Brown v. Brown: The Equal Protection Clause at a Crossroads

David Gans

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. In Fisher, Justice Kennedy has the opportunity to set matters rights and demonstrate to the Chief Justice that Brown is at the core of what Justice Kennedy has called our “historic commitment to creating an integrated society that ensures equal opportunity for all its children.”

Today, corresponding with Brown’s anniversary, Constitutional Accountability Center is 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?, the newest chapter in the CAC series, The Constitution at a Crossroads: The Ideological Battle Over the Meaning of the Constitution. As we explain in the introduction to the series, focusing on a dozen or more of the most ideologically charged areas of constitutional law, Crossroads attempts to map out and describe the ideological battle on the Supreme Court over the meaning of the Constitution. (Prior chapters of Crossroads, available here, tackle the ideological division on the Court over the powers of the federal government to regulate commerce among the states, to spend money to promote the general welfare, and to enforce the guarantees of the Civil War Amendments, and over the limits the First Amendment imposes on campaign finance reform designed to ensure the integrity of our democracy.)

In just a little more than half a decade, the Roberts Court has begun to reshape basic, fundamental principles of constitutional law. From Citizens United v. FEC, in which the Court expanded the case on its own motion, scheduled a second argument, and then issued a sweeping ruling discarding prior case law, to the Affordable Care Act (ACA) cases argued in March, in which the Court decided to hear just about every claim presented to it – including claims unanimously rejected by the lower courts – and scheduled six hours of argument time over three days, the Court under Chief Justice John Roberts has put itself at the center of some of the most important controversies over the meaning of the Constitution. Decisions like the Court’s 5-4 ruling in Citizens United illustrate that the Roberts Court is not only taking big cases and issuing sweeping rulings, but it is also splitting sharply along ideological lines on important questions about the meaning of our founding document. Crossroads explains what is at stake in these battles over the Constitution.

Brown v. Brown, the first of a number of Crossroads chapters on the Constitution’s protection of equality for all persons, tells the story of how conservatives on the Rehnquist and Roberts Courts have transformed Brown and the Equal Protection Clause into a powerful weapon to limit 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. Insisting that an identical form of strict scrutiny applies whenever the government uses race – whether to oppress racial minorities or to assist them – the Court’s rulings since the late 1980s have limited the power of government to redress racial isolation in schools, enact affirmative action programs to assist racial minorities in overcoming the lingering effects of racial discrimination, and draw legislative districts in which racial minorities have a fair chance of electing their candidate of choice. This conservative reading turns Brown on its head and threatens to limit iconic civil rights statutes, such as the Civil Rights Act of 1964 and the Voting Rights Act of 1965, enacted by Congress to build out and enforce Brown’s understanding of constitutional principles of equality.

The Court’s conservatives have not made any serious effort to justify this dramatic transformation of the law in the name of the text and history of the Fourteenth Amendment. Nor could they. The text of the Fourteenth Amendment provides that “no State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” The Framers chose this language, providing universal coverage that protected every person residing in the United States, rejecting proposals that would have prohibited all forms of racial discrimination by the state. Indeed, the Framers recognized a basic difference between oppression and assistance. During debates over the Fourteenth Amendment, the Framers explained that the Equal Protection Clause “abolishes all class legislation” and “establishes equality before the law,” but they did not believe that laws designed to assist minorities overcome the legacy of slavery and racial discrimination were in any way legally equivalent to Southern Black Codes that oppressed the newly freed slaves.

Rather than answer this history, Chief Justice Roberts and others have turned to Brown, claiming that Brown’s lesson is that “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race.” In Chief Justice Roberts’ hand, Brown is a potent weapon against a long list of statutes that use race-conscious measures in order to realize the Constitution’s promise of equal opportunity. That is not fulfilling Brown’s promise of true racial equality, but burying it.

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