By everyone, I mean everyone with any legal knowledge at all. Obviously, in order for someone to know that a case was wrongly decided, they would have to know the law.

If "everyone" was aware of these things, then it's highly likely that not "everyone" would consider it a good thing.

As I said, just run a search on Brown on Lexis or Westlaw and you'll find about 10,000 law review articles defending Brown. As I mentioned in my post above, begin with Bickel's 1955 Harvard Law Review article. Bickel was a clerk for Frankfurter on the 1954 Court that decided Brown and whose task was to compile the legislative history of the 14th Amendment.

Obviously, in order for someone to know that a case was wrongly decided, they would have to know the law.

Or, they would have to have been told by someone who knows the law. But as it is, such voices have been completely shut out from the public forum. If, however, that were to change, then public opinion would almost certainly change. So the only question remaining is, are you helping to make that change, or are you helping to keep it the way it is? If you're helping to keep it the way it is, then you're helping judicial activism to reign supreme, because once it's accepted in this one case, there's no objective standard that can be invoked that would prevent it in other cases.

The Brown v. Board of Education Fraud

Pop psychology masquerading as legal reasoning

By Ellis Washington

[Reprinted from Issues & Views July 15, 2003]

The following was originally sent by legal analyst Ellis Washington as a letter to Detroit News reporter Kimberly Hayes Taylor, in reference to her article about a recent fundraiser hosted by Judge Damon J. Keith, of the U.S. Circuit Court of Appeals, and Michigan Governor Jennifer Granholm. This gala event celebrated the 1954 Brown v. Board of Education Supreme Court decision. Washington had planned to attend the event but, upon reflection, decided he could not give it his support. He tells why.

Dear Ms. Kimberly Hayes Taylor:

This letter is in regard to your article, "Judge Damon Keith, governor host fund-raiser on Saturday." I just heard about this event listening to NPR today and planned on attending because I have always wanted to meet Judge Keith, however, after further reflection, I decided not to attend this event on principle.

What is the principle you might ask? Brown v. Board of Education, arguably one of the most famous cases of the 20th century, is the reason. Ms. Taylor, let me be clear, as a law scholar, writer and lecturer, I have studied this opinion in great detail and even more importantly, I have studied the constitutional law and legal history behind this decision and have come to the following conclusions about this most noted case:

There is not a single judicial precedent in the entire Brown opinion.

The Brown opinion was based on the political pressures of the day, not on universal principles like the Rule of Law, Natural Law, morality, equality, justice, truth.

The Brown opinion was based on the false social science of racial relativism (all people are equal no matter what they do) and radical liberalism (separation of morality from public policy). The Court even cited what later proved to be the flawed scientific research of Dr. Kenneth Clark and Dr. Mamie Phipps Clark, the famous sociologist team that studied at Howard and received their Ph.D's from Columbia University. Their studies centered on color and how black children favored white dolls as the prettiest as evidence of self-hatred in the black community due to America's history of racial segregation in society. Their research on color and dolls was critical in persuading the Court to adopt the then radical public policy remedy of racial integration of the public schools in America.

The Brown opinion was founded on purely Positive Law grounds (secular, man-made law) rather than on Natural Law (morality/legality integrated out of the Judeo-Christian tradition) or on constitutional grounds (particularly the 5th Amendment Due Process Clause, 14th Amendment Privileges and Immunities and Equal Protection Clauses).

The Court refused to utilize any of the arguments the Abolitionists had used for over a century because their ideas were based on morality and affirmed the dignity of all God's creation–including black people. The Court thought that the Abolitionist's reasoning about black people being equal to white people on Natural Law, moral, religious or humanitarian grounds as fanatical, provincial and unsophisticated.

The Court used humanistic and New Age language, like this: segregation in education must end in America because to keep segregated schools based on race would "hurt the feelings" of "Negroes" and their "self-esteem" and "educational success" would be hindered. In one telling passage the Court quoted from the researcher's brief which was included in the arguments the NAACP presented to the Court: "To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. . ."

Allow me to sarcastically surmise that "self esteem" was why black people for over 250 years suffered the incessant rapes, the torturing, the lynchings, the back breaking work, the maniacal mayhem of slavery in America; that avoiding "feelings of inferiority" was why hundreds of thousands of people (black and white) were killed in the Civil War that ended slavery; and that improving "their status in the community" and going to school with white people was why millions of black people suffered for another 100 years after slavery ended under the bondage of Jim Crow segregation.

Bluntly speaking, Ms. Taylor, the type of pop psychology masquerading as legal reasoning the Court used in the 1954 Brown decision was totally fraudulent then as it is totally fraudulent now--lacking in any legitimate judicial precedent, a valid historical context, or plausible constitutional foundation. The Brown opinion forever created in the minds of American society that black people are not equal to white people based on the moral suppositions of the Constitution.

The entire Brown opinion should have been one, perhaps two paragraphs long. All the Court had to do was rely on the explicit text of the Constitution that all nine members of the Supreme Court are sworn to uphold by mandate of impeachment.

For over 100 years it has been settled Supreme Court precedent that all American citizens have a "liberty interest" in education, earning a living, etc. The 13th Amendment [Anti-slavery Clause] ended the savage practice of one man owning another man as property; 14th Amendment --"No State shall . . . abridge the privileges and immunities of citizens of the U.S. [or of] life, liberty, or property, without due process of law [Privileges and Immunities Clause]; nor deny . . . the equal protection of the laws" [Equal Protection Clause]. The 15th Amendment stipulates that "The right of citizens of the U.S. to vote shall not be denied or abridged by the U.S. or by any State on account of race, color, or previous condition of servitude."

Instead of relying on these explicit constitutional guarantees, the Court chose to compromise and used sophistic social science in a legal case that would cripple the education and lives of millions of black children for generations to come.

With all due respect to Judge Damon Keith (a jurist of the highest order) this gala event tomorrow [May 17, 2003] celebrating the Brown v. Board of Education case, is a terrible tragedy, not because I don't believe that black people should be allowed to attend school with whites. I am a black man--born and raised in Detroit and attended Detroit public schools with white children from K-12. However, to celebrate a court case such as Brown, which is obviously not based on a single judicial precedent, diminishes the Constitution that every American should put its faith in to uphold.

In 1954, there was a Faustian bargain made among the eight voting members of the U.S. Supreme Court, Congress, the President, as well as every court in America, every political leader, every public school, private school, law school, university, academy, and every responsible American citizen. To give legitimacy to Brown v. Board of Education, is to sacrifice lawful constitutional due process and sound constitutional jurisprudence for the expediency of the public policy fiction, which the Brown opinion solidified in American culture--that is, that black children must be allowed to attend public school with white children in order to get [equally] educated.

This type of misguided public policy presupposes that black people, prior to 1954, were totally uneducated, ignorant and, just waiting for Masser to open up the school house door so us poor negroes can finally get educated by going to school with the white folks! Ms. Taylor, the hateful assumptions Brown makes about our people should be publicly denounced by all rational persons of any race, class or creed.

In the final analysis, I hope that you will read the selected passages on the Brown opinion in my book, The Inseparability of Law and Morality: The Constitution, Natural Law and the Rule of Law (University Press of America,); mtownsend@univ.press.com, or http://www.univpress.com.

-- Ellis Washington, J.D., is Adjunct Professor of Business Law and Contracts at Davenport University, Dearborn, Michigan.