Unfinished Business: Looking at the legacy of Brown v. Board of Education
By:
Doug HerndonSummer 2004
Long before the celebrations began commemorating the 50th anniversary of the Brown v. Board decision, researchers at The Harvard Civil Rights Project documented an alarming pattern of resegregation in America’s public schools. In California’s public schools, radical demographic shifts have redefined the term ‘minority.’ Still, research from the University of California at Los Angeles indicates that more than 60 percent of white students attend majority-white schools and the average Latino or African American student goes to a school where about 80 percent of the student population is not white. The Harvard study was not the first—nor the last—but to date, virtually all of the research leads to one conclusion: While tremendous social and educational strides have been made since the 1954 Supreme Court decision, the legacy of Brown is hazy at best.
The Brown v. Board of Education of Topeka decision has become so integral to the discussion of race relations in the United States that its success is impossible to gauge based on the status of educational equity alone. Leading up to the case, an undercurrent of culturally intolerant legal precedent clashed with the epiphany of indignation expressed by many African-American and Latino World War II veterans who came home ready to inhabit the rights they had risked their lives to defend. On the surface, the nation had grown complacent, lulled by a booming postwar economy and the comfort of a rigid social order. But when Chief Justice Earl Warren handed down a unanimous Supreme Court decision declaring separate educational facilities unequal and unacceptable, that calm cracked wide open and let loose one of the most turbulent social storms the nation has yet endured. Americans reacted with unbridled relief and joy—as well as with shocking violence and unrepentant defiance. It was at once the nation’s brightest moment and its darkest.
The so-called Brown II decision that followed a year later is often maligned for its regressive effect on the implementation of the original decision. In calling for communities to integrate “with all deliberate speed”—it actually required no specific timeline for carrying out that order and allowed those who didn’t support the decision to relocate and reorganize their communities so that integration was geographically inconvenient. The colossal failure of busing as a remedy only exacerbated all the attendant problems, creating more friction and animosity in communities all across the country. At the end of the day, African-Americans and other minorities still lived very segregated lives, and attended inferior schools with inferior facilities, teachers and instructional materials.
A question of equity
Starting as they did with such an enormous cultural handicap, the academic achievement of African-American students has obviously skyrocketed since the early 20th century. But minority students only gained so much ground on their white peers before those gains sputtered to a disappointing and somewhat mysterious halt. That illusive gap in achievement between the races is now known as the Achievement Gap—a new name for an old problem and the latest incarnation of the struggle for educational equity.
EdSource, a non-profit, non-partisan education think tank based in the San Francisco Bay Area, reports that 82 percent of white students and 76 percent of Asian students passed the English/language arts portion of California’s High School Exit Exam in 2002, while only 50 percent of African-Americans, 48 percent of Latinos and 63 percent of Native Americans passed. In mathematics, the news was worse: Only 24 percent of African-Americans, 25 percent of Latinos and 42 percent of Native Americans passed, compared to 64 percent of whites and 70 percent of Asian American students.
School boards all across the country are taking note of the gap and beginning to focus on possible solutions.
“In the past we were content to look at averages—averages always improved,” says Dan Walden a past president of the California School Boards Association and a school Board member in the Bay Area’s Walnut Creek. “So we thought we were doing a good job educating children. But now we have a greater ability to disaggregate the data we look at and to isolate the achievement of those subgroups. We’re increasingly coming to grips with the understanding that we are not providing the same high-quality education to all children. Where we need to go now as board members and communities is to learn more about how, within our roles, we can make the changes necessary to raise the achievement of the lower performing groups faster.”
What may be most vexing of all to educators like Walden is the fact that many of the reasons often cited for the continuing gap in standardized test scores are the same as those offered by educational equity advocates since well before the Brown case: poor facilities, inadequate instructional materials, underqualified teachers, and high staff turnover.
John Rogers is on the School of Education faculty at the University of California at Los Angeles. As a member of its Institute for Democracy, Education and Access, Rogers has done extensive research on the achievement gap and the resegregation taking place in California schools. He’s developed an index of “critical opportunity problems” that offers some distressing insights into the issues faced by schools and communities where the Achievement Gap is most visible. The problems of under-qualified teachers, high staff turnover and inadequate instructional materials and facilities are certainly not new to the discussion, but the relationship between the number of those problems a school has and the degree of segregation it manifests is enlightening.
“What we found is that the schools that have at least three of those four problems are disproportionately schools that serve 90-100 percent non-white students,” says Rogers. “Only 7 percent of majority-white schools have at least three of those problems.” Further, Rogers found that no majority-white school suffers from all four opportunity problems. “So students attending schools where 90 percent or more of their schoolmates are non-white are 6 times as likely to experience serious opportunity problems than students in schools with majority-white populations.”
