The May 16 Book World review of Charles Ogletree Jr.'s "All Deliberate Speed: Reflections on the First Half Century of Brown v. Board of Education" and Derrick Bell's "Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform" incorrectly identified Thurgood Marshall's mentor as Charles Hamilton Hughes. Marshall's mentor was Charles Hamilton Houston. (Published 5/20/04)


Reflections on the First Half Century of

Brown v. Board of Education

By Charles J. Ogletree, Jr. Norton. 365 pp. $25.95


Brown v. Board of Education and the

Unfulfilled Hopes for Racial Reform

By Derrick Bell. Oxford Univ. 230 pp. $25

For those who didn't have the experience, it is difficult to imagine what living in this country was like before Brown v. Board of Education. For so many who were around before that landmark Supreme Court decision, and subject to the worst of what has been called "American apartheid," it is impossible to forget. In the America that existed as two worlds in 1954, separated with the sanction of law, Brown was something of a judicial Rorschach test: People saw in it what they wanted to see. Where many blacks saw promise, many whites saw threat. Now, as the country commemorates the 50th anniversary of the May 17, 1954 ruling, the authors of two new books contend that -- to some extent at least -- both groups were wrong.

Both All Deliberate Speed, by Harvard law professor Charles J. Ogletree Jr., and Silent Covenants, by New York University law professor Derrick Bell, supply not only a cross-generational appreciation of the historic significance of the Supreme Court decision in the five consolidated cases of Brown but also provide painstaking analyses of its failings. Brown is widely credited with paving the way to desegregation in so many areas -- implying an end to segregation everywhere and fueling the civil rights movement that ultimately led to federal anti-discrimination laws with substance and enforcement. Yet, ironically, the ruling has not had an enduring effect on the one issue advocates had pushed the Supreme Court to consider: achieving public school integration.

Ogletree and Bell (who had been Ogletree's mentor when Bell also taught at Harvard Law School) reach the same disappointing conclusion about the effects of Brown, but they come at it from different points of departure. Through an effective blend of memoir, history and legal analysis, Ogletree, one of the self-described "Brown babies," illustrates the ascension of an entire generation of black talent that he credits to opportunities created by the ruling. Bell, a former civil rights attorney, mixes provocative critical legal studies theory with personal reflections on his own journey -- a descent into the harsh realities of the front lines of the school desegregation battles.

We are reminded here of the brilliant and methodical 20-year approach of the NAACP attorneys under the direction of Thurgood Marshall and his mentor Charles Hamilton Hughes, chipping away at the Supreme Court's 1896 "separate but equal" precedent of Plessy v. Ferguson. And we see Chief Justice Earl Warren's ultimate compromise. While a unanimous court declared "separate but equal" unconstitutional, it took another year and a second decision actually to order that school desegregation proceed with "all deliberate speed." These three words provided the compromise needed to win the two unanimous decisions, but they also vitiated the victory itself, Ogletree writes, because under a strict dictionary definition of deliberate as slow, "resisters were allowed to end segregation on their own timetable." The Court's refusal to issue an immediate injunction against segregation allowed for the development of the white southern campaign of "massive resistance," including economic reprisals and violence.

Curiously, according to Bell, this often brutal and highly publicized white resistance to enforcement of Brown may have been part of the real value of the decision, in that it "appalled many who otherwise would have remained on the sidelines." But a lack of vigorous federal enforcement, judicial guidance or a timeframe for desegregation allowed local officials to impede court-ordered desegregation. "Having promised much in its first Brown decision," Bell writes, "the Court in Brown II said in effect that its landmark earlier decision was more symbolic than real." Yet its impact was all too real: Southern schools remained segregated until the mid-1960s, and segregation in northern school systems was not affected until the mid-1970s, when the nation's racial politics began to grow more conservative.

