At HLS, Justice Breyer and nine appellate judges revisit Cooper v. Aaron
The U.S. Supreme Court ruling mandating school desegregation in Brown v. Board of Education in 1954 is considered a landmark decision. But the implementation of federal law prohibiting state-mandated school desegregation required a subsequent ruling in 1958, in Cooper v. Aaron, which held that states could not avoid desegregation by legislative action.
In October, the Charles Hamilton Houston Institute for Race and Justice sponsored a two-day conference at HLS looking back at Cooper v. Aaron and the impact it’s had on law and education over the course of nearly 55 years. The event brought together legal scholars, students, and civil rights lawyers, and featured a moot court proceeding, involving U.S. Supreme Court Justice Stephen Breyer ’64 and nine appellate judges, to revisit the legal questions raised by Cooper.
A conference highlight was a presentation by members of the Little Rock Nine, who, as teenagers, took part in an effort by the NAACP to break the racial barrier at Little Rock Central High School in 1957 and helped to pave the way for Cooper.
All four recalled the experience as a challenging one, requiring them to endure harassment from fellow students and the public. But they also remembered being committed to a cause.
On the first day the students arrived at the school in early September 1957, they were prohibited from entering by the Arkansas National Guard.
Terrence Roberts, who holds a Ph.D. in psychology and is on the faculty of Antioch University, said, “I’ve never experienced fear like I felt at Central High School.” But, he said, he understood that the law was on his side: “The Brown decision said we are legally able to do this. In a society that ostensibly obeys the rule of law, this was our opportunity.”
However, as Erwin Chemerinsky ’78 pointed out during the moot court oral argument, the degree to which student bodies have become racially mixed in many school districts has been far from encouraging. “Fifty-eight years after this Court’s decision in Brown v. Board of Education, American public schools are increasingly separate and unequal,” said Chemerinsky, dean at the University of California, Irvine School of Law and acting in the role of counsel to two plaintiff students in a fictitious case.
The case was created to stimulate a discussion about the extent to which race may now be considered in any judicial remedy to achieve desegregation and whether desegregation can be “coterminous” with educational equity.
After Chemerinsky and HLS Professor of Practice Nancy Gertner, as counsel to the defendant, presented their arguments, the justices engaged in public deliberation that revealed strong concerns about the degree to which courts now have the power to achieve desegregation.
Judge Harry T. Edwards, U.S. Court of Appeals for the D.C. Circuit, said that even though Brown and Cooper were momentous rulings, they were far simpler matters of law than those found in the current legal climate in which many black families are trying to get their kids out of low-performing poorer schools. “I wish I knew what the answer is, but I don’t,” he said. “I do know that as a judge, there’s not an easy way for me to determine how to solve the social problems of the public schools with the legal principles that are now in place.”
But Justice Breyer sounded an optimistic note to conclude the proceedings: “When you start pointing out that there’s this tremendous discrepancy, that we are a democracy and we have human rights and we are comparatively rich as a country, people are going to start thinking more and more that this is not a normal situation.”