Brown v. Board of Education is absolutely not sure!
There is not much you can do to stop worrying about the fall of Roe vs. Wade to wonder what other rights might be on the Supreme Court’s chopping block.
If we can get rid of a precedent as old as Roe, what about older cases like Brown v. Board of Educationwho ruled that school segregation based solely on race was unconstitutional?
One thing in Brown’s corner is that the problem Judge Clarence Thomas says he has with Roe is that he falls within that area of the law known as substantive due processexplains Stephen Wermiel, professor of constitutional law at the American University Washington School of Law.
It’s a little complicated, so simple with us, but substantive due process protects people from the government violating their fundamental rightsthings like marriage or privacy, which are not explicitly in the constitution, but which the Supreme Court has declared to be implicit.
” I do not think so [Brown] would fall on Thomas’ list,” Wermiel says, as this is not a substantive due process case. But that doesn’t mean Brown is totally safe either, he says.
In his majority opinion, Judge Samuel Alito argued that a problem with Roe was that “it created chaos” and “disrupted the degree to which our laws were established,” Wermiel says.
Similarly Brown v. board and Brown v. Committee II, ran into huge resistance in the South, he said. As part of that, it stands to reason that Brown could also be knocked down, Wermiel says.
But we don’t have to kill Brown v. Board to destroy the dream of integrated schools, says Lisa A. Crooms-Robinson, professor of constitutional law at Howard University School of Law.
In 2017, nearly 70% of all black children in the United States attended schools that were highly segregated by race, according to the Economic Policy Institute.
And to understand how we got here, Crooms-Robinson says we need to look at what Brown v. Board actually did (or, more importantly, didn’t).
“We start as separate but equal has no place in K-12 education,” Crooms-Robinson said. “And what we’ve realized is that Brown is not an integration mandate, or giving states or local school boards the ability to seek integration, but rather to desegregate, which is completely different.”
Simply put, a court can order a school district to stop intentionally segregating students based on race. However, these court orders are not permanent, she says.
So whenever the court feels the school has done a good enough job, it can release them from the order.
“At this point, there’s really nothing the state can do,” Crooms-Robinson said. “Especially using race as a factor to maintain integration.”
But wait, you might be wondering why can’t the school district just order people to fit in or take positive action to promote diversity?
Well, that’s because the guys who brought you the end of Roe, judges Clarence Thomas, Samuel Alito, plus some other notable additionsthinks that promoting diversity is racist.
No seriously, here’s what Thomas said when he put the final nail in the coffin of K-12 integration efforts.
“Disadvantaging a color-blind interpretation of the constitution”, wrote Thomas, “would give school boards the freedom to make decisions on the basis of race – an approach reminiscent of that advocated by segregationists in Brown v. Board.”
In 2006, the Supreme Court tenuous that Seattle school districts’ efforts to ensure diversity in their school system by using race as a tiebreaker to determine who got into which school violated the Equal Protection Clause.
In doing so, they “tied the hands of local school districts to use race as one factor often among others in determining … school admissions or school assignment,” Crooms- said. Robinson.
“You could theoretically still have court-ordered desegregation,” says Wermiel. “But I don’t think there are still a lot of court-ordered desegregation cases.”
Next quarter, the Supreme Court will hear an affirmative action on higher education.
“Higher education cases on file for next time,” Crooms-Robinson said. “Sera, I would suspect the end of race-based affirmative action.”