• 30 April 2009

Listening to History? Parents Involved, Brown, and the Colorblind Constitution

Christopher W. Schmidt - Chicago-Kent College of Law

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“[W]hen it comes to using race to assign children to schools,” Chief Justice Roberts pronounced in Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007), “history will be heard.”1  History indeed earned star billing in this controversial decision in which a five-Justice majority struck down race-based school assignment plans, designed to promote racial integration, in Seattle and Louisville.  The history that most interested the Chief Justice was the landmark 1954 school desegregation decision in Brown v. Board of Education.2

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?

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.

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.

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

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.


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.dingbat



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

  1. 127 S. Ct. 2738, 2767 (2007).
  2. 347 U.S. 483 (1954).
  3. Id. at 2767-68 (quoting Transcript of Oral Argument at 7, Brown v. Bd. of Educ., 347 U.S. 483 (1954)); id. at 2782 n.20 (Thomas, J., concurring) (same).
  4. Id. at 2768.
  5. Id. at 2768; see also id. at 2783-86.
  6. Id. at 2797.
  7. Id. at 2836.
  8. Adam Liptak, The Same Words, but Differing Views, N.Y. TIMES, June 29, 2007, A24.
  9. Id.
  10. Jack Greenberg, Roberts, Breyer, Louisville, Seattle and Humpty Dumpty, HUFFINGTON POST, Aug. 10, 2007, http://www.huffingtonpost.com/jack-greenberg/roberts-breyer-louisvil_b_60000.html.
  11. I explore the historical record in considerable more depth in Brown and the Colorblind Constitution, 94 CORNELL L. REV. 203 (2008).
  12. District of Columbia v. Heller, 128 S. St. 2783 (2008). See, e.g., Saul Cornell, Originalism on Trial: The Use and Abuse of History in District of Columbia v. Heller, 69 OHIO ST. L. REV. 625 (2008).
  13. See Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown, 117 HARV. L. REV. 1470 (2004).
  14. See, e.g., Michael Klarman, An Interpretive History of Modern Equal Protection, 90 MICH. L. REV. 213, 235 n.95 (1991); Eric Schnapper, Affirmative Action and the Legislative History of the Fourteenth Amendment, 71 VA. L. REV. 753 (1985).
  15. City of Richmond v. Croson, 488 U.S. 469, 506 (1989) (Scalia, J., concurring).
  16. Adarand v. Pena, 515 U.S. 200, 240 (1995) (Thomas, J., concurring).
  17. Grutter v. Bollinger, 539 U.S. 306, 378 (2003) (Thomas, J., concurring in part and dissenting in part).
  18. Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting).
  19. Robert H. Jackson, “Memorandum by Mr. Justice Jackson,” Mar. 15, 1954, 6, Jackson Papers, Container 184. The idea that Reconstruction contained many significant accomplishments, that it was much more than just a “tragic era,” would not become part of mainstream historiography for another generation.
  20. Brown v. Board of Education, 347 U.S. 483, 489 (1954).
  21. Id. at 492-93.
  22. Stanley Reed to Felix Frankfurter, May 21, 1954 (Felix Frankfurter Papers, Harvard Law School, Part II, Reel 4, Frame 406).
  23. Charles Fairman, The Supreme Court, 1955 Term—Foreword: The Attack on the Segregation Cases, 70 HARV. L. REV. 83, 94 (1956).
  24. Edmond Cahn, Jurisprudence, 30 N.Y.U. L. REV. 150, 152 (1955).
  25. Comfort v. Lynn Sch. Comm., 418 F.3d 1, 27 (1st Cir. 2005) (Boudin, C.J., concurring), cert. denied, 546 U. S. 1061 (2005).
  26. Parents Involved in Cmty Schs. v. Seattle Sch. Dist. No. 1, 426 F.3d 1162, 1193 (9th Cir. 2005) (Kozinski, J., concurring).
  27. Parents Involved, 127 S. Ct. at 2769.
  28. Id. at 2788 (Kennedy, J., concurring).
  29. Id. at 2791.
  30. Id.
  31. Cahn, supra note 24, at 153.

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