Brown v. Board of Education in International Context
Centre for Human Rights
University of Pretoria, South Africa
February 7, 2006

Ruth Bader Ginsburg
Associate Justice
Supreme Court of the United States

Although the Brown decision did not refer to international law or opinion, there is little doubt that the climate of the era explains, in significant part, why apartheid in America began to unravel in the late 1940s, in the aftermath of World War II. The United States and its allies had fought, successfully, to destroy Hitler's Holocaust Kingdom and the rank racism that prevailed during the years of Nazi ascendancy in Europe. Yet our own troops, when we entered that War, were racially segregated. In the midst of the War, in 1942, Swedish economist Gunnar Myrdal published The American Dilemma in which he observed: "America, for its international prestige, power and future security, needs to demonstrate to the world that American Negroes can be satisfactorily integrated into its democracy."

Illustrative of the growing awareness as the War progressed, a young Rabbi, Roland B. Gittelsohn, then a service chaplain, delivered a eulogy over newly-dug graves of U.S. Marines on the Pacific Island of Iwo Jima. In words preserved at the Harry S. Truman Presidential Library, Rabbi Gittelsohn spoke of the way it was, and the way it should be:

"Here lie men who loved America . . . , officers and men, Negroes and whites, rich men and poor, together. . . . Here no man prefers another because of his faith, or despises him because of his color. . . . Among these men there is no discrimination, no prejudice, no hatred. Theirs is the highest and purest democracy. . . . Whoever of us . . . thinks himself superior to those who happen to be in the minority, makes of this ceremony, and of the bloody sacrifice it commemorates, [a] . . . hollow mockery.

To this, then, as our solemn, sacred duty do we, the living, now dedicate ourselves, to the right of Protestants, Catholics and Jews, of white men and Negroes alike, to enjoy the democracy for which all of them have here paid the price."

The author of the Brown decision, Chief Justice Earl Warren, reflected some 18 years after the 1954 judgment:

The reversal of race relation policies in the United States "was fostered primarily by the presence of [World War II] itself. First, the primary enemy of the Allies, Nazi Germany, was perhaps the most conspicuously and brutally racist nation in the history of the world. . . . The segregation and extermination of non-Aryans in Hitler's Germany were shocking for Americans, but they also served as a troublesome analogy. While proclaiming themselves inexorably opposed to Hitler's practices, many Americans were tolerating the segregation and humiliation of nonwhites within their own borders. The contradiction between the egalitarian rhetoric employed against the Nazis and the presence of racial segregation in America was a painful one."

The Cold War between the United States and the Soviet Union was in full sway in 1954, the year Brown v. Board was decided. University of Virginia Law Professor Michael Klarman, author of a monumental 2004 publication, titled FROM JIM CROW TO CIVIL RIGHTS, wrote of the era: "U.S. democracy was on trial, and southern white supremacy was its greatest vulnerability, made all the more conspicuous by the postwar overthrow of colonial regimes throughout the world." President Truman's civil rights committee cautioned: "[T]he United States is not so strong, the final triumph of the democratic ideal is not so inevitable, that we can ignore what the rest of the world thinks of our record."

In an amicus brief for the United States filed in Brown, the Attorney General urged:

"The existence of discrimination against minority groups in the United States has an adverse effect upon our relations with other countries. Racial discrimination . . . raises doubts even among friendly nations as to the intensity of our devotion to the democratic faith."

The brief included a letter from Secretary of State Dean Acheson on the negative impact of race discrimination upon the conduct of U.S. foreign relations. Acheson wrote:

The United States is under constant attack in the foreign press, over the foreign radio, and in such international bodies as the United Nations because of various practices of discrimination against minority groups in this country. . . . [T]he continuance of racial discrimination in the United States remains a source of constant embarrassment to this Government in the day-to-day conduct of its foreign relations; and it jeopardizes the effective maintenance of our moral leadership of the free and democratic nations of the world.

Within an hour of the Chief Justice's announcement of the Court's unanimous conclusion that, "[i]n the field of public education, the doctrine of 'separate but equal' has no place," the Voice of America broadcast the news, in 34 languages, around the globe. The U.S. Information Agency promptly placed articles on Brown in almost every African journal. Time magazine commented: "In many countries, where U.S. prestige and leadership have been damaged by the fact of U.S. segregation, it will come as a timely reassertion of the basic American principle that 'all men are created equal.'" Newsweek magazine observed: "[S]egregation in the public schools has become a symbol of inequality . . . . Now that symbol lies shattered."

