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Seventy years after the Supreme Court acknowledged that “separate but equal” had no place in the United States, one of history’s most celebrated legal opinions is being used by conservative groups to challenge race-related policies in schools across the country.
In a remarkable demonstration of the Supreme Court’s power to shape American life, the 1954 unanimous decision in Brown v. Board of Education required the integration of public schools – a landmark victory for the civil rights movement. The high court handed down its decision 70 years ago Friday.
Speaking in Texas last week, conservative Justice Brett Kavanaugh described the decision as one of several that are now part of the “fabric of America.”
But a conflict over the decision’s meaning is playing out in a series of lawsuits challenging efforts to foster classroom diversity, in which conservative groups are arguing that Brown requires schools and government programs to be totally colorblind.
Civil rights groups say that recasts a decision that was intended to rectify the nation’s history with racism.
“Brown is being weaponized against the very people it was intended to directly serve,” Janai Nelson, president and director-counsel of the NAACP Legal Defense Fund, told CNN. “And that is largely a result of the Supreme Court never giving the 14th Amendment the full and robust interpretation that is required to sustain a multiracial democracy.”
Meanwhile, experts note that many of the nation’s schools remain deeply segregated.
“Not only has Brown failed to deliver on its promise, right-wing groups have co-opted Brown and turned it into a sword to discredit efforts to integrate our schools,” said Jonathan Feingold, a Boston University law professor and expert on affirmative action and antidiscrimination law. “As a country, we seem to have accepted a status quo in which Black and brown students, and many Asian American students, do not receive equal educational opportunities.”
The current Supreme Court reenergized that debate last year with a blockbuster decision ending affirmative action in college admissions at Harvard and the University of North Carolina. The meaning of Brown was hotly contested in that case, and the Supreme Court’s conservative majority said in its decision that the precedent stood for all but eliminating the consideration of race.
“The conclusion reached by the Brown Court was thus unmistakably clear: the right to a public education ‘must be made available to all on equal terms,’” Chief Justice John Roberts wrote for the 6-3 majority in the UNC opinion. “The time for making distinctions based on race had passed.”
Led by Justice Sonia Sotomayor, the court’s liberal wing disputed that reading.
“In Brown v. Board of Education, the court recognized the constitutional necessity of racially integrated schools in light of the harm inflicted by segregation,” Sotomayor wrote in a scathing dissent. “Today, this court stands in the way and rolls back decades of precedent and momentous progress.”
Though the fight over race-conscious admissions was settled, the court’s decision in the Harvard case and the debate over color-blind versus race-conscience policies have emerged in a series of other lawsuits, such as challenges to workplace diversity programs and recent fights over redistricting. Schools and conservative groups, meanwhile, are also sparring in court over policies that promote student diversity without relying directly on race.
Students for Fair Admissions, the group that successfully sued over admissions at Harvard and UNC, is now challenging the University of Texas at Austin for its policy of collecting racial data of applicants. In a filing earlier this year, the group claimed the Supreme Court’s decision last year on college admissions “built on Brown’s legacy” and required courts to view the Constitution as requiring a “color-blind” approach.
“Brown v. Board was perhaps the most consequential Supreme Court opinion in the last one-hundred years,” the group’s president, Edward Blum, told CNN in a statement. “For a significant majority of Americans of all races, this case established the doctrine of ‘colorblind’ public policies to which all levels of government must adhere.”
The university has said it doesn’t use the racial data to make decisions about applicants.
The libertarian Pacific Legal Foundation has challenged an elite Virginia high school’s proposal to accept a set number of students from each of the county’s middle schools. Parents represented by the group sued the Fairfax County, Virginia, school board in 2021, alleging its policy violated the Constitution by seeking to balance the student body’s racial makeup at the expense of Asian Americans.
A federal appeals court in Richmond disagreed. The Supreme Court in February declined to hear that case.
But similar cases are already on the way.
The group has another appeal challenging admissions practices at three selective public schools in Boston that currently is pending at the Supreme Court. That appeal cites Brown v. Board in a footnote, asserting that the justices have “struggled with cases involving racial discrimination in education” for more than a century.
Anastasia Boden, a senior attorney at the Pacific Legal Foundation, said that Brown was an important step in ensuring that Americans aren’t treated differently based on their race.
“Fulfilling Brown’s promise means ending discrimination in all of its forms, including modern forms, whereby schools pass new admissions policy for the explicit purpose of ‘racial balancing,’” she said. “The consequence of racial balancing in schools is excluding some students – usually Asian students – solely because of their race.”
But the goal of Brown was never “equal representation,” she said. “It was equal treatment based on race and the elimination of racial discrimination in the law.”
Civil rights groups say that argument misreads the history and meaning of the seminal decision.
David Hinojosa, an attorney with the Lawyers’ Committee for Civil Rights Under Law, argued in favor of affirmative action in the UNC case before the Supreme Court in 2022. Hinojosa, who represented students and alumni, described Brown as an attempt to “shut down this nation’s terrible caste system,” not turn a blind eye toward it.
“I didn’t think the Supreme Court would go as far as it did,” Hinojosa said, referring to the college admissions case. “For a majority to suggest that Brown v. Board supports the exclusion of highly qualified brown and Black students … is a travesty.”
A product of Chief Justice Earl Warren’s court, both sides agree Brown v. Board was a monumentally important win for civil rights – though it took years, subsequent appeals and military intervention by President Dwight Eisenhower to begin to carry it out.
During confirmation hearings for both Kavanaugh and Justice Amy Coney Barrett, senators needled the then-nominees about whether Brown is settled law. They did so in an effort to highlight distinctions between how former President Donald Trump’s nominees described Brown compared with Roe v. Wade, the 1973 decision that established a constitutional right to abortion and that the court overturned in 2022.
Kavanaugh, during his 2018 hearings, repeatedly described Brown as the “greatest moment in Supreme Court history.” Barrett noted that she had previously said in writing that Brown “was correct as an original matter.”
And yet the Brown ruling also underscored the limits of the Supreme Court’s power. Though public schools are no longer segregated by law, they have also never been fully integrated. Racial segregation has increased 64% since 1988 in the nation’s 100 largest school districts, according to a study this month from Stanford University and the University of Southern California. The study’s authors pinned the increase on school districts that have been released from court-ordered desegregation plans and an increase in school choice programs.
Advocates such as Hinojosa say the numbers reflect precisely what Brown sought to avoid.
Now, Hinojosa said, the decision is being used by “anti-civil rights groups to further segregate schools.”
