Over the decades, the Brown decision, like other landmark cases, has gained a life quite apart from the legal questions it was intended to settle. The passage of time has calmed both the ardor of its admirers and the ire of its detractors. Today, of little use as legal precedent, it has gained in reputation as a measure of what law and society might be. That noble image, dulled by resistance to any but minimal steps toward compliance, has transformed Brown into a magnificent mirage, the legal equivalent of that city on a hill to which all aspire without any serious thought that it will ever be attained.
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Considered within the context of American political, economic, and cultural life, the Brown decision is a long-running racial melodrama. As with a film or play, the decision stimulated varying feeling. It energized the law, encouraged most black people, enraged a great many white people, and, like so many other racial policies, served the nation’s short-term but not its long- term interests. Generating an emotionally charged concoction of commendations and condemnations, the Brown decision recreated the 19th century’s post- Civil War Reconstruction/Redemption pattern of progress followed by retrogression. It stirred confusion and conflict into the always-vexing question of race in a society that, despite denials and a frustratingly flexible amnesia, owes much of its growth, development, and success to the ability of those dominant members of society who use race to both control and exploit most people, whatever their race.
As had happened in the past, the law employing the vehicle of a major judicial decision offered symbolic encouragement to the black dispossessed. The substantive losses so feared by its white adversaries evolved almost unnoticed into advances greater for whites than for blacks. And a half-century later, as must now be apparent to all, the nation’s racial dilemma—modernized and, one might say, “colorized,"— has become more complex rather than simplified. The ever-widening racial disparities in all aspects of life overshadow the gains in status achieved by those black Americans who, by varying combinations of hard work and good fortune, are viewed as having “made it.” Indeed, although it did not achieve what its supporters hoped for, historians and other social scientists, safely removed from the fray, may come to view Brown as the perfect precedent. As a dictionary would define perfect, it was: “pure, total; lacking in no essential detail; complete, sane, absolute, unequivocal, unmitigated, an act of perfection.”
They will have a point. In law, perfection in the social- reform area is a legal precedent that resolves issues in a manner that: (1) initially or over time gains acceptance from broad segments of the populace; (2) protects vested property in all its forms through sanctions against generally recognized wrongdoers; (3) encourages investment, confidence, and security through a general upholding of the status quo; and (4) while recognizing severe injustices, does not disrupt the reasonable expectations of those not directly responsible for the wrongs. Such reform is arranged of seeming necessity within the context of a silent covenant. That is, the policymakers who approve the policy do so with the knowledge, unspoken but clearly understood, that they or those who follow them stand ready to modify or even withdraw the reforms where adverse reaction or changed circumstances threaten any of the first three components.
Arguably, the Brown decision eventually met each of these standards. The question is whether another approach than the one embraced by the Brown decision might have been more effective and less disruptive in the always-contentious racial arena. The claim that the perfect is the enemy of the good sounds like a bureaucratic excuse for failing to do what needs to be done. At least in the first Brown decision, the Supreme Court did not settle for the pragmatic approach. Overcoming fears of predictable resistance, the court sought to change society with one swift blow. A year later, the court, in Brown II, reacted to the outraged cries of “never” coming from the South and the absence of support from the executive and legislative branches, and backed away from its earlier commitment. In evident response to the resistance, the court issued a fall-back decision that became a prelude to its refusal to issue orders requiring any meaningful school desegregation for almost 15 years. ...
Brown, then, served to reinforce the fiction that, by the decision’s rejection of racial barriers posed by segregation, the path of progress would be clear. Everyone can and should make it through individual ability and effort. One would have thought that this reinforcement of the status quo would placate if not please even the strongest supporters of segregation. To the contrary, the Brown decision provided politicians with a racial issue with which to enrage and upset large groups of white people, initially in the South, but far more generally as efforts to implement the decision moved across the country.
In effect, they demanded the name of segregation as well as the game of racial preference. Courts initially responded to this resistance with caution intended to give time for the process to work, and later with a series of stronger and more specific orders intended as much to uphold judicial authority as to effectively carry out the mandate of Brown. These orders were carried out eventually, but the fear of sending their children to desegregated schools led many white parents either to move to mainly white school districts or to enroll their children in private, all-white schools. With their departure went the primary reason for racial-balance remedies. …
Landmark decisions are, at bottom, designed through reference to constitutional interpretations and supportive legal precedents to address and hopefully resolve deeply divisive social issues. They are framed in a language that provides at least the appearance of doing justice without unduly upsetting large groups whose potential for noncompliance can frustrate relief efforts and undermine judicial authority. For reasons that may not even have been apparent to the members of the Supreme Court, their school desegregation decisions achieved over time a far loftier place in legal history than they were able to accomplish in reforming the ideology of racial domination that Plessy v. Ferguson represented.
Brown teaches that advocates of racial justice should rely less on judicial decisions and more on tactics, actions, and even attitudes that challenge the continuing assumptions of white dominance. History as well as current events call for realism in our racial dealings. Traditional statements of freedom and justice for all, the usual fare on celebratory occasions, serve to mask continuing manifestations of inequality that beset and divide people along lines of color and class. These divisions have been exploited to enable an uneasy social stability, but at a cost that is not less onerous because it is all too obvious to blacks and all but invisible to a great many whites. ...
The landscape for meaningful racial reform is neither smooth nor easily traveled. History’s lessons have not been learned, and even at this late date may not be teachable. Racial reforms that blacks view as important are opposed by many whites as a threat to their status, an unfair effort to make them pay for wrongs that neither they nor their families have committed. Color blindness, now as a century ago, is adopted as the easy resolution of issues of race with which the nation would rather not wrestle, much less try seriously to resolve. It is an attractive veneer obscuring flaws in the society that are not corrected by being hidden from view. Brown v. Board of Education was a dramatic instance of a remedy that promised to correct deficiencies in justice far deeper than the Supreme Court was able to understand.
Coverage of the 50th anniversary of the Brown decision is underwritten by grants from the Ford and Rockefeller foundations.
Derrick Bell is a visiting professor of law at New York University, and was for 15 years a member of the Harvard Law School faculty. During the 1960s, as an NAACP Legal Defense and Educational Fund lawyer, he handled and supervised hundreds of school desegregation cases. This essay is adapted from his book Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform, copyright © 2004 by Oxford University Press Inc., and is used by permission of Oxford University Press Inc.
