How Brown v. Board of Education became both a weapon and an ameliorative
Next spring will mark the 70th anniversary of the Supreme Court’s landmark 1954 decision in Brown v. Board of Education. The Brown decision declaring legalized racial segregation unconstitutional is among the most well-known and impactful rulings in the Court’s history. Indeed, at a time when the justices vigorously disagree on virtually every cultural topic, everyone affirms their agreement that Brown was correctly decided. But this unanimity is misleading. Scratch the surface and there are chasms among today’s justices about what Brown means.
This summer, a divided 6-3 Court struck down affirmative action in college admissions in a pair of cases brought against Harvard and the University of North Carolina. The plaintiffs in the case had argued that the universities’ consideration of race, albeit as one of many factors in a holistic process, violated the Constitution’s equal protection clause. In 1954, it had been that same equal protection clause that the Court used in Brown to end Jim Crow segregation in schools, a system of racialized exclusion of Black students from educational opportunities. While the cases were about affirmative action in the 21st century, there was an underlying battle among the various opinions offered by six different justices about which side better aligned with the spirit of a case nearly 70 years old.
On one side was a colorblind interpretation in the majority opinion of Chief Justice John Roberts and concurrences by Justices Clarence Thomas and Brett Kavanaugh. By this view, Brown prohibited any consideration of race by universities no matter what the purpose. On the other side were dissents from Justices Sonia Sotomayor and Ketanji Brown Jackson who claimed that the universities’ efforts were part of a broader demand for racially equal educational opportunities, like Brown itself.
This debate goes back to the initial aftermath of the Court’s revolutionary decision in 1954. Segregationists argued that Brown merely required removal of the racial designations of schools, simply getting the law out of mandating racially separate schools. By this argument, single race schools could persist after Brown, so long as student assignment policies were not explicitly based on race. This position was just short of outright defiance of Brown and led to years of delays in integrating schools in many communities.
Justice Sotomayor saw the same disingenuousness in her colleagues’ call for neutrality in the affirmative action case. Referencing briefs by a school district trying to avoid desegregation in 1968, she observed, “Those rejected arguments mirror the Court’s opinion today.” Neutrality had been insufficient to get the job done after Brown, and Sotomayor pointed out that “Brown recognized that passive race neutrality was inadequate to achieve the constitutional guarantee of racial equality in a Nation where the effects of segregation persist.” She found the effort to equate the system of legalized segregation with modern affirmative action offensive to Brown’s legacy.
Justice Jackson was even more direct in her own dissent. “[D]eeming race irrelevant in law does not make it so in life,” she wrote. Ignoring the persistent racial disparities the law created and nurtured was a form of “let-them-eat-cake obliviousness” by the majority, whose declaration of “colorblindness for all” could not magically alter present realities.
Sotomayor and Jackson push so hard to reclaim the mantle of Brown because it is Brown that the majority rests its own case on. Reading the opinions, it is difficult to believe they are writing about the same case. “Separate but equal is inherently unequal, said Brown,” wrote Chief Justice Roberts in his majority opinion. “It depends, says the dissent.” For Roberts, Brown stood for the simple and straightforward principle that an individual’s race could never be used to distribute educational opportunities. It was a theme he had developed early in his tenure on the Court, when he wrote in a 2007 case striking down diversity efforts in elementary and secondary schools that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
While Roberts has delivered biting quips in furtherance of his interpretation of Brown, no justice has more consistently and vigorously argued for the colorblind approach than Justice Thomas. My recent book, The Transition », explores the still unfolding consequences of the 1991 transition on the Court from Justice Thurgood Marshall to Thomas, a legacy that now includes the end of affirmative action. As I describe there, Thomas has been offering his reinterpretation of Brown almost since he arrived on the Court. In a 1995 concurrence, he argued that the injury caused by segregation – one of the key findings in Brown – was not even necessary to declare segregation unconstitutional. Rather, under his colorblind interpretation, the mere act of making any racial classification should have doomed Jim Crow. Perhaps it should have. But the Court’s 1954 opinion instead emphasized the stigma and harm segregation caused Black students, endorsing arguments made by the NAACP lawyers who argued the Brown case.
Still, Thomas insisted in this summer’s cases that his position was the one more consistent with the goals of Brown. He identified statements in the Brown case briefs and oral arguments pointing toward colorblindness. Roberts, too, had taken statements from the Brown lawyers to further his argument even though such a use had been publicly refuted in 2007 by Robert Carter, one of the lawyers Roberts quoted.
But Thomas was trying to claim the endorsement of another of the lawyers from Brown, his predecessor on the Court, Thurgood Marshall. Thomas noted that Marshall himself had found inspiration in the colorblind ideal. But an argument that Marshall somehow stood against affirmative action was a bridge too far for Sotomayor and Jackson. “The Court’s recharacterization of Brown is nothing but revisionist history,” Sotomayor wrote, “and an affront to the legendary life of Justice Marshall, a great jurist who was a champion of true equal opportunity, not rhetorical flourishes about colorblindness.”
Sotomayor and Jackson went to the source itself, for Marshall had considered the very question of affirmative action in university admissions in 1978. In that case, Regents of the University of California v. Bakke, Marshall had written one of his most forceful opinions, methodically tracing the history of legalized discrimination against Black Americans and its continuing impact on society. “In light of the sorry history…bringing the Negro into the mainstream of American life should be a state interest of the highest order.” Marshall wrote at that time. “To fail to do so is to ensure that America will forever remain a divided society.” As he always did, Marshall was taking the long view on the question of equal educational opportunity. It was not just that such opportunities furthered racial justice; they were essential to the future of a diverse society.
Marshall’s warning echoes today as the Court, behind the lead of his successor, embraces a different view about how to sustain a multiracial democracy and Americans fight over how stories like Brown can and should be taught in schools. This summer’s affirmative action decision is further proof of just how unfinished – and contested – the work of Brown remains, even after 70 years.
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