How conservatives appropriated Brown v. Board of Education.

The law, lawyers, and the court.
July 2 2007 3:33 PM

The Battle Over Brown

How conservatives appropriated Brown v. Board of Education.

John Roberts. Click image to expand.
Supreme Court Chief Justice John Roberts

The Supreme Court's decision in last week's school desegregation cases represents the culmination of a 50-year-old debate about the meaning and content of Brown v. Board of Education. The conservatives have now taken over Brown, no question.

Justices in the majority—like the new chief justice, John Roberts, and Justice Clarence Thomas—can invoke Brown for the proposition that the 14th Amendment to the U.S. Constitution prevents states from treating individuals differently on the basis of race. They invoke the mantra of the "color-blind Constitution" to strike down voluntary school desegregation plans in Seattle and Louisville, Ky.

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In passionate dissents, justices John Paul Stevens and Stephen G. Breyer lament the conservatives' treatment of Brown. Stevens describes their reliance on Brown as "cruel irony." And Breyer describes their comparison of state-mandated racial segregation in the 1950s with contemporary voluntary desegregation plans as a "cruel distortion of history."

Stevens and Breyer are right. The offense they have taken at Roberts' and Thomas' treatment of Brown is entirely appropriate. The plurality and concurring opinions undermine and misinterpret decades of efforts to undo the long American history of racial segregation, discrimination, and inequality.

The question we need to ask is: How did the conservative justices manage to appropriate Brown so completely? How did they so easily convert Brown from an opinion championing racial equality into one that countenances—even requires—continuing racial inequality and segregation in the name of the Constitution? The answer is simple: through abstraction. They have abstracted a decades-long struggle for racial progress into a single formalistic harm: government classifications on the basis of race.

It seems almost too obvious to repeat that the racial classification in Brown targeted largely disfranchised African-Americans who were the victims of a racial caste system designed to promote white supremacy. The new harm of racial classification that the court's conservatives now fetishize is something that afflicts all Americans, regardless of race. This harm is not substantive; it is not about, in Justice Breyer's words, "true racial equality." Rather it is entirely about how people—often white people—feel when the government takes their race into account in decision-making. 

But that transformation can only be accomplished by disparaging, eliding, and downright ignoring the actual inequalities that attended Jim Crow in 1954 and continue to afflict American society today. The fact that the conservative justices can so easily transfer this abstract concept of harm to whites shows that their jurisprudence has nothing to do with actually remedying inequality. The equal protection clause is their supposed text, but inequality is not their real concern.

Unfortunately for the liberal justices, Brown may not have been the sturdiest reed on which to rely in rebutting this conservative constitutional vision. The truth is that although Brown did not invoke Justice Harlan's "color-blind Constitution" outright, the way itwas structured, and the way it has often been read since, lends credence to the conservatives' modern interpretation. For Brown did, as the conservatives suggest, emphasize the formal problem of state-mandated segregation. It did, as they insist, suggest that the problem of de jure (legally sanctioned) segregation was more substantial and worthy of constitutional consideration than the problem of the myriad private segregations and discriminations and inequalities—what the court now calls de facto segregation—that also characterized Jim Crow.

The lawyers who directed the Brown litigation made several strategic choices that sowed the seeds of this modern tension. Theyintentionally set aside the actual inequalities between black and white schools in favor of a blanket prohibition—at least in the education context—on state-imposed segregation.

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