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Not By Law Alone: Brown In Retrospect

ISSUE:  Spring 1994

Brown v. Board of Education was 40 tumultuous years ago. It had come 40 years after the start of World War I, which seemed then as it does now a darkly ancient time, whereas 1954 feels, at least to me, hardly more than the day before yesterday. Our own years gallop by like thoroughbreds. A lot, in truth a lot that is awful, has happened these 40 years; much too that can be cherished.

For the world and for the United States, less though than in that previous 40 years. Not so for the South. Neither measured by data nor by memories had it changed essentially in its culture and politics during those two generations. Cars had replaced buggies, and there were fewer, though still many, blacks, and cotton was no longer king. But the feel of being a Southerner had not changed a lot, the region’s politics had scarcely been budged, nor the South’s ways of going about its daily life. The South had stayed pretty much what it was throughout years of national and world-wide transformation, through two World Wars, the frenetic 1920’s, the beleaguered and also nationally rejuvenating 1930’s, the European “isms,” the Chinese revolution, the collapse of colonialism, the atomic bomb, Korean War, Joe McCarthy and all that, the onset of the Cold War, even the stirrings of the Negro rising through the policies of the Courts and Mr. Truman.

Not so during these past 40. That the end of cultural isolation was drawing nigh had been foretold in 1948, when the unthinkable had occurred: a Democrat won the presidency without the solid South. That same election, while demonstrating that astonishing possibility, was to mean that not again in our time, if ever, would there be a solid South; not a Democratic one, in any event.

Since 1954, the South has thrown in its lot with the rest of the country, and Brown v. Board of Education was the opening act of the drama. What led to the abandonment of the old sectionalism and what had kept the South bound into it before was the same: the primacy of race. The earlier felt necessity of subordinating everything to the maintenance of white supremacy was to be presently succeeded by relaxation, in some respects relinquishment, of the old effort. Yet another “new South” was born.

Release from the old self-imposed burden has brought many benefits to the region, ones that go beyond its having, as it were, joined the Union. More to be savored and valued are ones that simply reflect the Tightness of the surrender, for such it was. The seven-year-old child who in 1960 desegregated the Raleigh public schools and for the next five years was the only black pupil in his school was in 1993 elected mayor of Atlanta, his brother having in 1992 become state auditor in North Carolina, the first black to win there a statewide election in this century. They are direct progenies of Brown v. Board of Education. Histories like this, of which there are a wonderful many, are the sweetest fruits of democracy and a vindication of faith in it. To those once active in the civil rights movement such stories are thrilling.

The opportunities for individual talents to flourish, the end of organized terror against blacks, a more democratic politics, the end of segregation in public places, the freeing of women and men to love whom they will, such have been rewards that a triumphant civil rights movement brought to the South.

Nothing, though, comes without a price. What have we paid? A discerning reader can begin to estimate it by noting what is not mentioned above. We would be foolish as well as inaccurate to claim that the black population as a whole is economically better-off and more secure, that criminal behavior in which blacks disproportionately participate has not increased, that blacks and whites generally are friendlier toward each other, that our youth of either race are better educated or trained. In perception—of blacks as well as of whites—there has been retrogression in all those areas, notwithstanding a scattering of contrary data. It is fair to say that neither in data nor perceptions have the high-bounding expectations of the mid-Sixties come close to realization. It is, of course, entirely another question as to whether these dire conditions, or any of them, are attributable to the new civil rights. It is also possible that without those, things would be as bad, or worse.

Possibly all of those bitter developments could be analyzed and explained in class rather than racial terms. An odd thing it is, that Marxists for long shunned giving any independent weight at all to racial and ethnic factors, while on the other side “free marketeers” are equally reluctant to speak of “class,” though by now comfortable with the categories of race and ethnicity. The historic American experience has been permeated by race; but so has it been by class, whether or not we easily acknowledge that.

These theoretical issues are ones we need here only to nod at. Moreover, fashioning a distinction between race and class when so many of the non-white races are of one economic class—i.e., poor—is intellectual acrobatics. What is important for us to ponder is the likelihood that black poverty, black criminality, black and white distancing from each other, and above all the ill-education—in and out of schools—of white and black youth may be outcomes of American society as it has evolved through the century, and not solely the behavioral attributes of the poor.

