New View of Brown v. Board Unlikely To Sway One Judge
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

Before becoming one of the country’s legendary trial judges, Jack B. Weinstein played a supporting role in one of the 20th century’s defining court cases. On the wall of his chambers in U.S. District Court in Brooklyn hangs his souvenir: a framed copy of a U.S. Supreme Court brief submitted on behalf of the plaintiffs in Brown v. Board of Education.
Weinstein’s name appears at the bottom of a list of 14 attorneys on the brief, a testament to the legal research he did in the early 1950s for Thurgood Marshall, then general counsel to the National Association for the Advancement of Colored People and, later, a justice on the nation’s highest court.
Last month, the Supreme Court gave the Brown decision a dramatic rereading, citing it to striking down voluntary school integration plans in Seattle and Louisville, Ky., that assigned some students to school by race. That decision could encourage New York City’s Department of Education to seek to end the long-standing federal desegregation court order against a Brooklyn middle school, the Mark Twain School in Coney Island. It is one of only two such orders in the city.
To lift the order — which currently requires that approximately 70% of the students at the school are white — the city’s lawyers must petition Judge Weinstein, who signed that order in 1974.
“Even before the Supreme Court’s decision, we were already looking at whether this court order is obsolete and, now that the Supreme Court has ruled, we’re actively exploring our options as to what the next step in court should be,” the general counsel to the Education Department, Michael Best, told The New York Sun.
The Supreme Court decision make it clear that court-ordered racial quotas intended to undue the effects of past segregation, such as Judge Weinstein’s order, are not affected. But in light of the recent decision — which some have decried as a radical reinterpretation of the Brown decision — the Mark Twain School Case will likely take on added significance for Judge Weinstein.
“It must be very painful for Judge Weinstein to be in a situation where he is going to be faced with an assault on that edifice, as I call Brown,” a former federal appellate judge, Nathaniel Jones, said. As general counsel to the NAACP, Mr. Jones brought the case against the Twain School in the early 1970s.
For Judge Weinstein, who has a thorny relationship with Second Circuit Court of Appeals, the appellate court that reviews him, the Supreme Court’s recent pronouncement is unlikely to exert much influence over how he rules in the case, a former clerk to Judge Weinstein, Marc Falkoff, who is now a law professor at Northern Illinois University, said.
“The city would not be wise to go into Judge Weinstein’s courtroom waving a copy of the latest Supreme Court opinion and claim it’s a done deal, a no-brainer,” Mr. Falkoff said. “This is not a guy you can just name a case to and expect him to acquiesce and walk away” Judge Weinstein’s involvement in education cases and his commitment to integration is but one theme in his career on the bench, but it has been largely overshadowed by his contributions to mass tort law. The judge, now 85, is better known for the suits he presided over against the manufacturers of “lite” cigarettes and firearms. Many of the legal principles that now govern such lawsuits were worked out in his courtroom in the early 1980s, when Vietnam veterans sued the chemical companies that had produced the defoliant Agent Orange.
But it is his long experience with education law that will be most relevant if the city returns to court with the Mark Twain case. In 1979, following a law suit over the large number of minority students in special day schools for students with emotional problems, Judge Weinstein ordered city teachers to undergo anti-discrimination training.
“The teachers whom I mingle with in my crowd at Great Neck didn’t want to talk to me after that,” Judge Weinstein said in a recent interview, referring to the Nassau County town where he lives.
Others of his earlier cases—President Johnson appointed him to the bench in 1967 — involved students removed from their class rolls after excessive truancy. In 1969, Judge Weinstein ordered the city to allow the students to return to school and to provide summer classes.
A lawyer for the students in that case, Burt Neuborne, recalled one of Judge Weinstein’s orders in particular. It read: “Social injustice is hereby abolished in the United States,” Mr. Neuborne, now a law professor at New York University, recalled in an article for a number of the Columbia Law Review honoring Judge Weinstein.
Where exactly social injustice fits in with the continuation of the Mark Twain School order could end up being hotly debated in his courtroom.
In the decade before Judge Weinstein’s 1974 order, the racial makeup of Twain’s student body had dropped from 81% white to 18% white. The reversal, Judge Weinstein found, was less attributable to an influx of minority students than a departure of white students caused by school officials rerouting students at the predominately white feeder schools away from Twain.
Saying that “racism was not a significant factor in what occurred in Coney Island,” Judge Weinstein nonetheless found that “government choices” had helped solidify the fact that Twain was primarily attended by minority students.
“Decisions have been made knowing they would encourage segregation and failure to take available steps to reverse segregative tendencies have made a bad situation worse,” Judge Weinstein wrote.
In devising a plan to ensure that white students would be a larger portion of the student body, Judge Weinstein considered ordering that additional public housing be built in order to ensure that the area would get new families. In the end, Judge Weinstein chose a more moderate plan: transforming Mark Twain into a magnet school and requiring that a minimum of 70% of the students be white.
Currently, the quota is closer to 60%, although it is not immediately clear when, or if, the order was modified. The quota has led to some minority students, despite having top test scores, to be turned away to make room for white students.
Judge Weinstein did not rely only on experts and legal briefs to learn about Mark Twain. He went there himself.
“He wanted to go see, so we went to Coney Island,” a former clerk to the judge who is now the dean of Brooklyn Law School, Joan Wexler, said. “We took the subway. It was typical of the way he did things. We went and talked to people.”
Today Judge Weinstein considers his court order to have been successful.
“We used the magnet school approach and it seemed to work,” the judge said. “I’m told the school is well regarded and people want to get in.”
Thecity’s schools chancellor, Joel Klein, has said that integration is not a primary goal, or even an achievable one, in New York City, where the student body is nearly three-quarters minority. But the attorneys who originally sued the schools in the Mark Twain Case do not agree.
Of the current court order, Mr. Jones, now a partner at Blank Rome LLP in Cincinnati, said: “I see no reason to disturb the order only to see the situation revert to what it was, to resegregate.”
When asked, Judge Weinstein would not discuss the recent Supreme Court on decision directly. While describing the court’s current membership as “superb intellects,” he added that “sometimes people who got to the top” lack an “understanding for how society really operates.” A district judge, with a courtroom of his own, is in a position “to see more,” Judge Weinstein said.
Judge Weinstein had seen plenty of this world by the time he was elevated to he bench. Born in 1921, he is a product of Brooklyn’s P.S. 205 and Abraham Lincoln High School. Elementary school was often so crowded that he took class not from behind a desk, but perched on a windowsill. During high school, he worked the docks; it was his third career: he had previously been a child actor and resold the clothespins he found under laundrylines. During World War II, while the Navy was still segregated, he served as an officer on a submarine.
The judge came to the bench from a professorship at Columbia and after service as the attorney for Nassau County. While liberals generally revere him, many conservatives consider him lawless, largely for his efforts to keep mass tort cases alive when some other judges might dismiss them.
In the early 1990s, when it came time to choose senior status, he turned to Justice Marshall, then retired from the Supreme Court, for advice. The correspondence between the two is framed beside the Brown v. Board of Ed brief.
“Now as an old man, I have to decide whether to take senior status or keep fighting the good fight as an active judge,” Judge Weinstein wrote. Justice Marshall didn’t give an up or down answer, but wrote, “You have, more than anyone I know of, contributed your share to the work of the federal judiciary.” Judge Weinstein took senior status, but has yet to lighten his docket.