Is celebration really in order?
It’s important to remember that racial integration was never the goal of the parent-plaintiffs represented in the five lawsuits the Supreme Court combined to become Brown v. Board of Education of Topeka (see Speak Up). Neither was it the goal of the young Thurgood Marshall who led the legal effort for the National Association for the Advancement of Colored People. The goal was educational equity among the races—a right Marshall believed was absolutely guaranteed by the 14th Amendment’s promise of equal protection under the law for all Americans. The Brown plaintiffs stood up to demand the same education for their children that the white children in their community were offered. Marshall and the NAACP stood up to demand the same thing for African-American children all across the country.
A “separate but equal” California
In California, there is a tendency to remove ourselves somewhat from the discussion of segregation. Whether that’s due to a misinformed notion that California was never legally segregated or because the state’s intense diversity leads us to think that we’ve transcended the issue, it’s important to note that the judicial history of California is as fraught with racist overtones as any state—including those in the deep South that tend to shoulder most of the cultural blame for segregation. In its defense, California did manage to settle the issue of segregation in its schools eight years before the Brown decision was handed down. In fact, the case that struck down segregation in California, Mendez v. Westminster School District, was arguably one of the most significant influences in the outcome of the Brown case itself.
By 1870—just 21 years after California entered the union as a “free state” for former slaves – its Education Code stipulated that “the education of children of African descent, and Indian children, shall be provided for in separate schools.”
Four years later, when 11-year-old Mary Flood was denied access to the San Francisco public school nearest her home because of her African-American heritage, her parents sued the principal of the school. The California Supreme Court sided with the principal, setting the precedent that, so long as they are “educated upon equal terms” students of color may indeed be kept separated from the white community in California public schools. With that, California was on the books with its own “separate but equal” clause—22 years before the U.S. Supreme Court handed down its notorious Plessy v. Ferguson opinion establishing the same precedent on a national level.
It was the Plessy decision that repeatedly blocked Marshall and the NAACP from success in the courts. In case after case, year after year, the decisions of judges—even those claiming sympathy for Marshall’s cause—cited an obligation to Plessy.
Ironically, Plessy had nothing to do with education—neither, in fact, did it establish the practice of “separate but equal.” Homer Plessy might best be characterized as the Rosa Parks of his time—he sued the state of Louisiana after being arrested for refusing to sit in the “colored” car of a train. The court decision that bears his name simply upheld the Louisiana statute that provided “for separate railway carriages for the white and colored races.” In delivering that opinion, the court cited California’s Ward v. Flood along with similarly resolved cases in many other states. Even a cursory look at early 20th century case law makes it clear that once Plessy was established, attacks on segregation via the 14th Amendment’s guarantee of equal protection had virtually no chance of success. But just as Marshall’s failure to overcome Plessy defined the early part of his effort, it would also be the case that most clearly defined the legacy of his success in Brown v. Board.
As Marshall searched for the cases and plaintiffs with the greatest chance of success in enforcing educational equity, he served as counsel or consultant to many of the relevant cases of the day. In the Brown case, Marshall argued on behalf of several African-American families whose children were denied access to nearby public schools and forced to ride a bus for as many as two hours each day. But his journey started long before he met the Brown plaintiffs. In fact, perhaps one of the more fateful stops along the way was his involvement with a similar case in the Westminster School District in Orange County, California.
The California connection
According to UCLA’s Rogers, many California schools were well integrated in the late 40s, but Westminster—home to a sizable Mexican community—was not. When Gonzalo Mendez tried to enroll his daughter Sylvia at the public school nearest their home, the school at first agreed to enroll all three of the Mendez children. But when Mendez found out the same offer would not be extended to the rest of the Latino community, he refused —and filed a class action suit with four other families from four other Orange County districts—declaring that the suit represented 5,000 members of the Mexican American community. Marshall filed a “friend of the court” brief in the case, using arguments he would later use in Brown. Initially, a lower court sided with the districts, but upon appeal Mendez emerged victorious with a decision that read, in part:
“The equal protection of the laws’ pertaining to the public school system in California is not provided by furnishing in separate schools the same technical facilities, text books and courses of instruction to children of Mexican ancestry that are available to the other public school children regardless of their ancestry. A paramount requisite in the American system of public education is social equality. It must be open to all children by unified school association regardless of lineage.”
