The Brown opinion forever created in the minds of American society that black people are not equal to white people based on the moral suppositions of the Constitution.
~ Ellis Washington
Racial integration was the battle cry of the hour in the 1950s. No one thought about what would happen to black schools.
~ Dr. Margaret Just Butcher, board member, Washington, D.C., Public Schools
Last week, I was visiting an excellent website by one of my most avid supporters called, “Center for a Constitutional Republic.” Of the many interesting article and book links he features was an article that I read many years ago by one of my intellectual mentors, Dr. Thomas Sowell, “The Education of Minority Children.”
In this classic 1974 article, Sowell chronicles the true history of black educational achievement pre-1954. Brown v. Board of Education (1954), that landmark decision of the United States Supreme Court, overturned earlier rulings going back to Plessy v. Ferguson (1896) by declaring that state laws which established separate public schools for black and white students denied black children equal educational opportunities.
Brown is arguably the most important and venerated Supreme Court decision of the 20th century and tantamount to holy scripture by most liberals. Nevertheless, Sowell’s article obliterates the primary assumptions of Brown v. Board of Education – that black children must be allowed to attend public school with white children in order to get a good (or equal) education.
Back in 1899, in Washington, D.C., there were four academic public high schools – one black and three white. In standardized tests given that year, students in the black high school averaged higher scores than students in two of the three white high schools.
This was not a fluke. It so happens that I have followed 85 years of the history of this black high school – from 1870 to 1955 – and found it repeatedly equaling or exceeding national norms on standardized tests. … [Dunbar High School's] academic performances on standardized tests remained good on into the mid-1950s.
The year 1954 was a critical one at Dunbar and for black high schools all over America as black parents foolishly believed the utopian propaganda of Brown and desperately tried to integrate their kids into white schools to get a “good education.” It was all a heartbreaking Faustian bargain white liberals made with black elites like the NAACP, Thurgood Marshall and the civil-rights establishment – a deal with the devil my people have been paying dearly for over 54 years as black educational achievement plummets year after year.
Black people, as well as the press, liberals and conservatives alike, thought the unanimous opinion in Brown would usher in the classical age of black educational achievement – but did it? Not in the least. Brown was the right decision, but utilized the wrong judicial reasoning because it failed to rely on the explicit text of the Constitution and thus became a terrible miscarriage of justice, a treachery against black people that evolved into an insurmountable barrier to their aspirations to obtain quality education that exist to this day.
Outraged at Brown’s disastrous and racist legacy, four years ago I wrote a series of law review articles highly critical of Brown that received some notice from the academy.
Below are the reasons I outlined for the shameful legacy of Brown:
- There is not a single judicial precedent in the entire Brown opinion. The Court merely applied the Due Process and Equal Protection Clauses of the 14th Amendment to the states. This judge-created rule, which originated in the 1940s, has no legitimate constitutional foundation and is referred to as the incorporation doctrine.
- The Brown opinion was based on the political pressures of the day, not on universal principles like the rule of law, natural law, morality, equality under the law, justice, or truth.
- The Brown opinion was based on the false social science theories of racial relativism (all people are equal no matter what they do) and radical liberalism (separation of morality from public policy). The Court even cited what later proved to be the flawed scientific research of Drs. Kenneth and Mamie Phipps Clark. Their research on color and dolls was critical in persuading the Court to adopt the then-radical public policy remedy of racial integration of the public schools in America. Once again, right decision, wrong reasoning.
- The Brown opinion was founded on purely positive law grounds (secular, man-made law), rather than on natural law grounds (morality/legality integrated in the Judeo-Christian intellectual tradition) or on constitutional grounds (particularly the Fifth Amendment Due Process Clause, and the 14th Amendment Privileges and Immunities and Equal Protection Clauses).
- The Court refused to utilize any of the arguments against the evils of racial segregation that the abolitionists had used for over 130 years because their ideas were based on morality and affirmed the dignity of all God’s creation – including black people. The Court thought that the abolitionists’ reasoning that black people were equal to white people based on natural law, moral, religious or humanitarian grounds as fanatical, provincial and unsophisticated.
- The humanistic and New Age language the Court used conveyed the idea that segregation in education must end in America because to keep segregated schools based on race would “hurt the feelings” of “Negroes,” and their “self-esteem” and “educational success” would be hindered. In one telling passage, the Court quoted from the researcher’s brief, which was included in the arguments the NAACP presented to the Court: “To separate them from others of similar age and qualifications solely because of their race generates a “feeling of inferiority” as to their “status in the community” that may “affect their hearts and minds in a way unlikely ever to be undone.”
This type of pop psychology masquerading as legal reasoning the Court used in the 1954 Brown decision was totally fraudulent then as it is totally fraudulent now – lacking in any legitimate judicial precedent, a valid historical context, or plausible constitutional foundation.
The unintelligent public policy presupposes that black people, prior to 1954, were totally uneducated, ignorant and (in slave dialect voice):
“Just waiting for Masser to open up the school house door so us poor Negroes can finally get educated by going to school with the white folks.”
This logic that is beyond the pale.
The horrible assumptions Brown makes about black people should be publicly denounced by all rational persons of any race, class, or creed. But alas, I am sad to report that the few sounds besides Dr. Sowell and my voice crying out in the wilderness for Reason regarding Brown is their – the judiciary, Congress, the executive branch, the teachers unions, the academy, the legal community, the civil-rights activists, race merchants, poverty pimps – silence of the lambs.
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