Vol. 14 No. 7 (July 2004), pp.525-529

BROWN v. BOARD OF EDUCATION: CASTE, CULTURE, AND THE CONSTITUTION, by Robert J. Cottrol, Raymond T. Diamond, and Leland B. Ware. Lawrence: the University Press of Kansas, 2003. 304 pp. Cloth $25.00. ISBN: 0-7006-1288-2. Paper $15.95. ISBN: 0-7006-1289-0.

Reviewed by Daniel Lipson, Department of Political Science, Kalamazoo College. Email: dlipson@kzoo.edu.

During the 50th anniversary of BROWN v. BOARD OF EDUCATION, Americans have been inundated with books, news articles, speakers, and seemingly endless varieties of features on this landmark case. The Cottrol, Diamond, and Ware book, entitled BROWN v. BOARD OF EDUCATION: CASTE, CULTURE, AND THE CONSTITUTION, is one of many such books making use of the 50th anniversary to reflect on this monumental case. It is an impressive book – Cottrol, et al., provide an excellent overview of one of the most important Supreme Court cases in the history of the United States. To the authors’ credit, the book is much more than a book on one court case; instead, the authors provide a thorough historical overview of the struggle over segregation in American law and culture. The book’s main argument is that the BROWN cases began the dismantling of a quasi-caste system in America that endured throughout much of our nation’s history. This argument, of course, is not a novel one. What the book lacks in innovation, however, it makes up in rigor.

Still, the book could have benefited from a more novel framework for analyzing racial dynamics. For example, contrast the BROWN book to THE UNSTEADY MARCH. In this mammoth book on the history of racial progress and backlash, Philip Klinkner and Rogers Smith analyze the history of racial stratification in America as an unsteady march, which entailed long periods of racial backlash that are interrupted by rare and brief moments of dramatic racial progress. The BROWN book could have benefited from more of a unifying framework to tie the analysis together.

The authors’ primary argument is that race in America ought to be understood as a quasi-caste system:  “BROWN was about caste. A caste system, or perhaps more accurately an attempt to impose a caste system, had developed in antebellum America. . . It was, we believe, in large part brought about by the attempt to reconcile slavery with the liberal precepts of the American nation” (pp.4-5).

The authors are not entirely comfortable with the imposition of the label “caste” on American racial stratification because the legitimacy of the caste had been consistently contested by large segments of both blacks and whites: “It has always seemed to us that a true caste system requires an acceptance of caste distinctions on the part of members of different castes” (p.9).

Whereas the lower castes in India appear to accept their position near the bottom of the social ladder, [*526]

[the] rejection of the caste system by blacks and a not inconsiderable number of whites throughout American history makes the use of the term CASTE problematic. Yet we use the term because it captures the rigid and separate nature of the distinctions that were imposed or attempted, even though the considerable resistance to caste throughout American history should never be forgotten (p.9).

Chapter 1 highlights the variable state of racial stratification in America even in the 18th century, focusing especially on Massachusetts’ remarkably egalitarian state constitution and Supreme Judicial Court (p.11). The authors argue that the 19th century was a period of racial regress relative to the racial progress of the 18th century in Massachusetts as in the nation as a whole. Blacks were required even in Massachusetts in the early 19th century to “use separate railcars and ride on the outside of stagecoaches, were barred from theaters, and were prevented from practicing most trades and professions” (p.13). The anti-black sentiment was so severe that some blacks in Boston actually “petition[ed] the Massachusetts legislature for separate schools for their children in the 1820s when the state established common schools and mandatory state-supported education” (p.13).

The Massachusetts Supreme Judicial Court – in large part because of the leadership of Chief Justice Lemuel Shaw – was remarkably far ahead of its time (p.16). While Shaw believed that segregation needed to be ended through changes in custom rather than changes in law, he articulated a case for equal protection and freedom for slaves who entered free territory. The authors point out that there was a movement in Boston to desegregate schools in the 1840s, well before the Civil War (p.14). The Jim Crow system faced opposition from many whites and blacks at the end of the 19th century, “arguing that such rigid separations would lead to absurdities” (p.29).

The authors capture these absurdities in their analysis of the PLESSY case:  “Louisiana was in some ways a hybrid of the American and Latin American views on racial classification. Before the Civil War, there was a distinct class of French-speaking mulattoes, called gens de colour libre, who did not regard themselves as black” (p.30).  Louisiana classified the gens de colour libre with the free Negro population, even though “some were large slaveholders themselves” and “[o]thers participated in the slave patrols” (p.30). Plessy wasn’t protesting the right of railroads to segregate blacks and whites; rather, he protested “the railroad’s right to define him as black” (p.30).

In Chapter 2, the authors examine the decline in racial equality at the beginning of the 19th century. They concur with other historians who “have rightly termed the beginning of the twentieth century as the ‘nadir’ of American race relations, a time – at least after the Civil War – when race relations and protection of the rights of African Americans hit rock bottom” (p.35). Chapter 3 explains the tactics used by the ruling powers to obstruct litigation by the National Association for the Advancement of Colored People (NAACP) in the interwar years. The authors place much of the blame for the racial caste system on American political culture: “the America of the early twentieth century was by and large a [*527] nation that was largely comfortable with the increased racial restrictions of the day” (p.49). This chapter highlights the major leaders of the NAACP, focusing on their strategic efforts to influence state courts (p.54).

