Ackerman’s Brown

abstract. This essay contends that, despite its revisionist ethos, Professor Ackerman’s We the People: The Civil Rights Revolution is conventional in its assessment of Brown v. Board of Education. Ackerman praises Brown as “the greatest judicial opinion of the twentieth century.” But the Supreme Court in Brown evaded offering a candid explanation of the white supremacist purpose animating de jure racial segregation. Absent from the most honored race relations decision in American constitutional law is any express reckoning with racism.

author. Princeton University, B.A.; Yale Law School, J.D.; Michael R. Klein Professor of Law, Harvard Law School.

Introduction

The judicial decision that Professor Bruce Ackerman discusses most intensively in his sprawling, creative, and instructive account of the civil rights revolution1 is Brown v. Board of Education.2 In Brown and its companion case, Bolling v. Sharpe,3 the Supreme Court invalidated government action authorizing or requiring the racial separation of pupils in primary and secondary public schools. I pose four questions about Brown, relating my answers to Professor Ackerman’s analysis.

I. what did brown say?

According to Professor Ackerman, Chief Justice Earl Warren’s opinion for the Court in Brown deployed “judicial situation-sense” to tell “the common-sense truth,” which was that white “southerners were humiliating black children by refusing to allow them to attend common schools with their white peers.”4

Is that characterization a realistic portrayal or translation of Warren’s Brown? I think not. Warren penned an opinion that, with regard to the regulation of race relations, said as little as possible beyond concluding that “in the field of public education the doctrine of ‘separate but equal’ has no place” and that “[s]eparate educational facilities are inherently unequal.”5 Conspicuously absent from the opinion is any account of white Southerners’ humiliating black children. This omission was deliberate. Warren wrote privately that he sought to craft an opinion that was “short, readable by the lay public, non-rhetorical, unemotional, and, above all, non-accusatory.”6 Warren succeeded. His Brown opinion manages to invalidate de jure segregation without castigating or indeed even mentioning the officials who imposed Jim Crow oppression.

To be sure, Warren’s opinion deals very differently with segregation than previous opinions of the Court. In Plessy v. Ferguson,7 the Court’s most influential affirmation of segregation’s constitutionality, a majority of the Justices scoffed at the idea that a governmentally imposed regime of separate but equal facilities could reasonably be viewed as an unfriendly, indeed stigmatizing, form of discrimination against blacks. According to the Plessy Court, if blacks felt insulted by the requirement of a separation of the races, the insult arose “not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”8 Subsequently, scores of jurists, including some of the most esteemed of the twentieth century, complacently affirmed the baleful notion of separate but equal, accepting the blatant lie that state-mandated racial separation could somehow be squared with equality before the law.9 By contrast, Warren’s Brown gave no rhetorical support to segregation.

Still, the Chief Justice’s description of segregation in Brown is strikingly wan. It says remarkably little about segregation’s origins, ideology, implementation, or aims. A reader of Brown alone, with no knowledge of American race relations, might well be mystified by the hurt and anger of those protesting against segregation, simply because Warren’s opinion is so diffident. Warren avers that “[t]o separate [blacks] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”10 He embraces the finding of a lower court that “the policy of separating the races is usually interpreted as denoting the inferiority of the negro group.”11 He also asserts in Bolling v. Sharpe that “segregation is not reasonably related to any proper governmental objective.”12 But Warren’s opinion says nothing about the aims of segregation. He concludes that it has baleful effects but avoids mentioning whether those consequences were intentional. Because Warren insisted upon writing an opinion that was non-accusatory, he omitted a central aspect of the segregation story: the reason why white supremacists desired to separate whites and blacks pursuant to the coercive force of state power. Missing from the most honored race relations decision in American constitutional law is any express reckoning with racism.13

Dissenting in Plessy, Justice John Marshall Harlan did reckon with segregation’s racism. Harlan’s observation with respect to public railway coaches was applicable to public school classrooms as well: “What can more certainly arouse race hate . . . than state enactments which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens?”14 Appropriately mocking segregation’s “thin disguise” of delusive symmetry, Harlan remarked that “[e]veryone knows that [segregation] had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by . . . white persons.”15 Harlan pointed out that segregation was something done by whites to blacks (and other racial minorities). Harlan recognized that segregation was a deliberate negation of racial equality and a deliberate assertion of racial superiority. Harlan noted that segregation was meant to “protect” whites from the supposedly contaminating influence of colored people. None of these points is driven home, or even much hinted at, in Warren’s non-accusatory opinion. The Chief Justice never even cites Harlan’s dissent.

