Brown and the colorblind constitution

Cornell Law Review

Volumn 94, Issue 1, 2008, Pages 203-238

  Schmidt, Christopher W ^a  

^a CHICAGO KENT COLLEGE OF LAW   (United States)

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EID: 57649245287     PISSN: 00108847     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (272)

1. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738 2767 (2007).
2. Edmond Cahn, Jurisprudence, 30 N.Y.U. L. REV. 150, 153 (1955).
3. 347 U.S. 483 (1954).
4. 163 U.S. 537, 559 (1896) (Harlan, J., dissenting).
5. Parents Involved, 127 S. Ct. at 2767-68.
6. Similarly, Justice Thomas, in addition to analogizing the position of the dissenters in Parents Involved to that of the lawyers who opposed the NAACP in Brown, also drew on the words of NAACP lawyers to support his reading of Brown. Id. at 2782-83 (Thomas, J., concurring).
7. The Supreme Court's treatment of Brown dominated media reaction to the Parents Involved decision. See, e.g., Stanley Fish, Op-Ed., History, Principle and Affirmative Action, N.Y. TIMES, July 14, 2007, at All;
8. Linda Greenhouse, Justices, 5-4, Limit Use of Race for School Integration Plans, N.Y. TIMES, June 29, 2007, at Al;
9. Adam Liptak, The Same Words, but Differing Views, N.Y. TIMES, June 29, 2007, at A24;
10. Juan Williams, Op-Ed., Don't Mourn Brown v. Board of Education, N.Y. TIMES, June 29, 2007, at A29;
11. Michael C. Dorf, The Supreme Court's Split Over Public School Integration: Who Really Betrayed Brown's Legacy? FINDLAW, July 2, 2007, http://writ.news.findlaw.com/dorf/20070702.html.
12. Liptak, supra note 5 (quoting Jack Greenberg).
13. Id. (quoting Judge Robert L. Carter).
14. Id. (quoting William T. Coleman, Jr.);
15. see also Jack Greenberg, Roberts, Breyer, Louisville, Seattle and Humpty Dumpty, HUFFINGTON POST, Aug. 10, 2007, http://www.huffingtonpost.com/jack-greenberg/roberts-breyer-louisvil-b-60000. html ("I was among those who argued alongside Marshall in Brown. Nobody at that time had heard of affirmative action. ... It never occurred to me or anyone else that we were arguing for a color blind constitution that would prohibit government from affirmatively preferring African-Americans by promoting integration. All others among surviving counsel for the Brown plaintiffs emphatically disagree with the Roberts characterization and I am confident that those no longer with us would disagree too.").
16. Parents Involved, 127 S. Ct. at 2797 (Stevens, J., dissenting).
17. Id. at 2798.
18. Id. at 2800.
19. Greenhouse, supra note 5.
20. Parents Involved, 127 S. Ct. at 2836 (Breyer, J., dissenting).
21. For recent efforts to theorize and defend this point, see Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 HARV. C.R.-C.L. L. REV. 373 (2007);
22. Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the de facto ERA, 94 CAL. L. REV. 1323 (2006).
23. Classic works in this genre include CHARLES A. MILLER, THE SUPREME COURT AND THE USES OF HISTORY (1969);
24. Gerhard Casper, Jones v. Mayer: Clio, Bemused and Confused Muse, 1968 SUP. CT. REV. 89;
25. Alfred H. Kelly, Clio and the Court: An Illicit Love Affair, 1965 SUP. CT. REV. 119;
26. Paul L. Murphy, Time to Reclaim: The Current Challenge of American Constitutional History, 69 AM. HIST. REV. 64 (1963);
27. William M. Wiecek, Clio as Hostage: The United States Supreme Court and the Uses of History, 24 CAL. W. L. REV. 227 (1988).
28. See, e.g, Michael Klarman, An Interpretive History of Modern Equal Protection, 90 MICH. L. REV. 213, 235 n.95 (1991);
29. Eric Schnapper, Affirmative Action and the Legislative History of the Fourteenth Amendment, 71 VA. L. REV. 753 (1985).
30. See, e.g., CASS R. SUNSTEIN, RADICALS IN ROBES: WHY EXTREME RIGHT-W ING COURTS ARE WRONG FOR AMERICA 137-38 (2005) (noting "the stunning silence of Justices Scalia and Thomas" on the history of the Fourteenth Amendment in explaining their anticlassification stances). Justice Thomas typically defends his reading of the Fourteenth Amendment as establishing an anticlassification requirement by reference to general principles of equality, rather than text or original meaning.
31. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 353 (2003) (Thomas, J., concurring in part and dissenting in part) ("The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.");
32. id. at 378 (warning that benign racial classifications "only weaken the principle of equality embodied in the Declaration of Independence and the Equal Protection Clause");
33. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 240 (1995) (Thomas, J., concurring in part and concurring in the judgment) (referring to "the principle of inherent equality that underlies and infuses our Constitution" as prohibiting racial classifications and citing the Declaration of Independence as support for this point);
34. see also Clarence Thomas, Toward a "Plain Reading" of the Constitution-The Declaration of Independence in Constitutional Interpretation, 30 HOW. L.J. 983, 995 (1987) ("The first principles of equality and liberty should inspire our political and constitutional thinking.").
35. Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown, 117 HARV. L. REV. 1470, 1472-73 (2004).
36. For the seminal articulation of an "antisubordination" reading of the Fourteenth Amendment, see Owen M. Fiss, Groups and the Equal Protection Clause, 5 PHIL. & PUB. AFF. 107 (1976), although Fiss labeled it the "group-disadvantaging principle,"
37. id. at 108.
38. See infra notes 48-53 and accompanying text.
39. Siegel, supra note 18.
40. David A. Strauss, Discriminatory Intent and the Taming of Brown, 56 U. CHI. L. REV. 935 (1989).
41. See Ian F. Haney López, "A Nation of Minorities": Race, Ethnicity, and Reactionary Colorblindness, 59 STAN. L. REV. 985, 1000-01 (2007) (limiting discussion to a short section entided "The Liberal Argument for Colorblindness in Brown").
42. ANDREW KULL, THE COLOR-BUND CONSTITUTION 151-63 (1992).
43. See e.g., id. at 152 (describing the Brown opinion as "historically and legally jejune");
44. id. at 161 (describing the Supreme Court's confusing and contradictory segregation jurisprudence through the 1950s, including Brown, as "an intellectual void").
45. A prominent exception in this area is the work of Michael Klarman. See, e.g, Klarman, supra note 16, at 226-57 (examining the Supreme Court's consideration of the racial classification rule in the post-1937 era).
46. Parents Involved in Cmty. Sch. v. Seatde Sch. Dist. No. 1, 127 S Ct. 2738 2746 (2007).
47. See id.
48. See Heather K. Gerken, The Supreme Court 2006 Term Comment, Justice Kennedy and the Domains of Equal Protection, 121 HARV. L. REV. 104 (2007);
49. James E. Ryan, The Supreme Court 2006 Term Comment, The Supreme Court and Voluntary Integration, 121 HARV L. REV. 131, 135-36 (2007).
50. Parents Involved, 127 S. Ct. at 2758
51. (quoting City of Richmond v. J.A. Croson Co., 488 U.S. 469, 495 (1989) (plurality opinion of O'Connor, J.)).
52. Id. at 2767
53. (quoting Croson, 488 U.S. at 493).
54. Id. (quoting Rice v. Cayetano, 528 U.S. 495, 517 (2000)).
55. Id.
56. Id.
57. Id.
58. Id. at 2768
59. (quoting Brief for Appellants in Nos. 1, 2, and 3 and for Respondents in No. 5 on Reargument at 15, Brown v. Bd. of Educ. (Brown I), 347 U.S. 483 (1954) (Nos. 1, 2, 3, 5)).
60. Id. at 2767-68
61. (quoting Transcript of Oral Argument at 7, Brown I, 347 U.S. 483 (No. I)).
62. Id. at 2768
63. (emphasis of Chief Justice Roberts (quoting Brown v. Bd. of Educ. (Brown II), 349 U.S. 294, 300-01 (1955)).
64. Id. at 2768
65. (quoting Brown II, 349 U.S. at 300-01) (citation omitted).
66. Id. at 2782 (Thomas, J., concurring).
67. Id.
68. Id. (quoting parenthetically Brief for Appellants in Nos. 1, 2 and 3 and Respondents in No. 5 on Reargument at 65, Brown I, 347 U.S. 483 (Nos. 1, 2, 3, 5) ("That the Constitution is color blind is our dedicated belief."));
69. id. (quoting parenthetically Brief for Appellants in No. 1 at 5, Brown I, 347 U.S. 483 ("The Fourteenth Amendment precludes a state from imposing distinctions or classifications based upon race and color alone."));
70. id. at 2782 n.20 (quoting parenthetically Statement as to Jurisdiction at 8, Davis v. County Sch. Bd., 347 U.S. 483 (No. 3) (companion case to Brown I) ("[W]e take the unqualified position that the Fourteenth Amendment has totally stripped the state of power to make race and color the basis for governmental action."));
71. id. (quoting parenthetically Transcript of Oral Argument at 7, Brown I, 347 U.S. 483 (No. 1 ) ("We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens."));
72. id. (quoting parenthetically Transcript of Oral Argument at 50, Briggs v. Elliott, 347 U.S. 483 (No. 2) (companion case to Brown I) ("[T] he state is deprived of any power to make any racial classifications in any governmental field.")).
