tag:theconversation.com,2011:/fr/topics/brown-v-board-of-education-34552/articlesBrown v. Board of Education – The Conversation2024-02-06T13:31:04Ztag:theconversation.com,2011:article/2223542024-02-06T13:31:04Z2024-02-06T13:31:04ZSupreme Court heads into uncharted, dangerous territory as it considers Trump insurrection case<figure><img src="https://images.theconversation.com/files/573195/original/file-20240203-27-tu4bta.jpeg?ixlib=rb-1.1.0&rect=38%2C12%2C8449%2C4758&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The U.S. Supreme Court.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/supreme-court-royalty-free-image/1500767786?phrase=U.S.+Supreme+court&adppopup=true">Larry Crain/iStock/Getty Images Plus</a></span></figcaption></figure><p>Can Colorado disqualify former President Trump <a href="https://www.oyez.org/cases/2023/23-719">from the state’s primary ballot</a>? That’s the momentous question the U.S. Supreme Court will consider in <a href="https://www.scotusblog.com/2024/01/supreme-court-agrees-to-hear-trump-plea-to-remain-on-colorado-ballot/">Trump v. Anderson</a>, a case being argued before the justices on Feb. 8, 2024.</p>
<p>The case involves the justices wading into the <a href="https://www.washingtonpost.com/history/2023/12/20/insurrection-14th-amendment-history-trump/">unfamiliar waters</a> of the 14th Amendment’s insurrection clause. Legal experts on <a href="https://www.cnn.com/2024/01/29/politics/luttig-conway-supreme-court-trump-insurrection/index.html">both sides</a> of the <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/298014/20240118120731316_23-719%20Amicus%20Brief%20of%20U.S.%20Senator%20Ted%20Cruz.pdf">political aisle</a> filed amicus briefs to plead with the justices to either allow Trump to stay on the ballot or keep him off it. </p>
<p>As scholars who <a href="https://doi.org/10.1086/709913">study</a> <a href="https://doi.org/10.1080/0098261X.2022.2124897">how the federal judiciary</a> is changing, we believe that Trump’s unprecedented relationship with the judiciary makes this case important in ways that go beyond the legality of his ballot removal. One dark shadow hanging over this case is that the justices’ decision could affect the court’s legitimacy, too.</p>
<p>Public support for the court and its overall legitimacy are already at <a href="https://www.pewresearch.org/short-reads/2023/07/21/favorable-views-of-supreme-court-fall-to-historic-low/">all-time lows</a>. Part of this results from the current polarization of the electorate. That polarization has led people to shift their support for the court <a href="https://doi.org/10.1177/1065912920950482">based on their perceptions of the court’s partisan leanings</a>. Trump’s efforts to politicize the court may also contribute to these negative feelings.</p>
<p>The justices have done many things to hurt the court’s legitimacy, too, from <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4206986">upending the legal status quo</a> on issues such as abortion to <a href="https://www.forbes.com/sites/siladityaray/2023/10/31/senate-democrats-plan-to-supoena-gop-megadonors-over-reported-undisclosed-gifts-to-supreme-court-justices/?sh=1655532712b5">accepting money and luxury vacations from people whose interests have appeared in cases before the court</a>. </p>
<p>No matter how hard the justices <a href="https://apnews.com/article/north-america-donald-trump-us-news-ap-top-news-immigration-c4b34f9639e141069c08cf1e3deb6b84">work to head off</a> negative perceptions of the court, they have been unsuccessful at restoring their institution’s legitimacy.</p>
<p>And now, against this backdrop of vitriol and low support, the court must answer a question that has never been asked: Does Section 3 of the 14th Amendment mean Colorado can keep Trump off the ballot? </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/573197/original/file-20240203-15-vw1wpn.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a blue blazer, blue striped tie and white shirt in front of an American flag." src="https://images.theconversation.com/files/573197/original/file-20240203-15-vw1wpn.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/573197/original/file-20240203-15-vw1wpn.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/573197/original/file-20240203-15-vw1wpn.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/573197/original/file-20240203-15-vw1wpn.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/573197/original/file-20240203-15-vw1wpn.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/573197/original/file-20240203-15-vw1wpn.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/573197/original/file-20240203-15-vw1wpn.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Donald Trump’s eligibility to be on state ballots as a presidential candidate is being considered by the U.S. Supreme Court.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/republican-presidential-candidate-and-former-u-s-president-news-photo/1965961432?adppopup=true">David Becker/Getty Images</a></span>
</figcaption>
</figure>
<h2>‘My judges’</h2>
<p>Trump’s relationship with the federal judiciary – both the judges who serve in the federal judiciary and the broader legal institution itself – differs from that of his predecessors. He talks about the court system not as an independent branch of government but as a political institution whose positions <a href="https://time.com/4266700/donald-trump-supreme-court-nominations/">should align</a> with his own. </p>
<p>In his Jan. 6, 2021, speech before the attack on the U.S. Capitol, Trump sounded miffed at the three justices he had nominated to the Supreme Court. They were ruling against him now, he said, perhaps to counter the perception that <a href="https://www.nytimes.com/2023/12/21/us/politics/trump-supreme-court.html">“they’re my puppets.”</a> </p>
<p>Modern presidents have always sought to mold the judiciary by selecting <a href="https://www.upress.virginia.edu/title/3596/">justices whose records</a> align with the nominating president’s <a href="https://yalebooks.yale.edu/book/9780300080735/picking-federal-judges/">political preferences</a>. But historically, presidents were careful to discuss the courts in <a href="https://www.cambridge.org/core/books/curbing-the-court/97B607067A2E7392C2223EF7E642FC7A">legalistic terms</a> and <a href="https://doi.org/10.1111/1468-2508.00207">avoid politicizing the judiciary</a>.</p>
<p>Trump flouted those norms. In an unusual move, <a href="https://www.nytimes.com/2016/05/19/us/politics/donald-trump-supreme-court-nominees.html">he released a list</a> of potential Supreme Court nominees while campaigning for the 2016 GOP presidential nomination, touting the <a href="https://time.com/4266700/donald-trump-supreme-court-nominations/">conservative credentials</a> of the names on his list. </p>
<p>Once elected, he asked <a href="https://doi.org/10.1177/1532673X221109534">members of the Federalist Society</a>, a group dedicated to putting conservative judges on the bench, to help him select nominees, including the three justices he eventually put on the Supreme Court.</p>
<p>Once the Senate confirmed his nominees to the Supreme Court, Trump referred to Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett as <a href="https://www.harpercollins.com/products/nine-black-robes-joan-biskupic?variant=40723951517730">“my” judges</a>. </p>
<p>And as his legal cases have made their way through the courts, he suggested that judges he nominated at any level – district, circuit or for the Supreme Court – owed him favorable rulings because he gave them their seats. <a href="https://www.washingtonpost.com/politics/2024/01/05/2-key-points-trumps-lawyer-suggesting-justice-kavanaugh-owes-trump/">One of Trump’s lawyers in the Colorado ballot case</a> now before the Supreme Court suggested in January 2023 that “people like Kavanaugh who the president fought for, who the president went through hell to get into place, he’ll step up.”</p>
<p>And Trump has questioned the credentials of most judges who have ruled against him, whether it’s in response to cases <a href="https://apnews.com/article/north-america-donald-trump-us-news-ap-top-news-immigration-c4b34f9639e141069c08cf1e3deb6b84">involving his presidential policies</a> or those involving his <a href="https://truthsocial.com/@realDonaldTrump/posts/111848593080388710">personal conduct</a>, especially when Democrats nominated those judges. When judges have refused to bend to his will, Trump has pushed back, <a href="https://www.brennancenter.org/our-work/research-reports/his-own-words-presidents-attacks-courts">lambasting the judges</a> as biased and saying they were <a href="https://twitter.com/realDonaldTrump/status/1065581119242940416">“out of control”</a> and the court system was <a href="https://twitter.com/realDonaldTrump/status/951094078661414912">“broken and unfair.”</a> He used social media to call the federal judge presiding over his Jan. 6 prosecution a <a href="https://abcnews.go.com/Politics/judge-reinstates-trump-gag-order-jan-6-case/story?id=104466343">“TRUE TRUMP HATER.”</a> </p>
<h2>Increased criticism, decreased legitimacy</h2>
<p>Framing the Supreme Court as a political institution beholden to the president diminishes the <a href="https://doi.org/10.1177/1532673X211064299">court’s legitimacy in the eyes of the public</a>. Research shows that <a href="https://doi.org/10.1177/1065912917750278">people’s support for the court decreases</a> when a politician they like criticizes it. </p>
<p>Some people also struggle to believe that <a href="https://doi.org/10.1111/ajps.12599">judges who do not look or think like them</a> are neutral arbiters of the law, so Trump’s comments potentially inflame those beliefs and increase people’s wariness of the judiciary. </p>
<p>Beyond that, Trump constantly tries to make the point that the entire judicial nominating process is political, from identifying judges by which president nominated them – for example, an <a href="https://www.politico.com/story/2018/11/21/supreme-court-chief-justice-john-roberts-calls-out-trump-for-his-attack-on-a-judge-1011203%22%22">“Obama judge”</a> or a <a href="https://www.huffpost.com/entry/trump-judges-lawsuits_n_5db1d70ee4b03285e87ba2fd%22%22">“Trump judge”</a> – to his leaning on the justices he put on the court. This has the broader effect of framing the Supreme Court as a political rather than legal institution. And that <a href="https://doi.org/10.1111/j.1540-5907.2012.00616.x">dramatically decreases its legitimacy</a>. </p>
<p>Put simply, people support the court less when politicians attack it, and Trump frequently attacks the judiciary. </p>
<h2>Maintaining authority</h2>
<p>Why care about legitimacy? </p>
<p>Because <a href="https://avalon.law.yale.edu/18th_century/fed78.asp">unlike the president or members of Congress</a>, who can enforce their own laws and policies – as long as they abide by the Constitution – the Supreme Court depends on other institutions for enforcement of its opinions. The court lacks the literal force or money to enforce its decisions.</p>
<p>Consider the Supreme Court’s famous 1954 ruling in <a href="https://www.oyez.org/cases/1940-1955/347us483">Brown v. Board of Education</a>, which ordered the end of school segregation. That ruling did not get enforced in most of the South <a href="https://doi.org/10.1111/ajps.12069">until the president and Congress passed laws</a> that punished schools that refused to integrate.</p>
<p>Those institutions enforce Supreme Court decisions only because the public believes the court is a <a href="https://doi.org/10.1111/1540-5907.00025">legitimate legal institution</a> with the authority to make decisions about the law and get them enforced. </p>
<p>This belief in judicial authority stems from several different sources, including <a href="https://www.degruyter.com/document/doi/10.1515/9781400830602/html">elementary education</a> on democratic values, the justices’ <a href="https://press.umich.edu/Books/T/The-Limits-of-Legitimacy2">concerted efforts</a> <a href="https://doi.org/10.1177/1065912918801563">to avoid</a> all but the most favorable media attention, their focus on showing <a href="https://doi.org/10.1111/j.1540-5907.2012.00616.x">the principled nature</a> of their decision-making process, their aim to <a href="https://doi.org/10.1017/jlc.2023.15">mitigate negative public sentiment</a> and even their decision to separate themselves by <a href="https://doi.org/10.1111/lasr.12104">wearing robes to political events</a>. </p>
<p>To be sure, people are not naive about the <a href="https://doi.org/10.1146/annurev-polisci-032211-214229">political nature of Supreme Court decision-making</a>. But as long as the justices’ decision-making appears principled, research has found that the court <a href="https://doi.org/10.1111/j.1540-5893.2011.00432.x">remains legitimate</a> to the public, even if the court issues a <a href="https://doi.org/10.1146/annurev-lawsocsci-110413-030546">decision the public dislikes</a>.</p>
