Brown v. Board of Education and the Interest-Convergence Dilemma: Study Notes
Overview and Context of Brown v. Board of Education
Decision Significance: In , the Supreme Court delivered the landmark decision in Brown v. Board of Education, , ordering an end to state-mandated racial segregation in public schools.
Historical Impact: Over twenty-five years later, Brown is recognized for triggering a revolution in civil rights law and providing political leverage for Black Americans.
Shift in Legal Status: Judge Robert L. Carter noted that Brown transformed Black Americans from "beggars pleading for decent treatment to citizens demanding equal treatment under the law as their constitutionally recognized right."
Current Reality (as of 1980): * Most Black children still attend public schools that are racially isolated and inferior. * Demographic patterns, "white flight," and judicial inability to effect social reform have hindered progress. * Professor Alexander Bickel warned that while Brown would not be overturned, it faced the danger of "irrelevance" for millions of Black children who never received its promise of equal educational opportunity.
Professor Herbert Wechsler’s Search for Neutral Principles
The 1959 Critique: Five years after Brown, Professor Herbert Wechsler of Columbia Law School delivered the Oliver Wendell Holmes Lecture at Harvard Law School, titled "Toward Neutral Principles of Constitutional Law."
Principled Appraisal vs. Willfulness: * Wechsler rejected "realists" (who see law only as fiat) and "formalists" (who judge law based on whether it advances their interests). * He argued for "neutral principles": criteria that are framed and tested as an exercise of reason, transcending the immediate result of a case. * Courts must analysis reasons that "rest with respect to every step… on analysis and reasons quite transcending the immediate result that is achieved."
Wechsler’s Assessment of Brown: * He doubted Brown relied on a factual determination that segregation caused injury, as he found evidence of harm "inadequate and conflicting." * He rejected the idea that the Amendment barred all racial lines in legislation. * He concluded the Court likely believed racial segregation was a denial of equality to the politically non-dominant minority, but found this required a problematic inquiry into legislative motives.
The Associational Rights Dilemma: * Wechsler reframed the issue as a conflict of associational rights: the freedom to associate versus the freedom not to associate. * He asked the fundamental question: "Given a situation where the state must practically choose between denying the association to those individuals who wish it or imposing it on those who would avoid it, is there a basis in neutral principles for holding that the Constitution demands that the claims for association should prevail?"
The Theory of Interest Convergence
Refutation of Wechsler’s Framing: Professor Charles Black argued that the neutral principle was simply "racial equality." He used a syllogism: 1. The Equal Protection Clause means the Black race is not to be significantly disadvantaged by state laws. 2. Segregation is a massive intentional disadvantaging of the Black race. 3. Therefore, the Amendment bars segregation.
Definition of Interest Convergence: Derrick Bell posits that the interest of Black people in achieving racial equality will be accommodated only when it converges with the interests of White people.
Positivistic Reality: Racial equality is not deemed legitimate by large segments of Americans if it threatens the societal status of White people.
Core Principle: The Amendment alone does not authorize judicial remedies for effective racial equality where the remedy sought threatens the superior societal status of middle and upper-class White citizens.
Judicial Subconscious: Racial remedies are often manifestations of unspoken judicial conclusions that the remedy will secure or advance societal interests important to White elites.
White Interests Served by Brown v. Board of Education
Bell identifies three specific areas where White interests converged with Black interests in to make the Brown decision possible:
International Credibility: * During the Cold War, the U.S. struggled with Communist countries to win the "hearts and minds" of emerging Third World peoples. * U.S. segregation damaged international prestige. Time magazine noted that the decision was a "timely reassertion" of the principle that all men are created equal.
Domestic Reassurance and Stability: * Black veterans returning from World War II faced violent attacks in the South. * Actor Paul Robeson noted in that it was "unthinkable" Black Americans would fight for oppressors against the Soviet Union, which purportedly offered human dignity. Brown helped mitigate this disillusionment.
Economic Transition in the South: * The South needed to transition from a rural, plantation-based society to an industrialized "sunbelt." * State-sponsored segregation was an economic barrier to industrialization and profit.
The Growing Divergence of Interests and Retrenchment
The Fading Convergence: Since , the alignment of racial interests has begun to fade, leading to judicial second-guessing of desegregation plans.
Shift in Judicial Standards: * Local Autonomy: In Milliken v. Bradley () and Dayton Board of Education v. Brinkman (Dayton I), the Court elevated "local control" to a "vital national tradition," prioritizing it over desegregation. * Intent Standard: Plaintiffs must now prove that segregation was the result of "discriminatory actions intentionally and invidiously conducted." It is no longer enough to show that segregation was a "natural and foreseeable" consequence of policies (Columbus Board of Education v. Penick). * Limited Relief: Remedies must be strictly limited to the specific harm proved (Austin Independent School District v. United States).
Competing Values: In Swann v. Charlotte-Mecklenburg, Chief Justice Burger spoke of "reconciliation of competing values," which Bell interprets as the conflict between Black achievement and White preference for existing school policies.
Antidefiance Strategies vs. Educational Effectiveness
Origins of Antidefiance: In the late s, massive resistance to Brown led courts to justify desegregation as a way to reaffirm the supremacy of the judiciary on constitutional interpretation (Cooper v. Aaron (1858), citing Marbury v. Madison).
Shortcomings of Racial Balance Remedies: * Racial balance plans (student/teacher ratios, redrawing lines, busing) have often altered the appearance of systems without eliminating discrimination. * Black children frequently face discriminatory retaliation within "desegregated" schools: higher suspension rates, loss of Black faculty, and racial harassment.
The Problem of White Flight: As Whites flee districts ordered to implement mandatory reassignment, the effectiveness of the antidefiance strategy dissipates. * In Los Angeles, of the White students scheduled for busing boycotted or enrolled elsewhere.
Alternative: Educational Components: * Bell suggests that "racial balance" should be secondary to "educational effectiveness." * This may include the creation of "model all-black schools" or magnet schools that utilize the "cultural strengths of the black community." * Professor Laurence Tribe noted a "troublesome lack of sympathy for racial separateness as a possible expression of group solidarity" in desegregation law.
Priority Shift: Effective schooling for Black children must be the primary goal rather than a secondary result of integration. Conformity of interests is possible if both sides prioritize "effective education."