Measuring Brown's Efficacy

The Brown decision may have made a major contribution to furthering civil rights in two ways. First, and most straightforward, it could have directly ended race-based segregation in public schools. Second, perhaps more subtly, the decision could have indirectly contributed to change. Brown could have inspired individuals to act or persuaded them to examine and change their opinions about racial discrimination. The decision might have given salience to civil rights, in effect placing it on the political agenda. It might have provided legitimization to the civil rights movement and created pressure for government action. In other words, Brown might have served as a powerful symbol and resource for change.

Given the praise accorded to the Brown decision, examining its actual effects produces quite a surprise. The surprise is that a decade after Brown virtually nothing had changed for African-American students living in the 11 states of the former Confederacy that required race-based school segregation by law. For example, in the 1963–1964 school year, barely one in 100 (1.2%) of these African-American children was in a non-segregated school. That means that for nearly 99 of every 100 African-American children in the South a decade after Brown, the finding of a constitutional right changed nothing.

By the 1972–1973 school year, however, change did occur. In that school year over 91% of African-American children in the South attended an integrated school. Change came to Southern school systems in the wake of congressional and executive branch action. Title VI of the 1964 Civil Rights Act permitted the cut-off of federal funds to programs that practiced racial discrimination and the 1965 Elementary & Secondary Education Act provided a great deal of federal money to poor school districts, many in the South. By the 1971–1972 school year, for example, federal funds comprised from between 12% and 27.8% of Southern state school budgets, up from between 4.6% and 11.1% in the 1963–1964 school year. This combination of federal funding and Title VI gave the executive branch a tool to induce desegregation when it chose to do so. When the U.S. Department of Health, Education, and Welfare threatened to cut off federal funds from school districts that refused to desegregate, dramatic change occurred. By the 1972–1973 school year, over 91% of African-American school children in the 11 Southern states were in integrated schools, up from 1.2% in the 1963–1964 school year. With only the constitutional right in force in the 1963–64 school year, no more that 5.5% of African-American children in any Southern state were in school with whites. By the 1972–1973 school year, when economic incentives were offered for desegregation and costs imposed for failure to desegregate, in no Southern state were fewer than 80% of African-American children in integrated schools. It was the actions of the Congress and the executive branch and not the courts that led to desegregation.³

Regarding indirect effects, little or no evidence supports the claims that Brown gave civil rights salience, pressed political elites to act, pricked the consciences of whites, legitimated the grievances of blacks, or inspired the activists of the civil rights movement. For example, press coverage of civil rights did not increase in a sustained way until the 1960s. In passing civil rights legislation Congress responded not to Brown but to electoral concerns in the 1950s, enhanced by the civil rights movement of the 1960s. Similarly, presidential action responded to credible threats of violence, not constitutional statements of principle. There is no evidence that Brown influenced public opinion nor, surprisingly, is there much evidence supporting the claim that Brown instigated the civil rights movement. That movement, particularly the courageous actions of the Student Non-Violent Coordinating Committee, the Southern Christian Leadership Conference (Dr. King's organization), and the Congress of Racial Equality was independent of Brown, spurred on by the Montgomery bus boycott, Dr. King's Ghandi-inspired Christian non-violent movement, and emerging African liberation movements. Indeed, all three groups were hostile to litigation as a strategy for change, a position that often brought them into conflict with the National Association for the Advancement of Colored People (NAACP) and its litigation-based strategy. The evidence suggests that Brown's major positive impact was limited to reinforcing the belief in a legal strategy for change of those already committed to it.

Why Wasn't Brown Implemented?

These findings raise two questions. First, why was the Brown decision not implemented? Second, why, given the lack of implementation, do we hold Brown in such high regard? The answer to the first question, in a nutshell, is that there was no political pressure to implement the decision and a great deal of pressure to resist it. On the executive level, there was little support for desegregation until the Johnson presidency. President Eisenhower steadfastly refused to commit his immense popularity or prestige in support of desegregation in general or Brown in particular. As Roy Wilkins, executive secretary of the NAACP put it, “if he had fought World War II the way he fought for civil rights, we would all be speaking German today” (1984, 222). Although President Kennedy was openly and generally supportive of civil rights, he, too, took little concrete initiative in school desegregation and other civil rights matters until pressured by events.

Civil rights were not supported by other national leaders until late in the Kennedy administration. In March 1956, Southern members of Congress, virtually without exception,⁴

signed a document entitled a “Declaration of Constitutional Principles,” also known as the Southern Manifesto. Its 101 signers attacked the Brown decision as an exercise of “naked power” with “no legal basis.” They pledged themselves to “use all lawful means to bring about a reversal of this decision which is contrary to the Constitution and to prevent the use of force in its implementation.”⁵ This unprecedented attack on the Court, coupled with presidential inaction, signaled that pressure from Washington to implement the Court's decisions in civil rights would not be forthcoming.