<p>Typically, the justices <a href="https://press.princeton.edu/books/paperback/9780691136332/the-politics-of-precedent-on-the-us-supreme-court">lean on precedent</a> to defend their rulings, but the justices cannot do so in the Trump Colorado ballot case. <a href="https://thehill.com/opinion/judiciary/4435677-the-supreme-court-cant-punt-on-trumps-disqualification-without-threatening-the-constitution/">No precedent exists</a>. </p>
<p>Combined with the court’s low popular support, moving into uncharted legal territory means the justices face, for the first time in a while, the possibility that people <a href="https://www.npr.org/2023/09/26/1200906844/supreme-court-alabama-voting-case">might defy</a> or <a href="https://www.pbs.org/newshour/show/border-standoff-between-texas-feds-intensifies-as-governor-defies-supreme-court-ruling">ignore their rulings</a>. In fact, Sen. J.D. Vance, a Republican from Ohio, suggested in a recent interview that the <a href="https://www.foxnews.com/video/6346242779112">president could defy the Supreme Court</a>. </p>
<p>Consequently, while the justices’ decision will be important for constitutional and democratic reasons, the public’s response to the ruling will be just as important for democracy and the rule of law in the U.S.</p><img src="https://counter.theconversation.com/content/222354/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>With their upcoming decision concerning whether Donald Trump can appear on the Colorado ballot, Supreme Court justices face the possibility that the ruling could be ignored or defied by the public.Jessica A. Schoenherr, Assistant Professor of Political Science, University of South CarolinaJonathan M. King, Assistant Professor of Political Science, West Virginia UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2191622024-01-22T13:31:34Z2024-01-22T13:31:34ZA surprising history of the 5th Circuit Court of Appeals, once a leader in expanding civil rights and now a leader in limiting government power<figure><img src="https://images.theconversation.com/files/569907/original/file-20240117-21-7w73t0.jpeg?ixlib=rb-1.1.0&rect=6%2C12%2C4235%2C2817&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The 5th U.S. Circuit Court of Appeals in New Orleans.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/AbortionRestrictionsTexas/8ae444ca5e2540708d5a395dd9ee0264/photo?Query=U.S.%20Court%20of%20Appeals%20for%20the%205th%20Circuit&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=979&digitizationType=Digitized&currentItemNo=1&vs=true&vs=true">AP Photo/Jonathan Bachman</a></span></figcaption></figure><p>The U.S. Court of Appeals for the 5th Circuit has earned a <a href="https://www.washingtonpost.com/politics/2023/10/26/5th-circuit-supreme-court-reversals-decisions/">reputation for strikingly conservative rulings</a>. One of its recent decisions could put the <a href="https://www.ca5.uscourts.gov/opinions/pub/21/21-50826-CV0.pdf">Consumer Financial Protection Bureau out of business</a>, another could <a href="https://www.reuters.com/markets/us/secs-in-house-enforcement-powers-risk-us-supreme-court-case-2023-11-28/">hamstring the ability of federal agencies</a> to enforce regulations, and a third could <a href="https://storage.courtlistener.com/recap/gov.uscourts.ca5.213145/gov.uscourts.ca5.213145.183.2_1.pdf">effectively outlaw medication abortions</a>. </p>
<p>The 5th Circuit today looks very different than it did half a century ago, when it was on the <a href="https://www.nytimes.com/1999/05/16/us/john-minor-wisdom-appeals-court-judge-who-helped-to-end-segregation-dies.html">front lines of enforcing civil rights</a>. The 5th Circuit currently handles cases in three states: Mississippi, Louisiana and Texas. <a href="https://www.ca5.uscourts.gov/about-the-court/circuit-history/brief-history">Until 1982, it also covered Alabama, Georgia and Florida</a> – the entire Deep South during the civil rights era.</p>
<p>Then as now, the 5th Circuit has had a complicated relationship with a Supreme Court that was ideologically sympathetic with the lower court. At times, the 5th Circuit was willing to go further than the Supreme Court on some issues. But the high court hesitated to rebuke the 5th Circuit.</p>
<p>Understanding the 5th Circuit’s work therefore can provide important insights into broader legal trends in the U.S.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/569923/original/file-20240117-29-868d4f.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Orange boxes of a drug called Mifepristone." src="https://images.theconversation.com/files/569923/original/file-20240117-29-868d4f.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/569923/original/file-20240117-29-868d4f.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/569923/original/file-20240117-29-868d4f.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/569923/original/file-20240117-29-868d4f.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/569923/original/file-20240117-29-868d4f.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/569923/original/file-20240117-29-868d4f.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/569923/original/file-20240117-29-868d4f.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">If a 5th Circuit decision on the availability of the abortion drug mifepristone is upheld by the Supreme Court, it could severely curtail the ability to get an abortion.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/in-this-photo-illustration-packages-of-mifepristone-tablets-news-photo/1481957802?adppopup=true">Anna Moneymaker/Getty Images</a></span>
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<h2>Undercutting federal agency power</h2>
<p>The Supreme Court can handle only a limited number of cases each year, so it tries to establish general principles that lower courts can apply. </p>
<p>Federal appellate courts oversee the work of federal district courts that apply those general principles. Because the devil is in the details, an appellate court can interpret those principles broadly or narrowly, and in so doing can support or undermine Supreme Court rulings on a day-to-day basis.</p>
<p>Several recent 5th Circuit decisions threaten to undercut the power of federal agencies. </p>
<p>One notable example is the <a href="https://www.ca5.uscourts.gov/opinions/pub/23/23-10362-CV1.pdf">case of the abortion-inducing drug mifepristone</a>. The 5th Circuit in August 2023 rejected the Food and Drug Administration’s relaxation of the conditions under which that drug can be used. That decision, if upheld by the Supreme Court, could severely curtail the ability of a woman to get an abortion. It could also portend widespread challenges to FDA decisions about the safety and effectiveness of drugs and medical devices.</p>
<p>The 5th Circuit suggested an alternative basis for restricting access to mifepristone. It expressed some sympathy for the plaintiffs’ broad reading of the <a href="https://www.nytimes.com/2023/05/16/us/comstock-act-1978-abortion-pill.html">1873 Comstock Act</a>, an anti-vice law, as forbidding the shipment of any “<a href="https://theconversation.com/an-obscure-1800s-law-is-shaping-up-to-be-the-center-of-the-next-abortion-battle-legal-scholars-explain-whats-behind-the-victorian-era-comstock-act-204728">drug, medicine, article, or thing designed, adapted, or intended for producing abortion</a>.” But that interpretation might effectively outlaw all abortions, because not only pills but virtually everything used in surgical abortions gets shipped across state lines. </p>
<p>Other 5th Circuit rulings that went against the federal government are also pending before the Supreme Court this term. </p>
<p>Among those, one notable case could eviscerate the ability of agencies to enforce regulatory laws through traditional in-house hearings. The 5th Circuit ruled that <a href="https://www.ca5.uscourts.gov/opinions/pub/20/20-61007-CV0.pdf">the Securities and Exchange Commission must use jury trials in federal court</a> instead of those in-house hearings, that the statute giving the SEC discretion about using agency hearings was unconstitutional, and that the administrative law judges who preside at agency hearings were unlawfully appointed. That ruling, if it stands, could hamstring numerous agencies that enforce federal regulations via in-house hearings.</p>
<p>In a second case now before the U.S. Supreme Court, the 5th Circuit ruled that the Consumer Financial Protection Bureau’s <a href="https://crsreports.congress.gov/product/pdf/LSB/LSB10891">funding mechanism was unconstitutional</a>, because this agency gets its money from the Federal Reserve rather than from Congress.</p>
<p><a href="https://www.nytimes.com/2023/11/29/us/supreme-court-sec-tribunals.html?searchResultPosition=1">That ruling could invalidate</a> not only the Consumer Financial Protection Bureau but also the Federal Reserve itself and the <a href="https://www.supremecourt.gov/DocketPDF/22/22-448/266373/20230508190055738_22-448tsUnitedStates.pdf">entire Social Security program, including Medicare</a>, which also do not receive their funding from Congress.</p>
<p>The 5th Circuit has also expansively interpreted gun rights in cases that call many firearms regulations into question, rejecting a law that bars persons <a href="https://www.ca5.uscourts.gov/opinions/pub/21/21-11001-CR2.pdf">subject to domestic violence restraining orders from possessing firearms</a> and <a href="https://www.ca5.uscourts.gov/opinions/pub/23/23-10718-CV0.pdf">invalidating federal regulation of ghost guns</a>. </p>
<p>These rulings are part of a striking pattern of restricting federal authority that makes the 5th Circuit distinctive among federal appeals courts across the nation. </p>
<p>But this isn’t the first time the 5th Circuit has stood out.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/569846/original/file-20240117-17-509uce.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A group of well-dressed people on the sidewalk outside an office building, with picketers in the background." src="https://images.theconversation.com/files/569846/original/file-20240117-17-509uce.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/569846/original/file-20240117-17-509uce.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=403&fit=crop&dpr=1 600w, https://images.theconversation.com/files/569846/original/file-20240117-17-509uce.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=403&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/569846/original/file-20240117-17-509uce.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=403&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/569846/original/file-20240117-17-509uce.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=506&fit=crop&dpr=1 754w, https://images.theconversation.com/files/569846/original/file-20240117-17-509uce.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=506&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/569846/original/file-20240117-17-509uce.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=506&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">James Meredith, center, and attorney Constance Motley, right, on Sept. 28, 1962, outside the 5th U.S. Circuit Court of Appeals in New Orleans, which that day ordered Mississippi Gov. Ross Barnett to facilitate Meredith’s admission to the University of Mississippi or face arrest and fine.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/james-meredith-and-his-attorney-constance-motley-were-news-photo/515030524?adppopup=true">Bettman/Getty Images</a></span>
</figcaption>
</figure>
<h2>Furthering desegregation</h2>
<p>In the wake of the Supreme Court’s landmark 1954 ruling in <a href="https://www.archives.gov/milestone-documents/brown-v-board-of-education">Brown v. Board of Education</a>, which barred racial segregation in public schools, the old 5th Circuit compiled a courageous record in promoting civil rights.</p>
<p>The 5th Circuit judges wrote or upheld rulings that required the desegregation of <a href="https://digitalcommons.law.mercer.edu/cgi/viewcontent.cgi?article=2239&context=jour_mlr">public schools, universities and other public facilities</a> throughout the Deep South. </p>
<p>Those judges invalidated the segregation ordinance that was a key target of the 1955-56 <a href="https://www.nps.gov/articles/montgomery-bus-boycott.htm">Montgomery bus boycott</a>, which propelled Dr. Martin Luther King Jr. to prominence and helped to galvanize the Civil Rights Movement. The 5th Circuit even held the governor and lieutenant governor of Mississippi in <a href="https://law.justia.com/cases/federal/appellate-courts/F2/346/99/445527/">contempt of court for defying desegregation orders</a> in 1962.</p>
