2004: 50 Years After Brown v. Board of Education of Topeka Kansas,347 U.S. 483 (1954)

Judge Lora J. Livingston

Given your theme Brown v. Board of Education of Topeka Kansas, I can see why you wanted a judge to address you. There is no doubt that that decision helped to shape our society today.  From a legal standpoint and from a social science perspective, the Brown decision was phenomenal.

     Let me try to put Brown in some historical context.  Of course, by the late nineteenth century, slaves were free, but racial segregation and racial discrimination were common occurrences.  Further, the law of the land at that time provided that separate but equal school systems were legally sufficient.  In 1896, in a case called Plessy v. Ferguson, 163 U.S. 537, 559 (1896), the U.S. Supreme Court decided that segregated schools passed constitutional muster; however, the handwriting was on the wall.  In his dissent in the Plessy case, Justice Harlan disagreed with the majority and wrote:  

     But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is, therefore, to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.

     In the 1930’s and 1940’s the NAACP legal team won several significant victories in the courts in the area of school desegregation—at the graduate level.  And in 1950, due to the decision in Sweatt v. Painter, 339 U.S. 629 (1950), our very own University of Texas Law School was forced to admit a black law student named Herman Sweatt.

     Still, secondary schools remained segregated.  But black families all around the country were fed up with this concept of separate but equal because they knew first hand, that separate meant not only unequal but also grossly inferior.  For example, in a South Carolina desegregation case, it was determined that school authorities in Clarendon County were spending $166.00 per white student while spending only $43.00 per black student in the same school district.  Now math is not my strong suit, but I know that $166.00 buys a whole lot more books and educational materials than $43.00 does, and you don’t have to be the product of an integrated school district to figure that one out. Black parents were fed up with this inequity, and they went to court to fight it.

     By the mid 1950’s, several desegregation cases were making their way through the appellate courts and were headed to the Supreme Court.  Ultimately, the Supreme Court agreed to hear a total of five school desegregation cases as a group, noting that the issue of school segregation was a national issue.

     It’s interesting to note that while Earl Warren wrote the opinion for a unanimous court, he had not actually participated in all of the oral arguments presented in the case.  The Court first heard argument in December of 1952.  In June of 1953 the court ordered a reargument.  At the time of the first argument, Earl Warren was still the Governor of California.

     Then in September of 195,3 Chief Justice Fred Vinson, Jr., died of a heart attack.  Later that month President Eisenhower appointed Earl Warren as Chief Justice.  In December of 1953, the Court heard the reargument.  Earl Warren wasn’t actually confirmed by the U.S. Senate until March of 1954.  The Brown decision came down on May 17, 1954.

     Earl Warren once said “It is the spirit and not the form of law that keeps justice alive.”  This statement was never more true than when you look critically at the notion of separate but equal.  If things are equal, what’s wrong with segregation by race or gender or religion, et cetera?  But Earl Warren saw the fallacy of this logic, and he understood the racist reality of the implementation of such an unfair policy.

     The Brown decision was indeed historic.  The Court overturned Plessy v. Ferguson and decided that “in the field of public education the doctrine of ‘separate but equal’ has no place.”  Specifically, the court ruled that segregation in public schools deprives children of “the equal protection of the laws guaranteed by the Fourteenth Amendment.”  Thus, segregation in public education was declared unconstitutional. 

     The court knew that the changes that needed to occur could not and would not happen overnight.  Consequently, the court gave the states time to fashion remedies and develop plans.  Almost one year after this landmark decision the court heard arguments in the case concerning the appropriate remedies.  And on May 31, 1955, the decision in Brown v. Board of Education of Topeka Kansas, 349 U.S. 294 (1955) (“Brown II”), was handed down.  In that decision, the court ordered that desegregation occur with “all deliberate speed.”

     The leaders in many southern states pretended not to understand the term “all deliberate speed” so stall tactics were used to try to delay implementation of integration.  But that plan backfired because the delay actually served as a catalyst for the student protests that ignited the civil rights movement.  And we all know what happened next.

     In fact, the whole notion of separate but equal backfired on those segregationists who vehemently supported it.  But I have to tell you, I sometimes wonder what would have happened to the quality of education for people of color if separate but truly equal schools were continued.  I often wonder what might have become of historically black colleges like the Tuskegee Institute, Morgan State University, Prairie View, Grambling and so many others that now struggle for survival.

     Even now, I wonder with all the promises of integration, why so many children of color can’t read or write; why so many children of color have become incarcerated adults.  

     Our society has a responsibility to do a better job of educating children of color so they can compete in this new integrated America.  And we had all better understand that integration or as they say today—diversity—is a much broader concept than blacks going to the same schools as whites.  It is a new world!  It’s a new multicultural world that is much more complicated than black and white.

     Litigation and controversy over public education has continued ever since the Brown decision.  After Brown, there was considerable litigation over the way in which desegregation was to occur.  Thurgood Marshall, Constance Baker Motley and other legal giants were very busy fighting in the courts to ensure the implementation of Brown.

     Opposition to desegregation was coming not only from the parents of white students, but also from state legislators who tried to thwart the decision in Brown by enacting laws designed to maintain segregated school systems.  Serious opposition also came from the highest courts of several states. Some judges apparently felt that segregation was ordained by God.  In a case called State ex rel. Hawkins v. Board of Control, 83 So. 2d 20, 27-28  (Fla. 1955), Justice Terrell of the Florida Supreme Court wrote in a concurring opinion:

     I might venture to point out that segregation is not a new philosophy generated by the states that practice it.  It is and has always been the unvarying law of the animal kingdom.  The dove and the quail, the turkey and the turkey buzzard, the chicken and the guinea, it matters not where they are found, are segregated; place the horse, the cow, the sheep, the goat, and the pig in the same pasture and they instinctively segregate; the fish in the sea segregate into “schools” of their kind; when the goose and duck arise from the Canadian marshes and take off for the Gulf of Mexico and other points in the south, they are always found segregated; and when God created man, he allotted each race to his own continent according  to color, Europe to the white man, Asia to the yellow man, Africa to the black man, and America to the red man, but we are now advised that God’s plan was in error and must be reversed despite the fact that gregariousness has been the law of the various species of the animal kingdom.

