The beginning of the end for the Brown decision


The United States Supreme Court last week continued to dismantle the 1954 Brown vs. Board of Education ruling that struck down racial segregation in public schools. The court went against its longstanding precedents that allowed school districts broad discretion to ensure that segregation and discrimination are minimized, implying that using race as a factor in fixing or preventing problems that have their roots in racial prejudice is somehow a bad thing that can only be invoked in rare circumstances. To suggest that a school district can fix a race-based problem without taking race into account makes as much sense as the court’s ruling (not much).

Opinion: The beginning of the end for the Brown decision

The ruling struck down the Seattle school district’s practice of using a student’s race as a “tie breaker” if too many students request placement in a particular school. In this case, a white student, Joshua McDonald, did not receive his first choice because too many students asked for it, and choosing a student of a different race helped the program reach the racial balance the district wanted. It also struck down a Kentucky district’s practice of noting a student’s race in making some school assignments and transfers.

Last week’s ruling perversely turns Brown upside down and declares that Brown forbids school districts to do precisely what Brown requires them to do. The plurality opinion essentially says, “We won’t tell you how far you can go using race as a factor in determining student placement in schools. We’ll only tell you that you’ve gone too far, and you have to try again.”

The justices rely on an implied requirement that using race as a factor in such situations is only permissible when there is a “compelling government interest” in the outcome, and when no other “less severe” options are available. These are lovely terms, but their vagueness invites anyone with an itch to litigate to bring more and more cases into court to chip away at law that was settled and resettled many times in the 1950s, 1960s and 1970s.

The ruling also strongly suggests that a school district should only be allowed to use race as a desegregation factor if the district’s schools were segregated by law or if the district is sued for segregation/discrimination…kind of like waiting to buy car insurance until after your first really expensive accident.

Most troubling, as noted in Justice John Paul Stevens’ dissenting opinion, is the court’s willingness to equate a black student in the 1950s, seeking educational rights systematically denied to all black students simply because they were black; with a modern-day white student denied a preferred placement in a program that admitted many white students. The situations are not even comparable, much less equal. Stevens quotes French novelist Anatole France: The majestic equality of the la[w] forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.

Justice Stephen Breyer wrote the main dissent, and it’s clear that his reasoning “struck a nerve” among the ruling’s supporters, as Chief Justice John Roberts wrote 27 pages on his opinion supporting the ruling, and another 13 pages attacking Breyer’s dissent. Justice Clarence Thomas, joining the court’s opinion, wrote less than four lines supporting the opinion, and 36 pages attacking Breyer’s dissent.

The justices who support the court’s ruling are not evil racists. They are doing their best to interpret a document (the Constitution) that was written 220 years ago by men who owned slaves and whose sisters, wives and daughters were denied the right to vote. It’s fair to say that, over the decades, the court has gone beyond the document’s words in its interpretation of Brown; similar, perhaps, to its willingness to accept government-sponsored “under God” and “in God we trust” expressions despite a clear Constitutional prohibition of government-established religion. It’s also fair to say that non-white people–including, with no small amount of irony, Clarence Thomas–have Brown to thank for dismantling many of society’s roadblocks to their success.

Now the United States Supreme Court is dismantling Brown. If we don’t want a return to “separate but equal,” we will have to hope that the justices will re-think their positions when the last words of Breyer’s dissent come to pass: This is a decision that the Court and the Nation will come to regret.