<p>The current 5th Circuit, in short, looks very different from its predecessor. That is no small irony, as the 5th Circuit sits in a courthouse named for <a href="https://www.nytimes.com/1999/05/16/us/john-minor-wisdom-appeals-court-judge-who-helped-to-end-segregation-dies.html">John Minor Wisdom</a>, one of the heroic judges of the civil rights era.</p>
<h2>Limiting federal power</h2>
<p>But it’s not only the 5th Circuit that has changed. So has the Supreme Court, which is now dominated by conservative justices.</p>
<p>The Supreme Court that decided Brown v. Board of Education wanted public schools desegregated, but <a href="https://www.oyez.org/cases/1940-1955/349us294">the justices left implementation to federal district judges</a>, whose knowledge of local circumstances could make the process go more smoothly. That approach too often encouraged foot-dragging and massive resistance. Still, the 5th Circuit’s persistence furthered the Supreme Court’s ultimate goal of breaking down segregation.</p>
<p>Today’s Supreme Court has very different priorities. Now, the justices are more interested in limiting federal power than in promoting civil rights. </p>
<p>The current court has <a href="https://www.oyez.org/cases/2012/12-96">undermined the Voting Rights Act</a>, largely <a href="https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf">eliminated affirmative action</a> and <a href="https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf">repudiated abortion rights</a>. </p>
<p>Through its <a href="https://crsreports.congress.gov/product/pdf/IF/IF12077">“major questions” doctrine</a>, which requires clear congressional authorization for agencies to address problems that have a significant economic impact, the court has made it harder for agencies to undertake new initiatives.</p>
<p>The 5th Circuit these days is still promoting larger Supreme Court goals. Sometimes the 5th Circuit has gotten ahead of the justices, which might explain why the Supreme Court has reversed or limited some of the appellate court’s decisions and might do so again this year.</p>
<p>Then, as now, the 5th Circuit has had a symbiotic relationship with the Supreme Court. This term’s rulings will further clarify the workings of that relationship.</p><img src="https://counter.theconversation.com/content/219162/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jonathan Entin does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A court long known for its landmark decisions expanding civil rights is now known for highly conservative rulings reining in government power.Jonathan Entin, Professor Emeritus of Law and Adjunct Professor of Political Science, Case Western Reserve UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2196542024-01-05T13:47:06Z2024-01-05T13:47:06Z70 years after Brown vs. Board of Education, public schools still deeply segregated<figure><img src="https://images.theconversation.com/files/566624/original/file-20231219-25-6bal1b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">How school attendance zones are drawn can affect segregation.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/mixed-race-student-studying-at-desk-in-classroom-royalty-free-image/135205439">Ariel Skelley/DigitalVision Collection/Getty Images</a></span></figcaption></figure><p><a href="https://www.archives.gov/milestone-documents/brown-v-board-of-education">Brown vs. Board of Education</a>, the pivotal Supreme Court decision that made school segregation unconstitutional, turns 70 years old on May 17, 2024. </p>
<p>At the time of the 1954 ruling, 17 U.S. states had laws permitting or requiring racially segregated schools. The Brown decision declared that segregation in public schools was “inherently unequal.” This was, in part, because the court argued that access to equitable, nonsegregated education played a critical role in creating informed citizens – <a href="https://doi.org/10.2307/3659611">a paramount concern</a> for the political establishment amid the Cold War. With Brown, the justices overturned decades of <a href="https://www.archives.gov/milestone-documents/plessy-v-ferguson">legal precedent</a> that kept Black Americans in <a href="https://doi.org/10.3102/0013189X1560142">separate and unequal schools</a>. </p>
<p>As a professor of education and demography at Penn State University, I research <a href="https://scholar.google.com/citations?user=PPLOEBoAAAAJ&hl=en">racial desegregation and inequality in K-12 schools</a>. I’m aware that, after several decades of <a href="https://www.civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/harming-our-common-future-americas-segregated-schools-65-years-after-brown/Brown-65-050919v4-final.pdf">unraveling of desegregation progress</a>, the upcoming Brown vs. Board of Education anniversary comes at an especially uncertain moment for public education and efforts to make America’s schools reflect the nation’s multiracial society. </p>
<h2>Recent setbacks</h2>
<p>In June 2023, the Supreme Court <a href="https://www.oyez.org/cases/2022/20-1199">ended most race-conscious college admissions</a> efforts. The decision followed the COVID-19 pandemic, which <a href="https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=3009&context=facsch_lawrev">exacerbated racial inequalities</a> in the U.S. </p>
<p>Meanwhile, politicians and school boards have banned or removed books by <a href="https://www.nbcnews.com/news/us-news/southlake-texas-anti-racist-book-school-library-rcna2734">authors of color</a> from school libraries and restricted teaching about <a href="https://www.edweek.org/teaching-learning/many-states-are-limiting-how-schools-can-teach-about-race-most-voters-disagree/2023/10">racism in U.S. history</a>. I believe these legal setbacks amid the current political climate make finally realizing the full promise of Brown more urgent. </p>
<h2>Resistance to Brown ruling</h2>
<p>The Brown vs. Board of Education decision did not immediately change the nation’s public schools, especially in the completely segregated South, where there was <a href="https://www.naacpldf.org/brown-vs-board/southern-manifesto-massive-resistance-brown/">massive resistance to desegregation</a>. Resistance was so fierce in the first decade after Brown that compliance with desegregation orders at times required <a href="https://nmaahc.si.edu/explore/stories/little-rock-nine">federal troops</a> to escort <a href="https://calendar.eji.org/racial-injustice/nov/14">Black students</a> to enroll in formerly all-white schools.</p>
<p>It would be a decade after Brown before the federal courts, a newly enacted <a href="https://www.archives.gov/milestone-documents/civil-rights-act">Civil Rights Act</a> and expanded federal education funding spurred <a href="https://doi.org/10.7758/RSF.2015.1.3.02">greater compliance with desegregation requirements</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/567603/original/file-20240102-29-tyhy67.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Archival photo of 9 Black high school students holding textbooks walking behind military" src="https://images.theconversation.com/files/567603/original/file-20240102-29-tyhy67.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/567603/original/file-20240102-29-tyhy67.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=404&fit=crop&dpr=1 600w, https://images.theconversation.com/files/567603/original/file-20240102-29-tyhy67.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=404&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/567603/original/file-20240102-29-tyhy67.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=404&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/567603/original/file-20240102-29-tyhy67.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=508&fit=crop&dpr=1 754w, https://images.theconversation.com/files/567603/original/file-20240102-29-tyhy67.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=508&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/567603/original/file-20240102-29-tyhy67.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=508&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Little Rock Nine leave Little Rock Central High School in 1957 with a military escort after the governor of Arkansas tried to prevent them from attending the racially segregated school.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/little-rock-arkansas-the-nine-negro-students-leave-little-news-photo/515031416">Bettmann/Getty Images</a></span>
</figcaption>
</figure>
<p>While only 2% of Southern Black K-12 students attended majority white schools in 1964 – 10 years after Brown – the number had <a href="https://civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/brown-at-60-great-progress-a-long-retreat-and-an-uncertain-future/Brown-at-60-051814.pdf">grown to 33%</a> by 1970. The South surpassed all other regions in desegregation progress for Black students. </p>
<h2>Segregation persists</h2>
<p>Public school students today are the most racially diverse in U.S. history. At the time of Brown, about <a href="https://www.gao.gov/assets/gao-22-104737.pdf">90% of students were white</a> and most other students were Black. </p>
<p>Today, according to a <a href="https://www.gao.gov/assets/gao-22-104737.pdf">2022 federal report</a>, 46% of public school students are white, 28% are Hispanic, 15% are Black, 6% Asian, 4% multiracial and 1% American Indian. Based on my analysis of 2021 federal education data, public schools in 22 states and Washington, D.C., served majorities of students of color.</p>
<p>And yet, public schools are deeply segregated. In 2021, approximately 60% of Black and Hispanic public school students attended schools where <a href="https://nces.ed.gov/programs/equity/indicator_d8.asp">75% or more of students</a> were students of color. Black and Hispanic students who attend racially segregated schools also are overwhelmingly enrolled in <a href="https://www.gao.gov/assets/gao-22-104737.pdf">high-poverty schools</a>.</p>
<p>A <a href="https://edbuild.org/content/23-billion/full-report.pdf">2019 report by EdBuild</a>, a nonprofit that produced reports on school funding inequities, found that schools in predominantly nonwhite districts received $23 billion less in funding each year than schools in majority white districts. This equates to roughly $2,200 less per student per year. Unequal funding results in <a href="https://www.gao.gov/assets/gao-16-345.pdf">less student access to advanced, college-prep courses</a>, to name just one example.</p>
<h2>Benefits of diversity</h2>
<p>While Brown was an attempt to address the inequality that students experienced in segregated Black schools, the harms of segregation affect students of all races. </p>
<p>Racially integrated schools are associated with <a href="http://dx.doi.org/10.1037/0022-3514.90.5.751">reduced prejudice</a>, <a href="https://tcf.org/content/report/how-racially-diverse-schools-and-classrooms-can-benefit-all-students/">enhanced critical thinking</a> or simply building <a href="http://www.school-diversity.org/pdf/DiversityResearchBriefNo8.pdf">cross-racial friendships</a> that teach children how to work effectively with others. </p>
<figure class="align-center ">
<img alt="Five students sit at a table doing work under as a teacher checks their work." src="https://images.theconversation.com/files/566412/original/file-20231218-18-vem31h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/566412/original/file-20231218-18-vem31h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/566412/original/file-20231218-18-vem31h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/566412/original/file-20231218-18-vem31h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/566412/original/file-20231218-18-vem31h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/566412/original/file-20231218-18-vem31h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/566412/original/file-20231218-18-vem31h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Racially integrated schools are associated with building cross-racial relationships that teach children how to work effectively with others.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/teacher-looking-in-books-with-children-royalty-free-image/143560401?phrase=school+classroom+elementary&adppopup=true">Klaus Vedfelt/DigitalVision via Getty Images</a></span>
</figcaption>
</figure>
<p>White students are the <a href="https://www.civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/harming-our-common-future-americas-segregated-schools-65-years-after-brown/Brown-65-050919v4-final.pdf">least exposed</a> to students of other races and ethnicities, and therefore they often miss out on the benefits of diversity. Nearly half of white public school students attend a school in which white students are 75% or more of the student body. </p>
<h2>Factors that exacerbate segregation</h2>
<p>Although residential segregation is <a href="https://doi.org/10.1177/2378023121105398">slowly declining</a>, many U.S. communities remain both <a href="https://www.urban.org/urban-wire/residential-segregation-declining-how-can-we-continue-increase-inclusion">racially and economically segregated</a>. Segregated schools, therefore, often reflect segregated neighborhoods.</p>
