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Ronald Turner

Ronald Turner, PLESSY 2.0, 13 Lewis & Clark Law Review 861 - 919 (Winter 2009) (380 Footnotes Omitted)

In matters of race and, more specifically, racial integration, those who have come to the U.S. Supreme Court seeking race-conscious and integration-protective constructions of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution have experienced the reality that the mandated “equal protection of the laws” has been and continues to be elusive and often illusive. Consider, in this regard, three cases decided by the Court at various points in a span of time beginning in the late nineteenth century and ending in the early twenty-first century.

The Court's infamous 1896 decision in Plessy v. Ferguson held that a Louisiana statute requiring separate but (in reality not) equal railway accommodations for black and white passengers did not violate the Equal Protection Clause. In so holding, the Court reasoned that the challenged law was a “reasonable regulation” and that Louisiana was “at liberty to act with reference to the established usages, customs and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order.” To those who believed (correctly) that this “enforced separation of the two races stamps the colored race with a badge of inferiority,” the Court opined that any such inferiority was “not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”

Fifty years later, in its unanimous opinion in Brown v. Board of Education (Brown I), the Court's “greatest anti-discrimination decision,” the Court rejected Plessy's approach to, and construction of, the Equal Protection Clause as applied in the context of elementary and secondary public school education. Chief Justice Earl Warren, writing for the Court, stated that the separation of black children “from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” Racial segregation “in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law . . . .”

Most recently, and 111 years after Plessy, the Court in Parents Involved in Community Schools v. Seattle School District No. 1 held that racial integration and diversity plans voluntarily adopted by public school districts in Seattle, Washington and in the Louisville, Kentucky metropolitan area violated the Equal Protection Clause. Chief Justice John G. Roberts, Jr., writing for a plurality of the Court, opined that those who sought the invalidation of the plans were “more faithful to the heritage” of Brown I. In support of this position, Roberts quoted the following passage in the Brown I plaintiffs' 1952 brief to the Court: “‘[T]he Fourteenth Amendment prevents states from according differential treatment to American children on the basis of their color or race.”’ “What do the racial classifications at issue here do,” Roberts asked, “if not accord differential treatment on the basis of race” and “determine admission to a public school on a racial basis?” The Parents Involved plurality thus placed the Brown I plaintiffs and their lawyers who fought American apartheid's unconstitutional, exclusionary, and immoral subordination of African-Americans on the same side as those who asked the Court to strike down Seattle and Louisville's voluntary efforts to address the vestiges, consequences, and current manifestations of this Nation's lived and living experiences with race and racism.

Parents Involved is a significant and troubling development in the historical and ongoing debate over the legal and sociopolitical meaning of the Equal Protection Clause as applied to raced and racialized persons of color. Chief Justice Roberts' plurality opinion, resurrecting and reflecting the formalism of the Court's pre-1900 equal protection analysis, ignored the historical and social meanings of race as it decided the constitutionality of the at-issue integration plans. To interpret and apply the clause as if history had not occurred, to act as though the past is not connected to the current realities of racial segregation and resegregation, is to insulate entrenched racial hierarchy and the racial status quo from integrative change. To decide whether and which integrationist measures are permitted or prohibited by the Equal Protection Clause via an interpretive approach in which all race-conscious governmental decision making, the exclusive as well as the inclusive, is the same, is to place beyond the reach of the clause racialism in the real, and not in some imagined, world. In these respects, the Parents Involved plurality opinion is reminiscent of, and resurrects certain aspects of, Plessy.

This Article addresses Plessy and Parents Involved's analytical commonalities and formalistic approaches to, and constructions of, the Equal Protection Clause. The discussion unfolds as follows. Part II begins with an overview of important constitutional, legal, and political developments preceding the Court's decision in Plessy, and then examines the Court's negative answer to the question whether Louisiana's separate-but-equal statute violated the Equal Protection Clause. Part III turns to and discusses Brown and the Court's break with the Plessy analysis and worldview. Parts IV, V, and VI explore the resistance to Brown and, more specifically, the ways in which President Richard M. Nixon and the Burger and Rehnquist Courts contributed to the bleaching of the seminal 1954 decision. Part VII focuses on and critiques Chief Justice Roberts' and Justices Clarence Thomas and Anthony Kennedy's opinions in Parents Involved, and contends that certain features of the Court's 2007 ruling are reminiscent of the formalism and reality-blindness on display in Plessy. As argued herein, Parents Involved is an important exemplar and reminder of the ways in which constitutional law and history can be circular rather than linear, regressive rather than progressive.