By BRIAN CRAWFORD
Clarence Thomas, still one of the most reactionary jurists on the Supreme Court, charged on May 23 that the 1954 desegregation ruling, Brown v. the Board of Education of Topeka, Kansas, was a case of judicial overreach. Thomas’ opinion has been consistent over the decades. He argues that the court does not have the authority over what he considers political issues. The longest serving member of the Supreme Court (Thomas was added to the Court in 1991) also challenged “one person, one vote.” This prompted one commentator to suggest he “literally wants to repeal the 20th century.”
Meanwhile, schools are becoming more segregated as judicial remedies have waned over the last three decades and “school choice” measures, including charter schools, allow for affluent white parents to opt out of public schools. A study by the Civil Rights Project at UCLA found that three-quarters of Black students attended predominantly Black schools in 1968. . By the late 1980s the percentage of Blacks in mainly Black schools decreased to just under 25%, but by 2018 it had increased to 37%.
Brown v. Board of Education came to the Court in the midst of the historic civil rights movement of the 1950s and ’60s. It has been settled law for 70 years, but for the right wing (in this case the Supreme Court), nothing is settled. The case has proven that legal precedents are not the path to liberation. The gains made through the courts and legislatures are transitory.
The color line has been embedded in the national psyche. Marx referred to the American Civil War as a second revolution. After the Civil War, Radical Reconstruction offered the prospects of Black political power and the reordering of society. However, Reconstruction ended in 1877, which led to the withdrawal of federal troops from the former Confederate states and was followed by the unleashing of counterrevolutionary terror to overthrow Black political power. Former slaveholders were not going to submit to the political power of Blacks in legislatures and Congress, and so they took legal and extralegal measures to reestablish hegemony.
Court nullifies civil rights won during Reconstruction
Since the time of Reconstruction, in the late 1860s and early 1870s, African Americans demanded education that had been denied to the slaves and kept them fettered to the cotton fields. This demand was consistent with the post-Civil War amendments to the U.S. Constitution, which granted the newly freed slaves the rights of full citizenship. However, the Supreme Court in the latter 19th century acted to effectively neutralize these amendments. Congress passed the Civil Rights Act of 1875, only to have the Court rule it unconstitutional.
In a decision of 1883, the Supreme Court ruled that Congress did not have “authority to prevent discrimination by private individuals.” This nullification of constitutional rights that had been granted African Americans in the post-Civil War period was one of a number of cases leading up to one of the most infamous of Supreme Court decisions:
In 1890, Louisiana mandated that passenger railroad companies must “provide racially segregated accommodations” that were “equal but separate.” Two years later, a Black man, Homer Plessy, was prosecuted for violation of the policy when he tried to ride in a whites-only railroad car. The case went to the Supreme Court in 1896. In the majority opinion, the Supreme Court ruled that the Louisiana law did not violate the U.S. Constitution. The decision said that the 14th Amendment applied to Black political equality but did not mandate social equality. It further stated: “States could permissibly use their police power to enforce segregation as a matter of public policy.” It said that Black social exclusion should not be perceived as a state of inferiority, although the Court believed that Blacks “choose to put that construct on it.”
Plessy v. Ferguson went beyond public accommodations and public transit; it extended to all public life. It relegated Black students to poorly maintained and inadequately resourced schools, a state that largely exists at present relative to well-funded white suburban education systems.
Challenging the old order
Though African Americans never ceased striving for equal rights, the 1950s commenced one of the most successful periods of struggle. The major factors in the transformation were World War II and the Great Migration. During this period Blacks were leaving the South for Northern and Western states, fleeing violent repression, and finding industrial jobs, including in the war industry—thereby fulfilling capital’s needs for labor. Even in the South, Blacks were leaving their agricultural past to find work in the cities.
Black veterans got a taste of the world outside of the Southern hell; they were becoming educated. They refused to accept second-class citizenship and white supremacy as the social standards. The Black community in general was becoming more assertive and turning away from the accommodationist approach of the Black petty bourgeoisie. Accommodation to white benefactors was an attempt to seek protection from elements of the white ruling elite, who themselves were staunch supports of white supremacy.
Blacks in the South came to understand that they needed to rely on their own self-activity as the means of achieving liberation from the barbarism of white supremacy. The Brown decision added legal weight. The Montgomery Boycott was a test of the new law.
Likewise, Black students active in desegregating public schools and universities braved the rage of white mobs. The formation of the Southern Christian Leadership Committee and the Student Non-violent Coordinating Committee were part of the effort to break the back of the old order.
Court reverses Plessy, but segregationists fight back
Nearly 60 years after the Supreme Court’s ruling in the Plessy case had codified the contradiction in which segregation posed as “democracy,” the Court reversed this decision, setting the stage for legal challenges to so-called “Jim Crow” laws.