<p>However, how students are assigned to schools and districts can play a key role in how segregated those schools are.</p>
<p>This is because school attendance boundaries often determine which local public school a student may attend. How those boundaries are drawn or redrawn can exacerbate or alleviate school segregation. More than <a href="https://www.gao.gov/assets/gao-22-104737.pdf">13,000 U.S. public schools</a> that are predominantly of one race are located within 10 miles of a school that is predominantly of another race. </p>
<p>Studies show that <a href="https://doi.org/10.1177/0013161X211024720">redrawing school attendance zones</a> within school districts could make a substantial number of schools less segregated. </p>
<p>The same is true when it comes to school district boundaries. A high level of income and racial segregation also exists <a href="https://doi.org/10.3102/0002831216652722">between neighboring school districts</a>. And district secession – when schools leave an existing school district to <a href="https://www.gao.gov/assets/gao-22-104737.pdf">form a new district</a> – is <a href="https://doi.org/10.1177/2332858419860152">linked to higher segregation</a>. Redrawing district boundaries or preventing the formation of new boundaries could affect segregation.</p>
<p>Another key factor is the rise of public school choice, which allows parents to send children to charter schools or other schools beyond their zoned school. One study found that areas with more students enrolled in charter schools were associated with <a href="https://pubmed.ncbi.nlm.nih.gov/33834227/">higher school segregation</a>.</p>
<h2>Potential solutions</h2>
<p>Several hundred <a href="https://www.gao.gov/products/gao-16-345">remedial court desegregation orders</a>, which require districts to eradicate segregation that existed prior to the Brown decision, still exist. These are largely concentrated in some Southern states. </p>
<p>For the rest of the country, <a href="https://kappanonline.org/voluntary-integration-in-uncertain-times-anderson-frankenberg/">voluntary integration</a> efforts are attempts to finally achieve the goals of the Brown decision. These include Berkeley, California’s <a href="https://www.berkeleyschools.net/admissions/elementary-assignment-plan/">elementary school assignment plan</a> and legal cases brought against states <a href="https://edlawcenter.org/news/archives/other-issues-national/minnesota-supreme-court-school-segregation-can-be-unconstitutional-whether-or-not-the-state-caused-it.html">including Minnesota</a> that challenge existing segregation under <a href="https://cca-ct.org/sheff/">state constitutions</a>. </p>
<p>Finally, since reducing residential segregation could also reduce school segregation, some efforts have combined <a href="https://www2.ed.gov/documents/press-releases/06032016-dear-colleagues-letter.pdf">school desegregation</a> and <a href="https://www.prrac.org/wp-content/uploads/2023/04/AFFH-comment-letter-housing-and-schools.pdf">housing integration</a> policies. Connecticut, for example, has piloted <a href="https://www.cga.ct.gov/2021/FN/PDF/2021HB-06436-R000120-FN.PDF">coordinating housing mobility vouchers</a> for eligible participants in its interdistrict school desegregation program. </p>
<p>Like 70 years ago when Brown was decided, addressing public school segregation remains important for a healthy democracy – one that today is more multiracial than ever before.</p><img src="https://counter.theconversation.com/content/219654/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Erica Frankenberg does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>As the nation approaches the 70-year anniversary of Brown vs. Board of Education, an education professor lays out the state of school segregation in America.Erica Frankenberg, Professor of Education and Demography, Penn StateLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2138112023-09-29T12:24:33Z2023-09-29T12:24:33ZLessons for today from the overlooked stories of Black teachers during the segregated civil rights era<figure><img src="https://images.theconversation.com/files/549789/original/file-20230922-24-riaeuj.jpg?ixlib=rb-1.1.0&rect=525%2C194%2C2981%2C2371&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A Black schoolroom in Mississippi in 1939.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/class-in-a-schoolroom-on-the-mileston-plantation-in-delta-news-photo/615301754?adppopup=true">Corbis via Getty Images</a></span></figcaption></figure><p>My grandmother’s name was Mrs. Zola Jackson. </p>
<p>As one of the handful of Black teachers in Mississippi during the Jim Crow era of racially segregated public schools, she faced a daunting challenge in providing a first-class education to students considered second-class citizens. </p>
<p>Educated at Rust College, a historically Black school, in the 1940s, she taught in the small city of Hattiesburg for over 30 years from 1943-1975, the majority of which was spent in elementary classrooms at DePriest, the school for Black children.</p>
<p>Before the 1954 landmark <a href="https://www.archives.gov/milestone-documents/brown-v-board-of-education">Brown v. Board decision</a> that deemed segregated schools “separate and unequal,” the efforts of Black teachers went unheralded, underappreciated and virtually unknown. </p>
<p>I, too, was disconnected from their stories until I became a public school teacher teacher myself and began <a href="https://www.ideals.illinois.edu/items/126660">my research</a> on the oral histories of Black female teachers in Mississippi during the civil rights era.</p>
<p>My research revealed at least one important lesson: What Black teachers face today is not that different from what we faced in the past. </p>
<h2>In spite of it all</h2>
<p>One of the initial questions that I wanted to answer was, how did educators in the past meet the academic and emotional needs of their students with little to no resources and the constant threat of racial violence?</p>
<p>What I found was that for Black people, education was in and of itself an act of active resistance against racial disenfranchisement.</p>
<p>As education scholar <a href="https://education.illinois.edu/faculty/christopher-span">Christopher Span</a> explained in his 2012 seminal book “<a href="https://uncpress.org/book/9781469622217/from-cotton-field-to-schoolhouse/">From Cottonfield to Schoolhouse</a>”: </p>
<p>“To be educated was to be respected; to be educated was to be a citizen. Accordingly, countless black Mississippians willingly sought out schooling, viewing it as the foundation for self-improvement and one means for attaining social and economic parity in slavery’s aftermath.” </p>
<p>At the center of that rich and complex history were Black teachers who believed that a good education was synonymous with freedom and the desire to move beyond the confines of second-class citizenship. </p>
<p>As a result, Black teachers used classrooms to not only impart the lessons of history, but also to encourage students to be actively involved in the fight for racial equity. </p>
<p>In “<a href="https://uncpress.org/book/9780807845813/their-highest-potential/">Their Highest Potential</a>,” education scholar <a href="https://naeducation.org/our-members/vanessa-siddle-walker/">Vanessa Siddle Walker</a> wrote in 1996 that Black teachers were “consistently remembered by their former students and colleagues "for their high expectations for student success, for their dedication, and for their demanding teaching style.” </p>
<h2>Education was paramount</h2>
<p>Black teachers used many approaches to ensure student success. Here are a few that serve as lessons for today: </p>
<p>Arguably the most important, the first is developing relationships and mentorships. </p>
<p>Because teachers were part of the community during the civil rights era, it was common for them to be an extension of their students’ families. If needed, teachers made home visits, were in regular communication with families about students’ well-being and held students to high academic and behavioral expectations. Further solidifying those relationships was the fact that many of the teachers had taught several generations of families. </p>
<p>These relationships enabled teachers to use what is now known as <a href="https://online.sou.edu/degrees/education/msed/early-childhood-education/whole-child-approach-learning/">the whole child approach</a> that focuses on a student’s academic potential as well as their social and emotional needs. </p>
<p>It was understood by Black teachers that educating the whole child helped to establish foundations needed for academic and emotional growth in young students. Because of their teachers, Black students valued education and modeled their own behavior to achieve their own potential.</p>
<p>A second lesson from the past that is useful today was the emphasis on civic engagement. Back then, classrooms were places to imagine radical change. Inaction in the face of injustice was not a viable option, and there was an expectation that young people work to become leaders.</p>
<figure class="align-left ">
<img alt="A group of Black teenagers carry American flags as they protest against the murder of a civil rights leader." src="https://images.theconversation.com/files/550946/original/file-20230928-25-f7cw8e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/550946/original/file-20230928-25-f7cw8e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=829&fit=crop&dpr=1 600w, https://images.theconversation.com/files/550946/original/file-20230928-25-f7cw8e.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=829&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/550946/original/file-20230928-25-f7cw8e.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=829&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/550946/original/file-20230928-25-f7cw8e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1041&fit=crop&dpr=1 754w, https://images.theconversation.com/files/550946/original/file-20230928-25-f7cw8e.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1041&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/550946/original/file-20230928-25-f7cw8e.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1041&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Black teenagers in Mississippi carry American flags on Jun. 13, 1963, to protest the murder of a civil rights leader.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/african-american-teenagers-carrying-american-flags-protest-news-photo/1211547094?adppopup=true">Archive Photos/Getty Images</a></span>
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</figure>
<p>Going to jail, protesting, risking one’s life and making sacrifices to help the Civil Rights Movement were all realities young people faced and were willing to endure if it meant securing equal rights. </p>
<p>A third lesson is the importance of building coalitions across racial lines. </p>
<p>Groups such as the <a href="https://www.archives.gov/research/african-americans/black-power/sncc">Student Nonviolent Coordinating Committee</a>, the <a href="https://www.loc.gov/exhibits/naacp/the-civil-rights-era.html">NAACP</a> and the <a href="https://kinginstitute.stanford.edu/congress-racial-equality-core">Congress of Racial Equity</a> worked with <a href="https://www.pbs.org/wnet/religionandethics/for-educators/religion-and-the-civil-rights-movement-background/">religious organizations</a> and <a href="https://www.smithsonianmag.com/history/the-freedom-riders-then-and-now-45351758/">white students from colleges</a> during the 1960s <a href="https://kinginstitute.stanford.edu/sit-ins">lunch counter sit-ins</a> and <a href="https://www.britannica.com/event/Freedom-Rides">the freedom rides</a>, as well as <a href="https://kinginstitute.stanford.edu/march-washington-jobs-and-freedom">the 1963 March on Washington for Jobs and Freedom</a>. </p>
<p>But not all coalitions were effective. During a 1967 meeting of the National Council of Negro Women, civil rights activist <a href="https://iucat.iu.edu/iub/9589559">Fannie Lou Hamer</a> criticized the educated middle-class Black alliances in Mississippi with Black ministers and white power brokers. But even still, <a href="https://academic.oup.com/mississippi-scholarship-online/book/29348/chapter-abstract/244098725?redirectedFrom=fulltext&login=false">she explained</a>, “the only thing we can do is to work together.”</p>
<p>Of the many lessons from the past, one handed down from my grandmother still rings true today. </p>
<p>She knew then that education was intended to be the great equalizer in America and the key to upward mobility – and she worked her entire career making sure that became a reality in Hattiesburg, Mississippi. </p>
