What Brown V. Board of Education Should Have Said: The Nation's Top Legal Experts Rewrite America's Landmark Civil Rights Decision

Front Cover
Jack Balkin, Bruce A. Ackerman
NYU Press, 2001 - Law - 257 pages

Legal experts rewrite the landmark court decision

Brown v. Board of Education
, the Supreme Court's landmark 1954 decision ordering the desegregation of America's public schools, is perhaps the most famous case in American constitutional law. Criticized and even openly defied when first handed down, in half a century Brown has become a venerated symbol of equality and civil rights.

Its meaning, however, remains as contested as the case is celebrated. In the decades since the original decision, constitutional interpreters of all stripes have found within it different meanings. Both supporters and opponents of affirmative action have claimed the mantle of Brown, criticizing the other side for betraying its spirit. Meanwhile, the opinion itself has often been criticized as bland and uninspiring, carefully written to avoid controversy and maintain unanimity among the Justices.

As the 50th anniversary of Brown approaches, America's schools are increasingly divided by race and class. Liberals and conservatives alike harbor profound regrets about the development of race relations since Brown, while disagreeing heatedly about the proper role of the courts in promoting civil equality and civil rights.

In this volume, nine of America's top constitutional and civil rights experts have been challenged to rewrite the Brown decision as they would like it to have been written, incorporating what they now know about the subsequent history of the United States but making use of only those sources available at the time of the original decision. In addition, Jack Balkin gives a detailed introduction to the case, chronicling the history of the litigation in Brown, and explaining the current debates over its legacy.

Contributors include: Bruce Ackerman, Jack M Balkin, Derrick A. Bell, Drew S. Days, John Hart Ely, Catharine A. MacKinnon, Michael W. McConnell, Frank I Michelman, and Cass R. Sunstein.

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What Brown v. Board of Education should have said: the nation's top legal experts rewrite America's landmark civil rights decision

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Yale Law School professor Balkin and a stellar list of constitutional scholars here rewrite the famous Brown v. Board of Education decision, which outlawed public school segregation. Using only ... Read full review

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Many facets of the book seemed well researched with very well documented provenance. However, there arises some question about the role of Ester Brown in origins of the Topeka case. While members of the Topeka Chapter of the NAACP were well aware of the case in Merriam, Kansas, it is questionable whether that case had a direct connection with the Topeka case. Most facts seem to point out the early beginnings of the Topeka case began in 1948 with several protest directly with the Topeka Board of Education. In 1948, Mr. Walter White, Secretary of the National NAACP gave a speech in Topeka, predicting the eventual end of segregation. Several attempts failed to get the board’s agreement to desegregate Topeka’s elementary schools. The local chapter used every tool they had from a writ of mandamus a city wide petition and a direct plea by Mr. McKinley Burnett, Chapter President, which also failed to sway the Topeka Board of Education. On August 29, Mrs. Lucinda Todd forwarded a letter to Walter White, reminding him that he was a guest in her home but also discussions about the Topeka situation. Additional letters from Attorney Bledsoe followed and represent the beginning of the Topeka New York connection that eventually lead members of both groups to meet in the Home of Lucinda Todd. It was here members of the NAACP planned specific strategies for the Topeka case from needing plaintiffs to the strategy for taking the case to a three Judge Federal Court. One important note about Topeka; the old Monroe School now a national historic site was far more modern, built much better than the nearest white school; Van Buren. Both stand today and essentially appear as they did back in 1950.  

Contents

The History of the Brown Litigation
29
A Guide to the Opinions
44
Jack M Balkin judgment of the Court
77
Drew S Days III concurring
92
Frank I Michelman concurring in part and concurring
124
Catharine A MacKinnon concurring in the judgment
143
Michael W McConnell concurring in the judgment
158
Cass R Sunstein concurring in the judgment
174
Comments from the Contributors
201
The Constitution of the United States
233
Table of Cases
247
Copyright

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About the author (2001)

Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment at Yale Law School, and the Founder and Director of Yale’s Information Society Project. He is the author of numerous books and the editor of What Brown v. Board of Education Should Have Said (NYU Press, 2002). He lives in New Haven, CT.

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