brown v Education Council
Fifty years later, NAACP attorney Jack Greenberg thinks about Brown v. Board of Education: "Brown went beyond school integration and raised a legal and moral imperative that was influential even when disobeyed."
In the summer of 2003 I advised lawyers and NGOs in Budapest, Sofia and small towns in Bulgaria on the integration of Roma children into public schools. They taught me more than I taught them. Just as learning another language helps you understand English better,brown v Education Council, took on a new meaning for me when I observed the integration of Roma in Bulgarian public schools.
Ninety percent of Europe's Roma population of seven to nine million is located in Eastern Europe. Once nomadic, they are mostly "sedentary" as a result of fifty years of communist rule that banned their traditional travel. They remain subject to secular discrimination in employment, housing, health care, community services, political participation, the criminal justice system, and other aspects of life. They are often victims of ethnic violence. In the Czech Republic, for example, the murders of nine Roma have been documented since 1991, alongside more than a thousand acts of racially motivated violence. European Union law now prohibits racial and ethnic discrimination. Eastern European countries have to meet their standards as a condition for joining the EU, but the process of compliance is only just beginning. This article focuses only on the decision to end school segregation and the process being undertaken in some places to end it.
Beginning in 2000 and expanding in 2001-2002, Bulgaria integrated 2,400 Roma students in six cities into the majority school population, often referred to as "white". The Roma integration, which will span across Eastern Europe, went smoothly and successfully at first and shows no signs of repeating the southern US's response to itBraun. In the United States, post-1954 integration was fraught, often violent, and almost non-existent for over a decade and a halfBraunit was decided. A start, even as small as Bulgaria's, would have met with fierce resistance almost anywhere in the south by 1954.
What happened in Bulgaria was only a beginning and the result of private initiative with the indispensable cooperation and approval of the government. While there has been a slow, even sluggish movement toward desegregation in most of Eastern Europe, there has been nothing quite like the massive resistance that has hampered desegregation in the United States. The Bulgarian government, which is committed to full desegregation, has yet to commit funds to make it happen, although it has promised to do so. The European Roma Rights Center reports that only Hungary has launched a government program so far. Offers financial incentives to schools that integrate Roma children. Hungary has appointed an energetic Commissioner for the Inclusion of Roma and Underprivileged Children, Victoria Mohacsi, whom I met during my visit to Budapest. I have no doubt that she is committed to success. As of the last report, 400 schools have joined his program. But as early as July 2004, the Roma leadership claimed that integration was not fast enough on any front (education, social life, economy) and that their community continued to be plagued by poor education. The final implementation of the program remains to be seen.
compare cases
About 70% of Roma children are placed in separate schools, separate classrooms or, according to common misdiagnoses, separate rooms for the disabled. Only 5% graduate from high school; Fourth graders are generally illiterate; only 0.3 percent are interested in state exams for admission to elite schools after seventh or eighth grade; In Bulgaria, more than half of the windows in Roma schools are covered with cardboard, a situation that is probably representative of other countries in the region.
The US Constitution, the domestic constitutions of Eastern Europe and the European Convention for the Protection of Human Rights embody virtually the same rights. Despite constitutions and laws, the United States and Europe, respectively, tolerated the subordination of African Americans and Roma. Despite the success of school desegregation in the United States, challenge and dropout accompanied the process from the start. On the other hand, six cities in Bulgaria had initially been desegregated shortly before I visited them, all uneventfully, some with great success. Roma dissolution may become more difficult over time, but there will not be "massive resistance," as was the response from the American South.
In 2000, the European Union passed the Racial Equality Directive, requiring schools to desegregate schools. The guideline has its roots in the Universal Declaration of Human Rights, international agreements and conventions, and the European Convention on Human Rights. To join the EU, Eastern European countries must comply with the directive, which requires member states to achieve racial equality. There were no attacks on its legitimacy in the same way as attacks on the STF decisionbrown v Education Council. Given the geopolitics of EU enlargement, political leaders are too invested in the process to generate opposition to EU norms. Prior to the adoption of the Racial Equality Directive, Bulgaria issued a "Framework Programme" to implement the then-pending Directive.
