In Clash Over Affirmative Action, Both Sides Invoke Brown v. Board of Education

https://www.nytimes.com/2022/10/30/us/supreme-court-affirmative-action-brown-board-education.html

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WASHINGTON — When the Supreme Court hears arguments on Monday on the fate of affirmative action in higher education, the justices will be working in the looming shadow of a towering legal landmark: Brown v. Board of Education, the unanimous 1954 decision that said the Constitution prohibits racial segregation in public schools.

Both sides claim the mantle of Brown, which is widely thought to be the court’s finest moment. The challengers say the decision requires admissions policies to be colorblind, dooming race-conscious programs at Harvard and the University of North Carolina.

The universities respond that Brown meant to do away with a racial caste system that subjugated Black students, and that the decision surely allowed efforts to assemble varied student bodies to ensure educational diversity.

Brown’s singular status only deepened the debate over its meaning, Justin Driver, a law professor at Yale, said.

“Brown is the Mona Lisa of American constitutional law,” he said. “It is not only the court’s most scrutinized and most famous opinion, but its meaning also shifts when viewed from different angles.”

Both sides may have a point, Michael W. McConnell, a law professor at Stanford, said.

“The Brown opinion is profoundly ambiguous, and they are appealing to different aspects of the opinion, legitimately different aspects,” he said. “Is it a case about not assigning on the basis of race or is it a case about making sure that African American schoolchildren get a fair shake in education?”

The group challenging the two admissions programs, Students for Fair Admissions, or S.F.F.A., put Brown front and center in its briefs.

“Any discussion of racial classifications in education must start with Brown,” its lawyers wrote in May.

And here are the opening lines from a reply brief filed in August: “U.N.C.’s argument is not with S.F.F.A.; it is with Brown. That landmark decision fulfilled the 14th Amendment’s promise by requiring that ‘education … be made available to all on equal terms.’”

Lawyers for U.N.C. said that was a profound misreading of the decision. “Brown held that the arbitrary separation of students based on race violates equal protection,” they wrote. “Institutions like U.N.C. that seek to bring students of diverse backgrounds together are the rightful heirs to Brown’s legacy.”

In a brief for student and alumni groups at Harvard, lawyers for the NAACP Legal Defense and Educational Fund, the civil rights group that litigated Brown, wrote that the court would be playing with fire were it to adopt the challengers’ understanding of the decision.

“The Brown decision was one of the finest moments in this court’s history,” they wrote. “Yet, this court risks jeopardizing that legacy — and damaging its own legitimacy — should S.F.F.A. prevail in misconstruing one of its canonical decisions to dismantle decades of precedent that affirmed the legality of race-conscious admissions.”

The court in Brown held that segregated public schools denied Black students the equal protection of the laws guaranteed by the 14th Amendment. “Separate educational facilities are inherently unequal,” Chief Justice Earl Warren wrote.

Exactly what else the ruling and its reasoning required has long been the subject of debate. In 2007, for instance, the Supreme Court debated the meaning of Brown in a decision that limited the ability of public schools to take account of race to achieve integration, Parents Involved in Community Schools v. Seattle School District No. 1.

Only three justices serving then are still on the court: Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. Along with Justice Antonin Scalia, who died in 2016, they all signed a plurality opinion adopting a colorblind understanding of Brown.

The parties “debate which side is more faithful to the heritage of Brown,” Chief Justice Roberts wrote in 2007 for the plurality, “but the position of the plaintiffs in Brown was spelled out in their brief and could not have been clearer.”

The chief justice quoted from the transcript of the 1952 argument in the case.

“We have one fundamental contention, which we will seek to develop in the course of this argument,” Robert L. Carter, a lawyer with the legal defense fund, said then, “and that contention is that no state has any authority under the equal protection clause of the 14th Amendment to use race as a factor in affording educational opportunities among its citizens.”

Chief Justice Roberts added: “There is no ambiguity in that statement. And it was that position that prevailed in this court.”

