Sixty Years Later, We Need a New Brown

Editor's note:

This article was published in The New Yorker

Lee C. Bollinger
May 16, 2014

Sixty years ago this Saturday, on May 17, 1954, a unanimous Supreme Court held that state segregation of black schoolchildren was unconstitutional. Brown v. Board of Education marked a signal moment in American history—not only constitutional history. In the turbulent years that followed, the nation struggled to come to terms with the legacy of centuries of mistreatment of African-Americans and other minorities. But, while race was at the core of Brown, the decision affected virtually every aspect of American life: the criminal-justice system, the meaning of citizenship and democracy, and even freedom of speech and freedom of the press. The decision was not just about schools; it was about the nation living up to its own professed ideas. By addressing, and dealing with, racial injustice, the Supreme Court spoke to every sector of society—and every sector responded.

By the nineteen-seventies, almost all selective colleges and universities in the United States had adopted policies of affirmative action, and began to consider applicants’ race or ethnicity, in order to achieve a “critical mass” of African-Americans, Hispanics, and Native Americans in their student bodies. These efforts, which took place at around the same time that the doors of academe were more fully opened to women, radically changed the composition of student bodies. Other institutions, including the military and businesses, made similar efforts to diversify their personnel. The effect on modern American life was spectacular, and one of the most consequential transformations was a new and shared acknowledgment of America’s racial history, and the pervasive and lingering impact of that history right up to the present day.

But, as the third post-Brown generation comes of age, there are reasons to be alarmed that this shared understanding no longer exists—and reasons to fear that the noble dream expressed in Brown, of creating an inclusive and integrated society, is on the precipice of being forgotten.

The beginning of that dream’s decline can be traced to 1978, and Justice Lewis Powell’s famous opinion in the Supreme Court’s Bakke decision—the first case to consider the constitutionality of affirmative action. The medical school at the University of California, Davis, had set aside a specified number of seats for historically disadvantaged minorities. The policy was successfully challenged, with the Supreme Court holding that a system of “quotas” was impermissible. Powell’s opinion, which provided the controlling guidance about the legality of admissions policies, made a fateful distinction. If the goal of such policies was to help “certain groups … perceived as victims of ‘societal discrimination,’ ” they would violate the Constitution, because this “imposes disadvantages upon persons … who bear no responsibility” for earlier discrimination.

Powell’s opinion forbade polices that helped members of “relatively victimized groups at the expense of other innocent individuals.” On the other hand, he said, universities could consider race and ethnicity to create “a diverse student body” and an atmosphere of “speculation, experiment and creation” for the purpose of training leaders “through wide exposure to the ideas and mores of students as diverse as this Nation of many peoples.”

Every university dean and president knows Powell’s distinction and follows it scrupulously; every university general counsel stands ready to insure they do. Rather than linking considerations of race in admissions to the ongoing effect of centuries of mistreatment, we speak vaguely—but passionately—about the educational benefits of diversity in every speech, publication, convocation, and commencement ceremony.

By de-coupling “diversity” from the realities of race past and present, the rationale for these admissions policies sounds hollow and banal—a shortcoming that is not lost on the young people we educate or the broader public we should inspire.

"As a result, our public debate on affirmative action—and, more broadly, on race in America—now consists of bloodless legal pronouncements disconnected from history, aberrational constitutional law, vague claims that we live in a “post-racial” society, and unsupportable scholarship."

Where university presidents fear to tread, public officials are even less bold. Very few politicians will incur the political risk perceived to accompany outspoken statements on these issues. Since his election, President Barack Obama has spoken infrequently enough about race that we can quickly catalogue the times he has done so with true passion: the “beer summit” after the controversial arrest of Henry Louis Gates; his response to the recent racist comments made by Donald Sterling, the owner of the Los Angeles Clippers; and, most notably and most powerfully, his unscripted remarks after the acquittal of George Zimmerman in the killing of Trayvon Martin.

