Vol. 15 No.6 (June 2005), pp.563-567
THE NAACP’s LEGAL STRATEGY AGAINST SEGREGATED EDUCATION, 1925-1950 (2nd ed.), by Mark V. Tushnet. Chapel Hill: University of North Carolina Press, 2005. 264pp. Paper. $17.95. ISBN: 0-8078-5595-2.
Reviewed By Scott Lemieux, Department of Political Science, Hunter College, CUNY. Email: firstname.lastname@example.org .
The 50th anniversary of the great school desegregation case BROWN v. BOARD OF EDUCATION in 2004 saw the culmination of a series of fine books examining the background, impact and legacy of the landmark decision. These books include Kevin McMahon’s RECONSIDERING ROOSEVELT ON RACE, James Patterson’s BROWN v. BOARD OF EDUCATION: A CIVIL RIGHTS MILESTONE AND ITS TANGLED LEGACY, Charles Ogletree’s ALL DELIBERATE SPEED, and Michael Klarman’s superb FROM JIM CROW TO CIVIL RIGHTS. In addition to these new books, two important ones have been reissued with new epilogues assessing BROWN: Richard Kluger’s SIMPLE JUSTICE, and a book that in some ways represents a counternarrative to Kluger, Mark Tushnet’s THE NAACP’s LEGAL STRATEGY AGAINST SEGREGATED EDUCATION. Tushnet—also the author of a masterly two-volume historical biography of Thurgood Marshall that is essential reading for anybody with an interest in BROWN and its aftermath—focuses on the litigation strategy of the NAACP and its Legal Defense Fund (LDF) as it attempted to challenge segregated educational systems in the quarter century prior to BROWN (Tushnet 1994; 1997) Although authors, such as Kluger, have generally presented the litigation leading to BROWN as part of a framework of coherent, carefully planned strategic choices by the NAACP, Tushnet emphasizes the conflicts and challenges the group faced as it attempted to undermine and overturn the “separate but equal” education sanctioned by the Supreme Court in PLESSY v. FERGUSON.
THE NAACP’s LEGAL STRATEGY AGAINST SEGREGATED EDUCATION begins with a grant given to the NAACP by the Garland Fund, which enabled the organization to conceive of and execute an attack on segregation through litigation. Litigation, Tushnet reminds us on more than one occasion, “is a social process,” and in keeping with this premise he then traces the development of this attack through a combination of historical detail, the broader political and economic context, and doctrinal analysis. The internal conflicts that affected the development of the NAACP’s attack on Jim Crow laws are evident from the very beginning. The chief administrator of the Garland Fund, Roger Baldwin, believed that “the law was to be used instrumentally and defensively” (p.4). This caused conflicts with the NAACP, whose leadership leaned toward what Tushnet calls “autonomous legalism,” the belief that legal norms, “at least occasionally,” could be used to remedy racial segregation (p.11). The NAACP [*564] eventually received a grant to pursue an attack through litigation (ironically, without the support of Baldwin, who voted against the NAACP’s grant proposals), although the grant was ultimately much less than the NAACP anticipated and required a plan that was much more truncated than its original plan. As the NAACP went forward with its three-pronged attack—filing suits, in chronological order—against segregated higher education, to equalize teacher salaries, and finally against primary and secondary education—the development of its litigation strategy was shaped by a fundamental paradox.
