| Abstract: | Current positive attitudes towards the historic Brown v. Board of Education of Topeka, Kansas decision are likely to mislead us into thinking that it was welcomed when announced in 1954. Beyond that, Chief Justice Warren's opinion seemed to announce two separate justifications for ruling school segregation unconstitutional: the Fourteenth Amendment principle of ‘equal protection of the laws’ and the negative effects of segregation on the self-image and self-respect of black schoolchildren. These two lines of reasoning were both important in the context of the emergence of a new ‘universalist’ way of thinking about race after the Second World War. By the late 1960s, however, this colour-blind universalism had given way to a race-conscious particularism. By that same period, the federal court system was moving to embrace race-conscious measures to insure school integration and not just desegregation, and then to allow affirmative action rather than merely requiring the abolition of racial discrimination. Thus the conflicting logics of Brown were present in the racial jurisprudence and politics of the last fifty years. Another question raised by Brown is also important: how did it comport with the progressive tradition of jurisprudence called ‘legal realism’ that was dominant up to the end of the Second World War? Surprisingly little attention has been devoted to this problem in the intellectual history of constitutional thought. One thing is clear, however: legal realism has a different origin and orientation than the ‘race and rights’ tradition that the Warren Court initiated with the Brown decision. Again, the conflicting logics of Brown reflect the two traditions of legal reasoning: one based on an appeal to rights and principles and one grounded in experience. Finally, reflection upon the half-century history of Brown reveals considerable progress in abolishing legal and political racial discrimination, although ironically more progress in integrating schools has been made in the South than the North. Moreover, such progress has come at a certain cost to black institutions in both regions of the United States. That said, there is still much to be done to overcome the effects of over a century of racial segregation. |