The press in Western Europe similarly applauded Brown. In Paris, Le Monde announced on its front page: "This long-awaited judgment marks a victory of justice over racial prejudice, a victory of democracy . . . ." The Times of London hailed the decision as "among the most important and far-reaching [the U.S. Supreme Court] has ever handed down." The Manchester Guardian expressed "immense relief" that the United States had "put behind it what has long been its worst reproach . . . ." South of the U.S. border, the Municipal Council in San Paulo, Brazil cheered Brown as "establishing the just equality of the races, essential to universal harmony and peace."

In Africa, coverage was extensive. A dispatch from the American Consul in Dakar, Senegal reported that the decision was "greeted with enthusiasm in French West Africa although the press [there] has expressed some slight skepticism over its implementation." The weekly Afrique Nouvelle reported on Brown under this headline: "At last! Whites and Blacks in the United States on the same school benches." Black members of Kenya's Legislative Council expressed the hope that their country would follow suit:

"Here in Kenya we are supposed to create one nation of all races. If we are not educated together, we will live in fear of one another. If we are to stay together forever, why should we have separate schools? Children will learn to know each other intimately in the same schools and fear will disappear."

Not all reactions to Brown were positive. A dispatch from the U.S. Embassy in South Africa reported: "Most South African Whites are segregationists . . . [T]hough they may see some similarity in America's color problem, [they] regard their own racial situation as having no true parallel elsewhere. Their interest in the decision, then, would be very academic." But just four years later, British Prime Minister Harold Macmillan spoke out in South Africa's Parliament against apartheid. He referred to the "wind of change" blowing through the continent of Africa, change Brown helped to promote.

Massive resistance to Brown mounted in the South of the United States in the late 1950s continuing into the 1960s. Foreign publications took note. Despite, or perhaps because of, the southern defiance, the world recognized that the U.S. Supreme Court had stepped ahead of the country's political branches (Congress and the President) and prevailing views in many States in pursuit of equal justice under law.

The pursuit of equal justice under law became a major part of the international human rights agenda. In 1965, the United Nations presented for ratification the International Convention on the Elimination of all Forms of Racial Discrimination. Signed by 180 States as of January 2006, and at last ratified by the United States in 1994, the Convention provides that the State Parties "particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction."

Of the enduring legacy of Brown, Richard Goldstone, retired Justice of the South African Constitutional Court, and Brian Ray, Justice Goldstone's 2003 term foreign law clerk, wrote that Brown had demonstrated "the ability of courts to promote human rights and [of] lawyers to effect social change." Goldstone and Ray referred to decisions in Canada, South Africa, Trinidad & Tobago citing Brown on the importance of education and equal access to it in a democratic society. Those authors also noted cases in New Zealand and South Africa citing Brown on the power of courts to "issu[e] orders that would impact budget decisions," orders that might require continuing court surveillance.

On a personal note, Brown and its forerunners, along with the movement for international human rights ensued, powerfully influenced the women's rights litigation in the USA in which I was engaged in the 1970s. Thurgood Marshall and his co-workers sought to educate the U.S. Supreme Court, step by step, about the pernicious effects of race discrimination. Similarly, advocates for gender equality sought to inform the Court, through a series of cases, about the injustice of laws ordering or reinforcing separate spheres of human activity for men and women. The ACLU's Women's Rights Project, which I helped to launch and direct, was among the organizations inspired by the NAACP Legal Defense and Education Fund's example.

Advocates of equal citizenship stature for men and women laboring in the 1970s, of course, did not encounter the brand of opposition Thurgood Marshall and his aides experienced in his years at the helm of the NAACP's Legal Defense and Education Fund. Our lives were never in danger because of our advocacy, and we had no problem finding accommodations when we were litigating cases out of town. But of one thing there was no doubt. We gained courage and inspiration from the litigation campaign that led to and followed Brown. We copied the strategy of educating judicial audiences in measured movements, in ways digestible by, and palatable to, the decisionmakers. Brown figured several years ago in a typically fine decision by Israel's Chief Justice, Aharon Barak. The Israel Land Administration had denied the asserted right of Arabs to build their homes on land in Israel open to the general public for home construction. The Administration defended reservation of permission to build to non-Arab applicants on the promise that it would allocate land to establish an exclusively Arab communal settlement. Citing Brown, the Israeli Supreme Court ruled that such allegedly separate-but-equal treatment constituted unlawful discrimination on the basis of national origin.

To sum up, Brown both reflected and propelled the development of human rights protection internationally. It was decided with the horrors of the Holocaust in full view, and with the repressive regimes in the Soviet Union, Eastern Europe, and South Africa a then current reality. It propelled an evolution yet unfinished toward respect, in law and in practice, for the human dignity of all the world's people.