Vol. 12 No. 12 (December 2002)
EQUAL EDUCATIONAL OPPORTUNITY : BROWN'S ELUSIVE MANDATE, by Mary F. Ehrlander.
New York: LFB Scholarly Publishing, 2002. 336pp. Cloth $70. ISBN: 1-931202-45-1.
Reviewed by Jon Goldberg-Hiller, Department of Political Science, University of
Hawai‘i. Email: hiller@hawaii.edu .
Although BROWN v. BOARD OF EDUCATION stands as one of the greatest 20th Century
cases of American constitutional law, with enduring doctrinal importance and
lasting political significance (Sarat 1997), its consequence for the public
school students it was designed to aid has been uncertain if not anticlimactic.
It has now been fifty years since racially segregated schools were declared
inherently unequal, violating the Equal Protection Clause of the 14th and the
Due Process Clause of the 5th Amendments,1 and several decades since the last
decision ordering desegregation was handed down. Segregation in the nation’s
public schools has again begun to grow, the gap between white and non-white
achievement has broadened, and the judiciary is rapidly abandoning its orders to
compel racial integration. Perhaps most tellingly, neighborhood public schools
are once again the demand of many urbanites of all colors.
Mary Ehrlander’s book seeks to understand these ironic outcomes, offering an
opportunity to understand the limits to judicial policymaking and the frontiers
of political resistance to courts. To this end, she provides a detailed
discussion of the judicial maneuvering to produce and then de-institutionalize
desegregation. She also describes the political contexts surrounding four
desegregation cases in Wilmington, Delaware; Prince George’s County, Maryland;
San Diego, California; and Cleveland, Ohio. These case studies, chronicling
events in courts, school boards and the streets from initial lawsuit to
termination of judicial control are rich in detail and capable of providing an
important comparative framework for addressing critical questions about courts,
policy, and the nature of political resistance to judicial power.
It is unfortunate that the book, despite its copious detail, never gets to this
sociolegal promised land. The massive political and institutional resistance to
BROWN and the subtler forms of discursive struggle against courts, rights, and
law that followed established a pattern drawn upon in many other recent
struggles against civil rights. Opposition to same-sex marriage, to abortion,
and to affirmative action, as well as other issues have borrowed heavily from
the discourses and tactics countering mandates to educational integration,
highlighting the importance of conceptualizing the political seeds of the
“post-civil-rights era” (Schacter 1997) that predated and outlived the civil
rights era itself. More generally, questions about institutional capacity raised
by Bickel (1970), Piven and Cloward (1977), Chayes (1983), Rosenberg (1991), and
others throughout this period frame important debates over judicial power and
legitimacy, while scholarly concerns over the social good of legal rights occupy
students of legal mobilization (McCann 1994; Scheingold 1974), critical theory
(Butler 1996; Lawrence III 1990), and communitarianism (Etzioni 1993; Glendon
1991) among many others.
These frameworks are not adequately thematized in Ehrlander’s book which, mostly
for this inattention, never seems to find its grip on its subject. Like barely
submerged islands, several issues force the reader’s navigational attention, but
rarely is there a map to be found. Early on, the author argues “it was the
coordinated efforts of the three branches of the national government that paved
the way for compliance [with BROWN] to begin” (p. 16), suggesting the
fruitfulness of an institutionalist explanation. But this focus is neither
sustained nor developed in the book. Later, the failure of judicial
implementation of desegregation is accounted for by the strength of local
resistance, but it isn’t clear why institutionalism yields to popular politics.
In one of the most lucid and potentially useful theoretical summations, the
author argues that it was politics that inhibited implementation:
[T]he courts sought the cooperation of the school boards, a virtually impossible
objective, given the fact that the school board members represented and were a
reflection of their communities. They could not afford to be perceived as being
cooperative with the judges who first accused the school system (and community)
of racial discrimination and then sought to wreak havoc with their children’s
lives. In the face of school board recalcitrance…judges reluctantly “tightened
the ratchet,” which only served to confirm the communities’ images of the
draconian activist judges who gleefully pursued cases which involved social
engineering, rather than interpreting the Constitution. Therein lay the irony
and the source of the failure of so many desegregation cases….(p. 261).
If only this argument and the insight from this perspective had infused the
study from its inception rather than capping its conclusion, its potential could
begin to be realized.
