Protecting Them from Themselves reveals and analyzes the mutual benefits argument to make three points. First, judges, legislators, and commentators defending contemporary laws and policies frequently claim that restricting rights and opportunities protects women and people of color. The claims appear across a range of contexts, but their common structure has remained hidden from view and critical scrutiny. Second, modern mutual benefits discourse has deep historical roots in widely repudiated forms of discrimination, including slavery, racial segregation, and women’s legalized inequality. Third, the historical deployment of mutual benefits arguments to defend pernicious discrimination creates reason for caution in considering contemporary mutual benefits claims that are now accepted quickly with little evidence, investigation, or debate. Mutual benefits discourse historically operated to rationalize and reinforce discriminatory practices that the nation has since disavowed. Modern mutual benefits arguments must be evaluated carefully or they risk shielding subordination once again.

 
Modern Mutual Benefits Arguments for Limiting Women’s Rights

Protecting Them from Themselves begins by examining contemporary mutual benefits discourse. I first explore how arguments contending that restrictions on women’s legal rights promote women’s welfare have flourished in the modern era, building on the assumption that women’s true interests and ultimate obligations center on marriage and family life. At least twenty-four states, for instance, retain some form of a marital rape exemption. These states criminalize fewer offenses if committed within marriage, punish more leniently the marital rape they do recognize, and/or impose additional procedural barriers to marital rape prosecutions. Legislators, courts, and commentators have explained since the last quarter of the twentieth century that granting wives an unhindered right to pursue marital rape charges would allow women to shatter their marital harmony, destroy their marital privacy, and make marital reconciliation much more difficult. This argument maintains that both husbands and wives are better off if the law limits the criminality of marital rape, although the benefits to men and women differ. Marital rape exemptions protect husbands from prosecution and wives from damage to their marital relationship assertedly more harmful to them than the marital rape itself.

Similar arguments that limiting women’s rights serves women’s best interests have increasingly come to shape antiabortion legislation and the Supreme Court’s abortion jurisprudence. Roe v. Wade (1973)¹ stressed the need to mediate between competing rights and interests: a woman’s right to have an abortion versus a state’s interest in protecting women’s health and the potential life of the fetus. Since Roe, however, the antiabortion movement has recognized in increasingly explicit terms that many Americans are unwilling to criminalize abortion if doing so will harm women. The movement and its government allies have turned more and more to the language of aligned interests rather than competing rights, insisting that both women seeking abortions and people opposed to abortion are better off if the law restricts or prohibits abortion. This argument contends that antiabortion laws protect women from the psychological harm that abortion would inflict upon them and the regret they would and should experience after abortion. The argument visibly influenced the Court’s plurality opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992),² which upheld mandatory waiting periods before abortion and “informed consent” laws designed to persuade women not to have abortions. The Court explicitly endorsed the assumption of regret in Gonzales v. Carhart (2007)³ with little discussion or explanation. Carhart upheld the federal prohibition of an abortion procedure—even where that procedure is the safest method of abortion—on the premise that some women will, and perhaps all women should, come to regret having abortions.

 
Mutual Benefits Arguments Against Affirmative Action

Protecting Them from Themselves next considers modern mutual benefits discourse in the racial context. Arguments that whites and people of color have aligned interests in defeating civil rights initiatives have become increasingly prominent in recent years. For example, the Supreme Court’s initial decisions restricting race-based government affirmative action programs and early academic criticism emphasized the conflicting interests of whites and people of color, and the burdens that affirmative action imposed on whites. But the Court and academic critics abruptly switched focus within just a few years and a few opinions. More recent opposition to affirmative action has stressed that affirmative action policies must be severely restricted in scope and duration because otherwise these policies will harm people of color. This account contends that legal decisionmakers need not choose between competing sides because the people participating in affirmative action programs and the people opposed to those programs have shared interests. People of every race and with every view on affirmative action all purportedly benefit in their own way if affirmative action is first limited and then eliminated.

