Summary

“Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts . . . have not carried the heavy burden of demonstrating that we should allow this once again . . .”

~ Chief Justice John Roberts

“The Equal Protection Clause . . . has always distinguished in practice between state action that excludes and thereby subordinates racial minorities and state action that seeks to bring together people of all races. . . [I]t is a cruel distortion of history to compare Topeka, Kansas in the 1950s to Louisville and Seattle in the modern day . . .”

~ Justice Stephen Breyer

Brown v. Board of Education, the Supreme Court’s 1954 ruling striking down racial segregation, has been called “the crown jewel of the U.S Reports” and the “single most honored opinion in the Supreme Court’s corpus.” It is accurate to say that “no federal judicial nominee, and no mainstream national politician today would dare suggest that Brown was wrongly decided.” But Brown’s iconic status has only intensified the fight over its meaning and legacy. This fight broke out into the open in 2007 in the Supreme Court’s 5-4 ruling in Parents Involved in Community Schools v. Seattle School
District. In Parents Involved, Chief Justice Roberts claimed Brown as supportive of his majority ruling that prevented state and local governments from using race, even in minimal ways, to halt the re-segregation of public schools. The dissenters, in opinions written by Justice John Paul Stevens and Stephen Breyer, forcefully took issue, accusing the majority of “rewriting the history of one of this Court’s most important decisions” and “undermining Brown’s promise of integrated primary and secondary education that local communities have sought to make a reality.”

At its core, this fight is a battle about whether Brown sets a constitutional minimum floor, or more of a maximum limit, in terms of what federal, state, and local governments can do to redress our nation’s long history of racial discrimination and ensure that the Constitution’s promise of equal opportunity is a reality for all Americans regardless of race. In the decades after Brown, under the leadership of Chief Justices Earl Warren and Warren Burger, the Supreme Court upheld and broadly interpreted civil rights statutes such as the Civil Rights Act of 1964 and the Voting Rights Act of 1965 that
built off Brown, as well as race-conscious measures that sought to bring Brown’s promise of racial equality to life.
But over the last quarter of a century, in a string of bitterly divided rulings – most decided by a 5-4 margin – conservatives on the Rehnquist and Roberts Courts have redefined the meaning of Brown and of the Equal Protection Clause, invoking the constitutional guarantee of equality to strike down virtually every race-conscious government action the Court has reviewed. Insisting that an identical form of strict scrutiny applies whenever the government uses race – whether to oppress racial minorities or to assist them – the Court’s rulings have dramatically limited the power of
government to redress racial isolation in schools, enact affirmative action programs, and draw legislative districts in which minorities have a fair chance of electing their candidate of choice. Next Term, in Fisher v. University of Texas, the Roberts Court has the opportunity to extend these precedents to strike down the race-conscious admission policy at Texas’ flagship public university.

Brown’s command, Chief Justice John Roberts has written, “is to stop discriminating on the basis of race.” In his hands, Brown has become a potent weapon against statutes intended to realize the promise of true racial equality. The Constitution’s Equal Protection Clause, and the meaning of Brown, are at a Crossroads.