Brown Now: The Surprising Possibility of Progressive Reform

Abstract

For four decades, the Supreme Court has engaged in a determined, systematic and successful effort to transform and tame Brown v. Board of Education. But in this article, written for a symposium on Brown at 70, I suggest a surprising counterweight to the standard narrative. If one takes modern doctrine seriously - a big if, I concede - it has the potential to support some progressive goals.


In particular, modern doctrine might provide progressives answers to three questions:


1. Are race-conscious but facially neutral means of increasing diversity at state institutions of higher education constitutional?

2. Are legacy admissions to state run institutions of higher education constitutionally vulnerable?

3. Is discrimination based on sexual orientation subject to heightened scrutiny?