When the Supreme Court announced its decision in Brown v. Board of Education, it declared equality of public education, from kindergarten through high school, to be a constitutional commitment. In this response to decades of careful advocacy by scores of lawyers, social scientists, parents and citizens, the Court framed the next fifty years of advocates’ work to reform American schools and, indeed, to reform American society. For by its example, as much as by its pronouncement, the Court signaled advocates to pursue 1) federal oversight of public schooling; 2) judicial rather than legislative focus for reform of racial, economic, and social inequities, and 3) a convergence of challenge to and remedies for racial discrimination, economic discrimination, and social segregation.
Fifty years later, the symbolic significance of Brown remains, but its roadmap for advocates generated frustration, disappointment, and in some respects even counterproductive results. As James Liebman and Charles Sabel detail, the “sad history of education in the last fifty years” includes deteriorating quality measured internationally and in light of demands of the changing economy, and declining rather than increasing public expenditures. Others document increasing racial segregation stemming from both white flight from courtsupervised desegregating schools and judicial retrenchment from the enterprise of racial desegregation. Public schooling in the United States needs serious improvement. While claims of crisis are probably both overstated and constant, the disparities in opportunities across districts and between racial and economic groups are astonishing and persistent, and underachievement is a problem across the entire nation. More general disillusionment with court-supervised reforms and with command-and-control public law has mounted during the same period. Starting in the 1980s, it became clear that people struggling for equality in schooling and throughout society needed new ideas and new strategies.
Voting rights advocates should explore section 11(b) of the Voting Rights Act as a vehicle to combat voter intimidation.
Mandatory arbitration for guestworkers, a uniquely vulnerable group, will result in class inequality and worse conditions for all workers.
An evidentiary privilege to protect workers' confidential communications from disclosure in federal and state court proceedings would support unions.
Labor organizing privilege is not a magic bullet that will secure the rights of workers to organize and collectively bargain. Employers will continue to resist the efforts of their workers to organize.