73. Id. at 2782-83 (quoting parenthetically IN MEMORIAM, HONORABLE THURGOOD MARSHALL: PROCEEDINGS OF THE BAR AND OFFICERS OF THE SUPREME COURT OF THE UNITED STATES, at x (Nov. 15, 1993) (remarks of Judge Motley) ("Marshall had a 'Bible' to which he turned during his most depressed moments. The 'Bible' would be known in the legal Community as the first Mr. Justice Harlan's dissent in Plessy v. Ferguson .... I do not know of any opinion which buoyed Marshall more in his pre-Brown days ...")). In a footnote later in his concurrence, Justice Thomas juxtaposed a quotation from an NAACP brief in Brown with a quotation from Justice Breyer's dissent to make this same point.
74. Id. at 2786 n.28.
75. Id. at 2768;
76. see also id. at 2783 (comparing the dissenters to "segregationists in Brown [who] embraced the arguments the Court endorsed in Plessy").
77. Id. at 2783-86.
78. Id. at 2786 n.27.
79. Id. at 2786.
80. Id.
81. Justice Kennedy's concurrence touched on Brown only lightly and showed none of the interest in its background history that is evidenced in the opinions of the Chief Justice and Justice Thomas. Nonetheless, Brown plays an important symbolic role in Justice Kennedy's concurrence. He turned to Brown as a moderating influence-as a testament to the necessary mixture of pragmatism and principle that is necessary to further the compelling state interest in creating a diverse educational environment while avoiding race-based solutions that risk "entrench [ing] the very prejudices we seek to overcome."
82. Id. at 2788 (Kennedy, J., concurring). Although he is committed to "[t]he enduring hope is that race should not matter," for Kennedy, a sweeping dismissal of racial classifications is "not sufficient to decide these cases."
83. Id. at 2791.
84. Fifty years of experience since Brown v. Board of Education should teach us that the problem before us defies so easy a solution. School districts can seek to reach Brown's objective of equal educational opportunity. ... To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken.
85. Id. (citation omitted). If, for Justice Kennedy, the evocation of the ideal of the colorblind Constitution provides the aspirational principle, then Brown and the experience of school desegregation it launched demonstrate the real compromises necessary to move the nation toward this ideal.
86. For an insightful analysis of Kennedy's concurrence, see Gerken, supra note 28.
87. Id. at 2837 (Breyer, J., dissenting).
88. Id. at 2836
89. (quoting id. at 2797 (Kennedy, J., concurring)) (citations omitted).
90. Id. at 2836-37.
91. Id. at 2837.
92. Id.
93. Id. at 2797 (Stevens, J., dissenting).
94. Id. at 2798.
95. To support this conclusion, Justice Stevens offered, in a footnote, a quotation from Charles Black's classic 1960 defense of Brown, which emphasized the historical fact that segregation "was imposed on one race by the other race; consent was not invited or required." Id. at 2798 n.2
96. (quoting Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 YALE L.J. 421, 425 (1960)).
97. Id. at 2799.
98. Id. at 2798.
99. Id. at 2800.
100. Id. at 2798
101. (quoting Brewer v. Quarterman, 550 V.S. 286, 127 S. Ct. 1706, 1720 (2007) (Roberts, C.J., dissenting)).
102. See Brad Snyder, How the Conservatives Canonized Brown v. Board of Education, 52 RUTGERS L. REV. 383, 446 (2000).
103. For a forcefully argued alternative approach to this issue, see Comfort v. Lynn Sch. Comm, 418 F.3d 1, 27 (1st Cir. 2005) (Boudin, C.J., concurring) ("The Lynn plan at issue in this case is fundamentally different from almost anything that the Supreme Court has previously addressed. It is not, like old-fashioned racial discrimination laws, aimed at oppressing blacks, nor, like modern affirmative action, does it seek to give one racial group an edge over another (either to remedy past discrimination or for other purposes). [T]he plan does not segregate persons by race. Nor does it involve racial quotas.") (citations omitted);
104. see also Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 426 F.3d 1162, 1193 (9th Cir. 2005) (Kozinski, J., concurring) ("[T]here is something unreal about their efforts to apply the teachings of prior Supreme Court cases, all decided in very different contexts, to the plan at issue here. I hear the thud of square pegs being pounded into round holes.").
