Last week marked 62 years since the Brown v. Board of Education Supreme Court decision, and our public schools are by and large, as segregated as they were when the policies were banned. After all, the mandate to “outlaw segregation” is not the same thing as “have integrated schools,” and the farther a decision has to travel from courtroom to outcome, the less likely it is to deliver on its objective. And yet Brown remains a cultural touchstone with deep and consistent resonance for education professionals, civil rights activists, and attorneys.
Civil rights litigation is regarded with a reverence that is, perhaps, disproportionate to its reality. It is expensive, time consuming, fractious for communities, and emotionally exhausting. In 1976, leading critical race studies professor Derrick Bell published “Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation,” challenging the mainstream celebration of school desegregation litigation and describing the problem as one of a conflict of interest between lawyers invested in challenging segregation laws and their Black clients who wanted only high-quality schools for their children. Linda Brown, the student about whom the famous case was filed, has talked extensively about feeling exploited by a process that ultimately couldn’t provide integrated schools for her own children.
When we think about the purpose and effect of impact litigation, there are two recent cases that illustrate an important distinction: In a case like Obergefell v. Hodges, a righteous court opinion changed people’s lives overnight. Recently, we heard the same sort of evocative language used by the plaintiffs in Vergara v. California, where the legal victory alone wouldn’t guarantee changes, and any changes wouldn’t be felt for years. As a former education civil rights attorney myself, I’ve thought a lot about how these types of litigation both unite and divide the civil rights community as well as the part they play in education reform. Continue reading