Fifty years after Brown v. Board of Education was decided, its importance in American legal and political history remains in question. Chief Justice Earl Warren named it as one of the three most important cases decided by the Court when he acted as its chief.

Does Brown deserve all of this praise today? At the time, the case eliminated the "separate but equal" doctrine, the key legal device for maintaining segregated schools in the Southern states. But the concrete results achieved by the case--integration of elementary and secondary schools-have largely been reversed as a result of housing patterns and population shifts that resegregated schools in large metropolitan areas and because of white flight into the suburbs.

By the 1990s segregation returned to almost all elementary and secondary schools in the nation, including the North. By 1996, black students were the majority in the public schools in most of the metropolitan large cities: over 90% of the students in public schools in Atlanta, New Orleans, San Antonio, Washington, D.C., and Richmond were minorities. In Chicago, 90% of public school students were minorities, and in New York City the figure was 84%. The white middle class sent their students to private schools. A recent law review article notes that in North Carolina, the student population in ten of fifty-four elementary schools in Winston-Salem was at least 80% black or greater. These school districts also had the highest poverty rate in the state. By contrast the schools with the highest white population had a far lower poverty rate.

But the Brown case stands for more than the concrete results it achieved. From the end of Reconstruction to the 1950s, a vast legal structure was in place that effectively kept the black population in a second-class status. Laws segregated schools, parks, libraries, and public facilities, as well as places of public accommodations. It was a crime for a black person to go into places that the laws preserved for whites. Placing blacks in such an inferior position made it virtually impossible for them to use political power to correct their situation.

Education was clearly the heart of the problem. First, segregation in education affected the largest number of black citizens-the tens of millions of children of school age. Second, segregation and lack of political power by blacks necessarily led to inferior schools with few books or teachers, and no science labs or other teaching tools. It made it difficult or impossible for the black population to acquire the necessary skills to raise itself from its second-class status.

But separate schools were permitted by long-standing Supreme Court precedent so long as they were equal.

In the 1930s, a group of young lawyers educated at Howard Law School, led by Charles Houston, began a legal campaign to show that segregated schools by their very nature could not be equal. The first cases were brought against law schools, on the assumption that the Justices of the Supreme Court could appreciate whether a segregated black law school with limited resources was equal to the well-endowed schools that serviced the white population. The first such case reached the Supreme Court in 1938, argued by Charles Houston. It came from Missouri, which did not even have a law school but sent black students out of state to achieve a legal education. In an opinion by Chief Justice Hughes, the Court stated that, "The white resident is afforded legal education within the state; the negro resident having the same qualification is refused it there and must go outside the state to obtain it. This is a denial of the equality of legal right.

The ... court rejected the argument that elementary schools should be treated the same way as the professional schools. "The problem of segregation as applied to graduate and professional education is essentially different from that involved in segregation in education at the lower levels." It further noted:

The problem of segregation at the common school level is a very different one. At this level, as good education can be afforded in Negro schools as in white schools. . . . Moreover, education at this level is not a matter of voluntary choice on the part of the student but of compulsion by the state. The student is taken from the control of the family during school hours by compulsion of law and placed in control of the school, where he must associate with his fellow students. The law thus provides that the school shall supplement the work of the parent in the training of the child and in doing so it is entering a delicate field and one fraught with tensions and difficulties. In formulating educational policy at the common school level, therefore, the law must take account, not merely of the matter of affording instruction to the student, but also of the wishes of the parent as to the upbringing of the child and his associates in the formative period of childhood and adolescence. If public education is to have the support of the people through their legislatures, it must not go contrary to what they deem for the best interests of their children. (98 F.Supp. at 535)

Only the Delaware judges and Judge J. Waries Waring, a courageous district court judge from South Carolina, dissented from this analysis and would have declared segregation in education inherently unconstitutional. (Judge Waring left South Carolina immediately after writing his dissent because of the intense hostility directed toward him because of his decisions favoring equal rights.)

These were the cases that made up the School Desegregation cases argued before the Supreme Court, first in 1952, again in 1953, and finally in 1955, on the remedies to be afforded.

