attended a segregated school. No white children applied to the Black school. We argued that a freedom-of-choice plan was not likely to disestablish the dual school system and that in this county, a geographic zone plan would immediately produce an end to segregation. We called for an explicit abandonment of the “all deliberate speed” doctrine, and the Supreme Court opinion by Justice Brennan responded affirmatively. The New Kent ruling ushered in the first real growth in integrated schools across the South. However, in 1974, the Supreme Court overturned the lower courts in a 5-to-4 decision, holding that a suburban school district had no obligation to accept students from another district unless that district had previously engaged in explicit racial discrimination. This case, styled Milliken v. Bradley,12 doomed efforts to reverse the effects of white flight. In the following decades, the Supreme Court continued to abandon the promise of Brown.
IV. CODA
This essay began with several questions that scholars, activists, and commentators have struggled with over the course of Brown’s more than 70-year history. But while for almost a decade I was a litigator trying to implement the Brown decisions in meaningful ways and, thereafter, a writer-observer of subsequent developments and a colleague of some who were deeply involved in trying to solve the riddles of effective public schooling, I decided to stay removed from the jurisprudential aspects of the Brown canon. An exception perhaps: I have in my writings expressed a deep conviction that human rights litigation is an absolute necessity, though it is very rarely sufficient. Certainly, this maxim stands out from the Brown cases’ journey through the popular imagination—the celebrations, the expressions of dismay, and the many interpretations and critiques they have evoked.
While the answers to the questions I posed are food for thought and learning, I continue to look elsewhere. I ask, for example, what would have happened if the Court had ruled for segregation in 1954, a matter not often discussed by the critics? The Court could not duck the issue posed; when it had avoided it just a few years earlier in a case dealing with interracial marriage, the legal world was scandalized. I wonder if the violence that some find following in Brown’s wake would have emerged in even more flagrant fashion when the dream of many was not only deferred but sealed in precedent. I regard speculation that someday integration would have come about through some form of legislation or social recognition as pure fantasy. In the long run, maybe—but as John Maynard Keynes famously wrote, “in the long run we are all dead.”13
Suffice it to say that Brown has at most a dim connection with efforts today to right the multiple challenges and dysfunctions facing America’s public schools, though that does not mean it won’t be evoked and contested. It has, however, turned into a metaphor that serves as a locus for our racial disputes and battlegrounds. Brown, therefore, is hardly obsolete, but challenging the segregation that was its subject is not a viable avenue for change in today’s legal landscape. That was clear once the Rehnquist Court began allowing school districts to totally avoid federal court oversight when they moved away somewhat from a dual system.14 The Court also eventually ruled that the Constitution provided Black Americans no more special treatment than whites under the Civil War amendments unless they could meet a narrow “strict scrutiny” test of targeted, intentional discrimination. In the 2023 case that doomed affirmative action,15 both sides claimed Brown supported their cause; indeed, Justices in both the majority and the dissenting opinions cited Brown in support of totally different outcomes. Because the temper and demographics of the voters in our electoral system over time closely correlates with political outcomes, which in turn slowly work their way into decisive interpretations of federal and state law, I can see no present judicial path to reversing the impact of resegregated schooling. Brown is like a star in the cosmos, still shining bright but actually moving away from us.16 To the extent I have any guarded optimism, it is largely personal. Through the legacy and forbearance of family and friends, serendipity, luck, and inheriting a culture that taught empathy toward the dispossessed, I have lived an extraordinary and unexpected life. I’m not ready to see the arc bend away from justice conclusively.
More pointedly, in 2018 I got to see some enduring fruits of the work. My daughter Jessica and I were invited to share in the month-long celebration of the fiftieth anniversary of Green v. New Kent County. With one exception, former Richmond mayor Henry Marsh III, the other lawyers on the case were deceased. At the time of the 1960 census, approximately half of the rural county’s 4,500 residents were Black. Before 1965, New Kent’s schools were totally segregated. A bit of history reveals the way it was in the South under the “separate but equal” regime: in 1940, $70.12 was spent per white student in New Kent versus $23.24 per Black student. The white principal was paid $2,095 per year and the Black principal was paid $810 per year. Camilla Tramuel, local historian and chair of the Anniversary committee, quipped, “If they had spent $50 per white student and $50 per [B]lack student … maybe we wouldn’t have complained.”17
The school board maintained a dual system by busing Black students up to twenty miles to the all-Black George W. Watkins School, though the traditionally white New Kent School was for many much closer. But the Supreme Court’s 1968 decision was long awaited and widely understood finally to end the “all deliberate speed” formulation of Brown II. The case affected school systems throughout the nation. The decision’s significance was noted in an exchange between Chief Justice Earl Warren, who had of course written the majority opinion in Brown, and William Brennan, who authored the Green decision. Warren wrote a note to Brennan declaring, “When this opinion is handed down, the traffic light will have changed from Brown to Green.”
