Brown v. Board of Education

Legal of Cultural Appeal?

By Alissa Frazee, Hope College

To understand a particular social phenomenon it is often helpful to search the past and compare and contrast between different generations. The Black Lives Matter movement (BLM) officially began in 2012 after the death of Travon Martian.[1]But what are the roots of this movement? How can we better understand what the BLM movement demands and what they intend to achieve by drawing historical comparison and contrast? This essay will focus on the tactics that the leaders of the National Association for the Advancement of Colored People (NAACP) used and how they differ from the tactics that the leaders of the BLM movement have employed, by looking at the NAACP’s greatest achievement; Brown v. Board of Education. The NAACP’s strategy focused on using the legal system to bring about change while the BLM movement makes a cultural appeal.

The NAACP Strategy

NAACP lawyers
NAACP Lawyers for Brown (Courtesy of NAACP Legal Defense Fund)

The NAACP was the leading voice emerging in 1909 for Civil Rights organizations. The NAACP was a political group which lobbied for “favorable legislative, judicial, and executive action”[2] they believed the surest way to bring about change was through government action. This attitude of “the prospects for advancing black civil rights through the legal system”[3] inspired and a man by the name of Charles Hamilton Houston. In 1934 he became the leading figure to charter the paths that led to Brown. A judge said of Houston that he “was the chief engineer and the first major architect of the twentieth-century Civil Rights legal scene.”[4] In 1934, the NAACP chose Houston to be their legal counsel.[5]

charles hamilton houston
Charles Hamilton Houston (Courtesy of Flicker)

Houston was the mind behind the sociological argument that the Brown case put forth. His key example was that segregated schools had harmful psychological effects on black students. The brilliance of this strategy was as legal scholar Mark Tushnet remarked, “the sociological argument was Realist to the core, Law, even constitutional law, was social policy. Social policy had to be understood as it actually operated.”[6] The NAACP lawyers argued that even if black schools were equal in their facilities and instruction they were not equal because “unconstitutional inequality inheres in the retardation of intellectual development and distortion of personality which Negro children suffer as a result of enforced isolation in school from the general public school population.”[7]Although Houston died in 1950, his ideas were passed on to other lawyers in the NAACP. The rhetoric they used, incorporating a societal concern, employed legal realism, resulting in break-through success.[8]

The Brown ruling attempted to over-turn the 1896 Plessy v. Ferguson case. The Supreme Court ruled that passengers in Louisiana railroad cars could be transported ‘separately’ but still ‘equally.’ The ruling stated that the Fourteenth Amendment was not being violated by the mere act of separating passengers. The message taken away from Plessy was “that a racial classification was like any other classification under the Fourteenth Amendment—it was constitutional if reasonable—and that a law separating the races was, in the nature of things, an appropriate exercise of the state’s police power.”[9] This landmark decision confirmed the legality of segregation.[10]  The NAACP had a clear and definite goal of over-turning this ruling, by the same method that it had been established—by using the legal system.

The Supreme Court first heard arguments for Brown in December 1952.[11] The case combined five different lower court cases and went through three separate phases. Thurgood Marshall, as the head of the NAACP’s Legal Defense Fund, argued that the Fourteenth Amendment had originally been created to end segregation. However, Justice Fred M. Vinson pointed out, at the same time that Congress passed the Fourteenth Amendment they sanctioned segregation in the District of Columbia. Justice Felix Frankfurter persuaded the lawyers of the NAACP to go back and gather more evidence and demonstrate that segregation had an adverse impact on black children.[12] Finally, after the third stage the Court decided to strike down Plessy.[13] Earl Warren, the Chief Justice, stated

“Does the segregation of children in public schools solely on the basis of race, even though the physical facilities and other ‘tangible’ factors may be equal, deprive the children of the minority group of equal education opportunities? We believe that it does.”[14]

The NAACP’s legal strategy had prevailed.

Legal Strategy Questioned

Despite the tangible results that the NAACP achieved, there were many in the Civil Rights Movement who disapproved of the legal strategy.[15] In 1960 students began to question “the older Negro” who “looked only to the courts for help”[16] They complained that the legal redress was far too slow for the demands of their time. Students began to take action of their own by staging sit-ins at ‘white only counters.’ They believed their highly televised sit-in demonstrations were a more direct approach to the problem. They were did not want to rely on the slow and, in their opinion, unreliable judicial legitimization, “rather than focusing on changing particular laws, the students spoke of drawing attention to offensive practices,”[17] They were fighting for the same goal as the NAACP but they doubted that the legal strategy would bring about true change.

sit-ins 2             Student Sit-ins 1960 (Courtesy of Veterans of the Civil Rights Movement–Images of a People’s Movement)

Realizing the dramatic impact the students were having on the cultural image of the Civil Rights Movement, the NAACP tried to pass off the sit-ins as one of their branches. The lawyers had to admit the optimism of Brown was waning by 1960. So they “emphasized the connections between their achievements in the Supreme Court and the current burst of protests, arguing that without Brown, the sit-ins would never have happened.”[18]The Legal Defense Fund President claimed that the students would not have had the confidence to demonstrate so boldly against segregation without the 1954 Supreme Court ruling. The NAACP tried to make the sit-ins work toward some legal challenge to discrimination. They maintained that “to successfully break down the practices of segregation and discrimination and undermine the legal support of these practices through the law is by the process of having such laws and ordinances declared unconstitutional.”[19] The legal appeal was their focus from the beginning.

