Brown v. Board of Education (1954) established a vital legal doctrine of civil rights that has been prized as almost scriptural — across the ideological spectrum. The landscape of equal protection under law has been fundamentally strengthened with Brown’s paradigm.
America looks strikingly different now than it did 72 years ago. Issues of race largely no longer concern segregation or de jure discrimination; rather, today’s debates often center around diversity efforts alongside evolving forms of systemic discrimination. For instance, while at the time of Brown basic integration in schools was far from accepted, today Courts consider, and increasingly restrict, the permissibility of affirmative action policies aimed at actively pursuing diverse student bodies.
Applying Brown to such a novel set of considerations has been incongruous at times. Instead of giving rise to a consistent and rational framework of civil rights law, Brown has proven to be the birthplace of competing interpretations that have contributed to an increasingly incoherent landscape of Fourteenth Amendment jurisprudence. The result has been the obscuring of the decision’s meaning and the Amendment’s demands.
The Brown decision has been interpreted as both empowering the government to protect historically oppressed Americans, and at the same time tying their hands with regards to ending a racial caste system. Understanding how and why begins with analyzing the precedent.
Plessy v. Ferguson (1896)
In 1892, Homer Plessy boarded a train in Louisiana. He was seven-eighths White, but deemed Black according to state law. He chose a seat in the “Whites only” section, an act which was illegal according to Louisiana’s Separate Cars Act. Ultimately, he was arrested and jailed. More than just a moment of defiance, it was a deliberate test of a law which today seems so plainly unconstitutional.
Yet, in Plessy v. Ferguson, the Supreme Court ruled against him. They considered the relevant constitutional provisions in the case, namely the Fourteenth Amendment, which clarifies that all persons born or naturalized in the United States are citizens and thus granted “equal protection of the laws.” The Court’s conclusion that segregation alone does not amount to discrimination, nor does it codify inferiority between races, is baffling today. Justice John Marshall Harlan was the sole dissenting voice, warning that the decision to uphold Louisiana’s law effectively gave license to states to “interfere with the blessings of freedom.”
Yasmin Cader, the Deputy Legal Director and Director of the Trone Center for Justice and Equality at the American Civil Liberties Union, told the HPR that the Plessy Court’s interpretation of the Fourteenth Amendment wasn’t just narrow, it was “disingenuous.” It outright denied the reality of “racial hierarchy, subjugation, and white supremacy.”
Brown v. Board of Education (1954)
Nearly sixty years after the Supreme Court’s calamitous decision in Plessy, a new Court, led by the progressive Chief Justice Earl Warren, reexamined segregation in the context of public schools. The Warren Court considered the same constitutional guarantees as the Court had in Plessy. However, unlike Plessy, the justices were informed by a deepening knowledge of the impacts of segregation.
The Doll Test, a key piece of evidence presented by the plaintiffs in Brown, conducted by Drs. Kenneth and Mamie Clark, was a psychological study of children in the 1940s in which both White and Black children were shown to prefer White dolls and associate Black dolls with negative traits. Contrary to the majority’s claims in Plessy, it proved that “separate but equal” segregation did in fact sow sentiments of inferiority among Black Americans.
In Brown, the Court unanimously overruled Plessy and decried “separate but equal” public schools as unconstitutional. The decision relied heavily on the evidence demonstrating that separate schools instilled racial inferiority and were inherently unequal, and therefore violative of the Equal Protection Clause of the Fourteenth Amendment.
Fundamentally, Brown was a change in the constitutional interpretation of the Fourteenth Amendment, and one that finally precluded segregation — at least in public education. Michael Klarman, a Harvard Law School professor, renowned legal historian, and Brown expert, explained to the HPR that “most people understood [that Brown] was a broader condemnation of the system of formalized Jim Crow segregation.”
Thomas B. Griffith, a former federal judge for the U.S. Court of Appeals for the District of Columbia Circuit appointed by President George W. Bush, added in an interview with the HPR that Brown was the “epitome of our commitment” to the ideal that “equality of opportunity is central to the American experience.”
Differing Interpretations of Brown
Brown’s significance is apparent across civil rights debates, from segregation and integration to diversity programs. However, its value to both liberals and conservatives makes it seemingly paradoxical at times.
Take Students for Fair Admissions v. Harvard (2023), the case which dismantled higher education’s use of race-conscious affirmative action in admissions. In reaching their decision, the majority relied on Brown’s finding that equal educational opportunities must be available regardless of race. Chief Justice John Roberts, the author of the majority opinion, applied Brown as a prohibition against not only outright invidious forms of discrimination, but also discrimination for the sake of promoting diversity. He therefore concluded that many affirmative action policies, including Harvard’s, were unconstitutional.
The dissent also invoked Brown, but to support an opposite end. Justice Sonia Sotomayor argued that affirmative action used to increase racial diversity in higher education was a better reflection of Brown’s “vision of a Nation with more inclusive schools.”
