by Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School
*May 17 is the 60th Anniversary of the landmark Supreme Court opinion, Brown v. Board of Education. This post is part of an ACSblog symposium noting the landmark decision and exploring the ongoing inequalities in our society.
The issue before the Supreme Court in Parents Involved in Community Schools v. Seattle School Dist. No. 1 was whether it was constitutionally permissible for a school district to use race as a basis for assigning public school students to schools for the purposes of achieving a greater degree of racial integration than would otherwise have occurred under, for example, a program assigning children to the school nearest their homes. As Chief Justice Roberts wrote in an opinion joined by three of his colleagues, an important “debate” in the case was over “which side is more faithful to the heritage” of Brown v. Board of Education. That debate is part of what historians have called the struggle for historical memory.
According to the Chief Justice, “the position of the plaintiffs in Brown was spelled out in their brief and could not have been clearer: ‘[T]he Fourteenth Amendment prevents states from according differential treatment to American children in the basis of their color or race.’” What, he asked, “do the racial classifications at issue here do, if not accord differential treatment on the basis of race?” And, he quoted Robert Carter, who in arguing the case for the NAACP, said, “no State has any authority … to use race as a factor in affording educational opportunities among its citizens.” Chief Justice Warren had written that a school board has to “determin[e] admission to the public schools on a nonracial basis.” What, Roberts again asked, “do the racial classifications do in these cases, if not determine admission to a public school on a racial basis?”
Justice Stephen Breyer called his dissent in PICS the opinion he has felt most deeply about. For him, “Brown held out a promise…. It was the promise 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.” Alluding to the Little Rock school crisis of 1957-58, he said, “attitudes towards race in this Nation have changed dramatically.” Parents in Seattle and Louisville “want their children to attend schools with children of different races.” They made a “modest request” that the Court “not … take from their hands the instruments they have used to rid their schools of racial segregation.” The nation had “not yet realized the promise of Brown,” and Roberts’s “position … would break that promise.” Breyer noted in his oral presentation of his dissent that the dissent was “twice as long as any I have written before,” and ended by quoting the dissent’s final line: “This is a decision that the Court and the Nation will come to regret.”
Some of the people who had represented the Brown plaintiffs were still alive, and they weighed in against Roberts. Robert Carter, by then an elderly federal judge, said, “All that race was used for at that point in time was to deny equal opportunity to black people. It’s to stand that argument on its head to use race the way they use it now.” Jack Greenberg, another lawyer who worked on Brown and later headed the NAACP Legal Defense Fund, said that Roberts’s “interpretation” of the plaintiffs’ position in Brown was “preposterous.” The plaintiffs “were concerned with the marginalization and subjugation of black people.” And William T. Coleman, Jr., a Republican who had worked on the Brown case as a young lawyer and went on to serve in President Gerald Ford’s cabinet, called the opinion “dirty pool” and “100 percent wrong.”
The politics of memory in PICS is not simply a struggle over what Brown “really meant,” but more important a struggle over the merits of contending positions in today’s constitutional law. It would count as a reason against the outcome in PICS that Robert Carter’s argument in Brown was inconsistent with that outcome, and as a reason in favor of the outcome that Carter’s argument was consistent with it. And, for the politics of memory to work, there must be “no ambiguity” about what Carter argued. For, ambiguity about his argument would make it plain that the discussion is not about what he said in 1954 but about what today’s justices should do.
The struggle to claim Brown’s heritage raises another question. Chief Justice Roberts treats Brown as the foundation for the rule he applies – Brown, not the Fourteenth Amendment. Looking backward, we see Brown, with the Fourteenth Amendment obscured behind it. What that means, though, is that the Constitution is indeed a living document. A decision made more than 80 years after the Fourteenth Amendment because law is the source of the constitutional law we apply today. The “living Constitution” aspect of PICS is made clear by the authority the Chief Justice seeks to gain by claiming the heritage of Brown. Those who wrote the briefs and present the oral arguments in Brown become as authoritative as, perhaps even more authoritative than, those who adopted the Fourteenth Amendment.
The Supreme Court cannot definitively determine Brown’s meaning because politics – the local politics of historical memory conducted in the law – cannot provide anything more than a temporary resolution of the differences among us. The meaning given Brown by Chief Justice Roberts will be no more than one of many items of discourse when once again we struggle over Brown’s meaning. So will the views of Robert Carter and Thurgood Marshall – who is strikingly missing from the Chief Justice’s account of Brown – in 1954 and thereafter. Judge Carter always maintained that Brown was about ensuring that African American children had educational opportunities equivalent to those provided white children, and that his arguments were crafted strategically to reach that goal, as he and his colleagues saw things in 1954. That was Justice Breyer’s view in PICS. Perhaps someday it will be what we remember Brown for.