On June 29, 2023, the US Supreme Court decided the cases Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, et al. In the majority and dissenting opinions, several justices continued the debate over the meaning of the Brown v. Board of Education decision issued by the Supreme Court in 1954. The full text of the 237-page decision and opinions cited in this article may be found in pdf format at the. Note: Each justice’s opinion is paginated separately from the others.
Majority Opinion: Brown v. Board of Education “Invalidated All Manner of Race-Based State Action"
As Chief Justice John Roberts stated, “In these cases we consider whether the admissions systems used by Harvard College and the University of North Carolina, two of the oldest institutions of higher learning in the United States, are lawful under the Equal Protection Clause of the Fourteenth Amendment" (p. 1). In section III of the majority’s analysis, the court argued (pp. 11-13):
After Plessy, “American courts... labored with the doctrine [of separate but equal] for over half a century." Brown v. Board of Education, 347 U. S. 483, 491 (1954). Some cases in this period attempted to curtail the perniciousness of the doctrine by emphasizing that it required States to provide black students educational opportunities equal to- even if formally separate from-those enjoyed by white students. See, e.g., Missouri ex rel. Gaines v. Canada, 305 U. S. 337, 349-350 (1938) (“The admissibility of laws separating the races in the enjoyment of privileges afforded by the State rests wholly upon the equality of the privileges which the laws give to the separated groups...."). But the inherent folly of that approach-of trying to derive equality from inequality-soon became apparent. As the Court subsequently recognized, even racial distinctions that were argued to have no palpable effect worked to subordinate the afflicted students. See, e.g., McLaurin v. Oklahoma State Regents for Higher Ed., 339 U. S. 637, 640-642 (1950) (“It is said that the separations imposed by the State in this case are in form merely nominal.... But they signify that the State... sets [petitioner] apart from the other students."). By 1950, the inevitable truth of the Fourteenth Amendment had thus begun to reemerge: Separate cannot be equal.
The culmination of this approach came finally in Brown v. Board of Education. In that seminal decision, we overturned Plessy for good and set firmly on the path of invalidating all de jure racial discrimination by the States and Federal Government. 347 U. S., at 494-495. Brown concerned the permissibility of racial segregation in public schools. The school district maintained that such segregation was lawful because the schools provided to black students and white students were of roughly the same quality. But we held such segregation impermissible “even though the physical facilities and other ‘tangible’ factors may be equal." Id., at 493 (emphasis added). The mere act of separating “children... because of their race," we explained, itself “generate[d] a feeling of inferiority." Id., at 494.
The conclusion reached by the Brown Court was thus unmistakably clear: the right to a public education “must be made available to all on equal terms." Id., at 493. As the plaintiffs had argued, “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." Tr. of Oral Arg. in Brown I, O. T. 1952, No. 8, p. 7 (Robert L. Carter, Dec. 9, 1952); see also Supp. Brief for Appellants on Reargument in Nos. 1, 2, and 4, and for Respondents in No. 10, in Brown v. Board of Education, O. T. 1953, p. 65 (“That the Constitution is color blind is our dedicated belief."); post, at 39, n. 7 (THOMAS, J., concurring). The Court reiterated that rule just one year later, holding that “full compliance" with Brown required schools to admit students “on a racially nondiscriminatory basis." Brown v. Board of Education, 349 U. S. 294, 300-301 (1955). The time for making distinctions based on race had passed. Brown, the Court observed, “declar[ed] the fundamental principle that racial discrimination in public education is unconstitutional." Id., at 298.
So too in other areas of life. Immediately after Brown, we began routinely affirming lower court decisions that invalidated all manner of race-based state action....
After many pages of historical and legal analysis, the majority opinion takes on the dissenting justices and returns to the Brown decision (pp. 38-39), and even goes back to the Plessy decision that Brown overturned:
Most troubling of all is what the dissent must make these omissions to defend: a judiciary that picks winners and losers based on the color of their skin. While the dissent would certainly not permit university programs that discriminated against black and Latino applicants, it is perfectly willing to let the programs here continue. In its view, this Court is supposed to tell state actors when they have picked the right races to benefit. Separate but equal is “inherently unequal," said Brown. 347 U.S., at 495 (emphasis added). It depends, says the dissent.
