The fiftieth anniversary of Brown v. Board of Education' certainly warrants well-deserved celebration, but not one that deflects careful analysis of its legacy. Brown's legacy and what it says about the efficacy of litigation as a vehicle to achieve social change mean different things to different people. Perspectives on what Brown "means" and what it has accomplished vary tremendously and reveal just as much about ourselves as they do about the decision itself. This ambiguity invariably muddles Brown's legacy.
I argue that Brown's legacy does not bode well for future litigation efforts seeking to enhance the equal educational opportunity doctrine, principally due to how the doctrine has evolved during the past fifty years. Even if one concludes that Brown succeeded in the school desegregation context (itself a contested point), the nature of equal educational opportunity contests has changed over the decades in ways that make them even less amenable to litigation. Unlike past efforts, emerging litigation focuses more directly on student academic achievement rather than on race or school funding. Academic achievement implicates teaching and learning activities - activities located deeper inside schools and classrooms, and consequently, further from litigation's reach. If past education reformers and litigants found it difficult to influence such factors as school demographic profiles and funding levels, litigation efforts seeking to influence student achievement will likely encounter even greater difficulty. Furthermore, this substantive legal area's insulation from even successful litigation underscores its inherent complexity, the salience of nonlegal components and, more generally, the structural limitations of law and litigation as tools to achieve desired social change.
Litigated Learning and the Limits of Law,
57 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol57/iss6/9