THE U.S. SUPREME Court fundamentally weakened its landmark 1954 Brown v Board of Education civil rights decision in a 5–4 vote on June 28. The decision is a blow to equal rights.
The Court majority ruled that race-based public school enrollment plans in Seattle, Washington, and Louisville, Kentucky, are unconstitutional. Those plans — like others around the country — were designed to maintain racially integrated student populations. The majority justices, led by Chief Justice Roberts, falsely asserted that the Brown decision made it illegal to use race as a criterion to end de facto segregation.
In a perverted interpretation of Brown, these justices said that all Americans must be treated “equally” regardless of skin color or ethnicity, even if skin color or ethnicity is being used to discriminate. “What do the racial classifications at issue here do, if not accord treatment on the basis of race?” asks Roberts in his majority opinion.
But Brown was necessary precisely because race had been used throughout American history to deny Blacks equal rights — through law and extralegal violence. Brown made it a positive factor.
The Court’s revisionist logic actually shows the significance of the original historic ruling. That decision occurred in a specific historical context that laid the basis for the Court to issue its decision — the rising anti-colonial revolutions in Asia, Africa and Latin America, as well as the growing civil rights campaign at home.
It was an embarrassment for the ruling class to preach democracy and freedom abroad against “communism” while maintaining legal segregation at home. The Supreme Court responded with Brown.
The decision reflects the Court’s reactive role as the third branch of government. Unlike the executive branch that will launch wars and direct attacks on the working class, the Supreme Court never initiates actions to bring radical change. Instead, its rulings come after and reflect changes that have already been registered in real political and economic life.
The most infamous Court ruling, for example, occurred after major changes in another very specific historical context. In 1896, in Plessy v. Ferguson, the Court upheld Jim Crow laws that were designed to ensure racial segregation. That ruling legally established the doctrine of “separate but equal” — the decision that Brown overturned 50 years later.
What was the context? Plessy came 20 years after the violent defeat of the Reconstruction Era gains of the post-Civil War period. Most southern states had already imposed brutal rule over African Americans, taking away basic rights won after the second American Revolution.
The hypocrisy of the majority in the 2007 cases was answered by the four dissenting justices. Justice Stephen Breyer said that to invalidate the Seattle and Louisville enrollment plans “is to threaten the promise of Brown.” He asked, “What was the hope of Brown? It was the promise of true racial equality — not as a matter of fine words on paper, but as a matter of everyday life in the nation’s cities and schools.”
Breyer said that the majority’s position will have a larger significance than just on public education. “This is a decision that the court and the nation will come to regret.”
Strong words — but totally true. The country has been moving away from equality-based legal standards since the 1970s. Decline of powerful civil rights and other social movements has led to a more confident right wing. The conservative majority, including those on the Supreme Court, reflects the gains won by the far right.
Not surprisingly, after the Court ruling there was anger. “We’re very outraged by it, and we’ll fight it, as we say by any means necessary,” said George Washington, a lawyer with the Coalition to Defend Affirmative Action in Detroit. “It’s an attempt to end racial progress in this country. It’s an attempt to freeze de facto segregation that now exists in this country.”
Yet within a few weeks most voices became silent. Even the African-American Democratic presidential candidate Barack Obama rarely mentions the issue in his speeches.
Why the lack of action? The lack of movements is the obvious first answer. But more significantly, it is the impact of the social changes on society that Brown helped bring about.
Most working-class Blacks already live in segregated neighborhoods and their kids attend all or mostly all-Black schools. The Court’s decision has little meaning to these families.
At the same time, middle-class Blacks, unlike before Brown, can drive and live pretty much anywhere they want and work any job they’re qualified to hold.
While civil rights leaders like Washington and many other liberals correctly express anger and opposition to the Court’s ruling, the will for better-off Blacks to lead a new civil rights fight just isn’t there. “Looking out for number one” means sending their kids to good schools and living in better neighborhoods. It is their American Dream.
An interesting corroboration of this view of Brown was written in an op-ed column in The New York Times by Juan Williams, a conservative African American political analyst for NPR and the Fox News Channel. Williams is also the author of the book, Enough: The Phony Leaders, Dead-End Movements and Culture of Failure That Are Undermining Black America.
His June 29 piece Don’t Mourn Brown v. Board of Education is premised on a simple theme: “Finally the court sides with equality over desegregation.” It is a stretch, but what most conservatives believe.
“During the last 20 years, with Brown in full force,” Williams writes, “America’s public schools have been growing more segregated — even as the nation has become more racially diverse. In 2001, the National Center for Education Statistics reported that the average white student attends a school that is 80 percent white, while 70 percent of Black students attend schools where nearly two-thirds of students are Black and Hispanic.”
