Brown v. Board of Education

Brown v. Board of Education of Topeka, {{ussc|347|483|1954}} was a landmark case of the United States Supreme Court which explicitly outlawed de jure racial segregation of public education facilities (legal establishment of separate government-run schools for blacks and whites), ruling so on the grounds that the doctrine of "separate but equal" public education could never truly provide black Americans with facilities of the same standards available to white Americans. A companion case dealt with the constitutionality of segregation in the District of Columbia, (not a state and therefore not subject to the Fourteenth Amendment), Bolling v. Sharpe, {{ussc|347|497|1954}}.

Legal Criticisms

The Brown decision has not been without its critics. Notably, Justice Clarence Thomas (himself an African-American) writing in Missouri v. Jenkins (1995) argues that at the very least, Brown I has been misunderstood by the courts.

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:Brown I did not say that "racially isolated" schools were inherently inferior; the harm that it identified was tied purely to de jure segregation, not de facto segregation. Indeed, Brown I itself did not need to rely upon any psychological or social-science research in order to announce the simple, yet fundamental truth that the Government cannot discriminate among its citizens on the basis of race....

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:Segregation was not unconstitutional because it might have caused psychological feelings of inferiority. Public school systems that separated blacks and provided them with superior educational resources making blacks "feel" superior to whites sent to lesser schools - would violate the Fourteenth Amendment, whether or not the white students felt stigmatized, just as do school systems in which the positions of the races are reversed. Psychological injury or benefit is irrelevant...

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:Given that desegregation has not produced the predicted leaps forward in black educational achievement, there is no reason to think that black students cannot learn as well when surrounded by members of their own race as when they are in an integrated environment. (...) Because of their "distinctive histories and traditions," black schools can function as the center and symbol of black communities, and provide examples of independent black leadership, success, and achievement. http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/515/70.html

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Constitutional originalists including Michael McConnell (professor of Law at the University of Utah, and President George Bush's nominee for a seat on the 10th federal circuit court of appeals), and notably Raoul Berger, in his influential 1977 book "Government by Judiciary," make the case that Brown cannot be defended by reference to the original understanding of the 14th Amendment. They support this reading of the 14th amendment by noting that the Civil Rights Act of 1875 did not ban segregated schools. http://www.brennancenter.org/presscenter/oped_2001/oped_2001_1008.html

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The case also attracts criticism from more liberal authors. In What 'Brown v. Board of Education' Should Have Said. Jack M. Balkin (prof Yale law) and others write that Chief Justice Warren's reliance on psychological criteria to find a harm against segregated blacks is unnecessary. Quoting Korematsu v. United States they write: "we have developed criteria for evaluating the constitutionality of racial classifications that do not depend upon findings of psychic harm or social science evidence. They are based rather on the principle that distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon equality. "

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Other criticisms have centered on Brown II's use of the phrase "all deliberate speed."

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