Jim Castagnera: Remembering “Brown v. Board of Education”

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[Jim Castagnera is the associate provost/associate counsel at Rider University and a 2007-08 Fellow of the Foundation for Defense of Democracy.]

Last week the U.S. Supreme Court announced its decisions in Parents Involved in Community Schools v. Seattle School District No.1. Yes, I said decisions, plural. No fewer than four separate opinions were filed in this 5-4 decision in which the bare majority struck down attempts by school-district defendants to assign students on the basis of race. The split decision is part of a pattern of disagreement and dissent on the nation’s highest judicial bench. If my count is correct, the nine justices have divided 5-4 on about one third of the cases they decided during this term. More precisely, my count is 22 decisions in which the vote was 5-4 in 19 cases, plus two 6-3 decisions and one 5-3 ruling… all these out of a total of some 60-plus cases.

More troubling still is the fact that 5-4 on the face of this highly significant school desegregation case masks the actual depth of the disagreements among the Supremes. The four-justice conservative clique --- Chief Justice Roberts and Associate Justices Scalia, Thomas and Alito --- would allow no consideration of race whatsoever in assigning children to particular public schools. Never mind that the defendants’ purpose was to prevent de facto segregation along black-white lines. Justice Anthony Kennedy, increasingly the swing vote on the divided court, agreed with his four neo-con colleagues that the defendants’ approach was unconstitutional. But his separate, concurring opinion held that diversity remains a valid goal of our educational institutions and, therefore, some consideration of race in the assignment of school children may be permissible.

In dissent were Justices Stevens, Souter, Ginsberg and Breyer. Not satisfied simply to join the dissent penned by Breyer, Justice Stevens wrote a separate dissent of his own as well. Perhaps the most remarkable aspect of all these 185 pages of judicial pronouncements and pontifications is that both sides cited 1954’s landmark Brown v. Board of Education of Topeka, Kansas for their positions.

Chief Justice Roberts wrote for the bare majority, “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again, even for very different reasons.” Justice Stevens sadly retorted, “There is a cruel irony in the Chief Justice's reliance on our decision in Brown v. Board of Education…. The first sentence in the concluding paragraph of his opinion states: ‘Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.’ This sentence reminds me of Anatole France's observation: ‘[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.’”

What a contrast this case makes to the Brown opinion, penned by Chief Justice Earl Warren. The former California governor, who during WWII signed the order evicting 110,000 Japanese Americans from their homes, did not look like the man who would lead the fight to overturn separate-but-equal as the law of the land. Certainly, President Dwight Eisenhower, who appointed him to head a court as badly fragmented as the one we have today, did not expect this of the man who had said, “If the Japs are released, no one will be able to tell a saboteur from any other Jap.” (Talk about profiling!)

Shortly after appointing Warren, Ike seated him at a White House dinner next to the chief counsel for the segregationists in the consolidated cases collectively called Brown. Ike told Warren the attorney was “a great man.” As for his clients, said Ike, “These are not bad people. All they are concerned about is to see that their sweet little girls are not required to sit in school alongside some big black bucks.” To quote the late, great journalist David Halberstam, “If Dwight Eisenhower had decided… that the two of them shared similar attitudes and values, then he was wrong.”

In the months that followed his confirmation, Warren achieved the impossible, bringing liberals and conservatives, included segregationists, on the high court together in a unanimous opinion that is one of the truly eloquent pieces of literature in the annals of the common law. Its eloquence is enhanced by its brevity.

What should sadden all of us, liberals and conservatives alike, as we review the vast, unwieldy tome of Seattle School District No.1, is the apparent inability of our newest chief justice to bring together his eight colleagues on the big issues… this at a time when national elections are decided by the narrowest of majorities, if not mere pluralities, and we are in desperate need of the law’s guiding beacon in the dark days ahead.