Of course, the reason for that is the widening economic and class divisions in the country. Fewer Blacks as a group own their own homes (a big source of wealth), a disproportionate number are in prison and the school dropout rate is one of the highest for any ethnic group.
Williams’ most revealing observations involved discussions he had with the late former Supreme Court Justice and the lead NAACP lawyer that won Brown, Thurgood Marshall. In interviews held in the 1990s, Williams asked Marshall: Was he satisfied with the outcome of the 1954 decision?
“His response,” Williams reports, “was that seating Black children next to white children in school had never been the point. It had been necessary only because all-white boards were generously financing schools for white children while leaving Black students in overcrowded, decrepit buildings with hand-me-down books and underpaid teachers.
“He had wanted Black children to have the right to attend white schools as a point of leverage over the board’s spending patterns of the segregationists who ran schools — both in the 17 states where racially separate schools were required by law and in other states where they were a matter of culture.
“If Black children had the right to be in those schools with white students, Justice Marshall reasoned, then school board officials would have no choice but to equalize spending to protect the interests of their white children.”
Marshall’s reasoning, in a nutshell, is why most supporters of desegregation in the 1970s pushed for busing students from urban areas to white suburban schools. It was always about the resources and quality of education, rarely if ever about integration and diversity.
Martin Luther King Jr. spoke to this issue too, explaining that his “dream” was for Blacks be treated equally without discrimination. Integration was a tool to do so.
The idea of sitting next or intermingling with other races and ethnic groups is, of course, not a bad thing. It is good to learn about other ethnic groups and cultures. But the founders of the civil rights era never considered the goal of integration as achieving “diversity.” It was always about quality of education and a better quality of life.
In fact, the modern Black conservatives’ stance reflects a debate that existed between liberal Blacks and more radical African Americans in the 1960s. Then it was between those advocating “Black Power” and Black Nationalism. The latter demanded “Black control of the Black community.” Nationalists rejected integration, arguing that real community power would result in true quality education and Black pride.
Malcolm X, for one, was critical of civil rights leaders who said Brown was the road to ending de facto segregation and would bring about full Black equality. Malcolm sharply attacked the “integrationists” and defended those who advocated the community control philosophy.
Today’s Black conservatives, however, are not nationalists or defenders of community control. They reject using legal efforts to achieve diversity and integration, and definitely not to establish Black power — political or economic. The conservatives, with their revisionist history, are the “phony leaders” who will twist the words of Malcolm X to serve their own reactionary aims.
Supreme Court Justice Clarence Thomas, for example, often uses the “race card” to go after liberal critics when it serves his purpose to justify rulings that harm African Americans and other social groups.
The de facto segregation and discrimination that is structural to the capitalist marketplace is even noted by Juan Williams. But he blames the policies of liberals of the past. That’s why he and other conservatives believe that Brown has outlived its time.
These modern-day accommodationists argue for African Americans to take personal responsibility for their situation, since the legal barriers no longer exist. Williams and most Black conservatives, however, are part one of the privileged middle class. Working-class Blacks, who don’t have that luxury, still need an energetic government to limit legal and de facto discrimination. Implementing and reinforcing Brown’s direction is needed more than ever.
Nancy MacLean, a prominent historian at Northwestern University, quite rightly points out how “Stealing civil rights language for rhetorical jujitsu attacks on the civil rights movement was a calculated strategy.” All kinds of figures who hated the Civil Rights movement, calling the Brown decision “a rape of the Constitution,” long ago learned to wrap themselves in its phrases.
She quotes the 1981 Mandate for Leadership for the Reagan administration put out by the rightwing Heritage Foundation, which explained:
“For twenty years, the most important battle in the civil rights field has been for control of language [especially the words ‘equality’ and ‘opportunity’ — ed.]. The secret to victory, whether in court or in Congress, has been to control the definition of those terms.”
“There should be no mistaking just how radical this decision is,” said the editors of The New York Times. “Justice John Paul Stevens said it was his ‘firm conviction that no member of the Court that I joined in 1975 would have agreed with today’s decision.’ He also noted the ‘cruel irony’ of the court relying on Brown v. Board of Education while robbing that landmark ruling of much of its force and spirit. The citizens of Louisville and Seattle, and the rest of the nation, can ponder the majority’s kind words about Brown as they get to work today making their schools, and their cities, more segregated.”
What happens next depends on many factors. The most important is whether a protest campaign arises. If not, we can expect more setbacks to equality in public education, housing and employment. Secondly, the issue must be taken up by all, especially labor, not just African Americans.
The laws of racism and class bias will inevitably reinforce racial and inter-ethnic divisions. It will take a new generation of leaders and have-nots to revolt for positive change to occur.
ATC 130, September–October 2007