Tuesday, April 5, 2011

Footnote of the Day: Brown's Footnote 11

In Brown v. Board of Education, 347 U.S. 483 (1954), the unanimous Court grounded its reasoning for departing from of Plessy v. Ferguson’s “separate but equal” doctrine in its famous (or perhaps notorious) footnote 11, citing “modern authority” demonstrating the social and psychological problems attributable to racial segregation:

FN11. K. B. Clark, Effect of Prejudice and Discrimination on Personality Development (Midcentury White House Conference on Children and Youth, 1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI; Deutscher and Chein, The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion, 26 J.Psychol. 259 (1948); Chein, What are the Psychological Effects of Segregation Under Conditions of Equal Facilities?, 3 Int. J. Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs, in Discrimination and National Welfare (MacIver, ed., 1949), 44-48; Frazier, The Negro in the United States (1949), 674-681. And see generally Myrdal, An American Dilemma (1944).

 The language to which the footnote refers is

“Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. [FN 11] Any language in Plessy v. Ferguson contrary to this finding is rejected.”



Scholarship discussing footnote 11 is plentiful, but two explicit pieces that review the controversies are the Student Comment by Sanjay Mody, Brown Footnote Eleven in Historical Context: Social Science And The Supreme Court's Quest For Legitimacy, 54 Stanford L. Rev. 793 (2002), and Professor Michael Heise's Brown v. Board Of Education, Footnote 11, and Multidisciplinarity, 90 Cornell L. Rev. 279 (2005).   

Professor Malik Edwards seeks to “update” footnote 11 post- Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007) in  Footnote Eleven for the New Millennium: Ecological Perspective Arguments in Support of Compelling Interest, 31 Seattle U. L. Rev. 891 (2008).

Meanwhile, the organization that developed the litigation strategy of Brown - - - the NAACP - - - is undergoing its own changes with a new generation of leaders who are not exclusively African-American.  Yesterday's NPR story ishere.


with J. Zak Ritchie

[image: The Warren Court in 1953 via]


Cases and Case Materials, Courts and Judging, Equal Protection, Fourteenth Amendment, Games, History, Race, Scholarship, Supreme Court (US) | Permalink

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