Rick Banks: The Court in Brown could have, rather than relying solely on the Equal Protection Clause, it could have articulated a right to education of some sort, right? That there’s a federal constitutional right to an education of some particular quality, but the Court declined to do that.

Rich Ford: This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day.

I’m Rich Ford, with Pam Karlan. Please subscribe or follow this feed on your favorite podcast app. That way, you’ll have access to all of our new episodes as soon as they’re available. Well, it’s the 70th anniversary of Brown vs. Board of Education. The landmark case that began the desegregation of public schools in the United States and the end of Jim Crow segregation, and we have the perfect guest to talk about the legacy of Brown and where we are today, our colleague, Rick Banks, who’s written an important and fascinating essay about the legacy of Brown versus Board of Education. Of course, one of the most celebrated cases in the history of the Supreme Court and a decision that many people credit as one of the impetuses for the modern civil rights movement, but Professor Banks suggests that its legacy today is perhaps a bit less impressive than many of you might suspect. Rick, welcome to the show.

Rick Banks: It’s a pleasure to be here with you.

Rich Ford: So Rick, tell us about Brown versus Board of Education and why it is you think that its legacy is less impressive than some people might believe today in 2024.

Rick Banks: So, we might think of Brown along two different dimensions. One is its significance in American society and culture generally, and in that regard, Brown was truly transformative. It was the beginning of the end of the formerly segregated system known as Jim Crow. We cannot overstate the significance of that.

That’s a big change, but the other thing that we might expect Brown to have transformed is the primary and secondary schools in the United States, and in particular, we might expect Brown to have created better opportunity for the Black children and the other minorities and other disadvantaged students who were, and on that score, Brown has not been nearly as effective.

Rich Ford: So, tell us a little more about that, Rick. Brown hasn’t been as effective in providing opportunities for those children. Can you give us some examples or some statistics about that?

Rick Banks: Well, I think that the important thing to start with is the decision in Brown itself.

This is monumentally important, but then the question is always what happens after the decision? What actually happens on the ground in the multiple cases, for example, that were a part of Brown? Sometimes, when I’ve taught this, I would bring a friend in who actually is a Stanford professor who’s African American, who grew up in the South, and he will talk about being in the very first class of students who had the opportunity to go to a desegregated school, and then the students will ask, well, what year was that? And he’ll say, oh, that 1960s, and they’ll say the 1960s? I thought Brown was decided in 1954, but the reality was that there was virtually no desegregation for ten full years until the Civil Rights Acts were passed in 1964, and that’s when the first efforts to desegregation began in earnest, so we had ten years where virtually nothing happened. Then we had a period, from the 60s through the 70s, where we did have some desegregation, and I think it’s fair to say that now or since the 80s, perhaps, we’ve been in retreat in terms of the effort to desegregate the schools.

Pam Karlan: I mean, one thing that has always struck me, and you were kind of alluding to this, is, you know, if you look at the five school systems that were actually at issue in Brown itself, one of them just closed the schools altogether, rather than desegregate them, and Prince Edward County, Virginia just closed its schools entirely, and that era of kind of massive resistance, I mean, you started us off by saying how important Brown was as a signal of everything. It was also the beginning of the modern Supreme Court as an institution that gets a lot of respect out of America, and I feel like they’re often kind of living off the fumes of Brown, if you will.

Rick Banks: Living off the fumes of Brown, yes. Well, and those fumes, in fact, were only produced by the Court declining to enter the fray during the era of massive resistance, as you all know that, you know, the Southern Manifesto was an embodiment of the resistance of the South. The legislators there made very clear that they thought the decision in Brown was illegitimate.

The Supreme Court stood up to that in a way, right, and became sort of the hero in this story, but the irony is that they only became the hero through not actually engaging on the ground with the challenges of trying to create integrated and quality schooling.

Pam Karlan: Yeah, I mean, in 1964, 1.4 percent of black schoolchildren in the South attended a school that had even a single white student in it, right? So, that’s ten years after Brown.

Rick Banks: Yeah, and if you look even closer in the years immediately after Brown, we can count in single digits the number of black students who’ve been permitted to go to schools that had any appreciable number of white students, so that’s a checker sort of history at best in terms of desegregation.

Pam Karlan: And yet, Justice Thurgood Marshall, who argued Brown for one of the groups of plaintiffs in Brown, he said the pessimistic view, it’s going to take ten years to do this, and now here we are celebrating the 70th anniversary of Brown, and we still haven’t achieved it.

