I recently attended a talk by Hadley Arkes on jurisprudence in which, among other things, he criticized the reasoning of the Supreme Court in Brown v. Board of Education, the landmark school desegregation case from 1954. The Court declared the unconstitutionality of segregation on the basis of Kenneth Clark’s social science research on the self-esteem of black children, contending on that basis that “separate but equal” education was a myth: “Separate educational facilities are inherently unequal.” In addition to mischaracterizing the research, the Court’s decision was limited in several respects: (1) It failed to address the question whether separate facilities would be constitutional if they could be made equal; (2) It offered at best a contingent reason to reject segregation, finding nothing objectionable in segregation per se; and (3) it struck down segregation in education on grounds specific to education; its reasoning could not simply be duplicated in other cases involving segregation in other contexts.
What puzzles me is a question I have heard Robert Bork raise: Why didn’t the Court address segregation much more directly? Consider Chief Justice Warren’s introduction:
In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, they had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment.
Why not continue:
In every case, white students were permitted by law to attend the schools in question; black children were not, solely because of their race—a factor, all parties agree, of no relevance to providing or achieving the goal of education.
And then simply conclude, with Warren:
[S]uch segregation is a denial of the equal protection of the laws.
Arkes thinks the Court could not take this direct path because it had eschewed natural law. Undoubtedly natural law would reinforce the direct approach, but I don’t see why it’s necessary to it. I suspect the answer lies in the Court’s understanding of equality itself—roughly, in understanding it substantively rather than procedurally, as involving rights to equal things instead of rights to equal treatment under the same rules.