Brown v. Board: The Real Story

May 17, 2004 marked the 50th anniversary of the US Supreme Court’s famous ruling in Brown v. Board of Education. This decision, which forbade racial segregation in schools, is now being celebrated as a historic act of justice and courage. Of the hundreds if not thousands of public officials and editorial writers who have celebrated this anniversary, practically no one has criticized the decision. In fact, there is much to criticize. Brown was certainly one of the most important Supreme Court decisions of the 20th century; it is necessary that we know what was wrong — dreadfully wrong — about how it was decided, and what it brought about.

First, the decision involved nothing less than collusion between one of the justices and his former clerk, who was handling the US Government’s arguments. One side of the case therefore had utterly improper inside knowledge about what every justice thought, and could craft arguments specifically to appeal to them.

Second, one of the key expert witnesses for desegregation — the only one singled out for praise in the ruling — deliberately suppressed research results that undermined his position. He certainly knew about these inconvenient results, because they were his own.

Third, because the Court could find no Constitutional justification for overturning the doctrine of “separate but equal,” it based its ruling on then-fashionable sociological theories. These theories were wrong.

Fourth, Brown was the first fateful step towards what we call “judicial activism.” The Supreme Court set aside its obligation to interpret the Constitution, and did what it thought was good for the country. It inaugurated an era of, in effect, passing new laws, rather than interpreting old ones. Judicial orders should never preempt law-making by elected representatives; republican government has been badly eroded by the process set in motion by Brown.

Finally, integration orders were among the most intrusive and damaging ever issued by American courts. Judges took over the most minute school-related decisions as if they were one-man school boards. Mandatory racial balancing — usually accomplished by busing — provoked white flight that in many cases left schools even more segregated than before. Beginning in 1991, the Court eased its requirements for mandatory busing, but by then it had already caused incalculable dislocation and had turned most big-city school districts into minority ghettos.

The final reckoning of Brown has yet to be made, but it is a ruling to be mourned, not celebrated.

How Brown Came About

Until Brown, the best known Supreme Court ruling on racial segregation had been Plessy v. Ferguson, handed down in 1896. This case involved separate railroad coaches for black and white travelers, and the court ruled famously that segregation was constitutional so long as the races were accommodated in a “separate but equal” manner.

Separate was not always equal, however. In 1930, Alabama, Florida, Georgia, and Louisiana spent about one third as much on each segregated black public school student as on each white student. South Carolina, the most extreme case, spent only one tenth. Whites justified this difference by pointing out that local taxes paid for schools, and that blacks paid far less in taxes than whites.

Spending on black schools increased rapidly in the 1940s and 1950s, often because of NAACP lawsuits insisting that if black schools were to be separate the Constitution required that they be equal. Many judges agreed, and throughout the old Confederacy there was a flurry of new taxes and bond issues to raise money for black schools. By the 1950s, the gap had been greatly narrowed all across the South, and in Virginia, for example, expenditures, facilities, and teacher pay were essentially equal in the two systems. Whites did not want to send their children to school with blacks, and were prepared to make considerable sacrifices to avoid doing so. Some within the NAACP wondered whether forcing the South to live up to the requirements of “separate but equal” would only make segregation permanent.

Nevertheless, the Supreme Court agreed to hear the Brown case, which was a direct attack on separate school systems, even if they were equal. It was a consolidation of five separate cases that had arisen in different states, and petitioned the Court to abolish segregated schools on the basis of the “equal protection” clause of the 14th Amendment.

It was impossible, however, to argue that the original intent of the 14th Amendment was to forbid segregated schools. The same Congress that passed the Amendment in 1866 established segregated schools in the District of Columbia, and after ratification two years later, 23 of the 37 states either established segregated schools or continued to operate the ones they already had. Chief Justice Frederick Vinson was particularly bothered by a Constitutional appeal that required the Court to recast the meaning of an Amendment.

During oral arguments in the case in December 1952, Thurgood Marshall of the NAACP therefore did not make a legal argument. His case rested on what came to be known as the “harms and benefits” theory, that segregation harms blacks and integration would benefit them. Justice Robert Jackson, who had been chief prosecutor of Nazi war criminals at Nuremberg, complained that Marshall’s case “starts and ends with sociology.” He did not support school segregation but thought it would be an abuse of judicial power to abolish it by decree. “I suppose that realistically the reason this case is here is that action couldn’t be obtained from Congress,” he noted.