Rick Banks: Yeah, and it does seem like the high hopes that people might have had when Brown was young: that it will just take a number of years and will overcome the resistance. As Brown becomes a senior citizen, you know, perhaps those high hopes have transitioned into resignation or frustration now.

Rich Ford: Yeah, Rick, I think you and I are roughly the same age, and I know I attended schools that were under court order to desegregate in the late 1970s and 1980s, and that was a period of time in which the schools were getting less segregated as a result of those court orders, so we had that ten years of massive resistance where nothing happened. Then some things did start to happen and so you could imagine why people would have felt optimistic. You know, I think my parents were cautiously optimistic that things were improving on the score, so what happened?

Rick Banks: Wow, that’s a big story, and the way I think of it is that the… we have two sets of resources here that are really constraining progress. One set of resources is money, right? The funding for schools and the other set of resources is people, families, and students, and to have effective schools for all, I think we actually do need to try to bring all of those together and not have the funding disparities and not have people segregated based on their income levels and affluence and so forth, but we haven’t been able to do that, and the underlying reason, I think, or 1 factor that doesn’t get enough attention for why we haven’t been able to do that is that we’ve had an extraordinary growth of economic inequality in the period since Brown. The last half-century, we’ve seen a starker growth in inequality than any time during our lifetimes, and we’ve also seen education become ever more important in determining people’s outcomes in life, and so, as a result of this, parents have completely changed their strategies compared to, you know, a century ago or 1940 or 1950, and parents have really doubled down on education, both in terms of their time, in terms of their resources, in terms of where they decide to live and all of these factors have, you know, led to schools being less equal across classes and races now than they were 50 years ago.

Pam Karlan: So there are some parents who do have those choices, right? Upper middle-class, middle-class parents have the choice of where to live. Parents who aren’t affluent don’t really have that choice, and one of the ironies is that the Supreme Court is deciding Brown at exactly the moment that there’s this explosion of the suburbs.

There’s white flight from inner cities. I mean, one of the examples I use when I teach this stuff is that the places that had the most successful desegregation in the 70s were places like Charlotte, Mecklenburg because they had already consolidated the center city schools in Charlotte with the Mecklenburg County schools, so that you couldn’t really live close to Charlotte and not live in the school district that was going to be desegregated and they kind of used pie wedges to get there, but in places where you had, I mean, think about Detroit and what happens in Millican, you have incredibly affluent white suburbs of Detroit, Grosse Pointe and the like, immediately smack up against Detroit, and yet you can’t come up with a way of desegregating those schools because of the idea of local control, and that really was the Supreme Court’s decision that shut down the ability to have that kind of desegregation in large northern urban areas. I mean, when you look at southern school systems, a lot of those are still desegregated because they only had three schools in the, you know, three high schools in the county, so it was easy to kind of mix students up, but you can’t really do that in the north.

Rick Banks: No, that’s exactly right, and just to be clear, in the city like Detroit or in Cleveland, where I’m from, there were ways to desegregate the schools, but the impediment was the idea of local control that created a boundary or a barrier, so that we were not legally permitted to do what, frankly, would make a lot of sense from the standpoint of providing education to all the citizens of the state, and that’s a, you know, local control is just a stand-in for the ways in which the law and courts have allowed people to segregate themselves and also allowed the resources to be segregated as well.

Pam Karlan: You know, we started off by talking about how the Supreme Court gets the school desegregation process rolling, but if you look at where the Supreme Court later comes down in cases like the Parents Involved case, they stop the desegregation of schools rather than starting it, and maybe you want to say a little bit about cases like Parents Involved.

Rick Banks: Yeah, so, Parents Involved is the case where the Supreme Court held that strict scrutiny should apply to efforts to integrate schools if they take into account individuals’ race in doing so, and many people decried Parents Involved as a perversion of Brown and a distortion of the meaning of Brown. Frankly, I don’t know if that interpretation is correct, though, because the reality is that Brown v. Board of Education was neither as progressive and anti-subordination-oriented as the people on the Left want, nor was it as colorblind as the people on the Right one want, and the hallmark of the decision is precisely that the decision was extremely narrow. It was extremely narrow, and the most plausible reading is that all it prohibited was the formal segregation of the schools in order to promote Jim Crow. That’s the… or taking account of students’ race in order to promote Jim Crow.

