By Nathaniel Jones
On the 50th anniversary of Brown v. Board of Education, I am moved to place the Supreme Court's historic decision in the context of our long struggle for racial justice. Since 1857, when the Supreme Court read blacks out of the human race by deciding they were property not persons and had no rights which a white man was bound to respect, the struggle against racial injustice was ongoing.
In the first half of the 1900s, the notorious separate-but-equal doctrine of Plessy v. Ferguson was the prevailing law by virtue of the interpretation given to the 14th Amendment. It was nothing more than a thin disguise for accommodating and perpetuating blatant and degrading segregation - American apartheid. So encompassing was the doctrine that no institution - social, economic or legal - escaped its effects. Of all of these institutions, education was the most devastatingly affected.
One may ask: If education is equal, how can the fact of its segregated nature render it harmful? The Supreme Court offered an unequivocal answer: Such education was inherently unequal because segregation injects poison into the veins of black children that affects "their hearts and minds in a way unlikely ever to be undone." Moreover, civil rights leader Roy Wilkins observed that the shocking statistics and inequality cannot tell us "how many hundreds of thousands of Negro youngsters ... have been cheated and crippled as men and as citizens by being deprived, wholesale, of the education of their white fellow citizens."
Brown was the culmination of prolonged litigation efforts to strike down laws that mandated segregation. It was Charles Hamilton Houston, mentor to Thurgood Marshall, who devised the strategy to end segregation as a constitutionally permissible doctrine. Houston believed that the spearhead of an attack against segregation must be directed at education, for it was what prepared young people to compete in life. He was convinced that a failure to eradicate inequality in education would condemn an entire race, in perpetuity, to an inferior position in American society. "There can be no true equality under a segregated system," he argued. After Plessy was struck down, there began the slow and painful efforts to implement the Brown ruling, efforts that initially focused on the Southern states. After much resistance, the South came to accept the Supreme Court's message that "we cannot turn the clock back." The urban areas of the North were to pose a set of challenges that led the courts to retreat in the face of resistance to the remedies required to correct pervasive segregation.
This commemoration is an appropriate time to be reminded that the 1896 Plessy v. Ferguson case and the five Brown cases decided by the Supreme Court had a common thread. It was race. The decision handed down was about race. The courageous plaintiffs in each of the cases, at great personal risk, were black Americans. Yet the 14th Amendment, on which these decisions were based, has been flipped on its head so as to virtually bar considerations of race in providing a remedy for lingering school segregation.
It was the laws and their enforcement by courts that protected segregation. That is what made it necessary for aggrieved black citizens to seek relief in the courts. What the Kerner Commission opined about the ghetto in its 1968 report could well be said about school segregation. It declared: "What white Americans have never fully understood - but what the Negro can never forget - is that white society is deeply implicated in the ghetto. White institutions created it, white institutions maintain it and white society condones it."
The Brown decision transformed the face of the nation. It made possible the lifting of the suffocating blanket of segregation from many of America's institutions. We are all the better for it. Yet, too, many of those on whose behalf the legal battles were waged, black children, continue to be warehoused in segregated schools receiving a less than quality education.
States, including governors and legislators, who, under law, have the primary responsibility for public education, must cease hiding behind the skirts of local school boards. And courts must stop running from issues of race and acting as though race played no part in the denial of opportunities to black Americans.
Supreme Court Justice Sandra Day O'Connor got to the heart of the matter in her opinion in the University of Michigan case, when she reaffirmed Brown and its progeny. She wrote:
"This court has long recognized that 'education ... is the very foundation of good citizenship' ... (and that) the diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity."
As Brown enters its 51st year, the struggle to end separate-and-unequal continues.
Nathaniel Jones is a retired federal appeals court justice who lives in Cincinnati.
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