Editing Brown v. Board of Education (section)

==Legal criticism and praise==
[[File:Brown V. Board of Education Exhibit.jpg|thumb|right|[[United States courts of appeals|U.S. circuit judges]] (from left to right) [[Robert A. Katzmann]], [[Damon J. Keith]], and [[Sonia Sotomayor]] at a 2004 exhibit on the [[Fourteenth Amendment to the United States Constitution|Fourteenth Amendment]], [[Thurgood Marshall]], and ''Brown v. Board of Education'']]
[[William Rehnquist]] wrote a memo titled "A Random Thought on the Segregation Cases" when he was a law clerk for Justice [[Robert H. Jackson]] in 1952, during early deliberations that led to the ''Brown v. Board of Education'' decision. In his memo, Rehnquist argued: "I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by 'liberal' colleagues but I think ''[[Plessy v. Ferguson]]'' was right and should be reaffirmed." Rehnquist continued, "To the argument&nbsp;... that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minorities are."<ref>William Rehnquist, [http://a255.g.akamaitech.net/7/255/2422/26sep20051215/www.gpoaccess.gov/congress/senate/judiciary/sh99-1067/324-325.pdf "A Random Thought on the Segregation Cases"] {{webarchive |url=https://web.archive.org/web/20070615154055/http://a255.g.akamaitech.net/7/255/2422/26sep20051215/www.gpoaccess.gov/congress/senate/judiciary/sh99-1067/324-325.pdf |date=June 15, 2007 }}, S. Hrg. 99-1067, Hearings Before the Senate Committee on the Judiciary on the Nomination of Justice William Hubbs Rehnquist to be Chief Justice of the United States (July 29, 30, 31, and August 1, 1986).</ref> Rehnquist also argued for ''Plessy'' with other law clerks.<ref>
Peter S. Canellos,{{cite news |url=https://www.boston.com/news/nation/articles/2005/08/23/memos_may_not_hold_robertss_opinions/  |url-status=dead |archive-url=https://web.archive.org/web/20080829190736/https://www.boston.com/news/nation/articles/2005/08/23/memos_may_not_hold_robertss_opinions/ |archive-date=August 29, 2008 |title=Memos may not hold Roberts's opinions |newspaper=[[The Boston Globe]] |date=August 23, 2005 |quote=Rehnquist: I thought ''Plessy'' had been wrongly decided at the time, that it was not a good interpretation of the equal protection clause to say that when you segregate people by race, there is no denial of equal protection. But ''Plessy'' had been on the books for 60 years; Congress had never acted, and the same Congress that had promulgated the 14th Amendment had required segregation in the District schools.&nbsp;.&nbsp;.&nbsp;. I saw factors on both sides.&nbsp;.&nbsp;.&nbsp;. I did not agree then, and I certainly do not agree now, with the statement that ''Plessy against Ferguson'' is right and should be reaffirmed. I had ideas on both sides, and I do not think I ever really finally settled in my own mind on that.&nbsp;.&nbsp;.&nbsp;. [A]round the lunch table I am sure I defended it.&nbsp;.&nbsp;.&nbsp;. I thought there were good arguments to be made in support of it. (S. Hrg. 99-1067, Hearings Before the Senate Committee on the Judiciary on the Nomination of Justice William Hubbs Rehnquist to be Chief Justice of the United States, July 29, 30, 31, and August 1, 1986)}}{{cbignore}}</ref>

