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What Brown v. Board of Education Should Have Said: The Nation's Top Legal Experts Rewrite America's Landmark Civil Rights Decision
Legal experts rewrite the landmark court decision
Brown v. Board of Education , the Supreme Court's landmark 1954 decision ordering the desegregation of America's public schools, is perhaps the most famous case in American constitutional law. Criticized and even openly defied when first handed down, in half a century Brown has become a venerated symbol of equality and civil rights.
Its meaning, however, remains as contested as the case is celebrated. In the decades since the original decision, constitutional interpreters of all stripes have found within it different meanings. Both supporters and opponents of affirmative action have claimed the mantle of Brown, criticizing the other side for betraying its spirit. Meanwhile, the opinion itself has often been criticized as bland and uninspiring, carefully written to avoid controversy and maintain unanimity among the Justices.
As the 50th anniversary of Brown approaches, America's schools are increasingly divided by race and class. Liberals and conservatives alike harbor profound regrets about the development of race relations since Brown, while disagreeing heatedly about the proper role of the courts in promoting civil equality and civil rights.
In this volume, nine of America's top constitutional and civil rights experts have been challenged to rewrite the Brown decision as they would like it to have been written, incorporating what they now know about the subsequent history of the United States but making use of only those sources available at the time of the original decision. In addition, Jack Balkin gives a detailed introduction to the case, chronicling the history of the litigation in Brown, and explaining the current debates over its legacy.
Contributors Bruce Ackerman, Jack M Balkin, Derrick A. Bell, Drew S. Days, John Hart Ely, Catharine A. MacKinnon, Michael W. McConnell, Frank I Michelman, and Cass R. Sunstein.
Brown v. Board of Education , the Supreme Court's landmark 1954 decision ordering the desegregation of America's public schools, is perhaps the most famous case in American constitutional law. Criticized and even openly defied when first handed down, in half a century Brown has become a venerated symbol of equality and civil rights.
Its meaning, however, remains as contested as the case is celebrated. In the decades since the original decision, constitutional interpreters of all stripes have found within it different meanings. Both supporters and opponents of affirmative action have claimed the mantle of Brown, criticizing the other side for betraying its spirit. Meanwhile, the opinion itself has often been criticized as bland and uninspiring, carefully written to avoid controversy and maintain unanimity among the Justices.
As the 50th anniversary of Brown approaches, America's schools are increasingly divided by race and class. Liberals and conservatives alike harbor profound regrets about the development of race relations since Brown, while disagreeing heatedly about the proper role of the courts in promoting civil equality and civil rights.
In this volume, nine of America's top constitutional and civil rights experts have been challenged to rewrite the Brown decision as they would like it to have been written, incorporating what they now know about the subsequent history of the United States but making use of only those sources available at the time of the original decision. In addition, Jack Balkin gives a detailed introduction to the case, chronicling the history of the litigation in Brown, and explaining the current debates over its legacy.
Contributors Bruce Ackerman, Jack M Balkin, Derrick A. Bell, Drew S. Days, John Hart Ely, Catharine A. MacKinnon, Michael W. McConnell, Frank I Michelman, and Cass R. Sunstein.
- GenresLawNonfictionHistory
257 pages, Hardcover
First published August 1, 2001
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Displaying 1 - 2 of 2 reviews
March 6, 2025
A very insightful book that introduces the main players in the many cases tied into Brown v Board of education. Outlines the timelines and key events that led to the final verdict. While there are more detailed accounts of the proceedings, this is a great starting point.
May 12, 2010
Almost everyone agrees with the result of Brown v. Bd.: ending segregation. Ironically, many legal scholars have problems with the decision itself, and this mainly springs from the fact that it's a decision without a definitive legal theory. Essentially, Brown went thusly: "segregation is bad because it means unequal treatment. We've come to this decision because of sociological studies presented by the parties." This isn't a legal theory, it's a sociological one; the Court rejected such non-legal bases for decisions when it overturned Lochner, a case which struck New York's limits on bakers' hours because it found that everyone should have freedom to contract under the Due Process Clause without undue state interference (Holmes dissented that the legislature didn't enact Spencer's Social Statics, but I digress).
Anyway, this book is a collection of legal scholars' mock-Brown opinions that, in my opinion, are substantially better than the original (except for the feminist one; which is rigged for shock in saying Brown was about White fears that Blacks boys were going to impregnate White girls... which might be true, but it's not a legal theory and combats one breed of speculation {i.e. the respondents' justification that segregation would prevent racial strife} with another). Anyway, I thought one of the best was by John Hart Ely, Yale Law prof. and former clerk to C.J. Earl Warren. In the broadest strokes, he believes Brown should have said: "the 14th Amendment was written broadly to allow the Court to apply it to and strike down legislation that targets a minority for discrimination; we've developed a jurisprudence of scrutiny that requires the states to produce compelling interests when they discriminate like the respondents - they've failed to do so here so seg. = unconst."
Overall, the book was pretty accessible and intriguing. The highlight is seeing how different scholars would have made the decision, especially how they might come to the same result with different reasoning, or a completely unexpected result.
Anyway, this book is a collection of legal scholars' mock-Brown opinions that, in my opinion, are substantially better than the original (except for the feminist one; which is rigged for shock in saying Brown was about White fears that Blacks boys were going to impregnate White girls... which might be true, but it's not a legal theory and combats one breed of speculation {i.e. the respondents' justification that segregation would prevent racial strife} with another). Anyway, I thought one of the best was by John Hart Ely, Yale Law prof. and former clerk to C.J. Earl Warren. In the broadest strokes, he believes Brown should have said: "the 14th Amendment was written broadly to allow the Court to apply it to and strike down legislation that targets a minority for discrimination; we've developed a jurisprudence of scrutiny that requires the states to produce compelling interests when they discriminate like the respondents - they've failed to do so here so seg. = unconst."
Overall, the book was pretty accessible and intriguing. The highlight is seeing how different scholars would have made the decision, especially how they might come to the same result with different reasoning, or a completely unexpected result.
Displaying 1 - 2 of 2 reviews