Charlie Riedel/AP Photo
Students pass through the hallway between classes at Topeka High School, May 10, 2024, in Topeka, Kansas. Topeka is the home of the former school at the center of the Brown v. Board of Education ruling ending segregation in public schools 70 years ago.
On May 17, 1954, the Supreme Court condemned as unconstitutional racial segregation in public primary and secondary schools. It announced its new doctrine in two cases: Brown v. Board of Education, which applied to states, and Bolling v. Sharpe, which applied to the District of Columbia. The cases, often referred to simply as Brown, are among the Court’s most well- known rulings.
The familiarity of the Court’s landmark decision misleadingly prompts people to think that they know what Brown says, even though they have neglected to read it carefully. On Brown’s 70th anniversary, it deserves a realistic appreciation attuned to the ruling’s text and social setting, a landscape very different from what exists today.
Many have forgotten precisely what Brown invalidated. It struck down provisions such as the section of the South Carolina Constitution that decreed, “Separate schools shall be provided for children of the white and colored races, and no child of either race shall ever be permitted to attend a school provided for children of the other race.”
Brown did not begin with Chief Justice Earl Warren’s announced resolution of it. Plaintiffs launched the cases that afforded the justices an opportunity to strike a blow for social decency. Several of these plaintiffs knew they would suffer painful retaliation. Their attorneys maintained that segregated schooling offended the due process and equal protection clauses of the Constitution because, motivated by racial prejudice, it stigmatized Black children by quarantining them, so as to “protect” white children from contamination.
The attorneys had trouble convincing the Court, because segregation enjoyed cover under text, history, and precedent. Nowhere does the Constitution explicitly prohibit governments from separating people on a racial basis. As an originalist matter, the 18th- and 19th-century framers and ratifiers of the pertinent constitutional provisions did not understand themselves to be withdrawing from governments the authority to impose racial separation. Segregationists, moreover, could point to a wall of precedent built or countenanced by leading jurists, including Oliver Wendell Holmes Jr. and Louis Brandeis. Prior to 1954, vanishingly few judges had ruled that racial segregation violated the Constitution.
In Brown, the Court broke free from baleful tradition. Yet the Brown opinion is utterly pallid. Absent from it is denunciation of the ideology from which segregation arose or the grotesque unfairness with which “separate but equal,” the doctrine ushered in by the 1896 ruling in Plessy v. Ferguson, was administered.
The Court’s diffidence was not inadvertent. Chief Justice Warren told his colleagues that he sought to craft an opinion that would be “short, readable by the lay public, non-rhetorical, and above all, non-accusatory.” Determined to lessen opposition as much as possible, Warren avoided candidly diagnosing segregation’s pathologies. The Supreme Court’s most honored race relations ruling thus skirted frankly discussing racism. The evasion was prudential, perhaps wise. A sound appraisal of Brown should recognize, however, the constraint that accompanied its birth.
The attorneys had trouble convincing the Court, because segregation enjoyed cover under text, history, and precedent.
Brown’s status has changed dramatically over its lifetime. In its infancy, enemies sought to strangle it. In 1956, 19 senators and 76 members of the House of Representatives endorsed the “Southern Manifesto,” which condemned Brown as a “clear abuse of judicial power” that ought to be resisted by “all lawful means.” In its childhood, assailants unleashed bombings, mob violence, and rampant threats to devastating effect. In 1964, none of Mississippi’s more than 300,000 Black students attended school with whites. Prior to 1966, not a single Black teacher in Mississippi, Alabama, or Louisiana was assigned to work alongside white teachers.
Yet Brown’s core holding—prohibiting government from requiring racial separation—eventually gained traction, subverting the race line in all areas of social life, including transportation, recreation, and matrimony.
Because of changes in consciousness wrought by the civil rights movement, by the time Brown reached adulthood, it had attained a legitimacy beyond serious questioning in national politics.
Attorney William H. Rehnquist defended the constitutionality of segregation in the 1950s. By 1971, however, he had been forced to change his tune. When facing senatorial confirmation for a seat on the Supreme Court, he purported to embrace Earl Warren’s handiwork, effectuating what professor Brad Snyder terms the conservative “canonization” of Brown.
Nowadays, many liberals complain that conservatives’ rhetorical embrace has been accompanied by a strategy to weaponize Brown against policies that range beyond the cessation of racial discrimination and that seek to further racial equality. Chief Justice John Roberts, who clerked for Chief Justice Rehnquist, cites Brown to support the proposition that racial classifications deployed for the purpose of facilitating integration or remediating past racial wrongs are as constitutionally illegitimate as racial segregation. “The way to stop discrimination on the basis of race,” he insists, “is to stop discriminating on the basis of race.”
With that understanding in mind, Roberts announced the Court’s decision in 2007 in Parents Involved in Community Schools v. Seattle School District No. 1, which invalidated racial policies undertaken to sustain racial heterogeneity in schools. Similarly, Roberts announced in 2023 Students for Fair Admissions v. Harvard (SFFA), which put to an end racial affirmative action programs in most colleges and universities.
Roberts’s deployment of Brown is obtuse. The racial discrimination invalidated in Brown amounted to racial oppression. The racial discrimination invalidated in Parents Involved and SFFA redressed racial oppression. The difference ought to be obvious and accommodated in law. As the late justice John Paul Stevens suggested, there is a compelling distinction between a sign that says “Black people stay away!” and one that says “Black people welcome!”
Whites complaining about affirmative action are hardly comparable to Blacks complaining about segregation. Any disadvantage imposed upon so-called “victims” of so-called “reverse discrimination” is inadvertent, partial, and limited by political authority in which they have an effective voice. By contrast, segregation fueled by racial prejudice deemed all Blacks to be racially ineligible for participation in white schools.
Despite rough treatment, Brown stands before the world as a vital achievement. Some assert that schools in many places are as segregated now as when Brown was announced. Such claims are wrong. Because of Brown and its progeny, nothing like the segregation that once held sway exists in America. This is not to say that racism has been erased. Pigmentocracy remains all too prevalent. But the specific evil that Brown addressed has been decisively overcome. That is a monumental accomplishment worthy of praise.