However, during his 1971 confirmation hearings, Rehnquist said, "I believe that the memorandum was prepared by me as a statement of Justice Jackson's tentative views for his own use." Jackson had initially planned to join a dissent in ''Brown''.<ref>{{Cite book|last=Schwartz|first=Bernard|url=https://books.google.com/books?id=Y5cUCl4hSWUC&pg=PA96|title=Decision: How the Supreme Court Decides Cases|date=1997|publisher=Oxford University Press USA|isbn=978-0-19-511800-1|page=96| quote= Justice [[William O. Douglas]] wrote: "In the original conference there were only four who voted that segregation in the public schools was unconstitutional. Those four were Black, Burton, Minton, and myself."}}{{pb}}
Likewise, Justice [[Felix Frankfurter]] wrote: "I have no doubt that if the segregation cases had reached decision last term, there would have been four dissenters—Vinson, Reed, Jackson, and Clark." Id. Justice Jackson's longtime legal secretary had a different view, calling Rehnquist's Senate testimony an attempt to "smear the reputation of a great justice."<br />
{{cite web
| url=https://www.huffpost.com/entry/telling-the-truth-about-c_b_6844
| first= Alan | last = Dershowitz
| title= Telling the Truth About Chief Justice Rehnquist
| date = 4 September 2005
| archive-url= https://web.archive.org/web/20190402133328/https://www.huffpost.com/entry/telling-the-truth-about-c_b_6844
| archive-date= 2 April 2019
}}</ref> Later, at his 1986 hearings for the slot of Chief Justice, Rehnquist put further distance between himself and the 1952 memo: "The bald statement that Plessy was right and should be reaffirmed, was not an accurate reflection of my own views at the time."<ref>{{cite news |first=Adam |last=Liptak |author-link=Adam Liptak |url=https://www.nytimes.com/2005/09/11/weekinreview/the-memo-that-rehnquist-wrote-and-had-to-disown.html |archive-url=https://web.archive.org/web/20160412145711/https://www.nytimes.com/2005/09/11/weekinreview/the-memo-that-rehnquist-wrote-and-had-to-disown.html |archive-date=April 12, 2016 |url-status=unfit |title=The Memo That Rehnquist Wrote and Had to Disown |newspaper=[[The New York Times]] |date=September 11, 2005 |access-date=October 6, 2022}}{{cbignore}}</ref> In any event, while serving on the Supreme Court, Rehnquist made no effort to reverse or undermine the ''Brown'' decision, and frequently relied upon it as precedent.<ref>[http://a255.g.akamaitech.net/7/255/2422/26sep20051215/www.gpoaccess.gov/congress/senate/judiciary/sh99-1067/303-305.pdf Cases where Justice Rehnquist has cited ''Brown v. Board of Education'' in support of a proposition] {{webarchive|url=https://web.archive.org/web/20070615154053/http://a255.g.akamaitech.net/7/255/2422/26sep20051215/www.gpoaccess.gov/congress/senate/judiciary/sh99-1067/303-305.pdf |date=June 15, 2007 }}, S. Hrg. 99-1067, Hearings Before the Senate Committee on the Judiciary on the Nomination of Justice William Hubbs Rehnquist to be Chief Justice of the United States (July 29, 30, 31, and August 1, 1986).</ref><ref>{{cite news |first=Jeffery |last=Rosen |author-link=Jeffrey Rosen (legal academic) |url=https://www.theatlantic.com/doc/200504/rosen/2 |title=Rehnquist the Great? |work=[[Atlantic Monthly]] |date=April 2005 |quote=Rehnquist ultimately embraced the Warren Court's Brown decision, and after he joined the Court he made no attempt to dismantle the civil-rights revolution, as political opponents feared he would. |access-date=March 5, 2017 |archive-date=January 4, 2010 |archive-url=https://web.archive.org/web/20100104034014/http://www.theatlantic.com/doc/200504/rosen/2 |url-status=live }}</ref>

Chief Justice Warren's reasoning was broadly criticized by contemporary legal academics with Judge [[Learned Hand]] decrying that the Supreme Court had "assumed the role of a third legislative chamber"<ref>[[Michael Klarman]], [http://cdn.harvardlawreview.org/wp-content/uploads/pdfs/vol127_klarman.pdf ''The Supreme Court, 2012 Term – Comment: Windsor and Brown: Marriage Equality and Racial Equality'', 127 Harv. L. Rev. 127, 142 (2013)] {{Webarchive|url=https://web.archive.org/web/20150325210536/http://cdn.harvardlawreview.org/wp-content/uploads/pdfs/vol127_klarman.pdf |date=March 25, 2015 }} citing Learned Hand, The Bill of Rights at 55 (Oliver Wendell Holmes Lecture, 1958).</ref> and [[Herbert Wechsler]] finding ''Brown'' impossible to justify based on neutral principles.<ref>''Id.'', [[Pamela Karlan]], [http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1395&context=dlj ''What Can Brown Do For You: Neutral Principles and the Struggle Over the Equal Protection Clause'', 58 DUKE L.J. 1049 (2008)] {{Webarchive|url=https://web.archive.org/web/20160304051411/http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1395&context=dlj |date=March 4, 2016 }} citing Herbert Wechsler, ''Toward Neutral Principles of Constitutional Law,'' 73 HARV. L. REV. 1 (Oliver Wendell Holmes Lecture, 1959).</ref>

Some aspects of the ''Brown'' decision are still debated. Notably, Supreme Court Justice [[Clarence Thomas]], himself an African American, wrote in ''[[Missouri v. Jenkins]]'' (1995) that at the very least, ''Brown I'' has been misunderstood by the courts.

