Ask the Author: Interview with Martha Minow, part I

A book released last week, In Brown’s Wake, examines the legacies of Brown v. Board of Education in perhaps unexpected places: in struggles for the integration of non-racial identity groups, in social science, and abroad.  The author, Harvard Law School Dean Martha Minow, kindly agreed to an interview on the book for SCOTUSblog.

The transcript of the first half of our interview follows the jump; the second half will be published later this week.

1. The bulk of your book is about the impact of Brown on everything other than school racial integration – on social science, on the international community, and on the schooling of other identity groups, like girls, the disabled, English-as-a-second-language learners, and gays and lesbians.  Why did you decide to bring these topics together?

I was motivated to do that as the fiftieth anniversary of Brown approached. As someone who’s been involved in school reform issues as a scholar and as an advocate, I knew about these other repercussions, and assumed other people would talk about them – and I didn’t see anyone exploring these influences of Brown beyond the context of race.

2. I’m curious about your concept of “wake” as you use it in your title, In Brown’s Wake.  What causal role do you think Brown played in the legal and policy developments that you discuss in the book?  How would those events have happened differently – if at all – without Brown?

Causal analysis and “what if” questions are always problematic when one analyzes history because there are multiple causal paths to any complex occurrence – and certainly changes in social movements and in the treatment of groups in America are complex occurrences.  But I do think it’s pretty clear that in each of the strands that I pursue – Brown as a decision by the Supreme Court, Supreme Court litigation as a vehicle for changing the treatment of students in schools, and the legislative repercussions of Brown – each contributed to mobilization of groups around issues of immigrant status in the schools, gender, disability, religion, and other identity categories.

The legislative wave took ten years after Brown to get enacted.  The Civil Rights Act of 1964 rejected resistance to racial integration and at the same time in some ways predated the mobilization of the interest and advocacy groups turning to issues of immigration, gender, and disability.  Yet the influences of Brown become easy to trace when it comes to educational advocacy around immigration, disability, language, and many other areas, as many of the advocates involved were quite explicit in saying they were inspired by Brown.  Perhaps one of the most surprising examples of Brown‘s influence is the movement for equal treatment of religion and religious students in schools by the law.  The advocates in that area were very explicit that they wanted to copy the NAACP strategy in changing the law.

3. You repeatedly mention the symbolism of Brown in your book.  Do you think Brown has had a greater impact as a concrete legal opinion, or as a symbol?

The current status of actual racial integration across the country’s schools is disappointing in the sense that the schools across the country are not more integrated now than they were in the time that Brown was litigated.  I do believe that Brown v. Board of Education has had a greater concrete impact in schools outside the treatment of race – in terms of the day-to-day lives students and the enrollment patterns of schools in dealing with students with disabilities, gender equality, and students learning English, for example.  But even these concrete effects follow symbolic effects, at least in the treatment of students with disabilities, girls and now boys, students who are learning English, and so forth.

Your question is evocative, I think, and helps to connect with other reasons I had for writing the book. I have been very struck by the symbolic influence of Brown in inspiring social movements for school reforms and in inspiring litigation efforts to reform schooling in other countries that don’t have our same constitutional provisions.  Frankly, the symbol of Brown is powerful in this country in inspiring legal action that has nothing to do with schools and nothing to do with race.  And in that sense I do believe it’s had an enormous symbolic effect as well as a striking ability to rise to the top of most people’s lists of the great accomplishments of the U.S. Supreme Court.  That fact is itself remarkable given how controversial many people feared the case would be, and how controversial its implementation was.

4. You said a moment ago that the status of school racial integration after Brown is disappointing.  Do you think that’s partly due to shortcomings in the decision itself, or just how it’s been implemented?

Some — like my colleague Michael Klarman – argue that Brown itself in 1954 halted what would have been a more gradual, but direct, process toward integration.  There may well be shortcomings in the way that the Supreme Court followed with its remedy in 1955.  Certainly many have argued about that.  Yet the argument goes both ways.  Some people argue that Brown II used the phrase “all deliberate speed” as a sign to encourage resistance to its implementation.  Other people argue that if there had been any stricter enforcement, there would have been other kinds of backlash.    So this is a much-disputed question.  I don’t think I know the answer, I don’t think anyone really knows the answer.

But I do know that the resistance to Brown persisted in this country well into the early 1960s and it wasn’t until the Department of Justice took action in the 1960s following the 1964 Civil Rights Act that there was any serious effort in many parts of the country to enforce Brown.  Under that effort to have enforcement, school districts – especially in the South – became much more racially integrated, or shall we say desegregated, and the racial gap in achievement began to close, quite dramatically.  But the Court then backed off from that enforcement effort; it became a controversial issue all over the country, including in Boston which I have watched closely since the mid-1970s. And so it’s a very complicated and disappointing story, and I try to detail some of the features of that story in the book.

5. In the book you stress the social science in favor of mixing students from different backgrounds in order to foster tolerance.  Can you tell us more about that social science debate today?

One of the repercussions of Brown has been increasing reliance on social science research in school reform litigation and legislation.  This stems from the litigation in Brown itself.  Parties on both sides recruited social scientists to help them, and ever since that time there have been serious initiatives by social scientists – and some that are quite partisan – to study the impact of mixing students in schools, or other people of different backgrounds outside school settings..  hey study the influence on tolerance, on measures such as academic achievement, creativity, and so forth.  So what I try to do in the book is both document the impact of Brown on the disciplines of psychology and social psychology and to try to make sense of what have been rather heated debates in those fields.  And they’re heated debates in part because social scientists continue to be in relationship with, and working alongside, advocates on competing sides of reform efforts.  That goes for gender, English-language learning, and disability as well as race.  Trying to sort out what is rigorous social science and what is social science in name only performed on behalf of advocates has been one of the challenges of the book.

6. Should courts take into account the findings of social science, or should that consideration be left to policy makers?

I do believe that social science can serve a function in courts, and of course can be helpful in legislative matters.  However, paying attention to what are the norms that social scientists have themselves developed for reliability, statistical significance, and good research design would help to improve the quality of the evidence that is used both by courts and by legislatures.  And some humility about how objective any of these studies are would be helpful.  At the same time, I think it’s a mistake to rule all of it out of bounds as evidence for judicial decision-making.  There are findings, and there are insights, that can be useful, so long as they are not elevated as some kind of ultimate truth.  I’ve found it especially useful to turn to studies of the U.S. military schools that do seem to be fairly rigorous and do show the benefits of efforts at racial integration.