Brown � Then and Now:
Social Science and the Shifting Brown Paradigm

By Linwood F. Tauheed

(Speech given January 25, 2003 at the unveiling of the Thurgood Marshall Black Heritage Stamp
at the University of Missouri � Kansas City School of Law)
 

We are here today to honor a giant in the struggle for social justice, a man who through his enormous efforts became known as �Mr. Civil Rights�. As lead council for the Legal Defense and Education Fund of the NAACP, Marshall at times managed as many as 400 cases, simultaneously. Before being appointed to the US Court of Appeals for the 2nd Circuit in 1961, Marshall had argued 32 cases before the US Supreme Court, winning 29 of them. The most famous of course, was Brown v. Board of Education of Topeka decided in 1954. No time for details - that history and the events leading up to it have been documented quite well by Richard Kluger in his book �Simple Justice�.[i]

 

In the time allotted I shall attempt to argue 4 points, in not enough time to do justice to one, and so I shall rely mainly on pointing to relevant documentation and giving a wave of encouragement towards your continued interest.

 

1.     That victory in Brown was only possible after discrediting the prevailing social scientific paradigm, and that Marshall was well prepared for the job.

2.     That since 1954 enough has changed empirically and paradigmatically within the social sciences to allow us the hindsight that the sociological approach taken by Brown (essentially Nurture over Nature) was necessary at the time, but is now outdated.

3.     That we now stand at a point in history where we will either be forced backwards to the pre-Brown sociological paradigm, with devastating consequences for social justice, or move forward to a new one that breaks with the problems of the nature/nurture dualism.

4.     That our doing so would be consistent with the legal viewpoint of Justice Marshall and allow us to preserve his victory and honor his spirit.

 

Point # 1 - That victory in Brown was only possible after discrediting the prevailing social scientific paradigm, and that Marshall was well prepared for the job.

 

In spite of the directness of Kluger�s title �Simple Justice�, the outcome in Brown was not a matter of simply arguing for justice. Codified at the highest level by Plessy (v Ferguson 163 US 552 1896 ) was the doctrine of the biological inferiority of people of African descent. That is, �if one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane� (emphasis added). Don�t be fooled here by the use of the word socially. The paradigm of the time with regards to people and society was Social Darwinism, and according to that scheme, races were unequal socially - and I must add culturally - because they were unequal naturally, sorted out by the impersonal, objective, laissez-faire mechanism of �survival of the fittest�.

 

Justice, under that regime, meant it was possible to proclaim African-Americans as equals under the law, in accord with the 14th Amendment, without treating them as equals in fact. Under this regime �equality of opportunity� not �equality of results� had been natural law through eons of man�s existence. To overturn the inequality of results was to interfere in nature�s plan and artificially preserve the weak to the detriment of all - yes even to the detriment of the weak. The Hayes-Tilden compromise twenty years earlier (1876) had ended Reconstruction. And now to further the compromise between the North and the South, �science� was being used to show that even the possibility of Reconstruction was futile. Separate would be equal given the naturally unequal status of the races.

 

Leo Baker, in his book �From Savage to Negro� brings this point home.

 

By 1896 the old ideas about Manifest Destiny, industrial progress, and racial inferiority (enlivened by Social Darwinism) served as an ideological cement that was able to form capitalist development, imperialism, scientific progress, racism, and the law into a rock-solid edifice within U.S. society. [ii]

 

As long as this �scientific� paradigm reigned, no Legal Formalistic argument, by itself, would be sufficient to overturn Plessy. To do this it was necessary to first show that the doctrine of biological inferiority was wrong.

 

Marshall had been trained to this task by his teacher and mentor, Charles Hamilton Houston, Professor and Dean of Law at Howard University. Houston had been trained in law and the application of social science argument to it, by his teacher and mentor at Harvard, Felix Frankfurter, who himself had been taught and mentored there by Louis Brandeis, who could be called the �father� of �sociological jurisprudence�. Marshall also found at Howard the members of the �Howard Circle�: E. Franklin Frazier, Ralph Bunche, John Hope Franklin, Alain Locke, Abram Harris and others, the top African-American social scientists of the day. Kenneth Clarke was a fellow student. It was in this context that Marshall was trained and in which the sociological approach to Brown was forged.

 

To make a long story exceedingly short; Leo Baker[iii] insightfully describes the Howard Circle approach as combining a refutation of the biological inferiority thesis � based on the work of anthropologist Franz Boas - with what Baker calls the �cultural legitimacy� thesis � based on the assimilation model of social mobility developed by Chicago sociologist Robert Park, and mainly promoted by E. Franklin Frazier[iv]. Frazier�s position had influenced that of Gunnar Myrdal, who in 1944 compiled �An American Dilemma�[v], a massive work to which many in the Howard Circle had contributed, and which became �Exhibit A� in the Brown brief, and footnote 11 in the Brown decision.

