Taking the Name Brown in Vain: Separate But Equal, Brown and the Harvard Case

Abstract

In Students for Fair Admissions v. Harvard, Chief Justice Roberts, Justice Thomas and Justice Sotomayor all make pretty shabby misuse of Brown v. Board of Education.  They write as if Brown established broad equal protection rules that tell us how the Harvard case should come out.  That's wrong.  Brown was about the legitimacy of "separate but equal," a short circuit around standard equal protection analysis.  While Brown could have said something about conventional equal protection, it didn’t.  Its worse than just that.  The Chief and Justice Thomas leave out critical language from early cases saying the 14^th amendment was designed to protect racial minorities, often from quotes.  Instead they give us summarizing language saying the 14^th  was designed to end all racial discrimination.  They cherry pick helpful lines from arguments the NAACP Legal Defense and Educational Fund made in Brown to make the case that these iconic lawyers shared their views of equal protection.  All the while they ignore the arguments those lawyers urged most forcefully in Brown, that the purpose of the 14^th amendment was to help and protect Black people.  It is bad history, appalling and at times dishonest lawyering, and a shameful attempt to pin the result in Harvard on some of the greatest heroes in American law.  We deserve better from the Supreme Court. 

Keywords: Brown v. Board of Education, Affirmative Action, Race Discrimination, Separate but equal, Students for Fair Admissions v. Harvard, US Constitution, Equal protection