Does Brown v. Board of Education constitute the Supreme Court’s one free pass? *UPDATED*

Don Quixote and I had a very interesting conversation yesterday about the libertarian way to change societal evils. I don’t recall how the conversation wandered over to that topic, but it seems to me it started with a chance reference to a very well known incident in California in the late 1970s.

Back then, a landlady made headlines when she refused to rent one of her apartments to an unmarried couple, since she believed to do so would condone a sin.  (And yes, it is hard to believe that such an antiquated notion was still prevalent in certain quarters as little as thirty-odd years ago.)  I cannot remember if the matter was resolved by judicial fiat or legislation, but resolved it was — and against the landlady’s religious preferences.

The libertarian way to deal with the situation, of course, would have been to let the market decide which way housing should go.  If there were enough unmarried couples seeking housing, the landlady would either have abandoned her principles in favor of profit, or ridden off into the sunset, proud and broke.  As it was, government threats, rather than the profit motive, bullied the landlady into the Hobson’s choice of eschewing her beliefs or abandoning her home.  There’s a crude, high speed bullying to the latter force, that is absent when the market shifts organically.

But what, I asked Don Quixote, can one do when society condones a something that is absolutely wrong?  Of course, nowadays wrong is a fuzzy concept.  In this day and age, short of abasing himself on the floor and giving away all his money, everything the average white male does is wrong.  Rather than get into that mess, I wanted to treat the discussion in a pure, abstract way.  Both DQ and I therefore scoured our brains for a big wrong in the modern era.  We simultaneously came up with the same thing:  the way in which the Jim Crow South denied blacks their rights.

In a perfect libertarian world, two forces would have converged on the Jim Crow South, forcing a change in those bad racist habits.  First, blacks would have left en masse and second, the disapproval of the rest of the United States would have weighed heavily on the South.

Both of those things did happen, of course.  There was a huge black exodus from south to north, spanning the first half of the 20th Century.  Detroit, Chicago and Philadelphia, among other cities, were flooded by Southern blacks.  But a whole bunch of blacks remained in the South — more than enough to suffer the indignities, fear and poverty of Jim Crow.  Likewise, there were many in the North who looked upon the South with great disapproval, but the South was sufficiently insular that Northern condescension seemed to make little difference.

It is true that, given time, Jim Crow would probably have died on the vine.  Lots of evils, if allowed to play out, will die.  One interesting one we’re watching right now is taking place in China and India:  In those countries, girls are second (nay, fifth) class citizens, a situation that is made especially manifest by the fact that those boy-oriented cultures abort an overwhelming number of girl babies.  Currently, the situation is awful for girls, whether born or unborn.  However, as there are fewer and fewer girls, their stock is going to have to rise.  It will be impossible for either culture both to maintain its rate of female genocide and survive.  Given enough time and enough female deaths, female infanticide will die out.

A problem arises, however, when moral people don’t want to sit around and wait for the inevitable.  They cannot tolerate the pain and suffering that will lead to the ideology’s demise.  They want to do something now.

In the case of the Jim Crow South, to those paying attention, some decisive action seemed absolutely necessary.  With the “malcontents” of the black population having emigrated, leaving a more massive and easily bullied black population, and with most of the world looking away, it seemed as if the South had achieved some form of stasis (no matter how foul) that would enable it to continue its un-American practices indefinitely.

There is a reason that, in the previous paragraph, I highlighted the phrase “to those paying attention.”  Libertarianism works, as much as anything, by having a critical societal shift.  People decide something is wrong, and they stop sending money that way; conversely, they decide something is right, and flood that market with their wealth.  The problem was that much if the nation (a) didn’t care; (b) sort of agreed with Jim Crow; or (c) wasn’t paying any attention at all to the situation.

What made people care, what made them sit up and pay attention, was the fallout from an activist Supreme Court opinion:  1954’s Brown v. Board of Education.  The opinion said, as we all know, that it is impossible for separate to be equal.  That is silly.  In terms of government providing equal education, it would have made more sense to say that school districts have to ensure that all students have precisely the same facilities, precisely the same quality of teachers, and precisely the same resources as white students, in order for their education to be considered equal.  That ruling would have made sense.