105. 347 U.S. 497 (1954).
106. Brown v. Bd. of Educ. (Brown II), 349 U.S. 294 (1955).
107. Brown v. Bd. of Educ. (Brown I), 347 U.S. 483, 493 (1954).
108. Id. at 494.
109. Bolling, 347 U.S. at 499-500.
110. Id. at 499.
111. Brown II, 349 U.S. at 298.
112. Id. at 299.
113. Id. at 300.
114. Id. at 300-01.
115. See, e.g., New Orleans City Park Improvement Ass'n v. Detiege, 358 U.S. 54 (1958) (per curiam) (parks);
116. Gayle v. Browder, 352 U.S. 903 (1956) (per curiam) (buses);
117. Holmes v. City of Atlanta, 350 U.S. 879 (1955) (per curiam) (golf courses);
118. Mayor and City Council of Baltimore v. Dawson, 350 U.S. 877 (1955) (per curiam) (beaches).
119. Dennis J. Hutchinson, Unanimity and Desegregation: Decisionmaking in the Supreme Court, 1948-1958, 68 GEO. L.J. 1, 60-61 (1979) (describing critical reaction of legal scholars to the per curiam decisions).
120. 379 U.S. 184 (1964).
121. Id. at 191-92 ("[W]e deal here with a classification based upon the race of the participants, which must be viewed in light of the historical fact that the central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States.");
122. see also id. at 198 (Stewart, J., concurring) ("I cannot conceive of a valid legislative purpose under our Constitution for a state law which makes the color of a person's skin the test of whether his conduct is a criminal offense. ... I think it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor. Discrimination of that kind is invidious per se.");
123. Klarman, supra note 16, at 255 ("For the first time the Court in McLaughlin both articulated and applied a more rigorous review standard to racial classifications, requiring as justification an 'overriding' state purpose as well as a showing that the classification was 'necessary,' rather than just rationally related, to the proffered governmental interest." (footnote omitted)).
124. But see KULL, supra note 23, at 163 (suggesting that the start of "a brief period during which our Constitution was effectively color-blind" can be marked by the Supreme Court's affirmance of a federal district court opinion in which Judge John Major Wisdom argued that Brown had held racial classifications to be " 'inherendy discriminatory and violative of the Equal Protection Clause' ")
125. (quoting Dorsey v. State Athletic Comm'n, 168 F. Supp. 149, 151 (E.D. La. 1958), aff'd mem., 359 U.S. 533 (1959)).
126. McLaughlin, 379 U.S. at 192.
127. See infra Part H.B.
128. See infra Part II.C-D.
129. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2768 (2007).
130. See, e.g., South v. Peters, 339 U.S. 276, 278 (1950) (Douglas, J., dissenting) (discrimination based on race is "beyond the pale");
131. Korematsu v. United States, 323 U.S. 214, 216 (1944) ("[A]ll legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny.");
132. Hirabayashi v. United States, 320 U.S. 81, 100 (1943) ("Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality. For that reason, legislative classification or discrimination based on race alone has often been held to be a denial of equal protection.") ;
133. Edwards v. California, 314 U.S. 160, 180, 185 (1941) (Douglas, J., concurring) (referring to race as "constitutionally an irrelevance").
134. Transcription of William O. Douglas, Conference Notes-First Brown Conference (Dec. 13, 1952), William O. Douglas Papers, Box 1150, Library of Congress, Manuscript Division, Washington, D.C. (alteration in original) (on file with author) [hereinafter Douglas Conference Notes-First Brown Conference].
135. Transcription of William O. Douglas, Conference Notes-Second Brown Conference (Dec. 12, 1953), William O. Douglas Papers, Box 1149, Library of Congress, Manuscript Division, Washington, D.C. (on file with author) [hereinafter Douglas Conference Notes-Second Brown Conference].
136. Douglas was the first Justice to cite Justice Harlan's Plessy dissent and its reference to the colorblind Constitution. Garner v. Louisiana, 368 U.S. 157, 185 (1961) (Douglas, J., concurring).
137. Justice Douglas was also the only Justice on the Brown Court still sitting in 1974 when the first challenge to affirmative action in an educational context arrived, DeFunis v. Odegaard, 416 U.S. 312 (1974).
138. and he used this opportunity to denounce all racial classifications as violative of the principle of Brown. Id. at 342-44 (Douglas, J., dissenting).