Tushnet convincingly argues that there are two crucial necessities for a successful litigation campaign: an intelligent general litigation strategy, and local support. On one hand, the fact that local support is critical for the success of litigation mitigates some of the ethical and democratic concerns that litigation used to produce social change can raise; although a group is theoretically able to launch a litigation campaign that is contrary to the interests of the plaintiffs and the majority of the community it seeks to represent, such litigation is likely to be ineffectual. Tushnet’s findings, which repudiate the common conception of litigation as a zero-sum conflict between litigation and other forms of democratic politics, anticipate the later insights of the literature on legal mobilization (e.g., Merry 1990; McCann 1994; Epp 1998). On the other hand, however, dependence on local support necessarily undermines the development of a coherent, centralized litigation strategy, and leaves litigators at the mercy of local contingencies. For example, “[u]niversity desegregation was thwarted in North Carolina by the strength of the accomodationist elements there, and the opposition of the Wichita teachers to the direct attack forced the NAACP to shift its attention to Topeka” (p.147). The need for local support shaped strategy as well as tactics; the NAACP chose to attack segregation in higher education first largely because it was much easier to find willing plaintiffs. While any successful litigation campaign requires some measure of control by savvy litigators, on some level litigation is always an ad hoc enterprise, requiring flexibility and the ability to take advantage of unanticipated problems (and not to be unduly damaged by inevitable setbacks.) The effects of local impact were amplified, Tushnet argues, by the personal characteristics of Charles Hamilton Houston, who was the NAACP’s special counsel throughout much of this period. Houston was “more comfortable with pinpoint activities, frequently responsive more to the demands of the moment than those of the plans” (p.35). His successor, Thurgood Marshall, did tend to have a broader strategic vision—engineering, for example, a significant delay before beginning a direct attack on segregation. But the purpose of this delay was to mobilize sufficient support to make the attack more viable.
Tushnet’s process-based account has a number of virtues. First, he avoids the trap of making the outcome of particular actions seem intentional and inevitable after the fact. Unlike scholars who focus more specifically on Brown and a few other Supreme Court landmarks, Tushnet both details the false starts and dead ends that accompanied more successful litigation and demonstrates that many of the cases that became [*565] crucial precedents did not seem particularly important at the time. Second, he is able to capture the complexity and contradictions within organizations that it is tempting to see as unified. The NAACP both had its share of internal conflicts and also had its approach to litigation shaped by (and, in turn, had its own impact on) local communities upon which it was dependent for plaintiffs and political and financial support. Finally, Tushnet is attentive to important external factors, while avoiding excessive structural determinism. Individuals and particular local circumstances, as well as broader political and economic forces, matter. As Tushnet argues convincingly, although the Great Migration, the cold war and the increasing support of the NAACP’s positions by the executive branch all made successful litigation more likely, they did not make it inevitable. As previously noted, the leadership of Charles Houston and Thurgood Marshall, in particular, was crucial to overcoming the paradox of requiring both strategic vision and local control: “Both Houston and Marshall,” Tushnet notes, “had enormous ability at the essential, and fundamentally political, task of coordinating the interests of the various constituencies that the NAACP’s litigation had to satisfy” (p.157). Not all groups will be similarly well-situated to take advantage of opportunities presented by structural changes.
The new edition of THE NAACP’s LEGAL STRATEGY AGAINST SEGREGATED EDUCATION contains a freshly written assessment of the ultimate effects of BROWN that builds on some of the speculations in the original conclusion. The first part of the epilogue discusses the recent scholarship on BROWN’s impact, beginning with Gerald Rosenberg’s argument in his seminal book, THE HOLLOW HOPE, that the impact of BROWN has been greatly overstated. Tushnet accepts two of Rosenberg’s major claims: that BROWN had virtually no direct effect on desegregation in the Deep South (or race relations more broadly), and that judicial decisions in and of themselves are unlikely to generate social change. Like many of the scholars who have built upon and critiqued Rosenberg’s work, Tushnet is considerably more skeptical of Rosenberg’s treatment of BROWN and later civil rights legislation as essentially independent events, as well as the ways in which Rosenberg measures the indirect effects of BROWN (see e.g., Simon 1992; McCann 1996; Schultz 1998).
This section of the Epilogue is a useful summary of the literature on the subjects, although his conclusions are, while persuasive, not particularly novel. The more original contribution of the new chapter is Tushnet’s connection of the literature on the impact of BROWN to his recent work on “constitutional orders” (2003). Tushnet argues that constitutionalism goes beyond judicial doctrine but is also connected to political regimes more broadly. A crucial effect of the NAACP’s litigation, then, was to facilitate the consolidation of the New Deal/Great Society coalition, while slowly undermining the conservative southern Democrats who opposed many of its guiding principles. The fact that the NAACP’s litigation became connected to the governing regime, Tushnet argues, explains why early successes in fields such as welfare rights and death penalty litigation failed to [*566] achieve the same kind of success as earlier civil rights litigation, and also explains why the impact of Brown itself was ultimately blunted, after the governing coalition lost power. In addition, Tushnet points out that the relatively successful liberal litigation of the Warren Court era played a role in the ultimate fracture of the New Deal/Great Society coalition by speeding the peeling off of both southern and northern whites by the Republican Party. The use of constitutional orders represents a promising way of studying the political impact of litigation and courts.