The sensible ruling would also have been a back door to desegregation, because no Southern school districts could have afforded having two perfectly equal school systems, one for blacks and one for whites.  The districts would have had to raise taxes or lower educational offerings to their white students . . . or bitten the bullet and let the blacks in.  It would have been up to the districts which they chose, but the results would almost certainly have been desegregation. As it was, though, the Brown opinion forced instant desegregation by creating a crackpot legal, education and social theory out of whole cloth.

Brown’s real important, though, didn’t lie in silly legal opinions that basically affected only a small number of blacks (the children).  Instead, it’s real importance was the fact that, at the start of the media age, its publication caused all American eyes to turn to the South.

As I noted before, before Brown, the rest of America wasn’t paying attention, or didn’t care, or even sort of agreed with the Southern system.  By turning up the heat on the South, though, and forcing a sea change without the gradualism of libertarianism, Americans suddenly had images of the Little Rock Nine being escorted by troops and excoriated by white citizens on television screens and in newspapers and magazines:

Thanks to the spotlight the Supreme Court turned on the South, Americans were riveted and disgusted by a spectacle they’d chosen earlier to ignore. The South, with American eyes upon it, opted for self-immolation. Rather than yielding gracefully to what it should have perceived as the inevitable, the South, led by the practically retarded Bull Connor, provided even more fodder for the media.

In the years subsequent to the Brown decision, Americans were treated to even more grotesque images from a backwater they’d previously ignored:

Societal pressure against Jim Crow became overwhelming.  The Federal Civil Rights Act wasn’t the leading edge, it was the last swipe at a system that had begun to die with great speed in the wake of the immediate changes wrought by Brown v. Board of Education.

Considering the evil that was the Jim Crow South, and considering that the system would have taken decades to die out on its own, here’s the big question:  Was it a good thing that the Supreme Court jump-started Jim Crow’s death by issuing an activist decision that was both Constitutionally incorrect and factually just a tiny dent in the system, but that worked to turn America’s eyes onto a great wrong being done in its own back yard?

My answer is that, righteous though the results were, the decision was still wrong.  Keep in mind that the societal benefits in Brown‘s wake were not the intended consequences of the decision.  Instead, the benefits flowed from an unintended consequence:  the novelty of media attention focusing on an issue most Americans had managed to disregard.  In other words, it wasn’t the Court decision that brought about the change; it was the dumb luck that flowed from that decision. While the decision is viewed as carte blanche for activism, because it was followed by a successful societal change, the change flowed, not from the decision itself, but simply from the attention it garnered.

Sadly, when courts get all activist about education, rather than having a great wrong righted, you’re much more likely to end up with the situation in the Kansas School District.  In that District, a federal judge micromanaged billions of dollars in expenditures, only to end up with exactly the same situation as before:  poorly performing minority students.  Funnily enough, in light of my comments about Brown, the Kansas court could reasonably have said what the Brown court should have said:  expenditures must be equal.  End of story.  Let the communities figure out how to make that happen. The Kansas judge, however, took his activism much further and ordered, in great detail, that the Kansas school district create perfect schools, schools that could only be dreamed in the fantasy world of an education school’s wet dreams.  Unsurprisingly, everyone suffered.

That’s my two cents.  What’s yours?

UPDATE:  I wrote the above post in response to a conversation about the libertarian versus the Leftist (liberal/Progressive) approach to dealing with societal evils.  It occurs to me, though, that it’s a worthwile post to consider in light of the upcoming hearings for a new Supreme Court justice.

Be Sociable, Share!
  • Helen Losse

    RE: “That’s my two cents. What’s yours?”

    Sounds like you understand that “the arc of the universe is long but it bends toward justice,” (Martin Luther King. Jr.) but can’t stand the idea that you and yours might have to pay a part of the price for helping justice along. Minorities are tired of waiting.

  • wordy1

    Very interesting post. My Atlanta public school was integrated (by bussing) when I was in 3rd grade. The black children were submissively accepted by all, but they were unable to read at even a 1st grade level. My teacher had me and a few other students teaching them to read. At that point, 2 weeks into the school year, my parents transferred me to a still all white school. They had worked hard to teach me to read while I was still in kindergarten and they wanted me learning, not teaching. Of course eventually we had to move. Poor whites had moved in and theft and break ins became rampant. By 1968 the neighborhood where my parents had bought land and built their little dream house was no longer livable and though it cost them $10,000 in 1952, they finally found a buyer in 1981 who paid $7,000. It was just hard to let go, and they waited too late. After we moved to the suburbs where all the white yankees lived, who assumed me to be racist, even though I always shot back, even to some parents, “So why are you living way out here in the lily whites?” There was one thing that helped me understand. A Mad Magazine (forbidden by my parents, hidden by me) had a little thing that said, ” ‘I’ is for integration, which everyone is for, as long as it doesn’t happen right next door.” Obviously, I don’t think Brown was the best decision, but they did something, and though it cost some a part of their fortune, it surely helped others. The status quo was unacceptable for the black children.

