Court, Congress and Equal Protection: What Brown Teaches Us About the Section 5 Power

Abstract

As a broad statement of federal constitutional rights striking down a longstanding practice of a basic state governmental function, Brown v. Board of Education ushered in a decades-long (and still ongoing) struggle between states and the federal courts. Much of that struggle centered on the difficulty that courts, as institutions, experienced when attempting to oversee the dramatic changes Brown required in school operations. This paper considers how Congress did assist and could have further assisted the courts in this endeavor, and what this analysis suggests about the appropriate scope of Congress' power under Section 5 of the Fourteenth Amendment. It examines how Congress' particular institutional capabilities make it better able than courts to take some of the steps necessary to a full implementation of Brown's desegregation mandate. It illustrates these comparative competencies by examining the Supreme Court's decision in Milliken v. Bradley, where the Court struck down a lower court's ambitious desegregation plan, largely because of concerns of judicial overreaching, and by suggesting how congressional action would have been less vulnerable to criticism. This examination necessarily brings us to the Court's recent practice of closely scrutinizing congressional action justified under the Section 5 power. Accordingly, the paper concludes by evaluating the Court's recent Section 5 jurisprudence in light of the foregoing examination of when congressional action would have been helpful in "enforcing" Brown's mandate.

Keywords: constitutional law, civil rights, school desegregation, congressional power