<p>At the school where my grandmother taught, for instance, she used <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9505395/">creativity</a> to solve a critical problem: DePriest did not have a library. </p>
<p>Instead, my grandmother started her own by bringing in books from her personal collection and letting students borrow them one at a time.</p><img src="https://counter.theconversation.com/content/213811/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Marlee Bunch does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>During the civil rights era, Black teachers were valued members of the community and often taught generations of family members.Marlee Bunch, Staff K-12 Initiatives, Office of the Chancellor, University of Illinois at Urbana-ChampaignLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2036262023-04-20T12:40:42Z2023-04-20T12:40:42ZSupreme Court Justice Clarence Thomas moves to reverse the legacy of his predecessor, Thurgood Marshall<figure><img src="https://images.theconversation.com/files/521925/original/file-20230419-28-6kaum8.png?ixlib=rb-1.1.0&rect=15%2C0%2C801%2C609&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Thurgood Marshall, left, had a very different view of the purpose of the Supreme Court than his successor, Clarence Thomas.</span> <span class="attribution"><span class="source">U.S. Supreme Court via Wikimedia Commons</span></span></figcaption></figure><p>As public attention focuses on Supreme Court Justice Clarence Thomas’ close <a href="https://www.propublica.org/article/clarence-thomas-scotus-undisclosed-luxury-travel-gifts-crow">personal and financial relationship</a> with a politically active conservative billionaire, the scrutiny is overlooking a key role Thomas has played for nearly three decades on the nation’s highest court.</p>
<p>Thomas’ predecessor on the court, Thurgood Marshall, was a <a href="https://www.oyez.org/justices/thurgood_marshall">civil rights lawyer before becoming a justice</a>. In 1991, in his final opinion before retiring after a quarter century on the court, Marshall warned that his fellow justices’ growing appetite to revisit – and reverse – prior decisions would ultimately “<a href="https://supreme.justia.com/cases/federal/us/501/808/#tab-opinion-1958871">squander the authority and legitimacy</a> of this Court as a protector of the powerless.” </p>
<p>His prediction has been quoted by Supreme Court decisions since, including a three-justice dissent from the June 2022 <a href="https://supreme.justia.com/cases/federal/us/597/19-1392/">Dobbs v. Jackson Women’s Health Organization</a> ruling that declared there was no constitutional right to reproductive choice and overturned Roe v. Wade.</p>
<p>In his concurrence with the majority decision in that case, Thomas declared his opposition to Marshall’s principle, lamenting that the court had not done more to pare back its prior work. “<a href="https://supreme.justia.com/cases/federal/us/597/19-1392/">In future cases</a>, we should reconsider all of this Court’s substantive due process precedents,” Thomas wrote – directly implicating Americans’ rights to sexual privacy and same-sex marriage.</p>
<p>Throughout Thomas’ tenure he has pushed the Supreme Court to revisit prior decisions that embraced robust rights for society’s most vulnerable, and to <a href="https://www.sup.org/books/title/?id=35050">replace Marshall’s vision</a> with one more amenable to the powerful than the powerless. And in writing my book tracing the lives and work of both justices, I have seen the fruits of this effort multiply over the past decade.</p>
<h2>A shield for those in need</h2>
<p>Few phrases could so aptly capture Thurgood Marshall’s vision of the court’s work as “protector of the powerless.” And few, if any, Americans have done as much to make that vision a reality. </p>
<p>Marshall’s work to advance Black citizenship is <a href="https://www.oyez.org/justices/thurgood_marshall">well known</a>, but he also fought for expanded rights for <a href="https://supreme.justia.com/cases/federal/us/417/188/">women</a> and the <a href="https://supreme.justia.com/cases/federal/us/397/471/">indigent</a>, the <a href="https://www.oyez.org/cases/1985/84-6263">accused</a> and <a href="https://www.oyez.org/cases/1973/72-1465">convicted</a>, <a href="https://supreme.justia.com/cases/federal/us/432/63/">adherents to marginalized religions</a> and <a href="https://www.oyez.org/cases/1967/510">those with unpopular viewpoints</a>.</p>
<p>At the root of Marshall’s jurisprudence was a hope that while law could be a powerful tool of oppression, it might also be a shield. </p>
<p>As he wrote in that final dissent, in <a href="https://supreme.justia.com/cases/federal/us/501/808/#tab-opinion-1958871">Payne v. Tennessee</a>, enforcement of constitutional rights “frequently requires this Court to rein in the forces of democratic politics,” to protect the powerless from the tyranny of the majority.</p>
<p>While his Payne dissent criticized the court for reversing itself, Marshall was no stranger to calling for reconsideration of established law. Marshall’s signature accomplishment as a lawyer in <a href="https://www.oyez.org/cases/1940-1955/347us483">Brown v. Board of Education</a> was to convince the court to overturn the doctrine of separate but equal that had emerged after the 1896 <a href="https://www.oyez.org/cases/1850-1900/163us537">Plessy v. Ferguson</a> decision. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/521967/original/file-20230419-16-45j37g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Three men in suits stand in front of the Supreme Court building." src="https://images.theconversation.com/files/521967/original/file-20230419-16-45j37g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/521967/original/file-20230419-16-45j37g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=473&fit=crop&dpr=1 600w, https://images.theconversation.com/files/521967/original/file-20230419-16-45j37g.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=473&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/521967/original/file-20230419-16-45j37g.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=473&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/521967/original/file-20230419-16-45j37g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=594&fit=crop&dpr=1 754w, https://images.theconversation.com/files/521967/original/file-20230419-16-45j37g.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=594&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/521967/original/file-20230419-16-45j37g.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=594&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The three attorneys who won Brown v. Board of Education stand outside the Supreme Court after their victory: from left, George E.C. Hayes, Thurgood Marshall and James Nabrit Jr.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/washington-dc-attorneys-who-argued-the-case-against-news-photo/517387902">Bettmann via Getty Images</a></span>
</figcaption>
</figure>
<p>As a justice, Marshall argued passionately and repeatedly that the <a href="https://www.oyez.org/cases/1971/69-5030">death penalty violated the Eighth Amendment</a>’s prohibition on cruel and unusual punishment, leading to a brief period where it was considered unconstitutional.</p>
<p>The distinction between Marshall and Thomas is not really about whether the court should reverse past decisions but simply which ones. </p>
<p>While Marshall willed the court to become a “protector of the powerless,” Thomas has, I believe, argued not only to scale that vision back, but to advance the interests of the powerful.</p>
<h2>Power as a key factor</h2>
<p>While last summer’s abortion decision is an obvious example, Thomas has led the court’s assault on precedent in other areas as well. </p>
<p>For example, years before the court invalidated portions of the Voting Rights Act in <a href="https://www.oyez.org/cases/2012/12-96">Shelby County v. Holder</a>, Thomas had <a href="https://www.law.cornell.edu/supct/html/08-322.ZS.html">argued</a> that the lack of modern voting discrimination made the act unnecessary. </p>
<p>Similarly, recent decisions have followed Thomas’ <a href="https://www.oyez.org/cases/2018/17-1717">lead</a> in weakening the vitality of the First Amendment’s Establishment Clause, which fortifies the separation between church and state. </p>
<p>Thomas has even <a href="https://supreme.justia.com/cases/federal/us/586/17-1026/#tab-opinion-4057622">called</a> for the court to reconsider its ruling in <a href="https://supreme.justia.com/cases/federal/us/372/335/">Gideon v. Wainwright</a>, which established a constitutional right to a lawyer for indigent criminal defendants. </p>
<p>In each case, it is the powerless who stand to be most significantly affected. </p>
<p>Those in need of constitutional protection in Thomas’ view are more likely to be <a href="https://www.oyez.org/cases/2020/20-107">property owners</a>, <a href="https://www.oyez.org/cases/2003/02-1674">corporations making campaign contributions</a> or <a href="https://www.oyez.org/cases/2021/20-843">gun owners</a>.</p>
<h2>On affirmative action</h2>
<p>Perhaps no topic better captures the distinction between the two men’s views than affirmative action, which the court is considering in a pair of cases from <a href="https://www.oyez.org/cases/2022/20-1199">Harvard</a> and the <a href="https://www.oyez.org/cases/2022/21-707">University of North Carolina</a> to be decided this term.</p>
<p>The distrust of government that fuels many of Thomas’ perspectives is never more personal than in cases about the use of race in college admissions. He has railed against affirmative action, saying it brands Black people in prominent positions with a “<a href="https://supreme.justia.com/cases/federal/us/539/306/#tab-opinion-1961291">stigma</a>” about “whether their skin color played a part in their advancement.”</p>
<p>Indeed, Thomas claims his position requiring colorblindness is a <a href="https://supreme.justia.com/cases/federal/us/539/306/#tab-opinion-1961291">better path toward full Black citizenship</a>. He has made that claim even in situations where he knew it would result in more limited access to opportunities for Black students in the short term.</p>
<p>Marshall always looked at the issue from a different perspective, arguing that access to opportunities was essential not only for the Black students affected but for the nation at large. </p>
<p>“If we are ever to become a fully integrated society, one in which the color of a person’s skin will not determine the opportunities available to him or her,” Marshall wrote in 1977, “<a href="https://supreme.justia.com/cases/federal/us/438/265/#tab-opinion-1952757">we must be willing to take steps to open those doors</a>.”</p>
<p>It was access for the powerless that Marshall thought ought drive the thinking of the court.</p>
<p>But this summer, the court may finally embrace a different vision on affirmative action, coming again to a position Thomas has been advocating for decades. </p>
<p>That turn would be yet another reversal squandering Marshall’s vision of the court.</p><img src="https://counter.theconversation.com/content/203626/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Daniel Kiel does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Throughout Thomas’ tenure on the court, he has pushed the Supreme Court to replace Marshall’s vision with one more amenable to the powerful than the powerless.Daniel Kiel, FedEx Professor of Law; Author of The Transition: Interpreting Justice from Thurgood Marshall to Clarence Thomas, University of MemphisLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1923842022-10-31T12:34:34Z2022-10-31T12:34:34ZWhen the Supreme Court loses Americans’ loyalty, chaos – even violence – can follow<figure><img src="https://images.theconversation.com/files/492336/original/file-20221028-41626-toraho.jpeg?ixlib=rb-1.1.0&rect=4%2C8%2C2691%2C2295&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Policemen keep a mob back as James Meredith, a Black student trying to enroll at the University of Mississippi, is driven away after being refused admittance to the all-white university in Oxford on Sept. 25, 1962. </span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/OLEMISSINTEGRATIONMEREDITH/c8f95636a0e5da11af9f0014c2589dfb/photo?Query=James%20Meredith&mediaType=photo&sortBy=arrivaldatetime:asc&dateRange=Anytime&totalCount=447&currentItemNo=30">AP Photo</a></span></figcaption></figure><p>The Supreme Court’s <a href="https://news.gallup.com/poll/402044/supreme-court-trust-job-approval-historical-lows.aspx">historically low public standing</a> has prompted a national conversation about the court’s legitimacy. It’s even drawn rare <a href="https://www.nytimes.com/2022/10/04/opinion/roberts-alito-kagan-barrett-thomas.html">public comment from three sitting Supreme Court justices</a>.