 
A Legal History of Mutual Benefits Arguments for Sexual and Racial Inequality

Protecting Them from Themselves proceeds to uncover the genealogy of mutual benefits claims, analyzing historical manifestations of mutual benefits discourse. The mutual benefits argument is not a recent innovation devised to respond to the demands of the contemporary civil rights era. It is a long-established claim that defenders of unequal status relations have repeatedly deployed, relying on the argument’s familiarity to bolster its plausibility. The contention that more rights would harm the rights holders appeared prominently in defenses of slavery, racial segregation, married women’s subordination to their husbands at common law, and legislation restricting women’s rights to negotiate about market work. Mutual benefits arguments for sex and race inequality especially proliferated in eras, like our own, when reform movements were vigorously working to improve the status of women and people of color. The reform efforts presumably undermined claims that the law should favor men over women, or whites over people of color. Historical mutual benefits arguments were nominally committed to helping women and people of color. But they consistently and explicitly assumed that women and people of color were unusually poor decisionmakers unable to assess their own interests, that women’s true concerns were confined to domesticity, and that people of color were better off the less they challenged and disturbed white people and white-dominated institutions. Connections between the defenses of slavery, segregation, and women’s legal inequality have rarely been noticed. Highlighting them uncovers important precursors to modern civil rights discourse.

 
Evaluating Mutual Benefits Arguments

The extensive use of mutual benefits claims to support now-rejected forms of discrimination should affect how we assess modern mutual benefits arguments. The fact that historical versions of the mutual benefits claim are no longer convincing does not necessarily mean that current or future expressions of the claim cannot be appropriate. Mutual benefits arguments may sometimes be reasonable and cogent. But the role that mutual benefits arguments played in defending pernicious forms of inequality creates grounds for caution in considering contemporary assertions that women and people of color are better off with limited rights and opportunities. Courts, legislators, and commentators may be predisposed to endorse these assertions quickly with little support, deliberation, or debate because the assertions resonate with a long history of mutual benefits arguments and invoke shared cultural memories of prior mutual benefits claims. The antecedent life of mutual benefits discourse can give modern mutual benefits arguments an inordinate power to persuade that makes explanation and elaboration seem unnecessary. Yet mutual benefits arguments were historically employed to support practices that are now repudiated, and they drew on ways of thinking about women and people of color that are now suspect. Whatever one’s views on the merits of legal paternalism as a general matter, there is reason to be cautious about contentions that all parties benefit when the law denies rights and opportunities to women and people of color.

Protecting Them from Themselves concludes by seeking to stimulate greater conversation about mutual benefits claims that are often accepted too easily. I use the reasons why historical mutual benefits arguments are unconvincing to formulate four practical criteria that judges, legislators, and commentators should apply in evaluating contemporary mutual benefits discourse. These criteria ask whether advocates asserting that rights and opportunities will injure women or people of color are consistent in their arguments, whether they present evidence of harm, whether they rely on narrow assumptions about how women or people of color should behave, and whether they engage with counterarguments and opposing viewpoints. I employ these criteria to assess several modern mutual benefits arguments.

Contemporary claims that women or people of color benefit from limited rights and opportunities have many of the same weaknesses as their historical precursors. First, judges, legislators, and commentators have been very selective in contending that people seeking rights and opportunities can be safely ignored because they fundamentally misunderstand their own interests. The law does not usually assume that people are radically mistaken about how to improve their lives and need to be protected from themselves. But claims that women or people of color will be worse off with more rights and choices are common. Second, the evidence that rights and opportunities harm women or people of color is sometimes questionably reliable, and sometimes simply nonexistent. Third, mutual benefits claims frequently depend on and enforce rigid, historically embedded assumptions about how women and people of color should think, act, and live. Modern mutual benefits arguments, like their historical predecessors, typically take for granted that women should orient their lives toward domesticity instead of male-dominated spheres such as the market. Similarly, contemporary mutual benefits arguments track historical patterns in presuming that people of color are better off the more they accommodate and the less they demand from white society. Finally, modern arguments about mutual benefits to women and men, or to people of color and whites, often avoid acknowledging any possible costs associated with restricting the rights and opportunities open to women and people of color.

History richly documents how mutual benefits claims have long served to rationalize and perpetuate legal hierarchies based on sex and race. This history also suggests criteria that legal authorities and advocates should employ in evaluating modern manifestations of mutual benefits discourse that are now accepted too readily. Applying these criteria can help assess arguments that risk reinforcing some of the nation’s most entrenched and intransigent forms of status inequality.

