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Mark Tushnet, Brown's Underside, 4 Am. J. L. & Equal. 2 (2024).


Abstract: ♦“Brown”♦—the case as it has been assimilated into U.S. constitutional culture—combines several stories of success and failure. One failure is familiar: the promise of integration that some found in ♦Brown♦ was betrayed in its implementation. This essay tells a different story. ♦Brown♦’s success lies in the inspiration its result provided organizers and participants in the civil rights movement and in a doctrinal accomplishment that was far superior to any available alternative. In this telling, its failure lies in its real-world effects on important elements in African American culture and in a politically unfortunate perpetuation, perhaps even creation, of the myth of U.S. courts as instruments for advancing progressive policy goals.