If you are interested in the ideas in this blog post you can read more about them in the article “The Whiteness of Brown: The Failed Constitutive Rhetoric of Brown v. Board of Education.”
Today marks the 66th anniversary of Brown v Board of Education – one of the most important Supreme Court cases of the 20th Century.
A lot of people can tell you what the implications of the decision were (at least, a lot in comparison to other SCOTUS cases). But not that many can tell you the reasoning of the decision. And that’s what we’re gong to briefly touch on today.
You see, BvB got rid of separate but equal. It desegregated schools. That’s easy enough. But it was not because the schools were unequal. The decision had nothing to do with the fact that Black schools were obviously underfunded and devalued in comparison to White schools. In fact, the Court said, we’re going to assume that all schools ARE equal. Which was, as we know, a wild fantasy. The whole reason the case was in Court was because Black students were suing because their rights were being infringed upon because their schools were in such sorry shape. But the Court said, okay, let’s assume all schools are equal. That’s important to understand because then it wasn’t the unequal schools part that was on trial, it was the separate part. If it was just the fact that schools were unequal that was unconstitutional then the Courts could just mandate that schools be made equal and segregation could go on as it was – which we all know wouldn’t have changed a thing because “separate but equal” had been operating under just those premises for years. So by assuming all schools were equal the Court could focus on the root of the problem – the actual separation.
And what the Court argued is that education plays an essential role in our democracy (we will talk more about education in Wednesday’s episode). Yes, in school you learn basic skills and facts, but you also learn the fundamentals of citizenship. It is in the shared community of school that you begin to learn what it means to function in our nation as an American. If we have separate schools, then we have separate understandings of what it means to be an American. By segregating schools we are segregating our national identity.
As Earl Warren argues:
“Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society.” (Brown v Board, 1954, para. 13)
“It [education] is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment.” (Brown v. Board, 1954, para. 13)
This is at once hopeful, but also deserves a little scrutiny. IS there a unified national identity we can teach our students? Now, let’s be clear, segregation was absolutely wrong and the SCOTUS made the right decision (though the fact that schools today are more segregated today than in the late 1960s says somehow we missed the memo). Segregation (which is different than just separation – there’s nothing wrong with a space designated for students of color to have to themselves when they are surrounded by a White majority) was a terrible system, designed to keep Black people and People of Color poor, subjugated, and sick. But basing the decision on the idea that there is a unified, monolithic idea of American we are learning in schools seems to limit what is a complicated idea. In a way, the Court seemed to be arguing that what was going on was that what was happening was in White schools students were being taught what it means to be American, and Black students were missing out on that, so separate was unconstitutional. So was the White version of America the right version of America?
Maybe this is making hay where this is really a lot of good being done. But I DO think it raises some interesting questions in terms of legal rhetoric. Legal scholars for years have been arguing that Whiteness is basically baked into the law. If there is a chance that in even the case of the most important case for racial justice and progress of the 20th century, what does that mean for every other case that has come before the Court?
Hate speech is on the rise in America and we live in a time when the actual, social stratified differences in the races are being broadcast by COVID and we can’t deny the legacies of Jim Crow. We need to take the legacy of Brown v. Board seriously. And that means understanding it as an argument not just as an effect.