Two Shades of Brown: The Failure of Desegregation in America; Why It Is Irremediable (and a Modest Proposal)

24 CARDOZO J. EQUAL RTS. & SOC. JUST. 271

Pepperdine University Legal Studies Research Paper No. 2018/15

Posted: 1 Oct 2018 Last revised: 18 Jan 2019

See all articles by James M. McGoldrick

James M. McGoldrick

Pepperdine University - School of Law

Date Written: 2018

Abstract

This article argues that since Brown I in 1954, the Supreme Court’s decisions made the current segregated state of our public schools almost inevitable. First, neither the gradualism approach ordered by Brown II nor the later immediacy requirement of Green had much chance for success, though both were likely the product of the political realities of the time. Second, defining the constitutional violation as strictly de jure segregation was a defensible interpretation of the state action requirement of the Fourteenth Amendment, but the distinction between de jure and de facto segregation hamstrung legitimate judicial efforts. Third, appropriate remedies for de jure segregation were so circumscribed that no effective remedy was possible. Fourth, once the illegal de jure segregation was remedied to the degree practicable, as the Court’s amorphous standard called for, the inevitable resulting segregation, in the Court’s own alchemy, became de facto segregation. Fifth, the failure to require equal funding for education made de facto racial segregation de facto substandard schools. Sixth, the Court imposed a strict scrutiny test for the use of race to remedy de facto segregation, making any remedy unlikely, even in those few jurisdictions willing to undertake the task of dismantling de facto segregated schools. Seventh, there is no likely judicial remedy for desegregating American schools, and only the political decision to make education equal and adequate across all economic and racial substructures can make a difference. The author proposes a federal spending program to encourage integration innovation and to encourage all states and interested private parties to gradually increase integration and equality in education and outcome.

Keywords: Segregation, Racial Segregation, Education, Brown I, Brown II, Fourteenth Amendment, SCOTUS, Supreme Court

Suggested Citation

McGoldrick, James M., Two Shades of Brown: The Failure of Desegregation in America; Why It Is Irremediable (and a Modest Proposal) (2018). 24 CARDOZO J. EQUAL RTS. & SOC. JUST. 271; Pepperdine University Legal Studies Research Paper No. 2018/15. Available at SSRN: https://ssrn.com/abstract=3252215

James M. McGoldrick (Contact Author)

Pepperdine University - School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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