Abstract
A few years ago, J. Harvie Wilkinson (1974) wrote that Brown v. Board of Education 2 evoked a “certain nostalgia” for him, for Brown was “one of those last, great actions whose moral logic seemed so uncomplex and irrefutable, and whose opposition seemed so thoroughly extreme, rooted as it was in notions of racial hegemony and the constitutional premises of John C. Calhoun” (p. 133). This is a nostalgia that I share. Brown was premised on the notion that state statutes and constitutions that require the separation of White and Black children in the public schools are designed to and have the effect of stigmatizing Black Americans as inferior beings (Kluger, 1977). In the words of Charles Black (1960), “the social meaning of segregation is the putting of the Negro in a position of walled-off inferiority … [and] such treatment is hurtful to human beings” (p. 427). Whatever the original understanding of the 14th Amendment, the antidiscrimination principle, embodying the ethical assertion that race-dependent government decisions should be disfavored, is a principle of wide moral appeal that properly informs the interpretation and application of the Equal Protection Clause of that Amendment (Brest, 1976).
This chapter is a modified version of an earlier published work, School desegregation: Legal realism, reasoned elaboration, and social science research in the Supreme Court. Law and Contemporary Problems. Durham, N.C.: Duke University School of Law, 1979, 42(4), 57-110. Reprinted by permission of the publisher.
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Yudof, M.G. (1980). Nondiscrimination and Beyond. In: Stephan, W.G., Feagin, J.R. (eds) School Desegregation. Springer, Boston, MA. https://doi.org/10.1007/978-1-4615-9155-9_5
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DOI: https://doi.org/10.1007/978-1-4615-9155-9_5
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