Again, theoretical questions are best bypassed. Whether the economic structure determines culture and politics or vice versa does not really diminish or exalt its central importance. The economy supports us all, whether well or not so well. Whatever is right or wrong today in American society gets its start and shaping there. When the economy fails the general needs of society, some people are damaged badly. The great legal victories of the 1940’s and beyond, typified by Brown v. Board of Education, did little to prevent that. Nor should we expect further civil rights litigation to do so. We may be angry over the Lani Guinier affair. At the same time, we should recognize that who is or who is not head of the Civil Rights Division is largely irrelevant to the welfare of the minority poor.

The American economy has, first and foremost, failed to provide enough work. Thus it does not serve all. It does not provide for, has not room within itself, for all our people. Except in wartimes, it never has had. There are too many of us, and that is not simply a demographic proposition. At any realistically conceivable level of population, a substantial number of us will be unneeded for satisfying the demands of the rest of us, and economists know this even if they do not declare it. There is, however, novelty of a kind that questions not only whether change is progress but whether “progress” is not the enemy. This present economy most especially has far too little room for the young. Young males with strong backs could in the past, except during great depressions, find work somewhere, and here in the United States usually work that would support a family; not clearly so any longer. Young trained men and women could look forward to doing very well, better than their parents; doubtfully so any longer.

Full employment in the United States is not possible (which the economists slyly concede by changing their definition, so that they have gone from 2 percent or 3 percent unemployment to 6 percent or 7 percent as the criterion of a fully employed “work force”—and those latter two words also get their own redefining). There is no precedent or other reason to believe that full employment is possible within our present “free market” structure. Its attainability is similarly beyond belief for the masses of poor living in the so-called “Third World.”

Perhaps it is not within any alternative. The globe’s economic business, once most of its parts have stepped out of subsistence production, may not by any means need all the globe’s people.

When the South in our time joined the Union, it threw millions of peasants—not all of whom were black but most were—into situations they could not master, and within which a growing number—growing because biology cannot be denied—find no hope. People without hope commit crimes. People without hope don’t much like other people. Youth without hope don’t make good students.


Is our America a better place than it was in 1954? Are we Americans a better people than we (or our forebears) were then? Any one person’s answers would be presumptuous. Give the questions to pollsters, perhaps. On the other hand, unless we are better people, the polleds’ answers would be intellectually suspect.

I think I’ll leave these questions here. There is, still, of course, the lingering question: just as blacks must often have had to ask themselves why the society white people have made is worth integrating with, so the South, from deep within its own historical swamp of moral slothfulness, might wonder about the gains of union. The South is a violent place. It learned to be so long ago, perhaps because a culture organized to serve white supremacy required it to be. In the same way, surely, the violence that dwarfs our region’s civility (and the nation’s) is substantially learned from a culture organized to serve our national military supremacy.

James Baldwin once wrote, “I cannot accept the proposition that the four-hundred-year travail of the American Negro should result merely in his attainment of the present level of the American civilization.” Integration, of black and white, of South and non-South, is to be valued, at least by those not party to it, only if humanity itself thereby takes a step forward.

We knew, in that dawn of the civil rights movement, that it would, that integration meant progress for the nation, for humanity entire. Such were the hopes, the bright and beloved hopes! Even before the “Movement” days, when all things seemed possible—black and white together, we shall overcome—Myrdal had told us that we essentially could will an end to the national pain, by resolving the tension between ideals and conduct, by practicing the “American creed.” In law, in countless public rituals, in popular entertainments, in all these many ways we have since declared the historic contradiction overcome. Its harshest edges have actually been. What we found in the aftermath was that the “American dilemma” has taken new form. The dilemma which today cripples our nation is not a moral one—as it had seemed to Myrdal—but basically political and economic.

I know how overlapping all those terms are, and how indeed they circle about and turn into each other. Nevertheless, the basic issues today—and this is so both objectively and as felt or believed by probably most people—are material ones. They are related to hard matters such as the definition of national interests and purposes; to the use of military and economic power; to the tensions between the claims of national security and claims of individual freedom; and to the distribution of power, benefits, and costs within the republic.

Now all those matters may be, one supposes, reducible by analysts to morality, but that is contested ground. No “creed” is there for guidance. Even were one postulated, moral decisions could not settle such issues. Moreover, a nation which has learned well to absolve itself, reflexively, from the consequences of its foreign villainies—such as today’s crushing poverty in Nicaragua—is not in its present mood to be looked to for moral direction. This means that the era in which the great events and persons of the 1950’s or 1960’s began is ended. It was an era within which satisfying change could be accomplished with but a single disturbance of the national structure. That one change was to rid our national law and ideology of “white supremacy,” and later, by a natural progression, “male supremacy.” That work is done, not perfectly or finally, but done as well as any change gets done and well enough so that the finishing work can be carried forward. The remnant problems and hardships are, however, not likely to be remedied in better than surface ways without deep changes, beginning with a national commitment to a full employment economy. That is unlikely, and of all regions of the country the South may be the most resistant to it. There is, consequently, no principled (i.e., truth-respecting) reason for optimism regarding the next 40 years.