In fact, the sociology with which Marshall started and ended was weak. He leaned heavily on the work of Kenneth Clark, a black researcher known for doll studies. Clark reported that if he showed a pair of black and white dolls to black children attending segregated schools and asked them which doll they liked better, a substantial number picked the white doll. He argued to the Court that this proves segregation breeds feelings of inferiority. He failed to mention that he had shown his dolls to hundreds of blacks attending integrated schools in Massachusetts, and that even more of these children preferred the white doll. If his research showed anything, it was that integration lowers the self-image of blacks, but he deliberately slanted his findings.

John W. Davis, the lawyer who argued to retain segregated schools, pointed out that Clark’s conclusions contradicted his own published results in the Massachusetts findings. Davis later told a colleague that the ruling would surely go his way “unless the Supreme Court wants to make the law over.”

If the Court had decided the case immediately after oral arguments, Brown might have been decided the other way or at best, with a five-to-four majority that would have given it little authority in the South. It was at this point that Justice Felix Frankfurter, who was desperate to end segregation, assumed a key role. Faced with a bad legal case and justices who did not want to abuse their power, his strategy was to delay. He argued strongly that a decision on Brown should be put off to allow time for an investigation of the original intent of the 14th Amendment and to let the new Eisenhower administration take a position. In the meantime, without telling the other justices, he told his clerk, Alexander Bickel, to ransack the history of the Amendment in the hope of finding something that would justify striking down segregation.

In June 1953, the Court put Brown back on the docket and invited the new administration to file a brief. Eisenhower’s people wanted to stay out of the controversy entirely, but unbeknownst to them an agent for Felix Frankfurter was working at a high level in the Justice Department. Philip Elman had clerked for Frankfurter, and was in constant communication with his old boss about Brown. He told the Solicitor General that a Supreme Court invitation to comment on a case was like a command performance, and he offered to handle the case.

Elman and Frankfurter both knew that back-channel communication was wrong. A party to a case is never permitted to have secret discussions with a judge who will decide his case. In a long 1987 article in the Harvard Law Review, in which he described in detail the collusion that went into the Brown ruling, Elman conceded that what he did “probably went beyond the pale” but, he added, “I considered it a cause that transcended ordinary notions about propriety in a litigation.” He wrote that he and Frankfurter kept an appropriate professional distance on all other cases, but made an exception for Brown. To them, ending school segregation was so important it justified unscrupulous maneuvering.

They talked at length over the phone and in person, referring to the other justices by code. William Douglas was Yak because he was from Yakima, Washington. Stanley Reed was Chamer, because it means dolt or mule in Hebrew, and Reed thought desegregation was a political and not a judicial matter.

In September 1953, something happened that completely changed the complexion of the Court: Chief Justice Frederick Vinson, a strong opponent of judicial activism, suddenly died. As Elman reports in the 1987 article, Frankfurter met him soon after in high spirits. “I’m in mourning,” he said with a huge grin. “Phil, this is the first solid piece of evidence I’ve ever had that there really is a God.” Elman writes that “God takes care of drunks, little children, and the American people” and showed His concern for America “by taking Fred Vinson when He did.” The new Chief Justice was Earl Warren, an ambitious former governor of California, who saw his job not as interpreting the Constitution but as a chance to exercise power.

In the meantime, Frankfurter’s clerk Bickel could find nothing in the history or intent of the 14th Amendment that could be used to order desegregation, so Frankfurter changed tack. He began to urge that original intent did not matter, and that the Amendment’s language should be reinterpreted according to the needs of the time. He reported to Elman that Warren and some of the other justices were sympathetic to this view, so not surprisingly, when the Justice Department filed Elman’s 600-page brief in December 1953, it too argued that the language of the Amendment was broad enough to be reinterpreted.

The reargument covered the same ground as before. Marshall trotted out the bogus doll studies again, while the Justice Department echoed Bickel’s view that the original intent of the 14th Amendment could be ignored. Frankfurter wrote long memos to the other justices insisting that the law must respond to “changes in men’s feelings for what is right and just.” This combination of arguments overcame the scruples of most of the justices who were reluctant to go beyond what they considered to be the limits of their authority. Jackson and Reed were the only holdouts. The former Nuremburg prosecutor refused to dabble in what he thought was a political rather than a judicial matter, and Reed, the chamer, argued that judicial activism was the beginning of “kritarchy,” or rule by judges.

At the end of March 1954, Jackson suffered a serious heart attack. Warren rushed to the hospital and got the weakened justice to agree to the opinion he had drafted. Then he cornered Reed, telling him he would be all alone if he did not go along. Reed, who never agreed with the ruling, bowed to pressure and joined the majority.

On May 17, Warren read the decision from the bench. Since there was no legal reasoning involved in it, he could keep it short enough to make the entire ruling fit into a newspaper article. The most often quoted passage is the following:

To separate [black children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely to ever be undone . . . We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.

Warren admitted that he was interpreting the Constitution differently from every Supreme Court that had gone before:

“[W]e cannot turn the clock back to 1868 when the [14th] Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written,” he argued. The point to be addressed was whether “segregation of children in public schools solely on the basis of race, even though the physical facilities and other ‘tangible’ factors may be equal, deprives the children of the minority group of equal educational opportunities.” His conclusion: “We believe it does.” As evidence, he cited Clark’s doll studies.

It should not require pointing out that whether segregation makes blacks feel inferior is not a Constitutional issue. Even if the evidence that segregation did have that effect had been solid — and it was not — it did not justify reinterpreting the Constitution.

Even liberals recognized that the Court was practicing sociology and not law. The New York Times, which welcomed the ruling, nevertheless gave its May 18 article the following sub-headline: “A Sociological Decision: Court Founded Its Segregation Ruling On Hearts and Minds Rather Than Laws.” The dean of the Yale Law School, Wesley Sturges, put it more bluntly. For the justices to rule as they did, he noted, “the Court had to make the law.”

Nor was Philip Elman’s behind-the-scenes role in the matter finished. The Constitution has been consistently interpreted to mean that the rights it grants are personal and require immediate relief. If segregation was unconstitutional it meant black students were entitled to integration right away. Frankfurter had explained to Elman that if this were what a desegregation ruling required, he could not be sure of getting unanimity, perhaps not even a majority. The prospect of the chaos such a ruling would cause would have pushed many justices into opposition.

It was Elman, therefore, who proposed the very unusual solution of separating enforcement from constitutionality. After the famous May 17 ruling, the Supreme Court sent the case back for further argument on how the decision should be implemented. It waited nearly a year, until May 1, 1955, to let the 1954 ruling sink in, before issuing another ruling on how to do what the Court ordered. It is here that we find the famous linguistic fudge: desegregation was to be accomplished with “all deliberate speed.” The South was going to have to abide by the Constitution, but it could drag its feet. “It was entirely unprincipled,” Elman wrote in 1987; “it was just plain wrong as a matter of constitutional law, to suggest that someone whose personal constitutional rights were being violated should be denied relief.” “. . . I was simply counting votes in the Supreme Court,” he added. Elman proposed a solution he concedes was “entirely unprincipled” because that was what it would take to get the ruling he and Frankfurter wanted.

In his article Elman also showed considerable contempt for Thurgood Marshall, who later became the first black appointed to the Supreme Court. He wrote that Marshall made bad, ineffective arguments, but that Elman’s collusion with Frankfurter had so rigged the Court in favor of desegregation, it made no difference: “Thurgood Marshall could have stood up there and recited ‘Mary had a little lamb,’ and the result would have been exactly the same.”

From Desegregation to Integration

The initial impact of the Brown decisions was, with a few exceptions, anti-climactic. The implementation order of 1955 applied only to schools that practiced legal segregation, and required only that they stop assigning students to schools by race. The targets were therefore only Southern schools, where there was little change, since most students stayed where they were. A few ambitious black parents enrolled their children in white schools, but no whites switched to black schools. There was dramatic resistance in 1957 to the arrival of even small numbers of blacks at Central High School in Little Rock, Arkansas, but desegregation  — the end of forcible separation of students by race — passed easily enough. It was the shift from desegregation to integration  — the obligatory mixing of students to achieve “racial balance” — that convulsed the country.

In Brown, the Supreme Court endorsed the view that it was legally enforced, de jure segregation that damaged the minds of blacks; the justices said nothing about the de facto school segregation that reflects residential segregation. However, as the 1960s wore on, and summers were punctuated by riots in New York, Rochester, Watts, and Newark, official thinking began to change. In 1967, the US Commission on Civil Rights issued a report called Racial Isolation in the Public Schools, in which it declared flatly that voluntary segregation was just as harmful as legally enforced segregation.

By now, almost all sociologists embraced the harms and benefits theory of desegregation, and endorsed the commission’s report rather than a much more thoroughgoing one that had appeared the year before. This was the now-famous Department of Health Education and Welfare study known as the Coleman report, officially titled Equality of Educational Opportunity. Sociologist James Coleman and his colleagues had fully expected to find that poor black academic performance was caused by inadequate school funding, and that integration brought black achievement up to the level of whites. They were surprised to learn that although there were regional differences — the North spent more money on schools than the South — within the regions school authorities were devoting much the same effort to blacks as whites.

Another surprising finding was that the amount of money spent on schools did not have much effect on student performance, and blacks who attended predominantly white schools did only slightly better than those who attended all-black schools. (Coleman later concluded that this small difference was not due to integration. The first blacks who attended white schools voluntarily were smart, ambitious blacks who would have done well in all-black schools.) These findings ran so contrary to ’60s-era thinking that Coleman and his co-authors buried its conclusions, and the report became well-known only in retrospect.

In 1968, the Court adopted the more fashionable thinking of the Civil Rights Commission. In Green v. New Kent County, it ruled that race-neutral school policies were not good enough. At least for schools that had practiced de jure segregation, the “vestiges of segregation” had to be eliminated by race-conscious remedies and forcible integration. One likes to imagine the deliberations of our highest court conducted in Olympian calm, undistracted by mundane outside events. However, it may not be a coincidence that Martin Luther King, Jr. was assassinated the day after oral arguments in Green, and the Court deliberated during the worst race riots the country had ever seen.

Still, every court order so far had been directed to schools in the once-segregated South. The rest of the country could look on in smug superiority as Southern whites battled busing, set up private schools, fled to the suburbs and, in some cases, even closed down public schools rather than submit to “racial balancing.” At least in the South, whites clearly did not like forced race-mixing, and would go to great lengths to avoid it. To the elites of the time, this was precisely the kind of prejudice busing was designed to cure.

It is easy to lose sight of just how radical a change the courts required when they shifted from desegregation to forcible integration. A movie theater, for example, is considered desegregated if patrons of all races can attend. Depending on location, some theaters may have patrons of mostly one race or another, but no one would think of controlling the flow of customers in order to achieve “racial balance.” This, however, was the effect of the new Court rulings. It was as if blacks and whites had to check with a central authority whenever they wanted to see a movie, and were directed only to theaters across town where they were sure to be a racial minority. Imagine the resistance to rules of that kind applied to restaurants, libraries, sports events, etc. It is not surprising that Southerners resisted busing.

The respite for the North was short-lived. In its 1971 ruling in Swann v. Charlotte-Mecklenburg Board of Education the Court decided that if forcible integration was necessary to correct the damage racial separation caused to Southern blacks, it was equally necessary in the North, where residential and school segregation were often almost as pronounced. The Court made it clear that integration was to apply to every aspect of a school, including teachers, staff, extracurricular activities, attendance boundaries for schools and new construction. The judges chose schools as the institutions that would henceforth make up for the effects of voluntary residential segregation, and breed a new generation that would ignore race. Soon parents everywhere were faced with the prospect of putting their children on buses for lengthy rides across town so blacks could attend white schools and vice versa. Whites in the North set about with a will to achieve racial balance but found that, if anything, they disliked busing even more than Southerners did.

Wilmington, Delaware, made a particularly ambitious effort. Courts consolidated all city and suburban school districts — so that whites could not escape to nearby white school districts — and ordered every school integrated. This was to be done by racial mixing in neighborhoods if possible, and otherwise by sending whites to the inner city and inner-city blacks to the suburbs.

Wilmington worked very hard to prepare for what everyone knew would be a wrenching change. For teachers, the days of the three Rs were over: They would have to make children feel important, and teach them how to cooperate. White teachers had to learn “empathetic listening,” “values clarification,” and “consultation skills,” so they could handle black children. Altogether, teachers got a very confusing message: The classroom would integrate black children into the American mainstream, but it must not transmit oppressive, middle-class values.

Like other school districts, Wilmington learned that any racial balancing plan causes white flight, but some plans cause more than others. Shipping white children out of their neighborhoods to black schools was the worst. About half the white parents did not even wait to see what it was going to be like; their children disappeared to the far suburbs and into private schools, and never set foot in a black school. Most of the rest abandoned the experiment soon thereafter.