Despite the book’s complex historical narrative, it is persuasively and rigorously argued, containing many shrewd insights and raising few quibbles. Indeed, admirers of Tushnet’s subsequent work may miss his bold, counterintuitive (but often surprisingly persuasive) claims, such as his argument that the Court would have likely overturned PLESSY even had Chief Justice Vinson not been replaced by Earl Warren (1994, ch.13), or his argument that Clarence Thomas’s jurisprudence is much more unique and substantively interesting than that of Antonin Scalia (2005, chs.3, 5.) Even if a reader disagrees with Tushnet’s most proactive claims, they can alter and deepen one’s thinking about the subject at hand. The closest THE NAACP’s LEGAL STRATEGY comes to a similar moment is his discussion in the Conclusion about W.E.B. Dubois’ misgivings about the project of challenging segregation in the context of structural racism as well as the use of litigation more broadly. Tushnet expresses a measure of sympathy for these arguments, but the discussion is not well-developed and also suffers from situating the Dubois arguments within a dichotomy between “competitive individualism” and a potential “communitarian legal strategy.” While the “liberalism/communitarianism” debate among political theorists was extremely active at the time of the book’s original publication, the limitations of this framework have since become manifest, and as a result this discussion is not likely to change one’s perspective on the extremely difficult underlying issues. The value of this book, rather, resides more in filling important gaps in historical knowledge and in its insights about the nature of political litigation. These, of course, are considerable achievements, and anyone interested in civil rights, interest group mobilization and/or the relationship between litigation and social change will benefit greatly from reading this book.
Epp, Charles R. 1998. THE RIGHTS REVOLUTION: LAWYERS, ACTIVISTS AND SUPREME COURTS IN COMPARATIVE PERSPECTIVE. Chicago: University of Chicago Press.
Klarman, Michael J. 2004. FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY. New York: Oxford University Press.
Kluger, Richard. 2004. SIMPLE JUSTICE. (Rev. and expanded ed.). New York: Knopf.
McCann, Michael W. 1994. RIGHTS AT WORK: PAY EQUITY REFORM AND THE POLITICS OF LEGAL MOBILIZATION. Chicago: University of Chicago Press. [*567]
McCann, Michael W. 1996. “Causal vs. Constitutive Explanations (Or: On the Difficulty of Being So Positive…).” 21 LAW AND SOCIAL INQUIRY 457-482.
Merry Sally E. 1990. GETTING JUSTICE AND GETTING EVEN. Chicago: University of Chicago Press.
Ogletree, Charles J. 2004. ALL DELIBERATE SPEED. New York: W.W. Norton.
Patterson, James T. 2002. BROWN v. BOARD OF EDUCATION: A CIVIL RIGHTS MILESTONE AND ITS TROUBLED LEGACY. New York: Oxford University Press.
Rosenberg, Gerald N. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago Press.
Schultz, David A. 1998. LEVERAGING THE LAW: USING THE COURTS TO ACHIEVE SOCIAL CHANGE. New York: Peter Lang.
Simon, Jon F. 1992. “The Long Walk Home to Politics.” 26 LAW AND SOCIETY REVIEW 923-941.
Tushnet, Mark V. 1994. MAKING CIVIL RIGHTS LAW: THURGOOD MARSHALL AND THE SUPREME COURT, 1936-1961. New York: Oxford University Press.
Tushnet, Mark V. 1997. MAKING CONSTITUTIONAL LAW: THURGOOD MARSHALL AND THE SUPREME COURT, 1961-1991. New York: Oxford University Press.
Tushnet, Mark V. 2003. THE NEW CONSTITUTIONAL ORDER. Princeton: Princeton University Press.
Tushnet, Mark V. 2005. A COURT DIVIDED. New York: Norton.
© Copyright 2005 by the author, Scott Lemieux.
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