139. Douglas Conference Notes-First Brown Conference, supra note 81.
140. Douglas Conference Notes-Second Brown Conference, supra note 82. Douglas recognized Minton as an ally in these cases. Years later, Douglas wrote: "[W] hen it came to the Equal Protection Clause, no one was more adamant than Minton in insisting on equality in the treatment of blacks. He was indeed one of the great mainstays in the early school-desegregation cases."
141. WILLIAM O. DOUGLAS, THE COURT YEARS, 1939-1975: THE AUTOBIOGRAPHY OF WILLIAM O. DOUGLAS 246 (1980). Yet, unlike Douglas, Minton would not take his anticlassification rhetoric to its logical conclusion. When, in the years immediately following Brown, the Court received challenges to state anti-miscegenation laws, Minton voted to deny certiorari.
142. See Hutchinson, supra note 73, at 62 n.525, 64.
143. Douglas Conference Notes-First Brown Conference, supra note 81.
144. Transcription of Tom Clark, Conference Notes-First Brown Conference (n.d.), Tom Clark Papers, Box 27A, Tarlton Law Library, University of Texas (on file with author).
145. Douglas Conference Notes-First Brown Conference, supra note 81.
146. In the years following Brown, Justice Black became more explicitly committed to anticlassification principles, and his retrospective justification for Brown changed accordingly. See, e.g, Bell v. Maryland, 378 U.S. 226, 342 n.42 (1964) (Black, J., dissenting) ("We agree, of course, that the Fourteenth Amendment is 'color blind,' in the sense that it outlaws all state laws which discriminate merely on account of color. This was the basis upon which the Court struck down state laws requiring school segregation in Brown v. Board of Education").
147. Letter from Robert H. Jackson to Charles Fairman (Apr. 5, 1950), Robert Houghwout Jackson Papers, Container 12, Library of Congress, Manuscript Division, Washington, D.C. ("It seems to present a pretty naked question whether there is any constitutional right to make any classification based on race.");
148. Memorandum by Robert H. Jackson (Mar. 15, 1954), Robert Houghwout Jackson Papers, Box 184, Manuscript Division, Library of Congress, Washington, D.C. .
149. See MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY 304-07 (2004).
150. Philip Elman, The Solicitor General's Office, Justice Frankfurter, and Civil Rights Litigation, 1946-1960: An Oral History, 100 HARV. L. REV. 817, 839 (1987) (quoting Letter from Justice Frankfurter to Philip Elman (July 21, 1954)).
151. ARGUMENT: THE ORAL ARGUMENT BEFORE THE SUPREME COURT IN BROWN V. BOARD OF EDUCATION OF TOPERA, 1952-55, at 117 (Leon Friedman ed., 1969) [hereinafter ARGUMENT] .
152. See, e.g., Interview by Richard Kluger with Earl E. Pollock, former clerk to Chief Justice Earl Warren (Aug. 19, 1974), Brown v. Board of Education Collection, Series 1, Box 5, Warren File, Manuscripts and Archives, Sterling Memorial Library, Yale University, New Haven, Conn. (Statement of Pollock, who helped draft Brown, that "If there were three things of great value and stimulation to [Chief Justice Warren], they were (1) equality, (2) education, and (3) young people").
153. See BERNARD SCHWARTZ, SUPER CHIEF: EARL WARREN AND HIS SUPREME COURT-A JUDICIAL BIOGRAPHY 146 (1983);
154. G. EDWARD WHITE, EARL WARREN: A PUBLIC LIFE 178 (1982).
155. See, e.g., Memorandum from Earl Warren to the Members of the Court (May 7, 1954), Earl Warren Papers, Container 571, Manuscript Division, Library of Congress, Washington, D.C (describing his goal that the Brown opinion was to be "non-rhetorical, unemotional and, above all, non-accusatory").
156. In a personal memorandum written in 1949, Reed conceded: "It may be that segregation is not a lasting condition. It may be an exception of the moment in the movement toward abolition of all distinctions of people by law." JOHN D. FASSETT, NEW DEAL JUSTICE: THE LIFE OF STANLEY REED OF KENTUCKY 561 (1994).
157. See id. at 555-80;
158. RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF Brown v. Board of Education and Black America's Struggle for Equality 595-96, 680, 691-93, 698 (1976).
159. See generally MARY FRANCES BERRY, STABILITY, SECURITY, AND CONTINUITY: MR. JUSTICE BURTON AND DECISION-MAKING IN THE SUPREME COURT, 1945-1958 (1978).
160. Transcription of Robert H.Jackson, Conference Notes-First Brown Conference, (Dec. 12, 1952), Robert Houghwout Jackson Papers, Box 184, Manuscript Division, Library of Congress, Washington, D.C. (on file with author).