     Obviously, Justice Terrell was wrong, but his opinion was popular in his day.

     In the 1970’s, the infamous Regents of University of California v. Bakke, 438 U.S. 265 (1978), case evoked as much animosity as Brown must have in its day.  Mr. Bakke threatened to turn Brown on its head by suggesting that affirmative action plans were discriminating against white students.  Bakke outlawed quotas but confirmed that race could be taken into account in graduate school admissions programs.

     In 1995, the U.S. Supreme Court ruled that disparities, such as poor achievement among African-American students, were beyond the authority of the federal courts to address.   In other words, this is an issue that should be left to the states to resolve.

     In the 1990’s proponents of affirmative action suffered a bit of a setback once the 5th Circuit handed down the Hopwood v. Texas, 999 F. Supp. 872 (W.D. Tex. 1998), decision.  However, just last year, in 2003, in two challenges to the University of Michigan’s affirmative action programs, one involving the undergraduate school and one involving the law school, the Supreme Court decided that race, among other factors, can legitimately and legally be considered in admissions programs.

     I wish I could tell you that the rest is history or that the issue of equality in public education is fully resolved.  But the bad news is that it’s not.  Lawsuits relating to equality in public education continue to be filed and challenges to the administration of public education continue to threaten the notion of equal educational opportunities for all students.

     Today, the issues are perhaps more complex than just the mixing of races.  Today the fight is over the mixing of dollars.  Should a rich school district support a poor one?  Should we do away with the so-called Robin Hood Plan and let each community support—or not—its own schools? 

     Another unresolved and equally complex issue has to do with the administration of Magnet Schools.  Some would argue that the Magnet program creates an elite school within a school where the races are segregated and the money is divided unequally.  Some argue that Magnet programs achieve their goals in many ways, and still others are just trying to make sure these Magnet programs are administered fairly.

     The issue of school vouchers further adds to this debate. Should the limited resources available for public education be used to allow students to pay for private or parochial schools?  Or, on the other hand, should we let parents choose how and where their tax dollars should be spent when it comes to the education of their children?

     These are complicated issues that will require sophisticated answers.  

     In 1954, schools were segregated by skin color.  In 2004, schools are segregated by the color of money—greenbacks.  These days, schools are segregated by those who have money and those who don’t.

     The sad irony of Brown is that organized segregation, deliberate, systemic segregation sanctioned by the government is illegal.  But the reality of segregation—the segregation created by poverty for instance, is completely legal.

     Until we take a critical look at every aspect of our society—the economy, jobs, hunger, homelessness and poverty—we will never be able to realize the goals of Brown.   Integration of schools may have been a first step in a long battle against inequality in this country, but it cannot be the last stand in a war we have yet to win.  The benefits of Brown will be lost for generations if we don’t deal with the problem of poverty.  The value of integration and the beauty of diversity will be lost forever if we continue to ignore the root causes of separation of cultures and communities.

     Fortunately, to this day, efforts are ongoing to integrate public schools and to ensure equal educational opportunities for students from all walks of life.  The language is a little different now—we call it affirmative action or “creating a diverse campus.”  Call it what you want, but as I see it, it’s an effort to open schools to all students within America’s borders, and no one should be deprived of that right.

     Oliver Brown, the father of three black school children in Topeka, Kansas, knew that his children wouldn’t have a chance at a better life without a quality education.  And he knew that the segregated schools they attended were inferior.  He leaves behind the great legacy that is Brown v. Board of Education but he also leaves the legacy of hope and opportunity.  His children are leaving outstanding legacies of their own.

     Linda and Cheryl are co-owners of Brown & Brown Associates, an educational consulting firm, and they have dedicated themselves to preserving the legacy of the Brown decision.  Both sisters grew up to be teachers and so much more.  They benefited from the decision in a very personal way, and they have been giving back to the world community ever since.

     Theodore Roosevelt once said “[W]hat we do for ourselves dies with us.  What we do for our community lives on long after we are gone.”  Oliver Brown’s legacy, his daughter’s legacies, Earl Warren’s legacy and the legacy of all our ancestors, black and white, will live on long after all of us are gone.  I salute them today and everyday.

Judge Livingston is a 1982 graduate of the UCLA School of Law.  She began her legal career as a Reginald Heber Smith Community Lawyer Fellow assigned to the Legal Aid Society of Central Texas in Austin, Texas.  After completion of the two-year fellowship program, she continued to work with legal services until 1988 when she entered private practice with the law firm of Joel B. Bennett, P.C.  In 1993, she and S. Gail Parr formed a partnership and opened the law firm of Livingston & Parr.  She was engaged in a general civil litigation practice with an emphasis on family law.  In January 1995, she was sworn in as an Associate Judge for the District Courts of Travis County, Texas.  After her successful election, Judge Livingston was sworn in as Judge of the 261st District Court in January 1999.

     Judge Livingston has been active in state, local and national bar association activities.  Judge Livingston serves on the Board of Directors of The Texas Equal Access to Justice Foundation and the Board of the Judicial Section of the State Bar of Texas.  In 1992, she received the “Outstanding Attorney” award from the Travis County Women Lawyers Association.

Texas Paralegal Journal © Copyright 2005 by the Paralegal Division, State Bar of Texas.

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