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Brown V. Board Of Education: Enduring Caste And American Betrayal, Sheryll Cashin

Georgetown Law Faculty Publications and Other Works

This article reflects on the role of residential caste in reproducing school segregation and how the Supreme Court betrays the equality principles of Brown by applying a colorblind constitutionalism that renders so-called de facto residential caste, and subsequent school segregation, acceptable.

During the seven-decade Great Migration of the 20^th century, northern cities deployed policies to create an architecture of inequality in which African Americans and white Americans did not live in the same neighborhoods. While the Fair Housing Act of 1968 rendered intentional discrimination in housing markets illegal, and the Court also ruled against forms of intentional housing discrimination, …

Evading A Race-Conscious Constitution, Cara Mcclellan

All Faculty Scholarship

The idea of a “colorblind” Constitution is front and center in cases before the Supreme Court this term, including Students for Fair Admissions v. President & Fellows of Harvard College, and Students for Fair Admissions v. University of North Carolina (UNC). In these cases, the same plaintiff organization, Students for Fair Admissions (SFFA), has asked the Supreme Court to rule that the Equal Protection Clause and Title VI of the Civil Rights Act of 1964 prohibit universities from considering race as one of many factors in admissions to pursue the educational benefits that flow from diversity. In support …

Ruth Bader Ginsburg, Wise Legal Giant, Thomas A. Schweitzer

Scholarly Works

No abstract provided.

Nine Ways Of Looking At Oklahoma City: An Essay On Sam Anderson’S Boom Town, Rodger D. Citron

Scholarly Works

No abstract provided.

Brown, Massive Resistance, And The Lawyer's View: A Nashville Story, Daniel Sharfstein

Vanderbilt Law School Faculty Publications

Every grassroots story complicates what we already know, and the history of Cecil Sims and his world48 stands out in at least two important ways. First, Sims's work on issues relating to segregated education predates Brown. In the late 1940s, as Southern states responded to Supreme Court decisions desegregating graduate education, Sims assumed a central role in developing nominally race-neutral proposals that involved a series of complex transactions and legal forms. Just as the Civil Rights Movement began years before Brown and the Montgomery Bus Boycott, Sims is emblematic of the segregated South's "long history" of resistance to civil rights. …

Reconceptualizing The Harms Of Discrimination: How Brown V. Board Of Education Helped To Further White Supremacy, Angela Onwuachi-Willig

Faculty Scholarship

For decades, literature has played a vital role in revealing weaknesses in law. The classic novel To Kill a Mockingbird by Harper Lee is no different. The long-revered work of fiction contains several key scenes that illuminate significant gaps in the analysis of one of our most celebrated decisions: Brown v. Board of Education, the case in which the U.S. Supreme Court held that state-mandated racial segregation in public schools violated the Equal Protection Clause of the Constitution. In particular, the novel opens a pathway that enables its readers to visualize the full harms of white supremacy, which include …

The Ironies Of Affirmative Action, Kermit Roosevelt Iii

All Faculty Scholarship

The Supreme Court’s most recent confrontation with race-based affirmative action, Fisher v. University of Texas, did not live up to people’s expectations—or their fears. The Court did not explicitly change the current approach in any substantial way. It did, however, signal that it wants race-based affirmative action to be subject to real strict scrutiny, not the watered-down version featured in Grutter v. Bollinger. That is a significant signal, because under real strict scrutiny, almost all race-based affirmative action programs are likely unconstitutional. This is especially true given the conceptual framework the Court has created for such programs—the way …

Keynote Speech: A Letter From The Original Cause Lawyer, F. Michael Higginbotham

All Faculty Scholarship

This symposium speech is a short piece which talks about why there is a need for law students to become cause lawyers, the symposium being: cause lawyers and cause lawyering in the sixty years after Brown v. Board of Education. The writer creates an allegorical scene where he's snowed in in his home during a snowstorm, lightning strikes his computer, and the computer comes to life in the form a message being typed, and "channeled" to him by Thurgood Marshall. The former Justice of the Supreme Court proceeds to state the many reasons why there is still a need for …

Rights And Wrongs In The Debate Over Single-Sex Schooling, Rosemary C. Salomone

Faculty Publications

(Excerpt)

In September 2011 an article entitled The Pseudoscience of Single-Sex Schooling appeared in the journal Science. Unlike articles typically published in peer-reviewed journals, the primary intent in this case was not to inform the scholarly community but rather to accomplish larger political and legal ends. Co-authored by eight prominent psychologists and neuroscientists, it immediately made the front pages of national newspapers and soon took the international media by storm. From the United Kingdom to Australia, New Zealand, India, and South Africa, it gave rise to a global debate about the pros and cons of single-sex schooling.

