Brown As An Anti-Integration Weapon

My colleague Ryane McAuliffe Straus and I have a new paper out, “The Two Browns: Policy Implementation and the Retrenchment of Brown v. Board of Education.” As many of you know, de facto segregation of American schools is on the rise. Part of the reason for this is some crucial Supreme Court decisions, beginning in the early 70s with key votes provided by the 4 justices nominated by the Last Liberal President (TM) Richard Nixon, that essentially provided states with a roadmap for how they could maintain segregated schools with the approval of federal courts. This culminated with John Roberts’s famous Parents Involved tautology, “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In practice, this means that the Supreme Court is now more likely to use Brown to thwart integration than to require it.

One way of describing this is to say that Milliken and its progeny effectively overruled Brown v. Board. The argument we advance here is a little more complicated. One problem with Brown has always been that the Court never actually made clear what states had to do, a problem that was exacerbated by the paradoxical “all deliberate speed” standard of Brown II. In a sense, the Warren Court’s integrationist interpretation of Brown and the Roberts Court’s anti-intergerationist reading of Brown are both consistent with the letter of the original decision, even if the former is much closer to its spirit. One lesson here is that you can’t just look at whether precedents have been formally overruled when determining how much Supreme Court doctrine has changed. No Supreme Court justice has ever suggested that Brown should be overruled, but how the Supreme Court has interpreted Brown has radically changed since 1968. Conservative justices have no need to overrule Brown when they can actually use it as an anti-civil rights weapon.