Today marks the 70th anniversary of the landmark Supreme Court case, Brown v. Board of Education. This ruling is widely celebrated as one of the most important decisions in the Court’s history, yet it continues to spark controversy over its reasoning and its alignment with various constitutional theories. In commemoration of this anniversary, the American Journal of Law and Equality is hosting a symposium on Brown, and I am thrilled to have been invited to contribute. My article, titled “Brown, Democracy, and Foot Voting,” explores how the decision impacted citizens’ ability to make choices not only at the ballot box but also through “voting with their feet.”
In the first part of the article, I highlight the advantages of foot voting over traditional ballot box voting, emphasizing the ability for individuals and families to make well-informed decisions. Foot voting is particularly beneficial for minority groups, including African Americans. I then delve into traditional arguments attempting to reconcile Brown with democratic principles, pointing out their limitations, especially when applied to the Topeka, Kansas case where Blacks already had voting rights.
Expanding our understanding of Brown to include foot voting opportunities addresses the shortcomings of traditional justifications, offering a more comprehensive perspective on the decision’s significance. This rationale applies universally, regardless of voting rights, motives behind segregation laws, or the ability of minority groups to form political coalitions.
In the final part of the article, I explore the implications of the foot-voting justification for Brown on judicial review of policies that hinder foot voting, particularly those with a history of racial bias, such as exclusionary zoning. Despite the extensive literature on Brown, I aim to present a fresh and practical analysis for readers to evaluate.
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