recent Supreme Court decision recasts Brown v. Board of Education
and threatens the foundation of integration
Lewis M. Steel
June 28, three years after the 50th anniversary of Brown v.
Board of Education, the U.S. Supreme Court subverted Brown’s
meaning to block public-school integration plans. As a result,
boards of education across the country, which have used racial
criteria to reduce segregation, must undo their efforts or
themselves be branded as racial discriminators. Examining
the role of the courts and the role of movement activists
and attorneys is essential to understanding the history of
The 1955 Brown decision came after a 20-year campaign of sustained
litigation that was supported by massive organizing and that
was finally backed by a Justice Department brief argueing
that segregation could cause the country to lose its contest
with the Soviet Union for the hearts and minds of the Third
World. Relying on the Equal Protection Clause of the 14th
Amendment, which was passed after the Civil War to ensure
former slaves equal rights, the Supreme Court weakened state-enforced
segregation in public settings through Brown and a series
of subsequent cases.
Despite gains made in the South after Brown and as a result
of intense pressure from courageous civil-rights activists,
which led to the passage of federal laws between 1964 and
1968, desegregation fell into full retreat mode. The Court
determined in 1974 that school segregation in the North was
an acceptable consequence of segregated housing patterns and
Now, with their June 28 decision in Parents Involved in Community
Schools v. Seattle School District No.1, the four justices
who comprise the Court’s right-wing bloc, with the concurrence
of the more mainstream conservative Justice Anthony Kennedy,
have taken what may be the final step in making Brown obsolete.
The court condemned the modest attempts by the Seattle and
Jefferson County (Louisville), Ky., boards of education to
voluntarily reduce segregation by employing race-conscious
integration plans. “Foul!” cried the Supreme Court. The same
Constitution and the same Brown decision—which, in theory,
required desegregation 53 years earlier—now required local
boards of education to maintain their segregated schools,
unless they could shoehorn themselves into the sliver of an
opening for diversity that was provided by Kennedy’s decision.
Chief Justice John Roberts, writing for the majority, reviewed
precedents from the 1955 remedy phase of the Brown case (known
as the second Brown decision)—which created the insidious
“all deliberate speed” formula for desegregating Southern
schools—through the 2003 University of Michigan cases, in
which Justice Sandra Day O’Connor barely saved the consideration
of race as a means to increase diversity at the university
According to Roberts, educating children in a racially integrated
environment and ensuring nonwhite students’ access to desirable
schools was different, according to the chief justice. “Racial
balancing,” or seeking to remedy “past societal discrimination,”
was just another way of discriminating on the basis of race.
To Justice Clarence Thomas, concurring with Roberts, arguments
in favor of integration were “faddish social theories.” In
his dissent, Justice Stephen Breyer demonstrated that the
difference between what Roberts said was societally caused
(de facto) segregation in Seattle and Louisville and what
Roberts said was governmentally caused (de jure) segregation
was not clear. Elements of governmentally caused and societal
segregation are invariably mixed. In any event, Breyer argued
this distinction only had meaning with regard to whether segregation
violated the Constitution, not whether boards of education
could voluntarily integrate their schools.
Justice Kennedy’s concurrence tried to slip in between the
dueling justices. A compelling interest to avoid racial isolation
and to achieve integration to create equal opportunity does
exist, he wrote. And school administrators should continue
“the important work of bringing together students of different
racial, ethnic and economic backgrounds.” But, he warned,
they should not resort to racial classifications, and should
consider instead such devices as magnet schools and enriched
academic programs. Straddling the two four-justice camps,
Kennedy’s opinion becomes the controlling voice. To the dissenters
and the civil-rights legal community, however, Kennedy did
little more than invite another round of endless litigation.
This tortured outcome raises a more important question than
whether a few public school boards may introduce a drop of
integration into a sea of segregation. Put simply: Do the
Court’s negative decisions matter that much any more? Present-day
racial discrimination and segregation are still beyond the
reach (or at least the will) of the law, leaving millions
subjected to the same disadvantages and indignities that existed
before the civil-rights movement. Life expectancy, imprisonment
and unemployment rates as well as educational levels all attest
to the racial disparities. Traffic stops for “driving while
black” remain a commonplace experience, especially in white
neighborhoods. Differing penalties and enforcement of drug
laws have turned the prisons into racial holding pens and
have eliminated the right to vote for a significant percentage
of the black population. The death penalty is disproportionately
imposed on people of color. Employers who reject job applicants
with “black names” do so with impunity. The real-estate industry
continues its dodges to separate blacks from whites. Municipalities
place subsidized housing and environmentally hazardous projects
in neighborhoods of color, while underfunding their public
schools, parks and other publicly supported facilities.
