page_title: Brown v. Board of Education
section_title: Legal criticism and praise
hierarchical_section_title: Brown v. Board of Education / Legal criticism and praise
caption_attribution_description: Judge Robert A. Katzmann (2nd Cir.), Judge Damon J. Keith (6th Cir.), and Judge Sonia Sotomayor (2nd Cir.), were among those viewing the Marching Toward Justice display when it was at the Second Circuit. The exhibit, which is a pictorial history of the 14th Amendment, was commissioned by the Damon J.Keith Law Collection of African-American Legal History at Wayne State University in Detroit. Through photographs, drawings and reproductions of documents, the exhibit examines the topics of slavery, black soldiers in the Civil War, the Emancipation Proclamation, and ratification of the 14th Amendment in 1868. It also highlights the role of Thurgood Marshall and other African-American lawyers in the Supreme Court decision, Brown v. the Board of Education, which celebrates its 50th anniversary this year. Published monthly by the Administrative Office of the U.S. Courts Office of Public Affairs One Columbus Circle, N.E.Washington, DC 20544
context_page_description: Brown v. Board of Education of Topeka, 347 U.S. 483, was a landmark decision of the U.S. Supreme Court in which the Court ruled that U.S. state laws establishing racial segregation in public schools are unconstitutional, even if the segregated schools are otherwise equal in quality. Handed down on May 17, 1954, the Court's unanimous decision stated that "separate educational facilities are inherently unequal," and therefore violate the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. However, the decision's 14 pages did not spell out any sort of method for ending racial segregation in schools, and the Court's second decision in Brown II only ordered states to desegregate "with all deliberate speed."
  The case originated in 1951 when the public school district in Topeka, Kansas, refused to enroll the daughter of local black resident Oliver Brown at the school closest to their home, instead requiring her to ride a bus to a segregated black elementary school farther away.
context_section_description: William Rehnquist wrote a memo titled "A Random Thought on the Segregation Cases" when he was a law clerk for Justice Robert H. Jackson in 1952, during early deliberations that led to the Brown v. Board of Education decision. In his memo, Rehnquist argued: "I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by 'liberal' colleagues but I think Plessy v. Ferguson was right and should be reaffirmed." Rehnquist continued, "To the argument . . . that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minorities are." Rehnquist also argued for Plessy with other law clerks.
  However, during his 1971 confirmation hearings, Rehnquist said, "I believe that the memorandum was prepared by me as a statement of Justice Jackson's tentative views for his own use." Justice Jackson had initially planned to join a dissent in Brown. Later, at his 1986 hearings for the slot of Chief Justice, Rehnquist put further distance between himself and the 1952 memo: "The bald statement that Plessy was right and should be reaffirmed, was not an accurate reflection of my own views at the time." In any event, while serving on the Supreme Court, Rehnquist made no effort to reverse or undermine the Brown decision, and frequently relied upon it as precedent.
  Chief Justice Warren's reasoning was broadly criticized by contemporary legal academics with Judge Learned Hand decrying that the Supreme Court had "assumed the role of a third legislative chamber" and Herbert Wechsler finding Brown impossible to justify based on neutral principles.
  Some aspects of the Brown decision are still debated. Notably, Supreme Court Justice Clarence Thomas, himself an African American, wrote in Missouri v. Jenkins (1995) that at the very least, Brown I has been misunderstood by the courts.
  Brown I did not say that "racially isolated" schools were inherently inferior; the harm that it identified was tied purely to de jure segregation, not de facto segregation. Indeed, Brown I itself did not need to rely upon any psychological or social-science research in order to announce the simple, yet fundamental truth that the Government cannot discriminate among its citizens on the basis of race. …
  Segregation was not unconstitutional because it might have caused psychological feelings of inferiority. Public school systems that separated blacks and provided them with superior educational resources making blacks "feel" superior to whites sent to lesser schools—would violate the Fourteenth Amendment, whether or not the white students felt stigmatized, just as do school systems in which the positions of the races are reversed. Psychological injury or benefit is irrelevant …
  
  Given that desegregation has not produced the predicted leaps forward in black educational achievement, there is no reason to think that black students cannot learn as well when surrounded by members of their own race as when they are in an integrated environment. (…) Because of their "distinctive histories and traditions," black schools can function as the center and symbol of black communities, and provide examples of independent black leadership, success, and achievement.
  Some Constitutional originalists, notably Raoul Berger in his influential 1977 book "Government by Judiciary," make the case that Brown cannot be defended by reference to the original understanding of the 14th Amendment. They support this reading of the 14th Amendment by noting that the Civil Rights Act of 1875 did not ban segregated schools and that the same Congress that passed the 14th Amendment also voted to segregate schools in the District of Columbia. Other originalists, including Michael W. McConnell, a federal judge on the United States Court of Appeals for the Tenth Circuit, in his article "Originalism and the Desegregation Decisions," argue that the Radical Reconstructionists who spearheaded the 14th Amendment were in favor of deseg
caption: U.S. circuit judges Robert A. Katzmann, Damon J. Keith, and Sonia Sotomayor at a 2004 exhibit on the Fourteenth Amendment, Thurgood Marshall, and Brown v. Board of Education
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