From Brown to Green and back: the changing meaning of desegregation.

BROWN V. BOARD OF EDUCATION OF TOPEKA TOLLED THE BELL FOR JIM Crow America. The full significance of the Supreme Court's decision and opinion will be apparent only with the passage of more time; however, even now it is clear that in some respects Brown was a blessing but in others a bane. Most academic writing has emphasized the benefits rather than the burdens, although both have been considerable. In the 1960s and 1970s the Court strayed from Brown's original definition of desegregation in order to pursue a strategy of integration (through busing). This change was reversed by Court decisions in the 1990s, but the changes in education in the five decades since Brown have left public schools facing daunting challenges in the twenty-first century.

When state or local governments insisted that black children attend separate schools, those governments were placing their stamp of approval on the doctrine of Negro inferiority. Elected officials were reinforcing the message that mean-spirited white people conveyed when they refused to shake hands with blacks; when they did not address black men as "Mister" but rather as "boy," "Howard," or "nigger Jones"; and when they called black women "aunt" or perhaps by their first name but never "Mrs." Nevertheless, in the early 1950s neither Congress nor many state legislatures were prepared to end segregation.

Segregation also tarnished the reputation of the United States at a time when the nation was vying with the Soviet Union for influence in the Third World. American diplomats assured foreign leaders that segregation was a regional rather than a national practice, a relic of times past, and a policy that was on the way out. The Justice Department's amicus brief in Brown argued that desegregation was in the national interest because of foreign policy. Brown gave the U.S. government the decision it had been hoping for, and the State Department quickly made use of the ruling. Within an hour after the Supreme Court released its opinion, a Voice of America radio broadcast trumpeted the news abroad. (1)

Brown also legitimized and helped to shape views that were emerging as a moral consensus among white Americans. In the Deep South whites vehemently opposed desegregation, but elsewhere most whites gradually accepted the principle that the government should not discriminate. (2) By contributing to the moral education of the nation, Brown helped to prepare the way for a civil rights movement that changed the way most white people thought about race.

One should not overstate the magnitude of the change. In the classic study An American Dilemma (1944), Swedish scholar Gunnar Myrdal observed that even before Brown most whites were troubled by the contradiction between egalitarian principles and the reality of racial discrimination. Myrdal predicted that whites eventually would reform their practices to conform with their principles, but he also said that most whites wanted as few Negroes as possible in America. (3) Though that view is no longer expressed openly, many white homeowners continue to leave their neighborhoods if more than a token number of blacks move in, and most white parents with sufficient means take their children out of schools that become predominantly nonwhite.

There is a paradox at the core of American racial thought. Most Americans oppose discrimination and support equal rights, but many blacks and most whites also favor a system of parallel development in which people voluntarily choose to live in communities that are predominantly of their own race, living, as W. E. B. Du Bois once recommended, "side by side in peace and mutual happiness" with each group making its own "peculiar contribution ... to the culture of their common country." (4)

Brown was consistent with this pluralism. In ruling that government officials could not separate blacks from whites "solely" on the basis of race, the justices implied that it was no concern of the Constitution if the races were not evenly mixed because of geography, economics, personal choice, or other similar considerations. The Constitution mandated only that the government desist from official racial discrimination. That Brown prohibited racial discrimination but did not require extensive racial mixing was also the message in a subsequent series of short decisions in which the Supreme Court invalidated laws that required segregation of city parks, buses, and recreational facilities. For many years Brown was generally understood to mean that the Constitution required only that the government treat each person as an individual without regard to race. (5) Stated most fluently, perhaps, by federal circuit judge John B. Parker in Briggs v. Elliott (1955), this point of view was called the Briggs dictum:

   [A]ll that [Brown] has decided, is that a state may not deny to
   any person on account of race the right to attend any school that
   it maintains.... [I]f the schools which it maintains are open to
   children of all races, no violation of the Constitution is involved
   even though the children of different races voluntarily attend
   different schools, as they attend different churches. Nothing in
   the Constitution or in the decision of the Supreme Court takes away
   from the people freedom to choose the schools they attend. The
   Constitution, in other words, does not require integration. It
   merely forbids discrimination. (6)