II. how should we assess the brown opinion?

Professor Ackerman is unstinting in his praise of Warren’s Brown opinion. It is, he writes, “the greatest judicial opinion of the twentieth century.”16 Whether Ackerman is correct depends on what he means by “greatest.” He is probably correct if by greatness he refers to consequentiality. Among other things, Brown invalidated deeply entrenched state laws that blanketed the South, reflected and reinforced the civil rights movement, won for the Court tremendous prestige in large areas of the country and internationally, generated a backlash that transformed Southern politics, and recast senatorial confirmation of judicial nominees.

I suspect, however, that in describing Warren’s opinion as “the greatest” of the twentieth century, Ackerman means to do more than comment on its ramifications. He probably intends also to laud its legal, moral, political, and intellectual character. But here we encounter a problem: Warren’s opinion is deficient in important respects. For one thing, the opinion is unclear regarding the precise basis on which the Court invalidated de jure segregation in public primary and secondary schools. Was the key the social significance of the activity in question—schooling? Was it the psychological effect of segregation on the black schoolchildren? Was it that segregation stemmed from purposeful government action? Or was it racial separation per se? The Delphic ambiguity of the Brown opinion has generated a remarkable catalogue of commentary and launched thousands of contentious discussions in law school classes. If clarity of exposition and thoroughness of explication are elements of greatness in a judicial opinion, however, then Warren’s Brown is ineligible.

The opacity of Warren’s opinion has facilitated the use of Brown as a Rorschach test that provokes and allows observers to cast upon it a wide array of competing interpretations. One aspect of the case that should be clear, however, is that segregation represented a deliberate, self-conscious effort to privilege whites while disadvantaging people of color. Yet Warren’s opinion veils that obvious and fundamental feature of the controversy. Warren’s Brown portrays segregation without segregationists, stigma without stigmatizers, an injustice without perpetrators of the wrong.

I am not condemning Warren. Perhaps he was right to engage in strategic obfuscation. Perhaps he was prudent to avoid candor about the segregationists. Perhaps he was wise to pull his punches to secure unanimity. But even if we agree with his rhetorical strategy, we ought to recognize its price: continued denial of the full ugly story of racism in America. Warren’s Brown opinion glosses over the realities of segregation. If candor, clarity, and comprehensiveness are essential features of “greatness” in a judicial opinion, then for yet another reason the Brown opinion is ineligible for that honorific distinction.

As with other positive developments in the law of American race relations, the fact that Brown was conceived in compromise has largely been forgotten. Grateful for any relief from racism, we overlook the limitations of reforms we revere despite their deficiencies. The Emancipation Proclamation is often celebrated for having “freed the slaves,” though it left unaffected the legal status of around eight hundred thousand of those slaves. Justified by President Abraham Lincoln only as a weapon of war, the Emancipation Proclamation makes no mention of the blessings of liberty or the curse of bondage.17 The Fourteenth Amendment, often unequivocally lauded nowadays, was a keen disappointment to many advocates of African-American advancement in that it merely imposed a political penalty for racial disenfranchisement but permitted the states to continue racial exclusion at the ballot box.18 The Fifteenth Amendment, often unconditionally celebrated now, was among the narrowest of the constitutional voting rights provisions under consideration in 1870. Even as it was being framed, the Fifteenth Amendment was understood to be easily evaded.19

Warren’s Brown is sometimes lionized in ways that prompt one to wonder whether its most enthusiastic celebrants have actually read the opinion. Professor Ackerman is right when he complains that even leading academic interpreters do not seem to take Warren’s text seriously. They fail, he notes, “to study Warren’s words with care—choosing to see the opinion as a way-station to some far more glorious principle.”20 Brown’s message, he insists, “deserve[s] to be considered carefully in its own terms.”21 The irony is that Ackerman replicates the error he identifies. He does not so much explain what Warren actually wrote as use bits of what the Chief Justice wrote to construct a platform for launching his own anti-humiliation principle—a praiseworthy theory to be sure, but not one that Warren authored.

