This episode of Justice Above All examines how the Supreme Court interpreted the Fourteenth Amendment’s Equal Protection Clause in Brown v. Board of Education (1954), and how today’s legal arguments decontextualize the Amendment’s historical context in which it was ratified—during Reconstruction, to secure full citizenship and legal equality for formerly enslaved Black people. Today, multiple Supreme Court decisions reflect an inaccurate and ahistorical reading of the Reconstruction Amendments—the Thirteenth, Fourteenth, and Fifteenth—which were enacted to dismantle the legacy of slavery and secure full citizenship and equal protection under the law for all people of African descent.
Director, Thurgood Marshall Institute
Alumna, Ludlow Elementary School and President, LKA Strategies
Civil and human rights advocate, filmmaker, and the son of Constance Baker Motley
Chief Justice Earl Warren Professor of Constitutional Law, NYU School of Law and Faculty Director, Meltzer Center for Diversity, Inclusion, and Belonging
Constance Baker Motley was a trailblazer who opened the doors for Black woman lawyers. She was the first Black woman attorney to work at the Legal Defense Fund (LDF), the first Black woman to argue before the Supreme Court, and the first Black woman to serve as a federal judge. Motley was also the first Black woman to serve in the New York State Senate and first woman to be the Manhattan Borough President.
Motley was hired as a law clerk at LDF in 1945 and was promoted to the role of Assistant Special Counsel shortly after, in 1949. Motley litigated every major school desegregation case on LDF’s docket until 1964. Additionally, Motley drafted the original complaint for Brown. Unfortunately, immediately after Brown, then-Virginia Senator Harry Byrd called for southern states to engage in Massive Resistance, a strategy that vehemently opposed the Brown decision and worked to prevent school integration.
Seven years after Brown, Motley litigated another school desegregation case: Meredith v. Fair. James Meredith, the Plaintiff, was a young Black man, Air Force veteran, and Mississippi native who was seeking admission to the University of Mississippi. He filed a lawsuit in which he claimed that he was denied admission to the University of Mississippi on account of his race. In 1962, U.S. Supreme Court Justice Hugo Black issued an in-chambers opinion vacating the U.S. Court of Appeals for the Fifth Circuit’s order that would have prevented Meredith from enrolling at the University of Mississippi, in violation of his equal protection rights under the Fourteenth Amendment to the U.S. Constitution. In issuing this opinion, the Court mandated the integration of the University of Mississippi. On October 1, 1962, James Meredith became the first Black student to attend the University of Mississippi. Litigating the case was difficult for Motley in part due to the hostile environment at the University of Mississippi. When the Supreme Court’s decision was announced, riots broke out on the University of Mississippi’s campus. Despite then-U.S. President John F. Kennedy and U.S. Attorney General Robert F. Kennedy ordering Meredith to have U.S. Marshals escort him to campus to register, Meredith was almost killed amongst the chaos. Motley referred to this case as “the last battle of the Civil War.”
In the decades after the Civil War, southern states enacted racial apartheid laws, also known as Jim Crow laws, to deprive Black people of their full citizenship and equal protection under the law, which they had been constitutionally granted under the Thirteenth, Fourteenth, and Fifteenth Amendments, also known as the Reconstruction Amendments. These amendments abolished slavery and involuntary servitude, with the exception of those people who had committed a crime, granted citizenship to those who were born in the United States, and expanded the right to vote to many more citizens, regardless of race, color, or previous condition of servitude. The Fourteenth Amendment includes the Equal Protection Clause which ensures that state governments do not treat people differently because of their race.
Brown, which consolidated five cases filed on behalf of students, called for the end of state-sanctioned segregation in public education under the Fourteenth Amendment’s Equal Protection Clause. LDF lawyers presented their oral argument to the Supreme Court in December 1952.
The Court called for a second oral argument, which was heard in December 1953 and asked the lawyers to clarify whether the Fourteenth Amendment’s Equal Protection Clause prohibited the operation of separate public schools for Black and white children. Before Brown’s re-argument before the Supreme Court in 1953, Thurgood Marshall enlisted the help of social scientists, including historians Dr. John Hope Franklin and Dr. Horace Bond, to understand what the writers of the Fourteenth Amendment originally intended. Through the social scientists’ research, the team found evidence that allowed the lawyers to argue that the writers intended for the Amendment to usher in legal equality for Black Americans. One of the Amendment’s writers, Pennsylvania’s former Representative Thaddeus Stevens, was buried in the only burial ground in Lancaster, Pennsylvania where Black and white people could be buried side by side at that point in time.
