Vol. 11 (September 2001) pp. 449-452.

WHAT "BROWN V. BOARD OF EDUCATION" SHOULD HAVE SAID: THE NATION'S TOP LEGAL EXPERTS REWRITE AMERICA'S LANDMARK CIVIL RIGHTS DECISION by Jack M. Balkin, (Editor). New York: New York University Press, 2001. 336 pp. Cloth $29.95.
ISBN: 0-8147-9889-6.

Reviewed by Paul Parker, Division of Social Science, Truman State University.

Although some moot court assignments present a set of hypothetical facts for students to address, and others ask students to role-play specific justices with real facts, editor Jack Balkin has presented a twist: eight law professors have joined him in rewriting the opinion to one of the most high profile Supreme Court cases, BROWN v. BOARD OF EDUCATION (1954). Balkin's aims in conducting this exercise are threefold: "to reexamine the premises of BROWN, and the America law of equality"; to allow the contributors to apply their "distinctive theories about constitutional theory and constitutional interpretation," thereby testing what relatively abstract theories of constitutional interpretation mean in practice"; and to provide an opportunity to "address the roles, abilities, and limitations of courts" (pp. x-xi). In sum, "The goal is not to come up with the magic legal formula that would have made everything turn out right. Rather, the point is to rethink the meaning of America's constitutional commitment to equality in our time" (p. x).

With much having been written about BROWN, and plenty more written in the broad field of Law and Courts, a natural reaction is to ask, "what can careful attention to this work pay me?" Although the empirically minded reader who is more interested in what Courts do may find little truck with this text, students of constitutional law and constitutional theories will find this a useful read.

Balkin's three chapters of critical introduction make up the first 74 pages of the book, with the nine opinions comprising the other 125 pages of text. The remaining 45 pages consist of short notes from the contributors, several pages of a selected bibliography, a couple pages of selected constitutional amendments, and the three opinions that are collectively treated as BROWN throughout the book: the decisions declaring state (BROWN v. BOARD OF EDUCATION1954) and federal (BOLLING v. SHARPE 1954) "separate but equal" educational policies to be unconstitutional, and the implementation decision of BROWN v. BOARD OF EDUCATION (1955), commonly referenced as BROWN II. The "uncorrected advance proofs" version reviewed here was 250 pages. The table of contents indicates that a table of cases cited and an index are still to come, but 86 pages worth? Perhaps, both are something I would welcome very much, making it easier to cross reference arguments and evidence. As it is, the reader can make do with the notes that are included at the end of each chapter and opinion.

The introduction will have the most


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widespread appeal. These three capably explore the complexity of BROWN. In the first chapter, "BROWN as Icon," Balkin establishes the importance of
BROWN in our historical and constitutional moments. This is done through sections titled "BROWN and the State of Education Today," "What Does BROWN
Mean?" which includes a nice discussion of the principles of antisubordination versus anticlassification, and "BROWN as a Symbol of Judicial Review." This
last section summarizes the early hagiography of BROWN, and discusses how later works reassessed the ability of courts to make a difference (e.g., Rosenberg 1991), and how BROWN served the interests of policy elites at the national (Powe 2000) and international (Dudziak 1988) levels. Balkin concludes, "Law does matter, and one of the ways it matters is that it structures the basic shape of political contests" (p. 24).

Chapter 2, "The History of the BROWN Litigation," is a short (12 pages) overview suitable fit for novices or for those more familiar with the case. It covers the strategy of the NAACP and the process of writing the BROWN opinion. I intend to review this chapter before teaching equal protection again. In the third chapter, "Rewriting BROWN," Balkin identifies the shortcomings of BROWN, and thus the main points that the contributors were to address in their opinions. This chapter provides a useful benchmark for a close reading of the opinions that follow, as we know what task the professor-judges were charged with. Of course, they have nearly 50 years of subsequent history to inform them; although they were not to cite any work post-Brown, they acknowledged writing for a future they knew better than Warren, et al. More broadly, this identification of shortcomings is useful for those who would like to explore the ramifications of a constitutional opinion (as
opposed to a constitutional decision). Or, put differently, it is useful for exploring how it is, as Balkin has stated that, "law matters."

Joining Balkin in drafting opinions are Drew Days, Bruce Ackerman, Frank Michelman, John Hart Ely, Catharine MacKinnon, Michael McConnell, Cass Sunstein and Derrick Bell. The nine seriatim opinions allow the law professors to test their theories of constitutional interpretation in "the real world," Balkin's third stated goal. On these terms, the value of the text will be fairly narrow: the authors, their critics, and those developing their own constitutional theories might be interested in the strengths and weaknesses of various approaches, but to the extent that strengths and weaknesses are viewed through the lens of our own initial positions, I doubt
that many readers will experience a conversion. Derivatively, the nine opinions do offer a quick entree into different approaches to reading the Constitution, made easier because the case is familiar, and made rewarding because we gain a deeper understanding of the case and the Court. I expect that seminars in constitutional law might find the work an accessible way to cover interpretive methods, then.