  • suek

    >>Minorities are tired of waiting.>>

    Well then, Helen, tell them to stop waiting and start working just like everybody else had to.

    Is there some reason why “minority” children can’t learn like “majority” children??

  • Charles Martel

    Hi, Helen:

    It always amuses me when this board’s whitest black woman who ever lived purports to speak for minorities. (By the way, I notice that you’ve used the plural form this time. Usually you are obsessed with one minority in particular, which apparently an A in a college course made you a member of.)

    “You and yours,” which is an incredibly dismissive and racist phrase, have been paying through the nose since the Great Society to pull “minorities” up out of poverty and to make up for historical injustices.

    But here we are, $6 trillion in welfare payments later, and the “minorities” you speak of have been on a 40-year tear of bastardy, abortion, drugs, illiteracy and crime. Maybe we should have spent that $6 trillion on something else.

    So, Helen, while you wallow in your white-skin guilt, I got over mine years ago. I was bitch-slapped out of it by some very savvy black and brown people who pointed out the incredible condescension of whites who appoint themselves as the rescuers of their little dark-skinned brothers, and who magnify the insult by insisting that their dark-complected brethren all think a certain way simply because of their skin color.

    Come back and let us know what a minority thinks, Helen, when you actually become the member of one.

  • Helen Losse

    Charles, In case you don’t know, women are a minority.

  • suek

    Even if there are more of us?

  • Bookworm

    Not so fast, Helen. The CIA World Factbook has slightly different info:

    at birth: 1.05 male(s)/female
    under 15 years: 1.04 male(s)/female
    15-64 years: 1 male(s)/female
    65 years and over: 0.75 male(s)/female
    total population: 0.97 male(s)/female (2009 est.)

    Women are a minority only if you conflate “minority” with “victim in the eyes of Leftist ideology”

  • Charles Martel


    I told this story once before here, but it bears repeating in light of what you said.

    I was in a college English class where there was a heated discussion about whether blacks and whites should work together to heal the country’s racism or take separate paths.

    One of my classmates, a young black woman, was adamantly opposed to collaboration between the races, whereas I was for it. She simply saw no use “in crossing racial boundaries” to get this important work done.

    As the discussion moved on, she began talking up the virtues of a worldwide feminist movement that would attempt to solve the problems of racism, poverty, sexism and all of the other of the left’s bogeymen.

    I let her wax eloquent for a while, then gently asked, “Wouldn’t an international women’s movement ‘cross racial boundaries?'”

    She was dumbstruck at having her illogic exposed. I knew she was extremely embarrassed and uncomfortable, so I said something to move the conversation onto another topic.

    I mention this, Helen, because I can see you getting ready to fall off a cliff here. If women are one of your sacred minorities, be careful: Book is a woman and you’re going to have to do all sorts of contortions to explain what you meant when you referred to her as “you and yours” above.

    After all, how can a member of a minority be guilty of oppression when she herself is oppressed? If it works for blacks—“black people cannot commit racism”—why can’t it work for chicks as well?

  • Gringo

    Sounds like you understand that “the arc of the universe is long but it bends toward justice,” (Martin Luther King. Jr.) but can’t stand the idea that you and yours might have to pay a part of the price for helping justice along.

    Helen: please inform “you and yours” how and where the price has to be paid for “helping justice along.”

    Since you did not say “we”, it appears that this is a price that only Republicans and Independents need pay, and liberals as yourself do not have to , as they have already seen the light.

    One problem I see with your sentiment is that to a big degree we do not know what price “you and yours” pay for a given act will achieve “justice.” It ain’t like constructing the Brooklyn Bridge. Example: it is very easy to say, “Fund education more.” But consider the Annenberg Challenge (p 15), where our future President chaired a committee that dispensed over $100 million in research monies dedicated to improving the Chicago public schools. Unfortunately, that was $100 million thrown down the drain, as Annenberg-funded schools performed no better than other schools. I repeat: it ain’t like constructing the Brooklyn Bridge.

