Notes on Kevin Brown, Has the Supreme Court Allowed the Cure for De Jure Segregation to Replicate the Disease (Cornell Law Review, 1992)
Introduction
Kevin Brown’s article critiques the Supreme Court’s approach to remedies for de jure segregation in public schools, arguing that the Court’s ideological framework has created a new form of inequality by treating desegregation as the cure that preserves a stigmatizing message rather than fully eradicating it.
The piece is both a legal analysis and a personal narrative (autobiographical elements) illustrating how desegregation policies and their justifications have affected individuals and educators.
Brown identifies a tension in the Court’s jurisprudence: de jure segregation was said to cause a stigma (Brown I, the “invidious value” inculcation) while remedies have sometimes been justified on the grounds that desegregation will raise African-American achievement, which Brown argues persists as a flawed premise.
The central thesis: in public schools, the principal harm of de jure segregation is the socializing function of schools—coding a message of inferiority to African-American students—rather than merely stigma; therefore, remedies should target the socializing process and consider remedies sui generis to public education, not just racial balancing.
The article also surveys the Court’s recent termination decisions (Dowell, Freeman) and a university-context decision (Fordice) to show how the Court’s framework evolves and how it may entrench or revise its approach to vestiges of segregation.
I. How DE JURE SEGREGATION INCULCATED A BELIEF IN THE INFERIORITY OF AFRICAN-AMERICANS
A. The Socializing Function of Public Schools
Public schools are a central democratic institution, combining value inculcation with academic training (Thomas Jefferson cited as inspiration for education as safeguarding republic).
Schools socialize youth by inculcating national, civic, and community values; they select materials, regulate conduct, and shape attitudes (e.g., patriotism, tolerance, discipline).
The Court has long recognized the socializing function of public education (Ambach v. Norwick; Abington, Engle v. Vxitale; Hazelwood dissent; Plyler; Pico).
The socializing function means the content and messages transmitted through schooling have broad societal impact beyond academic knowledge.
The argument emphasizes that the Court’s desegregation jurisprudence has often treated value inculcation as a core educational objective, which has implications for remedies.
B. The Harm Resulting From De Jure Segregation From the Perspective of the Value-Inculcating Function of Public Schools
Brown I (1954) described segregation as inherently demeaning, even when tangible resources were equal, because it teaches inferiority and undermines motivation to learn.
The author distinguishes two notions of harm: stigma (a negative societal label) and tangible harms (psychological and motivational effects).
Brown I suggested that even with “equal” tangible resources, segregation carried intangible harms; Brown I cited the social science evidence and the general belief in the inferiority of Black students.
Freeman (1992) is highlighted as reinforcing that the harm can be both stigma and tangible; the-careful distinction matters for remedy scope.
The central claim: when public schools socialize students, de jure segregation communicates an inferior status of African-Americans, which is the core harm; remedies must address the value inculcation, not merely the absence of stigmatic labeling or the presence of racial balance.
The author argues that the Court’s framework—approving desegregation as a remedy—often rests on the premise that segregation itself caused racial inferiority, thus guiding remedies toward integration and balance rather than interrogating how remedies might transform the socializing content of schooling.
C. The Meaning Behind Racial Separation in Public Schools
Keyes v. School District No. 1 (1973) established that de jure segregation was unconstitutional, with focus on intentional state action and its social meaning.
The segregation in the old South was embedded in a broader system of racial oppression; the Court often treated the problem as rooted in a long history of inferiority.
The author emphasizes that the socializing environment (and its messages about race) is critical and that underfunding of Black schools reinforced the de jure harm.
The analysis links underfunding and unequal resources to the social meaning of separation, arguing that the social meaning matters more than the numerical balance alone.
D. The Harm to the Socializing Process is an Institutional Harm
The harm is framed as an institutional harm to the rights of all students to a public schooling that transmits constitutional values (e.g., equality, non-discrimination).
The article discusses the dual role of the constitution: prohibiting certain state actions (negative liberties) and, in some contexts, requiring positive state action to ensure equal educational opportunities.
Public schools’ role in religious, political, and other kinds of socialization demonstrates how institutional practices can affect all students, not only those directly targeted by discriminatory policies.
The argument extends to the idea that there is a public-interest in a non-discriminatory value inculcation within schools; thus, remedies should address systemic messages rather than only correcting past imbalances.
