In Clash Over Affirmative Action, Both Sides Invoke Brown v. Board of Education - The New York Times

WASHINGTON — When the Supreme Court hears arguments connected Monday connected the destiny of affirmative enactment successful higher education, the justices volition beryllium moving successful the looming shadiness of a towering ineligible landmark: Brown v. Board of Education, the unanimous 1954 determination that said the Constitution prohibits radical segregation successful nationalist schools.

Both sides assertion the mantle of Brown, which is wide thought to beryllium the court’s finest moment. The challengers accidental the determination requires admissions policies to beryllium colorblind, dooming race-conscious programs astatine Harvard and the University of North Carolina.

The universities respond that Brown meant to bash distant with a radical caste strategy that subjugated Black students, and that the determination surely allowed efforts to assemble varied pupil bodies to guarantee acquisition diversity.

Brown’s singular presumption lone deepened the statement implicit its meaning, Justin Driver, a instrumentality prof astatine Yale, said.

“Brown is the Mona Lisa of American law law,” helium said. “It is not lone the court’s astir scrutinized and astir celebrated opinion, but its meaning besides shifts erstwhile viewed from antithetic angles.”

Both sides whitethorn person a point, Michael W. McConnell, a instrumentality prof astatine Stanford, said.

“The Brown sentiment is profoundly ambiguous, and they are appealing to antithetic aspects of the opinion, legitimately antithetic aspects,” helium said. “Is it a lawsuit astir not assigning connected the ground of contention oregon is it a lawsuit astir making definite that African American schoolchildren get a just shingle successful education?”

The radical challenging the 2 admissions programs, Students for Fair Admissions, oregon S.F.F.A., enactment Brown beforehand and halfway successful its briefs.

“Any treatment of radical classifications successful acquisition indispensable commencement with Brown,” its lawyers wrote in May.

And present are the opening lines from a reply little filed successful August: “U.N.C.’s statement is not with S.F.F.A.; it is with Brown. That landmark determination fulfilled the 14th Amendment’s committedness by requiring that ‘education … beryllium made disposable to each connected adjacent terms.’”

Lawyers for U.N.C. said that was a profound misreading of the decision. “Brown held that the arbitrary separation of students based connected contention violates adjacent protection,” they wrote. “Institutions similar U.N.C. that question to bring students of divers backgrounds unneurotic are the rightful heirs to Brown’s legacy.”

In a little for pupil and alumni groups astatine Harvard, lawyers for the NAACP Legal Defense and Educational Fund, the civilian rights radical that litigated Brown, wrote that the tribunal would beryllium playing with occurrence were it to follow the challengers’ knowing of the decision.

“The Brown determination was 1 of the finest moments successful this court’s history,” they wrote. “Yet, this tribunal risks jeopardizing that bequest — and damaging its ain legitimacy — should S.F.F.A. prevail successful misconstruing 1 of its canonical decisions to dismantle decades of precedent that affirmed the legality of race-conscious admissions.”

The tribunal successful Brown held that segregated nationalist schools denied Black students the adjacent extortion of the laws guaranteed by the 14th Amendment. “Separate acquisition facilities are inherently unequal,” Chief Justice Earl Warren wrote.

Exactly what other the ruling and its reasoning required has agelong been the taxable of debate. In 2007, for instance, the Supreme Court debated the meaning of Brown successful a determination that constricted the quality of nationalist schools to instrumentality relationship of contention to execute integration, Parents Involved successful Community Schools v. Seattle School District No. 1.

Only 3 justices serving past are inactive connected the court: Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. Along with Justice Antonin Scalia, who died successful 2016, they each signed a plurality sentiment adopting a colorblind knowing of Brown.

The main justness quoted from the transcript of the 1952 statement successful the case.

“We person 1 cardinal contention, which we volition question to make successful the people of this argument,” Robert L. Carter, a lawyer with the ineligible defence fund, said then, “and that contention is that nary authorities has immoderate authorization nether the adjacent extortion clause of the 14th Amendment to usage contention arsenic a origin successful affording acquisition opportunities among its citizens.”

Chief Justice Roberts added: “There is nary ambiguity successful that statement. And it was that presumption that prevailed successful this court.”