Now, largely as a result of white flight and judicial limitations on busing, we regrettably have seen a re-segregation of most American public schools. On the 50th anniversary of the Brown promise to end separate black schools -- schools that were terribly underfunded -- we are experiencing a steady decline in the number of whites and blacks who are attending integrated public schools, according to a 2003 Harvard Civil Rights Project study cited by Bell. Among other things, the study shows that minority schools still suffer limited access to important resources -- the "equal" part of "separate but equal." Moreover, an increasingly conservative Supreme Court has sent signals to lower federal courts to "relax their supervision of school districts," notes Ogletree, who believes the shift in the Court is symbolized by the replacement of Thurgood Marshall by Clarence Thomas. (Interestingly, Ogletree, who wound up serving as lead counsel to Anita Hill during the U.S. Senate confirmation hearings for Thomas, reveals that, as a black man, he initially wanted to find some reason to support the Thomas nomination.)

Bell finds a conservative Court is only part of the problem. To illustrate what went wrong on the path to equality in education since Brown, Bell offers his own version of an alternate decision in the case -- upholding Plessy, and calling for strict enforcement of its "equal" prong to improve the quality of black schooling. Ultimately, we are led to a fundamental and controversial question about Brown and the push for integration.

Clearly, our diverse society benefits from an integrated school system. Integration, though, is "a means of achieving a goal, not the goal itself," Ogletree asserts, "creating a new community founded on a new form of respect and tolerance." Indeed, the value of diversity was endorsed by the Supreme Court last year in upholding the admissions policy of the University of Michigan Law School -- a decision supported by other universities, as well as by business and military interests. But building from the ground up -- from grade school through professional school -- remains a challenge. And while a number of researchers have shown that black student achievement improves in desegregated schools, there still are problems. For one thing, Bell notes, "tracking" of students confers benefits of accelerated programs on whites, while relegating black students to inferior programs with diminished opportunities and, in the end, internalizing "the bias and stigma of segregation." This realization has led Bell to reconsider the blind faith in integration he and others held over the years. He also questions whether the "rigidity on racial-balance" of many civil rights lawyers -- including himself -- may have been a factor in the white flight that led to re-segregation. The civil rights tactics were built on the assumption that racial justice was the real motivation behind the Brown decision. Bell suggests it was not.

While recognizing the importance of the work of the NAACP attorneys, Bell asserts that there was another national interest at issue. It is a matter of "interest-convergence," he argues, applying to Brown the theory he has discussed in other contexts. Only when minority and majority interests converge, he believes, will the minorities become "fortuitous beneficiaries" of legal and policy decisions that are fashioned among policymakers who trade on race by way of "silent covenants" -- the unwritten, unspoken understanding among whites that serves to perpetuate the dominance of the majority. When these interests no longer converge, support for the minority is withdrawn. Thus, citing U.S. Justice Department briefs filed in Brown, Bell asserts that gaining U.S. advantage in the Cold War propaganda campaign was a major impetus for that decision.

Similarly, he writes, gaining Union advantage in the Civil War was the main impetus for the Emancipation Proclamation, which only had effect in the Confederate states where the Union had no practical means to free anybody at the time. "The Emancipation Proclamation remains a positive moment in American history despite its mainly symbolic character," he writes. "Brown v. Board of Education has achieved and will probably retain similar status." As with the end of Reconstruction, he contends, national priorities on race matters have shifted. If quality education is the goal, then bolstering black schools -- public and private -- should be considered. Now, pointing to the "substantial disparities" in allocations of money and resources among students in predominantly black and white schools, Bell suggests that rather than push for integrating the schools, "we should concentrate on desegregating the money."

Fifty years after Brown promised to settle the question of racial equality in education, important questions still need to be raised and answered. That would seem to be the point here: to issue a challenge, to inform a new discourse. What kind of society do we finally want to create and preserve? Recognizing the critical importance of quality education in the information age, how do we ensure that everyone has access? How do we use all the institutions of our society -- including and most especially the law -- to get us there? In a way, it is sad that, after more than two generations of social, legal and political progress, we are still sorting through these issues. Yet in a way, it also is encouraging -- a sign that we are far from giving up on the goal of racial equality, despite the many setbacks that goal has suffered. While both Ogletree and Bell offer sobering assessments of Brown and its aftermath, their important work suggests new avenues of progress in this larger struggle. *

Christopher Benson is a Chicago-based writer and lawyer whose most recent book, co-authored with the late Mamie Till-Mobley, is "Death of Innocence: The Story of the Hate Crime That Changed America."

From left: Lawyers George E.C. Hayes, Thurgood Marshall and James M. Nabrit, after their victory in Brown v. Board of Education in 1954.