There is also a practical consideration: Eastern Europe's population is shrinking due to low birth rates and emigration, but the Roma population is not. Schools are funded per capita. Teachers and administrators in white schools welcome the income that new Roma students provide. In fact, the main resistance to desegregation, weak as it may be, comes from non-Roma teachers and administrators in Roma schools because they will lose funding. The only other reservations I heard about integration are that some Roma families feared that white school children would expose their children to drugs. I also heard occasional mentions of a desire to preserve cultural identity.
Integrated Bulgarian public schools show what is possible in Eastern Europe. In this case, integration was managed and funded by a private foundation and supported by NGO networks, financier and philanthropist George Soros and the World Bank, but the schools were public and integration was an expression of public policy. I have visited two of the non-segregated cities, Montana and Vidin. In Vidin, I attended a meeting of three to four hundred parents, students, teachers and administrators, Roma and non-Roma, who overwhelmingly supported desegregation. For maybe three hours, one person after another stood up and talked about the success of desegregation. I think only one speaker failed. One of my hosts was particularly proud that a Roma boy attending a non-segregated school came second in the national mathematics exam. Such a gathering would not have been conceivable anywhere in the South in 1954. Although I thought of Potemkin villages and the Soviet conformity requirements, I think I heard expressions of genuine faith.
Even more remarkable was the community's effort to provide social support. Social workers visited all Roma families with school-age children. Educators were available for children who needed help. The teachers received special training. Families in need of food or clothing were assisted. Joint excursions, social events and cultural experiences of Roma and non-Roma children. The project received great political support. The press publicized the benefits of integration.
There are likely other reasons that have contributed to different responses than in the United States. Roma children ride buses to integrated schools, but white children don't ride buses into Roma neighborhoods. In the United States, school suspension was initiated in a similar manner. Black families soon objected to having them travel to white schools, while whites were not required to travel to black schools. Black and white children should be treated equally, they argued. Additionally, declaring black schools off-limits to whites was an insult to black teachers and administrators, resulting in two-way buses incompatible with many white families. But the two-way bus is not in the plans of the Eastern Europeans. They believe that Roma schools, often one- and two-room buildings housing many more classes, are so dilapidated that neither Roma nor white people want to occupy them in the future.
However, movement was lacking, along with some early attempts to circumvent the law. The Budapest-based European Roma Rights Center has cases in national and international courts challenging school segregation in the Czech Republic; Croatia; and Sofia, Bulgaria. There is blatant anti-gypsy activity, although it has not been linked to the expected transfer of schools. In the 1990s there were attacks on Roma in Romania. Vigilantes burned down Roma houses in Bulgaria, some with residents inside. The children were badly burned. In the Czech Republic, a city built a wall around a Roma ghetto. Skinheads attacked Gypsies in Hungary and other central European countries. However, I have seen nothing related to school integration in Eastern Europe that resembles the usual reactions during a comparable period in the American South.
After Hungary pledged to abolish all 700 Gypsy classes in the country within the next five years, Jaszladay, 86 miles south of Budapest, opened a private school in a city building, subsidized by the city government, similar to the "sec-academies". . ', which subsequently surfaced in the southern United StatesBraun. 40 percent of the population of Jaszladay, but only 17 percent of the private students, were Roma. The Hungarian national ombudsman for minority rights has announced that these schools will be closed. In the American South, political and legal barriers protected white private schools for years, although lawsuits over time reduced some subsidies, such as free books, and eventually gave blacks the theoretical right to attend.
desegregation in the United States
In April 2001, the Bulgarian President congratulated the organization that had supported desegregation. In contrast, President Dwight D. Eisenhower disagreedBraunand only said that the law should be obeyed. A policy of "massive resistance" by the South led to interference and repeal of resolutions, and created well-funded state sovereignty commissions dedicated to preventing desegregation. State judges, attorneys general and even federal judges have denounced the federal court. States sued civil rights organizations and tried to oust civil rights attorneys, enacted laws closing integrated schools, and created complex administrative procedures to block access to non-segregated education.
