This week marks the 60th anniversary of the Supreme Court's unanimous decision in Brown v. Board of Education, holding that state-mandated racial segregation in public schools was unconstitutional, and right-wing media have jumped at the chance to mislead about the case and its legacy.
On May 13, The Wall Street Journal ran an op-ed by former National Review Online contributor Abigail Thernstrom and her husband, Stephan Thernstrom, who misrepresented both the importance and legacy of Brown by declaring it “an American success story” and its promise “fulfilled,” while pushing the myth that the U.S. Constitution is “colorblind.” Because apartheid schools are now technically prohibited, the Thernstroms also dismissed statistics that show schools have been rapidly resegregating in recent years, called integration efforts “racist,” and ignored the well-documented link between housing segregation and the growing separation of schools based on class and race. Instead, the Thernstroms blame “the differential fertility rates of immigrants and natives” for our separate and unequal schools.
This most recent attack is part of a larger right-wing pattern of denying the continuation of systemic racial discrimination and advocating for the rollback of half a century of civil rights precedent and legislation.
When conservative media discuss Brown at all, it is usually to misrepresent the case's condemnation of a racial caste system designed to maintain white supremacy in order to champion education policies like voucher programs and school choice, or take offensive shots at civil rights leaders. For example, when Louisiana's voucher program was scrutinized for violating several long-standing desegregation orders, outlets like National Review Online compared Attorney General Eric Holder to segregationist Alabama Governor George Wallace, famous for blocking the University of Alabama's doors to black students in the wake of the Brown decision.
Similarly, this purportedly colorblind right-wing media have criticized race-conscious educational initiatives designed to eliminate racial biases that perpetuate the stigma of inferiority that Brown condemned. When the Department of Justice announced new disciplinary guidelines intended to prevent racially discriminatory punishments in public schools, Fox News characterized the new rules as “bringing race into it,” a promotion of race-based punishments, and were tantamount to “playing the race card.” NRO agreed with Fox's assessment of the new guidelines, and went even further, claiming that black students have “weak impulse control” that “means more disruptive behavior in school.” Of course, these outlets glossed over the fact that black students are disproportionately more likely to be punished, and even arrested, for minor and nonviolent infractions at school, whereas their white counterparts are often never disciplined for the same behavior.
But what this vitriol chooses to ignore is just how resegregated public schools have become, leading to racial and socio-economic isolation and heightened racial tensions in higher education. This problem is only compounded as federal courts have lifted long-standing desegregation orders or failed to actively enforce those still in existence. As reported by ProPublica's Nikole Hannah-Jones, there are still hundreds of districts under a federal desegregation order. Many of those schools, however, have no idea that they're under orders or what the order says, and the courts are “releasing districts from court oversight even where segregation prevails, at times taking the lack of action in cases as evidence that the problems have been resolved.”
As desegregation orders continue to fall, public schools have seen an increase in what are still known as “apartheid schools” -- schools whose populations are less than 1 percent white. According to Hannah-Jones, “some 12 percent of black students in the South now attend such schools -- a figure likely to rise as court oversight continues to wane.” As resegregation persists, public schools are struggling to turn the tide with new policies to maintain diversity. Cheered on by right-wing media, the courts have made it harder and harder to ameliorate racial inequities in education, especially in districts not under federal court orders.
In fact, some of the worst right-wing rhetoric on school integration and diversity is parroted straight from the conservative justices on the Supreme Court, which has become increasingly hostile to public schools' voluntary integration efforts since Roberts was sworn in as Chief Justice in 2005. The conservative justices' direct assault on the holding of Brown and the Court's subsequent attempts to enforce it began in earnest in 2007, with Roberts' opinion in Parents Involved in Community Schools vs. Seattle School District.
In Parents Involved, after her daughter did not get into her first-choice school, a white Seattle parent sued the school district for its policy of using race as one of many “tie-breakers” in high school admissions. The district's goal was to maintain racial diversity as residential housing patterns throughout the city became more segregated, which led to less diverse schools. Roberts, joined by conservative Justices Scalia, Thomas, Alito and swing vote Kennedy, held that Seattle's racial tie-breaker was unconstitutional, in part, because the city didn't have a history of government-mandated segregation. The conservative majority essentially made it more difficult for the district to continue its history of affirmative measures to maintain integration in schools -- all while relying on its colorblind interpretation of Brown to justify its backwards logic.
