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The Battle Over BrownHow conservatives appropriated Brown v. Board of Education.

By Risa Goluboff
Posted Monday, July 2, 2007, at 3:33 PM ET
John Roberts. Click image to expand.

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.

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 it was 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. They intentionally 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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Risa L. Goluboff is professor of law and history at the University of Virginia and the author of The Lost Promise of Civil Rights.
Photograph of Chief Justice John Roberts by Paul J. Richards/AFP/Getty Images
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Remarks from the Fray:

Professor Goluboff seems to have come full circle rhetorically, and essentially agrees with the conservatives who she accuses of appropriating the Brown decision. The only argument against their interpretation of the case is that there are also other ways to interpret it. However, the author admits that the "structure" of the case makes the conservative interpretation the most correct one.

The answer to the professor's most important question, that of how the case came to be used against progressive desegregation, is that the legal backdrop changed. Current segregation is not an imposed constraint, but a reflection of societal and political structures. People choose to live in racially divided communities, and that division is naturally reflected in schools. Absent the forced constraint, there is no harm.

The professor ignores the harm done by forced integration, claiming that only hurt feelings are the result. However, each case has a specific harm at its core, and those harms need to be addressed. The professor seems to think that the harms should be judged by the color of the victim's skin. I don't think so.

--Fitzpatrick

(To reply, click here.)

What is the harm that comes from a school board voluntarily integrating schools? Are white children given inherently inferior educations because the schools are integrated? On principle, the integration would make the schools in the district more equal, so all students should have an equal chance to attend a good school. Is a school district required to keep it's schools segregated?

I agree with the author that the abstracted reading on Brown ignores the fact that forced segregation violates the 14th amendment and harms entire groups of people, while local integration doesn't deny equal protection or harm a group of people.

--scottyhope

(To reply, click here.)

What liberals are wringing their hands over in this decision is that the court has reaffirmed what America is all about: equality of opportunity.

The liberals have been for 60+ years been advancing the notion of equality of outcome. Thus brought us the vastly failed welfare state and other nefarious programs of wealth transfer.

If you look at the data, unemployment among blacks had been steadily declining since the depression. It is very debatable whether Brown had an impact on this or not. I would allow that maybe it had some impact if not to further raise awareness of the plight of the blacks and other minorities in this country at the time but the unintended consequences of Brown became painfully apparent as time went on.

I hope this decision is looked on as the benchmark that our society finally came back our senses and once again embraced true equality of opportunity and forever left our attempts at social engineering behind.

--Bladernr1001

(To reply, click here.)

As someone who was bused for 8 of his 12 years in school there was no integration amongst the races outside of Football, Basketball and Track and maybe the creative arts in their schools. As an African- American what I saw was only 5-10 percent actually making an actually olive branch effort across racial lines. The only thing that busing taught me was that whites could be devious in their dealings with African- Americans either through school adminstrations or white students acting like they were God's little angels and they weren't as bright and slick as they thought they were.

So I think the Civil Rights leaders believed too much in the goodness of white Americans when they should have never allowed our children to be educated by our white enemies. White Americans believed in racial equality in theory—not in practice—and that has not changed in the 53 years since that moment. This society will never accept African- Americans as its fellow citizens.

African- Americans do not need to live, sleep, have sex or get along with the white population to live in this country. African- Americans need to be racial atheists when it comes to the white population—Justice John Roberts and the white posters' phony "colorblind" mantra notwithstanding.

I think getting away from each other would ease the racial conflicts amongst black males and white teachers and give us as African- Americans a chance to develop our infrastructure in educating our children. There is a big world and we as Black Americans should embrace other cultures, educational ideas and those whites around the world who respect us as human beings and not as problem citizens. White Americans are corrupt with privilege and dealing with them will only give you mental and physical problems.

--soulgroove07

(To reply, click here.)

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