Race, Law, and Higher Education in the Colorblind Era

Critical Investigations into Race-Related Supreme Court Disputes

Hoang Vu Tran

• Publisher: Routledge
• Year: 2019
• eBook ISBN:
  9781351116725
• Topic: Education
• Subtopic: Education General

This book provides detailed analysis of Supreme Court judgments which have impacted the rights of minorities in relation to higher education, and so illustrates ongoing issues of racial discrimination throughout the American education sector.

Race, Law, and Higher Education in the Colorblind Era brings together the many racial disputes that have been adjudicated by the Supreme Court to investigate the politics of colorblindness in the post-civil rights era. Through a reading of these various cases as a form of continuing racial discourse, this book focuses on the ways in which racial disputes operate within a clearly entwined colorblind narrative that invalidates racial justice for minorities. By investigating how the Supreme Court has understood racism and the concept of race across its history, this volume demonstrates how colleges and universities must navigate the often contradictory and perilous landscape of 'diversity' in attempts to integrate historically disadvantaged minorities.

This book will be of interest to researchers, academics, and postgraduate students in the fields of sociology of education, multicultural education, and legal education.

Section II

Revisiting and Revising ‘Settled’ History

4 The Politics and Whiteness of Brown v. Board of Education

Introduction

Brown v. Board of Education (1954) is a significant historical moment in the formation of our current colorblind era. Along with the passage of the Civil Rights legislation, Brown sparked the modern Civil Rights movement. Although the case continues to be revered as one of the most important Supreme Court decisions in American legal history, there is an incongruent relationship between our reverence and actual merits of the decision. That is, the less that is actually known about Brown, the more famous and hallowed it is received. 2014 marked the 60th anniversary of Brown. To mark the anniversary, groups and institutions such as the White House, national newspapers, and universities commemorated Brown by celebrating the decision while throwing caution to the wind regarding the continuing difficulties that public education faced on the issue of segregation. The fact that Brown is so celebrated juxtaposed with the somber tone of its 60th anniversary celebration is a quintessential feature of Civil Rights ‘accomplishments’ in the colorblind era. In other words, Brown showed promise but its delivery was sorely lacking. Sixty years after Brown, the quest for equality and desegregation in education remain elusive. We often come to this conclusion by looking at the current state of segregation in education. In reality, the writing was already on the wall more than sixty years ago. We need only to remember the opinion and the aftermath of Brown I and Brown II to see that what has transpired over the last sixty years was compatible with the resulting outcome.

In this chapter, the politics of the Brown decision is revisited. In the first section, Chief Justice Warren’s opinion is dissected to lay bare the necessary maneuvers and compromises required to secure a unanimous decision. Warren understood the severity of the constitutional issue of enforced segregation and believed a united Court was necessary to end segregation in education. As a result of Warren’s astute recognition of the seriousness of racial segregation, the Chief Justice’s politicking to secure a unanimous decision also watered down the severity of racial segregation as a form of structural racism. In the second section, the opinion’s pivot from emphasizing structural harm in favor of individual harm as a consequence of segregation is analyzed. In the spirit of not inflaming the South and to avoid further social cleavages, the decision’s focus on individual harm lets Whites off the hook as the perpetrators or agents of enforced segregation. The third section surveys the varied responses to Brown I and Brown II. The difficulty Blacks experienced trying to attend white schools during this period was a direct result of the politics, appeasement, and compromising nature of Warren’s opinions. Finally, I argue that despite the shortcomings of Brown over the last 60 years, its legacy is ever more important for combating contemporary colorblindness. Brown’s continuing importance is marked by a need to remember accurately its language, appeasement, compromise, and at times, violent struggle.

The Politics of Brown

Brown has been discussed extensively as a canonical case (see Ogletree, 2004; Patterson, 2001; Bell, 2004). Its most significant legal achievement is ending Plessy’s ‘separate but equal’ constitutional doctrine in the field of public education. Additionally, the case has achieved a sort of Holy Grail status in the popular imagination as a shining example of the goodness of American democracy and equality. In this way, its commemoration as a significant historical event has been embroiled in political controversy precisely because its stature in historical memory represents a significant achievement in American society. I do not quarrel with the fact that it was a landmark decision; this fact seems plain enough. However, in all of this celebration, specifics have been lost concerning the political climate and maneuvers that Chief Justice Earl Warren had to enact for the decision to come to fruition. This establishes the peculiar status of Brown being celebrated and remembered today for something that it did not really do (meaningfully desegregate school) and revered as a seminal racial moment even though it racially accomplished so little. Because of this, the specific politics of Brown is important and should not be forgotten. Here, an important distinction should be made. Much has been discussed and written about the politics of Brown after the decision. However, in referring to the politics of Brown, I am invoking processes of contestation and appeasement that Warren navigated in order to reach Brown’s unanimous decision. Less attention has been paid to this aspect in the literature.