On the state and local level, there was even less support. A study of the 250 gubernatorial candidates in the Southern states from 1950 to 1973 revealed that after Brown “ambitious politicians, to put it mildly, perceived few incentives to advocate compromise” (Black 1976, 299). This perception was reinforced by Arkansas Governor Orval Faubus's landslide reelection in 1958, after he repeatedly defied court orders and acted to prevent the desegregation of Central High School in Little Rock, demonstrating the “political rewards of conspicuously defying national authority” (Black 1976, 299). Throughout the South, governors and gubernatorial candidates called for defiance of court orders. Political support for desegregation was virtually non-existent.

At the prodding of state leaders, state legislatures throughout the South passed a variety of pro-segregation laws. By 1957, only three years after Brown, at least 136 new laws and state constitutional amendments designed to preserve segregation had been enacted (Orfield 1969, 17–18). In 1960–1961 alone, the Louisiana legislature met in one regular and five extraordinary sessions to pass 92 laws and resolutions to maintain segregated public schools. As the Southern saying went, “as long as we can legislate, we can segregate” (Rodgers and Bullock 1972, 72). Similarly, school boards refused to follow Brown. In the five Deep South states of Alabama, Georgia, Louisiana, Mississippi, and South Carolina, not one schoolboard member or superintendent openly advocated compliance with the Supreme Court decision (Sarratt 1966, 99–100). And despite Cooper v. Aaron,⁶

and the sending of federal troops to Little Rock in 1957, as of June 1963, only 69 out of 7,700 students at the supposedly desegregated, “formerly” white, junior and senior high schools of Little Rock were black (Brink and Harris 1963, 41). Public resistance, supported by local political action, can almost always effectively defeat courtordered civil rights.

Along with opposition to desegregation from political leaders at all levels of government, there was hostility from many white Americans. For example, in December 1958, when Gallup asked its usual question about the most-admired men in the world, Governor Orval Faubus of Arkansas, who had repeatedly defied court orders a year earlier was among the 10 most frequently named (Gallup 1972, vol. 2: 1548). Law and legal decisions operate in a given cultural environment, and the norms of that environment influence the decisions that are made and the impact they have. In the case of Brown and civil rights, decisions were announced in a culture in which slavery had existed and apartheid did exist. Institutions and social structures throughout America reflected a history of, if not a present commitment to, racial discrimination. Cultural barriers to civil rights had to be overcome before change could occur. And courts do not have the tools to tear down these barriers.

One of the important cultural barriers to civil rights was the existence of private groups supportive of segregation. One type, represented by the Ku Klux Klan, White Citizens' Councils, and the like, existed principally to fight civil rights. Either through their own acts, or the atmosphere these groups helped create, violence against blacks and civil rights workers was commonplace throughout the South. Spectacular cases such as the murder of Medgar Evers, the attacks on the freedom riders, the Birmingham Church bombing that killed four black girls, and the murder of three civil rights workers near Philadelphia, Mississippi, are well known. But countless bombings and numerous murders occurred throughout the South (Peltason 1971, 5; Southern Regional Council 1964, 7–17). During the summer of 1964 in Mississippi alone there were 35 shootings, 65 bombings (including 35 churches), 80 beatings, and 6 murders (Garrow 1978, 21; McAdam 1988, 257–82). It was a brave soul indeed who worked to end segregation or implement court decisions amidst so much segregationist opposition.

To make matters worse, while there is little evidence that Brown helped produce positive change, there is some evidence that it hardened resistance to civil rights among both elites and the white public. In the wake of Brown white groups intent on using coercion and violence to prevent change grew. Resistance to change increased in all areas, not merely in education but also in voting, transportation, public places, and so on. Brown “unleashed a wave of racism that reached hysterical proportions” (Fairclough 1987, 21).⁷

By stiffening resistance and raising fears before the activist phase of the civil rights movement was in place, Brown may actually have delayed the achievement of civil rights.⁸

In sum, Brown's constitutional mandate that racial segregation in public schools end confronted a culture opposed to that change. The American judicial system, constrained by the need for both elite and popular support, was unable to overcome that culture.

