Monday, July 2, 2007

Barrett on Actually Remembering Brown v. Board of Education

John Q. Barrett, legal historian at St. Johns School of Law and noted biographer of Supreme Court Justice Robert Jackson (the book is eagerly awaited), has just circulated the following message to his "Jackson List." It is posted here with permission.
On May 31, 1955, the Supreme Court announced its remedy-phase decision in Brown v. Board of Education. This decision, known popularly as “Brown II,” followed on the unanimous Court’s invalidation, a year earlier, of school segregation laws in Brown I.

In Brown II, the Court remanded the legal cases that had been brought on behalf of black children, who had been unconstitutionally barred from so-called white public schools, to the trial courts where the cases had begun. The Supreme Court ordered those trial courts to achieve the “admission” of those black students to the schools from which they had been excluded unconstitutionally, but in making that charge the Court also used the now-infamous phase “all deliberate speed.” Over many ensuing years, judicial and other anti-black racists and resisters to Brown tried to claim that phrase as their Supreme Court license for delay and inaction.

In 1955, the detailed future of school desegregation was of course unknowable, but the difficulty of the path ahead was foreseeable. When Justice Felix Frankfurter (who naively, for obscurely historical and personal reasons, had championed inclusion of “all deliberate speed” in the Brown II opinion) penned a private congratulatory note late on May 31, 1955, to Chief Justice Earl Warren, the leader of the Court and the author of Brown I and Brown II, for example, Frankfurter began with a prediction—maybe a very safe prediction—that undeniably has come true: “The harvest of today’s planting won’t be fully assessed for many a day.”

Last Thursday was one of those many days. The Supreme Court decisions in the Seattle and Louisville school cases (Parents Involved in Community Schools v. Seattle School District No. 1, et al.—click here for the full opinions), and the clashing opinions of today’s deeply divided Supreme Court Justices, show that we are still harvesting Brown (or not) and struggling to understand (or not) our historical, constitutional soil, seeds and growth.

The PICS opinions are filled with competing claims about Brown v. Board of Education. Much of that debate concerns Brown’s development and meaning over the past fifty-three years. But some of the debate concerns simply Brown and its companion cases themselves in their time at the Supreme Court, 1951-1955. On that, as important resources for anyone who seeks to sort out and evaluate today’s arguments and clashing perspectives, I commend the memories and careful thoughts of attorneys who were there, as captured in these Robert H. Jackson Center roundtable discussions:
John David Fassett, Earl E. Pollock, E. Barrett Prettyman, Jr., & Frank E.A. Sander, Supreme Court Law Clerks’ Recollections of Brown v. Board of Education, 78 St. John’s Law Review 515-567 (Summer 2004); and

Gordon B. Davidson, Daniel J. Meador, Earl E. Pollock & E. Barrett Prettyman, Jr., Supreme Court Law Clerks’ Recollections of Brown v. Board of Education II, 79 St. John’s Law Review 823-885 (Fall 2005).

I also commend the clear, accessible words of Chief Justice Warren—whose name, curiously, went unmentioned in all of last week’s PICS opinions—for the unanimous Supreme Courts of May 14, 1954, and May 31, 1955:

Brown v. Board of Education (1954);

Bolling v. Sharp (1954) [Brown’s companion case, involving the District of Columbia’s segregated schools] (1954); and

Brown v. Board of Education (1955).

Professor John Q. Barrett
St. John’s University School of Law

Elizabeth S. Lenna Fellow
Robert H. Jackson Center, Inc., Jamestown, NY

Archive of Jackson Email List postings

No comments: