Jin Hee Lee, Sarah Seo, and Hamida Labi
Seven decades have passed since the United States Supreme Court unanimously ruled, in Brown v. Board of Education, that Black people must be treated as equal persons deserving of the full rights of citizenship under the law. A crowning achievement for the NAACP Legal Defense and Educational Fund, Inc. (LDF), Brown was the culmination of legal acumen and political activism working together to challenge the hypocrisy of a democracy resting upon a racial hierarchy. Brown is widely celebrated as an illustrious example of the strength of our constitutional principles—and rightly so. The United States has made incredible strides towards racial equality in the past 70 years, more recently witnessing the election of the first Black, first Asian American, and first woman Vice President and the appointment of the first Black woman to the Supreme Court. But it would be a grave mistake to perceive Brown as the “end,” rather than the “means,” of our national pursuit of racial equality. For LDF, Brown merely laid the foundation for future legal battles to secure the full citizenship and equality of Black Americans in their everyday lives. These battles continue to the present day as we endeavor to fully realize the vision of equality in Brown that was—and remains—the soul of our multiracial democracy.
The Road to Brown
The first half of the twentieth century continued the centuries-long dehumanization of Black people in the United States, as they were relegated to a racial hierarchy that deemed them inferior in all aspects of their lives. Within this legal and social reality, Black civil rights leaders nevertheless had the audacity to not only envision a different reality, but also to map out a plan to make that reality come into fruition. By the late 1920s, then-General Secretary of the NAACP James Weldon Johnson received support from a philanthropic organization called the Garland Fund to create a special committee, which recommended a “large-scale, wide-spread, dramatic campaign to give the Southern Negro his constitutional rights, his political and civil equality, and therewith a self-consciousness and self-respect which would inevitably tend to effect a revolution in the economic life of the country” (Kluger, 2004, p.132). In 1931, the NAACP commissioned attorney Nathan Margold to expand on this recommendation and produce a detailed blueprint of the proposed legal campaign. The resulting “Margold Report” proposed a strategy to desegregate public schools in the South by challenging the constitutionality of segregation under the Equal Protection Clause of the Fourteenth Amendment due to the fundamentally unequal educational opportunities afforded to Black students (Kluger, 2004).
By 1935, Charles Hamilton Houston—a mentor to a generation of Black lawyers, including LDF’s founder and the first Black Supreme Court Justice Thurgood Marshall—left his position as Dean of Howard Law School to become the first special counsel for the NAACP. In this role, Houston developed a variation of the Margold Report that laid the framework for the ultimate strategy behind Brown. Due to the Supreme Court’s embrace of the “separate but equal” doctrine in Plessy v. Ferguson (1896), Houston knew that the attack on state-sanctioned segregation had to begin where educational facilities were neither separate nor equal, but non-existent (Kluger, 2004). At that time, there were only two graduate or professional schools for Black students in the entire segregated South—Howard University School of Law in Washington, D.C., and Meharry Medical College in Nashville, TN. Thus, under Plessy’s logic, states with de jure segregation were constitutionally required to build and maintain “separate” and “equal” public graduate schools for Black students or admit Black applicants to existing, segregated public institutions. The NAACP’s campaign to desegregate public graduate schools could then expand to desegregate public undergraduate colleges and universities and public K-12 schools throughout the Jim Crow South.
Thurgood Marshall was Houston’s student and mentee at Howard Law School, and faithfully implemented Houston’s legal strategy at the NAACP. Their first collaboration was Murray v. Pearson, in which the Maryland Court of Appeals ordered the University of Maryland Law School to admit Black students in 1936—Marshall’s first major civil rights victory in his storied career. Four years later, in 1940, Marshall founded LDF, a non-profit legal organization—separate from the NAACP—that had the singular mission of securing racial equality for Black Americans through legal advocacy. By 1950, LDF won two landmark decisions before the Supreme Court, Sweatt v. Painter (1950) and McLaurin v. Oklahoma State Regents (1950), which held that the Fourteenth Amendment required the admission of Black students into public graduate schools in a non-segregated setting due to the absence of any separate, segregated educational facilities for Black students that were equal.
The legal victories before the Supreme Court convinced Marshall that it was time for the Court to confront, head on, the constitutionality of segregation and the legal soundness of the Plessy decision. At the NAACP’s conference in 1950, the NAACP Board of Directors approved and adopted, as official organizational policy, Marshall’s proposed resolution that all future education cases would be “aimed at obtaining education on a non-segregated basis and that no relief other than that will be acceptable” (Kluger, 2004, p.293). The strategic focus on public school segregation tied into LDF’s larger goal of vindicating the “intended effect of the Fourteenth Amendment—which was to give Negroes full citizenship rights” (Library of Congress, 1952). This view of the Fourteenth Amendment—with its inherent connection between equality and full citizenship—had profound ramifications that not only influenced the Brown decision, but also illuminated the demands of a true multiracial democracy. At the heart of “equal protection” is the recognition of Black people as full persons, entitled to the same dreams and opportunities, as well as the same rights associated with equal participation in our American democracy.
In 1954, a unanimous Supreme Court declared in Brown v. Board of Education that “separate but equal” de jure segregation of public educational facilities is “inherently unequal” in violation of the Equal Protection Clause of the Fourteenth Amendment. Importantly, the Court recognized the vital role of public education in the development of citizenship within our multiracial democracy. According to the Brown Court, “education is perhaps the most important function of state and local governments” and, as “the very foundation of good citizenship,” is “a principal instrument in awakening children to cultural values, in preparing them for later professional training, and in helping them to adjust normally to the environment.” The impact of the Brown decision cannot be overstated. In many ways, Brown marked the birth of the United States as a true multiracial democracy that, for the first time, gave teeth to the Fourteenth Amendment’s demand that Black people be recognized as full and equal citizens.
Fulfilling Brown’s Promise
Both the legal and social landscape of the American South was poised to undergo a dramatic shift following the Brown decision, spurring resistance from segregationists that was swift and far reaching. Virginia Governor Thomas Stanley established the 32-member Commission on Public Education (also known as the “Gray Commission”), which in 1955 issued a report asserting that “compulsory integration should be resisted by all proper means in our power” and emphasizing the importance of local school board discretion as a key strategy to oppose desegregation (Sweeney, 2008). The Declaration of Constitutional Principles opposing racial integration, commonly referred to as the “Southern Manifesto,” was signed by more than one hundred members of both the U.S. Senate and the U.S. House of Representatives the following year. U.S. Senator Harry Byrd of Virginia also called for what became known as Massive Resistance—a group of laws passed in 1956 to prevent the integration of public schools (Bartley, 1999). Nevertheless, the brave and tireless efforts of Black families, represented by LDF lawyers and an extensive cooperating attorney network, held southern schools accountable to Brown’s mandate through litigation resulting in desegregation orders issued by federal courts. Many school desegregation orders remain in effect to this day, as LDF, as well as the U.S. Department of Justice, continue to ensure that formerly segregated school districts abide by their affirmative duty, as prescribed by the Court in its 1968 decision in Green v. County School Board of New Kent County, to take “whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.”
Neither southern jurisdictions, nor the rest of the United States, have yet fully embraced the transformational potential of Brown’s promise of racial equality through quality public education that is equally available and equally accessible to children of all races. Subsequent decisions by the Supreme Court have made it increasingly difficult to follow its own directive in Green to eliminate racial discrimination from public education “root and branch.” For example, in the 1974 Milliken v. Bradley decision, the Court barred federal courts from issuing inter-district desegregation orders to remedy single-district de jure segregation, which effectively left Black families with no legal recourse to challenge racially segregated school systems resulting from the flight of white families to neighboring school districts to avoid integration.
