Posted by: Randy Allgaier | July 2, 2007

“Brownie was doing a bang up job”- Dismantling Brown v. Board of Education

Remember Katrina? Remember President Bush’s comment about the then FEMA Director Mike Brown (aka Brownie) doing a bang up job? Well I guess he was doing a bang up job if you consider not giving a damn about African Americans in a disaster as doing a “bang up” job. Well, now the Roberts Court has followed Brownie by dismantling Brown v. Board of Education and turning integration on its head- just like Katrina did.

In his opinion on behalf of himself and his right wing brethren Justices Scalia, Thomas and Alito, Chief Justice John Roberts displayed a level of judicial hubris I find astounding when he decided that he decided that he could interpret the words of lawyers who argued successfully for integration in the landmark Brown v. Board of Education case- an interpretation that is disputed by the very man who made the argument to the Supreme Court in that seminal case.

In the Chief justices interpretation of Brown, he quoted from the transcript of the 1952 argument in the case. “We have one fundamental contention,” a lawyer for the schoolchildren, Robert L. Carter, had told the court more than a half-century ago. “No state has any authority under the equal protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” Chief Justice Roberts added yesterday, “There is no ambiguity in that statement.”

According to a New York Times analysis of the decision by Adam Liptak on June 29th, the very lawyer who made that disputed the Chief Justice’s interpretation.   Robert L. Crater- the man who made that statement, now a 90-year-old senior federal judge in Manhattan, disputed the chief justice’s characterization. “All that race was used for at that point in time was to deny equal opportunity to black people,” Judge Carter said of the 1950s. “It’s to stand that argument on its head to use race the way they use is now.” Jack Greenberg, who worked on the Brown case for the plaintiffs and is now a law professor at Columbia, called the chief justice’s interpretation “preposterous.”

“The plaintiffs in Brown were concerned with the marginalization and subjugation of black people,” Professor Greenberg said. “They said you can’t consider race, but that’s how race was being used.” William T. Coleman Jr., another lawyer who worked on Brown, said, “The majority opinion is 100 percent wrong.”

Justice John Paul Stevens, in dissent, said Chief Justice Roberts’s discussion of Brown “rewrites the history of one of this court’s most important decisions.” Justice Stephen G. Breyer, also dissenting, said the opinion “undermines Brown’s promise of integrated primary and secondary education” and “threatens to substitute for present calm a disruptive round of race-related litigation.”

It seemed appalling that Justice Kennedy did not seem to mind chipping away at the essence of Brown v. Board of Education but I guess there should be some solace in the fact that he didn’t join the gang of four and totally eviscerate Brown. Kennedy’s concurring opinion was, as Liptak pointed out, at once idiosyncratic, enigmatic and decisive and was perhaps the least engaged with Brown, saying little more than that the case “should teach us that the problem before us defies” an “easy solution.” Justice Kennedy’s concurrence, which split the court 4-1-4 on a crucial point, sharply limited the role race could play in school assignments but did not forbid school districts from taking account of race entirely.

While Kennedy’s decision does not allow for the total dismantling of integration policies it allowed the court to strike at the heart of the importance of integration.

In the July 1, 2007 New York Times “Week In Review”, Jeffrey Rosen wrote a very thoughtful piece about the impact of Brown on society and what the impact of this new Supreme Court decision would play.

Rosen correctly stated that the world was not changed over night by the Court’s landmark decision in 1954. It took political will- mostly through the presidencies of John F. Kennedy and Lyndon Johnson to change policies. True, but my caveat is that the stage was set by Brown. If not for Brown the police and snarling dogs at schools integrating in the south would not have horrified a nation because these actions would have been in defiance of nothing- let alone federal law. Civil rights leaders like Dr. Martin Luther King, Medgar Evers and others facilitated developing political will but without Brown their struggle would have been much more very different and likely much more difficult.

Supreme Court decisions do not change society overnight but they do act as a catalyst. It is difficult for me to see what the long range impact of this decision will be. At stake here is the equal protection clause of the 14th Amendment and what that amendment really means. According to Brown, segregation was inherently unequal and therefore in violation of the equal protection clause of the Constitution. The Roberts decision essentially says that the purpose of Brown was that society should be colorblind and that it was not meant to protect policies that forced integration.

True Roberts is not defending segregation but the decision means that programs and policies that promote racial integration are not protected by law. My logical progression takes me to thinking that in areas where there is de facto segregation due to the ethnic and economic realities, public school children will be segregated. It is not de jure segregation but de facto segregation.

There seems to be irony in the fact that Chief Justice Roberts interprets the intent of Brown as color blindness. The Fourteenth Amendment to the United States is one of the 3 post-Civil War amendments (known as the Reconstruction Amendments), intended to secure rights for former slaves. The Thirteenth Amendment proposed and ratified in 1865 abolished slavery. The Fourteenth Amendment proposed in 1866 and ratified in 1868 included the Privileges or Immunities Clause, Due Process and Equal Protection Clauses and the Fifteenth Amendment, ratified in 1870, grants voting rights regardless of “race, color, or previous condition of servitude”.  Am I the only one who finds irony in the fact that an opinion that interprets an amendment passed speficially to protect black former slaves has as its core argument color blindness?

But more disconcerting is the idea the assumption that race should not be an issue and that color blindness is part of our social fabric. Quite simply our society is not color blind and I doubt that it will be any time in my lifetime or in the lifetimes of the next few generations. It is the dream of many to see a color blind society- but there is nothing that ensures it and the facts certainly do not support our society’s ability to attain it. If it were not for policies such as those that promote integration due to Brown and the political good will that followed our society would not be nearly as “evolved” as it is now— and in my estimation, it ain’t all that evolved.

None of us is color blind and if we fool ourselved into thinking that we will have a color blind society where we are have equal opportunity (which I believe is the natural partnerof equal protection) without programs that push us into a world where there is some degreee of parity for opportuinty we are indeed a deluded people.

Mr. Rosen’s New York Times article he quotes Peter H. Schuck of the Yale Law School who hypothosizes that school districts “will feel the same pressures to reduce racial islolation and they will look for proxies for race.

If there is anything that might be salvaged from the Roberts opinion it is Mr. Schuck’s premise. If there is a proxy that could approximate race it would be one that is based on economics. Race and poverty are inexorably tied in our society but poverty does cut a larger swath than race. While our socieity is not even close to being able to assume “color blindness” as Mr. Roberts and his conservative friends would have us believe (they are either naïve or sinister), it would be interesting if an economic proxy for race was used for purpose of school integration.

Opportunity is a direct result of education and the access to a quality education is essential to realize potential . Our present educational system is dependent upon the economic health of a local school district. Until we find a way to ensure quality and parity to all children in the United States for an equal public school education, we will need to find ways to facilitate integration- racial and economic.

One of the Justices that joined Mr. Roberts in his opinion was Justice Clarence Thomas. Justice Thomas seems to have forgotten that he benefited from the programs that were born from Brown. If Justice Thomas believes that society has come to a place where we are color blind- than he is either dimwitted or has no sense of history- his own or our nation’s. I cannot believe in my heart of hearts that Justices Roberts, Thomas, Scalia and Alito believe that color blind policies are possible in a society where an African American candidate for President needs early Secret Service protection. If only it were so!


  1. hi im new to , looking to learn new things 😀

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