Law Review symposium examines legacy of Brown


Clinton Dick / The Record

“‘I know the pain of being unequal and I will not impose that on anyone else,'” Prof. Martha Minow quoted Massachusetts State Senator Dianne Wilkerson, a black woman, as saying during the recent constitutional convention to ban same-sex marriage in this state. “This issue,” Minow continued, “breathes life into the debate of what is the meaning and legacy of Brown.”

“We certainly do not fully appreciate the contest of who are the inheritors of Brown. . . . [But] what are the legacies of Brown,” Minow questioned, positing, “Integration or multicultarism . . . equal education opportunity or social justice. . . .”

So began the Harvard Law Review Symposium “Brown at 50: From Social Justice to Diversity,” which was part of the weeklong celebration at Harvard Law School of the 1954 Supreme Court decision that desegregated public schools, Brown v. Board of Education. What ensued was a provocative discussion as to the best means for implementing the underlying moral argument of Brown that all individuals should be treated equally.

The assembled panel was eager to formulate their responses to Minow’s question.

Prof. Richard Ford, who teaches at Stanford Law School, said, “Integrated schools are more likely to allow for the sharing of public resources that will benefit the members of our society who are worse off. . . . Even controlling for the equalizing of funds . . . lower income [individuals] who are integrated with middle-class schools do better.”

Additionally, Ford continued, “There is a value in having public institutions that create . . . a sense of public that crosses. . . ethnicity and race.” We tend to say that the private sphere is where important things happen and the public sphere is less important, Ford said. “I think the opposite.”

University of Florida Law School Prof. Juan Perea disagreed with Ford’s integration argument. “I agree with W.E.B. DuBois,” Perea said. “I think integration would be good in an ideal world” where teachers responded to their student’s needs professionally and responsibly. “The reason I object to integration as it currently is implemented . . . I guess I have several deep concerns about it.”

“The history of our education system. . . was to subordinate blacks and latinos to large populations that were valued for their labor, not their intellect,” the professor said, continuing that Brown meant we are going to integrate blacks into white schools. “The problem was that the basic value underpinning American education system . . . included racism as a pretty large component and included the subordination of persons of color as a very large component. The same thing is happening today. . . . I don’t think we have ever engaged in a conversation about what values are promulgated in public schools” about racism.

“In terms of defending bilingual education,” Perea continued, referring to an earlier statement by Ford against bilingual education, “the research was been clear for many years . . . that the best practice of educating Latinos well is teaching them in the language they understand the best.” “I think your conclusion about the damage of bilingual education . . . is slim,” Perea said to Ford.

Ford responded, “I was careful not to say I was against bilingual education in all its forms. . . . It is unclear to what extent it is an effective way of teaching students everything we want to teach them,” but, he said, “even if it turned out . . . their is a benefit to bilingual education it would have to be weighed about the cost of a protracted system of segregation.” The L.A. school system has over 100 languages spoken in the school system and “you cannot have bilingual education for all of them.”

Harvard Law School Prof. David Wilkins weighed in on the exchange by airing his concern that integration arguments that use efficiency could backfire. “I am worried about pinning the argument on integration on instrumental grounds on economic efficiency which rests on slim evidence . . . and to the extent that it is efficient it raises complex questions about identity matching,” Wilkins said, using the example of “all the black lawyers [being] sent to do” civil rights litigation. “It takes attention off . . . the integration of previously secluded and subordinated people.” That said, I don’t want to say diverse perspectives can be beneficial to how people solve problems.

With integration emerging as the main topic for the evening, Minow brought in HLS Visiting Prof. Molly McUsic. You push for integration in the school and housing context to achieve economic distribution, Minow said to McUsic. “Are you worried . . . about the possible watering down of goals when integration is used as the instrumental means, and shouldn’t you be?”

McUsic responded, “I think one of the legacies of Brown is that integration is the best way to equal education opportunity. . . . When you looked at the social science research of desegregation . . . it turned out” it was one of the best ways of achieving this goal. “Whatever loss there is from the instrumental argument, is a loss worth making,” she continued. “If we could perhaps get the kind of money and resources into these poor areas that would work . . . but that is really unlikely.” The best way is to put poor kids into wealthy school districts.

“As I listen to this conversation . . . in the end my instinct is to say” it is the meaning people give to integration that matters, Yale Law Prof. Reva Siegel said. As a social order we began to name ways to ameliorate the struggle of black people to achieve equality. She continued that what struck her was the lack of classification after the first decade of Brown. The legal significance is only worked out when controversy erupts and the Court has to deal with it.

HLS Prof. Frank Michelman also participated in the discussion.