The Supreme Court decision 65 years ago ruling that segregating schools by race was unconstitutional is widely viewed as settled to many Americans. But there is concern among some in the legal community that that might not exactly be the case.
More than two dozen of President Trump’s judicial nominees have declined to answer whether Brown v. Board of Education was properly decided, and legal experts said that that could have real implications on education and race in the United States.
The most recent example came when Wendy Vitter, who was confirmed Thursday as a federal district judge in Louisiana, declined to clearly affirm the decision. She said:
“I don’t mean to be coy, but I think I get into a difficult, difficult area when I start commenting on Supreme Court decisions — which are correctly decided and which I may disagree with. If I start commenting on, ‘I agree with this case,’ or ‘don’t agree with this case,’ I think we get into a slippery slope.”
Responses like Vitter’s are why the Leadership Conference on Civil and Human Rights released a letter this week urging U.S. senators to oppose all judicial nominees (Vitter included) who refuse to state clearly that the landmark Supreme Court ruling was correctly decided. For them, the Brown decision is about much more than education.
Kristine Lucius, the organization’s executive vice president for policy and governmental affairs, and a graduate of Georgetown Law who has worked on legal issues in Congress for more than a decade, told The Fix:
“Brown v. Board was about so much more than ending legal segregation in schools. It overturned laws that created a racial caste system to oppress and dehumanize African Americans. It opened the doors to allow for African Americans to integrate into all facets of American life. Judges who are unwilling to clearly affirm that Brown vs Board was correctly decided are putting all of this at stake: sending a dangerous signal to all Americans that Brown could someday be overturned and that our nation could return to the disgraceful days of racial segregation. All judicial nominees must endorse this essential principle of racial equality.”
Casting doubt on this landmark ruling is like an earthquake under equal protection jurisprudence. Brown embodies the legal foundation on which all other desegregation decisions were based and the principle on which our federal civil rights laws were premised.
Derrick Johnson, president and chief executive of the National Association for the Advancement of Colored People, an organization that was highly involved in the fight for desegregation, said the lack of support for the ruling suggests that the nominees might not take concerns about school segregation seriously.
“Questioning Brown sets us on a dangerous course,” he told The Fix. “Brown represents values that are now ingrained in our justice system and society. At a time when our schools are still segregated and our colleges lack diversity, reaffirming our core commitment to equality in education is imperative. Precisely when our nation is still struggling to fully comply with Brown is not when federal judges should call its mandate into question.”
Sen. Elizabeth Warren (D-Mass.) was a Harvard law professor long before she launched her presidential campaign. She tweeted that the work of addressing systemic racism must continue beyond Brown.
The resegregating of public schools has been a concern for many on the left who believe that students of color are often not receiving the same quality of education as students at predominantly white schools.
After the Economic Policy Institute released a report in 2013 called “For Public Schools, Segregation Then, Segregation Since: Education and the Unfinished March,” some legal and education experts have attempted to highlight how, in many cases, the work of Brown v. Board had been undone. The report said:
Today, many black children still attend schools in racially and economically isolated neighborhoods, while their families still reside in lonely islands of poverty: 39 percent of black children are from families with incomes below the poverty line, compared with 12 percent of white children (U.S. Census Bureau(a)); 28 percent of black children live in high-poverty neighborhoods, compared with 4 percent of white children (Casey 2013).
Other socioeconomic hardships that powerfully affect student achievement also remain unacceptable for black students: Housing for many remains inadequate (Sherman 2006); the black unemployment rate remains today, as then, more than twice that for whites (Austin 2013). While the minimum wage has been extended to some occupations in which black workers predominate, its level today is below that established in 1967, inflation-adjusted and in relation to national average wages (Mishel 2013). A discriminatory criminal justice system today incarcerates many more black young adults than it did 50 years ago (Alexander 2010).
If this is going to change, some in the legal community said, the country’s judges will have to show an unequivocal support for laws that make segregation based on race illegal. Beyond that, civil rights advocates argue that the nation’s judges must display continued support for laws that address de facto racial segregation in U.S. schools. So far, there is little confidence that either will happen under Trump.