American Journal of Law and Equality Symposium on the 70th Anniversary of Brown v. Board of Education

The American Journal of Law and Equality has just published a symposium on the 70th anniversary of Brown v. Board of Education, possibly the Supreme Court’s most iconic decision.  The symposium includes contributions by many prominent legal scholars, including Mark Tushnet, David Strauss, Geoffrey Stone, Sheryll Cashin, and my Volokh Conspiracy co-blogger David Bernstein, among others.

My own contribution, entitled “Brown, Democracy, and Foot Voting,” is available on SSRN and also at the AJLE site. Here is the abstract:

Traditional assessments of Brown‘s relationship to democracy and popular control of government should be augmented by considering the ways it enhanced citizens’ ability to “vote with their feet” as well as at the ballot box. Brown played a valuable role in reinforcing foot voting, and this has important implications for our understanding of the decision and its legacy.

Part I of the article summarizes the relationship between foot voting and ballot box voting, and how the former has important advantages over the latter as a mechanism of political choice. Relative to ballot box voting, foot voting offers individuals and families greater opportunities to make decisive, well-informed choices. It also has special advantages for minority groups, including Blacks.

Part II considers traditional attempts to reconcile Brown and democracy, through arguments that the decision was actually “representation-reinforcing.” While each has its merits, they also have significant limitations. Among other flaws, they often do not apply well to the Brown case itself, which famously originated in a challenge to segregation in Topeka, Kansas, a state in which – unlike most of the South – Blacks had long had the right to vote.

Part III explains how expanding our understanding of Brown to include foot voting opportunities plugs the major holes in traditional efforts to reconcile the decision and democratic choice. Among other advantages, the foot-voting rationale for Brown applies regardless of whether racial minorities have voting rights, regardless of whether segregation laws are motivated by benign or malevolent motives, and regardless of whether the targeted ethnic or racial groups can form political coalitions with others, or not.

In Part IV, I discuss the implications of the foot-voting justification of Brown for judicial review of other policies that inhibit foot voting, particularly in cases where those policies have a history of illicit racial motivations. The most significant of these is exclusionary zoning.

As I noted in the article, it is difficult to produce a thesis on Brown that is both original and useful. More has been written about this ruling than almost any other Supreme Court case. Readers will have to judge whether I managed to succeed.

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