Ever since 1955, when the Court’s second Brown decision negated
the first ruling’s focus on equal educational opportunities,
the Court has, with rare exceptions, slowly but surely ignored
or openly turned against meaningful enforcement of the 14th
Amendment. In response, Robert L. Carter, a key theoretician
in the Brown case as well as the leader of the legal effort
to dismantle Northern school segregation, criticized the Court
for failing to confront racial isolation. Thurgood Marshall,
after becoming a Supreme Court justice, lambasted the majorities
in the ’70s cases that blocked the desegregation of Detroit’s
schools and that allowed Texas to retain a financing system
that severely underfunded poor, mostly Latino and black schools.
More recently, the renowned New York University law professor
and critical race theorist Derrick Bell has argued that black
Americans would have been far better off if the Supreme Court
had stuck with its 1896 “separate but equal” doctrine and,
instead of decrying school segregation in 1954, meaningfully
enforced the “but equal” portion of that ruling. According
to Bell, black communities then could have continued to build
their infrastructures and fought their way to equality.
Knowing the Court’s equiv ocations, I am convinced it would
not have enforced equal funding for black communities. But
Bell’s point is that almost anything would have been better
than the Court’s substitute for equality. Contrary to its
original intent, which conservative justices supposedly venerate,
the 14th Amendment’s Equal Protection Clause has been turned
against black Americans. It has become whites’ ticket into
federal court, successfully used by them to challenge school
desegregation, oppose affirmative action in awarding public
contracts and limit minority access to public employment.
Even when Justice O’Connor cast the tie-breaking vote in the
2003 Michigan Law School case, she called its plan, which
at best was an attempt to level the playing field, a form
of discrimination that perhaps could be tolerated for only
another 25 years.
What the Supreme Court has now done is merely extend the obstacles
it has placed in the path to equal opportunities. From a longer
historical perspective, one could say that since the Dred
Scott decision before the Civil War, a series of court rulings
have time and again thwarted the struggle for equal rights.
Contrary to the June 29 New York Times editorial that
echoed the myth that the Supreme Court since Brown has been
“the driving force for integration” and has “never wavered,”
the justices have coddled segregationists and given short
shrift to meaningful concepts of equality.
Without the force of powerful constituencies giving urgency
to their arguments, civil-rights lawyers’ pleas for equality
do little more than stir the creative juices of those who
use their legal skills to make a mockery of that concept.
Judges can always find a justification to leave things the
way they are or turn back the clock. And even when judges
occasionally seek to alter the landscape, they are prone to
ignoring their own pronouncements.
Two years ago, I was a speaker at an Ohio State University
Law School symposium concerning post-Brown judicial struggles.
People from the Columbus community expressed their anger at
the Ohio Supreme Court for not enforcing its own decision
requiring equal public school funding under the state constitution.
Three times, the court had failed to enforce its own decree,
one man complained bitterly. “What are you lawyers going to
do about it?” he asked. “This is the state capital, isn’t
it?” I replied. “Both the court and the Legislature sit here.
Have you organized protests? What have you done?” The answer,
as far as I could tell, was very little.
Progressive forces still need civil-rights lawyers to protect
activists, help expose injustices and move the law along when
communities demand change and are organized to fight for it.
Even this most repressive Supreme Court decision, with the
Kennedy concurrence and the Breyer dissent, contains the possible
seeds of a more progressive future for public education. Well-funded
magnet schools and enriched academic programs can serve the
needs of black as well as white schoolchildren. But without
sustained activism, this latest Supreme Court decision will
stand as a monument to the right-wing takeover of even the
verbiage of equality.
The justices have eyes and ears, as do those who appoint and
confirm them. Whether the Kennedy concurrence can be used
as a wedge to open doors or will become just another weak
and forgotten voice depends upon the people who have a stake
in the outcome, which is all of us.
article first appeared in the August 2007 issue of In
These Times. Source: Featurewell.com.