 

This hybrid approach had the advantage for Marshall in that it refuted the Social Darwinist paradigm while at the same time attacked segregation by arguing that African-Americans were damaged by not being allowed to assimilate into American culture. Myrdal states this cultural assimilationist position with even greater conviction by stating that �Negro culture�[is] a pathological condition of the general American Culture� and that �it is to the advantage of American Negroes � to acquire the traits held in esteem by the dominant white Americans�[vi]. The similarity of this position to modern neo-conservative ones will be seen later.

 

The intention was to politically legitimize American culture over African-American culture. The debate between Melville Herskovits, a student of Boas, and Frazier who had been a student of Robert Park at the University of Chicago, I believe supports this position. While Herskovits, like Boas, contended that many African cultural traits remained in African-American society, Frazier, like Park, took the position that no such traits survived slavery. The political usefulness of Frazier�s position against Herskovits� position comes to light as Baker points out Frazier�s remarks directed at Herskovits at a speech in Harlem.

 

if whites believe that the Negro�s social behavior was rooted in African culture, they would lose whatever sense of guilt they had for keeping the Negro down. Negro crime, for example, could be explained away as an �Africanism� rather than due to inadequate police and court protection[vii]

 

Point #2 - That since 1954 enough has changed empirically and paradigmatically within the social sciences to allow us the hindsight that the sociological approach taken by Brown (essentially Nurture over Nature) was necessary at the time, but is now outdated.

 

For this part I apologize for having to be exceedingly brief with a complex topic. The following points are relevant.

 

        Empirically, the facts known today, but not in 1954, support the position of Boas and Herskovits, not Frazier and Park with regards to �Africanisms� in African-American culture.[viii]

        Additionally, anthropological evidence has shown that Park�s assimilationist model of social mobility does not match the facts of the American experience, particularly with regards to immigrant populations.[ix]

        Finally, it is possible, no necessary, to avoid the over-simplifications of the nature / nurture debate and its variants of individualism vs. collectivism, otherwise known as �blaming the victim� or �blaming society�. Modern social science paradigms that conceptualize society as a holistic relationship between human agency, social structure and cultural structure[x] are capable of affirming the dignity and responsibility of African-Americans, (dignity and responsibility), recognizing the structural and institutional constraints placed on them, and utilizing an understanding of African-American cultural history and the effects of enslavement.

 

Why is this important now?

 

Point # 3 - That we now stand at a point in the struggle where we will either be forced backwards to the pre-Brown sociological paradigm, with devastating consequences for social justice, or move forward to a new one that breaks with the problems of the nature/nurture dualism.

 

Our failure to achieve �equality of results� in black/white student achievement nearly 50 years after Brown presents an easy target to those who desire to revive the pre-Brown sociological position. I shall be brief here. A few quotes from �A Closer Look at the Minority Achievement Gap� by Joseph J D�Amico[xi] are illustrative:

 

        Trend data show that, between 1970 and 1988, the black/white achievement gap was reduced by half in reading and by a third in mathematics �

        Beginning in 1988, however, �the gap has been widening �

        The rates and statistics are truly alarming �

        This phenomenon is not limited to low-income minority students

 

The gap persists, is increasing and is unaffected by income. I don�t need to go any further than �The Bell Curve� to secure the argument that there are those ready to take advantage of this fact to move the clock backwards. Murray�s policy conclusion from his �study� is that social programs are ineffective and wasteful when there are natural differences of intelligence. (remember Plessy?)

 

But, let us not be singularly critical of �conservatives�. The retreat from the �simple justice� of Brown, like the retreat from Reconstruction approximately 100 years earlier comes as a result of a political compromise. Stephen Steinberg[xii] in �Turning Back� describes the role that �liberals� have played in this drama. The ink was barely dry on the Civil Rights Act of 1964 and the Voting Rights Act of 1965 when �liberal� policymakers (now neo-conservatives), led by Patrick Moynihan, then an aide to President Johnson, began to denounce �equality of results� in support of �equality of opportunity�, sending a clear message of �Equality in law, but not in fact�, and blaming the �pathological� nature of African-American family structure as the cause of African-American problems. The period of time between the beginning and end of Reconstruction (1866/1876), and the beginning and end of the �Civil Rights� era (1954/1964), periods of a decade each, seem to be as much as this country can stand of �simple justice�. The tidying up of loose ends comes afterwards when �science� is able to add �equality in law, but not in fact - because not in fact�.