The BLM Approach

The Black Lives Matter movement is not focusing on the legal strategy instead making a cultural appeal. The BLM official website does not use legal rhetoric. They do not advocate for repealing specific racist laws, rather what they claim are racist attitudes in the social structure of America. Like the skeptical students of the 1960s, protesters for the BLM movement distrust legal ‘results.’ A journalist interviewing two prominent BLM figures, Johnetta Elzie and DeRay Mckesson, reported that “if you bring up legislative reform, they will point out that the Voting Rights Act of 1965 has been all but rolled back and that their aims go well beyond small changes to the criminal-justice system.”[20] Although they may feel the Voting Rights Act has ceased to function they don’t argue for replacing or reviving it. Instead, Mckesson and Elzie recite the words of Dr. King “a riot is the language of the unheard.”[21] They intend to use social media language and protest language, but not legal policy.

BLM leaders
BLM Leaders (Courtesy of Yes! Magazine)

Part of the reason that the BLM does not focus on striking down a particular racist law would be that fact that they no longer exist. A person would be hard pressed to find a law currently in practice that can be proved to be clearly and explicitly racist. The BLM movement, echoing the students of the past, makes a cultural appeal. Their protest cries are aimed at society’s attitudes toward blacks, specifically police officer’s attitudes, they shout ‘hands up don’t shoot’ and ‘I can’t breathe’ but do not make cries to overturn laws. As one article describes them they are an “internet-driven Civil Rights Movement,”[22] their support depends on social media and not on court rulings. For the NAACP Brown represented “the most potent, clear, progressive, and compelling ethical statement of racial policy in the twentieth century.”[23] The Black Lives Matter movement has not taken the strategy of the NAACP. They can have no legal victory of the same kind of magnitude that Brown had because they are not advocating for such tangibly evident change.

[1] “Black Lives Matter,” last accessed, April 3, 2016, http://blacklivesmatter.com/about/.

 

[2] Waldo E. Martin Jr. Brown v. The Board of Education: A Brief History with Documents (Boston: Bedford/St. Martin’s, 1998), 9.

[3] Martin, Brown v. The Board of Education, 9.

[4] Martin, Brown v. The Board of Education, 9.

[5] Martin, Brown v. The Board of Education, 10.

[6] Martin, Brown v. The Board of Education, 11.

[7] Martin, Brown v. The Board of Education, 138.

[8] Martin, Brown v. The Board of Education, 10.

[9] Cushman, Black, White and Brown, 47.

[10] Cushman, Black, White and Brown, 47.

[11] Martin, Brown v. The Board of Education, 10.

[12] Lenneal  J. Henderson Jr., “Brown v. Board of Education at 50: The Multiple Legacies for Policy and Administration,” Public Administration Review 64, (2004): accessed April 3, 2016, http://0-search.proquest.com.lib.hope.edu/docview/197174667?accountid=11471.

 

[13] Martian, Brown v. Board of Education, 30.

[14] Martian, Brown v. Board of Education, 89.

[15] Christopher W. Schmidt, “Divided by Law: The Sit-ins and the Role of the Courts in the Civil Rights Movement,” Law & History Review 33, (2015), doi: 10.1017/S0738248014000509.

 

[16] Schmidt, “Divided by Law,” 113

[17] Schmidt, “Divided by Law,” 114.

[18] Schmidt, “Divided by Law,” 120.

[19] Schmidt, “Divided by Law,” 125.

[20] Jay C. Kangamy, “Our Demand is Simple: Stop Killing Us,” The New York Times, May 4, 2015. http://www.nytimes.com/2015/05/10/magazine/our-demand-is-simple-stop-killing-us.html?_r=0.

[21] Kangamy “Our Demand is Simple: Stop Killing Us.”

[22] John Eligon, “One Slogan, Many Methods: Black Lives Matter Enters Politics,” The New York Times, November 18, 2015, http://www.nytimes.com/2015/11/19/us/one-slogan-many-methods-black-lives-matter-enters-politics.html.

[23] Henderson, “Brown v. Board of Education at 50.”

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