What's the constitutional legacy of Brown v. Board of Education?

0:05Maybe the most important Supreme Court opinion of all time is Brown v. Board of Education, decided in 1954. That case involves a group of Black parents of Black school children who bring a challenge to the segregated schools that their children attend. This is in a number of different states including Kansas. The Board of Education in the caption of the case is the Board of Education of Topeka, Kansas.

0:27This is a broad challenge to legally mandated segregation in public schools, which existed in many parts of the country until Brown v. Board of Ed. The states that maintain segregated schools, defended those segregated schools largely on the basis that the Supreme Court had blessed this idea of separate but equal and that's in the Plessy v. Ferguson case from 1896 in which the Supreme Court permitted segregated and segregated by law train cars in the state of Louisiana. This is a challenge again, late 19th century to legally mandated segregation, separate train cars for Black and White passengers. The Supreme Court in that case said, it's not a violation of the equal protection clause to mandate separate facilities so long as those facilities are equal. I'm not sure anyone thought even then that facilities were genuinely equal, but that at least is the logic of the Supreme Court's opinion. Fast forward, about a half century later, and Brown didn't come like a bolt from the blue.

1:27There had been a number of other cases between Plessy and Brown brought by the NAACP, we've got Defense Fund, helmed by Thurgood Marshall, who later became a Supreme Court justice himself. Essentially chipping away at the foundations of this idea that separation could ever be equal under the 14th Amendment Equal Protection Clause. Some of those cases successfully chipped away at Plessy v. Ferguson, but not until Brown v. Board of Education, again, in 1954, did the Supreme Court decisively repudiate Plessy and repudiate the idea that separate could ever be equal under the Constitution and under the 14th Amendment. The Court in a unanimous opinion holds that separate cannot be equal and that mandated segregation in public schools violates the 14th Amendment. Hugely important decision substantively and symbolically. Although we should say that the Supreme Court was in the wake of Brown and has been in intervening years criticized for less than fully enforcing the promise of Brown, the promise of integrated public schools.

2:35Brown itself declares that separate can never be equal, but sets for additional briefing the question of how to go about implementing that mandate. In an opinion, one year later, the Supreme Court basically sends the cases back to the lower courts in which they originated with directions to the lower courts, lead the district court judges sitting in these various jurisdictions to implement the directive of Brown with all deliberate speed.

3:02The idea being that the specifics of how to go about actually making real the idea of integrated public education might look different from one place to another, might be difficult for the Supreme Court to answer in the abstract. Again, that implementation should happen closer to the ground, supervised by federal courts and through a combination of resistance by parents, resistance by state and local officials who did not want to see full integration achieved in their schools, the realization of the promise of Brown was slow and in many respects is a project that is still ongoing.