Introduction: Brown in the Supreme Court

May 17, 1954. Almost fifty years ago, the Supreme Court of the United States decided Brown v. Board of Education, (1) and held unanimously that in the field of education separate but equal has no place. It did not overrule Plessy v. Ferguson, (2) the 1896 decision holding that Jim Crow laws segregating people on the basis of race in transportation did not violate the equal protection clause. Twenty-five years ago I interviewed Justice Thurgood Marshall for an article on Brown, (3) and I asked him how it felt at that moment--high noon in the Supreme Court--when the nine justices came in to announce their decision. He said, "I thought we were going to win, I wasn't sure we were going to win. I looked at Justice Stanley Reed, and [he] wouldn't look back at me, so I knew it was going to be unanimous." (4) We have later learned that Justice Reed was the last holdout to decision and almost dissented in Brown. But Chief Justice Warren, who had just come to the court within the last year, was determined that the decision overturning racial segregation, at least as imposed by the states, was going to be unanimous, and he worked very hard to get Justice Reed to join the opinion. Now, Warren has become famous for that unanimity, but I want to suggest to you that it came at a price. There are really two Browns, and they are symbolized by the two quotations that you have on your programs. (5) There was the Brown in 1954, which declared that in the field of education separate but equal has no place. But the question was how that would be enforced. In some respects the other shoe did not drop until a year and two weeks later, on May 31, 1955, when the court issued its opinion in what has come to be called Brown II. Look at the text: The judgments below are accordingly reversed and the cases are remanded to the district courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases. With all deliberate speed. As events quickly proved, certainly here within two or three years, and throughout the South, deliberation quickly overcame speed. And the oxymoron that Justice Frankfurter insisted Chief Justice Warren use in that opinion quickly captured the pace at which desegregation would occur. Indeed by 1964, ten years after the first Brown decision, the percentage of black school children who were attending schools with whites in the South was less than two percent. There was no substantial desegregation of public schools in this country until the mid 1960s, and that was only because at that point the Department of Health, Education and Welfare, as it then was, began to use the carrot and stick of federal funding and threatened to, and did in some cases, cut off federal funds to schools that had formerly been segregated and did not desegregate. So the courts proved remarkably ineffectual in making the shining promise of Brown I, as it came to be called, a reality. I want to explore that briefly at this point. I said that unanimity came at a price. The court since 1948 had been unanimous on questions of segregation and racial discrimination. The year 1948 is really as important as 1954 or 1955. What happened in 1948? It was a presidential election year. Harry Truman was woefully behind in the polls. He had just accepted the report of his President's Committee on Civil Rights, whose establishment was a bold move in the first place, with Congress in the control of Southern conservatives. He ordered the armed forces desegregated on a racial basis, such that the barracks would no longer be white barracks and black barracks, that units would no longer be white units and black units. And he authorized his attorney general to sign a brief in the Supreme Court in the most important case to that point involving racial discrimination after World War II, Shelley v. …