Paul Craig Roberts writes, via email: “David Bernstein is an example of yet another academic lawyer who thinks Brown was about southern segregation. Brown was a consolidation of five cases, 60% of which were from outside the south. The name of the lawsuit is Brown v. Board of Education of Topeka. Kansas is not a southern state.”
The five cases consolidated for argument were Briggs et al. v. Elliott et al. (South Carolina); Bolling v. Sharpe (District of Columbia); Davis et al. v. County School Board of Prince Edward County, Virginia, et al. (Virginia); Brown v. Board of Education of Topeka (Kansas); Gebhart et al. v. Belton et al. (Delaware). Four of these five cases arose in jurisdictions that permitted slavery before the Civil War, plus “Bleeding Kansas.”
Admittedly, only Briggs arose in the Deep South. However, as Mike Klarman points out in From Jim Crow to Civil Rights, the reason these cases arose in the border states is that the Deep South was so authoritarian, that neither black plaintiffs nor attorneys could be found to bring cases in states such as Mississippi and Alabama–they were not willing to risk the economic and physical reprisals such litigation was likely to bring. Thus, if the Court wanted to invalidate Jim Crow in the Deep South, it need to use cases brought in the Upper South and border states.
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