July 1, 2007
Can a Law Change a Society?
By JEFFREY ROSEN
SINCE 1954, liberal and conservative justices have disagreed about the
central meaning of Brown v. Board of Education. Was the purpose of
Brown to achieve a colorblind society or an integrated one? Last week,
in its 5-to-4 decision declaring that public schools in Louisville and
Seattle can't take explicit account of race to achieve integration,
the Supreme Court came down firmly on the side of colorblindness.
Despite some important qualifications by Justice Anthony Kennedy, at
least four conservative justices made clear that they believe that
nearly all racial classifications are unconstitutional.
The lawyers who won the Supreme Court case predicted that it would
have as dramatic an effect on American society as the original Brown
case did. "These are the most important decisions on the use of race
since Brown v. Board of Education," Sharon Browne, the principal
lawyer for the conservative Pacific Legal Foundation, declared in a
press release. "With these decisions, an estimated 1,000 school
districts around the country that are sending the wrong message about
race to kids will have to stop."
But some legal scholars on both sides of the political spectrum, and
of the affirmative action debate, question this assessment. They doubt
that this case will transform society as dramatically as Brown did.
And some of them question whether even Brown was as singularly
influential in transforming society as many have claimed during the
The conventional wisdom about Brown holds that it was more responsible
than anything else for the integration of schools. "Brown really did
transform society by stopping de jure segregation, and without Brown,
schools would look very different," says David J. Armor, a
conservative scholar at George Mason University.
But some liberal scholars have challenged that heroic assessment. In
"From Jim Crow to Civil Rights," Michael J. Klarman argues that it was
a political commitment to integration in the 1960s, not the Brown
decision in the 1950s, that led to meaningful integration.
"Brown didn't transform society very much, and to the extent that it
did it was indirect," says Mr. Klarman, who is a law professor at the
University of Virginia. "Brown brought out the worst in White
Supremacy, and Northerners were appalled by the police dogs they saw
on television, and that advanced the civil rights movement." He argues
that meaningful desegregation didn't occur until the Johnson
administration's Justice Department became committed to enforcing the
Civil Rights Act of 1964, and the Department of Health, Education and
Welfare threatened to cut off financing to school districts that
refused to integrate.
Professor Klarman said he believed that just as the court couldn't
bring about integration on its own in 1954, so it won't be able to
mandate colorblindness on its own today. "Just as Brown produced
massive resistance in the South and therefore had little impact on
desegregation for a decade, this decision is going to be similarly
inconsequential," he says. "This affects only the tiny percentage of
school districts that use race to assign students, and even in those
districts, like Louisville and Seattle, it won't be consequential
because there are so many opportunities for committed school boards to
In his concurring opinion, Justice Kennedy invited school districts to
explore "narrowly tailored" ways of pursuing their compelling interest
in "avoiding racial isolation." Some critics of government-sponsored
affirmative action believe that this may allow school districts to
pursue racial diversity by indirect means.
"School districts are going to continue to do indirectly what they
tried to do directly," says Peter H. Schuck of Yale Law School. "They
will feel the same pressures to reduce racial isolation, and they will
look for proxies for race."
Some scholars who support affirmative action also agree that public
schools will use proxies for race like neighborhoods, socioeconomic
status, or single-parent households to achieve their goals. "I think
what you'll see is schools avoiding talking in racial terms, and
talking in more vague terms about a diversity of backgrounds," says
David A. Strauss of the University of Chicago. "There will be another
layer of bureaucracy, but I wouldn't expect a large-scale retreat from
what public schools have tried."
After Texas and California banned affirmative action in the 1990s,
officials in both states guaranteed admission at the top public
universities to a certain percentage of the class at every public high
school, regardless of the school's quality. Because of segregated
housing patterns, this somewhat reduced the fall in the numbers of
enrolled African-American and Hispanic students.
"If you judge by what happened in California, you'll see some drop in
minority enrollment but not as huge a change as some people expected,"
says John Yoo, a former Bush Justice Department official who teaches
law at the University of California at Berkeley. "School
administrators and bureaucrats are so heavily invested in the idea of
diversity that they will try an amazing array of policies to get
around the ban of the use of race."
Although it will be harder for public schools to resort to similar
race-neutral alternatives, many legal scholars believe they will try.
"It's tougher in a public school setting, where generally applicants
aren't competing against each other on an individual basis, but that's
clearly what Justice Kennedy is inviting," says Samuel Issacharoff, a
law professor at New York University who supports affirmative action.
To enforce its vision of colorblindness, Professor Klarman suggests,
the Supreme Court would need to be backed by the president and
Congress. But so far, that political commitment to colorblindness has
"It's not enough for the court to announce this; to really make it
stick, the president would have to cut off funding for school
districts that circumvent the decision, just like the 1960s,"
Professor Klarman says. "If you start threatening to throw school
board members in jail, that might have an effect, but the strongest
evidence that there's not that kind of political support for
colorblindness is that the military and Fortune 500 companies have
said we need affirmative action to survive."
More broadly, the effects of last week's decision may be limited by
the fact that American society is divided on just how colorblind or
integrated society should be. When Brown was decided, 54 percent of
the country supported the result. Today, the public appears similarly
divided about the appropriate balance between colorblindness and
diversity, and there are backlashes in both directions.
After a Texas court banned affirmative action in 1996, the Texas
Legislature tried to preserve racial diversity in the state's public
universities with race-neutral alternatives, but after the Supreme
Court upheld affirmative action at the University of Michigan law
school in 2003, the voters of Michigan passed an initiative banning it.
"I think that there will be a King Canute quality to the decision,"
Professor Strauss said, referring to the Anglo-Saxon king who ordered
the sea's waves to stop.
In the end, the Supreme Court throughout its history has rarely
precipitated social transformation on its own; instead it has been
most effective when it acts in conjunction with the president,
Congress and ultimately a majority of the country.
"Brown pushed the country in a direction it was already going, and in
the same sense, the large forces today are going to continue to
operate regardless of what the Supreme Court just decided," Professor
Klarman said. "We're headed toward an ambiguous place where we're
committed both to colorblindness and to diversity in public life. We
might have a black president, but we'll still have a society with very
segregated neighborhoods and public schools. I don't think the court
decision will make much difference either way."
Jeffrey Rosen, a law professor at George Washington University, is the
author of "The Supreme Court: The Personalities and Rivalries That