The commemoration we attended was moving. It included over a month of educational and inspirational events, many of which celebrated the life of Dr. Calvin C. Green, the pastor and science teacher who, as president of the New Kent Branch of the NAACP, was the force behind the lawsuit. Introduction to the celebration featured a panel of former students, parents, and teachers who lived through the end of segregation and who discussed their often-difficult experiences entering the previously all-white school. A subsequent program covered the history of the Black Watkins School. The One Voice Chorus Ensemble of Richmond gave a musical celebration. The panel I was part of included civil rights figures and academics discussing contemporary civil rights issues. According to Ms. Tramuel, the anniversary month brought New Kent into the public spotlight. What impressed me most was the broad support and interest in the community at large, demonstrated by financial sponsorship from local businesses and an obvious sense of pride, as well as decent attendance by both whites and Blacks.
New Kent, of course, is an outlier with a small population and an absence of major tensions. It has grown steadily since 2018, and the Black population has dropped from fifty to ten percent as retirees have moved in and young people of color have left to find employment elsewhere. The schools, now five in number, are integrated. I left New Kent with a sense of its goodwill and respect between the races that I hope wasn’t just a passerby’s illusion. I decided to hold it close. In these dark times, I like to remember a quote brought to my attention by the great South African lawyer Sir Sidney Kentridge: “It is not necessary to hope in order to work, and it is not necessary to succeed in order to persevere.”18 It will take a lot of work and perseverance to realize an educational system worthy of our children’s potential. Brown was a big step on that road, but recent history makes clear there’s still a very long way to go.19
Notes
“For [Walter] Benjamin, commentary gives life to works, and along with translation, constitutes their afterlives.” Brian Britt, Postsecular Benjamin 159 (2016).
Michael Meltsner, The Making of a Civil Rights Lawyer 148, 170 et seq. (2006).
“The happy Warrior … ’tis, finally, the man, who, lifted high, conspicuous object in a nation’s eye, or left unthought-of in obscurity,—who, with a toward or untoward lot, prosperous or adverse, to his wish or not—plays, in the many games of life, that one where what he most doth value must be won: whom neither shape or danger can dismay, nor thought of tender happiness betray; who, not content that former worth stand fast, looks forward, persevering to the last, from well to better, daily self-surpast: who, whether praise of him must walk the earth forever, and to noble deeds give birth, or he must fall, to sleep without his fame, and leave a dead unprofitable name—finds comfort in himself and in his cause; and, while the mortal mist is gathering, draws his breath in confidence of Heaven’s applause: this is the happy Warrior; this is he that every man in arms should wish to be.” William Wordsworth, “Character of the Happy Warrior,” https://www.goodreads.com/work/quotes/40501256-character-of-the-happy-warrior-a-poem.
Here is the judge writing in another civil rights case: “While we deplore the Negro practice of ‘bloc voting’ with which all observant persons are familiar, not only in Bienville Parish, but in practically all parts of the country, still this factor cannot alter one whit our duty under the 15th Amendment to see to it, wherever we are called upon to do so, that there is no discrimination in voting registration because of race or color. It is to be earnestly hoped that in the future those Negroes who are qualified to vote will achieve a degree of political maturity so as to vote according to the best interests of their State and Nation rather than for their own selfish or venal purposes.” United States v. Ass’n of Citizens Councils of La., 196 F. Supp. 908, 911 (1961).
Jackson v. Sch. Bd. of City of Lynchburg, 203 F. Supp. 701 (W.D. Va. 1962).
Michael Meltsner, With Passion: An Activist Lawyer’s Life 369 (2017).
Michael Meltsner, The Many Lives of Constance Baker Motley, 2 Am. J.L. & Equal. 312 (2022).
Millicent E. Brown, Somebody Had to Do It: School Desegregation Stories, 1954–63, 26 Soc. Stud. & Young Learner 16 (2013).
Smith v. Bd. of Educ., 365 F.2d 770 (8th Cir. 1966).
Kelly v. Altheimer Ark. Pub. Sch. Dist. No. 22, 378 F.2d 483 (1967).
Green v. Cnty. Sch. Bd. of New Kent Cnty., 391 U.S. 430 (1968).
Milliken v. Bradley, 418 U.S. 717 (1974).
John Maynard Keynes, A Tract on Monetary Reform (1923).
Freeman v. Pitts, 503 U.S. 467 (1992). The Court also limited the effect of Green v. New Kent.
Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023).
As Benjamin also argues, the reception and afterlife of a work is often more important than any search for its original meaning. Walter Benjamin, The Task of the Translator, in Selected Writings Volume 1, at 254–55 (Marcus Bullock & Michael W. Jennings eds., 1996).
Personal communication.
Attributed to William of Orange (1533–1584) and others. Also quoted as “One need not hope in order to undertake, nor succeed in order to persevere.”
“I often think about how, in his last address as a president, George Washington implored Congress to fund education. He talked about the way that education is how we build national character and how we build good citizens. We’ve known how important education has been since America’s founding. We’ve seen visionaries pushing for a more equitable education system. That is a goal that remains worthwhile, and it’s under attack.” Lora Kelley, Public Schools Were Not Inevitable, The Atlantic Daily, Nov. 15, 2023 (quoting Adam Harris).
Author notes
Matthews Distinguished University Professor of Law Emeritus, Northeastern University School of Law. Oberlin College A.B. (1957), Yale Law School JD (1960), John Jay College (CUNY) Doctor of Laws (Hon. 2012).