As directly …

Originalism And The Other Desegregation Decision, Ryan C. Williams

All Faculty Scholarship

Critics of originalist approaches to constitutional interpretation often focus on the “intolerable” results that originalism would purportedly require. Although originalists have disputed many such claims, one contention that they have been famously unable to answer satisfactorily is the claim that their theory is incapable of justifying the Supreme Court’s famous 1954 decision in Bolling v. Sharpe. Decided the same day as Brown v. Board of Education, Bolling is the case that is most closely associated with the Supreme Court’s so-called “reverse incorporation” doctrine, which interprets the Due Process Clause of the Fifth Amendment as if it effectively "incorporates" the Fourteenth …

Rehnquist's Missing Letter: A Former Law Clerk's 1955 Thoughts On Justice Jackson And Brown, John Q. Barrett, Brad Snyder

Faculty Publications

"I think that Plessy v. Ferguson was right and should be reaffirmed." That's what Supreme Court law clerk William H. Rehnquist wrote privately in December 1952 to his boss, Justice Robert H. Jackson. When the memorandum was made public in 1971 and Rehnquist's Supreme Court confirmation hung in the balance, he claimed that the memorandum reflected Jackson's views, not Rehnquist's. Rehnquist was confirmed, but his explanation triggered charges that he had lied and smeared the memory of one of the Court's most revered justices. This Essay analyzes a newly discovered document—a letter Rehnquist wrote to Justice Felix Frankfurter in 1955, …

Maryland Lawyers Who Helped Shape The Constitution: Father Of Freedom - Charles Hamilton Houston, José F. Anderson

All Faculty Scholarship

For most Americans, Charles Hamilton Houston is barely a footnote in history. Born in 1896, this Phi Beta Kappa graduate of Amherst College and Harvard educated African-American lawyer went on to win eight of nine cases in the United States Supreme Court. He designed the legal strategy for the historic Brown v. Board of Education 347 U.S. 483 (1954). He was the first African American to be elected to the Harvard Law Review and the first to earn the degree Doctor of Juridical Science Degree

By 1950 he would be laid to rest, exhausted by his brutal multi-state law reform …

The Thirteenth Amendment And Interest Convergence, William M. Carter Jr.

Articles

The Thirteenth Amendment was intended to eliminate the institution of slavery and to eliminate the legacy of slavery. Having accomplished the former, the Amendment has only rarely been extended to the latter. The Thirteenth Amendment’s great promise therefore remains unrealized.

This Article explores the gap between the Thirteenth Amendment’s promise and its implementation. Drawing on Critical Race Theory, this Article argues that the relative underdevelopment of Thirteenth Amendment doctrine is due in part to a lack of perceived interest convergence in eliminating what the Amendment’s Framers called the “badges and incidents of slavery.” The theory of interest convergence, in its …

Reading Charles Black Writing: "The Lawfulness Of The Segregation Decisions" Revisited, Kendall Thomas

Faculty Scholarship

The year 2010 marked the fiftieth anniversary of the publication of Charles L. Black, Jr.'s "The Lawfulness of the Segregation Decisions." Professor Black's magisterial essay on the Supreme Court's 1954-1955 decisions in Brown v. Board of Education and its companion cases is, by any account, a foundational text in the scholarly literature on race and law in the United States. Black's short but searing defense of Brown introduced ideas and arguments about race, about law, and about the law of race that transformed the field. I can think of no better way to celebrate this inaugural issue of the Columbia …

Resurrecting The Promise Of Brown: Understanding And Remedying How The Supreme Court Reconstitutionalized Segregated Schools, Kimberly J. Robinson

Law Faculty Publications

The Supreme Court's decision in Brown v. Board of Education held that separate educational facilities were "inherently unequal." After tolerating substantial delay and evasion of the requirements of Brown, the Court eventually required school districts to dismantle the dual systems by eliminating all traces of separate schools and creating integrated schools. In contrast to numerous scholars that have contended that many of the Court's later school desegregation decisions withdrew from or grew weary of school desegregation, this Article argues that the effect of many of the Court's leading school desegregation decisions was to reconstitutionalize segregated schools. Furthermore, the Court's …