II. THE COURT'S RECENT SCHOOL DESSEGREGATION DECISIONS—WHAT IT MEANS TO ERADICATE THE VESTIGES OF THE PRIOR DE JURE SEGREGATION
A. Board of Education v. Dowell
Dowell concerns termination of desegregation decrees and the meaning of being “unitary” (free of vestiges of past discrimination).
The Finger Plan (Oklahoma City, 1972) aimed to desegregate via a complex busing plan; 1977 district court found unitary status and ended active supervision.
The key issue: at what point can a court relinquish supervision while vestiges might still exist? The Court held a desegregation decree is temporary and dissolves after a reasonable period of compliance, and when a district can show ongoing constitutional compliance and that vestiges have been eliminated to the extent practicable.
Dowell emphasizes the Green Factors as guiding principles for continued oversight (student assignments, transportation, facilities, staff, and extracurriculars).
The Court stressed that termination should consider whether ongoing court supervision is necessary to achieve compliance in other facets and whether there is a good-faith commitment to racial equality in the future.
The decision also notes that residential segregation can persist as a factor, complicating the question of whether vestiges have been eliminated; a district may terminate supervision if malleable factors show no ongoing constitutional violation, even with some residual imbalance due to residential patterns.
B. Freeman v. Pitts
Dekalb County (GA) case illustrates the opposite approach: courts can relinquish supervision in a staged way, analyzing Green Factors case-by-case rather than a blanket dissolution.
The Dekalb County district court found unitary status in several areas but retained control over others (e.g., areas where vestiges persisted).
Supreme Court affirmed that partial relinquishment may be appropriate where some areas are in compliance, while others remain noncompliant; focus on whether vestiges of prior discriminatory conduct have been eliminated as to the specific area.
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C. Implications of Dowell and Freeman
The Court’s opinions shift focus from raw racial balance (Green Factors) to the meaning and source of racial imbalance (intentions and vestiges).
The decisions endorse a nuanced approach: partial withdrawal is permissible if vestiges have been diminished and if further intervention is not necessary to correct imbalances caused by demographic shifts not traceable to state action.
Dowell and Freeman collectively suggest a framework where the meaning behind residential segregation matters as much as or more than the existence of segregation itself when deciding whether to terminate court supervision.
The concept of “good faith” and the risk of resegregation based on residential patterns remain central to deciding how and when to terminate court oversight.
D. How Remedies for Dejure Segregation Relate to the Socializing Process
The Court’s framework could allow the vestiges of de jure segregation to survive through incidental or residual forms (e.g., zoning, housing patterns) if not carefully tied to state action.
The article argues the remedial framework may still be consistent with the socializing-harm theory if it shows that current practices do not perpetuate the invidious value inculcation (or that residential segregation is not the product of deliberate state policy).
E. Implications for the Courts and Policy
The termination jurisprudence raises questions about the balance of judicial oversight with local control, and about how to measure compliance in a way that captures both material and symbolic harms.
III. THE PURPOSE OF REMEDIES FOR DE JURE SEGREGATION
The Court’s termination cases show that eliminating racial imbalance is not the only measure; the meaning behind the imbalance matters.
A. Desegregation as the Principal Means to Remedy the Harm
Desegregation has been the principal means to remedy the harm from de jure segregation; it is seen as the most effective way to dismantle the dual (and historically discriminatory) school system.
The remedy’s focus includes more than student assignment: it encompasses the overall organization of schools and the social meanings conveyed in the learning environment.
Desegregation is argued to be sui generis in public education because of its unique socializing function; mere equality of resources or balance does not fully address the inculcation of invidious values.
B. Educational Improvements as a Means of Remedying the Harm
Courts have often imposed academic improvements (reading, testing, in-service training, counseling) as part of desegregation plans to address historic inequities and to reduce the harms of segregation.
These measures can be compatible with the value-inculcation theory if they address (i) historic underfunding, (ii) desegregation goals, or (iii) direct efforts to counteract invidious value inculcation.
However, if the measures are purely academic and do not address the underlying social meaning of segregation or underfunding, they may not align with the sui generis framework.
The Coleman Report and related research suggested that desegregation did not uniformly yield large academic gains; the author uses this to argue that remedies should not rely solely on assuming desegregation raises achievement but should focus on changing underlying social messages and resource allocation.
Magnet schools and targeted funding for equity can be warranted as measures to reduce underfunding and to promote desegregation, provided they serve the broader goal of eliminating invidious value inculcation and do not become standalone academic fixes that neglect socialization issues.
C. Sui Generis Remedy for Public Schools
Bazemore v. Friday (4-H clubs) and Fordice (university context) show that the Court has drawn a line between remedies for public schools and remedies for other contexts (e.g., 4-H clubs, universities).
