35 Pages Posted: 1 Nov 2008 Last revised: 20 Apr 2009
Date Written: October 27, 2008
Brown famously held that in the field of public education, segregation has no place. But segregation was undefined. Was segregation constituted by mere racial classification, by the fact that the state had divided children into racial groups? Or did Brown condemn a caste system whose effect was to stigmatize black children?
In Parents Involved v. Seattle Justice Roberts says segregation is about children not black children. This colorblind approach represents both a rewriting and appropriation of Brown in the service of formalism. The Roberts court writes not only a new version of Brown but a new historical narrative about the meaning of segregation.
The theme of this new story is formal equality - equality of opportunity only - as a universal ideal. This new story is woven entirely out of the language of Brown detached from all historical context. Conservatives have long canonized Brown. It has been a kind of second constitution for the second reconstruction. But how does this new story - segregation is about harm to "children," not "black children" - compare to the original understanding? Was this the evil that Brown denounced?
By framing the issue in terms of the meaning of "segregation" the paper seeks to make an end run around an impasse in our social and legal debate. Many progressive scholars have challenged the conservative conception of formal equality by suggesting alternative ways of thinking about it: anti-subordination models, a heightened call that equality should take issues of racial caste into account. But this external critique has stalled, perhaps in part because of the slippery indeterminacy of normative ideals.
Segregation as a social phenomenon is far more determinate than equality as a constitutional "ideal"; it is something that has been concretized not only by the lived experience of black people, but by an earlier realist tradition on the part of the Warren court which saw it as it was. I retell this forgotten history of segregation in order to expose the disconnect between the Supreme Court's universalism and the actual meaning of segregation in context. Also, by focusing on the original understanding we seek a kind of internal critique showing how the Robert's court's historical revision does not withstand the very original meaning test Roberts and other conservatives try to privilege.
Keywords: Brown, formal equality, segregation, resegregation, colorblindness, equal protection
Suggested Citation: Suggested Citation
Jones, D. Marvin, The Original Meaning of Brown: Seattle, Segregation and the Rewriting of History (For Michael Lee and Dukwon) (October 27, 2008). University of Miami Legal Studies Research Paper No. 2009-11. Available at SSRN: https://ssrn.com/abstract=1290667 or http://dx.doi.org/10.2139/ssrn.1290667