Burke Marshall


Thirty years ago, the Supreme Court's decisions in the Brown litigation started the school systems of the United States on an "experiment" in race relations management, in the sense that Justice Holmes once called the First Amendment "an experiment, as all life is an experiment." The constitutional result of Brown is no longer seriously questioned; it seems clear now at least, as it seemed to most constitutional lawyers in 1954 and 1955, that separate school systems based on race, especially in the context of the open racial oppression by law in the states where dual systems existed, are not constitutionally tolerable under the equal protection clause of the Fourteenth Amendment. What is increasingly at risk is the Court's rationale for its decisions, as well as its theory (if any) of remedy. The rationale for Brown is murky, perhaps intentionally so, perhaps a consequence of the well-publicized desire for unanimity. It has never been altogether clear, for example, whether the Court thought actual educational disadvantage to black students, as opposed to intentional racial separation devoid of any provable adverse effects, was at the heart of the holding in Brown. The Court's treatment of other forms of state-sanctioned segregation strongly suggests that Brown did not turn on, or at least did not require proof of, educational harm.

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