That is a remarkable view of the judicial role-remarkably wrong. Lost in the false pretense of judicial humility that the dissent espouses is a claim to power so radical, so destructive, that it required a Second Founding to undo. “Justice Harlan knew better," one of the dissents decrees. Post, at 5 (opinion of JACKSON, J.). Indeed he did:
“[I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." Plessy, 163 U. S., at 559 (Harlan, J., dissenting).
In prohibiting race-based admissions factors at the university level, the court concluded that:
In other words, the student must be treated based on his or her experiences as an individual-not on the basis of race. Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice. (p. 40)
Justice Thomas Concurs with the Majority: “The Alleged Educational Benefits of Diversity Cannot Justify Racial Discrimination Today"
Justice Clarence Thomas concurred with the majority and issued his own opinion, which also cites the Brown decision as he elaborated on his interpretation of race and the intent of the Fourteenth Amendment.
I do not contend that all of the individuals who put forth and ratified the Fourteenth Amendment universally believed this to be true [that all citizens of the U.S., regardless of skin color, are equal before the law]. Some Members of the proposing Congress, for example, opposed the Amendment. And, the historical record-particularly with respect to the debates on ratification in the States-is sparse. Nonetheless, substantial evidence suggests that the Fourteenth Amendment was passed to “establis[h] the broad constitutional principle of full and complete equality of all persons under the law," forbidding “all legal distinctions based on race or color." Supp. Brief for United States on Reargument in Brown v. Board of Education, O. T. 1953, No. 1 etc., p. 115 (U. S. Brown Reargument Brief ). (p. 3)
Later, Thomas returns to Brown in arguing that what some would call reverse discrimination or affirmative action-giving one group preference to address inequalities of the past-is unconstitutional.
For this reason, “just as the alleged educational benefits of segregation were insufficient to justify racial discrimination [in the 1950s], see Brown v. Board of Education, the alleged educational benefits of diversity cannot justify racial discrimination today." Fisher I, 570 U.S., at 320 (THOMAS, J., concurring) (citation omitted). (p. 26)
Several pages later, Thomas refers to Brown again. In contrast to the “separate but equal" doctrine the court affirmed in 1896 in the Plessy decision:
This Court rightly reversed course in Brown v. Board of Education. The Brown appellants-those challenging segregated schools-embraced the equality principle, arguing that “[a] racial criterion is a constitutional irrelevance, and is not saved from condemnation even though dictated by a sincere desire to avoid the possibility of violence or race friction." Appellants in Brown v. Board of Education, O. T. 1952, No. 1, p. 7 (citation omitted).6 Embracing that view, the Court held that “in the field of public education the doctrine of ‘separate but equal’ has no place" and “[s]eparate educational facilities are inherently unequal." Brown, 347 U. S., at 493, 495. Importantly, in reaching this conclusion, Brown did not rely on the particular qualities of the Kansas schools. The mere separation of students on the basis of race-the “segregation complained of," id., at 495 (emphasis added)-constituted a constitutional injury. See ante, at 12 (“Separate cannot be equal").
Just a few years later, the Court’s application of Brown made explicit what was already forcefully implied: “[O]ur decisions have foreclosed any possible contention that... a statute or regulation" fostering segregation in public facilities “may stand consistently with the Fourteenth Amendment." Turner v. Memphis, 369 U. S. 350, 353 (1962) (per curiam); cf. A. Blaustein & C. Ferguson, Desegregation and the Law: The Meaning and Effect of the School Segregation Cases 145 (rev. 2d ed. 1962) (arguing that the Court in Brown had “adopt[ed] a constitutional standard" declaring “that all classification by race is unconstitutional per se")....
The Court today reaffirms the rule, stating that, following Brown, “[t]he time for making distinctions based on race had passed." Ante, at 13. “What was wrong" when the Court decided Brown “in 1954 cannot be right today." Parents Involved, 551 U. S., at 778 (THOMAS, J., concurring). Rather, we must adhere to the promise of equality under the law declared by the Declaration of Independence and codified by the Fourteenth Amendment. (pp. 36-37)
[Footnote 6 from above: Briefing in a case consolidated with Brown stated the colorblind position forthrightly: Classifications “[b]ased [s]olely on [r]ace or [c]olor" “can never be" constitutional. Juris. Statement in Briggs v. Elliott, O. T. 1951, No. 273, pp. 20-21, 25, 29; see also Juris. Statement in Davis v. County School Bd. of Prince Edward Cty., O. T. 1952, No. 191, p. 8 (“Indeed, we 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.... For this reason alone, we submit, the state separate school laws in this case must fall").]
