Any unit that revolves around Supreme Court cases must begin with the Constitution itself and to disentangle the myths and realities of its function and power. The Constitution of the United States of America is a legendary document. Many believe that the original intent of the founding fathers and drafters of the Constitution represent the height of civilized enlightenment. It enjoys a status as a sacred document with a major Supreme Court judicial philosophy dedicated to interpreting the Constitution according to the original vision of the founding fathers (also known as a "fixed" or "textualist" interpretation).
Thurgood Marshall, in a speech on the bicentennial celebration of the Constitution, provides an alternate view of the Constitution as a living document:
-
"I do not believe that the meaning of the Constitution was forever "fixed" at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today. When contemporary Americans cite "The Constitution," they invoke a concept that is vastly different from what the Framers barely began to construct two centuries ago" (http://www.thurgoodmarshall.com/speeches/constitutional_speech.htm)
Marshall goes on to explain that the "we" in "We the People" did not include blacks and women. The original Constitution was written with tacit approval of the slave trade and blacks were deemed as "three fifths" human for voting purposes. The great paradox of America mentioned previously, of at once promising equal rights to all its citizens while being highly discriminatory in regards to those rights, is also the great paradox of the Constitution; the reality of our engineered society is reflective of how our guiding "instructional manual" is interpreted. The 13th, 14th, and 15th amendments to the Constitution were adopted only after the bloody civil war, constitutionally abolishing slavery, granting citizenship to blacks, and guaranteeing their right to vote, respectively.
Separate But Equal
White Supremacy had lost the battle, but they were not over fighting the war. In 1890 the first of the "Jim Crow" laws separating blacks and whites were enacted in Louisiana in 1890 as a backlash against rising black prominence after reconstruction. Six years later, the infamous Supreme Court decision in
Plessy v. Ferguson
ruled that segregated facilities were constitutionally justified under the 14th amendment in the doctrine of "separate but equal," thereby giving federal sanction to Jim Crow laws.
The ruling is significant for many reasons, including its
de jure
equality of educational opportunity when applied to schools, but devastatingly
de facto
educational inequality. In other words, on the books and in theory, full respect was given to the 14th amendment guaranteeing equal protection under the law, but the reality in Jim Crow was completely the opposite. Black schools were known as "doghouse" schools, and often not much more than wooden buildings with a single room, like larger versions of their namesake. Thurgood later recounted, when on an evidence hunt through the Southern school system, that one black child, given an orange from two strangely dressed Northern Negroes, bit into it grind and all, being so poor as to have never witnessed such fruit. (Williams 98).
The anecdote is informative because it is a reminder that black, or segregated education, was by its nature economically unequal. Blacks were the poor and vice versa, but the emphasis on race obscures the fact that it
has
always been the powerless and the penniless to suffer from disparate opportunity. Unequal education ensured the lower and colored classes remained poor and "in their place," and being poor ensured unequal education - a self reinforcing cycle which persists to this day.
The Federal legal sanction of educational oppression continued in
Cumming v. Richmond Country Board of Education
, wherein the Supreme Court allowed a state to tax both black and white citizens but use those tax funds to pay only for an all white school. This intersection of racial and economic discrimination will rear it's head in the culminating unit case of
San Antonio v. Rodriguez
, and can be researched by students as they prepare their final arguments.
Brown v. Board of Education
The doctrine of Separate and Equal dominated the educational system of America for the next fifty years until it was overruled as unconstitutional in the landmark
Brown v. Board of Education
case, which "many commentators have called… the most important Court decision of the twentieth century, perhaps the most important ever" (Klarman 344).
One way of understanding the importance of
Brown
is through its chief litigant, Thurgood Marshall. Marshall started his extraordinary career battling educational inequality by actually suing schools on the grounds that they were in fact not separate and equal, and thus should be ruled unconstitutional according to the segregationist precedent set forth in
Plessy
. It was a brilliant legal tactic to turn a weaponized law against itself, and Marshall, working with funding from the NAACP, successfully won a number of cases before the Supreme Court on this ground. These included
University of Maryland v. Murray
and
Gaines v. Canada
, wherein both Universities were forced to enroll their first black students on the grounds that there were no black law schools in the state, let alone ones with "equal" facilities. All during this time Marshall was helping collect evidence on the great disparities of segregated public schools to fashion an argument that would prove the notion of "separate and equal" as inherently contradictory and therefore, unconstitutional.