Brown v. Board of Education, adjudicated on May 17, 1954, sided with the plaintiff’s argument that the doctrine of “separate but equal” deprived Black students of equal protection under the 14th Amendment. The Court stated in the Brown ruling, “Where a state has undertaken to provide an opportunity for an education in its public schools, such an opportunity is a right that must be made available to all on equal terms.” One year later, in “Brown II,” the Court gave instructions to states to commence desegregation “with all deliberate speed.”
Subsequent to the landmark decision in Brown v. Board of Education, some legal scholars argued that the decision was not based on legal tradition; but these arguments were generally refuted. In the meantime, a more robust resistance to the ruling was mounted by school districts and state governments whose objections were based on the doctrine of white supremacy and Black inferiority—which demanded separation of the races.
Recalcitrant Southern Democrats resorted to many measures to preserve the racist social order. White Citizens Councils, the Klu Klux Klan, and police and sheriffs were deployed. Southern members of Congress signed a Southern Manifesto in opposition to the Brown ruling. In Mansfield, Texas, in 1956, a mob of white residents took to the streets with clubs and guns to prevent 12 Black students from registering. An article on the website of the Equal Justice Initiative (eji.org) describes the scene: “The mob hung an effigy of an African American person at the top of the school’s flagpole and set it on fire. Attached to each pant leg was a message. One read, ‘This Negro tried to enter a white school. This would be a terrible way to die.’” A few months later, the Supreme Court rejected the Mansfield school board’s attempt to maintain segregation, though the town’s schools were not integrated until 1965.
Although resistance was widespread, with the Brown precedent, legal challenges were pursued. Legal victories in Green v. County School Board of New Kent County and Alexander v. Holmes County Board of Education mandated school boards’ compliance with comprehensive plans to desegregate. Such orders conflicted with some state laws that had been implemented in defiance of the original Brown decision. The central question in the Green case involved whether freedom of choice regarding schools violated the equal protection clause of the 14th Amendment when evidence proved it did not facilitate desegregation. The case involved two Virginia schools, one in New Kent, where the entirety of the student body was white, and George W. Watkins, which was African American. The court ruled that this violated equal protection.
Resistance to school integration was not confined to the South. In the North, beginning in the 1970s, Boston became a battleground for busing to achieve school integration, in accordance with the 1965 mandate by the Massachusetts legislature. Black schools in the city were not well resourced or maintained, as was (and still is) the case in many cities. The state Supreme Court ruled that Boston must desegregate, and in 1968, the U.S. Supreme Court declined to hear the appeal by the racist Boston School Committee. In 1972, the Boston NAACP filed a suit in state court against the School Committee’s so-called “voluntary” plan for desegregation. The judge agreed with the plaintiffs and ordered implementation of a real plan to integrate the schools. This produced years of protests and violence.
Boston’s busing plan was put into effect in the early 1980s; however, demographic shifts (“white flight”) steadily reduced the effects of the measures. Ten years ago, Boston dropped its system of busing in favor of a new policy that emphasizes “family preference” for schools near their homes. Likewise, over the last three decades, as judicial mandates have receded nationwide, progress has fallen.
Race and class are inseparable
While the landmark Brown case laid the legal basis against de jure racial segregation, de facto forms of segregation are ever present. Moreover, part of the ambition of desegregation efforts was to obtain access to quality education for Black students. This has not been achieved or has declined in many instances.
There is also the intersection of race and class, which looms throughout the history of the United States. Emma Garcia and Elaine Weiss argued in an article on the Equal Justice Initiative website, “With income inequality at record levels [. . . .] the interaction between poverty and race remains strong and troubling and continues to impede educational progress for many students.”
Brown has proven ineffective in respect to desegregated society, particularly in education. Separate and unequal, and thus undemocratic, remains the state of the state 70 years after the landmark ruling. Opposition never ceased; it has taken different forms.
The Civil Rights movement assisted in moving the law from the pages of legal documents to material reality. Progress toward democracy was achieved despite opposition nationally. But while courts continued to reinforce Brown, the limitation of the judiciary has been made apparent as “decades of policy decisions at all levels of government have solidified systems of segregation and severe inequality,” write Garcia and Weiss.
The U.S. Supreme Court decisions beginning in the 1990s began to lessen the burden on school districts to remedy segregation. Schools became more segregated “because school systems stopped trying to create schools that were more integrated than neighborhoods.” In some cases, white communities left school districts or seceded as a preemptive measure. Whites in Gardendale, Ala., organized to secede from the Jefferson County School district. The organizers claimed that they wanted “greater control of the geographic composition of the student body.” Success meant white students could avoid blending with Black students being bused into the community. A new district that was “more affluent and more white” would be created. Eight other communities seceded from Jefferson County for similar reasons.