As a result, the struggle for equal educational opportunities for Black students remains critical today, despite the seven decades since Brown was decided. According to the Government Accountability Office, more than a third of students (about 18.5 million) attended schools where 75 percent or more students were of a single race or ethnicity during the 2020-21 school year (GAO, 2022). As of December 2023, nearly 70,000 of the 98,860 Alabama students enrolled in 206 “priority schools”—i.e., schools rated ‘D’ or ‘F’ based on the state’s accountability system—are Black (Morgan, 2022). Similarly, Mississippi’s Black students comprise 46 percent of the overall student population, but make up 73 percent of students attending high-poverty schools (National Equity Atlas, 2020).
The persistence of racial segregation within our public educational system, and the resulting racial inequality in educational resources and opportunities, jeopardizes the “foundation of good citizenship” that public education is supposed to provide to the children responsible for the future of our multiracial democracy, as the Court noted in Brown. Yet, as dire as the deficiencies of our public educational system may be, Americans face another, equally dire crisis in fulfilling Brown’s promise—the very meaning of Brown itself. The extremist effort to redefine Brown is exemplified by the legal arguments presented by the plaintiff Students for Fair Admissions (SFFA) in SFFA v. Harvard/UNC (2023), the consolidated cases in which the Supreme Court upended over four decades of precedent by ruling that the affirmative action policies at Harvard University and the University of North Carolina at Chapel Hill are illegal under the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. (LDF represented 25 Harvard student and alumni organizations in the litigation against Harvard during proceedings before the trial court, the U.S. Court of Appeals for the First Circuit, and the Supreme Court.) In its briefing to the Court, SFFA likened affirmative action in higher education to Plessy’s “separate but equal doctrine,” thereby reasoning that both are unconstitutional pursuant to Brown’s mandate for racial equality. The absurdity of equating Jim Crow laws in Plessy, which had subjugated and dehumanized Black people in the South for generations, to affirmative action in higher education, which opened doors to educational institutions from which Black people had been historically excluded, prompted LDF to submit an amicus brief on behalf of itself and the NAACP to essentially explain the meaning of Brown (Brief for LDF and NAACP, 2022).
As delineated in LDF’s amicus brief, Brown clearly and emphatically rejected America’s racial caste system, which is anathema to a functioning, multiracial democracy. Affirmative action in higher education likewise rejects a racial caste system by expanding opportunities for Black people and other people of color to access selective educational resources that often serve as pathways for positions of leadership and influence. In her dissenting opinion in the SFFA case, Justice Sotomayor acknowledged Justice Marshall as the “Member of this Court who understood the Brown litigation” and criticized the majority’s “recharacterization of Brown” as “nothing but revisionist history and an affront to the legendary life of Justice Marshall, a great jurist who was a champion of true equal opportunity, not the rhetorical flourishes about colorblindness.” Justice Marshall himself made the following observation about affirmative action in his separate opinion in Regents of the Univ. of Calif. v. Bakke, the 1978 case in which the Supreme Court first articulated the 45-year legal framework for affirmative action in higher education that was cast aside in the SFFA decision:
If we are ever to become a fully integrated society, one in which the color of a person’s skin will not determine the opportunities available to him or her, we must be willing to take steps to open those doors.
As devastating as the SFFA decision may be, Chief Justice Roberts, who authored the majority opinion, affirmed that the educational benefits of diversity are “commendable goals”—albeit “not sufficiently coherent for purposes of strict scrutiny.” He further explained that “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” Nevertheless, conservative activists have distorted the SFFA ruling to extend far beyond its legal parameters to undo Brown’s legacy and nullify its constitutional promise, most notably in a full-scale attack on Diversity, Equity, and Inclusion (DEI) and the myriad concepts, programs, and policies to advance race and gender equity that have been thrown into the DEI rubric (Confessore, 2024). In essence, these extremists have mischaracterized DEI, affirmative action, Critical Race Theory, anti-racism, racial equity, and even social emotional learning—all efforts to break down unfair barriers that hinder true equality—as forms of discrimination themselves.