With the Civil Rights Act of 1964, Congress endorsed the common understanding that official discrimination should not be tolerated but racial mixing need not be compelled. Section 407 of the Civil Rights Act authorized the attorney general to initiate school desegregation actions, and Section 401 defined desegregation: "'Desegregation' means the assignment of students to public schools and within such schools without regard to their race, color, religion, or national origin, but 'desegregation' shall not mean the assignment of students to public schools to overcome racial imbalance." (7)

By the mid-1960s Brown was revered for having brought an end to shameful official segregation. Because it had relieved blacks from stigma and whites from guilt, the Supreme Court received the thanks of a grateful nation. Some legal critics raised objections to the reasoning displayed in the opinion (as distinguished from the holding) of the Court, and some others cautioned that in a democracy important changes should not be instigated by unelected judges appointed for life. But the great majority of influential Americans considered the outcome of the case so morally right that Brown became a venerated symbol.

Brown struck down an injustice, but, however desirable the outcome, the rationale of the Court was spurious. Historical research has established that the framers and ratifiers of the Fourteenth Amendment did not intend to outlaw school segregation. It is hardly conceivable that the Congress that submitted the Fourteenth Amendment intended to destroy the various states' right to maintain segregated schools when that very same Congress provided a system of segregated schools in the District of Columbia. Moreover, several of the ratifying states continued to operate segregated schools without perceiving that they were in violation of the amendment.

The evidence with respect to original intent is so clear that it initially discouraged even legal historian Alfred H. Kelly, who was working on Brown for the National Association for the Advancement of Colored People (NAACP). Kelly recalled that "The problem we faced was not the historian's discovery of the truth ...: the problem instead was the formulation of an adequate gloss ... to convince the Court that we had something of a historical case." (8) The Brown Court eventually held that the historical evidence was "inconclusive"--but only because the justices were not disposed to let evidence get in the way of their policy preferences. (9) "In the fractured discipline of constitutional law, there is something very close to a consensus that Brown was inconsistent with the original understanding of the Fourteenth Amendment, except perhaps at an extremely high and indeterminate level of abstraction." (10)

Having rejected history as the proper guide to interpreting the Constitution, the Brown Court turned to social psychology. The Court's major premise was that official segregation constituted a denial of equal protection because it placed a stamp of government approval on the doctrine of black inferiority. As a minor premise the Court also maintained that "separate educational facilities" generated "a feeling of inferiority as to [the blacks'] status in the community that may affect their hearts and minds in a way unlikely ever to be undone." (11) The first premise was satisfied by simply banning official racial discrimination. If black children were injured by lack of contact with whites, however, racial mingling seemed to be called for. Yet the full ramifications of Brown's ambiguity were not apparent immediately. For many years after Brown the common understanding held that there was no violation of the Constitution if the races were separated by adventitious circumstances rather than by official classification.

Brown required desegregation: an end to state-sanctioned racial separation. But during the 1960s many civil rights activists favored a different policy, integration: the actual mixing of the races in approximately proportional numbers. Having persuaded the Brown Court to impose desegregation even though there was no clear warrant in the history of the Fourteenth Amendment or the previous rulings of the Supreme Court, the activists proceeded to ask subsequent Courts to require integration. This could not be accomplished through legislative means because legislators are elected and most Americans favored desegregation rather than integration. The activists nevertheless hoped the American people would acquiesce if the Supreme Court required more racial interaction than could be achieved by racially neutral policies.

In 1968 the Court changed colors. In Green v. County School Board of New Kent County the justices held that Brown required school districts that had discriminated in the past to take affirmative steps to achieve as much racial mixing as possible. Purporting to do no more than apply the holding of Brown to the case at hand, the Green Court implicitly rejected the Briggs dictum and changed the meaning of desegregation. Desegregation no longer meant assignment without regard to race; it meant assignment according to race to produce greater racial mixing. (12) In Swann v. Charlotte-Mecklenburg (1971) the Court held that court-ordered busing was a legitimate way to promote this mixing, although in Milliken v. Bradley (1974) and Dayton Board of Education v. Brinkman (1977) the Court established legal requirements that kept court-ordered busing out of most suburbs. (13) Then, to allow time to see how things would work out, for more than a decade the Court declined to hear cases that involved court-ordered integration.