The South’s politics has become more democratic, but that has too often, and too generally, demonstrated the impotence of democracy for governing in the interest of the “least among us.” As in other sections, black political leaders of the South have been able scarcely to make an impress on poverty, poor schooling, civic disorder, and crime. Black mayors have become—and this is a consequence of reformed law— commonplace throughout the region, but they’ve inherited cities where problems overwhelm resources. As long as the South continues to send to Washington such congressmen as it still typically does, it is pointless to pass the blame for that to the national government. It is, moreover, somewhat nonscholarly (i.e., non-objective) to speak, in the hovering presence of these people, of Southern progress.

The underlying force in Southern politics has not changed. It is, as it has been, conservative and centripetal, and the “natural position” is to be somewhere right of center. Too far to the right, and we have the disgrace of “massive resistance”; to be to the left of center is almost unthinkable. The South sits so implacably right of center that bona fide centrists— a Ralph McGill in the 1950’s, a Bill Clinton today—get labeled whatever the time’s fashionably bad name is: today, it is “liberal.”

Are there not unmistakable signs that this Southern drift to the center possesses blacks as well as whites? Blacks have traditionally felt more comfortable in alliance with upper rather than lower income whites, and in local and state politics (if not as yet national) as often as not stand with them.

A phenomenon of post-1960’s politics has been the migration of large numbers of the working classes to the party of their bosses. This has happened less in the South than elsewhere because here that was the traditional location. The South’s white working class followed its bosses into the Democratic Party in the 19th century and followed them out of it in these later days. Both times, the enticement was racial: at bottom today, even if today a variety of other social concerns drape themselves in its penumbra. The South rose economically as far as it has after 1954 propelled by the black revolt. It was shaped, guided, and to some measure initiated by Brown v. Board of Education and the cases descended from it. The revolt freed Southern white business people from the prison of defending a rotten political order and an indefensible caste system. Free at last they got rich; Martin King, the radical SNCC youngsters, and the white liberals did more for the South’s wealthy than had an army of chambers of commerce and corporate lawyers. The question is whether the black revolt—if anything is left of it—can now serve the poor.

Why have the poor not organized, found their leaders, become in the Marxist sense a self-conscious class? Martin Luther King was clearly moving toward that cause before he was murdered. George Wiley was attempting it, with some success, before he drowned. Jesse Jackson is a now-and-then spokesman for it, among his other causes. The American poor remain a mute, formless, directionless mass. Nor are they likely to receive from court actions the legitimizing stamp that opened the passageway for civil rights. Our law will recognize race as a legal “class,” gender too; but it has not recognized the poor as such, and likely will not. To the extent, and it is considerable, that a people’s advance in the United States requires a legal definition of its hardships or handicap, the poor can little expect to receive the benefit of a judicial response to their needs. There is a glimmer of contrary expectation in those several school districts now under courts’ orders to equalize their schools. Resistance is intense, and nothing like the Warren court stands at the end of what surely will be bitterly fought over terrain. Nor, in an historical age permeated and sometimes led by popular “movements,” did the poor ever—except fleetingly—become part of one or had their own: the poor could be black or Latino, but blacks and Latinos could not be poor and count on being heard.

We have had so many “movements” that they sometimes seem like another “estate,” a fifth, beyond the press. We have had the civil rights movement, ethnic movements, women’s movements, various peace movements, ones for environmental sanity, consumers, homosexual persons, anti-abortion, abortion rights, planned parenthood, political correctness and anti-same, the “Christian” right—each, and there are more besides, represents a questioning of the authority of the state and the efficacy of the two-party system to deal with what is held to be important by a large number of persons. Sometimes lost among the good results is what seems to be a fact, that if the force of these movements energizes the political process, their multiplicity renders the concern of any one of them less solvable.

