April 7, 2004
Conference Panel Looks at Legacy of Brown v. Board of Education
The "Beyond Brown" panel was moderated by Reva Siegel, Nicholas deB. Katzenbach Professor of Law and Professor of American Studies, who introduced the speakers with an overview of how the Brown decision has been understood. She identified two flavors of stories. The first is a redemption narrative, in which Brown is seen as "redeeming the promise of the Constitution" by exposing "separate but equal" as a lie. The second is a betrayal narrative, which sees Brown as having the potential to liberate, but still finds segregation and racism sanctioned by law in America. Siegel argued that "the two stories are conflicting images of the potential of law to bring about social change."
The first panelist to speak was Louis H. Pollak, a former dean of Yale and the University of Pennsylvania Law Schools and currently a judge on the U.S. District Court for the Eastern District of Pennsylvania. Pollak worked as a volunteer for the NAACP Legal Defense and Educational Fund in the 1950s, and participated in the Brown case. He noted that a core of lawyers who were graduates of Howard University School of Law, including Thurgood Marshall and Spotswood Robinson, had created the "essential legal heritage from which everything we are celebrating this weekend stems."
Pollak discussed how in the years immediately following Brown, a relatively small group of lawyers working through the LDF, sought to implement the Brown decision by bringing lawsuits to desegregate schools. However, because of their limited resources, these lawyers had to be very selective about what cases they took, and the pace of change was slow.
Nicholas deBelleville Katzenbach took over telling the story of the years after Brown. Katzenbach was a deputy U.S. Attorney General and later Attorney General under Presidents Kennedy and Johnson. He noted that Brown came to be about more than school desegregation, because it overruled the precedent of Plessy v. Ferguson, which found no implication of inferiority in segregation. According to Katzenbach, while civil rights lawyers were bringing lawsuits to enforce Brown, "we were doing the same thing in the Justice Department." But they reached the limits of executive power, and, said Katzenbach, "it's going to take all three branches of government to do it."
Martin Luther King and others took a broad view of the Brown decision, pushing for desegregation throughout society, not just in schools. This activism provoked a violent response from those who supported segregation. And because of television coverage, said Katzenbach, "the brutality was seen in every living room, and it was more than many people could take." President Kennedy became convinced that national legislation was possible, and eventually in 1964, under President Johnson, the Civil Rights Act was passed. Said Katzenbach, "I like to think of that bill as the beginning of a genuinely color-blind society." But he also noted that many schools are again segregated, and we again need action from all levels of government to address the problem.
Kathleen Neal Cleaver, a senior lecturer in the African American Studies Department at Yale College and a senior research scholar at YLS, spoke next. Cleaver was the communications secretary of the Black Panther Party from 1967-71, and the first female member of its central committee. She opened her talk by noting that she was in elementary school in Tuskegee, Alabama, when the Brown decision was handed down. In response, she said, the establishment in the South geared up for total rejection of the decision. At the same time, the decision "set in motion another surge of the black freedom movement."
Cleaver compared the condition of the black community in Alabama with European colonialism in Africa and Asia. "The U.S. government was on the wrong side in many of these struggles." She noted that legal changes, such as the Brown decision and the Civil Rights Act, had little effect for thousands of families resisting segregation, which is why--even after these legal breakthroughs--the Watts Riots occurred in 1965. The Black Power movement dealt with "methods of empowerment. And that's what I think has been missing."
Jeff Berman, chief counsel to U.S. Senator Chuck Schumer and minority staff director of the Senate Judiciary Subcommittee on Administrative Oversight and the Courts, brought the consideration of the legacy of the Brown decision into the present. He argued that the Supreme Court is engaged in an unprecedented rollback of laws designed to protect minorities, women, workers, and the disabled. And he said that Congress has not yet responded to this attack on its power to protect civil rights.
According to Berman, though, more and more Democratic senators are seeing that there is a pattern derogating Congress's power and are becoming concerned about it. But with Republicans controlling all three branches of the federal government, there is little they can do. Many of the laws that have been overturned were originally passed with large, bipartisan majorities. Despite this, when the Democrats introduced the Civil Rights Act of 2004, "not a single Republican senator would sign on... It was a bit of a surprise." Until Democrats take back a branch of government, Berman said, it is unlikely that any legislation will address this erosion of congressional power.