  • Gringo

    Or was Helen simply talking not about Liberal/Conservative nor Republican/Democrat, but about that eternal locus of evil, the White Male?
    That “women are a minority” remark seems to support that point of view.

  • Helen Losse

    Gringo, We will probable all have to pay the price. By all, I mean all Americans living in America. I really don’t know how this will affect those living outside the US. But probably justice and equality will take a toll on everyone before we get it right. By right, I mean a society that is color-blind to the law and colorful in social activities, if and when people so-choose.

    Ah, but that’s what Republicans (conservatives – let’s not fight about what we call people, for the purpose of this discussion) have been saying. Yes. But we aren’t ready for that yet. And all the talk that we are just wastes time in making it truly so.

    Not ready. That’s why the black woman Charles was so delight to trip up saw the difference in women uniting across racial lines as being different from blacks and whites working together. It’s not because women are smarter; they’re not. It’s because black women are minorities in two ways (race and gender). Americans aren’t ready to do the right thing. If they were this dsicussion wouldn’t be taking place. :-)

  • Charles Martel

    That’s why the black woman Charles was so delight to trip up saw the difference in women uniting across racial lines as being different from blacks and whites working together. It’s not because women are smarter; they’re not. It’s because black women are minorities in two ways (race and gender).”

    As usual, where to begin?

    So, “women uniting across racial lines” is “different from blacks and whites working together.” Glad you made that clear, Helen. Obviously when you use the words “blacks and whites,” you mean men. So, how do you describe women’s colors?

    “It’s not because women are smarter” goes from the universal, women in general, to the particular, “It’s because black women are minorities in two ways,” including the burden of “gender.” (By the way, Helen, gender is a grammatical term. There’s a fine old English word that connotes male-female. I know you’re squeamish, but the word is s-e-x.)

    Are you saying membership in more than one minority confers some sort of superior way of knowing? If that’s true, why did that young woman commit such a logical howler? Or is logic just a white man’s tool of oppression?

    (By the way, Helen, since that young woman was black and you are a middle-aged white woman, how dare you take it upon yourself to try to explain away her response? Her skin color alone made her a thousand times more authentic than you. Who are you to substitute your interpretation for what she herself realized was a foolish thing to say?)

  • Ymarsakar

    Sounds like you understand that “the arc of the universe is long but it bends toward justice,” (Martin Luther King. Jr.) but can’t stand the idea that you and yours might have to pay a part of the price for helping justice along. Minorities are tired of waiting.

    Which is why you need to justify yourself in the face of God for approving and sustaining the disarmament of black victims and arming criminals and thugs.

    How do you explain this manic need to keep your Democrat party’s slaves in shackles for continued political expediency and power?

  • Ymarsakar

    Even if there are more of us?

    Words mean whatever the propagandists can convince others of.

    Helen knows this, somewhere deep down in a part which she dares not keep in contact with stronger arguments than Leftist idiocy.

  • Ymarsakar

    as Annenberg-funded schools performed no better than other schools

    The Democrats and their followers do not give a damn whether Annenberg performs well or not, whether it produces better results or not. Their imaginary world of justice and social equality does not require results or experimental verification. Facts do not matter to the insane, and they surely do not matter to the subject of propagandists. All that matters is the skill and the resources and will of the propagandist puppet masters, not the subjects, aka the Democrat base.

  • Ymarsakar

    Theirs is not to question why, theirs is to believe and obey.

    Charles, it is important to note that Leftists must be made to feel comfortable. They dislike intellectual and emotional discomfort. And they have an easy solution to that. So long as they get to call us hypocrites, they don’t have to worry about introspection or asking themselves “is this right”. They know it is right, if only because we are wrong and they need not listen to hypocrites who don’t follow their own principles. This is a convenient way to ignore the fact that the Left themselves have no consistent principles, even if they have a consistently anti-American and pro mass murder and pro-atrocity doctrine.

    Leftists, ideologies, and other wannabe believers must have their face smashed into the concrete, by gravity itself, before they can have a chance to comprehend reality. And if the first time is not enough, then the third time must be the charm.