S.F.F.A., the group challenging admissions policies, repeatedly cited a truncated version of Mr. Carter’s statement in its briefs, indicating that it represented the holding of the 2007 decision. “The court vindicated the promise of the 14th Amendment in Brown v. Board of Education,” one S.F.F.A. brief said, by “rejecting ‘any authority … to use race as a factor in affording educational opportunities.’”

In an interview with The New York Times on the day the 2007 decision was issued, the lawyer who had made that statement, by then a 90-year-old senior federal judge in Manhattan, said the chief justice had gotten things backward.

“All that race was used for at that point in time was to deny equal opportunity to Black people,” Judge Carter, who died in 2012, said of the 1950s. “It’s to stand that argument on its head to use race the way they use it now.”

Jack Greenberg, another lawyer who had worked on the Brown case, said on the same day that the chief justice’s interpretation was “preposterous.”

“The plaintiffs in Brown were concerned with the marginalization and subjugation of Black people,” Professor Greenberg said. “They said you can’t consider race, but that’s how race was being used.” Mr. Greenberg died in 2016.

That understanding of Brown, articulated by the civil rights lawyers who won the case, may be overtaken by a more limited one when the Supreme Court decides the new cases, probably in late June. The court’s six-member conservative majority now includes three justices appointed by President Donald J. Trump.

The court has issued three major cases on the use of race in admissions decisions in higher education: University of California v. Bakke, in 1978; Grutter v. Bollinger, in 2003; and Fisher v. University of Texas, in 2016. All were closely divided and all sent the basic message that numerical racial quotas were forbidden but that a holistic approach, using race as one factor among many in the admissions process, was permissible.

The decisions allowed only a single justification for race-conscious admissions plans: creating educational diversity so that students of different backgrounds may learn from one another.

Justice Thurgood Marshall, who had been among the lawyers who argued the Brown case, issued a partial dissent in the Bakke case, saying that Justice Lewis F. Powell Jr.’s controlling opinion was too cramped in rejecting the use of race to remedy past discrimination.

“It must be remembered that, during most of the past 200 years, the Constitution as interpreted by this court did not prohibit the most ingenious and pervasive forms of discrimination against the Negro,” he wrote. “Now, when a state acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.”

In the Grutter decision, the majority endorsed Justice Powell’s approach. The challengers in the new cases ask the Supreme Court to overrule Grutter.

“Because Brown is our law,” S.F.F.A’s lawyers wrote, “Grutter cannot be.”

In its Supreme Court brief, lawyers for Harvard wrote that the three affirmative action cases rested on Brown. “Bakke, Grutter, and Fisher uphold Brown in every way,” they wrote. “Like Brown, those decisions relied on the overriding importance of education.”

The Biden administration, in a brief supporting the universities, urged the justices to reject what it said was a revisionist view of Brown.

“Nothing in Brown’s condemnation of laws segregating the races to perpetuate a caste system calls into question admissions policies adopted to promote greater integration and diversity,” the brief said. “And petitioner’s persistent attempts to equate this case with Brown trivialize the grievous legal and moral wrongs of segregation.”

But the challengers wrote that Brown must be read broadly to forbid consideration of race.

“Harvard and the United States trivialize Brown by trying to confine that foundational precedent to its facts,” lawyers for S.F.F.A. wrote, adding: “Surely Harvard doesn’t think that Brown would have been different if Southern schools had used a holistic policy that covertly reduced the number of Black students.”

At bottom, said Kenji Yoshino, a law professor at New York University, the debate over the meaning of Brown turns on how and why school officials take account of race.

“The segregationists believed in race-conscious policies that entrenched the subordination of Black Americans,” he said. “U.N.C.’s race-conscious policies, in stark contrast, seek to ameliorate that dehumanizing subordination. This has always been the crux of the affirmative action debate. Does the 14th Amendment’s equal protection clause forbid racial classification itself or only racial classification that entrenches historical subordination?”