Respected scholars attacked themBraunOpinion that lends credibility to the most vicious of critics. Legal luminaries like Learned Hand and respected scholars like Herbert Wechsler, who were personally opposed to segregation, delegitimized itBraunDecision
The fact that the South ignored and even flouted court orders to end discrimination did not surprise the plaintiffs' attorneysBraun. However, no one foresaw the intensity of the opposition. Civil rights disputes have produced many victories on paper. Courts ordered universities to admit blacks, interstate buses and railroads to stop segregation, election officials to bar blacks from voting, jury commissioners to bar blacks from jury panels, courts to stop enforcing agreements between owners not to sell to blacks. These decisions resulted in only minor changes.
Southern officials and institutions generally treated a court decision as affecting only the plaintiff and the defendant in the case. The bus companies didn't pretend it was a Supreme Court ruling on seating at bus-controlled terminals. One bus company did not consider a decision addressed to another as relevant to its own situation. The railway undertakings did not treat a decision on sleeping or dining cars as applicable to wagons and a decision affecting one company as applicable to another company. Election officials openly dodged court orders that invalidated laws or practices that excluded blacks by adopting new registration or voting criteria that again excluded them. Case after case overturned convictions because blacks were barred from juries, but the barring continued. Prosecutors assumed that in the next case, the lawyers may not be aware of the issue or may not want to bring it up.
The decisions requiring Black entry into higher education anticipated the reaction that would occur in elementary and secondary education. Despite Supreme Court decisions beginning in 1935, it was virtually impossible for more than a small handful of Black people to attend an accredited law, medical, or other professional school, or to earn a doctorate without first filing a lawsuit. in the south until the 1960s. In 1939 the Supreme Court inMissouri ab rel.gains from Canadaordered the University of Missouri to admit a black applicant to its law school because there was no black law school in Missouri. Another case had to be filed to secure black admission to the Missouri School of Journalism.
In 1948, the United States Supreme Court ordered the University of Oklahoma to admit a black woman to its law school. Immediately thereafter, the Oklahoma School of Education rejected an applicant because he was black. The University of Texas Law School rejected a black applicant and set up a two-room law school for him. In 1950 the Supreme Court ordered the admission of plaintiffs from Oklahoma and Texas.
In the 1960s, the courts ordered the University of Alabama, the University of Georgia, and the University of Mississippi to admit blacks, which was carried out by campus troops. In fact, before blacks were allowed, lawsuits had to be filed in every southern state except Arkansas. I have attended university lawsuits in Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, Alabama, Florida, Louisiana, Mississippi, Tennessee, Texas and other states.
Could the attack on segregation have somehow been steered in such a way that American integration would have been as smooth (so far) as Roma integration in Bulgaria? Would it have been better to focus efforts on housing, work, or public housing first? Two obstacles discouraged this alternative approach. First, the doctrine of government action; second, whether a legal right to integrate these options could lead to real social change.
The doctrine of government action promulgated in the Civil Rights Cases of 1883 held that the Fourteenth Amendment prohibited discrimination only by the state, not by individuals. He used the term "state" in a very narrow sense. Since most public housing, jobs, and shelters were constitutionally private, the doctrine of government action would have been an insurmountable barrier. Second, even lawsuits against state or state-operated employment, public housing, and shelters would be limited. The accommodation units are discreet. Becoming the first black man to move into a white neighborhood is a daunting prospect. Government jobs were virtually impossible to get, even with a successful legal battle. A lot of discretion was required in the selection. Jobs are different from each other; Wholesale litigation was unlikely to change any time soon. And there are only a handful of jobs at stake anyway. There was a vanishingly small number of public theaters, golf courses, and other amusement and entertainment venues owned by the government. No trial could have the impact of a school district collapse.