In this analysis, ‘the politics of Brown’ is centrally about the political climate that NAACP lawyer Thurgood Marshall, Chief Justice Earl Warren, and the other eight Justices on the Court considered, participated in, and were part of hearing and deciding the case. Furthermore, the text of Brown and what it signifies represents an incredibly rich source of historical significance emblematic of the difficult racial climate the Court and the country faced. Collectively, ‘the politics of Brown’ is an engagement in identifying the contemporary political climate of Brown as a racial moment in history that is focused principally before 1954 and immediately following the decision. In this analysis, the Court, its Justices, the lawyers, and activists involved are part of a political polity constructing a conversation on race as it relates to segregation in public education. In this way, Brown can be brought down from its perch as a hallowed civil rights case so that it can be studied and analyzed not as a significant historical moment, but whether or not Brown deserves its historical significance.

What’s in a Name: Brown or Briggs?

Brown was a consolidation of four related desegregation cases from around the country and one from the District of Columbia, Bolling v. Sharpe (1954). Because Bolling originated from D.C., it was subject to a Fifth Amendment due process claim as opposed to an equal protection claim, which applies to the states. Nevertheless, the Court consolidated Bolling with the other four cases because it similarly hinged on the constitutionality of segregation in public education. As should be obvious, Brown’s namesake, Brown v. Board of Education of Topeka Kansas, hailed from Kansas. The other state cases, including Brown, were:

1. Briggs v. Elliot (1952): Summerton, South Carolina
2. Brown v. Board of Education (1954): Topeka, Kansas
3. Davis v. County School Board of Prince Edward County (1952): Prince Edward County, Virginia
4. Gebhart v. Belton (1952): Claymont, Delaware

The Supreme Court is an institution steeped in history and tradition. If a case like Plessy v. Ferguson (1896) represents the conflict of one person against one government official or representative of a government body, then the case is simply called Plessy v. Ferguson. However, when consolidated cases present a multitude of appellants, petitioners, and government actors, the court has an established procedure that it follows in terms of naming and publishing for public records. For consolidated cases, the Court refers to the entire consolidated action via the case that comes first alphabetically.¹ The preceding four-state consolidated cases are listed alphabetically. Therefore, the canonical case that we have come to know as Brown v. Board of Education should instead have been called Briggs v. Elliot from Summerton, South Carolina. But according to my conversations with Ian Haney López, the fact that we now refer to these consolidated cases as Brown rather than Briggs is not due simply to an innocent procedural mistake, but a purposeful maneuver by Chief Justice Earl Warren to appease southern justices on the bench to avoid making the case about southern racism. That is, if case-naming tradition was followed, the verdict would have been called Briggs v. Elliot and would locate the Court’s unanimous ruling right in the heart of the south: Summerton, South Carolina. Haney López argues it was at Earl Warren’s doing that the consolidated cases were referred to as Brown instead of Briggs because Warren did not want the case to be an indictment of southern racism that would only further inflame the South’s racial hostility. Only Earl Warren knows his true intentions for this slight change, but this procedural maneuver was one of a number of important concessions.

Compelling as the suggestion from Haney López is, it is still an unverified claim that speaks to the motivation of Warren to appease southern Justices and not turn the Brown case into an indictment of southern racism. However, the case’s name change was not the only peculiar detail of Brown that suggests the Chief Justice, and by extension the entire court, was well aware of the controversial nature of the case. Delivering the opinion of the Court in Brown, Chief Justice Warren was also the opinion’s author. Although Warren was able to persuade the other eight justices on the unconstitutionality of segregation in education, they had to also agree with his legal reasoning in order to sign on to a unanimous decision. This is an aspect of the Court’s procedure that often gets overlooked. For instance, if a case is decided with justices voting 9–0, the decision may be unanimous in the outcome, but not unanimous in reasoning. In these circumstances, it is not uncommon for nine justices to agree on the final outcome, but nevertheless write their own opinions expressing their individual (or plural) justifications. In the unanimous Brown verdict, there were no concurring opinions. All nine justices on the Court signed onto Warren’s opinion. Therefore, all the justices agreed to both the outcome and the reasoning of the Warren delivered opinion.