161. Douglas Conference Notes-First Brown Conference, supra note 81.
162. See, e.g., Memorandum on Sweatt and McLaurin from Mr. Justice Clark to the Conference (Apr. 7, 1950), reprinted in Hutchinson, supra note 73, at 89-90.
163. GEORGE H. GALLUP, 2 THE GALLUP POLL: PUBLIC OPINION, 1935-1971, at 1249-51 (1972) (reporting July 1954 polls that found 54% approved of Brown, and 41% disapproved).
164. Id. at 1572.
165. Alabama: Marengo Meeting, S. Son. NEWS (Nashville), Jan. 6, 1955, at 2.
166. quoted in Michael J. Klarman, Brown and Lawrence (and Goodridge), 104 MICH. L. REV. 431, 446 (2005).
167. ARGUMENT, supra note 93, at 116.
168. Id. at 117.
169. Id.
170. Jackson v. Alabama, 72 So. 2d 114 (Ala. 1954), cert, denied, 348 U.S. 888 (1954).
171. Naim v. Nairn, 87 S.E.2d 749 (Va. 1955), vacated, 350 U.S. 891 (1955) (per curiam), on remand 90 S.E.2d 849 (Va. 1956), appeal dismissed, 350 U.S. 985 (1956) (per curiam).
172. Hutchinson, supra note 73, at 63 (quoting Certiorari Memorandum on Naim v. Naim from AJM [Clerk] to Justice Burton, at 3 (Oct. Term 1955)).
173. Memorandum of Mr. Justice Frankfurter on Naim v. Naim (Read at Conference, Nov. 4, 1955).
174. reproduced in Hutchinson, supra note 73, at 95.
175. See generally Hutchinson, supra note 73, at 62-67 (discussing the Court's avoidance of Naim);
176. Klarman, supra note 105, at 446-50 (discussing strategies the Court employed to avoid miscegenation cases).
177. Cf. also KULL, supra note 23, at 158 ("What seems clear in retrospect... is that no amount of argument could have induced the Court to decide the School Segregation Cases on the basis that the Constitution was color-blind, or on any other basis that implied a resolution of issues of racial discrimination not yet before it").
178. GERALD GUNTHER, LEARNED HAND: THE MAN AND THE JUDGE 667 (1994) (quoting Letter fromjustice Frankfurter to Judge Learned Hand (Sept. 17, 1957)).
179. Id. at 669 (quoting Letter fromjustice Frankfurter to Judge Learned Hand (Sept. 27, 1957)).
180. Id.
181. Id.
182. McLaughlin v. Florida, 379 U.S. 184 (1964).
183. Loving v. Virginia, 388 U.S. 1 (1967).
184. Id. at 11 (quoting Korematsu v. United States, 323 U.S. 214, 216 (1944)) (citation omitted).
185. This blending of anticlassification and antisubordination claims can be seen in the NAACP's first major school integration case of the postwar period. See Brief for Petitioner at 27, Sipuel v. Bd. of Regents of the Univ. of Okla., 332 U.S. 631 (1948) (No. 369) ("Classifications and distinctions based on race or color have no moral or legal validity in our society.");
186. id. at 36 ("Segregation in public education helps to preserve and enforce a caste system which is based upon race and color. It is designed and intended to perpetuate the slave tradition sought to be destroyed by the Civil War and to prevent Negroes from attaining the equality guaranteed by the federal Constitution.").
187. 339 U.S. 629 (1950).
188. Brief for Petitioner at 6, Sweatt, 339 U.S. 629 (No. 44) ("[The Equal Protection Clause] has been interpreted as embodying a fundamental hostility to racial distinctions and classifications, and as incorporating into the fundamental law the democratic credo that governmental action based upon race and blood are necessarily arbitrary.");
189. see also id. at 9 ("[U]nder the equal protection clause a governmental classification based upon race or color is unconstitutional per se.");
190. id. at 32-34 (arguing for strict scrutiny of racial classifications).
191. Id. at 7.
192. Id. at 41;
193. see also id. at 75 ("The basic law of our land, as crystallized in our Constitution, rejects any distinctions made by government on the basis of race, creed, or color. This concept of true equality has become synonymous with what is generally defined as 'the American Creed.'")
194. See, e.g., Thurgood Marshall, The Supreme Court as Protector of Civil Rights: Equal Protection of the Laws, 275 ANNALS AM. ACAD. POL. & SOC. SCI. 101-02 (1951) (describing the equal protection principle as "the right to be free from differences of treatment because of race, color, blood, or national origin," yet noting that "[t]he obligation to furnish equal protection of the laws does not establish an abstract uniformity applicable alike to all persons without regard to circumstances or conditions").