Bazemore held that mandatory racial mixing of youth in 4-H clubs was not required to eliminate vestiges of segregation, because attendance in 4-H is voluntary, whereas public schools attendance is not.
Fordice held that dismantling a dual university system requires eliminating discriminatory policies and practices that produce segregative effects; there, remedies focus on non-discriminatory policies rather than simply balancing enrollment.
The author contends that remedies for public schools must be tailored to the socializing role of schooling, not replicated from other contexts, and must target eliminating “invidious value inculcation” rather than merely balancing student racial composition.
D. Comparison of the Invidious Value Inculcation Theory and Justice Marshall’s Stigmatic Harm Theory
Justice Marshall (Dowell dissent) advanced a stigmatic harm theory: desegregation decrees should not be lifted while conditions are likely to inflict stigma on Black students.
The author argues that the invidious value inculcation theory provides a broader framework for understanding the harm—focusing on how schooling socializes values and how remedies can either cure or perpetuate the disease of inferiority.
The two theories are not entirely incompatible, but Brown’s analysis emphasizes the socializing process and the need to address the underlying messages embedded in school practices.
IV. THE COURT’S IDEOLOGICAL FRAMEWORK EMPLOYED TO JUSTIFY REMEDIES FOR DE JURE SEGREGATION
A. The Ideological Framework That Approved Desegregation as a Means to Remedy the Harm
The Court’s desegregation decisions (Brown I, Green; subsequently Swann, Milliken II) rested on the premise that segregation harmed African-American students and that desegregation was necessary to vindicate their rights.
Brown I showed that even with equal tangible resources, segregation communicated inferiority, which justified desegregation as remediation for the social harm.
Green v. New Kent County confirmed that “freedom of choice” plans could fail to produce meaningful integration, underscoring the need for active measures to ensure meaningful desegregation.
Milliken II approved certain educational components (reading, in-service training, testing, counseling) as remedies; the Court emphasized that the harm involved is not just the racial balance but the isolation and its effects on African-American students.
B. The Ideological Framework that Approved Milliken Remedies
Milliken II approves educational remedies that target the consequences of segregation (e.g., reading, testing, counseling) when they address the harm to African-American students.
The Court recognizes that purely academic remedies may be insufficient if they do not address the social and psychological impacts of segregation on Black students.
C. The Impact of Remedies for Dejure Segregation on the Socializing Process of Public Schools
The author distinguishes two possible impacts: (i) remedies that dismantle invidious value inculcation and (ii) remedies that address perceptions of inferiority that persist due to historical segregation.
The Court’s emphasis on the socializing function means that remedies should aim to change the messages communicated in schools, not only to change the complexion of school populations.
The article argues that the Court’s ideology has sometimes treated the burden of remedy as primarily on African-Americans, effectively reframing equality as the obligation to adapt Black students to a white-dominant socialization, rather than reforming the public school system to be inclusive.
D. How Remedies Replicate the Same Disease They Should Be Curing
Brown’s critique: remedies have, in some contexts, replicated the disease by continuing to treat Black students as requiring adjustment to White norms rather than equalizing the socializing environment.
The author argues remedies should be designed to change the social meaning of schooling and eliminate the assumption of Black inferiority embedded in the system, rather than simply ensuring Black students catch up to White norms.
E. How the Court’s Ideological Framework Could Continue to Impact Issues Related to Termination of Court Decrees
The termination framework could incentivize districts to show good-faith compliance while maintaining residual inequities that are not traceable to state action.
There is a risk that termination may be used to regress back toward private residential choices and re-segregation through district-level policy decisions that re-center on neighborhood schools and voluntary choices.
V. THE IMPACT OF THE SUPREME COURT’S IDEOLOGICAL FRAMEWORK ON EDUCATORS
A. Impact on African-American School Personnel
Desegregation often had a disproportionate negative impact on Black educators (closing Black schools, layoffs of Black principals and teachers) under the assumption that separate Black institutions were inferior and must be dismantled.
Testimony and studies cited indicate large-scale job losses for Black administrators and teachers in several states; e.g., drastic reductions in Black principals and teachers following desegregation orders.
The Court’s framing of harms as primarily affecting students overlooks the professional and personal costs borne by Black educators and communities.
B. Effect on Educational Reform in America’s Public Schools
The reform movement following Brown was often grounded in a deficit model that presumed Black students needed to catch up or assimilate into White cultural norms.