S.F.F.A., the radical challenging admissions policies, repeatedly cited a truncated mentation of Mr. Carter’s connection successful its briefs, indicating that it represented the holding of the 2007 decision. “The tribunal vindicated the committedness of the 14th Amendment successful Brown v. Board of Education,” one S.F.F.A. little said, by “rejecting ‘any authorization … to usage contention arsenic a origin successful affording acquisition opportunities.’”

In an interrogation with The New York Times on the time the 2007 determination was issued, the lawyer who had made that statement, by past a 90-year-old elder national justice successful Manhattan, said the main justness had gotten things backward.

“All that contention was utilized for astatine that constituent successful clip was to contradict adjacent accidental to Black people,” Judge Carter, who died successful 2012, said of the 1950s. “It’s to basal that statement connected its caput to usage contention the mode they usage it now.”

Jack Greenberg, different lawyer who had worked connected the Brown case, said connected the aforesaid time that the main justice’s mentation was “preposterous.”

“The plaintiffs successful Brown were acrophobic with the marginalization and subjugation of Black people,” Professor Greenberg said. “They said you can’t see race, but that’s however contention was being used.” Mr. Greenberg died successful 2016.

That knowing of Brown, articulated by the civilian rights lawyers who won the case, whitethorn beryllium overtaken by a much constricted 1 erstwhile the Supreme Court decides the caller cases, astir apt successful precocious June. The court’s six-member blimpish bulk present includes 3 justices appointed by President Donald J. Trump.

The tribunal has issued 3 large cases connected the usage of contention successful admissions decisions successful higher education: University of California v. Bakke, successful 1978; Grutter v. Bollinger, successful 2003; and Fisher v. University of Texas, successful 2016. All were intimately divided and each sent the basal connection that numerical radical quotas were forbidden but that a holistic approach, utilizing contention arsenic 1 origin among galore successful the admissions process, was permissible.

The decisions allowed lone a azygous justification for race-conscious admissions plans: creating acquisition diverseness truthful that students of antithetic backgrounds whitethorn larn from 1 another.

Justice Thurgood Marshall, who had been among the lawyers who argued the Brown case, issued a partial dissent successful the Bakke case, saying that Justice Lewis F. Powell Jr.’s controlling sentiment was excessively cramped successful rejecting the usage of contention to remedy past discrimination.

“It indispensable beryllium remembered that, during astir of the past 200 years, the Constitution arsenic interpreted by this tribunal did not prohibit the astir ingenious and pervasive forms of favoritism against the Negro,” helium wrote. “Now, erstwhile a authorities acts to remedy the effects of that bequest of discrimination, I cannot judge that this aforesaid Constitution stands arsenic a barrier.”

In the Grutter decision, the bulk endorsed Justice Powell’s approach. The challengers successful the caller cases inquire the Supreme Court to overrule Grutter.

“Because Brown is our law,” S.F.F.A’s lawyers wrote, “Grutter cannot be.”

In its Supreme Court brief, lawyers for Harvard wrote that the 3 affirmative enactment cases rested connected Brown. “Bakke, Grutter, and Fisher uphold Brown successful each way,” they wrote. “Like Brown, those decisions relied connected the overriding value of education.”

The Biden administration, successful a little supporting the universities, urged the justices to cull what it said was a revisionist presumption of Brown.

“Nothing successful Brown’s condemnation of laws segregating the races to perpetuate a caste strategy calls into question admissions policies adopted to beforehand greater integration and diversity,” the little said. “And petitioner’s persistent attempts to equate this lawsuit with Brown trivialize the grievous ineligible and motivation wrongs of segregation.”

But the challengers wrote that Brown indispensable beryllium work broadly to forbid information of race.

“Harvard and the United States trivialize Brown by trying to confine that foundational precedent to its facts,” lawyers for S.F.F.A. wrote, adding: “Surely Harvard doesn’t deliberation that Brown would person been antithetic if Southern schools had utilized a holistic argumentation that covertly reduced the fig of Black students.”

At bottom, said Kenji Yoshino, a instrumentality prof astatine New York University, the statement implicit the meaning of Brown turns connected however and wherefore schoolhouse officials instrumentality relationship of race.

“The segregationists believed successful race-conscious policies that entrenched the subordination of Black Americans,” helium said. “U.N.C.’s race-conscious policies, successful stark contrast, question to ameliorate that dehumanizing subordination. This has ever been the crux of the affirmative enactment debate. Does the 14th Amendment’s adjacent extortion clause forbid radical classification itself oregon lone radical classification that entrenches humanities subordination?”