In a portion of his opinion not joined by Kennedy (and therefore not controlling), Roberts argued that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Appalled by this radical “rewrite” of the history of Brown and its progeny, Justice Stevens pointed out “it is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision.” The attorneys who represented the Brown plaintiffs also rebuked Roberts for the distortion, calling it “preposterous” and “100 percent wrong.”
This overly-simplistic line quickly became a favorite of conservatives, however, and has been frequently invoked by right-wing media in their ahistorical and misinformed rejection of decades of civil rights law. But Roberts' promise of a colorblind society ignores the reality of racial dynamics in this country. Roberts' colleague, Justice Breyer, explained as much in his dissent in Parents Involved. As Breyer noted, the promise of Brown was fully-integrated public schools, and it was not the Court's responsibility to “take from their hands the instruments they have used to rid their schools of racial segregation, instruments that they believe are needed to overcome the problems of cities divided by race and poverty” :
[W]e have understood that the Constitution permits local communities to adopt desegregation plans even where it does not require them to do so.
The plurality pays inadequate attention to this law, to past opinions' rationales, their language, and the contexts in which they arise. As a result, it reverses course and reaches the wrong conclusion. In doing so, it distorts precedent, it misapplies the relevant constitutional principles, it announces legal rules that will obstruct efforts by state and local governments to deal effectively with the growing resegregation of public schools, it threatens to substitute for present calm a disruptive round of race-related litigation, and it undermines Brown's promise of integrated primary and secondary education that local communities have sought to make a reality. This cannot be justified in the name of the Equal Protection Clause.
Under Roberts' tenure, the Court's track record on affirmative action and other diversity initiatives has seen a reversal of long-held civil rights law and protections for marginalized groups, not just for K-12 students, but in higher education as well. In April, the Court ruled in Schuette v. BAMN to uphold Michigan's ban on affirmative action in admissions, making it even more difficult for students of color to be admitted to the state's public universities. As a result of the ban, minority enrollment has declined sharply as it has in other states with similar prohibitions on integration efforts, especially among black students.
Further, since Michigan banned the use of race-conscious admissions in 2006, students have reported greater instances of racial insensitivity and outright racial hostility. According to The New York Times, black students at the University of Michigan petitioned the school's administration to remedy the problem after a fraternity “invited 'rappers, twerkers, gangsters' and others 'back to da hood again.'” Other students reported that they “had been subjected to racist and homophobic epithets.” This inability to live in a diverse community is the consequence right-wing media miss when they ignore the fact that integration benefits students of all races, a core finding of current Supreme Court doctrine upholding race-conscious admissions policies, based on the long-standing arguments of universities, Fortune 500 companies, and the U.S. Military. As explained by Professor Derek Black of the University of South Carolina School of Law:
Too often, the conversation around integration focuses exclusively on the benefits for poor and minority communities. However, integration holds substantial benefits for middle-income and white students as well. First, integrated schools improve critical thinking. In diverse environments, students are faced with new and varied perspectives and forced to think through their own or new positions more carefully, which improves their critical-thinking skills. Second, integrated schools better prepare students to navigate the multicultural world and global economy they will face upon graduation.
On these two metrics, whites are seriously disadvantaged. Data indicate that, to the surprise of many, whites are actually the most racially isolated student group in the nation (see charts, Page 31). Research demonstrates that this isolation ill prepares them for the future. Major corporations make this point even more concretely in briefs before the U.S. Supreme Court. They attest that they want graduates who are prepared to work in multicultural environments. Integrated schools produce these students.
In other words, white families who are concerned about long-term competitiveness need integrated schools as much as anyone.
But despite the fact that affirmative action bans can lead to this kind of segregated alienation and isolation, other states are still looking to follow Michigan's lead in the wake of Schuette. In fact, the same day the Supreme Court ruled in that case, Wisconsin state legislator Glenn Grothman (R) proposed a similar ban in his state. According to the Milwaukee-Wisconsin Journal Sentinel, Grothman said such a ban was necessary because “people do not realize ... how extensive race and gender preferences are in our society.”
America is not a colorblind society, as much as Chief Justice Roberts and right-wing media wish it were. Racism doesn't disappear through sheer ignorance of racial discrimination, as his line in Parents Involved suggests. As Justice Sonia Sotomayor pointed out in her dissent in Schuette, “the way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”
That conversation is now more important than ever, particularly in light of the 60th anniversary of Brown, a case whose promise has yet to be realized.