Acknowledgments:

Copyright © 2010 New York University Law Review.

Jill Elaine Hasday is the Julius E. Davis Professor of Law at University of Minnesota Law School.

This Legal Workshop Editorial is based on the following Article: Jill Elaine Hasday, Protecting Them from Themselves: The Persistence of Mutual Benefits Arguments for Sex and Race Inequality, 84 N.Y.U. L. REV. 1464 (2009).

The importance of diversity in higher education cannot be overstated:  The Supreme Court has recognized diversity as one of the extremely limited number of compelling state interests that may justify race-based classifications under the Equal Protection Clause of the Fourteenth Amendment.  However, without explicit guidance from the Supreme Court, colleges have responded to pressure from anti-affirmative action groups by choosing to end or change their programs rather than push the constitutional boundaries of what may be done to improve the recruitment and retention of minority students.  This Note tries to discourage that reaction, arguing that colleges may, consistent with the Constitution, maintain race-exclusive and race-targeted³ recruitment and retention programs.

 
I.
The Grutter Standard in University Recruitment and Retention Programs

In many ways, recruitment and retention programs are an entirely separate means of achieving diversity from admissions programs—they address the quality of the educational experience available to particular students where admissions programs dispense specific seats in universities and colleges to minorities—and therefore demand an entirely separate framework for determining their constitutionality.⁴ However, the Supreme Court’s admissions decisions have been used to evaluate all diversity programs in higher education and are likely to continue to play an important role in any future consideration of recruitment and retention by the Court.  Thus, this Note evaluates recruitment and retention programs through the lens of Gratz and Grutter.

The Supreme Court has clearly stated, and repeatedly reaffirmed, that achieving diversity in higher education is a compelling state interest.  Thus, any analysis of minority recruitment and retention programs is likely to focus solely on whether the programs are narrowly tailored to achieving their express goal of diversity.  The Grutter standard for narrow tailoring requires that an admissions plan meet four criteria:  (1) Each applicant must be considered individually; (2) the university must first undertake a “serious, good faith consideration of workable race-neutral alternatives” for achieving diversity; (3) the program must “not unduly harm members of any racial group”; and (4) it “must be limited in time.”⁵

The fourth prong may be met with relative ease:  The college or university must simply commit to reevaluating the need for its programs periodically or create an automatic sunset provision for the programs.

To meet the second prong, a college or university first must show that it has considered race-neutral alternatives to programs utilizing race-based decisionmaking and has rejected them only because they are insufficient to achieve meaningful diversity or require the school to sacrifice academic quality.  Colleges can meet this requirement with respect to race-targeted or race-exclusive programs for minority recruitment and retention because, to be truly effective, such programs must explicitly identify, acknowledge, and target the problems that are unique to the minority experience in higher education.  Unlike admissions, where each candidate is fighting for a spot at a particular institution for which individuals of all races are qualified, recruitment and retention programs address factors and problems that are particular to certain minority students:  problems that cannot be rectified without acknowledgement of these unique circumstances.⁶ Thus, race-exclusive and race-targeted programs may be shown to be the only means of addressing these challenges.

The first and third prongs of the narrow tailoring analysis in Grutter require individualized consideration of applicants and avoidance of undue harm to any racial group.  This Note makes two arguments in the alternative regarding these prongs:  First, except in the context of financial aid, individualized consideration should not be a necessary element of a narrowly tailored recruitment or retention program because such programs do not cause undue harm to other racial groups.  Second, even if individualized consideration is deemed necessary, colleges may take several steps to incorporate individualized consideration into their programs and thus survive strict scrutiny.

 
II.
Recruitment and Retention Programs Without Individualized Consideration

In Grutter, the Supreme Court wrote that “in the context of its individualized inquiry into the possible diversity contributions of all applicants, the Law School’s race-conscious admissions program does not unduly harm nonminority applicants.”⁷ In other words, individualized consideration was the element of the admissions program that satisfied the requirement that there be no undue burden on nonminority students as a result of race-based decisionmaking.  In this way, individualized consideration can be read not as a separate, independent requirement, but as merely one way of satisfying the “no harm” requirement.  Because recruitment and retention programs do not place an undue burden on nonminority applicants even absent individualized consideration, individualized consideration should not be separately necessary in order for these programs to be sufficiently narrowly tailored.