Not only did the Mendez case provide a testing ground for Marshall’s arguments in Brown, it inspired California’s then-Gov. Earl Warren to sign an executive order making segregation in California public schools illegal—that’s the same Earl Warren who was soon thereafter appointed Chief Justice of the U.S. Supreme Court and who later wrote the historic opinion in the Brown case.
A test of time
Was Brown v. Board a success? Did it accomplish all it set out to accomplish? It seems those are two very different questions. In terms of the American civil rights movement, there can be no denying that Brown was a monumental success—a watershed victory for all Americans who have an interest in preserving their own civil rights. Just as Plessy v. Ferguson wielded such influence in the American judicial system during the first half of the century, Brown dominated the latter half. And as there is no clear end to this struggle in sight, it will undoubtedly continue to hold sway in the courts of the 21st century.
Today, California educators wrestle with cases like Williams v. State of California or Ho v. San Francisco Unified School District. Plaintiffs in the Williams case, represented by the American Civil Liberties Union, claim that California’s education system does not ensure all students equal access to basic educational opportunities. They’ve alleged a familiar list of complaints—that students, particularly those of color and from low-income families, face intolerable conditions resulting from overcrowding, lack of textbooks, the absence of fully qualified teachers and decaying school facilities, and have asked the court to create a statewide system of standards and enforcement. The plaintiffs’ argument is decades old, and one that few in the education community would take issue with, but CSBA’s Education Legal Alliance has intervened in the suit, fearing that the suggested solution to the problem would really only exacerbate the problems the suit seeks to resolve.
“The importance of this case can’t be overstated—it has the potential to profoundly affect public education as we know it,” says CSBA’s General Counsel John Bukey. “But not necessarily in the most positive way. We intervened to represent the interests of school districts because, among other things, we believe it’s important for the court to understand that establishing state standards without providing districts with the resources to implement those standards is at best meaningless—and likely to be far worse, since such standards might subject districts to enforcement action through courts or state agencies.”
In the Ho case, a group of Chinese Americans students sued the San Francisco Unified School District, essentially claiming its practice of using race as a factor in making student assignments—part of the district’s voluntary desegregation program—was unconstitutional. The case was settled in 1999, resulting in a new student assignment program that has generated much less controversy. It’s a post-modern twist on the tale of civil rights in California to be sure, and one that SFUSD Board member Jill Wynns says illustrates the danger in thinking the job was done when the Brown case was resolved.
“That’s the lesson of Brown—we thought that if only we could get the kids sitting next to each other it would be done,” says the 12-year member of the San Francisco board. “Today, we are sophisticated enough to know that the answer is not simple on any level. The job will never be done. And people who are responsible for schools need to remember that this is not a job we will complete. These are situations that have to be managed—and they always will.”
While the job may never truly be done, the institutional racism and oppression that the Plessy case set in motion was not only halted, but reversed by Brown. Once our schools were integrated, the rest of our social institutions followed: public transportation, restaurants, restrooms, the workplace, the theatre—almost anywhere people come together, their right to do so is well protected. Kimberly West-Faulcon who carries on the Marshall legacy as director of the Western Regional Office of the NAACP’s Legal Defense Fund may have said it best when she recently declared before California’s Select Committee on Urban Youth that “Brown is the case that ended American Apartheid.” Even the life of Thurgood Marshall himself—who went on to become America’s first African-American Supreme Court Justice—serves as a testament to the decision, and the years he struggled to win that decision. But Marshall himself did not believe that he had achieved what he set out to do in arguing the Brown case, according to his biographer, Juan Williams, Emmy-award winning writer of the civil rights documentary, “Eyes on the Prize,” and the 1998 biography, “Thurgood Marshall: American Revolutionary.”
Speaking to school board members from all across the country at a meeting of the National School Boards Association in April of this year, Williams wasn’t sure either. But he had this message to offer to school Board members about their role in the continuing struggle for educational equity:
“I can think of no other group that I could be speaking to with greater relevance in terms of taking on the challenge of … what Brown meant 50 years ago. When we think about making Brown real in this day and age and offering future generations some representation of the possibility of equal education opportunity, this moment exists in a way that I think history will pay extraordinarily close attention to in terms of the actions that you take in your communities with regard to delivering on that promise of equal opportunity for all children regardless of income, regardless of race. ...
"The fact is that dream remains in the hearts of many Americans to this moment, the fact is that that dream now is in each and every one of your hands as people who offer vision about the future of education in America in your communities, as school board members. That dream and Thurgood Marshall’s legacy truly plays out in each and every one of your offices.”
Doug Herndon was managing editor of California Schools in 2004.