{{blockquote|''Brown I'' did not say that "racially isolated" schools were inherently inferior; the harm that it identified was tied purely to de jure segregation, not de facto segregation. Indeed, ''Brown I'' itself did not need to rely upon any psychological or social-science research in order to announce the simple, yet fundamental truth that the Government cannot discriminate among its citizens on the basis of race. ...

Segregation was not unconstitutional because it might have caused psychological feelings of inferiority. Public school systems that separated blacks and provided them with superior educational resources making blacks "feel" superior to whites sent to lesser schools—would violate the Fourteenth Amendment, whether or not the white students felt stigmatized, just as do school systems in which the positions of the races are reversed. Psychological injury or benefit is irrelevant ...

Given that desegregation has not produced the predicted leaps forward in black educational achievement, there is no reason to think that black students cannot learn as well when surrounded by members of their own race as when they are in an integrated environment. (...) Because of their "distinctive histories and traditions," black schools can function as the center and symbol of black communities, and provide examples of independent black leadership, success, and achievement.<ref>{{ussc|name=Missouri v. Jenkins|volume=515|page=70|pin=120-22|year=1995}} (Thomas, J., concurring).</ref>}}

Some Constitutional [[originalists]], notably [[Raoul Berger]] in his influential 1977 book "Government by Judiciary," make the case that ''Brown'' cannot be defended by reference to the original understanding of the [[Fourteenth Amendment to the United States Constitution|14th Amendment]]. They support this reading of the 14th Amendment by noting that the [[Civil Rights Act of 1875]] did not ban segregated schools and that the same Congress that passed the 14th Amendment also voted to segregate schools in the District of Columbia. Other originalists, including [[Michael W. McConnell]], a federal judge on the [[United States Court of Appeals for the Tenth Circuit]], in his article "Originalism and the Desegregation Decisions," argue that the [[Reconstruction era of the United States|Radical Reconstructionists]] who spearheaded the 14th Amendment were in favor of desegregated southern schools.<ref>{{cite journal | last = McConnell | first = Michael W. | author-link = Michael W. McConnell | title = Originalism and the desegregation decisions | journal = [[Virginia Law Review]] | volume = 81 | issue = 4 | pages = 947–1140 | date = May 1995 | doi = 10.2307/1073539 | jstor = 1073539 | url = https://chicagounbound.uchicago.edu/journal_articles/8723 | access-date = December 10, 2019 | archive-date = June 4, 2020 | archive-url = https://web.archive.org/web/20200604090639/https://chicagounbound.uchicago.edu/journal_articles/8723/ | url-status = live }}
:*''Response to McConnell:'' {{cite journal | last = Klarman | first = Michael J. | author-link = Michael Klarman | title = ''Response'': ''Brown'', originalism, and constitutional theory: a response to Professor Mcconnell | journal = [[Virginia Law Review]] | volume = 81 | issue = 7 | pages = 1881–1936 | date = October 1995 | doi = 10.2307/1073643 | jstor = 1073643 }}
::*''Response to Klarman:'' {{cite journal | last = McConnell | first = Michael W. | author-link = Michael W. McConnell | title = ''Reply'': The originalist justification for Brown: a reply to Professor Klarman | journal = [[Virginia Law Review]] | volume = 81 | issue = 7 | pages = 1937–1955 | date = October 1995 | doi = 10.2307/1073644 | jstor = 1073644 }}</ref> Evidence supporting this interpretation of the 14th Amendment has come from archived Congressional records showing that proposals for federal legislation which would enforce school integration were debated in Congress a few years following the amendment's ratification.<ref>{{Cite news |url=https://www.nytimes.com/2009/11/10/us/10bar.html |archive-url=https://web.archive.org/web/20150630034910/http://www.nytimes.com/2009/11/10/us/10bar.html |archive-date=June 30, 2015 |url-status=unfit |title=From 19th-Century View, Desegregation Is a Test |first=Adam |last=Liptak |author-link=Adam Liptak |date=November 9, 2009 |access-date=October 6, 2022 |newspaper=[[The New York Times]]}}{{cbignore}}</ref>

