To the Contrary

The Supreme Court and back to the future

Fifty-three years ago, on the evening that the Supreme Court handed down the landmark Brown v. Board of Education decision, the lead attorney for the plaintiffs, Thurgood Marshall, went to an NAACP victory party that never seemed to get off the ground. The event weighing on the party was too big, had too many corners and edges, and could not be contained or understood by contrived merriment. And, so, for these reasons and perhaps others, Marshall wandered morosely around the room while his aides made aimless and unsuccessful attempts to generate some enthusiasm. What was he thinking at this pivotal moment in history?

Was he thinking of the number of lives that had been lost in pursuit of the legal equality in public education that had been obtained that very day? Was he thinking about the endless hours that had gone into preparing for the lawsuit that resulted in a legal victory that had stunned the nation, if not the world? Or, did he see on the other side of victory the pain and struggle that this day would bring?

We don't know the answers to these questions. What we do know is that. all at once, Marshall stopped his pacing around the room and said to all those in attendance: "You fools go ahead and have your fun, but we ain't begun to work yet."

Were he alive today, Marshall would see just how prophetic those words were. Last month's Supreme Court case turned the Brown decision on its head and, in the process, according to some legal scholars, returned the public school system to the land of separate but equal, the doctrine established over a century ago in the court case Plessy v. Ferguson.

"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," Chief Justice John Roberts wrote in a 5-4 decision in which he was joined by Associate Justices Scalia, Thomas, and Alito. And, although Justice Anthony Kennedy cast the deciding vote for the majority, he did not sign on to Roberts' opinion.

Just listen to the words of Justice Henry Billings Brown, who wrote for the majority in Plessy on May 18, 1896, and see if they resonate today with the Roberts' Court: "Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation... If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits, and a voluntary consent of individuals."

Kennedy's opinion

In the latest case, Justice Kennedy, who provided the majority's fifth vote, reined in the ruling somewhat by signing only part of the majority opinion and writing separately to underscore that some limited programs that take race into consideration are acceptable. But it is unclear how much latitude his analysis will provide, in practice, for school districts to promote integration. His unwillingness to uphold Seattle's and Louisville's relatively modest plans is certainly a discouraging sign.

In an eloquent dissent, Justice Stephen Bryer explained just how drastic a break this decision is with history.

"The lesson of history," Breyer wrote, "is not that efforts to continue racial segregation are constitutionally indistinguishable from efforts to achieve racial integration." Speaking from the bench for more than 20 minutes, Justice Breyer made his points to a courtroom audience that had never seen the coolly analytical justice express himself with such emotion. But his most pointed words, in fact, appeared nowhere in his 77-page dissent. "It is not often in the law," Bryer asserted, "that so few have so quickly changed so much... This is a decision that the court and the nation will come to regret."

The Supreme Court has often ordered schools to use race-conscious remedies, and in the Brown decision, it unanimously held that deciding to make assignments based upon race "to prepare students to live in a pluralistic society" is "within the broad discretionary powers of school authorities."

Indeed, Chief Justice Earl Warren, himself, wrote in the Brown decision that "education is perhaps the most important function of state and local governments... It is required in the performance of our most basic public responsibilities... It is the very foundation of good citizenship... In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms." And, the kicker from Warren: "Separate educational facilities are inherently unequal."

In a glaring example of historical audacity, the five opinions that made up this latest majority decision limiting the use of race in assigning students to public schools referred to the 1954 Brown decision no fewer than 90 times! The justices even went so far as to quote from the original briefs in the case and from the oral arguments in 1952.

Make no mistake about it, the Supreme Court's decision is a radical one and a significant threat to more than half century's worth of progress. In his dissent, Justice John Paul Stevens, the senior member of the court, said that it was his "firm conviction that no member of the Court that I joined in 1975 would have agreed with today's decision." He also noted the "cruel irony" of the court relying on the Brown decision while robbing that landmark ruling of much of its force and spirit. What happens now with public education in this country is anyone's guess. One can't help but hear, however, the chains of the ghost of ol' George Wallace rattling around the courthouse today, chanting as he once did during his inauguration as governor, "Segregation now, segregation tomorrow, segregation forever."

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