In 1952 Thurgood Marshall once again appeared before the Supreme Court to deliver his argument in
Brown v. Board of Education
. In that most famous ruling of the Supreme Court,
Plessy
was unanimously overturned and segregated schools declared inherently unequal, officially ending the federal legal blessing on Jim Crow.
No other court case has been analyzed, celebrated, or criticized as much as
Brown v. Board of Education
. On the one hand commentators argue that "the success of the Brown case sparked the 1960s civil rights movement, led to the increased number of black high school and college graduates and the incredible rise of the black middle-class in both numbers and political power in the second half of the century" (Williams 2). It certainly retains a central place in the public imagination as a wonderful event in our collective American self-image, and as a canonical event in social studies and history classes everywhere.
On the other hand, as Klarman points out, the role of
Brown
in the progress of civil rights may be overestimated (233). School integration in parts of the North was already well underway before the decision, while the court order incensed many Southern States, increasing resistance and violence towards blacks and desegregation. Because of the regrettable clause in the court order to integrate schools "with all deliberate speed," and the difficulty in enforcing such a decision with a reluctant executive branch, many states effectively barred integration from occurring.
What is not debated or discussed outside law schools however, is the systematic overturning of decisions in
Brown v. Board of Education
and other progressive judgements of the Warren Court. The decisions of the post-Warren Supreme Court has helped keep the long running legacy of segregation alive and well, albeit in different form. As pointed out by Cheryl Harris, "Modern political and racial discourse marks progress by its presumed distance from
Plessy
. The deep irony may be that while the terms of the debate have evolved, that distance is in fact more imagined than real" (Harris 5).
San Antonio Independent School District v. Rodriguez
We assume that with distance comes progress, but as the opening quote of this essay shows, rampant school segregation and inequality still plague our nation. And the disease is all the more insidious because society does not recognize its source. As Harris points out, the terms have changed; a colorblind economic discrimination that affects minorities disproportionally has replaced official segregation, at once making it harder to diagnose and combat, and psychologically easier for those benefitting to excuse and justify the results as having nothing to do with race.
A key to understanding the current trends in unequal educational opportunity lies in the 1973 Supreme Court case,
San Antonio Independent School District v. Rodriguez
, which, on the surface at least, deals with the issue of district equality in public school financing. The parents of children being educated in the Edgewood district, a low-income, mostly Mexican school system in Texas, sued the school system claiming that the district finances, derived in large part from property taxes, disproportionately privileged wealthier districts, and thus was in violation of the Equal Protection Clause of the Constitution.
Rodriguez
earned a victory in the state Supreme Court, which the school system appealed to the Supreme Court. In a 5-4 majority vote the lower court decision was reversed, setting an important and altogether too little-noticed precedent. The majority opinion, delivered by Justice Powell, ruled that the "poor" residing in certain districts did not constitute a discernible "suspect class" and thus, were not subject to heightened scrutiny of the Court. In addition, education was considered not to be a "fundamental right" anywhere stated or implied in the federal Constitution. While the court did suggest that financing inequality for schools was regrettable and should be dealt with at the local level, they made no allowance for federal judicial intervention in the issue.
Rodriguez
was more than a simple school financing argument, for it ultimately involved wealth and race equally. While the Edgewood City district was majority Mexican American, and the nearby wealthy Alamo school district was a majority white, the district was sued not on the basis of racial segregation but on economic disparity grounds. Why the appellees did not use a racial argument in their case is unclear, but Michael Heise, a Cornell Law Professor, suggests it may have been because the districts were nominally integrated, and the Rodriguez litigants felt the economic discrimination a more solid argument (4).