As a result, our public debate on affirmative action—and, more broadly, on race in America—now consists of bloodless legal pronouncements disconnected from history, aberrational constitutional law, vague claims that we live in a “post-racial” society, and unsupportable scholarship. In Grutter v. Bollinger, the first Supreme Court decision upholding the constitutionality of affirmative action in higher education, Justice Sandra Day O’Connor added a qualification unseen in any other major constitutional interpretation. Noting that, in the preceding generation, “the number of minority applicants with high grades and test scores has indeed increased,” she went on to say, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” (I was president of the University of Michigan and led the legal and public defense of the university’s policies.) The close, 5–4 decision was a substantial victory for colleges and universities across the country. Unfortunately, O’Connor’s time limitation, completely foreign to constitutional jurisprudence and built on a suspect scaffolding of wishful thinking, made clear that Brown’s legacy was in serious jeopardy.

Of late, an appealing fiction that aids and abets our amnesia about race in America has taken hold among some progressives: on this view, our greatest social problem today is inequality of wealth and income, and so admissions to colleges and universities should take this as their focus. It is further believed, wrongly, that this would produce racially diverse student bodies without requiring us to consider race and ethnicity. While we should indeed make special efforts to admit the children of low-income families, those efforts alone, given the demographics of the United States, would favor white students over minorities. In states where affirmative action has been banned, evidence shows that consideration of income alone cannot approximate the critical mass of black, Hispanic, and Native American students able to benefit a student body. It should also be pointed out that there is important value in having students from all sectors of American life, not just those from low-income families. We value geographic, international, and experiential diversity, too, and no one ever suggests that university student bodies would be well served in those respects by limiting our concern to a population of financially needy applicants.

The cost of this unwillingness to acknowledge the continuing centrality of race in the United States is pervasive and dispiriting. Look at the facts on the ground. Six decades after Brown, forty per cent of black and Hispanic children attend severely segregated primary or secondary schools—those in which ten per cent or fewer of their classmates are white. The reality of effective segregation is, of course, deplorable. But what makes one’s heart sink is the fact that so often things are worse today than a generation ago. In 1988, there were two thousand seven hundred and sixty-two schools in America with white populations of less than one per cent; today there are six thousand seven hundred and twenty-seven.

"This is a bleak and tragic picture, and it should be a reminder that we urgently need a more serious, realistic, and open discussion about race in the United States today. Along with it, we need a new movement like the one that led to Brown—before it is too late, and the issue vanishes beneath another cycle of inattention."

As Pro Publica’s recent story “Segregation Now,” about Tuscaloosa, Alabama’s Central High School, made devastatingly clear, “the city’s schools have seemed to move backwards in time” since a federal judge, in 2000, released them from a court-ordered desegregation mandate. A black teenager like D’Leisha Dent, who is featured in the article, today no longer attends the kind of racially integrated high-quality school that her mother did—but a separate, struggling school serving the poorest part of the city. It is ninety-nine per cent black, effectively as segregated as the one her grandfather attended a half century ago. As the writer, Nikole Hannah-Jones, reported:

"Tuscaloosa’s schools today are not as starkly segregated as they were in 1954, the year the Supreme Court declared an end to separate and unequal education in America. No all-white schools exist anymore—the city’s white students generally attend schools with significant numbers of black students. But while segregation as it is practiced today may be different than it was 60 years ago, it is no less pernicious: in Tuscaloosa and elsewhere, it involves the removal and isolation of poor black and Latino students, in particular, from everyone else. In Tuscaloosa today, nearly one in three black students attends a school that looks as if Brown v. Board of Education never happened."

While public primary and secondary schools are becoming resegregated, we have seen the rise of various methods within states, primarily ballot initiatives, to end affirmative action in higher education. Popular referenda on important public issues are a strange form of democratic decision-making under the best of circumstances—but, when you take a highly charged issue such as affirmative action, and you ask whether “racial preferences” should be disallowed, we know the outcome in advance. This is what happened in California with Proposition 209, in 1996, and in Michigan after the Grutter decision. Four other states (Washington, Nebraska, Arizona, and Oklahoma) have also amended their constitutions in this way.

Last month, in Schuette v. Coalition to Defend Affirmative Action, a majority of the Supreme Court held these popular referenda constitutional. The decision sparked a widely noted debate between those in the majority and Justices Sonia Sotomayor and Ruth Bader Ginsburg, who, in dissent, argued forcefully that to single out particular policies that help disadvantaged minorities and make those policies more difficult to adopt is inconsistent with earlier civil-rights precedents involving fair-housing ordinances and school-busing policies designed to integrate public schools. In her personal and candid opinion, Sotomayor suggested that refusal to recognize the reality of race only reinforces the discrimination that continues to afflict American life.