The book details the NAACP’s efforts in challenging white primaries, unequal pay (p.58), and segregation, showing how the segregationists used “what would become a familiar formula for the frustration of desegregation efforts” (p.70). The first part of the formula consisted of delay tactics in implementation. The second part involved relying on “recalcitrant lower court judges to . . . [search] instead for loopholes that might allow the white South’s preference for segregation to survive” (p.70). The final part of the formula consisted of timely legislation by cooperative state legislatures that would lead courts to dismiss or delay desegregation orders (pp.70-71).

Chapter 4 addresses the progress from scientific racism to “uneasy egalitarianism” (p.77). In this chapter, the authors draw most heavily on the chief insights of socio-legal scholarship:  “It must also be noted that the relation between law and the broader culture is symbiotic, a two-way street. Legal opinions, like literature and science, academic treatise and song, become part of the broader culture influencing the tastes and prejudices and indeed reflexes of the general public and selected elites” (p.78).

For better or worse, the book BROWN v. BOARD OF EDUCATION does not even begin to analyze the case BROWN v. BOARD OF EDUCATION until page 101, almost half-way through the text. Chapter 5 covers the early strategies of the civil rights movement and the NAACP in particular. Here the authors introduce an original argument – that the NAACP’s argument in SWEATT v. PAINTER was groundbreaking for attacking “separate but equal” head-on. Whereas other authors viewed NAACP lawyers in this case about the University Texas Law School as still relying on the PLESSY precedent, Cottrol, Diamond, and Ware conclude, “in effect, the NAACP was making the argument it had made before the Texas court that the formula in PLESSY was constitutionally malformed and that the 1896 case should be overruled” (p.111).

Chapter 6 examines the oral arguments. The extensive section on the central debate over original intent is particularly fascinating. Supporters of BROWN today tend to concede that the original intent of the Framers of the 14th Amendment in 1868 was not to ban racial segregation, using this case to problematize the judicial philosophy of original intent. However, the authors highlight that the legal counsel for BROWN made the case in oral argument that segregation was inconsistent with original intent. Ultimately, Chief Justice Warren concluded after the reargument that the case could not be resolved through original intent analysis, given that the history was “at best . . . inconclusive” (p.177).

Chapters 6 and 7 also provide fascinating insights into the central role of two of Justice Frankfurter’s law clerks: Philip Elman and Alexander Bickel (pp.160-61, 169). Elman originally proposed to separate rights from remedy, which became one of the central features of BROWN (p.169). At [*528] the time, Elman was a special assistant to the attorney general in the solicitor general’s office (pp.161-62). These insights made their way directly to Justice Frankfurter, for he was “evidently in active consultation with Frankfurter during the course of the case,” and “[t]his sort of ex parte communication is considered a violation of legal ethics” (p.169).

Chapter 7 examines the anatomy of the BROWN decision, paying special attention to Frankfurter’s strategy to separate right from remedy (p.170). This strategy helped Frankfurter win over four likely dissenters to ensure a unanimous decision (p.170), which was highly surprising given that four of the Justices heralded from the South (p.152). Chapters 8 and 9 retell the aftermath of BROWN, tracing the rise of the civil rights movement in the South along with the Southern resistance to BROWN II’s “all deliberate speed” edict.

The authors conclude that “BROWN has, in recent years, taken on a new role. It has become a yardstick against which the legitimacy of other cases and indeed differing strategies of constitutional interpretation are measured” (p.233). In the Epilogue, the book calls attention to the resegregation of K-12 and higher education in America and the accompanying litigation and ballot initiatives against race-based affirmative action.

The strength of the Cottrol, Diamond, and Ware BROWN v. BOARD OF EDUCATION book is its thorough description. The book provides a solid history of civil rights in America. Indeed, the book is about far more than one landmark court case, and the title is thus misleading. That said, the text is nonetheless appropriately targeted for audiences interested first and foremost in learning about this seminal case. For those looking for a book on civil rights history, THE UNSTEADY MARCH by Klinkner and Smith provides a much more thorough and provocative explanatory argument of civil rights progress and backlash. Still, BROWN v. BOARD OF EDUCATION is an excellent read because of its careful analysis of history, culture, and customs.

Finally, the book could have been strengthened by addressing the core argument by Gerald Rosenberg in THE HOLLOW HOPE. Since the publication of Rosenberg’s book, discussions of BROWN invariably turn to his controversial argument about the impotency of the Supreme Court in containing the southern resistance to implementation. Yet Cottrol, Diamond, and Ware, make no direct mention of, and do not adequately examine, Rosenberg’s “hollow hope” argument. While they acknowledge the powerful role of Congress in passing the 1964 Civil Rights Act, the authors do not seriously consider Rosenberg’s argument that Congress, rather than the Supreme Court, is the agent of social change in the arena of civil rights.

While there is no shortage of books written about BROWN on its 50th anniversary, this book deserves a place on the shelf. It would be particularly good reading for undergraduate courses on racial history and politics, civil rights, and/or Constitutional law.

REFERENCES:

Klinkner, Philip A., and Rogers M. Smith. 1999. THE UNSTEADY [*529] MARCH: THE RISE AND DECLINE OF RACIAL EQUALITY IN AMERICA. Chicago: University of Chicago Press.

Rosenberg, Gerald N. 1993. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago Press.

CASE REFERENCES:

BROWN v. BOARD OF EDUCATION OF TOPEKA, SHAWNEE COUNTY, KANSAS (BROWN I), 347 US 483 (1954).

BROWN v. BOARD OF EDUCATION OF TOPEKA, KANSAS (BROWN II), 349 U.S. 294 (1955).

PLESSY v. FERGUSON, 163 U.S. 537 (1896).

SWEATT v. PAINTER, 339 U.S. 629 (1950).

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Copyright 2004 by the author, Daniel Lipson.