Outcome Over Reason?

Brown’s specific reasons and justifications to end segregation in public education deserve as much focus as its overall outcome. The constitutional question that Thurgood Marshall carefully crafted for the court was:

[D]oes segregation in public education, even with tangible equality in resources and other aspects, violate the equal protection clause of the fourteenth amendment?²

Procedurally, the Court follows specific steps of established practices in settling constitutional disputes, especially when it deals with aspects related to constitutional amendments. Some of these initial steps are (see Stern, Gressman, Shapiro, & Geller, 2002):

1. Text
2. Original Intent
3. Established local practices

Of the five sections in the Fourteenth Amendment, section 1 has become the most scrutinized and has served as the basis for some of the most famous landmark decisions in the Country’s history (e.g. Plessy, Brown, Roe v. Wade, Bush v. Gore). In its entirety, section 1 of the Fourteenth Amendment reads:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

First, to answer the constitutionality of educational segregation, the Court looks at the text of the amendment to see if it provides any guidance. It does not. The text of section 1 says nothing remotely related to education or segregation. Second, if the text provides no illuminating answers, the Justices will investigate the original intent of the framers of the Fourteenth Amendment. The Justices would ask: did the authors of the Fourteenth Amendment intend for the ‘equal protection clause’ to outlaw segregation in public education? By any stretch of imagination, at the time of the amendment’s adoption, education was mostly a local or regional practice. Finally, the Court looks at the established local practices during the time of the amendment’s ratification. Although many local municipalities had not embarked on the project to provide comprehensive public education, many families, black and white, sent their kids to local parochial and private schools. These schools were located in segregated black and white churches and single building schoolhouses. Particularly in Washington D.C., many of the those who participated in the adoption of the Fourteenth Amendment sent their own kids to white-only schools. Collectively, all three prescribed steps of initial constitutional procedure (text, intent, and established practices) answered the constitutional question of whether or not educational segregation violated the Fourteenth Amendment’s equal protection clause with a clear no. Collectively, the Fourteenth Amendment said nothing about education or segregation, the authors of the amendment surely did not intend for education to be desegregated when they sent their own kids to white-only schools, and established practices at the time did not have a robust public education system.

Warren had a clear answer from the text, intent, and established local practices of the Fourteenth Amendment. If Warren’s opinion stayed consistent with the procedural history of the Court, he would have had to uphold Plessy’s constitutional doctrine of ‘separate but equal’ preserving racially segregated schools. The late Chief Justice William Rhenquist agreed with this position, writing in a memo in the early stages of Brown in 1952 as a Supreme Court law clerk. Rhenquist’s memo was written to Justice Robert Jackson, a member of the Brown court. Rhenquist stated that although he was excoriated by liberal colleagues for his unpopular and unhumanitarian position, he believed that Plessy v. Ferguson should not be overturned.

Chief Justice Warren signaled a shift away from the established traditions and customs of the Court. Warren was deftly strategic in his opinion on the one hand, to acknowledge the historical procedure of the court, while on the other hand, not allowing the substance of his decision to be completely bound by its procedure. That is, the Chief Justice did not step out and directly say his opinion deviated from hundreds of years of established constitutional procedural practice. Nevertheless, he did just that by declaring in the opinion that in looking at the text, intent, and established practices, ‘these circumstances provided were at best inconclusive’.³ Here is where Warren’s veering from the Court’s tradition is obvious. The text, intent, and established practices of and around the Fourteenth Amendment were clear and conclusive that the equal protection clause was neither written nor intended to apply to segregation in public education.

Chief Justice Warren knew that discarding more than a century’s tradition of constitutional jurisprudence in order to avoid the unsavory result of upholding separate but equal would dramatically affect the legitimacy and standing of the Court. Therefore, he had to acknowledge the Court’s traditions in style but neglect it in substance. Compared to Supreme Court decisions today (e.g. Parents I...

Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Dedication
• Contents
• Preface
• Introduction
• Section I Foundations of Colorblindness, Whiteness, and Racial Subordination
• Section II Revisiting and Revising ‘Settled’ History
• Section III Critical Contemporary Perspectives
• Selected Readings List
• Index