Some considered, and some still insist, on applying the "same" part of the "separate but equal" formula rather than seeking integration. But when a case was won, there was the problem of forcing the legislature to tax and do justice to court-ordered monies; If this worked, there would be a need to appeal again, as black schools relapsed into physical inequality. Building on this insight, Nathan Margold, who authored the policy document that launched the National Association for the Advancement of Colored People's repeal campaign, advocated attacking the "heart of evil," segregation.BraunThe historical revisionists who now argue that "separate but equal" is better than integration forget that "separate but equal" was the law in force between 1896 and 1954 and that great effort was made to enforce it. Equality was never achieved. The lack of success helped launch the attack on segregation. The experience of equity financing attempts has been replicated in about twenty state court decisions over the past few years that have called for the balancing of funds from rich and poor counties, or at least the raising of funds from poor counties to an adequate level. In a few cases, these processes have reached equality. There has been little improvement in New Jersey's minority schools for thirty years. Now this 30-year-old case has raised funds for some lower classes. Equal treatment procedures confirm the aphorism that “green follows white”.
Thurgood Marshall, chief attorney for the NAACP Legal Defense Fund, said he thinks we need to sue in Georgia integration schools in every county. The rest of the South, with few exceptions, couldn't be easier. But he and we expected hostility, not a quasi-insurgency.
Why politics couldn't work
Despite being a political organization, the NAACP could not even persuade Congress to pass anti-lynching legislation. Franklin Roosevelt did not fight for one, for if he had, Southern senators would not have supported his efforts to overcome the Depression or support the Allies before the United States entered World War II. If black people couldn't vote, politics would be useless. Winning the vote should have been easy: there were numerous laws outlawing electoral discrimination ever since the Constitution. When the Voting Rights Act of 1965 was enacted, only about 8% of blacks in the 100 counties with the largest black populations could vote. In the far south, blacks voted at a rate of about 2%. Without the vote, the political path was illusory.
Litigation seemed the only viable option. But why go to court after experiencing so much opposition to court decisions and realizing the limits of what has been achieved? There was no other place. It was like trying to find your way out of a maze: if one way doesn't work, try another. The judicial attack on school segregation was the only attempt worthwhile.
Decisions to end school segregation
We wonBraun. But almost nothing happened to the schools. The South erected the massive wall of resistance described above. Finally, in 1969, after a decade and a half of little effective lawsuits, inBoard of Education of Alexander County v. holmes, the Supreme Court struck down all the tactical maneuvers by the school board's defendants that amounted to "litigation forever." The school suspension began in earnest. Southern schools changed from almost no black students to mostly white southern schools in 1954, with the proportion of black students increasing to 33.1% in 1970 and 43.5% in 1988. a decline that continues to this day. In 1998 the rate was 32.7%. This article is not the place to explain the decline. Suffice it to say that desegregation was difficult to sustain in the face of newly developed legal doctrines that prohibited court orders to desegregate cities to suburbs and demographic changes that crowded urban centers with minorities.
But something else happened. opponent ofBraunThey were correct in claiming that the plaintiffs' victory would mean a condemnation of segregation in all its manifestations. First,Braunwent beyond school integration and raised a legal and moral imperative that was influential even if generally disregarded. Set a standard for correct behavior. Some laws are widely disregarded, discredited, or subject to conflicting views. ButBraunit was not just a pronouncement of judgment. As the US letter of implementation states: “The right of children not to be separated on the basis of race or color is not a technical legal right of little import or value. It is a basic human right, sustained by both moral and legal considerations.” Or, as the United States has argued elsewhere, “The issue of racial discrimination must be seen in the context of the current global struggle between liberty and tyranny. The United States is trying to prove to the peoples of the world, of every nationality, race and color, that a free democracy is the most civilized and secure form of government ever invented by man.”
The arguments of those who wished to maintain the separation did not include claims of right and wrong. They have been expressed in terms of federalism, local control, the original intent of the constitution, the sanctity of precedent, the role of the judiciary in a democracy, the difficulty of enforcement, or the academic inadequacy of black people. In briefs addressing the issue of implementing desegregation ordinances, states with "unfavorable community attitudes", "health and morals" of black populations, local school boards were "steadfastly opposed" and the like argued. North Carolina argued that integration would create the "probability of violence" and that "public schools could be abolished." Oklahoma insisted that desegregation would create "financial problems." Florida argued that nearly 2% of Florida white births and 24% of black births were "illegitimate". Florida has reported more than 11,000 cases of gonorrhea, 10,000 of which have occurred among black populations. There have been some claims that the Bible intended the races to be separate. I've combed through the defendants' pleadings and reviewed the public debates. There were no claims that segregation was right and moral.
