58th Aniversary of Brown v. Board of Education

Brown v. Brown - Equal Protection at a Crossroads - Balkinization 5/17/2012

by David Gans, Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center

Today marks the 58th anniversary of the Supreme Court’s landmark decision in Brown v. Board of Education, the unanimous ruling that struck down racial segregation and restored the Fourteenth Amendment’s promise of equality. While Brown is still widely celebrated as the “crown jewel of the U.S. Reports,” the sad truth is that, on the Supreme Court these days, Brown is hardly recognizable as the landmark ruling that ended Jim Crow and struck down state-sponsored discrimination treating African Americans as inferiors. In the hands of Chief Justice Roberts and other conservatives, Brown stands as a barrier against race-conscious efforts to promote equality and foster the effective participation by all persons in the civic life of nation that was at the core of Brown. In conservative hands, Brown freezes in place, not ends, continuing racial inequality.

One of John Roberts’ first landmark opinions as Chief Justice announced this new understanding of Brown and of the Equal Protection Clause. In 2007 decision in Parents Involved v. Seattle School District, Chief Justice John Roberts, speaking for four Justices, opined that Brown’s command is “to stop discriminating on the basis of race.” In a bitter dissent, Justice Stephen Breyer, also speaking for four Justices, accused the Chief Justice of undermining “Brown’s promise of integrated primary and secondary education” and turning its back on the Constitution’s guarantee of “true racial equality – not as a matter of fine words on paper, but as a matter of everyday life in the Nation’s cities and schools.” Justice Anthony Kennedy provided the fifth vote to strike down local efforts to prevent racial isolation in schools, but rejected the Chief Justice’s rule of absolute colorblindness and agreed with the dissent that governments have the authority to act “to reach Brown’s objective of equal educational opportunity.” 

This fight over Brown is sure to continue next Term, when the Justices consider Fisher v. University of Texas at Austin, a constitutional challenge to the race-conscious admission process at Texas’ flagship public university....