The arguments before the Court are important documents of legal history, social science, and political theory. In addition, they contain some of the most important and eloquent instances of legal argument before the Court. The chief lawyer representing the South was John W. Davis, former Democratic presidential candidate in 1924, leader of the American bar, founder of a major law firm, who argued before the Supreme Court more times than any lawyer had done before... He was a native of West Virginia and believed in the principles of segregation.

John W. Davis was at the height of his powers. He argued in the second round of arguments in 1953:

Neither this Court nor any other court, I respectfully submit, can sit in the chairs of the legislature of South Carolina and mold its educational map. It is confident of its good faith and intention to produce equality for all of its children of whatever race or color. It is convinced that the happiness, the progress and the welfare of these children is best promoted in segregated schools...

Here is equal education, not promised, not prophesied, but present. Shall it be thrown away on some fancied question of racial prestige?

His chief opponent was Thurgood Marshall, who was forty-four when he argued the Brown case in 1952. His argument was solid, with few flourishes:

Those same kids in South Carolina-and I have seen them do it-they play in the streets together, they play on their farms together, they go down the road together, they separate to go to school, they come out of school and play ball together. They have to be separated in school.

There is some magic to it. You can have them voting together, you can have them not restricted because of law in the houses they live in. You can have them going to the same state university and the same college, but if they go to elementary and high school, the world will fall apart.

So whichever way it is done, the only way that this Court can decide this case in opposition to our position, is that there must be some reason which gives the state the right to make a classification that they can make in regard to nothing else in regard to Negroes, and we submit the only way to arrive at this decision is to find that for some reason Negroes are inferior to all other human beings.

Although some of the Justices were prepared to write strong attacks on segregation and Justice Reed was insistent on dissenting, Chief Justice Warren waged a quiet campaign to issue a unanimous decision that did not look backward, that would outlaw segregation in the schools and that would postpone the difficult issues of implementation for another time. He succeeded. The final decision read:

In approaching this problem, we cannot turn the clock back... We must consider public education in the light of its full development and its present place in American life throughout the Nation.

The final opinion, issued on May 17, 1954, is short, quiet, and nonaccusatory.

We come then to the question presented: Does 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 educational opportunities? We believe that it does.

We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal.

When the decree was finally issued, in May, 1955, it did not establish any deadlines for compliance with the Brown decision and gave the school districts time to work out a plan for desegregation:

The courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems. They will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system. During this period of transition, the courts will retain jurisdiction of these cases.

The rest of the history of Brown is found in the decades of "massive resistance" by the Southern states, the use of every device imaginable to resist integration, including closing the schools in Prince Edward County, the Virginia district that was part of the original group of Brown cases.

It was not until Congress included a provision in the 1964 Civil Rights Act that required compliance with desegregation orders of federal courts as a condition of receiving federal education funds that any real advance was made in eliminating segregation. In addition, the Supreme Court gave federal courts wide power to order bussing to implement a desegregation decree...

So is Brown a failure? In legal terms, it destroyed the chief weapon that the Southern states had used to ghettoize the black population. "Separate but equal" was found to be illegal and unconstitutional because legal separation by race was necessarily stigmatic. When the states told the black population to stay on its side of the line and deprived it of voting power and furthermore made it a crime for whites to marry blacks or associate intimately with them, it established a virtually impregnable system of apartheid. Brown undercut the foundation of that structure. Not only were separate schools unconstitutional, but so were separate parks, libraries, and public facilities of all kind. Blacks could not legally be kept apart or kept down.

Brown was one of the sparks that ignited the Civil Rights Movement. From Brown, came the Montgomery bus boycott in 1955, which was about keeping blacks separate on busses. Then came the lunch-counter sit-ins in 1961, which attacked forced separation in restaurants. Then came the Civil Rights demonstrations in Birmingham in 1963, which also attacked separate facilities. By that time, Congress was forced to legislate in accordance with the developing Civil Rights campaign. The 1964 Civil Rights Act prohibited discrimination in places of public accommodation, in employment, and in any program that received federal funds. The 1965 Voting Rights Act broke down the last legal barriers to voting.

Brown could not solve all the problems created by a hundred years of legal restriction and societal separation. Indeed, it could not even solve the problem of segregation in schools. But it is there as a first, necessary step that we should celebrate on its fiftieth anniversary.