ACLU Senior Attorney Chris Hansen was lead counsel in the reopened Brown v. Board Education case, which in the 1980's and '90's forced Kansas to honor the U.S. Supreme Court mandate to desegregate its public schools. On the 50 th anniversary of the original U.S. Supreme Court ruling, we interviewed him about that experience.
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| Standing L/R: Victor Bolden (ACLU attorney), Richard Jones (Cooperating attorney) and Chris Hansen in front of the last all black school in Topeka. |
Background
The Supreme Court in 1955 ordered Topeka, Kansas, to desegregate its schools. Topeka responded by abolishing the requirement that blacks attend all-black schools. However, the municipality did nothing else to desegregate the schools and the case went dormant until 1979, when a group of local lawyers, including local attorney Richard Jones, reopened the case. In the original case, Oliver Brown sued on behalf of his daughter, Linda. When the case was reopened, Linda Brown was suing on behalf of her two children. In another interesting parallel, two of the local lawyers in the original case were Elisha Scott and his son Charles Scott. The second time around, the co-counsel included Charles Scott and his son, Charles Scott Jr.
Richard Jones and the other local lawyers turned to the American Civil Liberties Union, which was a friend-of-the-court participant in the original case, for help completing the work of desegregating Topeka's public schools. The effort culminated in a successful desegregation plan consisting largely of magnet schools that led to the case being closed in the 1990's.
An expert in complex litigation, Hansen has handled other desegregation cases, including Freeman v. Pitt before the U.S. Supreme Court, which involved a school district in suburban Atlanta.
Civil rights lawyers began to change strategy in the mid 1980's as desegregation cases became harder to win and previous victories became harder to preserve. In an initiative led by Helen Hershkoff, an Associate Legal Director of the ACLU at the time, the ACLU helped formulate and implement the new, additional strategy of bringing what are called ""adequacy and equity"" cases to address the racial imbalance in public education dollars and resources.
Equity cases look at per-pupil expenditures in a predominantly minority school compared to a white school. For instance, an equity case might compare how much is spent per student in New York City compared with how much is spent in Westchester County.
Adequacy cases look at the schools themselves: class sizes, whether physical conditions and environment in the school are conducive to learning, the quality and qualifications of teachers.
The ACLU is currently handling Sheff v. O'Neill, a longstanding lawsuit to desegregate the Hartford public school system. The ACLU's Maryland and California affiliate offices also have current desegregation cases.
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Q: Brown v. Board of Education is what you read about in history books. What were your thoughts handling the reopening of that case?
Hansen: I had handled other complex litigation before, but Brown was the first school desegregation case I had ever handled. I read heavily in the area, including "Simple Justice" by Richard Kluger, the leading book on the subject. In fact I was reading "Simple Justice" on the airplane flying out to Topeka and I came across an account of Thurgood Marshall arguing the case before the Supreme Court.
At one point one of the Justices of the Supreme Court in 1953 asked: ""Mr. Marshall, if we order desegregation of public schools, it's not going to take place overnight, is it?""
And Marshall said, no. It may take a year or two before the process is completed. Marshall said this in 1953. This was 1985 and I was flying out to desegregate the Topeka public schools. Marshall did an excellent job devising and implementing the strategy that resulted in the Brown decision. He wasn't as good at predicting how much opposition we were going to run into. The truth is, not much desegregation took place in the 1950's. It wasn't really until the 1960's that serious desegregation started.
Q: What effect did the original decision have on this nation?
Hansen: There is a debate in the scholarly community about what effect the decision had. I don't think there is any doubt that the most important effect it had was in establishing that you could not have governmentally imposed segregation. Perhaps the worst aspect of segregation then was that it was governmentally imposed and governmentally sanctioned. Because the government was prepared to require as well as approve segregation in schools and in other areas, such as public transportation or public accommodations, our government was sending the message that all forms of racial discrimination were socially acceptable.
It was Brown that declared that government could no longer sanction segregation. That, I think, had the ripple effect of establishing that all forms of segregation are improper and, has to be seen in some way as leading to the civil rights movement of the late 1950's and early '60's.
Q: What reception would Linda Brown's grandchildren get if they come before today's Supreme Court?
Hansen: Well, Topeka has now been desegregated so her grandchildren don't have a case anymore. Until at least the 1980's, school desegregation cases always won in the Supreme Court. There came a point when we started losing. We now lose more often than we win. We're in much harder times in that respect.
Q: How do you assess progress and where do we go from here?
Hansen: You have to say that the abolition of governmentally sanctioned discrimination is progress. In terms of progress in schools, it is accurate to say there are still an awful lot of schools out there with student bodies that are virtually all African-American or all white. That suggests that we haven't quite accomplished what we wanted to accomplish.
Q: And the way forward?
Hansen: I don't think people know the answer to that question. In much of the last 20, 25 years, it's been about preserving the victories of the first 25 years. The virtue of the equity and adequacy cases was that they are an attempt to go on offense rather than on defense, to establish new ways of challenging the evils of segregation and of inadequate schools. And those met with some success and some failures. I think that what people are looking at now is whether the ""No Child Left Behind"" Act provides a way to address the issue of quality integrated schools or whether there are other ways to get at that issue.
Q: How do you get past the problem of a largely minority urban core surrounded by largely white outlying suburbs?
Hansen: The Supreme Court decided a number of years ago to make it virtually impossible to address segregation that resulted from school district boundaries. The court would not order desegregation across district lines. So that you could not, for example, desegregate New York City by using Long Island and Westchester County. You can't desegregate Chicago by using Du Page County and Lake County. That was one of the first ways in which the Supreme Court began to retreat from the mandate of quality integrated education. There are some approaches that can work. For example, Sheff v. O'Neill, involving Hartford, Connecticut, is a case in which we are desegregating a region. The Connecticut Supreme Court held that under the Connecticut Constitution you could desegregate a city school district, namely Hartford, with regional remedies. The magnet school and transfer remedies in Sheff are designed to pull students in from the suburbs and to send students out to the suburbs.
Q: You mentioned ""No Child Left Behind"" Act as a possible avenue for correcting some of what is wrong with public schools today. But that program has been criticized too.
Hansen: There are certainly problems with the ""No Child Left Behind"" Act. However, advocates for quality integrated education, including the ACLU, is looking at whether it can be used to help achieve that objective. No one really knows the answer to that yet, but it will receive a lot more attention over the next few years.
Q: Given the problems that remain 50 years after the decision, can we draw any conclusions about the role of the courts in requiring social change?
Hansen: Yes. The courts can play and have played an essential role in protecting our constitutional rights when the other branches of government fail to do so. Brown has led to other efforts to stamp out segregation and race discrimination. The Civil Rights Acts of the 1960's can be traced to the moral force of Brown. More recently, the ACLU has led a national effort to challenge a variety of discriminatory practices called ""racial profiling."" Racial profiling occurs where people of one race or ethnicity are singled out for special treatment, such as being pulled over while driving or boarding airplanes. It is a very serious problem, one the ACLU is addressing through litigation as well as legislation and public education.
The Brown decision did not just have an impact on racial discrimination. It also led to the involvement of the courts in forcing government to address other truly inhumane practices in prisons, mental health facilities, foster care agencies and other governmental institutions. It led to legislation and litigation to eliminate discrimination against other groups such as women, and the disabled, and lesbian, gay, bisexual and transgender people.
Q: What about those who say we should concentrate on ensuring quality education for all students and give up on integration?
Hansen: The ACLU rejects the notion that quality and integration are different goals. We are committed to achieving quality, integrated education for all students both because it brings educational benefits to all students. Quality integrated education is also a matter of simple justice.