In the fight over Brown's history, the participants respond

What happened in Brown v. Board of Education (1954), and what it all meant at the time, was a matter of contention in Parents Involved in Community Schools v. Seattle School District No. 1, the race in education case decided by the Supreme Court on Thursday. While it is common to draw upon past cases, Chief Justice John Roberts made the extraordinary move of quoting from the NAACP plaintiff's brief in Brown, and the oral argument made by NAACP Robert Carter in the Supreme Court. In doing so, he went beyond the usual judicial move of reinterpreting past precedents, and implied that a rigid, ahistorical "colorblindness" vision of 14th amendment equality was what the plaintiffs themselves had sought in Brown in the first place.

Thurgood Marshall is not present to tell Chief Justice Roberts just what he thinks of this strategy, but the New York Times yesterday went back to some of the surviving lawyers who participated in Brown. (Sorry I am a bit behind the news cycle on this -- I have been secluded in the archives in Austin, and then on an airline while all of this news has been breaking. But long after the headlines are over, the use of history in this case will remain one of the most curious and important aspects of the Roberts Court's handiwork.)

The Chief Justice quoted Robert Carter, one of the attorneys who argued Brown in the Supreme Court. Now a senior Federal District Court Judge, at the age of 90, he said: “All that race was used for at that point in time was to deny equal opportunity to black people,” Judge Carter said of the 1950s. “It’s to stand that argument on its head to use race the way they use is now.” The coverage continued:

Jack Greenberg, who worked on the Brown case for the plaintiffs and is now a law professor at Columbia, called the chief justice’s interpretation “preposterous.”

“The plaintiffs in Brown were concerned with the marginalization and subjugation of black people,” Professor Greenberg said. “They said you can’t consider race, but that’s how race was being used.”

William T. Coleman Jr., another lawyer who worked on Brown, said, “The majority opinion is 100 percent wrong.”

“It’s dirty pool,” said Mr. Coleman, a Washington lawyer who served as secretary of transportation in the Ford administration, “to say that the people Brown was supposed to protect are the people it’s now not going to protect.”

Some of the participants in Brown have written memoirs: Jack Greenberg, Crusaders in the Courts; Constance Baker Motley, Equal Justice Under Law: An Autobiography; Robert Carter, A Matter of Law: A Memoir of Struggle in the Cause of Equal Rights.
Thurgood Marshall did not write a memoir, but there are several works on his life, including Mark Tushnet, Making Civil Rights: Thurgood Marshall and the Supreme Court, 1956-1961, and Juan Williams, Thurgood Marshall: American Revolutionary. Marshall did a number of oral history interviews. The most comprehensive is published in an excellent collection, Mark Tushnet, ed., Thurgood Marshall: His Speeches, Writings, Arguments, Opinions, and Reminiscences (with a superb Forward by Randall Kennedy).

There are many good web resources on civil rights history. For a review of Brown v. Board of Education-related websites in the Journal of American History (by yours truly), click here. The websites are:

Separate Is Not Equal: Brown v. Board of Education. Created and maintained by the National Museum of American History, Kenneth E. Behring Center, Smithsonian Institution, Washington, D.C.

The University of Michigan Library Digital Archive: Brown v. Board of Education. Created and maintained by the University of Michigan Library, Ann Arbor.

Brown at 50: Fulfilling the Promise. Created and maintained by Howard University School of Law, Washington, D.C.

Photo description & credit: The Legal Defense Fund team of the NAACP (left to right): Louis Redding, Robert Carter, Oliver Hill, Thurgood Marshall, and Spottswood W. Robinson, on Smithsonian site, Separate is not Equal.