What’s referred to by experts as the problem of “judicial legitimacy” may seem abstract, but the court’s faltering public support is about more than popularity. </p>
<p>Eroding legitimacy means that government officials and ordinary people become increasingly unlikely to accept public policies with which they disagree. And Americans need only look to the relatively recent past to understand the stakes of the court’s growing legitimacy problem.</p>
<h2>Cost ‘paid in blood’</h2>
<p>The Supreme Court’s 1954 decision in <a href="https://www.oyez.org/cases/1940-1955/349us294">Brown v. Board of Education</a> shined a light on many white Americans’ tenuous loyalty to the authority of the federal judiciary. </p>
<p>In Brown, the court unanimously held that racial segregation in public education violates the <a href="https://constitutioncenter.org/the-constitution/amendments/amendment-xiv/clauses/702">equal protection clause of the 14th Amendment</a>. The justices were abundantly aware that their decision would evoke strong emotions. So Chief Justice Earl Warren worked tirelessly to ensure that the court <a href="https://doi.org/10.2307/2128278">issued a unanimous, short and readable opinion</a> designed to <a href="https://academic.oup.com/jpart/article/26/2/185/2886472">calm the anticipated popular opposition</a>. </p>
<p>Warren’s efforts were in vain. Rather than recognizing the court’s authoritative interpretation of the Constitution, many white Americans participated in an extended, violent campaign of resistance to the desegregation ruling.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/492341/original/file-20221028-40936-yzo27.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A highway with old cars on it and a billboard that says 'IMPEACH EARL WARREN' on the side." src="https://images.theconversation.com/files/492341/original/file-20221028-40936-yzo27.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/492341/original/file-20221028-40936-yzo27.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=398&fit=crop&dpr=1 600w, https://images.theconversation.com/files/492341/original/file-20221028-40936-yzo27.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=398&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/492341/original/file-20221028-40936-yzo27.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=398&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/492341/original/file-20221028-40936-yzo27.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=500&fit=crop&dpr=1 754w, https://images.theconversation.com/files/492341/original/file-20221028-40936-yzo27.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=500&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/492341/original/file-20221028-40936-yzo27.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=500&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Resistance in the South to the Supreme Court’s school desegregation order was strong and often violent. This billboard urged impeachment of the court’s then-chief justice, Earl Warren.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/USIMPEACHWARRENBILLBOARD/9cd64cd66ae4da11af9f0014c2589dfb/photo?Query=Brown%20Board%20of%20education&mediaType=photo&sortBy=arrivaldatetime:asc&dateRange=Anytime&totalCount=73&currentItemNo=6">AP photo</a></span>
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</figure>
<p>The <a href="https://www.colorlines.com/articles/tbt-us-court-ruling-enforces-james-merediths-desegregation-ole-miss">integration of the University of Mississippi in 1962</a> provides a pointed example of this resistance. </p>
<p>The Supreme Court had backed a lower federal court that ordered the university to admit <a href="https://50years.olemiss.edu/james-meredith/">James Meredith</a>, a Black Air Force veteran. But Mississippi Gov. Ross Barnett led a wide-ranging effort to stop Meredith from enrolling at Ole Miss, including deploying state and local police to prevent Meredith from entering campus.</p>
<p><a href="https://www.ohpcrm.org/this-day-in-civil-rights-history/september">On Sunday, Sept. 30, 1962</a>, Meredith nevertheless arrived on the university’s campus, guarded by dozens of federal marshals, to register and begin classes the next day. A crowd of 2,000 to 3,000 people gathered on campus and broke into a riot. Meredith and the marshals were attacked with Molotov cocktails and gunfire. The marshals fired tear gas in return. </p>
<p>In response, <a href="https://www.jfklibrary.org/learn/about-jfk/jfk-in-history/civil-rights-movement">President John F. Kennedy invoked the Insurrection Act</a> of 1807 and ordered the U.S. Army onto campus to restore order and protect Meredith. Overnight, thousands of troops arrived, battling rioters. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/492338/original/file-20221028-60919-4dcef0.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Armed troops along a sidewalk in the night, with fire in the background." src="https://images.theconversation.com/files/492338/original/file-20221028-60919-4dcef0.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/492338/original/file-20221028-60919-4dcef0.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=409&fit=crop&dpr=1 600w, https://images.theconversation.com/files/492338/original/file-20221028-60919-4dcef0.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=409&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/492338/original/file-20221028-60919-4dcef0.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=409&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/492338/original/file-20221028-60919-4dcef0.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=514&fit=crop&dpr=1 754w, https://images.theconversation.com/files/492338/original/file-20221028-60919-4dcef0.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=514&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/492338/original/file-20221028-60919-4dcef0.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=514&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President John F. Kennedy called in federal troops to quell the violence against James Meredith’s enrollment in the University of Mississippi in 1962.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/troops-patroling-streets-during-riots-vs-enrollment-of-news-photo/50678789?phrase=james%20meredith%20army&adppopup=true">Lynn Pelham/Getty Images</a></span>
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</figure>
<p>The violence finally ended after 15 hours, leaving two civilians dead – both killed by rioters – and dozens of wounded marshals and soldiers in addition to hundreds of injuries among the insurgent mob. </p>
<p>The next day, <a href="https://www.clarionledger.com/story/news/2022/09/27/60-years-since-james-meredith-enrolled-at-ole-miss/65450135007/">Oct. 1, Meredith enrolled in the university</a> and attended his first class, but thousands of troops remained in Mississippi for months afterward to preserve order.</p>
<p>What some call “the <a href="http://archive.wilsonquarterly.com/book-reviews/american-insurrection-battle-oxford-mississippi-1962">Battle of Oxford</a>” was fueled by white racism and segregation, but it played out against the backdrop of weak judicial legitimacy. Federal courts did not command enough respect among state officials or ordinary white Mississippians to protect the constitutional rights of Black Mississippians. Neither Gov. Barnett nor the thousands of Oxford rioters were willing to follow the court order for Meredith to enroll at the university. </p>
<p>In the end, the Constitution and the federal courts prevailed only because Kennedy backed them with the Army. But the cost of weak judicial legitimacy was paid in blood.</p>
<h2>Legitimacy leads to acceptance</h2>
<p>In contrast, when people believe in the legitimacy of their governing institutions, they are more likely to accept, respect and abide by the rules the government – including the courts – ask them to live under, even when the stakes are high and the consequences are far-reaching.</p>
<p>For example, two decades ago, the Supreme Court resolved a disputed presidential election in <a href="https://www.oyez.org/cases/2000/00-949">Bush v. Gore</a>, centered on the counting of ballots in Florida. This time, the court was deeply divided along ideological lines, and its long, complicated and fragmented opinion <a href="https://www.annualreviews.org/doi/10.1146/annurev.polisci.6.121901.085832">was based on questionable legal reasoning</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/492339/original/file-20221028-61541-9cxnry.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Police in helmets with riot gear with smoke in the background." src="https://images.theconversation.com/files/492339/original/file-20221028-61541-9cxnry.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/492339/original/file-20221028-61541-9cxnry.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/492339/original/file-20221028-61541-9cxnry.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/492339/original/file-20221028-61541-9cxnry.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/492339/original/file-20221028-61541-9cxnry.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/492339/original/file-20221028-61541-9cxnry.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/492339/original/file-20221028-61541-9cxnry.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Clashes between riot police and Donald Trump supporters near the U.S. Capitol on Jan. 6, 2021, in Washington.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/clashes-between-riot-police-and-trump-supporters-near-the-u-news-photo/1230477139?phrase=january%206%202021%20capitol&adppopup=true">Shay Horse/NurPhoto via Getty Images</a></span>
</figcaption>
</figure>
<p>But in 2000, the court enjoyed more robust <a href="https://news.gallup.com/poll/402044/supreme-court-trust-job-approval-historical-lows.aspx">legitimacy</a> <a href="https://www.jstor.org/stable/4092195">among the public</a> than it does today. As a consequence, Florida officials ceased recounting disputed ballots. <a href="https://www.washingtonpost.com/wp-srv/onpolitics/elections/goretext121300.htm">Vice President Al Gore conceded</a> the election to Texas Gov. George W. Bush, <a href="https://abcnews.go.com/Politics/story?id=122220&page=1">specifically accepting the Supreme Court’s pivotal ruling</a>. </p>
<p><a href="https://www.washingtonpost.com/archive/politics/2001/01/07/gore-presides-as-congress-tallies-votes-electing-bush/0461e40f-3317-4a7e-a1ad-2232aae304db/">No Democratic senator</a> challenged the validity of Florida’s disputed Electoral College votes for Bush. <a href="https://www.latimes.com/archives/la-xpm-2001-jan-07-mn-9426-story.html">Congress certified the Electoral College’s vote</a>, and <a href="https://www.nytimes.com/2001/01/21/us/inauguration-president-bush-taking-office-calls-for-civility-compassion-nation.html">Bush was inaugurated</a>. </p>
<p>Democrats were surely disappointed, and <a href="https://www.nytimes.com/2001/01/21/us/inauguration-demonstrations-protesters-thousands-sound-off-capital.html">some protested</a>. But the court was viewed as sufficiently legitimate to produce enough acceptance by enough people to ensure a peaceful transition of power. There was no violent riot; there was no open resistance. </p>
<p>Indeed, on the very night that Gore conceded, the chants of his supporters gathered outside tacitly accepted the outcome: “<a href="https://www.baltimoresun.com/bal-00election35-story.html">Gore in four!</a>” – as if to say, “We’ll get you next time, because we believe there will be a next time.”</p>
<h2>Risks ahead</h2>
<p>But what happens when institutions fail to retain citizens’ loyalty?</p>
<p><a href="https://www.nytimes.com/interactive/2022/us/politics/jan-6-timeline.html">The Jan. 6, 2021, insurrection</a> showcased the consequences of broken legitimacy. The rioters who stormed the Capitol had lost faith in systems that undergird American democracy: counting presidential votes in the states, tallying Electoral College ballots and <a href="https://www.usatoday.com/in-depth/news/politics/elections/2021/01/06/trumps-failed-efforts-overturn-election-numbers/4130307001/">settling disputes over election law in the courts</a>. </p>
<p>The rioters may well have believed their country was being stolen, even if such beliefs were baseless. So, they rebelled in the face of a result they didn’t like. </p>
<p>This threat is far from gone. In addition to numerous important questions about individual rights and the scope of government power, the Supreme Court may soon be asked to resolve disputes over the administration of elections and the power to certify election winners – particularly <a href="https://www.scotusblog.com/case-files/cases/moore-v-harper-2/">the authority to designate a slate of presidential electors</a>. </p>