Brown
and
Rodriguez
are rarely discussed together as involving similar issues beyond the overarching theme of education; the first is clearly about racial segregation in schools, and the second, about technical state school financing between districts. This is a mistake, however, for the root issue in
Brown
, as well as
Rodriguez
, is of unequal opportunity and quality of education for a poor
and
racial minority. The semantics of the arguments put forth centered foremost around racial terms (in
Brown
), and on economic values (in
Rodriguez
), but both cannot be understood on those principles alone, revolving as they do equally around a gordian knot of wealth, race, and historical oppression.
America has always relied on a caste system of some sort, and now personal wealth has become the legally sanctioned method of racial discrimination in an officially colorblind society. Just as when blacks were given voting rights and yet elaborate and "legal" methods of keeping them from actually voting (such as literacy tests) sprouted up everywhere, now that intentional segregation is outlawed, district wealth is one method of ensuring disparate and supremacist-minded opportunity for those in control. And control of educational inequality, as we see everywhere around us today, is one of, if not the most effective, methods of determining the entire destiny of any human being in our modern world.
Thurgood Marshall's dissent in
Rodriguez
was unusually passionate for a judicial opinion, and unequivocal in its denunciation of the majority decision. He remarked that the decision heralded an ominous change in federal jurisprudence, "a retreat from our historic commitment to equality of educational opportunity." He compared the plight of the Edgewood children to the early cases challenging the doctrine of separate but equal, cases he himself argued many years ago before the Supreme Court. Marshall was aware that the decision of
Rodriguez
sanctioned an entirely new form of economic segregation while also allowing the continuance of racial segregation: "the District Court found that in Texas the poor and minority group members tend to live in property-poor districts, suggesting discrimination on the basis of both personal wealth and race."
The residents of Edgewood continued to try and fight for equal funding at the state level, but it was an uphill battle since the state's typical reaction was evasive as they cited the
Rodriguez
decision. Sixteen years later, a judge noted the rising inequality in those same districts: "the wealthiest district has over $14,000,000 of property wealth per student, while the poorest has approximately $20,000; this disparity reflects a 700 to 1 ratio" (Soltero 125).
Conclusion
Charles Houston taught a fundamental principle to his students at Howard University: that the rights of the Constitution should apply to all citizens of the United States. As self-evident as this seems, our history has borne out a long struggle to grant those rights to various groups- blacks, women, other minorities, and the poor.
When the Supreme Court sanctioned the "separate but equal"
Plessy
doctrine for public education many years ago, it was at least a
de jure
mandate for equal public education, and offered lawyers like Marshall a chance to fight unequal segregation on that standard. The
Rodriguez
decision however, in one fell swoop, actually sanctioned "separate and unequal" public education via property wealth, with the dual effect of maintaining de facto racial segregation, since minorities still make up a large percentage of this nation's poor.
The entire notion of civil rights needs to change to accommodate the shifting focus of discrimination. No longer can the modern era's civil rights front be construed purely in racial terms (although racial discrimination is as present as ever), but a realization of all the complex and sophisticated economic machinery whose entire function is to discriminate against the poor.
Supreme Court decisions, especially such momentous ones as
Brown
or
Rodriguez
tempt us into viewing the Justices are heroes or villains, depending on our personal ideologies. And yet the opinions of the highest Court are really mere reflections of our society as a whole: "because constitutional law is generally quite indeterminate, constitutional interpretation almost inevitably reflects the broader social and political context of the times" (Klarman 5).
This idea is in stark contrast to the one that the Law is set in stone for all time, and the word of the Supreme Court absolute, rendering a finality to all things and the status quo. But this is not the case. Law and society change when society as a whole wishes to change, and this is brought about from the bottom up, from grassroots efforts that engage and empower masses of citizens to alter the context and reality of their times. In this light the "success" of the
Brown
decision was due not to the bench, but from men like Marshall who struggled and fought their way to the Supreme Court, changing public perception with each hard won victory along the way (one could argue that Marshall was far more effective as a grassroots lawyer than a Supreme Justice who offered more dissents than majority opinions). Finally, it is imperative for students to understand that our laws are our own creation and subject to change, and that justice is never guaranteed, but an ideal towards which we must forever strive.