Brown's Triumph And Hand's Blunder

FORTY years after the Supreme Court's historic decision on May 17, 1954, ending segregation in America's public schools, desegregation still jolts along a rocky road (See Cover Story, Page 9). But as a triumph of shrewd and patient lawyering - and, ultimately, of American idealism - Brown v. Board of Education has lost none of its luster in four decades.

Although the story behind the Brown decision has been told before, it bears repeating this anniversary year. The dramatic history is engagingly recounted from an insider's perspective in ``Crusaders in the Courts'' (Basic Books/HarperCollins, 634 pp., $30) by Jack Greenberg, a former lawyer with the NAACP Legal Defense and Education Fund (LDF) who helped litigate the case, and who later headed the LDF.

The Brown case, which originated in Topeka, Kan., was just one of five school-segregation appeals that the Supreme Court accepted and consolidated for review; the other cases came from South Carolina, Virginia, Delaware, and the District of Columbia. In all but the Delaware case, lower courts had ruled that segregation in public schools was permitted under the Constitution, as long as ``separate'' facilities were ``equal.''

For a number of years under the leadership of the legendary Thurgood Marshall (later a Supreme Court justice), LDF lawyers had been winning cases brought by blacks for admission to all-white institutions like colleges and professional schools, but always on the ground that underfunded all-black institutions were not comparable. Meanwhile, the LDF had been patiently nudging cases that could directly challenge the ``separate but equal'' doctrine through various state courts. This long-march strategy culminated in the Brown grouping of appeals.

The cases were first argued before the Supreme Court over four days in December 1952. But the following June the justices asked that the cases be reargued, and that the opposing lawyers specifically answer five questions about the history of school segregation and the background of the post-Civil War 14th Amendment.

Mr. Greenberg describes the enormous effort that LDF lawyers, together with a wide network of historians and constitutional experts, poured into researching and writing more than 1,000 pages of documents that were filed with the court prior to the new arguments in December 1953.

Five months later the Supreme Court handed down the 9-to-0 decision that, in ensuing years, put to rout legalized racial discrimination in the United States. (Others have described the behind-the-scenes cajoling by Chief Justice Earl Warren and Justice Felix Frankfurter that produced the unanimous decision.)

N a sterling 52-year career, Learned Hand, a federal judge, made few blunders of legal judgment. But he made - or was led astray into - a serious miscalculation as to the significance of Brown v. Board of Education, according to Gerald Gunther in a new biography of the jurist (See review, left).

Delivering the prestigious Oliver Wendell Holmes Lectures at Harvard Law School in 1958, the 86-year-old Judge Hand pursued his career-long attack on ``judicial activism,'' whereby judges, according to this view, usurp the role of legislators in making policy judgments. In the course of his analysis, Hand (though a staunch supporter of civil liberties) even chided the Supreme Court for its ruling in Brown.

According to Professor Gunther, Hand mistakenly interpreted Brown as a case about education policy (a legislative issue) rather than a fundamental condemnation of racial injustice in America - a constitutional stance that Hand would have supported.

Gunther speculates that Hand was steered toward this narrow interpretation by his longtime friend Felix Frankfurter, who worried that Brown would be used to invalidate laws barring mixed-race marriages (as it was). Although he was no racist, Justice Frankfurter feared that such an extension of the Brown principle would stiffen Southerners' resistance to desegregation.

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