This time the Supreme Court did not prevail. The public never accepted Green, and there was little the justices could do about it. When school districts complied with court orders by assigning students to racially balanced schools, parents who thought their children would not benefit from the mixing undermined integration by sending them to private schools or by moving to new neighborhoods. In addition, many families with children avoided areas where courts had ordered busing for integration. For one reason or another, it was difficult to sustain a racial balance. As a rule of thumb, districts that were subject to court-ordered integration lost about 50 percent of their white students within ten years. Sometimes the so-called white flight was so great that there was less racial mixing after a court order than before. (14)

In the 1990s the Supreme Court tacitly took cognizance of the massive flight and again shifted the requirements for school desegregation. It did so in Board of Education of Oklahoma City v. Dowell (1991) and two subsequent cases from DeKalb County, Georgia, and Kansas City, Missouri (Freeman v. Pitts [1992] and Missouri v. Jenkins [1995]). (15) Amid a plethora of legalistic points, the Court returned to the original understanding of Brown. The justices repudiated Green, sub silentio, and reinstated the Briggs dictum. Local school districts were prohibited from practicing racial discrimination, but they were no longer required to achieve integration.

For those committed to integrated education, this scenario has been a cause of concern, even alarm. In 1997 the Harvard Project on School Desegregation lamented that the amount of racial interaction in the schools had declined steadily to a level lower than at any time since the Supreme Court authorized court-ordered busing to promote racial integration in 1971. Others, however, say that "integration has had its day" and that it makes more sense to address educational problems directly rather than require white families to send their children to the same schools as minorities. (16)

The trend also suggests that the Supreme Court can achieve social change only when its orders are consistent with the larger tendencies of the times. (17) Brown was accepted because several other forces had prepared the way: scientific racism had been called into question by recent scholarship and discredited by the excesses of Adolf Hitler; the Great Migration of blacks out of the South had led to black voting in urban areas and in some cities black control of the balance of political power; the Cold War had brought about competition for influence in the Third World; and African Americans had mobilized their own resources--their churches, colleges, and racial betterment organizations--and created a powerful civil rights movement. Had these other factors not been present, the Brown Court would not have prevailed against official apartheid.

Green, on the other hand, could not be reconciled with pluralism and freedom of association. Despite court orders and the pleas of integrationists, racial identity persists, and most Americans choose to live in neighborhoods that are populated predominantly by people of their own race. Integration is also at odds with the expectations of parents who, regardless of their political persuasion, want public schools to provide order, safety, and a good basic education. In theory, integration required only that school children be exposed to an approximately proportional number of children of other races; in fact, integrated education often exposed middle-class children to academic and disciplinary influences that many parents considered inimical to the well-being of their offspring. In the 1950s white segregationists had insisted that because of different racial mores and different average levels of academic achievement, "[t]here was nothing good that our children could gain from interaction in school with blacks." (18) After Green, many desegregationists were inclined to agree.

When Brown was handed down, many people assumed that with desegregation and equalization of school facilities, the schoolwork of black children would improve. However, the "achievement gap" has persisted despite subsequent integration and the expenditure of billions of dollars for Head Start and other compensatory educational programs. On the National Assessment of Educational Progress the average score of black high-school seniors remains at about the level of white eighth-grade students. (19)

This failure did not mean it is impossible for black children to do well in school. The experience of many Catholic schools suggests the contrary. So does the experience of many successful public schools. Schools can make a difference. The problem was that during the eras of desegregation and integration, educational reformers implemented programs that were counterproductive. (20)

During the years when Green held sway, some courts and many schools regarded the policy of grouping students by achievement as a sophisticated form of racial discrimination. Even within racially balanced schools, grouping often led to individual classrooms that were either predominantly white or mostly black. After going through litigation and busing, this hardly made sense to integrationists. Many integrationists therefore insisted that the full range of students should be placed in the same classroom. Consequently, teachers could no longer instruct the class as a whole but had to spend time consulting either with individual students or with small groups who were at about the same level. In mathematics, for example, a teacher could no longer explain the quadratic formula to an entire class. Instead, after dealing with students individually, he or she might form a mixed group that would be asked to work on a project--say, the construction of a building. Then a student who was working at the level of eighth-grade arithmetic could be given responsibility for keeping track of the payroll, while a geometry student would calculate the amount of concrete that would be needed and algebra and calculus students would be responsible for aspects of the project that pertained to their special expertise. The hope was that "if the slow [students] are taught in the same classes as the bright, they will be inspired to emulate, to understand, and to cherish the bright, [while] the bright ... will understand, cherish and learn from them." (21)

Additional educational practices were fashioned to cope with other problems. Along with the project method, peer tutoring and cooperative learning were touted as especially appropriate methods for integrated classrooms. Education schools urged prospective teachers to replace "teacher-centered" instruction with "student-centered" learning. Teachers were encouraged to eschew the role of master or mistress of ceremonies and instead to become "facilitators" of group projects. The ideal instructor was no longer a "sage on the stage" but a "guide on the side."

