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.
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