Even before the SFFA decision, state governments across the country passed legislation like Florida’s Stop WOKE Act (ultimately passed as the Individual Freedom Act), which bans, among other things, the “training or instruction that espouses, promotes, advances, inculcates, or compels . . . student[s] or employee[s] to believe” that a “person, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the person played no part, committed in the past by other members of the same race, color, national origin, or sex,” or that “[s]uch virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, national origin, or sex to oppress members of another race, color, national origin, or sex” (Fla. Stat. § 1000.05(4)(a)). (LDF, along with co-counsel ACLU, ACLU of Florida, and Ballard Spahr LLP, secured a preliminary injunction on behalf of plaintiff university professors barring its enforcement in higher education. This ruling is currently pending before the U.S. Court of Appeals for the Eleventh Circuit.) More recently, on March 20, 2024, Alabama Governor Kay Ivey signed into law SB 129, which has similar provisions, as well as outright bans of state-funded DEI programs in public educational institutions (Faqiri, 2024).
At this moment in time, when people of color are expected to be the majority of Americans by 2045, we stand at the precipice of fully embracing Brown’s vision of racial equality or allowing racial justice detractors to highjack its meaning and jeopardize seven decades of progress. Indeed, it is no accident that the extremist fervor against Critical Race Theory, DEI, or the next conservative watchword of the day comes in the aftermath of the largest social justice demonstration in our nation’s history, when people of all races and nationalities worldwide marched in solidarity to protest systemic, anti-Black racism that was so viciously illustrated by George Floyd’s killing (Bryson Taylor, 2021). Nor is it mere coincidence that a war against Brown’s true meaning is being waged in our classrooms, where future voters and future leaders are given the “foundation of good citizenship.” The struggle to actualize Brown’s promise is, quite literally, a fight for the soul of our multiracial democracy. And, like the years under Thurgood Marshall’s leadership in the road to Brown, LDF continues to be at the heart of this fight.
Jin Hee Lee (jlee@naacpldf.org) is Director of Strategic Initiatives at LDF and a PRRAC Board member.
Sarah Seo (sseo@naacpldf.org) is Policy Fellow at LDF.
Hamida Labi (hlabi@naacpldf.org) is Senior Policy Counsel at LDF.
References
Bartley, N. (1999). The Rise of Massive Resistance: Race and Politics in the South During the 1950’s. LSU Press.
Brief for the NACCP Legal Defense and Educational Fund, Inc. and the National Association for the Advancement of Colored People as Amici Curiae Supporting Respondents, Students for Fair Admissions v. UNC et al. (2022).
Bryson Taylor, D. (2021). “George Floyd Protests: A Timeline.” New York Times.
Confessore, N. (2024). “’America is Under Attack’: Inside the Anti-D.E.I. Crusade.” New York Times.
Faqiri, S. (2024). “Alabama Gov. Kay Ivey Signs Sweeping Law That Prohibits Diversity, Equity, and Inclusion at Public Schools and Universities.” CNN.
Government Accountability Office. (2022, June 16). “K-12 Education: Student Population Has Significantly Diversified, but Many Schools Remain Divided Along Racial, Ethnic, and Economic Lines.” “Internal Memorandum from NAACP LDF.” (1952). Library of Congress.
Kluger, R. (2004). Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality. Vintage Books.
Morgan, I. (2022). “Equal Is Not Good Enough, An Analysis of School Funding Equity Across the U.S. and Within Each State.” The Education Trust.
National Equity Atlas. (2020). “School Poverty: All Youth Should Attend Economically Diverse, Well-Resourced Schools.”
Sweeney, J. (2008). “Race, Reason, and Massive Resistance: The Diary of David J. Mays, 1954-1959.” University of Georgia Press.
