Brown v. Board at Fifty Symposium:
The Unfinished Business

On May 17, 2004, the nation commemorated the 50th anniversary of the United States Supreme Court's landmark decision in Brown v. Board of Education. The American Bar Association's Section on Legal Education recently reported that thus far nineteen law schools and the Association of American Law Schools have either already mounted or plan to hold events in 2004 to observe the half-century anniversary of the watershed ruling, and UDC-DCSL joined that group on February 20, 2004, when the law school presented a program on "Brown v. Board at 50: Unfinished Business."

The event began with a keynote address by Charles J. Ogletree, Jr., Professor at the Harvard University School of Law, Chair of the UDC Board of Trustees, author of the recently published book, All Deliberate Speed: Reflections on the First Half-Century of Brown v. Board of Education, and chair of the American Bar Association's Commission on Brown v. Board of Education. Professor Ogletree's inspirational lecture emphasized three principal points. First, he noted that Brown was not merely a case about racial integration of the public schools; more than that, he said, Brown and its companion cases were conceptualized by the lawyers who constructed the litigation strategy as an all-out assault on the entire Jim Crow system of racial segregation, and on the separate but equal doctrine that supported and rationalized it. Professor Ogletree praised those legal pioneers for their dramatic success in dismantling the legal regime of state-sponsored racial segregation, and for ushering in the modern civil rights movement.

Second, after recounting the extended period of "massive resistance" to Brown and describing the current state of the public schools as still segregated and unequal, Professor Ogletree concluded that Brown has not fulfilled its pledge of integrated and equal educational opportunity.

Finally, Professor Ogletree commented that the country has grown tired of efforts to realize the promise of Brown — and of the civil rights movement Brown inspired — to eradicate the effects of the nation's long history of racism. The American people are, he suggested, collectively suffering from a sort of "racial fatigue." He exhorted the law students in the audience to resist this sense of exhaustion, and to move forward vigorously in the tradition of the lawyers who litigated the Brown case a half century ago.

Professor Ogletree's address was followed by a panel discussion, moderated by UDC-DCSL Professor William L. Robinson, on the subject of "Implementing Brown v. Board of Education: Lessons From the Past, Strategies for the Future." Panel members were Hon. David S. Tatel, Judith A. Winston, William L. Taylor, and Ross Wiener. Before his 1994 appointment to the United States Court of Appeals for the District of Columbia Circuit, Judge Tatel was heavily involved in equal educational opportunity issues as the Director of the Office for Civil Rights in the U.S. Department of Health, Education and Welfare in the administration of President Carter, and from 1979 to 1994 as head of the education practice group at the Hogan & Hartson law firm, where he provided representation to school districts, colleges and universities, and educational associations throughout the country. Among other positions, Ms. Winston served as General Counsel for the U.S. Department of Education from 1993 to 2001, with an interruption in 1997-98 when she directed President Clinton's Initiative on Race. Mr. Taylor, a former General Counsel and Staff Director of the U.S. Commission on Civil Rights, has had a long and distinguished career as a lawyer, teacher, and writer in the areas of civil rights and education, and is presently the Acting Chair of the Citizen's Commission on Civil Rights and the Vice Chair of the Leadership Conference on Civil Rights. Mr. Wiener, previously a trial attorney in the Educational Opportunity Section of the Civil Rights Division of the U.S. Department of Justice, is now the director of policy for the Education Trust.

The panelists generally agreed with Professor Ogletree that while Brown succeeded as a catalyst for the widespread legal and social changes that generated the civil rights movement and ended the era of governmentally sanctioned racial segregation, it failed, at the same time, to achieve the more specific objective of ensuring equal educational opportunity. Drawing upon their extensive experiences in the field — particularly, in Mr. Taylor's case, investigations and research studies prepared during his tenure with the U.S. Commission on Civil Rights — and the administrative enforcement efforts of Judge Tatel and Ms. Winston (at the Department of Education and its predecessor agency, the Department of Health, Education and Welfare) the panel members discussed the history of "massive resistance" to the requirements of Brown, and the contemporary persistence and intractability of racial segregation in public education.

The panel observed that in the Supreme Court's 1974 decision in Milliken v. Bradley, the Court declined to authorize federal courts to look beyond school district boundaries in fashioning remedies for racial segregation in public schools, and that in 1973 in San Antonio Independent School District v. Rodriquez, and again in 1982 in Plyler v. Doe, the Court likewise declined to declare access to an adequate public education to be a fundamental right under the Constitution. As the consequence of that combination of holdings, they said, the country has been left with continuing racial segregation, but no mandate for proficient education in the public schools.

The panelists also said, however, that it is important not to despair of the possibility of progress and improvement. Mr. Wiener stressed that educators now know that certain techniques work in the public school setting; the techniques include high expectations clearly communicated to students, competent teaching coupled with parental involvement, and individual and systemic accountability. All of the panel members strongly agreed that, despite obstacles, it is imperative to maintain the national commitment to educational opportunity and excellence for every American.

The event was organized by the law school's Brown anniversary task force. The group is chaired by Professor Robinson, and members include Dean Katherine S. Broderick and Professors Susan Waysdorf, Derek Alphran, Christine L. Jones, James C. Gray, Jr., and William G. McLain. The task force anticipates that additional Brown commemorative programming will be presented during the fall 2004 semester, in conjunction with the Howard University School of Law.