Now these six states, along with four others banning affirmative action through executive order and legislation, have provided an end-around method of opposition that surely will be seized and exploited. As this happens, experience shows that the gains for minorities in higher education are quickly lost. In both 2011 and 2012, not long after the Michigan constitution was amended through popular referendum, African-American students made up only 2.8 per cent of the University of Michigan Law School graduating class. This marked a sixty per cent drop from the average proportion of black Law School graduates prior to the state’s constitutional amendment, and it represented the lowest percentage at the University of Michigan since the late nineteen-sixties. In the University of California system, only 5.3 per cent of business-school students enrolled in 2012 were underrepresented minorities, less than half the national average at business schools, despite California’s notably diverse population.

The first step to reversing this tide is to bring context to the issues at stake: there are countless policies, attitudes, and persistent practices in American life that had their genesis in an earlier era, and yet still remain partially or fully intact, prolonging the evils of the past. They are largely invisible yet powerfully shape our society. Consider, for example, the funding of our public schools through local property taxes. This foundational reality of American life could be different, but in 1974, by a 5-4 vote, the Supreme Court declined to hold the system unconstitutional. The same general critique applies to the way we establish metropolitan boundaries, determine zoning ordinances, and plan roads, highways, and public transportation.

At the time Brown was decided, the United States was in the process of implementing one of the largest government-led social transformations in human history, transferring “more than $100 billion to create a modern middle class … a sum more than six times the amount spent on Marshall Plan aid in war-torn Europe.” In his extraordinary book, “When Affirmative Action Was White,” my colleague Ira Katznelson documents and explains how multiple policies of the mid-twentieth century, from Social Security and the G.I. Bill to new labor laws and home-mortgage assistance, promoted the modern American middle class. But, by design, “most blacks were left out” and, Katznelson concludes, the “Gordian Knot binding race to class tightened.” Katznelson leaves us with an unassailable directive: “Without attention to this history today, it is hard to know how to proceed.”

So here we are, sixty years after Brown, and fourteen years away from Justice O’Connor’s wishful ending point: popular referenda have become a favored shortcut to terminate affirmative-action programs; we have a constricted and decontextualized manner of discussing race and diversity in higher education; there is a leaderless public debate about these issues; and primary and secondary education is growing more segregated.

This is a bleak and tragic picture, and it should be a reminder that we urgently need a more serious, realistic, and open discussion about race in the United States today. Along with it, we need a new movement like the one that led to Brown—before it is too late, and the issue vanishes beneath another cycle of inattention.

This movement, we know from past experience, can be led from the middle of the political spectrum. During the Grutter lawsuit, as the University of Michigan faced wide public skepticism and I struggled to enlist effective allies, it was former President Gerald Ford, a proud Michigan alumni, who responded to my request that he write about affirmative action, and who first stood up for our case. Ford appealed to the common decency of most Americans from his own personal experience. Writing in the Times, Ford recalled an incident from his days as a college football player, when his close friend Willis Ward, one of the best players on the Michigan squad, withdrew himself from a game at Georgia Tech after the opposing team “reputedly wanted [him] dropped from our roster because he was black.” Ford continued: “I have often wondered how different the world might have been in the 1940’s, 50’s and 60’s—how much more humane and just—if my generation had experienced a more representative sampling of the American family.” President Ford then quoted his Democratic predecessor, Lyndon Johnson: “To be black in a white society is not to stand on level and equal ground. While the races may stand side by side, whites stand on history’s mountain and blacks stand in history’s hollow. Until we overcome that history, we cannot overcome unequal opportunity.”

Together, Johnson and Ford understood what a current majority of our Supreme Court does not. And, in their different ways, they communicated to the American people what a university president cannot.

The nation’s struggle with race may be tiring, but it is not behind us. We need voices from all walks of American life to be raised, urging us to stand together on higher ground, to avoid regressing back to an era of more segregated and more unequal education.