Second enforceBraunestablished national, not regional, standards as a benchmark for equality. Efforts to desegregate the schools were thwarted by a constant drumbeat of physical resistance, which in turn was almost always met by superior police and military forces. In the Border States - Milford, Delaware; Clay and Sturgis, Kentucky; Clinton, Tennessee; and in Greenbrier County, West Virginia -- violent public demonstrations against desegregation were suppressed or contained by police, troops and the National Guard. In 1957, in Little Rock, Arkansas, the President called the military to secure admission of black children to Little Rock High School. Another president rallied troops to get James Meredith admitted to the University of Mississippi and Vivian Malone and James Hood to the University of Alabama in the early 1960s. Ultimately, national dominance established their superiority in physical strength over physical endurance.
Third, embraced a popular movementBraun. It was like there was an immune response to massive resistance. Leaders of the first protests in the 1960s drew inspiration from thisBraun. Freedom Rides began in 1961, partly in honorBraun, with the first voyage scheduled to arrive in New Orleans on May 17, 1961, his birthday. Martin Luther King Jr. held annual prayer pilgrimages on May 17 and made frequent calls to the Supreme Court. Rosa Parks, whose defiance sparked the Montgomery bus boycott, was an NAACP administrator deeply involved with herBraun. The boycott was launched by Gayle v. Browder, in which the Supreme Court appealsBraun, held the boycott's segregation law unconstitutional.
The symbolic challenge of segregation was not new. The black press had had stories of sit-ins and sitting in prohibited sections of buses etc. since the 1930s. But for the first time network television encouraged imitation everywhere.
Together the moral imperative ofBraun, the physical suppression of the resistance, the civil rights movement, and the crushing of massive resistance culminated in the civil rights laws of the 1960s, which marked the beginning of a political transformation in the United States. It manifested itself in many ways, but embodied in the election of forty black congressmen and black mayors at some point in every major American city and most smaller ones. When Lyndon Johnson signed the Civil Rights Act of 1964, he found it meant the end of the Democratic Party in the South. Was he right? But it also spelled the end of racist Southern hegemony and the political programs that went with it.
We can imagine the political situation in the United States in the mid-20th century as frozen until 1954. White southern supremacists kept blacks in a subordinate caste. The school integration decision, if a metaphor is allowed, acted like a powerful icebreaker. It made America embrace race change.Braunit wasn't just a school affair. Supreme Court Justice Robert H. Jackson used this image to describe the seminal role of the Nuremberg Trials. He told his team that they "needed to make an ice ax to break through the frozen sea within us." Kafka scholar Stanley Corgold has suggested that Jackson may have found the metaphor in Kafka, who wrote that "a book must be the ax to the frozen sea within us".
Like my metaphorical icebreaker or Kafka's metaphorical axe,BraunCreated ways by which America could achieve race change.Braunit wasn't just a school affair.
So when I saw a smooth, easy, pleasant and successful school termination in Bulgaria and wondered whyBraunhadn't gone so well in the United States is the answerBraun, while a school event, in other circumstances did more. In the anti-racial atmosphere of the South in the 1950s and beyond, schools could not desegregate. There was no way to effect change in the face of self-interested resistance to the status quo.BraunIt was a first step in dividing this frozen sea, changing and raising awareness, creating a social movement that became political, winning parts of the country and the world, and enacting basic laws that changed the balance of power between black people and influenced whites in the north and south.
So South Carolina or Mississippi could adopt our version of the Racial Equality Policy and respond like Vidin.
Jack Greenberghas been a professor of law at Columbia University since 1984. He was Assistant Counsel to the NAACP Legal Defense Fund from 1949 to 1961, Director Counsel from 1961 to 1984, and was among the attorneys who arguedbrown v Education Council. He is the author ofCrusaders in Court: Civil Rights Movement Litigation. This article is an adaptation of another article on the same subject published in Spring 2004University of Saint Louis Law Journal.
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