Some of the new pedagogy was not so new. It partook of the progressive education that had long been popular in America's schools of education. But much of the new teaching methodology was an outgrowth of the civil rights movement. Some reformers said that African American students (and especially black males) had more kinetic energy than other ethnic groups and thus found it hard to sit still during academic lectures. Educational researchers said that blacks (and women, too) were more interactive in their approach to learning and less linear or analytical in their thinking. Grouping students by achievement allegedly damaged the self-esteem of black students generally and of women in science and mathematics. Theorists touted cooperative, interactive group projects as a way to abolish the learning gap. In a legal brief filed in 1991 the NAACP argued that for integration to work well the schools should emphasize collaboration and teamwork rather than individual competition and that they should "experiment with innovative educational reforms" such as "structured cooperative learning." (22)

New approaches were also developed to deal with another "gap." In general, black students in integrated schools were subjected to disciplinary penalties about twice as often as white students. Persuasive evidence indicates that this "disparate impact" resulted from the fact that black students misbehaved more frequently. (23) Nonetheless, many civil rights activists blamed teachers for being narrow minded, middle class, and insensitive to the style of students who were disruptive or inattentive to schoolwork. To address this situation, many integrated school districts sent their teachers to multicultural sensitivity seminars or to summer workshops and retreats. There the teachers received instruction on how to resolve conflicts with disruptive students whose values supposedly differed from their own. Some workshops and seminars recommended "empathetic listening" as a means for effecting "behavior modification." Others addressed the need for "non-arbitrary and nondiscriminatory discipline." (24)

Whether the new methods were an outgrowth of progressivism or a response to integration, they were largely ineffective in closing either the achievement gap or the discipline gap. The surprise is not that the Supreme Court eventually backed away from court-ordered integration. The surprise is that it took the Court so long to do so. After World War II segregation was no longer a defensible social policy. It would have been anachronistic and immoral for the United States to continue with "colored only" drinking fountains and blacks consigned by law to the back of the bus. But forced integration was also wrong. It contravened freedom of association; it did not lead to better education or improved race relations; it stimulated middle-class flight from the public schools; and it led the federal judiciary into a mesalliance with dubious trends in progressive education. (25)

It is fortunate for public education that the Supreme Court of the 1990s effectively repudiated Green and tacitly revived Judge Parker's dictum in Briggs as the correct interpretation of the equal protection clause. Once again the federal courts are interpreting "desegregation" to mean what most people thought it meant when Brown was handed down in 1954 and what Congress intended when it enacted the Civil Rights Act of 1964: the prohibition of official racial discrimination, not the prohibition of racially neutral policies that have racially disproportionate effects.

(1) See Mary L. Dudziak, "Desegregation as a Cold War Imperative," Stanford Law Review, 41 (November 1988), 61-120 (esp. p. 113).

(2) For discussion of polls conducted in 1942, 1956, and 1963 by the National Opinion Research Center see Herbert H. Hyman and Paul B. Sheatsley, "Attitudes toward Desegregation," Scientific American, 211 (July 1964), 16-23; and Andrew M. Greeley and Paul B. Sheatsley, "Attitudes toward Racial Integration," Scientific American, 225 (December 1971), 13-19.

(3) Gunnar Myrdal, An American Dilemma: The Negro Problem and Modern Democracy (New York, 1944).

(4) W. E. B. Du Bois, "The Conservation of Races" (1897), reprinted in Herbert Aptheker, ed., Pamphlets and Leaflets by W. E. B. Du Bois (White Plains, N.Y., 1986), 7.

(5) Brown v. Board of Education, 347 U.S. 483 (1954), at 493, 494 (quotation); Raymond Wolters, The Burden of Brown: Thirty Years of School Desegregation (Knoxville, 1984), 6. Here and elsewhere in this essay, I have at times closely followed the phrasing used in my previous publications on the topic.