Blacks were less unwilling to come to white schools, but this did not lead to racial mixing. As one Wilmington reporter noted, “despite the massive effort to bring the races together, students and even teachers segregated themselves at lunch, in the hallways, and in the classrooms if they were given the opportunity.” Administrators also discovered “the tipping point.” A few blacks did not change the character of a school, but as their numbers increased so did racial tensions. “It was almost as if there was something magic — or hellish — when the black enrollment reached 40 percent,” recalled Jeanette McDonald, who was dean of girls at P.S. du Pont High School. “The black attitudes changed then, and the whites had reason to be frightened.” Blacks would begin to extort protection money from whites, graffiti would appear, windows would be smashed, lockers were looted, and refuse would accumulate. An all-white school would rapidly begin to turn black. Once most of the whites were gone, those who remained adapted to black dominance.

Before Brown, Wilmington public schools were 73 percent white. By 1976, after forced busing, they were 9.7 percent white. Furious whites were hardly mollified when Federal Judge Murray Schwartz, one of the architects of the busing plan, transferred his own children to private school.

Busing in Boston was perhaps more traumatic and disruptive than anywhere else. In 1967, the public schools were 73 percent white. The average black student, however, attended a school that was only 32 percent white, which means schools were substantially segregated. This reflected the fact that most blacks were clustered in Roxbury, in the southern part of town. Court-ordered busing came in 1974, but the mere rumor of it was enough to send whites to the suburbs. By 1973, white enrollment had dropped to 57 percent, and the average black attended a school that was only 21 percent white. Immediately after busing, which met more resistance and violence from angry whites than anywhere else in the country, the exposure to whites increased somewhat, but quickly dropped because so many whites fled. By 2002, the district was only 15 percent white, and the average black attended a school that was 11 percent white, a figure far lower than the 32 percent from pre-integration days.

The same drama followed forced integration in many big-city school districts. In Washington, DC’s public schools, for example, white enrollment was 48 percent in 1951. Ambitious federal judges ordered racial balancing even before the Supreme Court’s Green decision in 1968, so the city learned about integration early. Newly-arrived blacks at Theodore Roosevelt High School made so many obscene comments to the girl cheerleaders the school switched to boys. Several principals decided not to have dances or other social events because of lewd advances by blacks. Whites abandoned the public schools, and by 1974 white enrollment was down to 3.3 percent. Washington was the first major urban school district from which whites essentially disappeared.

A district that used to show solid performance sank to the bottom of the league. In 1976, one high school valedictorian scored only 320 on the verbal and 280 on the math SAT. These scores put the student in the 16th and 2nd percentiles for college-bound seniors. On the 25th anniversary of Brown, James Nabrit, a lawyer who had argued one of the first successful desegregation cases in the District, complained that despite huge, federally-funded budgets, the Washington schools had “drowned the courtroom victory in a sea of failure.”

This pattern was repeated across the country, if not always so dramatically. White enrollment in Chicago (Cook County) public schools was 65.4 percent in heavily segregated schools in 1969. By 1990, after mandatory racial balancing, the figure was 23.5 percent, and by 2000 it was 13.5 percent. The decline in New York City’s white enrollment during the same period was from 38.7 percent to 19.3 to 15.3 percent. In 1968, nearly 80 percent of the public school students in San Diego were white. By 2000, only 26.1 percent were white. In all such cases, especially in California, there would have been a drop in white enrollment as a percentage of the total simply because of the arrival of large numbers of immigrant children, but the overwhelming bulk of the decrease is due to white flight.

At the same time, racial balance began to consume a huge proportion of local education budgets. Districts that undertook full-scale integration campaigns soon found them swallowing up a fifth or more of the total budget.

Integration did succeed in increasing the amount of racial contact between black and white students, most obviously in the South, where legal segregation had kept the races entirely apart. However, initial gains quickly eroded as whites disappeared. In 1968, before court-ordered busing, the average black in a big-city district attended schools that were, on average, 43 percent white. Busing pushed that figure up to 54 percent in 1972, but by 1989 white flight had brought the figure down to 47 percent, just 4 points higher than in 1968.

