Brown's Children's Rights Jurisprudence and How It Was Lost

Authors

Catherine E. Smith, Washington and Lee University School of LawFollow

Document Type

Article

Publication Title

Boston University Law Review

Publication Date

2022

Abstract

The first decision in Brown v. Board of Education is a landmark children's rights case that has been lost. After all, segregated education was not sui generis; free and independent Black children in the United States had always been perceived as a significant threat to White supremacy, just as their subjugation had always been a powerful and effective means to uphold it. In an unprecedented move to address this age-old practice, Brown I recognized Black children's right to protect themselves from government exploitation that targeted them because they were Black and young-erecting barriers in their equal path to adulthood in order to maintain a racial caste system across generations. Regrettably, the Supreme Court relinquished its groundbreaking children's rights precepts by shifting to an exclusive focus on Black and White adults' rights and interests. In Brown I 's aftermath, the Court abdicated Black children's rights through an effort to placate White adults' rights in Brown II, playing directly into the hands of segregationists. As the Court relinquished Black children's rights, the civil rights movement lost an indispensable weapon in the battle to desegregate K-12 public schools in the short-term as well as the opportunity for doctrinal and theoretical development of a more expansive and coherent children's equal protection jurisprudence in the long-term. Imagine if the Court had retained, nurtured, and developed Brown I's children's equality law precepts.

Recommended Citation

Catherine E. Smith, Brown's Children's Rights Jurisprudence and How It Was Lost, 102 B.U. L. Rev. 2297 (2022).