The Brown opinion contains, according to Ackerman, a “single master insight[:] . . . the distinctive wrongness of institutionalized humiliation.”22 What the Court announced to governments in America, he claims, is that “[t]hou shalt not humiliate.”23 Ackerman’s portrayal of a Brown anti-humiliation principle, however, fails to account for at least two important features of the Court’s conduct. First, with respect to enforcement of Brown, the Warren Court was egregiously permissive for at least a decade. In Brown II,24 where the Court initially posited the ground rules for administering Brown I, the Court did not demand that the aggrieved black children be released immediately from the confines of segregation. All the Court required was “a prompt and reasonable start”25 and, thereafter, desegregation with “all deliberate speed.”26 The commandment “Thou Shalt Not Humiliate” would seem to entail something more urgent than the permissive timetable of “all deliberate speed.”

Second, as Ackerman recognizes, the Brown opinion invalidated narrowly de jure segregation in public primary and secondary schooling; it did not gesture broadly toward the proscription of segregation in other spheres of social life—transportation, recreation, marriage. The end of de jure segregation would come to those realms only after many difficult campaigns in the decade and a half following Brown.27

III. what was the relationship of the brown opinion to the civil rights act of 1964?

Having posited that Brown announced an anti-humiliation principle, Ackerman maintains that important political actors embraced that principle, internalized its lesson, and spread its message beyond courtrooms to other lawgiving forums, most importantly Congress and the presidency. “Over the course of a decade,” Ackerman writes, “the initial rendering of [the anti-humiliation] principle in Brown moved far beyond the ambit of courts to gain deliberate assent by leading representatives of the American people . . . .”28 I am not persuaded, however, by Professor Ackerman’s suggestion that Brown was a Bible containing gospel that was translated into legislation through the ministrations of Martin Luther King, Jr., Lyndon Johnson, Hubert Humphrey, and Everett Dirksen. Brown is surely among the score of important developments that mirrored and reinforced the broad current of racial liberalism that animated and shaped the Civil Rights Act. But Ackerman insists upon claiming for Brown more than that: “Brown not only represents the unanimous judgment of the Supreme Court at a great moment in its history; it expresses the animating logic for the landmark statutes supported by the American People at one of the greatest moments in their history.”29 Warren’s opinion, Ackerman maintains, is the “key” that unlocks the mystery of “the distinctive character of solemn commitments endorsed by the American people in the landmark statutes”30 of the Second Reconstruction. To Ackerman, Brown did more than express the anti-humiliation principle; it taught that principle in an effective way that caught on with influential actors who spread the gospel. According to Ackerman, “Brown’s common-sense prose served to anchor the next decade’s constitutional debate—serving as a target for opponents as well as a rallying point for defenders.”31

Where, however, is the evidence that Brown served “to anchor” debate over the Civil Rights Act of 1964? Ackerman does not show Martin Luther King, Jr., Hubert Humphrey, or Everett Dirksen alluding to Brown or paying homage to it as they championed the Civil Rights Act. What they declared was consistent with Brown, but what they declared was also consistent with other notable statements, including To Secure These Rights: The Report of the President’s Committee on Civil Rights, which was submitted to President Harry S. Truman in 1947.32 That Brown exerted a formative influence over the champions of the Civil Rights Act is certainly plausible. But did it actually do so? This is an empirical question that Ackerman elides with an assumption.

That Ackerman gives such a prominent role to Brown in the Civil Rights Act drama is ironic given that one of the key and commendable aims of his book is to recalibrate the perspective of legal academics, draw them away from their parochial over-emphasis on the judiciary, and banish, or at least moderate, “great case-ism”—the habit of seeing the history of America’s legal development as mainly and merely an accretion of Supreme Court rulings. Ackerman’s discussion of Brown, however, is great case-ism with a vengeance. He assumes that Warren’s opinion was prominently on the minds of the key supporters of the Civil Rights Act. But he does not show that it was. Senator Humphrey did not draw upon Warren’s Brown in making the case for the Civil Rights Act. He did not have to. The sensibility, commitment, and understanding that fired and guided the Senator’s advocacy for the Civil Rights Act predated Brown. One can see those qualities in, among other statements, the impassioned speech that Humphrey (then the Mayor of Minneapolis, Minnesota) delivered at the 1948 Democratic National Convention.33 Prevailing over the most established figures in the Democratic Party and facing down its segregationist wing, Humphrey succeeded in establishing a party platform regarding civil rights that anticipated the ethos of the Second Reconstruction six years before Brown.

