CREATORS
May 13, 2025
In 1896, the U.S. Supreme Court issued a ruling that held
racial segregation laws did not violate the U.S. Constitution as long as the
facilities for each race were equal in quality. Justice Henry Billings Brown
wrote the majority opinion in Plessy v. Ferguson.
Six justices joined with Brown, who opined that although the
Fourteenth Amendment guaranteed the legal equality of all races in the United
States, "it was not intended to prevent social or other types of
discrimination."
The much-maligned decision in Plessy remained in effect
about education for 58 years. Finally, on May 17, 1954, the Supreme Court
decided Brown v. Board of Education — which held that the "separate but
equal" doctrine was unconstitutional in the context of public schools and
educational facilities.
The Supreme Court issued a unanimous 9-0 decision in favor
of Brown. The Court ruled that "separate educational facilities are
inherently unequal," and therefore laws that impose them violate the Equal
Protection Clause of the Fourteenth Amendment.
Brown paved the way for minority students to have a fair and
equal education. In 1974, the Equal Educational Opportunities Act was
established, prohibiting discrimination against faculty, staff and students.
This included racial segregation of students and required school districts to
take action to overcome barriers to students' equal participation.
However, 69 years after Brown, the Supreme Court rejected
affirmative action at schools of higher education, declaring that the
race-conscious admissions programs at Harvard University and the University of
North Carolina were unlawful, eliminating a pillar of higher education.
In Students for Fair Admissions v. President and Fellows of
Harvard College and SFFA v. University of North Carolina, the Brown decision
was often quoted in the 230 pages of opinions.
The Supreme Court held that state laws cannot favor one race
over another, that the equal protection clause requires equal treatment under
the law for everyone "without regard to race or color." The decisions
turned the Brown decision on its head. Affirmative action — which had been used
to level the playing field for minority students was now considered to be
imposing discriminatory practices on white prospective students.
The landmark decision in Brown, which overturned a legacy of
racism in this country, was used to rationalize an argument eliminating
affirmative action. The decisions in Harvard and North Carolina will, as Adam
Liptak wrote in The New York Times, "(A)ll but ensured that the student population
at the campuses of elite institutions would become whiter and more Asian and
less Black and Latino."
Then came President Donald Trump's second term. Almost
immediately upon taking office, a letter went out to state education leaders
across the country, suggesting Title I funding — targeted to schools with a
high proportion of low-income students — would be cut if the use of Diversity,
Equity, & Inclusion (DEI) programs continued.
School and state officials were asked to sign a
certification or "loyalty oath" and return it to the U.S Department
of Education acknowledging they are complying with the directive. The oath has
been challenged in court.
In light of an unsympathetic Supreme Court and an
administration bent on rewriting the history of discrimination in this country,
advocates for racial equality are fighting back. They have turned to state
constitutions and state courts to fight "resegregation."
State judges in New Jersey and Minnesota have interpreted
their respective state constitutions as imposing responsibility on the state to
remedy racial discrimination. Expect more states to look to their state
constitution for relief, while other states relish the federal government's
undoing of years of progress toward racial equity.
Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book The Executioner's Toll, 2010 was released by
McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter @MatthewTMangino
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