Brown was the first time since Plessy v. Ferguson that a Supreme Court case directly re-examined Plessy’s “separate but equal” doctrine. Brown set a legal precedent by overturning enforced segregation in public spaces. As a result, Black children like our episode guest, Lynne Adrine, were able to attend integrated schools
The colorblind doctrine dates back to 1896 when former Supreme Court Justice John Marshall Harlan presented his dissenting opinion in Plessy v. Ferguson. Justice Harlan was the lone dissenter, and said in his dissent, “There is no caste here. Our constitution is colorblind, and neither knows nor tolerates classes among citizens.”
There are two popular interpretations of the Fourteenth Amendment amongst legal scholars: the anti-classification view and the anti-subordination view. The anti-classification view, aka colorblindness theory, is the idea that people within the government should not use race for any purpose whatsoever without raising the highest level of judicial skepticism known as strict scrutiny review. The reason for that is that if we allow the government to use race-based classifications, it teaches us all as citizens to view each other on the basis of our racial characteristics. It also implies that we will be better off if we all attempt to diminish the salience of race in our lives. On the other hand, the anti-subordination view says that race-based classifications in and of themselves are not problematic. Instead, it is how race-based classifications are used that can be problematic. There are forms of race-based classifications that can be used to remedy a history of discrimination, and the anti-subordination view of the Fourteenth Amendment can be used to recognize the impact of race-consciousness.
As our guest Professor Kenji Yoshino shared, it was clear that the writers of the Fourteenth Amendment wanted to embrace an anti-subordination view. Recently, anti-classification views have surfaced in Supreme Court opinions for education equity cases, such as Parents Involved in Community Schools v. Seattle School District No. 1. In Parents Involved, the Court ruled that it was unconstitutional for a school district to use race as a factor in assigning students to schools to bring its racial composition in line with its district. In the Court’s opinion, Chief Justice Roberts stated, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” This approach is ahistorical.
Race-conscious admissions goes against the anti-classification doctrine since it is designed to remedy the negative impact of wrongful, and usually racial, discrimination. One recent example of this was when the U.S. Supreme Court issued its decision in SFFA v. Harvard and SFFA v. University of North Carolina and ruled that the race-conscious admissions policies of Harvard and the University of North Carolina (UNC) are unconstitutional. In 2023, the Court found that Harvard and the University of North Carolina’s affirmative action programs violate the Equal Protection Clause of the Fourteenth Amendment. This devastating decision overruled fourty-five years of precedent established in prior Supreme Court decisions, including Regents of the University of California v. Bakke, Grutter v. Bollinger, and Fisher v. University of Texas. However, the Court’s ruling still allows colleges to consider how race has affected a student’s life and their ability to contribute to the educational institution.
In its decision in the Harvard and UNC cases, the Court distorted the legacy of Brown which rejected the separate but equal doctrine and mandated the elimination of state-sponsored racial segregation in our educational system. Brown held that society must not ignore racial inequality and can take necessary measures to address it, including through race-conscious means. Brown advanced racial equity and expanded access to educational settings from which Black students had long been excluded under a racial caste system. It is ahistorical for the Court to cite this historic decision to justify dismantling programs that expand educational opportunity for Black students and other students of color.
In her dissent for SFFA v. Harvard and SFFA v. University of North Carolina (UNC), Justice Sonia Sotomayor referenced LDF’s amicus brief and said, “If there was a member of this Court who understood the Brown litigation, it was Justice Thurgood Marshall, who ‘led the litigation campaign’ to dismantle segregation as a civil rights lawyer and ‘rejected the hollow, race-ignorant conception of equal protection’ endorsed by the Court’s ruling today … The Court’s recharacterization of Brown is nothing but revisionist history and an affront to the legendary life of Justice Marshall, a great jurist who was a champion of true equal opportunity, not rhetorical flourishes about colorblindness.”
By Kenji Yoshino
ABC News, 2004
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