Tomorrow marks the 60th anniversary of the great Brown v. Board of Education of Topeka, Kansas decision (1954), a Monday that lived in infamy among White supremacists in the South for decades, as the Supreme Court overturned the constitutional basis for Jim Crow segregation by a 9-0 vote. But six decades later, the Brown decision is in a coma and on life support, with a DNR order hanging over it, waiting for a close relative to sign. This after the Supreme Court ruled in Schuette v. Coalition to Defend Affirmative Action (2014) last month that states like Michigan can amend their constitutions via majority vote to ban affirmative action. With this 6-2 decision, the Roberts court effectively ended any serious efforts at racial inclusion and diversity in public institutions, especially public K-16 education.
While deliberate exclusion of people of color, women and other minorities from America’s public institutions remains unconstitutional (and illegal, by the way — see the Civil Rights Act of 1964), this last court decision has now made it possible for public institutions to refrain from making any effort to include anyone other than White males in admissions and hiring policies. Yet there has been a long road to travel for us to reach this point, as it has taken lobbyists, law makers and lawyers roughly forty years to wound, disable and incapacitate Brown.
If one were old enough to remember the Swann v. Charlotte-Mecklenburg decision (1971) — the one where the Supreme Court upheld widespread busing as a methodology for public school integration — it would have seemed that the matter was settled, at least legally. After all, in the seventeen years between Brown and Swann, the court had consistently ruled in favor of policies that made racial integration the centerpiece of a strategy to bring equal opportunity to America’s public institutions. And especially during President Lyndon Baines Johnson’s administration and with Congress, between the Civil Rights Act (now weeks away from turning fifty), the Voting Rights Act (1965), the Elementary and Secondary Education Act (1965) and the Higher Education Act (1965), it seemed that segregation was itself about to be dead and buried.
Well, segregation — and the structural and institutional racism that supports it — is alive, as much as the evil undead can be alive and unwell. And the forces and people who never wanted desegregation — or worse, integration — in the first place have worked my entire lifetime for this moment. They simply took the NAACP’s legal strategy to end Plessy with Brown, just so they could strangle it while sleeping, right through the Supreme Court. Including the:
- Milliken v. Bradley decision (1974). Limited desegregation efforts in Detroit to its city limits, making it possible for suburban areas to refuse to partake in school desegregation efforts across the country.
- Bakke v. University of California at Davis decision (1978). Racial quotas for seats at colleges via admission policies found unconstitutional – race can be accounted for as part of admissions decisions, but no actual numbers should be involved.
- Missouri v. Jenkins decision (1995). Forcing the Kansas City school district to spend $200 million per year since 1990 (after 13 years of court battles) for magnet schools and busing was too much (beyond court’s remedial authority) — and forced the lower court to accept a less expensive (and less effective) desegregation plan.
- Grutter v. Bollinger and Gratz v. Bollinger decisions (2003). The split decisions upheld race as one of a plethora of criteria public higher education institutions like the University of Michigan Law School and the University of Michigan (undergraduate division) could use in their admission process, as racial diversity and equity remained a laudable goal. But the court ruled that ranking race and other factors with a numbers system was the equivalent of a quota system, making this formula — but not the policy — unconstitutional.
Now Brown is truly hanging by a thread, and with it, the ideal of racial equality and equality of opportunity for visible minorities. I don’t want to hear about the Texas state system’s socioeconomic admissions policies or Richard Kahlenberg’s tired argument about getting at racial diversity through the economic. Most poor students can’t afford even public institutions like the University of Texas at Austin, and Kahlenberg’s center-right argument disguises the issue of racial and economic inequality in K-12 public education.
Let’s face it while we’re still fighting — and yes, we need to keep fighting on this front. On this issue, the folks on the side of colorblind racism and segregation have all but won. Brown may well remain the most important Supreme Court decision in the history of the US. With the Schuette decision, though, we might as well find a priest to administer last rites.