Unlike admissions decisions, which allocate limited spots within a college or university, outreach and retention programs are designed to address specific problems that are in many ways unique to minority students.  While these programs allocate a distinct benefit to minorities, such as academic assistance or mentoring, they do not deny a benefit to any other racial group.  They do not simply apportion limited resources to minority students over nonminorities but rather create necessary resources to ensure those minority students arrive and remain at their institutions.  These programs leave nonminorities in the same position that they would have been in absent such programs.  Thus, these programs inherently satisfy the “no harm” requirement even if they do not involve individualized consideration.

 
III.
Modifying Recruitment and Retention Programs To Incorporate Individualized Consideration

Schools that do not wish to argue that recruitment and retention programs do not require individualized consideration may, in the alternative, incorporate individualized consideration into such programs.  Race-targeted programs are much more likely to be able to incorporate individualized consideration than race-exclusive ones.  Many programs—such as mentoring, academic, summer bridge, counseling, and financial aid programs—may easily be designed so that entry to participation mirrors the admissions program approved by the Court in Grutter.  However, in contrast with admissions programs—where institutions must consider all the facets of diversity necessary to create an optimal class of admitted students—recruitment and retention programs consider whether an individual student faces particular challenges that make him or her less likely to enroll or persist in school.  Thus, even with individualized consideration, these programs are likely to be highly targeted toward minority students and may thus achieve their intended objectives.

 
Conclusion

Absent explicit guidance from the Supreme Court, colleges may be wary of standing up to pressure from affirmative action opponents who seek to end all race-conscious programs in higher education.  However, given the extremely important role such programs play in improving the racial diversity of institutions of higher education—especially as state initiatives and the Supreme Court’s admissions decisions have limited the extent to which admissions can be used to achieve diversity—colleges should consider carefully whether there are ways of demonstrating that their current programs are narrowly tailored to achieve diversity or, alternatively, tailoring their programs to the existing guidance provided by the Supreme Court.  Though many schools may be reluctant to gamble on the likelihood that the Court will approve their programs, the vital need for race-conscious recruitment and retention programs justifies the aggressive design of these programs to achieve maximum impact while complying with the Equal Protection Clause.

Acknowledgments:

Copyright © 2009 New York University Law Review.

Ellison S. Ward received her J.D. from New York University School of Law.

This Legal Workshop Editorial is based on her Student Note: Ellison S. Ward, Toward Constitutional Minority Recruitment and Retention Programs: A Narrowly Tailored Approach, 84 N.Y.U. L. REV. 609 (2009).

In the concluding section of the Opinion of the Court, Chief Justice Roberts looked to the history of Brown to support his claim that, subject to very limited exceptions, all racial classifications violate the Fourteenth Amendment’s Equal Protection Clause.  Yet the history of Brown that he settled upon was somewhat unusual.  Moving beyond the sources courts typically use to evaluate their own precedent, namely, the published text of past decisions, the Chief Justice drew upon historical materials that have typically been more the concern of scholars.  He looked to the words of the NAACP lawyers who successful argued Brown, quoting written briefs and oral argument statements of the civil rights lawyers as they made their case before the Court in the early 1950s, and he claimed to find in these words ample support for a “colorblind” or anticlassification reading of the Fourteenth Amendment.  Justice Thomas, in his concurring opinion, also drew upon the history behind Brown as supporting colorblind constitutionalism.