<p>Nothing is certain in politics, but the specter of constitutional crisis looms over the United States. It’s dangerously unclear whether the Supreme Court retains enough legitimacy to authoritatively resolve such disputes. If it doesn’t, the court’s abstract legitimacy problem could once again end with blood in the streets.</p><img src="https://counter.theconversation.com/content/192384/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joseph Daniel Ura has previously received research funding from the National Science Foundation and funding for academic programs from the Charles Koch Foundation.</span></em></p><p class="fine-print"><em><span>Matthew E. K. Hall has previously received research funding from the National Science Foundation.</span></em></p>What’s at stake when Americans lose faith in the legitimacy of the Supreme Court?Joseph Daniel Ura, Professor of Political Science, Texas A&M UniversityMatthew Hall, University of Notre DameLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1835822022-07-25T12:07:55Z2022-07-25T12:07:55ZAlcohol use more likely among Black youths at racially segregated schools<figure><img src="https://images.theconversation.com/files/467714/original/file-20220608-25-5i4dwt.jpg?ixlib=rb-1.1.0&rect=20%2C20%2C4580%2C3400&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Could structural racism in U.S. schools lead more young African Americans to drink?</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/jet-of-a-bottle-of-cold-beer-of-crystal-on-a-black-royalty-free-image/584320758?adppopup=true">Jose A. Bernat Bacete / Getty Images</a></span></figcaption></figure><p><em>The <a href="https://theconversation.com/us/topics/research-brief-83231">Research Brief</a> is a short take about interesting academic work.</em></p>
<h2>The big idea</h2>
<p>Black youths who attend racially segregated schools are more likely to have drinking and behavior problems during childhood than Black youths in less segregated schools. This is according to a <a href="https://doi.org/10.1542/peds.2021-055952">new study</a> we conducted using <a href="https://psidonline.isr.umich.edu/GettingStarted.aspx">national survey data</a> from 1997 to 2014.</p>
<p>School segregation, defined as the physical separation of students in schools based on their race, was ruled unconstitutional in 1954 as part of the U.S. Supreme Court’s <a href="https://www.history.com/topics/black-history/brown-v-board-of-education-of-topeka">Brown v. Board of Education</a> decision. Consequently, about 1,000 districts nationwide were under court orders to desegregate. </p>
<p>However, school segregation <a href="https://www.pbs.org/wgbh/frontline/article/the-return-of-school-segregation-in-eight-charts/">has increased since 1991</a>, when the first of a series of <a href="https://doi.org/10.1002/pam.21649">court decisions</a> allowed districts to be released from court-ordered desegregation. Highly segregated schools – where less than 10% of students are white – <a href="https://www.civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/brown-at-62-school-segregation-by-race-poverty-and-state/Brown-at-62-final-corrected-2.pdf">increased from 5.7% to 18.6% of all schools</a> – from 1988 to 2013. </p>
<p>Our study is among the first to explore how this recent segregation affects the health of Black children. It examines whether the health of Black children in districts that were released from court-ordered desegregation earlier is different from those in districts released later. </p>
<p>Our research team analyzed data on school segregation levels and health outcomes for about 1,248 Black children ages 5 to 17. We measured school segregation using the dissimilarity index, which indicates the proportion of Black or white students who would need to move to a different school to make all schools in a school district have the same student racial distribution.</p>
<p>We found that the more segregated a school district, the more likely Black students were to have behavioral problems, and the more likely Black students older than 12 years were to drink alcohol. For Black girls, the more segregated the school, the likelihood of having drunk alcohol rose at twice the rate it did for Black boys.</p>
<p><iframe id="trYy3" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/trYy3/5/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<h2>Why it matters</h2>
<p>Earlier studies about school desegregation in the 1960s and 1970s found that it led to improvements in Black people’s well-being, such as <a href="https://doi.org/10.3386/w16664">higher educational and occupational attainment, better self-rated health</a> and <a href="https://doi.org/10.1016/j.socscimed.2011.12.029">reduced teen pregnancy rates</a>.</p>
<p>Yet some scholars have argued that segregated schools can have certain <a href="https://doi.org/10.7758/rsf.2021.7.1.10">benefits</a>. For example, school segregation may have protective effects as Black youths in predominantly Black schools may face less interpersonal racism from white students and teachers than if they went to desegregated schools. </p>
<p>On the other hand, school segregation is a manifestation of structural racism, such that highly segregated schools are often <a href="https://www.jstor.org/stable/10.5149/9780807876770_boger">underfunded, with more crowded classrooms</a>, less experienced teachers and high teacher turnover. Segregated schools also tend to have <a href="https://www.msnbc.com/msnbc/brown-v-board-students-criminalized-msna324866">harsher school discipline</a>.</p>
<p>These stressful environments can increase mental and emotional challenges for Black youths, making them more likely to develop unhealthy coping behaviors like drinking alcohol. In addition, segregated schools are more likely to be in segregated neighborhoods, which are more often <a href="https://doi.org/10.1016/s0277-9536(00)00004-6">targeted for alcohol advertising and have substantially more liquor stores</a>, making it easier for Black youths to obtain alcohol.</p>
<p>The results of our study suggest that the effects of structural racism and low school resources in segregated schools may be greater than the potential for reduced interpersonal racism. </p>
<h2>What still isn’t known</h2>
<p>This study did not examine why well-being was worse among Black youths in more segregated schools. For example, it didn’t examine whether it was because of fewer school counselors, higher stress levels or broader systemic factors. It also did not examine health among other groups like white, Hispanic or Asian children. </p>
<h2>What’s next</h2>
<p>Our team’s next steps are to explore the reasons school segregation affects young people’s well-being, not only for Black youths but also for white youths and other youths of color. Additionally, we plan to examine the long-term impact of school segregation as children transition to adulthood.</p><img src="https://counter.theconversation.com/content/183582/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rita Hamad receives funding from the National Institutes of Health and the Robert Wood Johnson Foundation.</span></em></p><p class="fine-print"><em><span>Guangyi Wang does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>An analysis shows that Black students at more racially segregated schools have a greater tendency to turn to the bottle.Guangyi Wang, Research Specialist, University of California, San FranciscoRita Hamad, Associate Professor of Family Community Medicine, University of California, San FranciscoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1849132022-07-01T13:01:45Z2022-07-01T13:01:45ZDecades after Brown v. Board, US schools still struggle with segregation – 4 essential reads<figure><img src="https://images.theconversation.com/files/469081/original/file-20220615-10596-ka8yii.jpg?ixlib=rb-1.1.0&rect=0%2C10%2C3402%2C1925&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Millicent Brown, left, was one of the first two Black students to integrate a South Carolina public school, in September 1963.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/USAMillicentBrown/deb2f7f4e4f1406aa001d2be2b246af6/photo">AP Photo</a></span></figcaption></figure><p>The Supreme Court’s Brown v. Board of Education decision, handed down in 1954, was supposed to end racial segregation in the nation’s public schools. But that work remains undone, as evidenced by a U.S. Department of Justice collection showing <a href="https://www.justice.gov/crt/educational-opportunities-cases#race">dozens of active school-desegregation cases</a> even in 2022.</p>
<p>To take a more in-depth look at the prevalence and nature of contemporary school segregation in the U.S., The Conversation sought scholars who could discuss the topic from various standpoints – from its legal history to its current status and modern-day efforts to make schools inclusive beyond racial identity. Here are four selections from our past coverage.</p>
<h2>1. The Brown case wasn’t the beginning</h2>
<p>The fight for full equity in schools first went to the courts in 1947, when a group of Black parents in South Carolina wanted their kids to be allowed to ride the bus to school, as the white students could. When the case finally went to federal court in 1951, writes equity scholar <a href="https://news.clemson.edu/our-experts/roy-jones/">Roy Jones</a> at Clemson University, a federal judge suggested more – a suit against school segregation itself.</p>
<p>“A month later, [civil rights lawyer Thurgood] Marshall brought a new case, Briggs v. Elliott, … arguing that school segregation in South Carolina was unconstitutional. This was the first lawsuit in the country to challenge school segregation as a violation of the U.S. Constitution,” Jones writes. “<a href="https://theconversation.com/the-fight-against-school-segregation-began-in-south-carolina-long-before-it-ended-with-brown-v-board-177418">The Brown v. Board case</a> eventually grew out of that South Carolina case.”</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-fight-against-school-segregation-began-in-south-carolina-long-before-it-ended-with-brown-v-board-177418">The fight against school segregation began in South Carolina, long before it ended with Brown v. Board</a>
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</em>
</p>
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<h2>2. Still segregated</h2>
<figure class="align-center ">
<img alt="A group of young adults with varying skin tones socialize outside" src="https://images.theconversation.com/files/461338/original/file-20220504-16-rl3u6o.jpg?ixlib=rb-1.1.0&rect=68%2C43%2C4091%2C3224&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/461338/original/file-20220504-16-rl3u6o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=472&fit=crop&dpr=1 600w, https://images.theconversation.com/files/461338/original/file-20220504-16-rl3u6o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=472&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/461338/original/file-20220504-16-rl3u6o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=472&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/461338/original/file-20220504-16-rl3u6o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=593&fit=crop&dpr=1 754w, https://images.theconversation.com/files/461338/original/file-20220504-16-rl3u6o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=593&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/461338/original/file-20220504-16-rl3u6o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=593&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Court-ordered desegregation has happened in the U.S. as recently as 2015, when a federal judge issued a desegregation order to the Cleveland, Miss., school district.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/DesegregationAfterBusing/8b893af637dc4f649c093e983c0d005f/photo">AP Photo/Rogelio V. Solis</a></span>
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<p>The Brown decision declared that public schools could not be segregated by race anymore, but the process took years and is still incomplete, writes <a href="https://scholar.google.com/citations?user=8z4YFq0AAAAJ&hl=en&oi=ao">Pedro Noguera</a>, an educational sociologist at the University of Southern California.</p>
<p>“American society continues to grow more racially and ethnically diverse. But <a href="https://theconversation.com/us-schools-are-not-racially-integrated-despite-decades-of-effort-177849">many of the nation’s public K-12 schools</a> are not well integrated and are instead predominantly attended by students of one race or another,” he writes. </p>
<p>In fact, Noguera explains, “in 2018-2019, the most recent school year for which data is available, 42% of Black students attended majority-Black schools, and 56% of Hispanic students attended majority-Hispanic schools. Even more striking, 79% of white students in America went to majority-white schools during the same period.”</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/us-schools-are-not-racially-integrated-despite-decades-of-effort-177849">US schools are not racially integrated, despite decades of effort</a>
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</em>
</p>
<hr>
<h2>3. Economic segregation</h2>
<p>Racial differences aren’t the only way U.S. schools are segregated. Education policy scholar <a href="https://scholar.google.com/citations?user=NOT4bMEAAAAJ&hl=en&oi=ao">Kari Dalane</a> at the American University School of Public Affairs and a collaborator looked at how students are split up into classrooms within schools.</p>
<p>“<a href="https://theconversation.com/students-are-often-segregated-within-the-same-schools-not-just-by-being-sent-to-different-ones-179266">We found that … economically disadvantaged students</a> were increasingly likely to be concentrated in a subset of classrooms rather than spread out relatively evenly throughout the school,” Dalane writes.</p>