Dozens of communities have attempted this nationally, and 47 were successful. Erika Wilson of University of North Carolina School of law writes: “The Supreme Court’s embrace of local control essentially elevated localism in education to a constitutional norm that is more highly valued than the ability of students to attend nonsegregated schools.” Secessions such as those in Alabama present the prospect of pounding “the proverbial nail in the coffin for students’ ability to attend non segregated [. . .] schools at least in the South.” A phenomenon in many Northern cities produces similar results.
Gentrification and school segregation
School closures are a symptom of a larger problem. Shuttering schools in predominantly Black communities contributes to gentrification and the destruction of those neighborhoods, according to research conducted by Stanford University. This is a national phenomenon whose effects are specific to Black communities. The study notes that “closure of schools in Black neighborhoods increased residential desirability of surrounding neighborhoods in a way that wasn’t observed in other community types.” School closures helped jump-start the gentrification process but only in Black communities. “Black schools in disinvested parts of the city function in part as a de facto safeguard against gentrification.”
Gentrification is a trend that negates past and present promises regarding not only desegregation of schools but desegregation of the broader society. The Stanford University report states that “school closures are emblematic of a larger spatial and racial reimagining of U.S. cities.” Stanford’s research illustrates the salient truth that the attempts at desegregation failed to break the barriers of race; instead they are reinforced.
The authors of the Stanford study write: “Results suggest school closures do not simply alter the educational landscape. School closures are emblematic of a larger spatial and racial reimagining of the U. S. that dispossesses and displaces Black neighborhoods.” While major cities are more diverse, racial segregation in housing continues and has increased.
School closures increased after “No Child Left Behind” legislation in “the 100 largest metropolitan areas by nearly 50%. […] A growing number of cities issued mass school closures—often shuttering dozens of schools at once.” In Chicago, Mayor Rahm Emmanuel closed over 50 schools, mostly in Black and Hispanic neighborhoods. The mayor presided over the largest mass school closure in U.S. history. Chicago paid an Ohio logistics company to manage the now shuttered school buildings at a cost of $18 million. As a result of the closures, a third of the students moved away.
Cities attribute school closures to declining enrollment and or underperforming schools. But communities, of course, oppose these measures. While school closures call into question the city’s commitment to education as a priority, the Chicago city council approved $2 billion in funding for the police department for the 2024 budget.
According to the Stanford study, most children go to neighborhood schools. The study speaks of “the prevalence of neighborhood schooling, that is, school assignment policies that prioritize proximity, matters for residential sorting patterns because living in a lower income neighborhood of color has historically meant sending a child to racially segregated, under-resourced school.” Despite increased diversity, cities remain segregated largely on racial and class basis. Schools are a reflection of this segregation, as was the case 70 years ago.
One major factor in the increasing segregation and inequality in education is what is known as “school choice.” School choice, a “reform” of education that has gained bipartisan support, undermines the spirit of Brown. It enhances the class as well as racial disparities in education. Alternative schools, including charters, allow parents to receive funding to send students to a school of the parents’ choice at the expense of public education. Affluent white parents have taken the opportunity to remove their children from public schools, which may be more diverse, to all-white schools. Mike Hutchinson, a board member of the Oakland Unified School District, which faces massive school closures, told the Los Angeles Times that research shows that the phenomenon of school closures is “the definition of white supremacy ideology and anti-Black racism.”
The U.S. government has been a driver of both desegregation and segregation. As a society is segregated, so too are its institutions. Within these institutions attempts to challenge racial disparity have waned. This is true of efforts in regard to schools and housing. Over the last three decades, it has been increasingly difficult to gain a favorable ruling in cases involving discriminatory practices.
Brown v. Board of Education of Topeka stands as a landmark case, and one of the most significant in U.S. history. It was a promise by bourgeois society to rectify the past and to deliver what was stripped away after the fall of Reconstruction. But the ruling class is only truly committed to its own narrow interests. It may offer concessions to one group or another, but it will do so only under strong political pressure when it sees no other choice—and even then, it will seek to water down any settlement to be more in accord with its own interests.
Suffice it to say that the commitment to Black liberation by U.S. governmental authorities and the courts was never complete. History shows that in the struggle for Black liberation, the courts have given, and the courts have taken away; the same is true of legislatures and the executive branch of government. Bourgeois institutions are far from being the source of true liberation, be it for African Americans or the entire working class. Particularly as the right wing dominates the courts and most of the state legislatures, these avenues are all but closed.
Black liberation must take an assertive approach rather than passively waiting for courts and legislatures to take significant action. The movement for Black Liberation must be a force that is in constant motion in challenging the forces of oppression. As with the civil rights movement of 70 years ago, as well as the more recent actions stirred by the police murder of George Floyd, activists need to work on many levels, including in the effort to build giant mass movements in the streets.
Photo: The March on Washington, Aug. 28, 1963. (U.S. News & World Report / Library of Congress)
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