Roberts misreads Brown and its history in today's school case

There is much to be said about the uses of history in today’s important case, Parents Involved in Community Schools v. Seattle School District No. 1. History mattered to the Supreme Court in grappling with the role of race in student assignment, but history became a battleground, as Justices disagreed over both the lessons of history, and also the underlying narrative – what the substance of civil rights history has been.

For basic news coverage of the ruling, the New York Times story is here. For excellent blogging on the cases, start with SCOTUS Blog. The opinions are here. My article cited in Breyer’s dissent can be found here. More to come on the issue Breyer takes up: American equality in a global context, and implications for thinking about the national stake in these cases. Because I am away at the LBJ Library this week, I’m commenting today just on one issue.

The most important move in Chief Justice John Roberts’ majority opinion is to decontextualize 14th Amendment equality, and to take it out of the history of the subordination -- not subordination of any individual -- but of individuals who were members of certain groups: African Americans and other nonwhites. To accomplish this, Chief Justice Roberts invokes the icon of 20th century equality: Brown v. Board of Education. But he misreads Brown to support an argument that 14th amendment rights are not about groups. Roberts suggests: "This fundamental principle goes back, in this context, to Brown itself. See Brown v. Board of Education, 349 U. S. 294, 300 (1955) (Brown II) ("At stake is the personal interest of the plaintiffs in admission to public schools . . . on a nondiscriminatory basis" (emphasis added))."

Roberts’ quote is not from the substantive 14th amendment ruling in Brown I, but from Brown II, the decision that delayed Brown’s implementation out of a concern about its impact on groups. The Court was concerned that enforcing the rights of the plaintiffs might lead to resistance, so those rights were put on ice for many years, until a decade later when the Court decided that "the time for mere 'deliberate speed' has run out," and the time for meaningful remedies had arrived.

The quote Roberts uses to abstract and individualize the substantive right of equality does not pertain to the substance of the right at all. Instead, it has to do with the nature of the remedy, and the way principles of equity should be invoked. Here’s the full paragraph:

In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision. Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.

The plaintiffs’ "personal interest" is their ability to invoke the remedy. The nature of the right being remedied is defined in Brown I, which is framed in group terms. The groups are, of course, racial groups. And so in order to recognize the rights at stake in Brown, to remedy them, and to guard against their future violation, consistent with Brown, government entities would seem bound to pay attention to groups, and certainly not disabled from doing so.

More unfortunate than Roberts’ misuse of Brown II is the majority’s effort to wrap their handiwork in the garb of the architects of the legal struggle that achieved Brown in the first place. The Chief Justice quotes from the brief for the plaintiffs in Brown. He quotes NAACP lawyer Robert Carter, now a federal judge, who was one of the advocates, along with Thurgood Marshall, in the Supreme Court. He takes their statements out of context to imply that they argued for a form of colorblindness that is now used to undo their handiwork.

If the Court wishes to carve a new path, the 5 member majority in this case has the power to do it. They need not rewrite the history of Brown to achieve this purpose.