Was Brown v. Board of Education Decided Correctly?

This question has become a standard one asked of nominees to the Supreme Court and Federal Judgeships to assure onlookers that if confirmed, the Judge/Justice will be fair to members without regard to race. The standard answer used to be, “Of course, it’s a landmark decision declaring segregation was Unconstitutional.” Now, the answer has become something like, “It would be inappropriate for me to comment on a matter which might come before the Court. A cynic might suggest that reply is a wink and a nod to those who support segregation and would like to see it return even faster than it already is. I suspect that no one will ever give the correct answer. That while Brown V. Board could not help but declare segregation Unconstitutional, the decision which called for its decision to be implemented, “With all deliberate speed,” made the decision not a landmark one but one of the weakest of all-time, in some cases almost useless.

On May 17, 1954, the Supreme Court made equal opportunity in education the law of the land. But it was a law without teeth or a timeframe. The immediate impact after the cheering subsided was almost nothing. Most schools, particularly in the South, continued to be segregated. Receiving resources separately but decidedly not equally for decades while nothing happened. Ultimately, the Federal Government had to step in and issue desegregation orders to force school districts to comply. These were typically dropped over time if districts agreed to Consent Decrees and monitoring until they demonstrated compliance. In Tuscon, AZ a desegregation case was filed in 1974. Twenty years after Brown v. Board. In 1976 the Federal Government intervened but it wasn’t until 2013 that a Consent Decree was reached to provide equality for African American and Native American students. As you might imagine, the Trump Administration cut staffing for the Civil Rights Division of the Justice Department and is looking to see how many of the 170 Consent Decrees that remained when they took control could be eliminated.

We also see the huge push for public funding of Charter Schools let by an Education Secretary, Betsy DeVos who came from the private school industry. Schools, in general, are creeping back to segregation levels not seen since shortly after Brown v. Board was announced. You could make the case that Brown v. Board was not only not correctly decided, but doomed to failure due to the lack of will and funding pushing compliance and the lack of penalty for refusing.

When the case went to the Supreme Court, Thurgood Marshall argued that “school segregation was a violation of individual rights under the 14th Amendment.” He added, “the only justification for continuing to have separate schools was to keep people who were slaves as near that stage as possible.”

Chief Justice Earl Warren, delivered the unanimous ruling: “We conclude that, in the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” He talked a good game, but the words “with all deliberate speed” made them near meaningless.

It’s almost certain at the next confirmation hearing for a Federal Judge or Supreme Court Justice. Someone will pose the question about whether Brown v. Board was decided correctly. It’s a virtual certainty, no one will have the guts to reply, “Hell no,” and go on to explain how the Court undercut what should have been a game-changer. It was still a landmark ruling, one that clearly spoke that Justice is something we talk about and not something we do!