Protecting The Dignity And Equality Of Children: The Importance Of Integrated Schools, Sharon E. Rush

UF Law Faculty Publications

The primary goal of this Article is to motivate equality-minded people to renew their commitment to the goal of invalidating the race myth – a belief in white superiority and black inferiority – that has plagued this country far too long. When the Supreme Court ruled in Brown that “separate is inherently unequal,” it understood that integrated schools were necessary to achieve racial equality because only by teaching children to respect each other’s dignity, is it possible to debunk the race myth. This Article suggests that “integration” is about more than ensuring that children have the opportunity to physically share …

'Neutral Principles': Herbert Wechsler, Legal Process, And Civil Rights, 1934-1964, Anders Walker

All Faculty Scholarship

This paper recovers Columbia Law Professor Herbert Wechsler's constitutional involvement in the long civil rights movement. Derided for criticizing Brown v. Board of Education in 1959, Wechsler first became involved in civil rights litigation in the 1930s, continued to be interested in civil rights issues in the 1940s, and argued one of the most important civil rights cases to come before the Supreme Court in the 1960s. His critique of Brown, this article maintains, derived not from a disinterest in the black struggle but from a larger conviction that racial reform should be process rather than rights-based. By recovering Wechsler's …

Freedom Of Association, The Communist Party, And The Hollywood Ten: The Forgotten First Amendment Legacy Of Charles Hamilton Houston, José F. Anderson

All Faculty Scholarship

Charles Hamilton Houston, the most important civil rights lawyer of the first half of the 20th century who developed the legal strategy in Brown v. Board of Education, ended his fabulous legal career representing a group of Hollywood screen writers known as the Hollywood Ten. See Lawson and Trumbo v. United States, 176 F.2d 49 (D.C. App.1949). In that case convictions and jail sentences were upheld for the defendants' failure to answer questions from the House Committee on Un-American Activities (HCUA) about their views on communism and whether or not each was members of the Communist Party. The matters in …

Dr. King And The Battle For Hearts And Minds, Wendy B. Scott

Faculty Scholarship

In 1954, a unanimous Supreme Court held that laws requiring dual public school systems, separated solely on the basis of race, violated the rights afforded to African American children under the Fourteenth Amendment Equal Protection and Due Process clauses. Brown v. Board of Education marked the beginning of a judicial assault on what the Court in Loving v. Virginia called statutory schemes and state court decisions that served as “an endorsement of the doctrine of White Supremacy.” Both Chief Justice Earl Warren and Dr. King recognized that the practice of White Supremacy did more than keep people separated. In Brown, …

"Neutral" Principles: Rethinking The Legal History Of Civil Rights, 1934-1964, Anders Walker

All Faculty Scholarship

This paper recovers Columbia Law Professor Herbert Wechsler's constitutional involvement in the long civilrights movement. Derided for criticizing Brown v. Board of Education in 1959, Wechsler first became involved in civil rights litigation in the 1930s, continued to be interested in civil rights issues in the 1940s, and argued one of the most important civil rights cases to come before the Supreme Court in the 1960s. His critique of Brown, this article maintains, derived not from a disinterest in the black struggle but from a larger conviction that racial reform should be process rather than rights-based. By recovering Wechsler's approach, …

Brown And The Colorblind Constitution, Christopher W. Schmidt

All Faculty Scholarship

This Essay offers the first in-depth examination of the role of colorblind constitutionalism in the history of Brown v. Board of Education. In light of the recent Supreme Court ruling in Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007), such an examination is needed today more than ever. In this case, Chief Justice John Roberts drew on the history of Brown to support his conclusion that racial classifications in school assignment policies are unconstitutional. Particularly controversial was the Chief Justice's use of the words of the NAACP lawyers who argued Brown as evidence for his colorblind …

Freedom Comes Only From The Law': The Debate Over Law's Capacity And The Making Of Brown V. Board Of Education, Christopher W. Schmidt

All Faculty Scholarship

From the late nineteenth into the mid-twentieth century, civil rights reformers fought, with little success, against the argument that law was powerless to change prejudicial attitudes and customs. It was widely assumed during the Jim Crow era that forcing the principle of racial equality on resistant southern whites might turn desegregation into yet another failed experiment in social reform by legal fiat - another Reconstruction or Prohibition. In the 1940s and 1950s, these assumptions began to give way because of the efforts of liberal scholars and activists who made the case that legal reform could be particularly effective at combating …

Judicial Decision-Making, Social Science Evidence, And Equal Educational Opportunity: Uneasy Relations And Uncertain Futures, Michael Heise

Cornell Law Faculty Publications

No abstract provided.

