All But Overturned: America's Nullification of Brown v. Board of Education

Abstract

The Supreme Court’s decision in Brown v. Board of Education striking down the “separate but equal” doctrine first announced in the Plessy v. Ferguson case in 1896 stands out as a watershed moment in the struggle of black Americans for full equality in American society. It is now universally celebrated as a momentous moment in the history of American justice – a time when the Supreme Court, in the face of a shameful legacy of racial discrimination, reaffirmed its commitments to the highest ideals of its basic creed: “We hold these truths to be self-evident, that all men are created equal, and they are endowed by their Creator with certain unalienable rights, among those life, liberty, and the pursuit of happiness.” These commemorations treat America’s racial legacy as an unfortunate, but anomalous, chapter in American history that has been thankfully corrected by the courage of audacious lawyers and their plaintiffs and the wisdom of a majestic Court. These self-congratulatory exhortations persist despite the fact that many public school systems are characterized by a degree of racial segregation and denial of equal educational opportunity not unlike what existed during the period of de jure racial segregation. However, the current discourse about America’s “crisis in education” rarely, if at all, makes any reference to the persistence of racial inequities – a testament to the degree that the nation has “moved on” from the era of school desegregation. As a result, the ideal of equal educational opportunity that Brown symbolizes remains an elusive ideal for far too many African Americans.This paper argues that the simultaneous celebration of Brown while dismantling its substance is a vivid illustration of the doctrine of nullification – an ideology that asserts the prerogatives of states to resist the perceived unconstitutional encroachments of federal power. These arguments had particular salience in Southern states, who defended to the death their rights to hold black men as slaves. But these arguments did not die in the embers of the Civil War. I argue that the doctrine of nullification – far from being an historical artifact of the antebellum period, not only persists, but represents the “norm” when it comes to America’s treatment of black Americans. This thesis has applications that extend not just to the Brown decision, but to other recent attacks on the landmark achievements of the civil rights era of the 1960’s.