The Supreme Court’s contrasting opinions in Students for Fair Admissions reflect conflicting conceptions of equality, or at least understandings of how the United States may be justified in striving towards equality. But how can it be that the same case supports such incompatible conclusions?
Klarman says that the reason Brown can be used in such drastically different ways is because both sides have adopted distinct generalizations of the case. “The liberal justices read Brown as a commitment to an integrated society,” Klarman explains, while “the conservative justices read it as a condemnation of any government race consciousness.” Because they are each simply different ways of making a generalization about Brown’s ruling, neither of those interpretations are necessarily wrong.
Klarman clarified, though, that in his close examination of Brown, “it’s not accurately read at either of those levels of generality.” Brown’s ruling was very explicitly about “separate but equal” segregation in public schools and was not intended to be much broader than that.
Building on this understanding of the decision’s limited intended reach, scholars have explored Brown’s interpretive legacy to understand its significance today. Pamela Karlan, a Stanford Law School professor and former Deputy Assistant Attorney General in the Civil Rights Division of the U.S. Department of Justice, explained in a lecture titled “What can Brown do for you?” the two prevailing interpretations of the Equal Protection Clause of the Fourteenth Amendment: anticlassification (barring any race-based distinctions) and antisubordination (dismantling the racial caste). Chief Justice Roberts, and other conservative justices, have read Brown as adopting the anticlassification interpretation of the Equal Protection Clause, adhering to the understanding that the essence of the Amendment is to treat every American as an individual, rather than as a member of a racial group. Conversely, Karlan and most liberal justices read Brown as embodying antisubordination interpretations.
Another case where the fight over Brown’s interpretation was prominent is Parents Involved in Community Schools v. Seattle School District No. 1 (2007). In this case, decided well before Students for Fair Admissions, the Supreme Court looked at race-conscious policies aimed at maintaining racial diversity in a secondary public school system. Again taking contrasting approaches to Brown, the Court concluded that policy was unconstitutional. In Chief Justice Roberts’s well-known opinion, he declared that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Chief Justice Roberts believed such a conclusion was in fact in line with what the lawyers for Brown were originally advocating. He cited Robert L. Carter, one of the attorneys for the plaintiffs in Brown, who argued that the Equal Protection Clause of the Fourteenth Amendment does not authorize the government to “use race as a factor in affording educational opportunities among its citizens.”
However, Carter, who was alive when the Parents Involved decision was handed down, disputed Roberts’ characterization of his statements. He criticized the use of his words to prohibit affirmative action and reminded the Court of the context of Brown: “All that race was used for at that point in time was to deny equal opportunity to black people.” This point highlights the ongoing clash about the most faithful application of this fundamental case.
With this tension mind, is there something about the way Brown was written that might lend itself to these kinds of broad, contrasting interpretations of its meaning? It’s possible. GeDá Jones Herbert, the Chief Legal Counsel for Brown’s Promise, an organization responding to backsliding racial progress and attempting to fulfill Brown’s desegregation vision, addressed an important aspect of Brown in an HPR interview. According to Herbert, even though Brown was unanimous, not all of the justices on the Court “enthusiastically [endorsed] the decision” in 1954. Nonetheless, Chief Justice Warren understood that “for this decision to be taken seriously… it needed to show a united front.”
Because of the Brown decision’s unanimity, Klarman agreed that the Court did not take as strong of a stance as it could have. A clarified ruling could have more obviously supported antisubordination or anticlassification, making such contradictory interpretations harder to justify at the same time. Evidently, though, the Court did not make a broader statement about discrimination and rather ruled more narrowly against segregation in public schools. Klarman observed that perhaps the Court ruled in such a way in part because they did not foresee the affirmative action debate we have today.
Although interpretative debates persist, Judge Griffith believes that the fact that “reasonable people can disagree about whether Brown supports affirmative action or cuts against it” should not diminish Brown’s imperative that we be “dedicated to equality.” The central mission, to him, remains clear: to fully realize the equal protection promise of the Fourteenth Amendment.
Originalism and Colorblindness in the Constitution
When considering the debate over Brown and its significance today, colorblindness is unavoidably relevant. In his 2013 lecture “Colorblind Constitutionalism,” Randall L. Kennedy, a Harvard Law School professor, defined colorblindness in a constitutional sense as the “proposition that race ought to play no role in assessing individuals.”
Justice Clarence Thomas, a staunch proponent of a colorblind approach to constitutional law, wrote in his concurring opinion in Students for Fair Admissions that he believes the framers of the Fourteenth Amendment envisioned and created “a colorblind Constitution that requires the government to, at long last, put aside its citizens’ skin color and focus on their individual achievement.”
To arrive at this conclusion, Justice Thomas references Justice Harlan’s solo Plessy dissent. Justice Harlan, whose hallowed dissent Justice Thomas repeatedly invokes, asserted clearly that “[o]ur Constitution is color-blind.” Justice Harlan explains that, “the law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.”
The implication, of course, is that a colorblind method of constitutional interpretation is reasonably seen to preclude race consciousness.
But the colorblind interpretation is highly controversial, especially in the way it is framed by Justice Thomas. In fact, according to Karlan, Justice Harlan and Justice Thomas are not using the phrase in the same way. “Justice Harlan was saying our Constitution is colorblind in the sense that it doesn’t believe in caste… he was not talking about whether the Constitution could take race into account at all.”
Regardless of whether colorblindness is an accurate reflection of the Constitution, many are nonetheless concerned with the ramifications of such an interpretation. Cader believes that “conservative justices have recast Brown as a principle of colorblindness.” She noted that the current Supreme Court has relied on this understanding to strike down not just affirmative action, but also voluntary race-conscious public school integration policies in Parents Involved. Cader identified these results as evidence that “color blindness is really a form of denial of both history and the continuing effects of discrimination.”
The interpretation of the Fourteenth Amendment, in Cader’s estimation, started off narrow and insincere in cases such as Plessy. Then, with cases such as Brown and Loving v. Virginia (1967), which legalized interracial marriage, the Supreme Court expanded its interpretation of the Equal Protection Clause. The Court also expanded unenumerated rights through the Due Process Clause of the Fourteenth Amendment with cases such as Roe v. Wade (1973), as well as Loving. In these cases, Cader said, we saw the Court “breathe life into the [Fourteenth] Amendment and apply it in a robust way that had fidelity to the spirit of not just the Amendment, but the underlying principles of democracy.”
The Court’s recent adherence to colorblindness has once again narrowed its interpretation of the Fourteenth Amendment, now taking an approach that Cader says “does not have the same fidelity… to the concept of the Constitution being a living promise of equality.” Rather than breathing life into the Amendment, today’s court puts it at risk of suffocation.
How the Court Has Changed
In the seven decades since Brown, much has changed on the Court. The factors that the Roberts Court considers and the issues it aims to address would have been unimaginable to the Warren Court.
Klarman believes that, for this reason, the Warren and Roberts Courts are nearly incomparable. The Court then, he said, was generally more liberal, with many of the justices appointed by President Franklin D. Roosevelt and therefore more open to government regulation and social programs. He would not characterize any of the justices from the Warren Court as “dogmatic originalists.”
On the other hand, Klarman says that the Roberts Court has been “packed by the Federalist Society,” a conservative legal organization advocating for originalism. Klarman thinks the Roberts Court has become “more ideologically extreme” and has implemented a “kind of radical agenda” that is so far-reaching it could not realistically be achieved through ordinary legislation.
Karlan further identified a shift in core priorities of the Court: “the Court right now has much less of a concern for racial justice in America.” She does not believe that the current Court has “much of a commitment to fulfilling” Brown’s promise to eliminate racial caste and racial disadvantage in America. Instead, she explained, the Court has effectively announced that eliminating the racial caste would be outside of its power, and that they have done what they can to address it.
Expanding on this critique, Herbert asserted that today, “our Court is…not applying law to reality.” She claimed civil rights legislation has been “weaponized” and accused conservative legal advocates and some justices on the Court of failing to consider history or recognize the “impetus behind [civil rights legislation].” She pointed out the irony in that these “important protections” have been “turned on their head against the very people they were put in place for.”
Judge Griffith, on the other hand, believes that the Court’s commitment to equality has remained since Brown, and underscored that disagreements over equality on the Court today are about the method in which it should be pursued, not the principle itself. Furthermore, he sees consistency in the Court’s approach to overturning precedent, following Brown’s lesson. He compares the Court’s overturning of Roe in Dobbs v. Jackson Women’s Health Organization (2023) to Brown’s overturning of Plessy, given the Court in both instances found the older cases to be “fundamentally wrong” interpretations of the Fourteenth Amendment.
Judge Griffith, however, does believe that some of the Roberts Courts’ decisions challenge the promises of the Reconstruction Amendments. For example, he disapproved of the Court’s actions to gut the Voting Rights Act, which he views as a vital means of enforcing the Fifteenth Amendment.
The Future
Judge Griffith had hope for the future of the Court. “I have a lot of confidence in them,” he said. Through the Court’s handling of contentious debates “based on facts, reasoned argument, and simple discourse,” he had faith that they can be “a role model for the rest of us.”
Cader, on the other hand, was critical of the Court’s handling of many issues, especially the fact that they seem to have neglected that “the real lesson of Brown is that equality requires action, not amnesia.” The significant underlying principles of equality in our country require that we “not just tolerate multiculturalism, but we embrace it and understand its power.” Our country, she explained, has a long history of fighting towards that “promise of democracy, of inclusion.”
Ultimately, the obstacles ahead remain substantial. Even so, Cader ended on a hopeful note, emphasizing the enduring spirit of the American people: “I have tremendous faith that our country will continue the project we started with.”