The disappearance of whites caused so much dislocation in so many school districts that the Supreme Court finally began to notice. In a series of decisions between 1991 and 1993, the Court reversed itself, and ruled that schools should not be required to compensate for residential segregation. By the mid-1990s there were still “magnet schools” with desirable curricula deliberately put in black areas in the hope of wooing whites into integrated classes, but forcible mixing had largely come to an end. White enrollment leveled off in most school districts, once children could attend neighborhood schools that reflected local housing patterns.

Schools are therefore moving towards increased self-segregation. One measure of this trend is the percentage of non-white children who go to “racially isolated” schools, in which fewer than ten percent of the students are white. Between 1991 and 2001 that number increased in at least 36 of the 50 states. Thirty-five percent of black, Hispanic, Asian, and American Indian students are now “racially isolated.”

During the same period, as integration requirements eased, nearly 6,000 public schools saw dramatic racial shifts, with 414 going from mostly minority to mostly white, while 5,506 shifted from mostly white to mostly minority. This means that within a 10-year period, one out of every 11 public schools (of the more than 67,000 in the whole country) changed markedly in racial character, generally coming in line with segregated housing patterns.

It should be noted that a school may be integrated but its students are not. Blacks and Hispanics often cluster in the remedial classes, with whites and Asians in the honors courses. Even those students who attend the same classes rarely fraternize across racial lines during lunch or recess. Self-segregation begins early and becomes more rigid as children get older. In high school, the only consistent exceptions seem to be among athletes, who may have real interracial friendships among teammates.

For the major big-city school districts, the end of busing came too late. Most whites now think of the public schools in places like Chicago, New York or Washington, DC as almost foreign territory. Even the neighborhood school is not a realistic option for their children. Whites may live in these cities when they are single or childless, but move to the suburbs for the schools. Previous generations of whites made big cities their permanent homes; among most whites today this is not an option for any but the wealthy, who can afford elite private schools, and the poor, who have no choice.

Few people mourn the end of busing. Whites rarely supported it, with about 65 to 70 percent of parents prepared to tell a pollster they didn’t want it. A substantial minority of blacks also opposed it: generally about 40 percent. In Chicago, the longer blacks were bused the less they liked it, with opposition rising from 48 percent in 1986 to 60 percent in 1990. At first, most blacks believed in the “harm and benefits” theory, but as the benefits failed to materialize they began to object to sending their children far from home. There has also been a resurgence of black pride and accompanying scorn for the idea that blacks must have white schoolmates in order to learn.

Even George W. Bush’s black Secretary of Education, Rod Paige, has shifted his emphasis away from integration. “Our goal is to make the schools better irregardless of the demographic makeup of the school,” he explains.

The Final Reckoning

Scholars have now had decades of school integration to study, and the results flatly contradict the sociological assumptions behind Brown. It is interesting to speculate how the justices would have ruled in 1954 or in the cases that imposed busing if they had known what we know now. In 1967, Federal Judge J. Skelly Wright reflected the prevailing view when he wrote: “Racially and socially homogeneous schools damage the minds and spirit of all children who attend them — the Negro, the white, the poor and the affluent . . .” He was wrong. Study after study has shown that segregation, whether de facto or de jure, does not lower black self-esteem. Black children consistently outscore white children on all standard tests of self image. (Such tests consist of questions like “Could you be anything you like when you grow up?” or “Do people pay attention when you talk because you have good ideas?” Scores on these tests generally match the assessments of people who know the test-takers.) What is more, just as Clark’s doll tests suggested 50 years ago, integration appears to lower black self-esteem, not raise it. The most commonly-given explanation is that it brings them face to face with a racial gap in academic achievement that refuses to go away.

Here again, the findings are consistent: The average black 12th grader reads and does math at the level of the average white 8th grader. This has been true — with slight, up-and-down variations — for 40 years. What is more, it is true whether black students have no, few, or many white classmates. Advocates of the “harm and benefits” theory have desperately resisted these findings, and journalists have hesitated to publicize them. However, as Abigail and Stephan Thernstrom make clear in their recent book No Excuses, many different approaches in many different school systems have failed to narrow the gap. They call this persistent difference in achievement “a national crisis.”

