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Seventy years ago, the United States Supreme Court rocked the nation with its landmark decision in Brown v. Board of Education that segregation in the nation’s public schools was unconstitutional. On May 17, 1954, the justices ruled unanimously that separating school children based on their race deprived Black children of equal protection guaranteed by the Fourteenth Amendment.

From the pen of Chief Justice Earl Warren, the decision was a powerful and profound statement of the harm caused by race discrimination (which was built on centuries of slavery before that). The Court opined that depriving children of equal access to education would prevent them from being full participants in our democracy.

The ruling held extraordinary promise to remake the nation into a more just and fair society with the ideal of equal opportunity for all persons regardless of their race. Within two to three years, the Supreme Court had used the Brown decision to order the desegregation of municipal golf courses, public transit systems, municipal swimming pools, public theaters, and more.

But when it came to public education, resistance in the South was widespread and formidable, and progress to desegregate schools moved very slowly. A decade after Brown, when Congress passed the Civil Rights Act of 1964, the percentage of Black children attending schools that had a White majority student population was little more than 2%, according to the research of the Civil Rights Project at the University of California Los Angeles (UCLA). Later in the 1960s, the US Department of Justice began to intervene to push for desegregation, and the Supreme Court pressed for meaningful progress.

By 1972, the Civil Rights Project reports, the number of Black students in majority White schools jumped to more than 36%. The progress was primarily in southern states where the segregation had been most egregious before Brown and where the change, although slow, was eventually dramatic. Progress toward eliminating segregated schools continued for another decade and, with visible resistance, moved into northern and western states, as well.

The Supreme Court had other ideas. By the early 1990s a majority of the increasingly conservative Court had had enough of federal district courts supervising local school systems and using race to structure school districts and student assignments.

By the time the nation marked the 50th anniversary of Brown, it was less a celebration than an exploration of how to preserve the gains from desegregation and whether to return to the goal of having students of different races learning together in classrooms. At AUWCL, the 50th anniversary was marked by a reargument of Brown with the benefit of knowing what had transpired since 1954. Two famous advocates presented oral arguments: Professor Derrick Bell, now deceased, a leading critical race thinker, argued for the Topeka, Kansas Board of Education, questioning the legacy of Brown; Professor Erwin Chemerinsky, now dean of the University of California Berkeley Law School, argued for the plaintiffs challenging school segregation.

In the two decades since the 50th celebration, racial isolation has increased in public schools nationwide. Students of color are increasingly attending public schools where their race is in a substantial majority. And the ability to reverse that trend is restricted by court rulings. When Brown was decided, the focus of the Court was that segregation was required by government action, either state laws or local policies, and the justices said that it was that state action that was the intended target of the Fourteenth Amendment.

Today the Supreme Court has said that school districts that were not previously found to have engaged in official segregation, may not simply decide on their own to use race to make student assignments, even if they want to improve diversity in their classrooms. And the Supreme Court has eliminated most consideration of race for purposes of affirmative action in higher education admissions.

Today, on the 70th anniversary of Brown v. Board of Education, the decision remains a remarkable landmark of the judicial pursuit of equality under the Constitution. The climate for the 70th anniversary, however, reflects a very different landscape in which the conservative Supreme Court has moved the nation strongly away from any government use of race in education or other programs.

~ Story by Stephen WermielÌý’82, a professor of practice of Constitutional Law at AUWCL.