Vol. 15 No.8 (August 2005), pp.722-725


RACE, LAW AND EDUCATION IN THE POST-DESEGREGATION ERA:  FOUR PERSPECTIVES ON DESEGREGATION AND RESEGREGATION, by Kevin Brown.  Durham, N.C.:  Carolina Academic Press, 2005.  458pp.  Cloth. $45.00.  ISBN: 1-59460-025-2.


Reviewed by Timothy J. O’Neill, Department of Political Science, Southwestern University.  Email:  oneillt@southwestern.edu .


We live in the “Post-Desegregation Era,” a time marked by increasing racial separation in our public schools and growing judicial emphasis on individuality at the expense of equality.  This is the central premise of Kevin Brown’s RACE, LAW AND EDUCATION IN THE POST-DESEGREGATION ERA.  Brown, the Charles A. Whistler Professor of Law at Indiana University, seeks to explain the impact of four “discourses” that mold our perception of racial and ethnic phenomena.  He also seeks to explain how the shift from the “Desegregation Era” to the “Post-Desegregation Era” affects the nation’s struggle to close the academic achievement gap between African-American and non-Hispanic schoolchildren.  Curiously, he never attempts to explain why this shift occurred.


Brown’s four discourses are sets of ideas and background assumptions that structure and limit public understandings about race and ethnicity.  While some of these discourses may dominate a particular time or period, no one perspective is ever completely dominant.  Brown believes that we are “capable of multiple comprehension” of a specific racial or ethnic issue or fact through these perspectives, although some may be more persuasive and therefore more limiting to our thinking than others (p.24).


The first discourse, “Traditional Americanism,” views blacks as “less than,” with non-Hispanic whites as the relevant norm.  Blacks fail to meet the requisite norm because of a supposed inferiority.  The decision in BROWN v. BOARD OF EDUCATION was founded in “Traditional Americanism” but substituted impoverished social environment as the explanation for the then prevailing physical or divine causes for their supposed inferiority.


The second discourse, “African-American Centralism,” rejects the view of blacks as inferior, seeing them as oppressed and seeking the liberation of African-Americans from this oppression.  The irony, as Brown points out, is that the very thing that creates a distinctive African-American community, the concept of race that “unites blacks as a people,” has also been the historic source of their oppression (p.76).


The third discourse, “American Collectivism,” stresses the unity of Americans and their common interests.  The objective is to preserve or attain the “best interest of the American collective,” primarily through the constantly changing but still unifying values of “liberty, equality, democracy [*723] and the pursuit of happiness” (p.23).  Brown points out later that the protection of property is at the “heart of the Constitution” (p.43), yet he never explains why property rights are not part of the pantheon of unifying values.


The final discourse, “Colorblind Individualism,” ignores the group orientation of the other “discourses” by emphasizing the world as a collection of “Knowing Individuals,” who are able to make independent and self-interested choices so long as the choices do not unnecessarily hinder the free choices of others.  The “advancement of individual self-determination” is its key social value (p.22).  A modified form of this perspective (why so modified is never explained) is key to Brown’s understanding of Supreme Court decisions on race and ethnicity over the past thirty years.  It would help if the author offered a detailed analysis of an iconic court case or statute that embodied each discourse’s impact on the thinking of judges and legislators.


Brown recognizes that America is fundamentally different than it was 50 years ago when the BROWN decision first commanded desegregation.  Yet, as integration succeeded and school districts came in compliance with desegregation decrees, they were permitted to use race-blind student assignment policies such as neighborhood schools.  Eventually, KEYES v. SCHOOL DISTRICT NO. 1 (1973), signaled a shift toward an individualist interpretation of the Fourteenth Amendment’s equal protection clause (p.28), an interpretation that, paradoxically, resulted in resegregation once courts ended their decrees (pp.7, 29).  The equal rights of individuals replaced the advancement of the educational opportunities of black children, race-conscious means now forced to pass the harsh standard of strict scrutiny and the compelling state interest test.  The “Post-Desegregation Era” is marked by court decisions that demand proof of an invidious motive, not simply an unequal effect, to government actions.  The government is analogized to a “Knowing Individual” whose motivations determine whether its actions are constitutional (p.103).  “Colorblind Individualism” had triumphed over “Traditional Americanism.”


