Legal scholar: Justices vie for ‘historical memory’ of school desegregation opinion

The U.S. Supreme Court’s 2007 opinion tossing out a Seattle school desegregation plan wasn’t just about deciding a matter of law, Harvard legal scholar Mark Tushnet told an Indiana University audience Friday. The court also was taking sides in a battle over historical memory.

In particular, the decision laid claim to the legacy of Brown v. Board of Education, the landmark 1954 decision that said racially segregated public schools were unconstitutional.

Mark Tushnet

Mark Tushnet

“Brown has become what people call a fixed point in constitutional history,” Tushnet said. He presented the IU Maurer School of Law’s annual Jerome Hall Lecture Thursday, launching a semester-long observance of the 60th anniversary of Brown v. Board of Education.

Tushnet, the William Nelson Cromwell Professor of Law at Harvard, said Chief Justice John Roberts made strategic choices in the opinion that prevailed in a 5-4 decision against the Seattle school district. Roberts wrapped the opinion in the mantle of the Brown decision, a touchstone for generations of judges, lawyers and activists. He used it to conclude that laws should not make distinctions by race.

Roberts quoted from an argument by Robert Carter, one of the attorneys for plaintiffs in the Brown litigation, to the effect that “no State has any authority … to use race as a factor in affording educational opportunities among its citizens.” Never mind that Carter, then a federal judge, said in 2007 that Roberts’ opinion turned his own argument “on its head.” Or that Jack Greenburg, another attorney for the plaintiffs, called the chief justice’s interpretation “preposterous.”

Tushnet said neither Roberts nor the justices who dissented in the case, Parents Involved in Community Schools v. Seattle School District No. 1, were plainly wrong in the lessons they took from the Brown decision. But the disagreement is interesting, he said, in the way it reverses roles for constitutional conservatives, who typically support rule-based decisions, and liberals, who favor standards.

By citing Brown v. Board of Education, he said, Roberts treated the Constitution as “a living document,” not a typical conservative position. His critics looked back to 1868 and the ratification of the 14th Amendment with its guarantee of “equal protection of the laws” for all citizens.

Tushnet said Roberts also made a strategic choice by quoting Robert Carter rather than Brown v. Board attorney Thurgood Marshall, who later spent 24 years on the Supreme Court and consistently supported civil rights. Marshall served with three justices who were on the court in 2007. Cloaking the Parents Involved opinion in Marshall’s authority, Tushnet said, would have been seen as an insult.

The Maurer School of Law’s “Brown at 60” series continues Oct. 15 with a lecture by longtime civil rights leader Julian Bond. Video of Tushnet’s lecture will be posted to the school’s YouTube channel.

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