Both the Chief Justice and Justice Thomas quoted, for example, NAACP lawyer Robert Carter in oral argument in Brown when he stated: “We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.”³ ”There is no ambiguity in that statement,” the Chief Justice explained.  “And it was that position that prevailed in this Court” in Brown.⁴

Justice Thomas took the historical analogy a step further, not only quoting from the NAACP lawyers as a way of bolstering the legitimacy of his sweeping anticlassification interpretation of the Equal Protection Clause, but also comparing the position of the Justices who dissented in Parents Involved to that of the lawyers in Brown who defended segregated schools. In “giv[ing] school boards a free hand to make decisions on the basis of race,” Justice Thomas wrote, the Parents Involved dissenters embraced “an approach reminiscent of that advocated by the segregationists in Brown v. Board of Education.”⁵

The dissenting Justices in Parents Involved also looked to the history of Brown for guidance.  Yet they did not focus on the history behind Brown as much as the history that Brown set in motion—a history that revolved around court-led efforts to decrease segregation in schooling through race-conscious policies.  ”There is a cruel irony in the Chief Justice’s reliance on our decision in Brown,” wrote Justice Stevens.⁶  “The lesson of history,” Justice Breyer explained, “is not that efforts to continue racial segregation are constitutionally indistinguishable from efforts to achieve racial integration.”⁷

Chief Justice Roberts’s and Justice Thomas’s use of the NAACP arguments to strike down a school integration plan proved predictably controversial.  It was “dirty pool,” declared William T. Coleman, who had worked with the NAACP’s legal team in the Brown litigation.⁸  According to Jack Greenberg, Thurgood Marshall’s successor at the head of the NAACP’s Legal Defense and Educational Fund, Chief Justice Roberts’ reading of Brown was “preposterous.”⁹  “All others among surviving counsel for the Brown plaintiffs emphatically disagree with the Roberts characterization,” Greenberg commented, “and I am confident that those no longer with us would disagree too.”¹⁰

In this Editorial, I consider two questions raised by the use of Brown in Parents Involved.  First, what does this history of Brown actually say about the idea of a colorblind constitution?  And second, what is gained—and, as importantly, what is obscured—from this turn to history?  What are the lessons and limits of history when it comes to evaluating our most pressing constitutional disputes?

 
I.
Brown and the Colorblind Constitution—The Historical Record

Briefly summarized, the history of Brown shows the following.¹¹  The Chief Justice was more right than his sharpest critics allow in his characterization of the NAACP: the civil rights lawyers and their allies indeed expressed, repeatedly, in public and private statements, a deep commitment to the principle that racial classifications by the government violated the Equal Protection Clause.  Principles of colorblind constitutionalism inspired the efforts of many of the NAACP’s allies in the struggle against school segregation and, more generally, had a powerful presence in early post-World War II American society.  An anticlassification principle proved particularly attractive to a generation of liberals committed to a universalist ideology, which was premised on the idea that racial identity was a legal and moral irrelevance and that progressive racial policy should move beyond racial categorizations.  Colorblind constitutionalism was an integral element of the legal and moral challenge to white supremacy at the time of Brown.

Nonetheless, Chief Justice Roberts overstated his claim on Brown’s history in at least two ways.  First, colorblind constitutionalism was only one of a number of arguments offered by the NAACP.  During the litigation of Brown, lawyers advocating a blanket prohibition of racial classifications never put forth these arguments in isolation from other, more context-based, color-conscious arguments relating to the meaning of the Fourteenth Amendment.  At a time when the problem of “benign” racial preferences and affirmative action was rarely even considered, civil rights advocates easily moved back and forth between making anticlassification arguments and claims based on what has come to be know as “antisubordination” principles—a distinctly color-conscious interpretation of the equal protection requirement.  Furthermore, when the NAACP lawyers transitioned from defining the equal protection right to defining the scope of the remedy, they recognized the limitations of anticlassification arguments and looked increasingly to antisubordination arguments to guide the Court’s implementation of school desegregation.  To now isolate the lawyers’ anticlassification argument as their only, or even primary, constitutional claim in the school segregation cases fails to do justice to the historical record.

Yet even if we accept the Chief Justice’s implication that the NAACP was committed to an anticlassification argument, a second and more significant weakness of Chief Justice Roberts’ reading of Brown is his attempt to extrapolate the arguments of the advocates in Brown to reflect the views of the Supreme Court Justices as expressed in their school desegregation decisions.  The history on this point is quite clear: Although the members of the Brown Court considered basing their desegregation decisions on the anticlassification principle, this approach never came close to reflecting the positions of all nine Justices who committed themselves to the unanimous decisions; it would not have even secured a majority of the Justices at the time of Brown.  The Brown decision actually reflected a conscious effort by the Justices to not accept the general principle of colorblind constitutionalism—a conscious decision by a Court that sought to contain the reasoning of Brown so as to avoid the then hot-button topic of interracial marriage, which would logically fall under a sweeping colorblind rationale.  In arguing that the Brown court actually accepted the NAACP’s anticlassification argument, Chief Justice Roberts is simply wrong.

