Brown v. Board at 60

Stephan and Abigail Thernstrom rightly celebrate the 60th anniversary of Brown v. Board of Education today in the Wall Street Journal, and while I join them in thinking it the correct outcome of the case, it is a source of lasting mischief that the Supreme Court, led by the dubious new Chief Justice Earl Warren, decided the case on entirely non-constitutional grounds–a sorry fact the Thernstroms note briefly.

Say what?

Take in slowly the 4th paragraph of Warren’s famous opinion:

Reargument was largely devoted to the circumstances surrounding the adoption of the Fourteenth Amendment in 1868. It covered exhaustively consideration of the Amendment in Congress, ratification by the states, then existing practices in racial segregation, and the views of proponents and opponents of the Amendment. This discussion and our own investigation convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among “all persons born or naturalized in the United States.” Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty.

Would John Marshall have punted like this?  What this essentially says is, “We’re giving up basing our legal opinion on figuring out and interpreting the 14th Amendment, so we’re going to decide this case on other grounds.”  But the grounds of Brown were not derived from the Constitution or the equal protection clause, despite what subsequent related cases would seem to indicate by their references back to Brown (usually in curt per curiam opinions).  From here, Warren’s opinion goes on famously to cite the flawed social science experiments of Kenneth Clark that concluded separate schools created a feeling of inferiority among black students, and that therefore separate schools were inherently unequal. In other words, separate schools could not be equal, even if you had equally excellent facilities and teachers.  In other words, segregated schools could not satisfy the conditions of Plessy v. Ferguson; read narrowly the Brown decision does not directly overrule Plessy.  A simple question explodes the problem: if subsequent social science found that segregated schools led to superior educational outcomes by black students and no “feelings of inferiority,” would segregation cease to be unconstitutional?  The reasoning of Warren’s opinion suggests the answer is Yes.

Brown conspicuously does not embrace Justice Harlan’s very clear and principled dissent in Plessy that

[I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.

If you want to understand how Brown and its progeny have left us with a muddle, just check out the first sentence of Warren’s opinion in the equally famous case striking down bans on interracial marriage in Loving v. Virginia: “This case presents a constitutional question never addressed by this Court. . .”  What?  The Court has never confronted cases involving racial classifications and challenges to them under the equal protection clause?  (Keep in mind that in this case, too, the decision turned not on saying racial classifications were per se unconstitutional, but that the Virginia law infringed on the “right to marry.”  Hadley Arkes likes to note that, following this logic, a challenge to racial discrimination in the use of public tennis courts would be decided by discovering a right to tennis.)

There are many reasons why the Court avoided articulating a plain meaning of the equal protection clause in Brown, among then Warren’s understandable desire to achieve a 9 – 0 vote of the Court so as to give the decision its added political force.  There were some justices who wouldn’t have gone along with a clear holding banning all racial classification.  But it also kept alive the possibility of using racial classifications in the future, such as affirmative action today.  It comes as a shock to students when I show them this passage from Justice Hugo Black’s opinion in the infamous Korematsu case upholding the internment of Japanese-Americans in World War II:

It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional.

It ought to be a source of embarrassment that liberal defenders of affirmative action starting in the 1970s, conspicuously in the Bakke case, actually footnote the Korematsu case in support of rejecting Justice Harlan’s argument that the Constitution should be strictly color-blind.

For an excellent discussion of this whole issue, take in Prof. Ed Erler walking us through this morass with Charles Kesler on an episode of the Claremont Institute’s “America Mind” series: