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 Brown to 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 invoked Brown 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.
Constitutional Accountability Center is in the process of producing The Constitution at a Crossroads: The Ideological Battle Over the Meaning of the Constitution, a comprehensive effort to map out and describe the ideological battle on the Supreme Court over the meaning of the Constitution. Today, corresponding with Brown's anniversary, we are releasing Brown v. Brown: Will the Supreme Court Interpret the Equal Protection Clause to Invalidate Measures Designed to Promote Equal Opportunity and Redress Our Nation's Long History of Racial Discrimination?, which fleshes out the developments in the law discussed in this article. Sign-up here to get automatic updates when new Crossroads chapters are released.
Follow Doug Kendall on Twitter: www.twitter.com/myconstitution
Jamin Raskin: The Roberts Court's 2011-12 Term: Is the Roberts Court Really a Court?
TCU 360: Affirmative Action Advances Racial Equality in Education
The Badger Herald: Status, Not Race, Should Be Basis of Affirmative Action
Josh A. Goodman: Affirmative Action
Although Mr. Kendall supports affirmative action programs for blacks (hypothetically awarding say an extra set of bonus points on a college application) he presumably wouldn’t support the same program if it were reversed i.e. whites were the beneficiaries of an affirmative action program. Mr. Kendall’s reply would probably be that whites don’t need affirmative action. But that’s not a constitutional rationale. Ultimately to accept Mr. Kendall’s position you would need a bifurcated constitution- unequal protection would be permitted if it benefited the “correct” groups, otherwise equal treatment would be required.
Besides the inherent ugliness of an apartheid like constitution, who would decide who the correct groups are? If you leave it to the legislature minorities (the groups Kendall would probably want to help) are the ones most likely to be disadvantaged over time since they have the smaller voting block. If you leave it to the Supreme Court, then 5 unelected judges will get to decide-without any textual or historical guidance from the Constitution-what groups get this magical beneficial treatment.
From a constitutional point of view, if you support race conscious legislation then you should accept that its constitutional to have an affirmative action program that benefits whites because there is no principled way to distinguish the two.
Think about it, an all-White or all-male context, especially when qualified minorities and/or women are available, is THE perfect example of racial preference!
If a minority and/ or a woman meets the qualifications, even the minimum qualifications, their presence at the university should not be questioned. Those who claim "my scores are higher" are only expressing their sense of an entitlement and ignorance of the fact that Affirmative Action applies to qualified candidates, even if those candidates have "lower" scores. As long as the scores meet the requirements, it doesn't matter if it is one point over or 100 points over.
And, I don't have to remind you that White women, and consequently White men, have been the greatest beneficiaries of Affirmative Action.
Just sayin'.
Just spoutin' off.
By definition, equal protection of the law prohibits state action which discriminates against one race to confer benefits to another. The language of the EPC offers no qualification of the term equal. Equal means equal.
Nearly a century and a half after the fact, it is long past time we started to fully enforce the EPC with no exceptions for any form of racial preferences and discrimination.
The Democrats are planning to spend money on Congressional elections in September I hear, leaving the summer to all the PACs and Super PACs rooting for Romney and his party, and so , I predict, they will not prevail, in part because they're really not going to try very hard. Republicans retain control of the House.
And incidentally, the court challenge to the filibuster rule and the 60 voter threshold will be defeated, if even allowed one day in court.
You may be right on some high moral plane where abstractions have substance, but here among the living, there is no likelihood that any of the people sitting on the Supreme Court whose doings disgust you will leave for any reason save death, or by volunteering to go, a la Sandra Day O'Connor.
University admissions should be based entirely on academic record of achievement, college board test score performance, and merit. People can't do college level work just because some special interests hope they can. Admitting under-prepared and unprepared students is counterproductive, dishonest, expensive, and a great disservice to both the students (of any skin color) who can't do the work and those who could have done the work but didn't get admitted. Every student admitted to public colleges and universities costs the community, the state and the nation money and opportunity. It's important to stop squandering our resources and start investing them in the people who can best utilize those resources in order to earn degrees and then use them to work and contribute.
If we'd stop tolerating poor public schools and start being disciplined about doing the hard work necessary to raise all our public schools to the level where every student has a great opportunity to reach his/her full potential, we could quit the belly aching about affirmative action and stop the endless and fruitless debates about race/ethnicity. There are literally no differences between the races in terms of intellectual capability (cultural differences about the value of education are a real and bigger problem). When parents, teachers/administrators, employers, and community members want this fixed - then we'll get it fixed. Doing more damage by doing the wrong things for nearly everyone is no way to proceed.
What we need is vouchers. In areas of poor people, you have no choice, so you go to public schools, and they are bad, in wealthier areas, the people can choose private school, so the schools are forced to compete and are good.
What we need to give the minorities a choice where to go to school with a voucher program, this will fix the issue.
This not a race issue, as white are not the majority anymore in most urban cities, so this is an economic issue.
But Asian parents generally emphasize education for their children and they normally do not come from broken homes. That is the difference. They have as a group more than succeeded. A lot of this comes down to the parents and their work ethic and focus on education.