The public mind too (if one can speak of such) becomes gridlocked sometimes. So many, for example, new sexual causes have asked for public approval that it must be that many citizens want relief from the demand that they accommodate the new, have retired therefore into sometime churlish denial. Abortion, social acceptance of unmarried mothers, cohabitation of unmarrieds, sleep-over privileges for dates in university dormitories, AIDs, condom distribution in high schools, lowering of the definition of pornography, copulation in most movies, social acceptance of homosexuality—all of this coming more or less simultaneously is quite an overload, hard for many to cope with rationally; or to want to.

The old civil rights movement itself, which once had the strength of clarity, and thus gave supporters and friends fairly simple goals, has that no longer. By and large, white supporters had seen it as a crusade for fair treatment and equal opportunities; in short, for reversal of the overt wrongs they, and their ancestors, had imposed on blacks. Blacks were and are for that, but many, perhaps most, saw the goal as equality of results as well. Whites have, now and then, given lip service to that but hardly more than that. When the issue is defined as results or outcomes, the whites’ tendency is to regard blacks and Latinos and other ethnic groups as only another among competing claims for their attention and support. Even white liberals, the most steadily supportive friends blacks and Latinos have had, are lukewarm to cool about legislative districts gerrymandered for the “result” of electing more minorities. Such gerrymandering is the clearest example I can now think of where “law,” with minimal popular endorsement, is establishing a significant minority benefit. With this, perhaps transient, exception we are back to the “dilemma” noted earlier, that of the inadequacy of law to complete the old civil rights cause of jobs and justice, as the Washington march of 1963 proclaimed.

One of the advantages of legal action, such as the great Brown v. Board of Education case, is that a decision comes forth; as a veteran civil rights lawyer once put it to me, the courtroom is the only place in American government where you can ask a question that gets an answer. In legislatures and executive offices, issues get tortured more than resolved.

But in actuality, how real is the decisiveness of courts? It took another decade and a half for Brown v. Board of Education to receive its authoritative meaning, and that only after almost continuous litigation.(The culmination was a series of climactic cases spaced between the Virginia case Green v. County School Board, 1968, and the North Carolina case, Swann v. Charlotte-Mecklenburg Board of Education, 1971.) Cases were after that adjudicated around the fringes, and still are being brought and tried. Even were the current school-equalization cases to receive a Supreme Court’s favorable order, that would in all probability be but a stage in near-endless litigation.


Brown v. Board of Education was historic. It ended a near-century of the law’s willful disregard of Constitutional rights. In doing so, it reestablished the moral authority of national law. The opportunity that the great decision offered was that the nation’s actual Constitution—in an Aristotelian sense of the ordering of a society’s parts into a coherent political order—would be brought into correspondence with the legal Constitution. That opportunity was refused by the state legislatures, governors, school boards, and much of the white populace of the South, Brown v. Board of Education had declared a legal right. For its effectuation, legislative and executive leadership was required, and in 1954 and 1955 widely anticipated. It was not given. Implementation was forced onto the courts unaided, and often defied, by the political branches of state governments. No band of politicians in American history is more deserving of infamy than those of the South during the ensuing hard years. Politicians who today roar about the federal courts’ interference in public schools’ policies and administration should be reminded that the courts a generation ago had to fill responsibilities abandoned by their predecessors. The courts did so, using what remedies they could devise, such as busing, which they turned from what had been its customary function of maintaining segregated schools to assisting their desegregation.

What the courts could not do, and cannot, is broad and deep planning for the educational needs of schools when those schools are required to serve equally and inclusively all their children. It need not have happened this way. It was humanly possible for leaders at that time to behave rationally. For long that was hoped for. As late as 1963, nine years after Brown v. Board of Education, the Notre Dame Conference on Civil Rights Legislation, comprising a representative number of recognized scholars and lawyers, would focus expectantly on legislation in Congress (in particular, on a by-now forgotten measure known as the Clark-Celler bill) and on local school boards. Not a word on busing was in the conference’s report. Similar examples could be noted. The 15 years between 1954 and the Supreme Court’s justly impatient decrees of the late 60’s and early 70’s were years when the South’s political failure and irresponsibility ruined the life chances of a multitude of Southern children. They also laid the ground for the South’s present-day politics of illiberalism, in succession to its old politics of white supremacy, and the distance between is not much.

One of the reasons for that outcome has been, as had happened a hundred years earlier, the inconstancy of the non-South’s attention and commitment. The Southern civil rights movement never transplanted well. Its idealism, its youthfulness of spirit, did not travel without souring. The Watts riot and the civil rights leadership’s confused response to it, coming as they did in the euphoria following the passage of the Voting Rights Act of 1965 and preceding the brilliantly intense emotion of the Selma march, extinguished flames that would be hard to relight.

