The 70th Anniversary of Brown v. Board of Education

The anniversary is today. The American Journal of Law and Equality is publishing a symposium on Brown to mark the occasion. I am one of the contributors.

Brown v. Board of Education. (NA)

 

Today is the 70th anniversary of Brown v. Board of Education. That ruling is one of the most famous decisions in the history of the Supreme Court, and probably the most widely praised. But many aspects of the ruling remain controversial, including elements of the Court's reasoning, and how the decision fits in with various types of constitutional theory.

In honor of the anniversary, the American Journal of Law and Equality is publishing a symposium on Brown. I am honored to be invited to contribute. A draft of my aricle, entitled "Brown, Democracy, and Foot Voting," is available on SSRN. Here is the abstract:

Traditional assessments of Brown's relationship to democracy and popular control of government should be augmented by considering the ways it enhanced citizens' ability to "vote with their feet" as well as at the ballot box. Brown played a valuable role in reinforcing foot voting, and this has important implications for our understanding of the decision and its legacy.

Part I of the article summarizes the relationship between foot voting and ballot box voting, and how the former has important advantages over the latter as a mechanism of political choice. Relative to ballot box voting, foot voting offers individuals and families greater opportunities to make decisive, well-informed choices. It also has special advantages for minority groups, including Blacks.

Part II considers traditional attempts to reconcile Brown and democracy, through arguments that the decision was actually "representation-reinforcing." While each has its merits, they also have significant limitations. Among other flaws, they often do not apply well to the Brown case itself, which famously originated in a challenge to segregation in Topeka, Kansas, a state in which – unlike most of the South – Blacks had long had the right to vote.

Part III explains how expanding our understanding of Brown to include foot voting opportunities plugs the major holes in traditional efforts to reconcile the decision and democratic choice. Among other advantages, the foot-voting rationale for Brown applies regardless of whether racial minorities have voting rights, regardless of whether segregation laws are motivated by benign or malevolent motives, and regardless of whether the targeted ethnic or racial groups can form political coalitions with others, or not.

In Part IV, I discuss the implications of the foot-voting justification of Brown for judicial review of other policies that inhibit foot voting, particularly in cases where those policies have a history of illicit racial motivations. The most significant of these is exclusionary zoning.

As I note in the article, it is difficult to produce a thesis on Brown that is both original and useful. More has been written about this decision than almost any other Supreme Court case. Readers will have to judge whether I managed to succeed.

Comments

[Dan Schiavetta]

The Court should not have credited Dr. Kenneth Clark's experiments where black preschoolers preferred white dolls to black dolls. Clark might have actually been measuring the fact that the kids had seen more white dolls than black dolls, and little children prefer what's familiar. If the dolls had been of boxers (more black than white), they might have chosen differently.

Years ago I had a black fundamentalist friend (a single mother) and I spent all day driving around the city trying to find a nonwhite Jesus to give her for Christmas. This was to counter the conventional depictions in her house (and in her church) of a white-skinned, straight-haired Jesus and hopefully make some kind of impact on her kids. I finally found one, a gorgeous little alabaster statue.

[bernard11]

My impression is that these experiments are now not regarded as demonstrating the things they purported to demonstrate, partly for reasons you cite.

[Bob from Ohio]

I thought Brown was about remedying a giant historical wrong but now I see it was "foot voting" all along.

[The Margrave of Azilia]

I still don't see the link to foot voting; must I read the article?

[bernard11]

See the title of Somin's article, and then the first paragraph of the abstract:

Traditional assessments of Brown's relationship to democracy and popular control of government should be augmented by considering the ways it enhanced citizens' ability to "vote with their feet" as well as at the ballot box. Brown played a valuable role in reinforcing foot voting, and this has important implications for our understanding of the decision and its legacy.

This is a mystery to me, since in most of the Jim Crow states (and some other places to a limited but still significant extent) Blacks couldn't vote at all. Not with their feet, not with their hands, not with pens or levers.

And then Part III:

Part III explains how expanding our understanding of Brown to include foot voting opportunities plugs the major holes in traditional efforts to reconcile the decision and democratic choice.

I'm with Bob. I mean who knew? Learn something every day here at the VC.

[Noscitur a sociis]

I take Prof. Somin’s point to be something like this:

Because of segregation, a black family in, say, Boston wouldn’t be willing to move to Topeka even if they otherwise liked the tax policy and gun laws and other local political choices. Thanks to Brown, that was no longer a problem, thus giving them more of a choice of where they could relocate to.

If you’re objecting that this is a stupid argument because 1. It’s not what actually happened and 2. If taken seriously, it would render the entire foot voting theory meaningless… well, I’ve got nothing.

[Scooter]

It's ironic that we now see the Left trying to re-segregate education with regard to dorms, library space and graduation ceremonies.