That’s all it prohibited, and efforts to make it more than that on either the Left or the Right, frankly, are, you know, after the fact, interpretations about what people want Brown to mean rather than what the Justices actually wrote, and part of that, one more point, part of the frustrating narrowness of the decision is that the Court spoke about the harm of segregation almost as though it was inadvertent. The Court gave no story or history about what Jim Crow was really about. The reader of the opinion could be forgiven for thinking that the harm was inadvertent. There was no sense that the degradation of Jim Crow was at the core of the law and the core motivation for such laws.

The Court gave none of that history, of course, because the Court wanted a unanimous opinion, but, you know, my view has shifted about the cost and benefits of that trade-off. The Court went for unanimity, but at the cost of having a fuller account of what the actual harm was that was being addressed, and the consequences of that is what we’re living with today, frankly, which is that that may Brown vulnerable to being co-opted by people who, you know, some people have said they might not have signed onto Brown initially.

Pam Karlan: So, can I just ask you one thing about this? Because one of the many wonderful things that you have done with your career is your book on marriage, which is just a terrific read, and I’m kind of comparing how the Supreme Court talks about this in Brown with what they do a dozen years later in Loving against Virginia, which is a case where they really do come right out and say, what’s been going on here is about white supremacy, and it’s got to stop, so, this is a different one from the other.

Rick Banks: Yeah, what I tell my students is that Loving is the only case where the Supreme Court has ever used the term white supremacy in a disparaging way, so that’s what Loving was, but the Court, of course, had an opportunity to take a case comparable to Loving at the same time as Brown, which it declined to do, right? And the difference there is, of course, you know, the cultural context surrounding the decision. Things changed in ways that, you know, might’ve seemed unimaginable, frankly, to people living at the time between 1954 and 1967. When you think about the, you know, going from the post World War II era and then going into the civil rights era, Civil Rights Act of ‘64, Voting Rights Act. We had the Fair Housing Act on the horizon.

That was an extraordinary period of tumult, and, you know, the Court felt able to talk about miscegenation laws in a way it did not feel able to talk about segregated schools in 1954, and part of that, of course, is that miscegenation laws were already on the way out. Countries, I’m sorry, states were already rolling back those laws.

There had been many more states that had them. I think there were 14 by the time Loving was decided. There had been 25 earlier. At the time when Brown was decided, the, you know, evolution of laws regarding school segregation was at a much different point. Segregation was widespread throughout the south. We hadn’t begun the process that we had in Loving.

Rich Ford: Yeah, Rick, isn’t another reason that undoing de facto school desegregation or segregation, it was a much more complicated and daunting enterprise than getting rid of something like an anti-miscegenation law, so in the… when the efforts to desegregate the schools really got going, you know, and they did get going for a period of time when they were real assertive efforts, but that required a huge administrative apparatus and cooperation with local school districts, and, you know, fairly elaborate consent decrees and money as you mentioned, those were, you know, impediments that the Court didn’t face in a case like Loving.

Rick Banks: No, that is very true. You know, Brown required some enforcement, and this is an issue that we’ve struggled with as a society. You can’t have the Court simply make a decision and expect that effective or integrative schooling will result, so one of the challenges that we have to think about as a nation is, you know, how much is racial justice and education worth?

How much is having a good education for all children, irrespective of where they’re born and who their parents are, how much is that worth for us? Are we willing to give up some of the local control? Are we willing to give up some of the autonomy that people have to keep their money in their district?

Are we willing to give up some of those things or not? And sadly, I mean, maybe we’re not, right? I think that’s a mistake, though, because, you know, ultimately, when we have these disparities in education, we all bear the cost of them as a nation, so if we’re all going to bear the cost, it would be sensible for us all to pitch in and try to create a solution.

Rich Ford: This reminds me of the case that came down roughly the same period of time as the Millikan case, which limited the remedies to local jurisdictions, and, you know, I will say, the doctrinal justification for limiting those remedies to local jurisdictions is weak, if not non-existent. You know, the plaintiff in the case of Millikan was the state of Michigan, and those local school district boundaries were laws of the state of Michigan, so the idea that it would be limited to Detroit was really quite questionable, but another case that came down was San Antonio versus Rodriguez, which you could almost see is working hand in hand with Milliken to undermine the potential of Brown, and in that case, the Court declined to find that unequaled school funding violated the Constitution, so now, not only do you have racially segregated schools that are allowed to continue under milk, and you’ve got radical differences in funding that are allowed to continue under the Rodriguez case.

