Brown Out?

The Supreme Court’s landmark decision is coming under fire. Why it’s worth defending.

There was a time, not that long ago, when racial discrimination was so widespread that even its opponents had a hard time imagining its defeat. But racial discrimination–in our laws, if not in our hearts and minds–has been eradicated. How did it happen, and were the approaches taken the right ones? The view in the popular mind–and the predominant argument in academia–has been that the litigation campaign culminating in the 1954 Brown v. Board of Education decision, ending de jure segregation of our nation’s schools, was a moral high-watermark of the last century that sparked the civil rights movement. Yet, precisely because the challenge of bringing racial justice to our nation was so daunting, civil rights advocates in the years leading up to Brown devised a variety of other approaches to dismantling segregation. These strategies have been overlooked for years, but in her new and intellectually stimulating book The Lost Promise of Civil Rights, University of Virginia Law Professor Risa Goluboff mines the legal pre-history of Brown and unearths a long-forgotten approach–specifically, civil rights claims based on class and economic opportunity. Asking us to put aside the reverence we have for the landmark decision, Goluboff argues something that, on the surface, sounds heretical: that the full-frontal attack on Jim Crow that defined the civil rights era may not have been the best strategy for winning equality and justice.

Goluboff’s analysis is well-timed. The renewed debate over remedies for segregation, marked by the Supreme Court’s June 28, 2007, decision involving school districts in Seattle and Louisville that prohibited voluntary school integration plans, implicitly calls the legacy of Brown into doubt. Thus the questions raised by Goluboff are uncomfortable, but pressing: Was the NAACP’s victory in Brown a pyrrhic one? And if so, what does that mean for the last half-century of civil rights achievements?

Since 1954, generations of judges, lawyers, and ordinary people have viewed civil rights as a project of breaking down formal legal barriers to integration, especially in the context of public education. Goluboff, however, describes a period in which lawyers were not so sure of that course, and in which they considered many conceptual approaches to achieve equal opportunity for African Americans and to overcome the crude and blatant denials of equality. For example, in the 1930s and 1940s, black agricultural workers in the American South and industrial workers across the nation signed petitions calling for an assault on economic and legal inequalities. Lawyers in the Civil Rights Section of the Department of Justice (established in 1941) and at the NAACP made employment cases a priority, arguing that the due process clause of the Fourteenth Amendment protected a fundamental right to work as central to American life. They filed suits against federal and state government entities, labor unions, and private employers to end wage discrimination and to gain and retain jobs for black workers. They also worked to blur the distinction between private and state action in order to win suits against private employers.

But, Goluboff concludes, this emphasis on economic inequality was abandoned by NAACP lawyers in 1950, when they ended litigation of worker’s cases and decided to focus their efforts on segregation in public education and public facilities. After World War II, industry had begun downsizing and all workers lost jobs. Arguing for racial inclusion when workers were being laid off in droves was unproductive, and industrial workers were no longer as important in the NAACP membership. Further, with the founding of its Leadership Conference on Civil Rights in 1950 to lobby for legislation beneficial to labor organizing and nondiscrimination, the NAACP became a part of the liberal pro-labor, anti-communist coalition. Under these conditions, civil rights lawyers naturally turned to middle-class issues, such as segregation in graduate schools, dining cars, and public education. As a result, in Goluboff’s view, “this new civil rights would prove fundamentally unable to redress the economic hierarchies of Jim Crow America.”

In her telling, NAACP lawyers did not focus on the rights of blue-collar workers again until the passage of the Civil Rights Act of 1964, which, in its Title VII, prohibited discrimination in the workplace and by labor unions. And although she is careful in her choice of words, Goluboff clearly believes that while Thurgood Marshall and the NAACP lawyers won the Brown case, their new legal strategy did a disservice to the majority of African Americans who suffered from economic inequality. Brown, in her view, only partially addressed the need to uproot discrimination. Doctrinally, the legal strategy that yielded Brown abandoned the more powerful argument for equality found in the Due Process Clause and replaced it with the Equal Protection clause, thus blunting efforts to downplay the distinction between discriminatory private action and state action, which needed remedying.

In this line of argument, the choice of pursuing public education litigation was not so much the problem as was its emphasis. In Brown, the school children’s “economic circumstances were beside the point.” The result was to separate “the caste system from its economic roots.” Goluboff then concludes that the focus on psychological “stigma and state action in Brown subordinated the problems most acute for working African Americans to those most acute for the privileged of the race.”

• 1
• 2
• 3
• 4

Post a Comment