Since BROWN contains three main issues--state equal protection claims, federal due process claims, and the remedy--and given Balkin's interest in having the law professors write the opinion as an extension of their legal (and/or political) philosophy, the opinions do not reflect the unanimity that Chief Justice Earl Warren sought in the desegregation cases. "Some of the authors opted for minimal statements of constitutional principle, leaving most of the difficult issues to another day. Others hoped to stake a claim by outlining basic theories of equality and fundamental rights that they hoped would do more good than harm in the hand of future

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judges and political actors" (pp. 46-47). For instance, Sunstein and McConnell take the minimalist positions, overruling the "separate but equal" doctrine of PLESSY v. FERGUSON (1896) but only in the field education, while Days criticizes this timidity; meanwhile, Bell refuses to overrule PLESSY, preferring to hold the feet of segregationists to the fire. Under his "interest convergence thesis," Bell argues that ostensible "gains" in civil rights have come because it has been in the interest of the dominant party. For international appearances, it was convenient for the national white majority to end (formally) segregation. However, before we celebrate BROWN, Bell would have us realize the social reality of increased white flight and de facto segregation, and very unequal schools facilitated in part by the Court itself in subsequent cases like SAN ANTONIO INDEPENDENT SCHOOL DISTRICT v. RODRIGUEZ (1973) (which ended the hope of equal funding of education under the U.S. Constitution), and MILLIKEN v. BRADLEY (1974) (which held that suburban districts not found to have been complicit in the initial segregation cannot be compelled to participate in desegregation plans). Law matters indeed.

The contrast of the professors' approaches illustrates just some of the choices that participants faced in this thought exercise, and thereby how it is that law matters. MacKinnon joins Bell in engaging in far-reaching sociological analysis, while McConnell's opinion is a constrained historical analysis. Sunstein's opinion flows from the first principles of the limited role of judges and courts in a constitutional system. Ackerman resurrects the privileges and immunities clause that was gutted in THE SLAUGHTERHOUSE CASES (1873), reading the history of the 14th Amendment very differently than does McConnell. In chapter three, Balkin nicely presents some of the other issues faced implicitly or explicitly in writing an opinion. Overrule Plessy? And if so, only for education? What remedy? How to address segregation in the District of Columbia, given a Constitution that does not clearly state a right to equal treatment by the national powers? Does the intent of the framers dictate outcomes? Or guide inquiry? Or does it give way to evolving meanings? How to treat social science in Constitutional cases, in the shadow
of Warren's treatment in the BROWN case? Further, is education a fundamental right, as Warren nearly states in 1954, when the jurisprudence of fundamental
rights was undeveloped, but which SAN ANTONIO later denies?

Further illustrating that law matters, Balkin states, "An issue that appears more insistently in our time than in Warren's is the theoretical basis for the antidiscrimination principle" (p. 55). BROWN and later equal protection cases may be based upon the principle of "anticlassification," a principle that would thwart race-conscious policies such as affirmative action. Over the last decade the Rehnquist Court's colorblind application of strict scrutiny in reviewing race-based programs has done just this; among these justices, only McConnell takes this route. Balkin and Michelman and others develop an "antisubordination principle" that might be used to permit remedial laws. MacKinnon goes furthest along these lines, noting that, "Treating equals equally does not reduce to treating likes alike" (p. 154).
To do so freezes present inequalities.

Written by law professors, this book will be most appealing to those interested in constitutional interpretation and theory. Although inescapably there is some nod in the opinions to politics (issues of implementation; role of the court, vis--vis legitimacy) the dearth of an overt political discussion is the

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side that is going to strike most political scientists. The very premise of the book is the most obvious illustration of this point: in allowing nine law professors to apply their constitutional theories to the BROWN, Balkin is departing from what Chief Justice Earl Warren considered to be an important aspect of the BROWN decision, a unified opinion. On the other hand, a constitutional scholar might respond that Warren's BROWN opinion is worth rethinking precisely because (apparently) good politics can make bad law, and that political solutions at the moment may cause political problems in the long run, e.g. BROWN II's order to "admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases".

For those who are not motivated to read the nine separate opinions to see how the top legal experts apply their theories to address this conundrum, the opinions can still usefully be read on this ground: what are different steps that could have been taken in the BROWN opinion, and what would have been the likely ramifications of those constitutional moves? Seeing the range of possible interpretations could help to illustrate for students of the court the malleable nature of, and future significance of, constitutional interpretation. In addition to political scientists who teach constitutional law and interpretation as quasi-law school classes, the book can inform the
thinking and work of neo-institutionalists and others who agree with Balkin that "law matters."

In sum, the book achieves the three specific goals that Balkin identifies. Although this accomplishment alone will be enough for those interested in comparing applications of constitutional theories to a specific case, or for those interested in this specific case or equality more generally, thinking about the larger issues raised by the text, if sometimes only through silences, can also reward a close and thoughtful reading of this text.

REFERENCES:

Bell, Derrick. 1980. "BROWN v. BOARD OF EDUCATION and the Interest-Convergence Dilemma," HARVARD LAW REVIEW 93: 518.

Dudziak, Mary L. 1988. "Desegregation as a Cold War Imperative," STANFORD LAW REVIEW 41: 61.

Powe, Lucas A. Jr. 2000. THE WARREN COURT AND AMERICAN POLITICS. Cambridge: Harvard University Press.

Rosenberg, Gerald. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago Press.

CASE REFERENCES:

BOLLING v. SHARPE, 347 U.S. 497 (1954).

BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).

BROWN v. BOARD OF EDUCATION, 349 U.S. 294 (1955).

MILLIKEN v. BRADLEY, 418 U.S. 717 (1974).

PLESSY v. FERGUSON, 163 U.S. 537 (1896).

SAN ANTONIO INDEPENDENT SCHOOL DISTRICT v. RODRIGUEZ, 411 U.S. 1 (1973).

SLAUGHTERHOUSE CASES, 83 U. S. 36 (1873).

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Copyright 2001 by the author, Paul Parker.