Brown Steered Courts Away from Economic Civil Rights, Goluboff Argues

October 31, 2005

GoluboffBrown v. Board of Education, the landmark 1954 school desegregation case often hailed for ushering in the civil rights era and striking a fatal blow to Jim Crow, may have helped perpetuate material inequalities between black and white Americans, according to law professor Risa Goluboff, who presented her research on pre- Brown civil rights strategies at a lecture sponsored by the Center for the Study of Race and Law Oct. 26.

"Brown is all about state action, all about dignity, not about material inequality," Goluboff said. "It seems to me that once you get to that place, you have no way to challenge the inequalities that still exist today in the United States."

Goluboff's research revealed that attention to race in the context of labor and economic issues was a key feature of pre-Brown civil rights cases, but labor issues dropped out of discussions about civil rights after 1954.

"[Today's] civil rights framework, which is all about identity and classifications by the state and the harms that those classifications visit on people, is the framework of civil rights that came after Brown, but it is not a framework that was inevitable before Brown, "Goluboff said. "Before 1954, nobody had a clue what civil rights were going to look like."

Until the end of the 1930s, the Supreme Court focused on property rights and the right to form contracts. After 1937, when the court started to scale back property and contract rights, labor and economic rights inspired by Franklin Roosevelt's New Deal policies seemed to be the next big movement in civil rights, she said.

Then, during World War II, race started to receive more attention, as African Americans used the rhetoric of the war to protest discrimination against them, and nationwide labor shortages made racial discrimination in hiring seem unpatriotic. During the 1940s, it looked as though labor rights, and especially labor rights of African Americans, might be the next focus of civil rights protections, Goluboff said. 

The Department of Justice's Civil Rights Section, formed in 1939, approached civil rights through labor issues. In the 1940s and early 1950s the department began taking cases from black agricultural workers who had been forced into involuntary servitude. The Department of Justice used the 13th Amendment, which prohibits slavery and involuntary servitude, to apply New Deal labor rights such as unemployment insurance and fair wage standards to domestic and agricultural workers, who had been excluded under the original labor policies.

"Civil rights stood at the intersection of racial and economic rights," Goluboff said. This intersection was important, she argued, because Jim Crow was not just about segregation but was instead a pervasive social and economic system that limited the opportunities of African Americans in a wide variety of ways.

During the 1940s, the NAACP did not take on agricultural workers' complaints, but it did take on industrial workers' claims about economic inequality. Then, at the end of the 1940s and early 1950s, the NAACP stopped taking economic cases and began to focus solely on state-mandated segregation.

According to Goluboff, the NAACP removed the question of material inequality in Brown in order to force the court to confront the immaterial stigma and harm to dignity that occur through government-imposed segregation. "Material inequality just muddies up the waters," she said.

Today, statistics show that African Americans are much more likely than white Americans to live in poverty, Goluboff pointed out. "I think that's the case because we allowed our constitutional law to ignore material inequality."

In recent years, when the Supreme Court heard cases about affirmative action, it considered only the issue of diversity and refused to consider arguments about reparations or the persistence of material inequality among racial groups. This, Goluboff said, is a result of the Brown doctrine on civil rights.

"We get to invalidate the half of Jim Crow that is about state actions, the half that is about state-mandated segregation and discrimination," Goluboff said, while the economic and privately operated aspects of Jim Crow remain in place.

Some historians have argued that civil rights for African Americans succeeded in part because segregation became an embarrassment for the United States in its culture struggle with the Soviet Union during the Cold War, Goluboff said. However, the Cold War also may have helped silence discussions about material inequality, which might have sounded suspiciously similar to communist rhetoric, she said.

Despite her misgivings about some aspects of Brown's legacy, Goluboff said she does not want to undermine its accomplishments. "I don't think that we would be in a good place today if we only got to material inequality and not to segregation," she said.

Goluboff received the Law and Society Association's Dissertation Prize in 2004 for her history dissertation about civil rights before Brown. She is currently working on revising the dissertation for publication as a book.

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