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The Case of the Century


A Review of a New Book on Caste, Culture, and Brown v. Board of Education

By RODGER D. CITRON


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Friday, Dec. 05, 2003
Robert J. Cottrol, Raymond T. Diamond, and Leland B. Ware, Brown v. Board of Education: Caste, Culture, and the Constitution (Univ. Press of Kansas 2003)

As the fiftieth anniversary of Brown v. Board of Education approaches, the already celebrated decision is to be the subject of even more consideration. And understandably so. Brown was an extraordinary event in 1954, when the Supreme Court overruled its 1896 decision in Plessy v. Ferguson, and held that segregation in public schools was unconstitutional.

The authors of Brown v. Board of Education: Caste, Culture, and the Constitution view the Court's decision as an effort to dismantle segregation in American law and culture - what they describe as "an attempt to impose a caste system [that] had developed in antebellum America."

They also provide a number of ways of understanding the Court's decision. First, they explain, it can be seen as the culmination of a litigation strategy developed by NAACP lawyers in the first half of the twentieth century. Second, it can be seen as the product of careful deliberation by the Supreme Court, which issued a unanimous decision by Chief Justice Earl Warren after the case was reargued in 1953. Third, it can be seen as an initially controversial decision that has "become an icon whose basic premise - that the state should not engage in official discrimination - few [are] willing to publicly question."

Brown v. Board of Education: Caste, Culture, and the Constitution covers a fair amount of ground quickly and competently, and is clearly written. Given its combination of history, sociology, and law, the book is ideal for an undergraduate survey course. However, for a reader who is more familiar with the classic texts on the history of Brown (such as Richard Kluger's Simple Justice), there is not much that is new in the book.

Rather than plow already familiar ground, I want to comment on two aspects of the book.

The Historic and Cultural Backdrop for Brown

First, the authors make a strong case for the need to understand American history and culture in order to fully understand the journey from Plessy to Brown. They acknowledge that the law - the relevant legal authority governing a dispute, as well as the procedures to be followed in resolving that dispute - is of course critical to determining the outcome of a case. "Yet the outcomes of cases depend on something more," insist the authors.

As the authors explain, in their view, "It is difficult to say exactly what that something more is. It's not the lectures on anthropology that are delivered at Harvard - although they are part of it. . . . Probably the best word that can be used to describe this extra something is culture, a word that takes in the collective values, tastes, prejudices, sometimes even the reflexes that are common to particular societies at particular times." The authors note that the judges who preside over the courts are influenced by culture, and that "the relation between law and the broader culture is symbiotic, a two-way street."

Accordingly, one of the most compelling chapters in Brown v. Board of Education: Caste, Culture, and the Constitution is a brief survey of American culture describing the shift from "the raw racism that infected early twentieth-century America" to the increasing discomfort with racial prejudice after World War II.

One end of this set of developments can be marked by the release in 1915 of D.W. Griffith's film "Birth of a Nation." The other can be marked by the decision of the Brooklyn Dodgers in 1947 to hire Jackie Robinson and thereby field an African American player in the previously all-white National League on the other.

Of course, the authors admit that these developments did not directly cause Brown to be decided in 1954. But they urge that they are not irrelevant to the outcome of the decision either -- and in this contention, they are doubtless correct.

The Crucial Role of Justice Felix Frankfurter

A second notable aspect of the book is that the authors give much credit to Justice Felix Frankfurter in guiding the Supreme Court's deliberations after Brown was reargued in 1953. (The first set of arguments occurred in December 1952, when Fred Vinson was Chief Justice; Earl Warren was appointed Chief after Vinson died of a heart attack in September 1953).

The authors acknowledge that this account reflects their reliance upon the records left by Frankfurter and supplemented by two of his former law clerks, Alexander Bickel (who was hired as the Justice's law clerk in 1952) and Philip Elman (who was in the Solicitor General's office, and whose work on Brown included private conversations with Frankfurter while the case was under consideration).

Frankfurter's place at the center of the Court's decision in Brown has been disputed, to say the least. A Yale Law School panel earlier this year featured a number of former law clerks for the Justices who decided Brown, and many of the participants credited Chief Justice Earl Warren - known for his patient and generous personality - for leading the Court to its unanimous decision. Indeed, Charles Reich, who clerked for Justice Hugo Black during the term Brown was decided, described Frankfurter's literally shredding an opinion by Justice Tom Clark -- and explained that this event turned Warren away from Frankfurter, even as Frankfurter was seeking to specially influence the Chief Justice.

A Strong Introductory Work With an Emphasis on Brown's Context

Over time, Brown inspired hope in -- and in some quarters -- resistance to, the civil rights movement. It also ushered in a more expansive role for the Supreme Court - though the advent of that role was not without criticism and controversy. Currently, Brown is viewed as one of the Court's most moral and correct constitutional law decisions. (Indeed, it is virtually obligatory nowadays for a federal judicial nominee to praise Brown during his or her confirmation hearing.)

All in all, Brown v. Board of Education: Caste, Culture, and the Constitution is as good a book as any to introduce readers to the decision and the historical and cultural context in which it was decided. Simple Justice, however, is an invaluable sequel for the reader interested in going further in understanding Brown.


Rodger D. Citron is an attorney in Washington, D.C.

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