Rick Banks: Yeah, so again, this shows the narrowness of the ruling in Brown. The Court in Brown could have, rather than relying solely on the Equal Protection Clause, it could have articulated a right to education of some sort, right? That there’s a federal constitutional right to an education of some particular quality, but the Court declined to do that, and the court in San Antonio closed that door in a way that directed further litigation to state courts because the sentence was that the federal constitution would not provide relief under either the Equal Protection Clause or the Due Process Clause.

Rich Ford: So, Rick, one of the consequences of the litigation posture around Brown and the way the opinion was crafted is that the primary mechanism for achieving racial equity in the schools has been through desegregation or integration, and it’s arguable that there are many people who think that there are other ways to achieve racial equity that perhaps have gotten a short shrift, at least in the legal landscape. What do you think about that?

Rick Banks: Yeah. You’re correct. There are efforts that are still focused on integration, and we have lots of activists and lots of lawyers who are out there, and some people work within the government who are trying to create more integrated schools, but then, you also have this other reform wing, which tends to be more conservative, which is trying to promote people quality education often through charter schools or other sorts of private schools or through choice programs using vouchers that are operating completely without regard to integration or desegregation, and, you know, those are reform efforts that are happening throughout the country. Some states are farther ahead than others.

Some of the states that are far ahead, at least according to their proponents, have actually produced better outcomes for poor children and for racial minority children, black and brown children, than other states that don’t have as much choice, but so that’s the claim. The empirical evidence, to the extent we have it on public schools versus charter schools, is that you can have good schools from either category and poor schools from either category. There’s a big range of public schools and there’s a big range of charter schools in terms of their effectiveness.

Rich Ford: Another question that people in favor of integration often raise is that integration, at least socioeconomic integration, promotes some positive educational outcomes, arguably in and of itself, so that might be an argument for continuing to push on the integration side.

Rick Banks: Yeah, this is an issue that I was thinking about when I talked about seeing families and students as resources. It is the case that the composition of the school matters for the achievement of the students within the school, so if you have a group of poor students and the class is all poor students, that, frankly, is probably not as good of a learning environment as if you were to have some middle income or even upper-income students mixed into that mix, so we need some diversity, not only in terms of race but also in terms of income and socioeconomic status and parents educational levels.

Those higher-status families can bring all sorts of benefits to educational environments.

Pam Karlan: So, one of the things when you talk about like charter schools and vouchers is that that throws a lot of responsibility back on to the parents of individual school children to think about how to vindicate their kids’ rights, and, you know, it leads me to think of comparisons back to some of these stories of, you know, I think about the book Silver Rights, which is about the folks who integrated the one family, the Carter family in Sunflower County, Mississippi, who was willing to put their kids on the line to, you know, to desegregate the schools in this very conservative rural county where the, you know, “the Little Rock Nine,” and is it really reform if what we do is we throw the responsibility for seeking good schools back onto individual parents in that way?

Rick Banks: Yeah, I am hesitant to embrace choice as a solution, personally, because when you look at other nations and the nations that have good primary and secondary systems and that do well on these national exams and so forth, they don’t rely on choice. They actually have a system that works well for the mass of students.

What we don’t have is that system that works well for the mass of students. We have a system that’s really riven with ratio and socioeconomic disparities in the opportunities that children have to learn, and so that leaves us in the world of the second best. In the world of the second best, I’m also hesitant to dismiss programs that rely on choice or programs that rely on vouchers or that rely on charter schools because it’s really an empirical question as to whether those programs will be better or comparable to the admittedly subpar opportunities that are currently offered through the public system in jurisdictions throughout the country.

Rich Ford: So one of the legacies of Brown has been that for many decades, we put a great deal of focus on the integration of public schools. Now, for reasons that were quite good and understandable, but in today’s environment, you seem to be suggesting that we might need a mix of approaches, some of which would potentially involve integrated schools, but others of which might focus more on educational quality choice and what have you, and perhaps we’re in a bit of a… we’re sort of stymied because people have an almost reflexive reaction to the debate, rather than one that’s more cooperative.