[Stephen Lathrop]

Israel’s long-standing policy to encourage foot voting by Palestinians living on the West Bank comes to mind. Remarkably, that one also:

. . . applies regardless of whether racial minorities have voting rights, regardless of whether segregation laws are motivated by benign or malevolent motives, and regardless of whether the targeted ethnic or racial groups can form political coalitions with others,
or not.

[jdgalt1]

Doesn't Brown weigh directly against the practice of foot voting, by taking away the right of a disaffected group of any one race to form exclusive institutions for themselves anywhere?

[bernard11]

I don't get your point. Could you clarify?

Thanks.

[Brett Bellmore]

I thought it was fairly clear, and I've made a related point myself before:

Foot voting relies on the existence of a diversity of places or institutions; If everyplace is the same, there's only one name on the 'ballot', as it were.

But if you have freedom of entry, as well as of exit, it tends to erase that diversity.

[bernard11]

So Brown is bad because it denied the racists the opportunity to move to a place where schools were segregated?

Wouldn't that apply to the Civil War Amendments as well?

Do integrated public schools mean all places are the same?

[Brett Bellmore]

Keeping in mind the difference between clarifying an argument and agreeing with it…

Brown itself was fine, as all it did was recognize that the government’s own facilities could not be segregated. And, remember, the 14th amendment only applies to the government: “No state shall… nor shall any state…” So Brown was a legitimate application of the 14th amendment.

It was also not contrary to foot voting, since it allowed you to foot vote your way into a particular school by moving to that school district, instead of getting put in a different school anyway on account of your race.

Speaking of that latter scenario… Back in the late 60’s, I was a child attending school in Warren, Michigan. And I came very close to spending several hours a day on a bus to put me into Detroit schools despite my parents deliberately NOT living in Detroit.

That sort of thing actually does thwart foot voting.

Integration and the absence of segregation are not always the same thing.

Edit: My mistake: Early 70's. Miliken v Bradley

Between that and the Detroit riots stopping close enough to our home that we heard the noise from them, we moved out to the country a year later.

[not guilty]

“Doesn’t Brown weigh directly against the practice of foot voting, by taking away the right of a disaffected group of any one race to form exclusive institutions for themselves anywhere?”

Actually, in the wake of Brown, numerous members of a disaffected group of any one race formed exclusive institutions for themselves. https://en.wikipedia.org/wiki/Segregation_academy

The significance of Brown and Bolling is that the seggers had to spend their own nickel to do so.

[Stephen Lathrop]

Not always. Some state laws mandated closure of any public schools if they integrated, with an eye to putting that part of the budget to work supporting allegedly private segregation academies with public funds. Nice folks. Thanks to cultural continuity, some of their descendants still comment here.

[Brett Bellmore]

The actual libertarian move would have been to totally privatize the K-12 school system. But that wouldn't have achieved their goal.

[Stephen Lathrop]

Unsurprisingly, actual libertarian moves don't seem ever to achieve anyone's goals. Has something to do with no libertarian theory to empower government.

[ReaderY]

Is Professor Somin arguing that because Brown only applied within school districts, not across them, people who didn’t like integration could aimply move to a more homogenous community? After all, a lot of white people responded to Brown with foot voting, resulting in still greater segregation with whiter suburbs and black inner cities.

If this is Professor Somin’s point, that Brown led to foot voting (aka “white flight”) resulting in greater segregation across municipalities and greater homogeneity within municipalities, I have to confess I have not seen this effect celebrated as a positive good before. Indeed, describing “white flight” as “foot voting” is itself an interesting study in positive spin.

[Brett Bellmore]

Brown enabled foot voting because without the segregation, your school was entirely dictated by where you lived, so you could pick your school by foot voting.

Prior to Brown, if you were black you could move into a good school district, and STILL get stuck in a crappy school, because the district you were in wasn't the only thing dictating the school you went to. Your race could end up over-riding that selection.

After Brown, the attempt to impose cross-district bussing was hostile to foot voting, too, but for whites, instead of blacks. You could deliberately live in a district with good schools and find your child bussed hours to put them into the bad schools you'd moved away from... as nearly happened to me as a child.

Being sent to a lousy school because of your race is not appreciably better if it's done on account of your being white, than if it's done on account of your being black.

"Indeed, describing “white flight” as “foot voting” is itself an interesting study in positive spin."

Whether something is "foot voting" does not hinge on whether you approve of what people "vote" for.

[ThePublius]

"If this is Professor Somin’s point, that Brown led to foot voting (aka “white flight”) resulting in greater segregation across municipalities and greater homogeneity within municipalities,...."

Having grown up in the Bronx in the '60's, I can attest that the white flight wasn't a result of Brown, it was a result of the "great migration," and busing. The great migration led to higher crime, particularly street crime, as in muggings. While you could once walk anywhere, anytime, by 1967 or so that was unwise, you were going to get mugged. And busing was stupid and unfair, to people of all ethnicities. We went to parochial schools we could walk to partly in response to this, even though the public schools had more facilities and opportunities, like music programs, athletic facilities, and so forth.