The change in the background assumptions for interpreting the equal protection clause meant that the only way to significantly increase educational opportunities for black children is school choice, a racially neutral method that disproportionably aids minority children in poor and urban schools (p.11).  School choice can take a variety of forms.  Middle class parents have always had the power to choose the public or private school of their choice by voting with their feet or money.  Current programs for government funded school choice empower lower class parents to choose schools for their children though charter schools or school vouchers,


Central to Brown’s analysis is his focus on African-American schoolchildren, whom he believes to have been the intended beneficiaries of BROWN.  The rise of the “Post-Desegregation Era” denies the promise made to black children during the “Desegregation Era.”  Chief Justice Warren might not have agreed.  Federal courts ordered California’s public schools opened to Hispanic schoolchildren in 1947, half [*724] way through Warren’s three terms as governor.  The language in that case, MENDEZ v. WESTMINISTER, foretells not only the logic but also some of the actual language of Warren’s opinion in BROWN seven years later.  Moreover, Brown’s insistence that the “Post-Desegregation Era’s” attachment to a partial form of “Colorblind Individualism” is a departure from BROWN is contestable.  Brown himself points out that BROWN v. BOARD OF EDUCATION is essentially a race-neutral interpretation of the equal protection clause.  It was not until GREEN v. NEW KENT COUNTY (1968) that the Court compelled the use of racial classifications to overcome racial segregation (pp.27, 180).  The “Colorblind Individualism” strand is as strong in BROWN as is the “Traditional Americanism” strand.


This oversight points to one of the major deficiencies of RACE, LAW AND EDUCATION IN THE POST-DESEGREGATION ERA.  The book poses a crucial but unanswered question:  why the shift from the “Desegregation Era” to the “Post-Desegregation Era”?  Brown effectively lays out how the courts made the shift but never explains why the courts felt the need to make the shift.  The end of de jure school segregation and its immediate effects may be one cause, as Brown implicitly suggests.  But what of the shift in the political tone, values, and priorities of the time?  Moreover, the BROWN case itself contained the seeds of the “Post-Desegregation” ethos.  The book would be immeasurably stronger if only its author had tackled explicitly the political, moral, and policy causes of this decisive change in American judicial doctrine.


The strongest sections of the book are Chapters 1 through 4 where Brown explores the background assumptions, historical development, and limiting structures of the four discourses.  The author’s richness of details, fresh interpretations of historical facts and trends make these chapters a powerful retelling of our nation’s twisted history.  Brown does a fine job of explaining how each discourse “structures” public debates and understanding.  He is less clear about how and why each discourse “limits” debate, other than the implicit assumption that, if a discourse does not explicitly discuss something, it is ignored.


Brown asserts that a multiple approach to understanding such phenomena is necessary because no single approach is ever the sole or only true understanding.  He never tackles the 2,500 year tradition (discourse?) that teaches objective truth as a graspable reality.  One may wonder whether the current post-modernist malaise has made this tradition passé or whether scholars fifty years from now will dismiss post-modernism as a fad.  Nevertheless, we are left with three possibilities:  that Brown is mistaken, and there is one discourse that is objectively true, although it may not be self-certifying; that another, relevant discourse has been overlooked or dismissed by Brown; or that two or more of these discourses, despite Brown’s assertion that they are incommensurate (p.319), are nonetheless more relevant or helpful than the others in grasping what is actually happening in race and ethnic relations.  The book implicitly opts for the last possibility, relying primarily on the discourses of “Traditional Americanism” and “Colorblind Individualism.”  [*725]


The book cries out for a good editor’s sharp eye and red pen.  There are far too many redundant passages and endless repetitions of the same arguments and facts, both in the body and notes.  A trope develops early in the book.  Brown begins by telling the reader what he will argue or describe, then argues and describes, ending with a conclusion that repeats the arguments and description.  All of this moves well beyond the limits of useful redundancy. 



Anderson, Terry H. 2004.  THE PURSUIT OF FAIRNESS:  A HISTORY OF AFFIRMATIVE ACTION.  Oxford and New York: Oxford University Press.



BROWN v. BOARD OF EDUCATION, 349 U.S. 294 (1954).


GREEN v. NEW KENT COUNTY SCHOOL, 391 U.S. 430 (1968).


KEYES v. SCHOOL DISTRICT NO. 1, 413 U.S. 189 (1973)


MENDEZ v. WESTMINISTER, 161 F. Supp. 544 (S.D. Cal 1946) aff’d in part sub nom WESTMINISTER SCH. DIST. v. MENDEZ, 161 F.2d 774 (1947).


© Copyright 2005 by the author, Timothy J. O’Neill.