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The Embattled Constitution$
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Norman Dorsen

Print publication date: 2013

Print ISBN-13: 9780814770122

Published to NYU Press Scholarship Online: March 2016

DOI: 10.18574/nyu/9780814770122.001.0001

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Judicial Methodology, Southern School Desegregation, and the Rule of Law

Judicial Methodology, Southern School Desegregation, and the Rule of Law

(p.55) 3 Judicial Methodology, Southern School Desegregation, and the Rule of Law
The Embattled Constitution

David S. Tatel

NYU Press

This chapter examines the path of school desegregation following the Supreme Court's landmark 1954 ruling in Brown v. Board of Education and its 1968 decision holding that states have an affirmative duty to eliminate racial segregation “root and branch.” It also explores the debate about judicial activism by revisiting two school desegregation cases that are related to Brown v. Board of Education, with particular emphasis on their flaws with respect to judicial methodology: Board of Education v. Dowell and Missouri v. Jenkins. After discussing the implications of these cases for constitutional interpretation and the role of the federal courts, the chapter considers two other Supreme Court post-Brown desegregation cases: Green v. County School Board of New Kent County and Swann v. Charlotte-Mecklenburg Board of Education. It shows how the Supreme Court, sometimes in disingenuous opinions, has retreated from the desegregation principles on which its 1954 and 1968 rulings were based.

Keywords:   school desegregation, Supreme Court, Brown v. Board of Education, racial segregation, judicial activism, judicial methodology, Board of Education v. Dowell, Missouri v. Jenkins, constitutional interpretation, federal courts

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