The character and importance of local resistance is, unfortunately, not more
theoretically expounded in this book. Missing analytical opportunities include a
sustained discussion of political rhetoric that helped to create the impression
of the draconian, activist, judge and that identified local control of public
education as a “neighborhood” issue rather than one for school districts (or
urban areas following MILLIKEN v. BRADLEY (1974)). The manner through which
public school integration was articulated to civil rights struggles more
generally is another important part of a story ignored in this book. Also
missing is sustained attention to the organization of political opposition,
particularly the linkages between local resistance and the national
politicization of busing in the 1970s.
Another significant lost opportunity in this book is a counterfactual analysis
of the means by which BROWN may have gone wrong, a linking of court doctrine to
the history of political resistance. Numerous scholars of constitutional law
have weighed in on whether Chief Justice Warren’s realist argument about the
psychological harms of segregation could have been better grounded in
constitutional theory. Herbert Wechsler (1959), for example, argued that a
commitment to “neutral principles” should have led the court to ground BROWN in
1st amendment freedoms to associate, an argument taken up later by the
conservative Robert Bork (1990). Even Thurgood Marshall who argued the case for
the NAACP/LDEF wanted to ground it in the first Justice Harlan’s dissent in
PLESSY v. FERGUSON and the opposition to the lingering badges of slavery; a
similar position by Clarence Thomas later provided liberal groups with fuel for
opposition to his appointment to the Supreme Court. Whether the compliance with
BROWN and its progeny might have taken different forms depends in part on
the—likely rhetorical—resources of political opposition.
Much of the research for this book might still provide a scholarly miner with
some interesting nuggets from which to address such questions. The case studies
have collected a tremendous amount of useful information. The reported
interviews with some participants in these cases, for example, might offer a
basis for assessing the impact of political and doctrinal rhetoric. Nonetheless,
the digging will be hard. It is for this reason that Ehrlander’s book may not
work very successfully in graduate seminars. Sarat’s (1997) collection on BROWN
is more useful for undergraduate legal classes, while Ann Ferguson’s (2000) fine
book, BAD BOYS, exploring how educators have—perhaps unknowingly—resisted
BROWN’s mandate, provides a stimulating and readable addition to the policy
syllabus.
REFERENCES
Bickel, Alexander. 1970. THE SUPREME COURT AND THE IDEA OF PROGRESS. New York: Harper and Row.
Bork, Robert H. 1990. THE TEMPTING OF AMERICA : THE POLITICAL SEDUCTION OF THE LAW. New York: Free Press.
Butler, Judith. 1996. EXCITABLE SPEECH. New York: Routledge.
Chayes, Abram. 1983. "The Role of the Judge in Public Law Litigation." HARVARD LAW REVIEW 89:1281.
Etzioni, Amitai. 1993. THE SPIRIT OF COMMUNITY : RIGHTS, RESPONSIBILITIES, AND THE COMMUNITARIAN AGENDA. New York: Crown Publishers.
Ferguson, Ann Arnett. 2000. BAD BOYS : PUBLIC SCHOOLS IN THE MAKING OF BLACK MASCULINITY. Ann Arbor: University of Michigan Press.
Glendon, Mary Ann. 1991. RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE. New York: Free Press.
Lawrence III, Charles. 1990. "If He Hollers Let Him Go: Regulating Racist Speech on Campus." DUKE LAW JOURNAL 1990:431.
McCann, Michael. 1994. RIGHTS AT WORK: PAY EQUITY REFORM AND THE POLITICS OF LEGAL MOBILIZATION. Chicago: University of Chicago Press.
Piven, Frances Fox and Richard Cloward. 1977. POOR PEOPLE'S MOVEMENTS. New York: Vintage Books.
Rosenberg, Gerald N. 1991. THE HOLLOW HOPE : CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago.
Sarat, Austin (editor). 1997. RACE, LAW, AND CULTURE. New York: Oxford University Press.
Schacter, Jane. 1997. "Skepticism, Culture and the Gay Civil Rights Debate in a Post-Civil-Rights Era." HARVARD LAW REVIEW 110:684.
Scheingold, Stuart. 1974. THE POLITICS OF RIGHTS. New Haven: Yale University Press.
Wechsler, Herbert. 1959. "Toward Neutral Principles of Constitutional Law." HARVARD LAW REVIEW 73:1.
CASE REFERENCES
BOLLING v. SHARPE, 347 US 497 (1954).
BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954)
MILLIKEN v. BRADLEY, 418 US 717 (1974)
PLESSY v. FERGUSON, 163 US 537 (1896).
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Copyright 2002 by the author, Jon Goldberg-Hiller.