This led to an emphasis on curricular and instructional changes that aimed to “fix” students (the deficit model) rather than transforming the educational system itself to be more inclusive and culturally plural.
Critics argued that the reform effort focused on integrating Black students into White-dominant curricula and settings rather than diversifying and reforming curricula, teaching methods, and school structures to reflect multicultural perspectives.
The literature notes that many reforms were implemented with the aim of improving overall achievement but did so within the framework that Black students were the problem, rather than addressing the systemic inequities that produced underfunded and poorly resourced Black schools.
C. Conclusion: The Ethical and Practical Implications
Brown’s vision of equality is reinterpreted as not merely eliminating de jure segregation but also transforming the social meanings of schooling to treat all students as equal participants in a plural, diverse society.
The author argues for an educational reform agenda that emphasizes multicultural and pluralistic curricula and inclusive pedagogy, guided by a theoretical framework that places the socializing function of public schools at the center of equal educational opportunity.
The ultimate aim is to reduce biased value inculcation and address the broader cultural implications of public schooling, beyond the binary of Black/White racial balance.
D. Personal and Professional Reflections
Brown interweaves anecdotal reflections about his own experience as a Black student transitioning from a de jure segregated inner-city school to a desegregated suburban environment, illustrating the real-world complexities of policy effects.
He argues that the real challenge is to reframe desegregation as a pathway to inclusive, value-neutral education rather than as a mechanism that implicitly teaches Black inferiority and White superiority.
Summary of Key Points (Concise)
The principal harm of de jure segregation in public schools is the socializing process that inculcates the invidious value of African-American inferiority.
Desegregation has been the Court’s primary remedy, but the Court’s rationale rests on contested assumptions about harms and benefits ( stigma vs. socialization, intangible assets, and the role of residential patterns).
Dowell and Freeman shift the focus from mere racial balance to the meaning of segregation and to whether vestiges have been eliminated in a manner consistent with constitutional commitments and practical realities, including demographic changes.
Bazemore and Fordice illustrate that remedies in non-educational contexts and university settings differ from the public school context, highlighting the sui generis nature of educational remedies.
The Milliken II remedies underscore the complexity of remediation: balancing academic improvements with socializing goals and recognizing the potentially lingering effects of segregation on African-American students.
The author advocates a shift toward an ideology that centers on the socializing function of public schools and calls for reforms that address the underlying messages and cultural biases in curricula, pedagogy, and school organization, rather than merely pursuing racial balancing.
The personal dimension emphasizes that the experiences of students and educators during desegregation have lasting implications for both educational practice and civil rights jurisprudence.
Notable Figures, Cases, and Concepts to Review
Key cases: Brown v. Board of Education (Brown I, Brown II), Green v. New Kent County, Swann v. Charlotte-Mecklenburg, Pasadena City Bd. of Educ. v. Spangler, Keyes v. School District No. 1, Milliken v. Bradley (I & II), Dowell v. Board of Ed., Freeman v. Pitts, Bazemore v. Friday, United States v. Fordice.
Green Factors: factors to determine vestiges of de jure segregation (policy/practice in relation to faculty/staff, transportation, extracurriculars, facilities).
Sui generis remedies: remedies for public schools are distinct and must address the socializing function, not just academic outcomes or physical integration.
Conceptual contrast: stigma/harm vs. value inculcation/institutional harm; the difference between the message about African-Americans and the actual developmental impact on all students.
The Coleman Report and its interpretation: desegregation’s mixed effects on academic achievement and the role of socioeconomic status.
Residual residential segregation: its role in post-desegregation dynamics and implications for termination of court supervision.
Practical Implications for Studying for the Exam
Understand the distinction Brown makes between stigma and actual intellectual development harms, and how this shapes the rationale for desegregation remedies.
Be able to discuss the Green Factors and how Dowell and Freeman interpret them in the termination of desegregation decrees.
Explain Bazemore and Fordice’s relevance to the sui generis claim for public schools and contrast that with desegregation in higher education or public facilities.
Analyze the Milliken II remedy framework and the debate over whether remedial education programs address the underlying social messages from segregation or merely improve tests/skill levels.
Be prepared to discuss the ethical implications of remedies that focus on changing public schools’ socializing content versus remedies that simply balance race or reallocate resources.
Connect Brown’s autobiographical elements to the legal arguments, illustrating how policy outcomes affect real people and teachers.
Review the broader policy implications for educational reform: the push for multicultural curricula, inclusive pedagogy, and a shift away from deficit-focused reform models.