 
II.
Why History?

So this, in brief form, is what the history has to say.  Contrary to Chief Justice Roberts’ confident reading of selected NAACP quotations, the history of Brown and the colorblind Constitution contains plenty of ambiguity.  And in those places where ambiguity gives way to a measure of clarity—in those places where history indeed can be “heard”—the weight of history runs against reading the Brown court as adopting a sweeping anticlassification position.  Recognizing the limits of the historical record on this question brings forth still another, more foundational question: Why are we looking to the history of the legal battle against Jim Crow education for answers to the present-day dilemma of racially segregated and unequal schools?  Is historical analysis of this kind a useful or productive way with which to engage with these issues?

I must admit that as a historian who has spent countless hours researching the history of Brown, I am torn on the Court’s use of history in Parents Involved.  Any time the Court (or any public official for that matter) turns to history to better understand and explain contemporary social challenges, there is potential for adding depth—and hopefully increased wisdom—to a discussion.  There is of course much to be learned from the history of the struggle against Jim Crow schools.  And the words and experiences of the NAACP lawyers as they urged the Court to abandon Plessy surely have continued value and resonance as we today search for the appropriate standard for judicial oversight of voluntary school desegregation plans.

Yet when I read the Chief Justice’s Parents Involved opinion, in which he asserts that the position of the NAACP lawyers “could not have been clearer” and their statements have “no ambiguity” (cringe inducing assessments to any historian of this field), and therefore we can derive lessons of this history behind Brown in a straight-forward manner; or when I read Justice Thomas’s effort to equate the position of the four dissenters in Parents Involved with that of the lawyers defending state school segregation policy in the Brown litigation—then it is hard to avoid the most obvious question: What are we doing here?  Putting aside the obviously result-oriented use of history in these opinions (which is of course nothing new and not about to go away, as made clear in the recent originalist bonanza of Heller¹²), there remains the question of whether even a more thorough and balanced assessment of the history of Brown offers a useful way to engage with the debate over whether present-day pupil placement plans that take race into account to achieve some level of integration run afoul of the Fourteenth Amendment.

The reason for the historical turn in Parents Involved is not difficult to discern.  Regardless of ideological leaning, proclaiming one’s position as faithful to Brown is standard practice in cases involving racial segregation, particularly when the context is education.  Since the 1960s, when obeisance to Brown started to become required practice throughout American society, the debate has turned from the rightness of the decision to its meaning.  As people bow down to Brown, they also seek to reshape its meaning.¹³  Hence, today Brown is a centerpiece of the arguments of those who favor both anticlassification principles and antisubordination ones.

The turn to Brown also serves a special role for the proponents of colorblind constitutionalism.  The anticlassification principle that constitutes the heart of colorblind constitutionalism has little basis in the original meaning of the Fourteenth Amendment.  Its framers did not envision their creation as requiring a per se or even presumptive prohibition on laws that classify by race.  The legislators who in 1866 drafted the Amendment also passed distinctly color-conscious legislation designed to help the newly freed slaves.  And these same framers appeared to have little trouble squaring certain forms of segregation (including school segregation) with their understanding of the equal protection of the laws.  Mining the history of the framing and ratification of the Fourteenth Amendment for the roots of an anticlassification principle is a dead-end.¹⁴