195. See Statement as to Jurisdiction at 12, Brown v. Bd. of Educ. (Brown I), 347 U.S. 483 (1954) (No. 1) (arguing that there was no "legitimate legislative objective" that could be served by drawing racial distinctions).
196. Brief for Appellants at 6-7, Brown I, 347 U.S. 483 (1954) (No. 1);
197. see also id. at 6-7 ("When the distinctions imposed are based upon race and color alone, the state's action is patendy the epitome of that arbitrariness and capriciousness constitutionally impermissive under our system of government.").
198. ARGUMENT, supra note 93, at 14;
199. see also id. ("It is our position that any legislative or government classification must fall with an even hand on all persons similarly situated.");
200. id. at 15 ("[U]nder the decisions of this Court that no state can use race, and race alone, as a basis upon which to ground any legislative, any lawful constitutional authority . . . this Court has indicated that race is arbitrary and an irrational standard ....");
201. id. at 25 ("I would think . . . that without regard to the question of its effect on Negroes, that this business of classification, this Court has dealt with it time and time again.").
202. Id. at 26;
203. see also id. at 117 (recordingJustice Frankfurter discussing "the all-embracing principle, that no legislation which is based on differentiation of race is valid").
204. Id. at 26.
205. Id. at 15, 26;
206. see also id. at 35 ("This case could also be decided on the question of equal educational opportunities as they are examined by the approach of McLaurin and Sweatt.").
207. Id. at 34-35.
208. Id. at 35;
209. see also id. ("Now, to conclude, our feeling is that this case could be decided on the question of the illegality of the classification itself.") ;
210. id. at 171 (recording NAACP lawyer Jack Greenberg retreating from damage argument to anticlassification argument upon being challenged by Justice Black).
211. Id. at 199.
212. Id. at 65.
213. Id.
214. Thurgood Marshall, An Evaluation of Recent Efforts to Achieve Racial Integration in Education Through Resort to the Courts, 21 J. NEGRO EDUC. 316, 327 (1952).
215. JACK GREENBERG, CRUSADERS IN THE COURTS: HOW A DEDICATED BAND OF LAWYERS FOUGHT FOR THE CIVIL RIGHTS REVOLUTION 172 (1994);
216. see also id. at 86 ("[James Nabrit] would have nothing to do with anything that faintly suggested that if schools were equalized segregation might be acceptable.");
217. Discussion of Papers, 21 J. NEGRO EDUC. 327, 338 (1952) (recording challenge by Professor James M. Nabrit of Marshall to accept anticlassification claim as the central issue).
218. ARGUMENT, supra note 93, at 114.
219. Id.
220. Id. at 116-17;
221. see also id. at 118, 119, 121 (argument of James Nabrit).
222. Chief Justice Warren had just arrived on the Court in the fall of 1953, having spent the past decade as California attorney general and then governor, and he especially appreciated the guidance offered by the Justice Department. In an early draft of Brown he singled out a government brief as "particularly objective and helpful." Earl Warren, Memorandum 2-3 (n.d.), Earl Warren Papers, Container 571, Manuscript Division, Library of Congress, Washington, D.C. This specific reference to the Justice Department's brief was left out of the final draft of Brown.
223. See Christopher William Schmidt, Postwar Liberalism and the Origins of Brown v. Board of Education 523-24 (2004) (unpublished Ph.D. dissertation, Harvard University) (on file with author), available at ProQuest Doc ID 813765271.
224. TO SECURE THESE RIGHTS: THE REPORT OF HARRY S TRUMAN'S COMMITTEE ON CIVIL RIGHTS (Steven F. Lawson ed., Bedford/St. Martin's 2004) (1947).
225. Id. at 55-58.
226. Id. at 50 ("The central theme in our American heritage is the importance of the individual person.").
227. Id. at 50.
228. Id. at 179.
229. Brief for the United States at 14-16, Henderson v. United States, 339 U.S. 816 (1950) (No. 25) (referencing anticlassification arguments);
230. id. at 19-23 (attacking segregation in railroad accommodations as violative of associational rights of whites);
231. Brief for the United States as Amicus Curiae at 52, Shelley v. Kramer, 334 U.S. 1 (1948) (Nos. 72, 87, 290, 291) ("The decisions of this Court stand in vigorous affirmation of the principle that 'our Constitution is color blind.' The Court has been consistent and unequivocal in its denunciation of discriminations based on color.");
232. id. at 54 ("Distinctions based on race or color alone are in most instances irrelevant and, therefore, invidious under the Constitution.");
233. id. at 55 (noting that the "primary object" of the Fourteenth Amendment was to protect "the rights and liberties of the Negro").