Parents Involved And The Meaning Of Brown: An Old Debate Renewed, Jonathan L. Entin

Faculty Publications

In Parents Involved in Community Schools v. Seattle School District No. 1 the Supreme Court debated the meaning of Brown v. Board of Education. This essay, prepared for a symposium on Parents Involved, traces the roots of the debate between color-blindness and anti-subordination to Brown itself and efforts to desegregate public schools in the wake of that decision but shows that the debate goes back at least as far as the tensions reflected in the first Justice Harlan's celebrated dissent in Plessy v. Ferguson.

Reflections On Justice Kennedy's Opinion In Parents Involved: Why Fifty Years Of Experience Shows Kennedy Is Right, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.

Revisiting "The Need For Negro Lawyers": Are Today's Black Corporate Lawyers Houstonian Social Engineers?, H. Timothy Lovelace Jr.

Articles by Maurer Faculty

No abstract provided.

Framing Affirmative Action, Kimberlé W. Crenshaw

Faculty Scholarship

With the passage of the Michigan Civil Rights Initiative ("MCRI"), Michigan joins California and Washington to constitute the new postaffirmative action frontier. For proponents such as Ward Connerly, affirmative action is on the edge of extinction. Connerly plans to carry his campaign against what he calls "racial preferences" to eight states in 2008, scoring a decisive Super-Tuesday repudiation of a social policy that he portrays as the contemporary face of racial discrimination.

On the other side of the issue, proponents of affirmative action are struggling to regroup, fearful that the confluence of lukewarm support among Democratic allies, messy presidential politics …

Two "Wrongs" Do/Can Make A Right: Remembering Mathematics, Physics, & Various Legal Analogies (Two Negatives Make A Positive; Are Remedies Wrong?) The Law Has Made Him Equal, But Man Has Not, John C. Duncan Jr

Journal Publications

This article demonstrates the incomplete logic and inconsistent legal reasoning used in the argument against affirmative action. The phrase "two wrongs don't make a right" is often heard in addressing various attempts to equalize, to balance, and to correct the acknowledged wrongs of slavery and segregation and their derivative effects. Yet, "two wrongs do/can make a right" has a positive connotation. This article reviews the history of societal and judicial wrongs against Blacks, as well as the evolution of the narrowing in legal reasoning concerning discrimination against minorities, including Blacks. Next, the legal reasoning behind legacy programs will be reviewed …

Education And Interrogation: Comparing Brown And Miranda, John H. Blume, Sheri Lynn Johnson, Ross Feldmann

Cornell Law Faculty Publications

Although the Warren Court had its share of grand decisions, perhaps it should be known instead for its grand goals--particularly the goals of ending America's shameful history of segregation and of providing a broad array of constitutional rights to persons accused of committing crimes. Brown v. Board of Education and Miranda v. Arizona, the two most well-known decisions of the Warren Court (and possibly the two most well-known decisions in the history of the Supreme Court), best capture the Court's labor in the rocky fields of our nation's legal, political, and cultural life. In this Article, we explore certain parallels …

True Integration: Advancing Brown's Goal Of Educational Equity In The Wake Of Grutter, Lia Epperson

Articles in Law Reviews & Other Academic Journals

The late Supreme Court Justice Thurgood Marshall, founder of the NAACP Legal Defense Fund ("LDF"), and head of the legal team that litigated Brown v. Board of Education,' knew well the challenges that desegregation posed in a nation founded on a system of racial subjugation and white supremacy. A full thirty years after Brown, he acknowledged: Desegregation is not and was never expected to be an easy task. Racial attitudes ingrained in our Nation's childhood and adolescence are not quickly thrown aside in its middle years.... In the short run, it may seem to be the easier course to allow …