IV. what role should brown play in progressive movements?

Because Brown has become iconic, a landmark that cannot be questioned seriously outside of academia without risk of severe self-discrediting,34 activists of various stripes strive mightily to stamp upon it their version of its meaning. Professor Ackerman attempts to make Brown maximally usable for progressives by making a virtue of the problem with the opinion that I previously noted: the omission of the white supremacist perpetrator from the story of segregation. By minimizing that omission, Ackerman broadens the scope of the Brown opinion by making liability for institutionalized humiliation turn not on the presence of a bigot—a figure of thankfully decreasing prevalence—but instead on the presence of social conditions that can be deemed to injure illicitly the hearts and minds of members of vulnerable groups. Ackerman tries to renovate Warren’s Brown to make it useful in the fight against institutionalized as well as personalized racism, and further, the fight against all manner of oppression (including racial oppression). Hence Ackerman writes that

[i]f taken seriously, the principles announced in Earl Warren’s great opinion have a broad reach: blacks and women, Muslim and Hispanic Americans, the mentally and physically disabled, gays, lesbians, and the transgendered—all these people often find themselves in conditions of institutionalized humiliation. They are all entitled to constitutional protection under Brown’s understanding of the Equal Protection Clause . . . .35

The social injustice that Ackerman sees as the worst in our time, however, is the mistreatment of the undocumented: “If we look squarely at social reality, as Brown demands, no thoughtful American can ignore the daily humiliations heaped upon the eleven million undocumented immigrants who live among us.”36 The only serious question, Ackerman maintains, is whether the Constitution allows today’s Americans to treat the undocumented in the same demeaning fashion in which Southerners treated blacks before the civil rights revolution. If the spirit of Brown survives “in the living Constitution, the answer must be no.”37

I share Professor Ackerman’s outrage at the manifold injustices that blight our society and admire his commitment to inspiring and guiding progressive reforms that can suitably address these inequities. I disagree, however, with the way in which he enlists the Brown opinion in his project of creating a constitutional history usable for contemporary reformism. He both distorts the historic Brown opinion and leads current reformers astray. Ackerman puffs Brown up into an omnibus, all-purpose “promise” of social justice. This broad conception of Brown, however, is in sharp tension with the narrowness and diffidence of Warren’s Brown, that actual set of opinions in 1954 and 1955 that was non-accusatory, carefully delimited to public education, and accepting of “all deliberate speed.” Ackerman engages in wishful thinking, claiming that Brown promised more than it actually did. It invalidated de jure segregation in public schooling, and it created a basis on which, after much conflict, segregation was prohibited in virtually all areas of social life. That was a major undertaking. But it was an undertaking that did not embrace the whole project of racial justice (much less social justice). It did not embrace, for example, the problem of racial separation caused by racially stratified residential patterns (the issue of so-called de facto segregation), the problem of racial discrimination imposed by private as opposed to public actors (the issue involving public accommodations addressed by Title II of the Civil Rights Act of 1964), or the problem of rectifying the lingering disabilities inflicted by past oppression (the issue addressed initially by compensatory positive discrimination, also known as “affirmative action”).

I want to avoid any hint of churlishness here. The creators of Brown—the neglected named plaintiffs, their celebrated lawyers, the Justices who allowed themselves to break with tradition—all warrant congratulations, honor, and gratitude. The Brown opinion is a vehicle that carried essential freight. It was a crucial intervention that addressed an important problem—de jure segregation. But it should not be viewed as a vehicle that can carry all of the burdens of racial justice. Progressives ought to recognize its limitations and stop looking to Brown as an authoritative guide to solving problems beyond its borders.

In The Civil Rights Revolution, Professor Ackerman rightly urges avoidance of ancestor worship. The ancestors to which he refers are the framers of the First Reconstruction, the authors of the Thirteenth, Fourteenth, and Fifteenth Amendments. He suggests that we cease idolizing them and pay greater respect to the framers of the Second Reconstruction—the authors of Brown, the Civil Rights Act, the Voting Rights Act, and the Fair Housing Act. Both sets of framers did important work that moved America away from slavery, segregation, and other formalized patterns of racial subordination. But both sets of framers were also captives of their own contexts, forced to make compromises that we now all too often view uncritically as unequivocal victories. To address adequately the crises we confront will require more than habitual incantations to Brown and other landmarks of prior struggles. It will require forging altogether new laws, new doctrines, and new understandings pertinent to the demands of our own time.