In response to Michael McConnell's research, Raoul Berger argued that the Congressmen and Senators who were advocating in favor of school desegregation in the 1870s were trying to rewrite the 14th Amendment in order to make the 14th Amendment fit their political agenda and that the actual understanding of the 14th Amendment from 1866 to 1868 (which is when the 14th Amendment was actually passed and ratified) does, in fact, permit [[US states]] to have segregated schools.<ref name = "berger">{{cite journal |url=https://heinonline.org/HOL/LandingPage?handle=hein.journals/illlr91&div=10&id=&page= |title=Original Intent-As Perceived by Michael McConnell 91 Northwestern University Law Review 1996–1997 |journal=Northwestern University Law Review |publisher=Heinonline.org |volume=91 |page=242 |access-date=2019-04-06 |last1=Berger |first1=Raoul |author-link=Raoul Berger |archive-date=May 2, 2019 |archive-url=https://web.archive.org/web/20190502001650/https://heinonline.org/HOL/LandingPage?handle=hein.journals/illlr91&div=10&id=&page= |url-status=live }}</ref> Berger criticized McConnell for being unable to find any reference to school segregation—let alone any reference to a desire to prohibit it—among supporters of the 14th Amendment in the [[Congressional Globe|congressional history]] of this amendment (specifically in the recordings of the [[39th United States Congress]], since that was the US Congress that actually passed the 14th Amendment) and also criticized McConnell's view that the 1954 view of "civil rights" should be decisive in interpreting the 14th Amendment as opposed to the 1866 view of "civil rights."<ref name = "berger"/> Berger also argues that McConnell failed to provide any evidence that the [[State legislature (United States)|state legislatures]] who ratified the 14th Amendment understood it at the time as prohibiting school segregation and that whenever the question of school segregation's compatibility with the US Constitution (as opposed to the separate question of school segregation's compatibility with US state law and/or [[US state constitutions]], where courts have often ruled against school segregation) reached the judiciary in the couple of decades after the passage and ratification of the 14th Amendment (whether in [[Ohio]], [[Nevada]], [[California]], [[Indiana]], or [[New York (state)|New York]]), courts have always affirmed the constitutionality of school segregation—as did [[Michigan Supreme Court]] [[Chief Justice]] [[Thomas M. Cooley]] in his 1880 [[treatise]] ''The General Principles of [[Constitutional Law]] in the United States of America''.<ref name = "berger"/> In addition, Berger argues that the views of the draftsmen of the 14th Amendment in 1866 are decisive—as opposed to the views of later readers of the 14th Amendment (including the views of supporters of the 14th Amendment after this amendment's passage and ratification due to the fact that even their views and beliefs about the meaning and scope of this Amendment could and sometimes did change over time—like with [[Nevada U.S. Senator]] [[William Morris Stewart]], who initially opposed school desegregation but later changed his mind and supported it).<ref name = "berger"/> To back up his view about original intent being decisive, Berger cites—among other things—an 1871 quote by [[James A. Garfield]] to [[John Bingham]] where Garfield challenged Bingham's recollection of a statement that Bingham had previously made in 1866—with Garfield telling Bingham that he can make but not unmake history.<ref name = "berger"/>

The case also has attracted some criticism from more liberal authors, including some who say that Chief Justice Warren's reliance on psychological criteria to find a harm against segregated blacks was unnecessary. For example, [[Drew S. Days III]] has written:<ref>{{citation | last = Days, III | first = Drew S. | author-link = Drew S. Days III | contribution = Days, J., concurring | editor-last = Balkan | editor-first = Jack | editor-last2 = Ackerman | editor-first2 = Bruce A. | editor-link2 = Bruce Ackerman | title = What 'Brown v. Board of Education' should have said | page = 97 | publisher = New York University Press | location = New York | year = 2001 | isbn = 9780814798904 |url=https://books.google.com/books?id=gL1YYW3MOyAC&pg=RA1-PA97 }}</ref> "we have developed criteria for evaluating the constitutionality of racial classifications that do not depend upon findings of psychic harm or social science evidence. They are based rather on the principle that 'distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality,' ''[[Hirabayashi v. United States]]'', 320 U.S. 81 (1943).&nbsp;.&nbsp;.&nbsp;."