Nor does integration necessarily improve race relations. Results are not consistent, but increases in racial hostility are just as likely as decreases. A more fine-grained analysis shows that integration causes fewest problems at the youngest grades, but as children get older they become more conscious of race and increasingly socialize with people like themselves. The racial gap in academic performance — although it starts in pre-school — is not as striking in the lower grades, and is less a barrier to friendship. Likewise, when blacks start enrolling in formerly-white schools, race relations are best if the number of blacks is kept at 15 to 25 percent. Research has confirmed what teachers in Wilmington discovered after court-ordered busing: 40 percent is the point at which things often go seriously wrong.

Another consistent and related finding is that discipline problems increase as the number of black or Hispanic students increases (an influx of Asians does not have this effect). Theft, violence, and insubordination of all kinds go up as the racial balance changes.

The “harm and benefits” theory was wrong. Segregation does not damage black children, and the only discernible benefit of integration appears to be the moral satisfaction it provides its architects. The sociological basis for Brown was therefore unsound.

It is also clear that white parents were justified in opposing mandatory race-mixing. If the average black 12th grader performs at the level of the average white 8th grader, the parents of the average white 12th grader are right to think integration will lower standards and divert resources to remediation. They are also right to suspect it is likely to bring violence and disorder.

White flight is invariably dismissed as “racism.” However, the decline of white school enrollment reflected agonizing decisions unelected judges forced on millions of decent Americans. Do we keep our children in public school despite falling standards? If we move to the suburbs will we have to sell our house at a loss? If we stay, will we both have to work so we can afford private school? There have probably never been any other American court decisions with such a direct and unpleasant impact on the lives of so many people. It is doctrinaire to the point of callousness to disregard the sufferings of “racists” who rejected a social experiment in which they wanted no part, and did what they thought best for their children.

Brown and its sequels are some of the strongest proof of why judicial activism is so dangerous. The Constitution is silent on the question of segregated schools. Some states had them and others did not; it was a matter rightly left up to the deliberations of the people’s elected representatives. The Supreme Court forced a mute Constitution to speak, and in so doing made it speak gibberish.

From ratification until 1954, the Constitution permitted (though did not require) segregated schools. In 1954 it suddenly forbade legal segregation without requiring deliberate racial balancing. In 1968 it suddenly required race-conscious balancing, and in 1991 it decided not to require it after all. These changes were not the result of Amendments; they reflect nothing more than judicial decision-making so powerful and capricious that some have described it as tyranny. As Chief Justice Charles Evans Hughes once noted, “We are under a Constitution, but the Constitution is what the judges say it is.”

Brown and what followed underline how different court rulings are from legislation. Legislation is a tedious, time-consuming process, that requires the agreement of many people. It involves trade-offs and compromises, drafting, redrafting, and public scrutiny. Many court rulings are taken on the authority of only one judge, and a Supreme Court decision requires just five. Courts are therefore far more likely than legislatures to veer off into treacherous, uncharted waters. Obligatory race-balancing was a colossal, expensive mistake that no state or national legislature would have made. Only the courts can completely ignore the will of the people, and force upon them policies their representatives would never enact.

As the Civil Rights Act of 1964 demonstrated, legal segregation was probably doomed. Sooner or later, legislatures would have desegregated schools without indulging in the fantasy that schools could remold Americans into race-unconsciousness. The country would have escaped the trauma of busing, and urban school districts would probably not now be wastelands.

Today, even some of those who cheered the loudest for Brown have second thoughts. Derrick Bell is a black lawyer and former Harvard Law School professor. During the 1960s, he worked for the NAACP, trying to short circuit the legislative process, arguing dozens of school cases before dozens of judges. By 1976, he had concluded that integration was a false goal and that blacks should have instead petitioned for the “equal” in the “separate but equal,” established in 1896 in Plessy v. Ferguson. “Civil rights lawyers were misguided in requiring racial balance of each school’s student population as a measure of compliance and the guarantee of effective schooling,” he wrote. “In short, while the rhetoric of integration promised much, court orders to ensure that black youngsters received the education they needed to progress would have achieved much more.”

This year, the 50th anniversary of Brown, Prof. Bell put the case even more bluntly. “From the standpoint of education,” he says, “we would have been better served had the court in Brown rejected the petitioners’ arguments to overrule Plessy v. Ferguson.” Practically no whites are prepared to say what Prof. Bell is willing to say: The Supreme Court made a mistake in 1954. This 50th anniversary should not be a time for celebration but for reflection on the dangers of unbridled judicial power and the persistent reality of race.

Editor’s Note: This essay is featured in Jared Taylor’s book, If We Do Nothing, available for purchase here.