Our gratitude should grow and deepen, therefore, to those who led the Southern civil rights movement, who gave us the conviction that there could, even among us weak-kneed human beings, come to be a “beloved community,” who taught us to honor non-violence, who said to us that love is more real than fear.

We have made a holiday of King’s birthday, which is only partly a blessing. For how can a holiday be built around a prophet? King stands—will always stand unless we smother him with sentimentality and commercialism—as a voice saying, “not good enough.” He was a scourge. All prophets are. He was not dreamy—as the yearly incantations of his Washington march speech want to make him out to be—but hard and demanding. The most important thing about King was that time and again he went to jail. Had he lived many of the same leaders who gush over him now would again surely be putting him behind bars. He was a disturber of the peace. The course of American public life since his murder would not, one feels certain, have led him to lay down his prophet’s vocation, to accept things as they have become.

How much different we would be had he lived to continue his work is impossible to say; or had the others struck down in those years. There was a notable quality, not only in King’s speeches but in those of the Southern civil rights leaders generally and, just as important, in those of countless preachers and community organizers throughout the black South. Almost invariably, they would give a higher reason for their demands than simply their own needs; they would attach their cause to some other: to the national interest, or the nation’s hallowed ideals, or religion, to something besides themselves and their own welfare. This is still so, now and then and here and there, but not so characteristically; more frequently today, meaner reasons are the common coin, as for example the case for better schools is typically made in terms of economic competitiveness. As I’ve tried to think about this essay, I’ve reread some pages of James Baldwin. He wrote in that old way, and part of his anger grew out of a fear that blacks, once absorbed into white society, would lose their moral and spiritual edge.

Black Southerners raised a lot of white people, not just or even most essentially in a housekeeping way but morally. The churches of the South may still be (as are those elsewhere) largely segregated, but in those white congregations where the gospel of forgiveness and love is preached, the black presence is there; because it was from it that the white folks learned that religion. Southern white liberals found their values when they came to sense, however imperfectly, the black experience. Change is not always progress, and fewer white youth are today close enough to observe, much less vicariously to feel, that experience.

Brown v. Board of Education was meant to bring us closer. It has not. In that it failed. Law is not sufficient unto itself. Perhaps it was always but a fantasy, to assume that declarations of law could put a bridle on people’s prejudices and selfishness, on the Leviathan which is the American corporate economy, on the government’s neurotic drive for national power and security. Too much seen today makes us wonder if we were not all drunk with self-deception. The requirements of race relations are essentially that people get along well with each other, and that starts with good manners. Beyond manners are other and greater matters—justice, for example—but courtesy and kindness form the doorway. Blacks and whites are now giving each other too much reason to avoid, to dislike, even to fear, each other; to see each other as undifferentiated types, not as individuals. The stereotypes of Reconstruction days—the black male as rapist, the white male as incurably a would-be “baas” (in the South African term), and women of each race as accomplices or mirror images of their men, are recurring. The one advantage the South used to have was that blacks and whites did at least talk to each other. It is worth everything to hold onto, or recover, that practice.

Cornel West tells, us that, “The fundamental crisis in black America is twofold: too much poverty and too little self-love.” This doesn’t help greatly—most hardships, almost anything but conscription and taxes, can be swept under the second term—but in whatever measure it may be true of blacks it is equally so of whites, who have their own share of poverty and their own struggle to respect, value, and love themselves. Black and white, together still. Public policy can only indirectly help with that struggle, but it can directly act against the disgrace of poverty. In large measure it created it. The poor of the United States stand in relation to the rest of us as do the impoverished countries of Africa and Central America to the wealthy industrial states. We don’t know what to do about either, within our present ideologies. The numbers of the world’s poor, of our poor, grow; the impotence and indeed disinclination of the governing powers to end their poverty grows too.

So too does the power of judge-made law. The era of social reform through litigation is winding down. The problem is poverty. The wrongs of discrimination that litigation can attempt to resolve are marginal to that base problem, and their righting will not end it. Statutes can do better, because they can command and distribute money. The problem though will remain: poverty. Law in the past 40 years accomplished what it did by disturbing only one basic element of the established social order: white male supremacy. To go further, the economy’s way of distributing its costs and rewards will have to be redirected.

The dreadful 40 years before 1954 did have the blessing of ending in widely shared hope. These 40 since did not. The next 40 will have their chance.


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