234. Brief for the United States as Amicus Curiae at 3-4, Brown v. Bd. of Educ. (Brown I), 347 U.S. 483 (1954) (Nos. 1, 2, 3, 4, 5)
235. (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting)) (footnote omitted).
236. Id. at 4 n.2.
237. Id. at 32
238. (quoting Plessy, 163 U.S. at 562 (Harlan, J., dissenting)).
239. Justice Harlan Concurring, N.Y. TIMES, May 23, 1954, at E10.
240. Id.
241. David Fellman, Constitutional Law in 1953-1954, 49 AM. POL. SCI. REV. 63, 96 (1955)
242. (quoting Plessy, 163 U.S. at 559 (Harlan, J., dissenting)).
243. Cahn, supra note 2, at 169;
244. see also ALBERT P. BLAUSTEIN & CLARENCE CLYDE FERGUSON, JR., DESEGREGATION AND THE LAW: THE MEANING AND EFFECT OF THE SCHOOL SEGREGATION CASES 157 (1957) (stating that Brown marked the acceptance by the Court of Harlan's dissent in Plessy) ;
245. JOHN P. ROCHE, THE QUEST FOR THE DREAM: THE DEVELOPMENT OF OVIL RIGHTS AND HUMAN RELATIONS IN MODERN AMERICA 245 (1963) (stating that with Brown, the "United States Constitution had become 'color blind'");
246. Loren P. Beth, Justice Harlan and the Uses of Dissent, 49 AM. POL. SCI. REV. 1085, 1092 (1955) (describing Harlan's Plessy dissent as "directly and highly influential, one may assume, in the School Segregation Cases");
247. Louis H. Pollak, The Supreme Court Under Fire, 6 J. PUB. L. 428, 438 (1957) ("In short, the opinion in the School Segregation Cases might have been helped by a crisper statement that. . . 'Our Constitution is color-blind ....'"
248. (quoting Plessy, 163 U.S. at 559 (Harlan, J., dissenting) ) ).
249. "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." Plessy, 163 U.S. at 559 (Harlan, J., dissenting) (emphasis added).
250. Prelude to Freedom, CHI. DEFENDER, May 29, 1954, at 11.
251. Equality Redefined, BOSTON HERALD, May 18, 1954, reprinted in BROWN V. BOARD OF EDUCATION: A Brief History with Documents 205, 205 (Waldo E. Martin Jr. ed., 1998).
252. Black, supra note 55, at 428.
253. James Reston, A Sociological Decision, N.Y. TIMES, May 18, 1954, at 14.
254. See, e.g-., Cahn, supra note 2.
255. ARGUMENT, supra note 93, at 47.
256. Id.
257. Id. at 48.
258. Id. at 49;
259. see also id. at 78 (recording Spotswood W. Robinson, a lawyer for the students in the Virginia case, arguing that "under the circumstances, what you do is, you simply make all the facilities in the county available to all the pupils, without restriction or assignment to particular schools on the basis of race").
260. Briggs v. Elliott, 132 F. Supp. 776, 777 (E.D.S.C 1955) ("The Constitution . . . does not require integration. It merely forbids discrimination. It does not forbid such segregation as occurs as the result of voluntary action. It merely forbids the use of governmental power to enforce segregation.").
261. See Mark V. Tushnet, The Supreme Court's Two Principles of Equality: From Brown to 2003, in FROM THE GRASSROOTS TO THE SUPREME COURT: Brown v. Board of Education and American Democracy 340 (Peter F. Lau ed., 2004).
262. ARGUMENT, supra note 93, at 431-32.
263. Siegel, supra note 18, at 1477.
264. Strauss, supra note 21.
265. Siegel, supra note 18, at 1533.
266. But see id. at 1478 ("In law and in popular debate, Brown is often invoked as an opinion prohibiting states from classifying on the basis of race. But in so recalling Brown, we reason from an understanding that emerged from struggles over enforcement of the decision, rather than from an understanding that prevailed at the time the case was decided.").
267. See generally Schmidt, supra note 143, at 24-111.
268. DAVID A. HOLLINGER, POSTETHNIC AMERICA: BEYOND MULTICULTURALISM 51-77 (1995).
269. WENDELL L. WILLKIE, ONE WORLD (1943).
270. CAREY MCWILLIAMS, BROTHERS UNDER THE SKIN (1943).
271. EDWARD STEICHEN, THE FAMILY OF MAN (1955).
272. WALTER WHITE, A MAN CALLED WHITE 364 (1948).