If at First You Don't Succeed, Ignore the Question Next Time? Group Harm in Brown V. Board of Education and Loving V. Virginia
Ely, John Hart, Constitutional Commentary
I'm guessing you don't need to be reminded that in Brown v. Board of Education,(1) decided in 1954, the Supreme Court declared segregation of the public schools by race unconstitutional. It may need recalling, however, that aside from reciting the facts and explaining why segregation hadn't been validated by history, the Court's opinion was entirely devoted to establishing the proposition that school segregation treated the races unequally, and more particularly that black children generally were harmed by it in ways that white children were not.
We come then to the question presented: Does segregation of
children in public schools solely on the basis of race, even
though the physical facilities and other "tangible" factors may
be equal, deprive the children of the minority group of equal
Thirteen years later the Court in Loving v. Virginia,(3) again unanimous, and again speaking through Chief Justice Warren, invalidated state "antimiscegenation" laws precluding black and white people from marrying each other. The Loving opinion was devoted in its essential entirety to reciting the facts and explaining why such laws hadn't been validated by history. Not a word was devoted to establishing the proposition that such laws treated the races unequally.
Just a difference in emphasis, albeit a dramatic one? Actually no: further analysis of both cases renders the disparity more perplexing still. So far as Brown was concerned, the proof of general racial harm was, frankly, somewhat shaky, and apparently is even more widely so regarded today. Where did the Court get its conclusion that black children in general were harmed by school segregation? First, from the proceedings below in the Topeka case. (Brown in the Supreme Court was several cases consolidated.) In that proceeding a number of experts had indeed testified that school segregation was harmful to the ability of black children to learn. But other experts testified that desegregation, by engendering insecurity on the part of black students, would actually impede their ability to learn.(4) Nor were these opposing experts a collection of nuts and klansmen. They were academics also apparently concerned with the welfare of black children, whose credentials were comparable to those on the other side; and we know in hindsight that there was much truth in what they said as well.(5)
Beyond that, as I said, the testimony relied on was given in the Topeka case. But given that the topic the Court had set for itself was black feelings of inferiority and their likely effect on learning, it might at least have paused to inquire whether such evidence (and the Topeka district court's findings(6)) automatically translated to the consolidated cases--to Clarendon County, South Carolina, for example, with 2799 black students and 295 white students--and for that matter to the thousands of school districts across the country that technically were not involved in the litigation but would effectively be bound by the Court's mandate.
That's where the Court's controversial(7) footnote 11 came in, citing certain reports and books by psychologists that, according to the Court, "amply supported" its finding that even physically equal segregated schools had a negative impact on the ability of black children to learn. Well intended all, but unfortunately, when not simply irrelevant to the Court's point,(8) at least now the object of widespread professional criticism.(9)
And no matter what's going on there, it seems rather transparently the case that Chief Justice Warren's remarks about how segregated schools can impede the learning opportunities of black children, eloquent as they were, had little if any bearing on the per curiam orders that came down almost immediately thereafter, desegregating buses, golf courses and beaches, without any psychological buttresses of the sort that were at least attempted in Brown. …