Black children might have been better off without Brown v. Board, Bell says

BY LISA TREI

While honoring the efforts and sacrifices of the people whose struggles culminated in Brown v. Board of Education, the Supreme Court case that ended school segregation in this country, New York University Professor Derrick Bell provocatively suggested last week that generations of black children might have been better off if the case had failed.

Bell said the Supreme Court should have enforced the "equal" portion of the 1896 "separate but equal" ruling that segregated schools. Photo: L.A. Cicero

"From the standpoint of education, we would have been better served had the court in Brown rejected the petitioners' arguments to overrule Plessy v. Ferguson," Bell said, referring to the 1896 Supreme Court ruling that enforced a "separate but equal" standard for blacks and whites. While acknowledging the deep injustices done to black children in segregated schools, Bell argued the court should have determined to enforce the generally ignored "equal" part of the "separate but equal" doctrine.

Bell, a visiting law professor at New York University, lectured at the opening of a symposium April 15-16 to mark the 50th anniversary of the landmark Brown decision. Presented by the Program in American Studies, the event included two discussion panels that considered some of the unrecognized catalysts and unintended consequences of the historic court case. (See related story.)

Bell's address was largely based on his new book, Silent Covenants, in which he writes about an imaginary court opinion that would have upheld the "separate but equal" doctrine. But he also spoke from deep personal experience.

During the 1960s, Bell handled hundred of cases involving school litigation in the South as a lawyer for the NAACP Legal Defense Fund. In 1971, he became the first tenured black professor at Harvard Law School, but relinquished the position in 1992 when he refused to return from a two-year, unpaid leave of absence he took to protest the lack of women of color on the faculty. Since then, he has been a visiting professor at New York University Law School.

Bell said his argument echoed that made in 1935 by civil rights pioneer W.E.B. Du Bois during a period when the NAACP was trying to end segregation by focusing its litigation efforts on the stark disparities between black and white schools. Du Bois, an NAACP founder who originally had attacked Jim Crow laws and the establishment of black schools, later came to the conclusion that "Negro children needed neither segregated schools nor mixed schools. What they need is education."

In May 1954, as civil rights advocates celebrated the Brown decision, Du Bois, then 86 years old, noted that "no such decision would have been possible without the world pressure of communism," which rendered it "simply impossible for the United States to continue to lead a 'Free World' with race segregation kept legal over a third of its territory." Bell said that Du Bois predicted, accurately as it turned out, that the South would not comply with the decision for many years, "long enough to ruin the education of millions of black and white children."

In 1976, Bell said he came to the same conclusion in an article titled Serving Two Masters, which stated, "Our clients' aims for better schooling for their children no longer meshed with integrationist ideals. Civil rights lawyers were misguided in requiring racial balance of each school's student population as the measure of compliance and the guarantee of effective schooling. 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."

Rather than resolving the nation's racial dilemma, the Brown decision has made it more complex, Bell argued. "Racial disparities, wide and widening in every measure of well-being, overshadow the gains in status achieved by those of us black Americans who, by varying combinations of hard work and good fortune, are viewed as having 'made it,'" he said.

Instead, what Brown did for many African Americans was legitimate the status quo. While they remained poor and disempowered, their status was no longer a result of denied equality. Rather, Bell said, it marked a personal failure to take advantage of one's defined equal status.

In conclusion, Bell argued that Brown v. Board of Education ultimately failed to remove barriers to equal education based on race. "Our hopes that it would do so have been replaced by a reluctant observation that it unintentionally replaced overt barriers with less obvious but equally obstructive new ones," he said. "The campaign continues."