Brown v. Board of Education (1954)
Prof. Bill Long 10/26/06
How to study a "Classic" Case
In the last few years conferences have been held celebrating the "breakthrough" of Brown--i.e., the fundamental importance of the case for race relations in the 2nd half of the 20th century. My interest in the case, though not ignoring the first issue, is on the way that the Court constructs its legal argument. Recall my contention in class that this case inaugurates what one might call the "judicial activist" phrase of modern Supreme Court jurisprudence. Though the "process revolution" is far from over by the time 1954 rolls around, the Warren Court stresses substance rather than process in this case. I propose that in order to get a handle on this case we take the first 20 or so minutes in class to do some "in class Internet research." Here is my proposal. I list a number of topics below that are crucial to our understanding of the case. Pick one of these. Spend the 20 minutes researching it in class . Then, we will report on our "findings" to each other. If you don't have a laptop available to you, print off research before class on one of these issues and study it during that 20 minutes. Of course, you are expected to have read and know the flow of the opinion before you come to class.
Topics to Consider in Understanding Brown
1. Brown was first argued in 1952 and then re-argued in 1953, before being decided in 1954. What was the makeup of the Court during both of its arguments. Know all 9 Justices and a little about each.
2. The doctrine of "separate but equal" goes back to Plessy in 1896. One of you should go back and read that decision and be familiar, also, with the dissent.
3. The strategy of the NAACP in the 1930s-early 1950s was to challenge Plessy gradually. This means that they didn't want a frontal assault on the doctrine, but one derived from seemingly "small-impact" cases. The Brown Court cites four of these earlier cases. Familiarize yourself with these cases and their holdings.
4. The Brown case is really four cases. That is, four cases from four different states were consolidated in this appeal. Describe the differences between these four cases.
5. Some have said that the really crucial issue in the case is FN 11. Take some time familiarizing yourself with one or more of the scholars there cited. The scholar seemingly most relied upon was K.B. Clark. Who was he?
6. The "big issue" that caused the case to be reheard was the question of history. Below are the questions that the Court asked both parties to brief for reargument late in 1953. After reading these questions, look at the brief of the United States (1953 WL 78291) and see how the history is handled. Here are the questions.
"On June 8, 1953, the Court ordered these cases restored to the docket for reargument, and requested counsel in their briefs and on oral argument to discuss certain questions. The order also invited the Attorney General of the United States to take part in the oral argument and to file an additional brief if he so desires. [FN2]
FN2. The full text of the Court's order is as follows (345 U. S. 972- 973):
"Each of these cases is ordered restored to the docket and is assigned for reargument on Monday, October 12, next. In their briefs and on oral argument counsel are requested to discuss particularly the following questions insofar as they are relevant to the respective cases:
"1. What evidence is there that the Congress which submitted and the State legislatures and conventions which ratified the Fourteenth Amendment contemplated or did not contemplate, understood or did not understand, that it would abolish segregation in public schools?
"2. If neither the Congress in submitting nor the States in ratifying the Fourteenth Amendment understood that compliance with it would require the immediate abolition of segregation in public schools, was it nevertheless the understanding of the framers of the Amendment
"(a) that future Congresses might, in the exercise of their power under section 5 of the Amendment, abolish such segregation, or
"(b) that it would be within the judicial power, in light of future conditions, to construe the Amendment as abolishing such segregation of its own force
"3. On the assumption that the answers to questions 2 (a) and (b) do not dispose of the issue, is it within the judicial power, in construing the Amendment, to abolish segregation in public schools?
"4. Assuming it is decided that segregation in public schools violates the Fourteenth Amendment
"(a) would a decree necessarily follow providing that, within the limits set by normal geographic school districting, Negro children should forthwith be admitted to schools of their choice, or
"(b) may this Court, in the exercise of its equity powers, permit an effective gradual adjustment to be brought about from existing segregated systems to a system not based on color distinctions?
"5. On the assumption on which questions 4 (a) and (b) are based, and assuming further that this Court will exercise its equity powers to the end described in question 4 (b),
"(a) should this Court formulate detailed decrees in these cases;
"(b) if so, what specific issues should the decrees reach;
"(c) should this Court appoint a special master to hear evidence with a view to recommending specific terms for such decrees;
"(d) should this Court remand to the courts of first instance with directions to frame decrees in these cases, and if so what general directions should the decrees of this Court include and what procedures should the courts of first instance follow in arriving at the specific terms of more detailed decrees?
"The Attorney General of the United States is invited to take part in the oral argument and to file an additional brief if he so desires."
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