 

This is not an argument that can be refuted by a restructuring of the current nature/nurture debate, but requires a shift out of that paradigm into a new one.

 

Point # 4 - That our doing so would be consistent with the legal viewpoint of Justice Marshall and allow us to preserve his victory and honor his spirit.

 

By arguing that a shift in paradigm is necessary in order to address the issue of black/white student achievement is not to maintain that Brown should be re-argued using a revised social science approach; a more adequate take on culture, etc. Perhaps we have come as far in constitutional law, with this particular problem, as we can - perhaps not.

 

It is to say that addressing this problem with outdated viewpoints, allowing it to be believed that unequal results are the result of unequal biology, that African-American children are uneducable, while continuing to give so much time and energy to legalistic solutions so easily thwarted by simple �white flight�, is not only wasteful, but endangers losing the ground already won. Myrdal[xiii] indicated his understanding of this danger when in describing the process of the vicious cycle he recognizes that the low economic and social status of African-Americans, a result of racism, cyclically increases racism by providing an excuse to deny African humanity and intelligence.

 

To argue that this approach would be consistent with Justice Marshall�s spirit, and particularly his legal spirit, requires that I give some indication of his spirit consistent with this point. I find no better indicator than Justice Marshall�s May 6, 1987 speech before the San Francisco Patent and Trademark Law Association in Maui, Hawaii[xiv] where he made the following points with regards to the bicentennial of the US Constitution - as a sitting Justice - which increased the controversy.

 

The focus of this celebration invites a complacent belief that the vision of those who debated and compromised in Philadelphia yielded the "more perfect Union" it is said we now enjoy. �

 

I cannot accept this invitation, for I do not believe that the meaning of the Constitution was forever "fixed" at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today�.

 

The men who gathered in Philadelphia in 1787 could not have envisioned these changes. They could not have imagined, nor would they have accepted, that the document they were drafting would one day be construed by a Supreme Court to which had been appointed a woman and the descendent of an African slave. 'We the People' no longer enslave, but the credit does not belong to the framers. It belongs to those who refused to acquiesce in outdated notions of 'liberty,' 'justice,' and 'equality,' and who strived to better them

 

It therefore is clear that Marshall did not view the law, not even the ultimate in law as perfect at any rest point, but as perfected in and by struggle. Steinberg[xv] notes that although �it is easier to have the wind at your back� - he has attempted to heed �Marshall�s admonition to go against the prevailing wind�. The prevailing wind is �Back to Nature�.

 

I challenge each of us to become involved in whatever way we can, and to become as prepared as Justice Marshall was for the continuing struggle. Let us preserve Justice Marshall�s victory and honor his spirit by proclaiming - �Forwards ever! Backwards never!�

 


Linwood F. Tauheed is a Distinguished Dissertation Fellow Economics / Social Sciences

University of Missouri � Kansas City

 

 



 

Endnotes

 

[i] Kluger, Richard (1977, 1975). Simple Justice. The History of Brown V. Board of Education and Black America's Struggle for Equality. New York: Vintage Books

[ii] Baker, Leo D. (1998). From Savage to Negro: Anthropology and the Construction of Race 1896-1954. Berkeley: University of California Press. pg 29

[iii] Baker, From Savage to Negro. generally

[iv] Boas� approach to culture, based on historical specificity and cultural relativity, opposed this view.

[v] Myrdal, Gunnar (1996, 1944). An American Dilemma: The Negro Problem and Modern Democracy. New Brunswick: Transaction Publishers

[vi] An American Dilemma quoted in Baker, From Savage to Negro. pg. 181

[vii] Baker, From Savage to Negro. pg 179

[viii] See Karenga, Maulana (1993). Introduction to Black Studies. Los Angeles: The University of Sankore Press. See generally Chapter 4, Black Sociology

[ix] For example see Zhou, Min (1992). Chinatown: The Socioeconomic Potential of an Urban Enclave. Philadelphia: Temple University Press.

[x] See Archer, Margaret (1995). Realistic Social Theory: The Morphogenetic Approach. Cambridge: Cambridge University Press.

[xi] D'Amico, J. J. (2001). A closer look at the minority achievement gap. ERS Spectrum, 19(2), 4�10.

[xii] Steinberg, Stephen (1995). Turning Back: The Retreat from Racial Justice in American Thought and Policy. Boston: Beacon Press, pg 108

[xiii] Myrdal, An American Dilemma. specifically pg. 643

[xiv] Thurgood Marshall At The Annual Seminar of the San Francisco Patent and Trademark Law Association - In Maui, Hawaii May 6, 1987 at www.thurgoodmarshall.com/speeches/constitutional_speech.htm

[xv] Steinberg, Turning Back. pg x