Critics

Brown has become a sacred cow and my finding of its lack of efficacy has troubled some and incensed others.⁹

For example, some critics allege that the impact of the Court can't be measured, and that the data I present are merely suggestive, at best. While there is some truth to this, it is mostly wrong, and partly misleading. It is mostly wrong because a variety of impacts are empirical and thus measurable. These include the actual number and rate of African-American children in school with whites, the actual number and content of media stories about Brown and civil rights, the number and timing of civil rights demonstrations, and so forth. What social scientists cannot do is understand precisely what people are thinking and why. Thus, it is possible that even though there is no evidence supporting the claim that Brown had important, positive effects, the fault is with the measurement, not the effect. This is possibly correct, but not without its own problems that make the criticism misleading. First, in all the most obvious places to find such evidence, the evidence that can be found either does not support the claim of Brown's causal influence, or cuts against it. This suggests that any unmeasured effects, at the very best, are quite weak. Second, because some of the data are merely suggestive and not definitive, it does not follow that Brown had an important impact. The argument seems to go something like this: (1) Brown had inspirational impact; (2) we cannot measure that impact because we lack sufficiently honed measures; (3) therefore Brown had inspirational impact. But this is argument by assertion, with point 3 (conclusion) being merely a particularized restatement of point 1 (the thesis) with no support from point 2 (evidence). That kind of logic dismisses empirical investigation by fiat. It is ideology, not social science.

Some critics have also alleged that Supreme Court decisions like Brown are only one resource among many and to expect major change to follow from them is to create a straw person argument. Perhaps this is correct, but it is not I who have made the claim of judicial efficacy! The Supreme Court in general, and Brown in particular, is credited with enormous power and influence. The quotations that fill the first paragraph of this essay could be replicated many times over. The straw person argument against the findings presented here often amounts to little more than post hoc rationalization for judicial inefficacy.

Yet another criticism deals with timing. Brown said desegregate and sometime later some desegregation occurred. As Erwin Chemerinsky puts it, “Change is often a long-term process” (1998, 191–204). Thus, the argument goes, it is immaterial that no change occurred over the first decade or more. But this is problematic for several reasons. First, given enough time lots of things are bound to occur that do not result from the event in question. There was a substantial time lag between the decision and more than token desegregation. This allowed all sorts of other influences independent of Brown to play a role. In the case of desegregation and civil rights, the principal factor was the civil rights movement. Second, this argument is made entirely at a macro level. It lacks the micro connections that show how Brown influenced people to act and how those acts led to school desegregation and civil rights more generally. Arguments that change takes time explain nothing because they explain everything.

Overall, a general notion that many critiques of my argument seem to have goes something like this: “Look, Brown happened; it had to matter.” The problem with this critique is that many events happen in the world that exert little or no causal influence on later events. Of course law matters, and of course people reacted to Brown, but it doesn't automatically or necessarily follow that Brown furthered the cause of civil rights. Such a claim assumes the importance of a particular institution, and particular outcomes of that institution, rather than treating the importance of that institution and outcomes as a question for empirical investigation. In the case of Brown, this argument uncritically credits the Supreme Court with a degree of influence and power that it lacks.

Substituting Symbol for Substance

Given Brown's lack of impact, why is it widely held in such high regard?¹⁰

We celebrate Brown for two reasons. The first is that since the mid-1960s the U.S. has become officially committed to a non-segregated society. Brown stands as a constitutional symbol of that commitment. This is a noble vision, one of which Americans can be proud. The second reason is much less noble. The celebration of Brown serves an ideological function of assuring Americans that they have lived up to their constitutional principles without actually requiring them to do so. Today, Brown and de facto segregation live side-by-side. The danger of celebrating a symbol is that it can lead to a sense of self-satisfaction and an unwillingness to examine practice. Brown, then, can be seen as “little more than an ornament, or golden cupola, built upon the roof of a structure found rotting and infested, assuring the gentlefolk who only pass by without entering that all is well inside” (Tigar 1970, 7).¹¹ So, in the end we celebrate Brown not because of what it did but because of what we officially state it should have done. And this celebration relieves us of the obligation to confront the systematic racial biases that permeate American society. It encourages us to look to legal solutions for political and cultural problems. In this way, Brown serves a deeply conservative function of diverting resources away from substantive political battles, where success is possible, to symbolic legal ones where it is not.

None of this means that Brown was wrongly decided. In a nation built on slavery, degraded by Jim Crow, and based on a deep-seated belief in white racial superiority, racial segregation denies equal protection. Nor does it mean that law is irrelevant or that courts can never further the goals of the relatively disadvantaged. For the civil rights movement, for example, courts played an important role in keeping the sit-in movement going, ending the Montgomery bus boycott by providing the boycotters with leverage they could use, and threatening to cut off federal funds under Title VI. But in each case courts were effective because a political movement was forcing change. The analysis does mean that courts acting alone, as in Brown, are structurally constrained from furthering the goals of the relatively disadvantaged.

American courts are not all-powerful institutions. They were designed with severe limitations and placed in a political system of divided powers. To celebrate decisions such as Brown uncritically misunderstands both the limits of courts and the lessons of history, clouding our vision with a naive and romantic belief in the triumph of rights over politics. And while romance and even naiveté have their charms, they are best exhibited neither in courtrooms, nor in scholarship.