Rick Banks: I think that’s right that we do need some experimentation, and we need experimentation. We need collection of evidence. We need people to be able to evaluate the evidence with an open mind and to really be pragmatic and solution-oriented, so I think that’s all true. I want to be clear, though, that I don’t think we should give up on integration because the reality is that we haven’t tried it that long, right? We didn’t try it at all until the 1960s, and then we tried it for about a decade or so, and then the retreat began, so it’s not as though we’ve tried integration for 40 years, and it didn’t work.

That’s not true. The question is, can we muster the will to try integration, knowing contrary to what Thurgood Marshall thought, that it’s not going to just take another five years or so? It’s going to take decades to try to integrate a society given the legacy that we’re confronting of slavery and segregation and the inequalities that still exist.

Given all that, integration is a heavy lift. What we need to remind ourselves in that process is that you know, racial justice is not cheap. It costs money. It costs resources. It takes time, and that’ll be true whether we go the integration route or if we arrive at integration indirectly by creating schools that are more effective for disadvantaged students so that, over time, they become more fully integrated into society.

Pam Karlan: It strikes me that one of the things that’s so difficult about this is, of course, if we had residential integration, if we didn’t have amounts of residential segregation, it would be easy to integrate the schools. We could go back to neighborhood schools, and the neighborhood schools be integrated in the way that I bet you every school in the country has, you know, 16 percent people who are left-handed and 84 percent people who are right-handed, just because people are integrated according to which hand they use, so, I mean, some of this is just, it just feels so daunting, even though it’s worth remembering that we’ve desegregated huge parts of society. I mean, you know, you can go to any lunch counter now in America, and you can eat in any restaurant pretty much. The bus, you know, so you think about the cases that came right after Brown, the cases about municipal golf courses, municipal cemeteries, the Montgomery buses, and the like, and those all have been so successful, in a sense. You know, the public accommodations cases that it’s just incredibly frustrating that this fundamental piece of what makes for a country hasn’t had that same success.

Rick Banks: Yeah, this is, again, immensely frustrating and somewhat tragic that the segregation of schools is very much parasitic upon the segregation of housing, and the segregation of housing is something that, as a nation, we don’t have much appetite to undo, and that’s true in conservative areas. It’s even true in liberal areas like California. People have incentives to try to isolate themselves or retreat to enclaves with people like themselves and keep the resources to themselves, and when that market operates, we’re going to have a society that is starkly segregated by class and also somewhat segregated by race. That’s not the society we should want.

Rich Ford: So in one sense, housing segregation, housing desegregation was the least successful part of the Civil Rights Revolution, and the problems in school desegregation are directly related to that, so maybe one way of thinking about the disappointing legacy of Brown was that the federal courts kind of reneged on the promise of Brown, some of the cases we’ve been talking about: Milliken, Parents Involved, but another way of looking at it is that the costs of integration of schools, given the segregation of neighborhoods, was extremely high. You know, busing was an expensive and cumbersome remedy, and a remedy that you could imagine people disliking for reasons that have nothing to do with race.

It’s the idea of putting your kid on a bus going across town when you could otherwise send them to a neighborhood school. Resistance to that was, in part, racist, and, in part, of it was understandable.

Rick Banks: Oh, yeah. Part of it was very understandable. The reason I think that our situation is somewhat tragic is that it’s actually not a story of kind of the, you know, prototypical racists who are blocking progress.

It’s actually a story of impulses that every parent feels. That they want the environment they think is best for their child. They want more resources for their child rather than less, and every parent feels that, and so, but that leads us to a situation where you can have people acting rationally based on goals that are reasonable and impulses that are understandable, but what that leads to is a world that is dramatically segregated, dramatically unequal in our society, and that’s where we are. One possibility when I think about the relation between housing segregation in school, desegregation, I do wonder, though, whether there is some possibility for using education to help desegregate housing, because the quality of schools in a district is a powerful determinant of the housing prices in that district, and you can see this in the Bay Area and elsewhere, literally, when you go across a school district line, the housing prices can increase or decrease by tens or even hundreds of thousands of dollars, and so it, you know, if we could solve the school problem, that also could give us some leverage, maybe, maybe, on the housing problem.

Rich Ford: Well, that’s a hopeful note on which to end our fascinating conversation. Thank you very much, Rick. Thanks for joining us today. This is Stanford Legal, and if you’re enjoying our show, please leave us a rating or review on your favorite podcast app and tell a friend. It’ll help us to improve, and it’ll help us to get new listeners to discover the show.

I’m Rich Ford with Pam Karlan. See you next time.