(6) Briggs v. Elliott, 132 F. Supp. 776 (1955), at 777.

(7) Public Law 88-352 (1964), 246, as quoted in Wolters, Burden of Brown, 7.

(8) Alfred H. Kelly. "An Inside View of 'Brown v. Board,'" paper delivered to the American Historical Association, December 28, 1961, reprinted at the request of J. Strom Thurmond in Congressional Record, 87 Cong., 2 Sess., 19025 (September 11, 1962). See also Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality (2 vols.; New York, 1975), II, 805. Kelly perhaps overcame his initial misgivings and published a defense of the decision's historical backing in "The Fourteenth Amendment Reconsidered: The Segregation Question," Michigan Law Review, 54 (June 1956), 1049-86. But in the 1961 essay cited above Kelly confessed that he and others working for the NAACP were not just trying to put "an adequate gloss" on the history; they were also "using facts, emphasizing facts, bearing down on facts, sliding off facts, quietly ignoring facts, and above all interpreting facts in a way to do what [NAACP lawyer Thurgood] Marshall said we had to do" (p. 19025). In 1965 Kelly made similar remarks in his essay "Clio and the Court: An Illicit Love Affair," Supreme Court Review (1965), 119-58 (esp. p. 144).

(9) Brown v. Board of Education, at 489.

(10) Quoted in Richard E. Morgan, "Coming Clean About Brown," City Journal, 6 (Summer 1996), http://www.city-journal.org/html/6_3_comingclean.html (accessed January 29, 2004).

(11) Brown v. Board of Education, at 494-95.

(12) Green v. County School Board of New Kent County, 391 U.S. 430 (1968); Wolters, Burden of Brown, 7.

(13) Swarm v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971); Milliken v. Bradley, 418 U.S. 717 (1974); Dayton Board of Education v. Brinkman, 433 U.S. 406 (1977).

(14) The pathbreaking work on this point is James S. Coleman, Sara D. Kelly, and John A. Moore, Trends in School Segregation, 1968-73 (Washington, D.C., 1975). Also see Diane Ravitch, "The 'White Flight' Controversy," Public Interest, no. 51 (Spring 1978), 135-49.

(15) Board of Education of Oklahoma City v. Dowell, 111 S.Ct. 630 (1991); Freeman v. Pitts, 60 U.S.L.W. 4286 (1992); Missouri v. Jenkins, 63 U.S.L.W. 4486 (1995).

(16) Glenn C. Loury, "Integration Has Had Its Day," New York Times, April 23, 1997, p. A23.

(17) See Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Chicago, 1991).

(18) Interview with Robert T. Taylor of Prince Edward County, Virginia, July 23, 1979, quoted in Wolters, Burden of Brown, 83.

(19) Much has been written about this "gap." For two recent accounts see Christopher Jencks and Meredith Phillips, eds., The Black-White Test Score Gap (Washington, D.C.. 1998) and Abigail Thernstrom and Stephan Thernstrom, No Excuses: Closing the Racial Gap in Learning (New York, 2003), esp. pp. 12-13 for National Assessment of Educational Progress scores.

(20) Wolters, Right Turn: William Bradford Reynolds, the Reagan Administration, and Black Civil Rights (New Brunswick, N.J., 1996), 463.

(21) Carl F. Hansen, "No Retreat in the Drive for Excellence," April 22, 1965, typescript in the files of the Board of Education. Washington, D.C., as quoted in Wolters, Burden of Brown, 27.

(22) "School Desegregation: A Social Science Statement," in brief of the NAACP et al., Freeman v. Pitts, U.S. Supreme Court on writ of certiorari, June 21, 1991, cited in David J. Armor, Forced Justice: School Desegregation and the Law (New York and Oxford, 1995), 72-73 (first quotation quoted on p. 73, second quotation on p. 72).

(23) Charles M. Achilles. "Racial Disparities in School Discipline," in Christine H. Rossell, David J. Armor, and Herbert J. Walberg, eds., School Desegregation in the 21st Century, (Westport, Conn., 2002), 235-65.

(24) See Wolters, Burden of Brown, 230; and Wolters, Right Turn. 462-63.

(25) Wolters, Right Turn, 463.

MR. WOLTERS is the Thomas Muncy Keith Professor of History at the University of Delaware.