    It is prototypically expectant of the Left, Charles, that they are so intellectually moribund and so full of arrogance for their own prideful disdain of those they deem inferior. They believe that their intellectual or education background gives them some kind of immunity to delusion, to self-denial, or to the machinations of con men. They believe they are above all that, just as they are above hypocrisy, thus they have no need for reflection. All they need is projection.

    It is only when they are psychologically shocked into realizing that there is no coherency to their views, even by the stated parameters that they have been programmed to believe is true. When that happens, they are unable to cope. They will not tolerate the discomfort. They will blame somebody else if they are allowed to, if they have choices. However, when they are faced with no choice but rock bottom, they will be unable to deny the true nature of their own actions.

  • suek

    >>However, when they are faced with no choice but rock bottom, they will be unable to deny the true nature of their own actions.>>

    I think that statement is overly optimistic. I think they’ll go to their graves in denial… At least, most of them.

  • Ymarsakar

    Again, it depends on the level of psychological shock, Suek. Sheik Mommy was all gung ho about being able to resist interrogation and the pansy American soft hearted efforts. But everybody has their limits. Finding it and exceeding it will produce results.

  • Mike Devx

    Well, since you asked for our 2c worth, Book, here’s mine. I’m not trained in any way to be a lawyer, so I could be way off base here…

    My conclusion has been that “Brown vs Board Of Education” is one of the soundest and best decisions.


    Well, let’s start with Plessy vs Ferguson, dealing with the horrifying “separate but equal” class of laws that institutionalized segregation in the South. A Wiki excerpt:

    Plessy v. Ferguson, 163 U.S. 537 (1896), is a landmark U.S. Supreme Court decision in the jurisprudence of the United States, upholding the constitutionality of racial segregation even in public accommodations (particularly railroads), under the doctrine of “separate but equal”.

    Given the powerful and pervasive racism across the country, it’s no surprise that this was the Supreme Court result. Sad, but not surprising.

    In reading your post, Book, the crux of your argument appears to be:

    What made people care, what made them sit up and pay attention, was the fallout from an activist Supreme Court opinion: 1954’s Brown v. Board of Education. The opinion said, as we all know, that it is impossible for separate to be equal. That is silly.

    I would instead point to the 14th Amendment, whose “penumbra effect” conservatives have been decrying for years, especially surrounding the “equal protection” clause in Section I. The entire Section I is the interesting part to me:

    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    I would argue that “separate but equal” is precisely the kind of violation of “equal protection of the laws” that this Amendment should cover. Or perhaps I should say that any penumbra effect would first extend to “separate but equal”. My sense of law and human nature is that “separate but equal” can never be equal. Never, never, never. Which is why I rejected your premise that “of course separate but equal can be made to be work by making them strictly equal”. It’s just not possible. It’s inherently impossible even in a theoretical sense, and in the real world, the intent of any such “separate but equal” system is that the equality part is always a vicious lie, and the separate part, with the intent to exploit The Other and protect The Group, is really the purpose.

    So, in setting up *any* separate but equal system, by its very nature of deliberately separating Americans into different classes codified by law, is a violation of the 14th Amendment. Plessy was wrongly decided, and Brown vs Board of Education was rightly decided.

    So that’s a non-lawyer’s opinion. Since I’m not a lawyer in any way, shape or form, I bet I could be wrong and deserve to be taken to pieces by a correct legal argument. But I didn’t see the legal argument in your post, Book, so I will humbly await anyone who is willing to take my thoughts apart as they might deserve, and I won’t mind at all being wrong, if I am.

  • Mike Devx

    Damn it, I screwed up my italicised hypertext formatting again. Apologies for the bad formatting above.

  • Pingback: Watcher of Weasels » The Makings of a Dictator - GOP Contributors Appear Targeted in Chrysler Closings()

  • Pingback: Soccer Dad()

  • Pingback: Watcher of Weasels » The Irrational President: Barack Obama()

  • Pingback: The Colossus of Rhodey()

  • Pingback: Soccer Dad()

  • Pingback: The Razor » Blog Archive » The Council Has Spoken: May 29, 2009()

  • Pingback: Rhymes With Right()

  • Pingback: Really quick Sunday afternoon round-up and Open Thread()

  • Pingback: The Democrats’ America : Rule by Judges()