Fifty-eight years ago today, the Supreme Court handed down its landmark ruling in Brown v. Board of Education, striking down racial segregation in public schools and signaling the beginning of the end of the Jim Crow era. While Brown's status as an iconic victory for civil rights remains unquestioned, there is a darker lining to today's anniversary. In today's Supreme Court, Brown's legacy and meaning is very much at a crossroads. Indeed, the conservative majority on the Roberts Court is weaponizing Brownto attack the very civil rights statutes that are essential for moving the 14th Amendment's guarantee of equal protection toward fruition. Sadly, progressives today need to do more than celebrate Brown: we need to fight for its legacy and true meaning.
The text of the 14th Amendment commands that "No State shall... deny to any person within its jurisdiction the equal protection of the laws." While this text is "colorblind," as conservatives like to claim - every person in this country can invoke the universal guarantee of equality contained in the Equal Protection Clause - this does not mean that the Clause applies identically to different types of legislation. At its core, the fight over Brown is about whether the ruling 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's central holding that African Americans could not be treated as second-class citizens in this country. While some of the efforts to bring about racial equality were race-conscious, these initial opinions held that their goal of redressing past discrimination brought them clearly under the constitutional aegis of the Equal Protection Clause, not unlike the Freedmen's Bureau Acts and other post-Civil War era statutes that provided special assistance to the newly freed former slaves. As late as the 1980s, the Court rejected the notion that Congress had to act in a purely color-blind fashion, recognizing, in the words of Justice Thurgood Marshall, that Congress and the states could pass race-conscious legislation in order to "mov[e] our society toward a state of meaningful equality of opportunity, not an abstract version of equality in which the effects of past discrimination would be forever frozen into our social fabric."
Beginning in the late 1980s, however, the tables turned and the Court's now-dominant conservative wing began striking down race-conscious measures designed to promote diversity and rectify the lingering effects of past discrimination. In a series of mostly 5-4 rulings in cases such as City of Richmond v. J.A. Croson Co. (1989), Shaw v. Reno (1993), and Adarand Constructors, Inc. v. Pena (1995), the Court -- then under the leadership of Chief Justice William Rehnquist -- held that all government action taken on account of race is subject to strict scrutiny, the most exacting level of constitutional review, and one that few statutes manage to pass.
In the Roberts Court, this battle has now morphed into a fight over Brown itself. Specifically, in the Court's 2007 decision in Parents Involved v. Seattle School District, Chief Justice Roberts invokedBrown in support of a ruling that barred communities from considering race as part of an effort to prevent resegregation of city schools. In Roberts' words, "[b]efore 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 . . . ." This brought a forceful rejoinder from Justice Stephen Breyer for the four dissenting Justices explaining that 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 . . . ."
Next Term, the Court will return to this battlefield in Fisher v. University of Texas, an important case challenging the University of Texas' consideration of race as one factor in undergraduate admissions. Texas prevailed in the lower courts by relying on Grutter v. Bollinger, the only case decided in recent years that upheld an affirmative action program against an equal protection challenge. Fisher will give the Court's conservative wing (bolstered by the addition of Justice Samuel Alito, who replaced Justice Sandra Day O'Connor, a member of the Grutter 5-4 majority) a vehicle for further limiting the use of race in making admissions decisions and possibly even overruling Grutter.
The battle over the constitutionality of race-conscious measures is often viewed as a fight over affirmative action. It is, but that's only part of the story. In cases such as Shaw and Ricci v. DeStefano (another 5-4 case from 2009 in which white firefighters successfully challenged a city's effort to avoid using a test it feared would have a disparate impact on African American firefighters) the Court has limited the remedies available under iconic laws such as the Civil Rights Act and the Voting Rights Act, the very statutes passed to enforce Brown's promise of meaningful equality. It's like watching Brown devour Brown, and it's horrifying to witness.
With cases such as Seattle Schools, Ricci, and, potentially, Fisher, Chief Justice Roberts is nearing his goal of ending all forms of race-conscious legislation. The problem is that this is moving the nation further from achieving the promise of Brown, not moving us closer toward it.
Cross-posted on Huffington Post.