In the next section of his opinion, Thomas returns to the Virginia case from Prince Edward County decided as part of the Brown v. Board of Education decision in 1954. Here, he asserts that affirmative action in these 2023 cases is a form of racial discrimination for the good of black students.
Arguments for the benefits of race-based solutions have proved pernicious in segregationist circles. Segregated universities once argued that race-based discrimination was needed “to preserve harmony and peace and at the same time furnish equal education to both groups." Brief for Respondents in Sweatt v. Painter, O. T. 1949, No. 44, p. 94; see also id., at 79 (“‘[T]he mores of racial relationships are such as to rule out, for the present at least, any possibility of admitting white persons and Negroes to the same institutions’ "). And, parties consistently attempted to convince the Court that the time was not right to disrupt segregationist systems. See Brief for Appellees in McLaurin v. O lahoma State Regents for Higher Ed., O. T. 1949, No. 34, p. 12 (claiming that a holding rejecting separate but equal would “necessarily result... [i]n the abandoning of many of the state’s existing educational establishments" and the “crowding of other such establishments"); Brief for State of Kansas on Reargument in Brown v. Board of Education, O. T. 1953, No. 1, p. 56 (“We grant that segregation may not be the ethical or political ideal. At the same time we recognize that practical considerations may prevent realization of the ideal"); Tr. of Oral Arg. in Davis v. School Bd. of Prince Edward Cty., O. T. 1954, No. 3, p. 208 (“We are up against the proposition: What does the Negro profit if he procures an immediate detailed decree from this Court now and then impairs or mars or destroys the public school system in Prince Edward County"). Litigants have even gone so far as to offer straight-faced arguments that segregation has practical benefits. Brief for Respondents in Sweatt v. Painter, at 77-78 (requesting deference to a state law, observing that “ ‘the necessity for such separation [of the races] still exists in the interest of public welfare, safety, harmony, health, and recreation...’ " and remarking on the reasonableness of the position); Brief for Appellees in Davis v. County School Bd. of Prince Edward Cty., O. T. 1952, No. 3, p. 17 (“Virginia has established segregation in certain fields as a part of her public policy to prevent violence and reduce resentment. The result, in the view of an overwhelming Virginia majority, has been to improve the relationship between the different races"); id., at 25 (“If segregation be stricken down, the general welfare will be definitely harmed... there would be more friction developed" (internal quotation marks omitted)). In fact, slaveholders once “argued that slavery was a ‘positive good’ that civilized blacks and elevated them in every dimension of life," and “segregationists similarly asserted that segregation was not only benign, but good for black students." Fisher I, 570 U. S., at 328-329 (THOMAS, J., concurring).
“Indeed, if our history has taught us anything, it has taught us to beware of elites bearing racial theories." Parents Involved, 551 U. S., at 780-781 (THOMAS, J., concur- ring). We cannot now blink reality to pretend, as the dissents urge, that affirmative action should be legally permissible merely because the experts assure us that it is “good" for black students. Though I do not doubt the sincerity of my dissenting colleagues’ beliefs, experts and elites have been wrong before-and they may prove to be wrong again. In part for this reason, the Fourteenth Amendment outlaws government-sanctioned racial discrimination of all types. The stakes are simply too high to gamble. Then, as now, the views that motivated Dred Scott and Plessy have not been confined to the past, and we must remain ever vigilant against all forms of racial discrimination. (pp.37-39)
Before taking on Justice Jackson’s dissent [see below], Justice Thomas concludes that:
The solution to our Nation’s racial problems thus cannot come from policies grounded in affirmative action or some other conception of equity. Racialism simply cannot be un- done by different or more racialism. Instead, the solution announced in the second founding is incorporated in our Constitution: that we are all equal, and should be treated equally before the law without regard to our race. Only that promise can allow us to look past our differing skin colors and identities and see each other for what we truly are: individuals with unique thoughts, perspectives, and goals, but with equal dignity and equal rights under the law. (pp. 48-49)
Source: U.S. Department of the Interior, National Park Service