Originalists who also favor color-blindness typically get around this embarrassing situation by a simple move: they ignore the history of the Fourteenth Amendment.  When Justices Scalia and Thomas defend their colorblind reading of the Fourteenth Amendment, they tend to paint with broad brushstrokes, citing seminal documents from American history and general principles of fairness, and relying heavily on rhetorical salvos.  It is the “letter and the spirit of our Constitution,” that demands colorblind constitutionalism, Justice Scalia has argued.¹⁵  Justice Thomas found the same conclusion in “the principle of inherent equality that underlies and infused our Constitution,” citing the Declaration of Independence for support.¹⁶  In his dissent in Grutter v. Bollinger, Justice Thomas opened with a quotation from Frederick Douglass and went on to claim that racial classifications “only weaken the principle of equality embodied in the Declaration of Independence and the Equal Protection Clause.”¹⁷  And all colorblind advocates cite Justice Harlan’s Plessy dissent, the original source of the phrase “our Constitution is color-blind.”¹⁸  As justification for a reading of the Equal Protection Clause, the limits of this approach are obvious.  Skimming over two hundred years of American history and citing broad principles of equality, while rhetorically powerful perhaps, hardly provides anything approaching a historically grounded mandate for colorblind constitutionalism.

With the generally unsatisfactory options for making the case for the colorblind Constitution, the turn to the history of Brown in Parents Involved should not be surprising.  Failing to find what they want in the Fourteenth Amendment, and recognizing that rhetoric and policy arguments can only take them so far, anticlassification proponents look to Brown as the de facto constitutional basis for colorblind constitutionalism.  In this way, Brown became the battleground of choice in Parents Involved.

 
III.
Brown and History

It is ironic that the history of Brown has come to be such a looming presence in contemporary constitutional disputes, because the decision itself reflected an effort to limit the relevance of the past on the process of constitutional decision-making.  At the time of Brown, most assumed that the weight of history went against the cause of civil rights.  Segregationists routinely called upon history to attack what they saw as the dangerous idealism of integrationists.  The experience of Reconstruction, the most relevant potential model for racial reform in the mid-twentieth century, seemed to warn against precipitous social reform.  In his unpublished concurrence in Brown, Justice Jackson dismissed Reconstruction as “a passionate, confused, deplorable era.”¹⁹  This belief that the lessons of the past were an obstacle to change was mirrored in constitutional analysis.  When the Court was faced with the question of whether the Fourteenth Amendment could be construed to prohibit segregation in schools, the historical record seemed to favor the status quo.  The history of the framing and ratification of the Fourteenth Amendment, most assumed, revealed an original meaning that was consistent with the practice of school segregation. 

One of the great achievements of Brown was Justice Warren’s decision to acknowledge the limitations of history on the question of whether, in 1954, segregated schools were unconstitutional.  A critical turning point in the reasoning of the opinion was when Justice Warren concluded that a review of the framing of the Fourteenth Amendment, “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.”²⁰  Warren insisted that the Court face the problem of segregated schools in 1954 squarely. 

In approaching this problem, we cannot turn the clock back to 1868, when the Amendment was adopted, or even to 1896, when Plessy v. Ferguson was written.  We must consider public education in the light of its full development and its present place in American life throughout the Nation.  Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.²¹

The proud ahistoricism of Brown is one of its most remarkable characteristics. 

At the time, many celebrated Brown as a triumph of the present over the past.  Justice Reed, the most reluctant of the Justices to join Brown, described his reasoning in a letter to Justice Frankfurter shortly after the decision was announced.  “The factors looking toward a fair treatment of Negroes,” he explained, “are more important than the weight of history.”²²  A sense of relief that the Court was able to extricate itself from the morass of history was also found outside the Court. “It is futile to make war ‘to keep the past upon its throne,’” wrote Harvard Law School professor Charles Fairman in praising the Court’s decision.²³  Edmond Cahn of New York University Law School effused: “Never was Thomas Jefferson more clearly vindicated in his insistence that the Constitution belongs to the living generation of Americans.”²⁴

 
IV.
Overcoming History

Of the recent judicial efforts to evaluate the constitutionality of voluntary school desegregation plans, some of the most valuable words offered have been those of judges who, like the Brown Justices, question the relevance of history to this particular dispute, who ask whether efforts to align these cases with Brown is a productive way to engage with the difficult questions we face today regarding racial classifications, education, and the Fourteenth Amendment.  In a 2005 First Circuit decision that upheld a race-conscious school assignment plan in Lynn, Massachusetts, Judge Boudin put the issue into perspective:

The Lynn plan at issue in this case is fundamentally different from almost anything that the Supreme Court has previously addressed.  It is not, like old-fashioned racial discrimination laws, aimed at oppressing blacks; nor, like modern affirmative action, does it seek to give one racial group an edge over another (either to remedy past discrimination or for other purposes).  [T]he plan does not segregate persons by race.  Nor does it involve racial quotas.²⁵

Similarly, in the Ninth Circuit’s review of the Seattle case that was brought to the Supreme Court in Parents Involved, Judge Kozinski wrote: “[T]here is something unreal about their efforts to apply the teachings of prior Supreme Court cases, all decided in very different contexts, to the plan at issue here.  I hear the thud of square pegs being pounded into round holes.”²⁶

Of course any proposal regarding school and race must place itself on the side of Brown.  But Judges Boudin and Kozinski are surely onto something when they question how far to take the Brown analogy when evaluating constitutional challenges to locally initiated race-conscious school desegregation programs.  History provides guidance on these questions, but not answers—certainly not unambiguous answers.  Contrived historical forays result in avoiding the critical issues in the case at hand, they provide the illusion of an easier answer when, beyond some clever rhetorical turns (“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race”²⁷), none exist, and none should exist. 

Justice Kennedy’s concurring opinion might be read to rely on some of these insights.  While providing the fifth vote to strike down the Seattle and Louisville plans, Justice Kennedy pulled back from a strong anticlassification rationale, leaving open the possibility of certain race-conscious assignment plans that could survive constitutional scrutiny.  In his concurrence he touched on Brown only lightly and with none of the interest in its background history evidenced in the opinions of the Chief Justice and Justice Thomas.  Nonetheless, Brown plays an important symbolic role in Justice Kennedy’s concurrence.  He turned to Brown as a moderating influence, as a testament to the mixture of pragmatism and principle that is necessary to balance the compelling state interest in creating a diverse educational environment, while avoiding race-based solutions that risk “entrench[ing] the very prejudices we seek to overcome.”²⁸  Although committed to “[t]he enduring hope . . . that race should not matter,” for Justice Kennedy a sweeping dismissal of racial classifications is “not sufficient to decide these cases.”²⁹  “Fifty years of experience since Brown v. Board of Education should teach us that the problem before us defies so easy a solution.”³⁰  If for Justice Kennedy the evocation of the ideal of the colorblind Constitution provides the aspirational principle, then Brown and the experience of school desegregation it launched demonstrate the pragmatic judgment necessary to move the nation toward this principle.

 
V.
Conclusion

The history of Brown does not offer any easy guidelines for the issues of most importance today.  The Justices and lawyers most responsible for Brown accepted both colorblind and color-conscious rationales for what they were doing.  These two rationales were generally assumed to be compatible; in the battle against Jim Crow, they both led to a more fair and racially integrated society.  To now demand of this history that it choose sides in our debate on the validity of colorblind constitutionalism is not to actually listen to the history.  As Edmund Cahn put it, in approving of Warren’s willingness in Brown to move away from 1868, “the past cannot be allowed to decide for us what it did not have to decide for itself.”³¹

The history of Brown also suggests the importance of recognizing the limitations of history in resolving our most pressing constitutional issues.  On the most difficult of our present-day disputes, history should open up questions, not preempt them; it should offer guidance, not unambiguous answers.  It should challenge entrenched assumptions, but without entrenching new ones.

In Parents Involved, the use of the history of Brown by Chief Justice Roberts and Justice Thomas was designed to end the discussion.  In an effort to defend a reading of the Equal Protection Clause that has little basis in the original meaning of the Fourteenth Amendment and generally relies largely on rhetorical salvos, these Justices portrayed Brown as a supposedly stable fixture of colorblind constitutionalism.  This flattened version of Brown not only fails to do justice to the history of Brown, it also reflects a misleading assumption that history offers an easier way.

Acknowledgments:

Copyright © 2009 Cornell Law Review.

Christopher W. Schmidt is Visiting Scholar, American Bar Foundation; Visiting Associate Professor, Chicago-Kent College of Law.

This Editorial is based on the following Essay:   Christopher W. Schmidt, Brown and the Colorblind Constitution, 94 CORNELL L. REV. 203 (2008). Click Here for the Full Version