In his book ''The Tempting of America'' (page 82), [[Robert Bork]] endorsed the ''Brown'' decision as follows:

{{blockquote|By 1954, when Brown came up for decision, it had been apparent for some time that segregation rarely if ever produced equality. Quite aside from any question of psychology, the physical facilities provided for blacks were not as good as those provided for whites. That had been demonstrated in a long series of cases ... The Court's realistic choice, therefore, was either to abandon the quest for equality by allowing segregation or to forbid segregation in order to achieve equality. There was no third choice. Either choice would violate one aspect of the original understanding, but there was no possibility of avoiding that. Since equality and segregation were mutually inconsistent, though the ratifiers did not understand that, both could not be honored. When that is seen, it is obvious the Court must choose equality and prohibit state-imposed segregation. The purpose that brought the fourteenth amendment into being was equality before the law, and equality, not separation, was written into the law.}}

In June 1987, [[Philip Elman]], a civil rights attorney who served as an associate in the Solicitor General's office during Harry Truman's term, claimed he and Associate Justice Felix Frankfurter were mostly responsible for the Supreme Court's decision, and stated that the NAACP's arguments did not present strong evidence.<ref name="HLR June 1987">''Harvard Law Review'', Vol. 100, No. 8 (June 1987), pp. 1938–1948</ref> Elman has been criticized for offering a self-aggrandizing history of the case, omitting important facts, and denigrating the work of civil rights attorneys who had laid the groundwork for the decision over many decades.<ref>See, e.g., Randall Kennedy. "A Reply to Philip Elman." ''Harvard Law Review'' 100 (1987):1938–1948.</ref> However, Frankfurter was also known for being one of court's most outspoken advocates of the [[judicial restraint]] philosophy of basing court rulings on existing law rather than personal or political considerations.<ref>''A Justice for All'', by [[Kim Isaac Eisler]], page 11; {{ISBN|0-671-76787-9}}</ref><ref>{{cite web |title=Supreme Court History: Expanding civil rights, biographies of the robes: Felix Frankfurter |url=https://www.pbs.org/wnet/supremecourt/rights/robes_frankfurter.html |website=pbs.org/wnet |publisher=Educational Broadcasting Corp., PBS |access-date=August 25, 2017 |archive-date=August 30, 2017 |archive-url=https://web.archive.org/web/20170830005505/https://www.pbs.org/wnet/supremecourt/rights/robes_frankfurter.html |url-status=live }}</ref> Public officials in the United States today are nearly unanimous in lauding the ruling. In May 2004, the fiftieth anniversary of the ruling, President [[George W. Bush]] spoke at the opening of the [[Brown v. Board of Education National Historical Park|''Brown v. Board of Education'' National Historic Site]], calling ''Brown'' "a decision that changed America for the better, and forever."<ref>{{Cite web|title=President Speaks at Brown v Board of Education National Historic Site|url=https://georgewbush-whitehouse.archives.gov/news/releases/2004/05/20040517-4.html|access-date=2023-02-23|website=georgewbush-whitehouse.archives.gov|date=17 May 2004|last=Bush|first=George W.|archive-date=October 5, 2017|archive-url=https://web.archive.org/web/20171005000858/https://georgewbush-whitehouse.archives.gov/news/releases/2004/05/20040517-4.html|url-status=live}}</ref> Most Senators and Representatives issued press releases hailing the ruling.

In a 2016 article in [[Townhall|Townhall.com]], an outlet of the [[Salem Media Group]], economist [[Thomas Sowell]] argued that when Chief Justice Earl Warren declared in the landmark 1954 case of ''Brown v. Board of Education'' that racially separate schools were "inherently unequal," [[Dunbar High School (Washington, D.C.)|Dunbar High School]] was a living refutation of that assumption. And it was within walking distance of the Supreme Court."  In Sowell's estimation, "Dunbar, which had been accepting outstanding black students from anywhere in the city, could now accept only students from the rough ghetto neighborhood in which it was located" as a detrimental consequence of the SCOTUS decision.<ref>{{cite web |url=http://townhall.com/columnists/thomassowell/2016/10/04/dunbar-high-school-after-100-years-n2227261 |title=Dunbar High School After 100 Years |first=Thomas |last=Sowell |author-link=Thomas Sowell |date=October 4, 2016 |archive-url=https://web.archive.org/web/20190524045313/https://townhall.com/columnists/thomassowell/2016/10/04/dunbar-high-school-after-100-years-n2227261|archive-date=2019-05-24 |website=townhall.com}}</ref>