<p>That’s a problem because, as she explains, “more experienced teachers raise student test scores more than novice teachers, on average. However, novice teachers are frequently assigned to classrooms with more low-income students. Therefore, the more students are separated along lines of household income, the more likely poorer students are to fall behind academically.”</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/students-are-often-segregated-within-the-same-schools-not-just-by-being-sent-to-different-ones-179266">Students are often segregated within the same schools, not just by being sent to different ones</a>
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</em>
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<h2>4. Children with disabilities</h2>
<figure class="align-center ">
<img alt="A teacher speaks with students who are raising their hands." src="https://images.theconversation.com/files/468082/original/file-20220609-18-6twc2p.jpg?ixlib=rb-1.1.0&rect=31%2C0%2C5207%2C3257&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/468082/original/file-20220609-18-6twc2p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=372&fit=crop&dpr=1 600w, https://images.theconversation.com/files/468082/original/file-20220609-18-6twc2p.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=372&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/468082/original/file-20220609-18-6twc2p.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=372&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/468082/original/file-20220609-18-6twc2p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=468&fit=crop&dpr=1 754w, https://images.theconversation.com/files/468082/original/file-20220609-18-6twc2p.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=468&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/468082/original/file-20220609-18-6twc2p.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=468&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Learning support teachers such as Sabrina Werley in Pennsylvania are common, but schools’ services can vary widely.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/sabrina-werley-works-with-her-4th-grade-students-in-a-math-news-photo/1312861050">Ben Hasty/MediaNews Group/Reading Eagle via Getty Images</a></span>
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<p>In the wake of the Brown decision came another effort – to include children with disabilities in the nation’s classrooms, rather than sending them to specialized schools focused on addressing their weaknesses.</p>
<p>A 1979 lawsuit ultimately asked the Supreme Court to interpret a 1975 law that said “children have the right to a ‘free appropriate public education’ in the ‘least restrictive environment’ possible in which their needs can be met,” explains education law scholar <a href="https://scholar.google.com/citations?user=T3b-g5YAAAAJ&hl=en&oi=ao">Charles Russo</a> at the University of Dayton.</p>
<p>The lawsuit didn’t go well. In 1982, the Supreme Court ruled that a deaf student didn’t qualify for a sign-language interpreter because the student was doing well enough, even though an interpreter could have helped the student learn more and do better.</p>
<p>It took 35 years – until 2017 – for the Supreme Court to rule that schools owed students with disabilities an actually equal chance to make the most of their talents and promise. “<a href="https://theconversation.com/decades-after-special-education-law-and-key-ruling-updates-still-languish-181560">Progress – and potential – were the new standards, not merely getting by</a>,” Russo writes.</p>
<p>But it’s not clear how long it will take before every child has those opportunities.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/decades-after-special-education-law-and-key-ruling-updates-still-languish-181560">Decades after special education law and key ruling, updates still languish</a>
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<img src="https://counter.theconversation.com/content/184913/count.gif" alt="The Conversation" width="1" height="1" />
The effort to give every student equal access to an education has lasted decades and may need even more time before the goal is reached.Jeff Inglis, Politics + Society Editor, The Conversation USLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1774182022-05-16T12:14:30Z2022-05-16T12:14:30ZThe fight against school segregation began in South Carolina, long before it ended with Brown v. Board<figure><img src="https://images.theconversation.com/files/462856/original/file-20220512-13-ci3zoh.jpg?ixlib=rb-1.1.0&rect=0%2C35%2C3402%2C1899&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Millicent Brown, left, was one of the first two Black students to integrate a South Carolina public school, in September 1963.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/USAMillicentBrown/deb2f7f4e4f1406aa001d2be2b246af6/photo">AP Photo</a></span></figcaption></figure><p>When it comes to the case of <a href="https://www.britannica.com/event/Brown-v-Board-of-Education-of-Topeka">Brown v. Board of Education</a>, the 1954 Supreme Court decision that outlawed school segregation, the focus is often on Topeka, Kansas, the home of the Brown family and the school board that it sued. But the story of the case actually had several starts, years before the case was decided and more than a thousand miles away.</p>
<p>In 1947, Black families in Clarendon County, South Carolina, <a href="https://doi.org/10.2307/j.ctv6wgg3p">asked the county to provide school buses</a> for Black children, just as it did for white children. The county refused, so with the help of the NAACP, the nation’s oldest civil rights organization, 20 Black parents <a href="https://doi.org/10.2307/j.ctv6wgg3p">prepared to sue</a>, led by Joseph A. De Laine, a local reverend and public school principal. </p>
<p>Even before the suit was filed, one of the parents, <a href="https://www.pbs.org/wgbh/americanexperience/features/blinding-isaac-woodard-briggs-v-elliott/">Harry Briggs, was fired from his job</a> at a local service station and had to <a href="https://doi.org/10.2307/j.ctv10tq3jn">leave the state</a> to find a new one to support his family. And De Laine himself was <a href="https://doi.org/10.2307/j.ctv6wgg3p">fired from his principal’s position</a></p>
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<a href="https://images.theconversation.com/files/462854/original/file-20220512-20-u2qaa1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a clerical collar" src="https://images.theconversation.com/files/462854/original/file-20220512-20-u2qaa1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/462854/original/file-20220512-20-u2qaa1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=693&fit=crop&dpr=1 600w, https://images.theconversation.com/files/462854/original/file-20220512-20-u2qaa1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=693&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/462854/original/file-20220512-20-u2qaa1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=693&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/462854/original/file-20220512-20-u2qaa1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=871&fit=crop&dpr=1 754w, https://images.theconversation.com/files/462854/original/file-20220512-20-u2qaa1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=871&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/462854/original/file-20220512-20-u2qaa1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=871&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Rev. Joseph A. De Laine, a key advocate for school equality and integration.</span>
<span class="attribution"><a class="source" href="https://columbiavoice.cic.sc.edu/the-fight-to-carry-on-the-legacy-of-rev-joseph-delaine/">Columbia Voice, University of South Carolina</a></span>
</figcaption>
</figure>
<p>Various legal and procedural hurdles followed, during which the NAACP decided the best strategy for making a case would be based not on busing but overall educational equity. In 1951, the organization <a href="https://law.justia.com/cases/federal/district-courts/FSupp/98/529/1899720/">filed a federal lawsuit</a> demanding that Black students should get the same educational resources and facilities as white children. The suit pointed to Scott’s Branch High School, an all-Black school in Summerton, one of the towns in Clarendon County. Even the school district’s lawyers admitted that the town’s all-white Summerton High School had <a href="https://www.worldcat.org/title/brown-vs-board-of-education-of-topeka-a-brief-history-with-documents/oclc/1085175082&referer=brief_results">substantially better facilities, equipment and educational quality</a>. </p>
<p>During a pretrial hearing, federal Judge <a href="https://doi.org/10.2307/j.ctv10tq3jn">Julius Waties Waring</a> persuaded Thurgood Marshall, the attorney handling the case on behalf of the NAACP, to <a href="https://www.postandcourier.com/opinion/waring-bravely-moved-ahead-of-his-time-for-racial-justice/article_6da043e7-0623-549e-9941-7b6a4e223414.html">argue against school segregation itself</a>, saying, “Bring me a frontal attack on segregation. I don’t want another separate but equal case.” A month later, Marshall brought a new case, <a href="https://brownvboard.org/content/brown-case-briggs-v-elliott">Briggs v. Elliott</a>, named for one of the 20 petitioners, arguing that school segregation in South Carolina was unconstitutional. This was <a href="https://doi.org/10.2307/j.ctv6wgg3p">the first lawsuit in the country</a> to challenge school segregation as a violation of the U.S. Constitution. </p>
<p>The Brown v. Board case eventually grew out of that South Carolina case. As <a href="https://news.clemson.edu/our-experts/roy-jones/">someone who has been in close contact</a> with descendants of several family members who had direct involvement in the Briggs case, I believe the outcome of their struggle was a turning point in the fight for equality. </p>
<h2>Fighting the constitution</h2>
<p>The plaintiffs of the Briggs v. Elliot case sought to challenge the <a href="https://www.scstatehouse.gov/scconstitution/scconst.php">South Carolina state constitution</a>, which established its separate school system. According to the 1895 state constitution:</p>
<blockquote>
<p>“Separate schools shall be provided for children of the white and colored races and no child of either race shall ever be permitted to attend a school provided for children of the other race.” </p>
</blockquote>
<p>The lawyers defending South Carolina’s school segregation system acknowledged the state’s Black and white schools were not equal. But they pointed out efforts by the new governor, James F. Byrnes, a former U.S. Supreme Court justice and devout segregationist, to raise the state sales tax to <a href="http://www.scequalizationschools.org/equalization-schools.html">fund new buildings</a> and improved programs. That should be enough, they argued, to solve the problem at the heart of the lawsuit. </p>
<p>Since it was a challenge to the state constitution, the Briggs case had to be heard by three judges in the federal District Court in Charleston, one of whom was Waring. The ruling was a split decision, with Judges John J. Parker and George B. Timmerman ruling that South Carolina’s segregation requirement did not violate <a href="https://www.law.cornell.edu/constitution/amendmentxiv">the 14th Amendment of the U.S. Constitution</a>. But Waring <a href="https://catalog.archives.gov/id/279306">disagreed</a>, writing “<a href="https://law.justia.com/cases/federal/district-courts/FSupp/98/529/1899720/">segregation is per se inequality</a>.”</p>
<p>When the case was appealed to the Supreme Court, it was combined with four other very similar cases, including the Brown v. Board case from Kansas.</p>
<h2>Retaliations</h2>
<p>Before the Supreme Court ruling, De Laine moved about 50 miles away, seeking to escape the harassment he was experiencing from segregationists in Summerton. After he moved, they <a href="https://doi.org/10.2307/j.ctv6wgg3p">burned down his Summerton home</a>.</p>
<p>In his new town, De Laine also faced opposition, including from S.E. Rogers, the attorney for the defendants in the Briggs case, who <a href="https://doi.org/10.2307/j.ctv10tq3jn">organized a group of local segregationists</a> to rally against integration.</p>
<p>De Laine’s new home, next to the church to which he had been assigned, was vandalized multiple times, and the church was burned down on the night of Oct. 5, 1955. Five days later, De Laine fled South Carolina after learning he would face attempted murder charges for shooting back at a car filled with <a href="https://doi.org/10.2307/j.ctv6wgg3p">threatening segregationists</a>. He eventually made his way to New York. </p>
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<a href="https://images.theconversation.com/files/462855/original/file-20220512-13-1ulxfv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A one-story brick building with a flagpole out front." src="https://images.theconversation.com/files/462855/original/file-20220512-13-1ulxfv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/462855/original/file-20220512-13-1ulxfv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=239&fit=crop&dpr=1 600w, https://images.theconversation.com/files/462855/original/file-20220512-13-1ulxfv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=239&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/462855/original/file-20220512-13-1ulxfv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=239&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/462855/original/file-20220512-13-1ulxfv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=301&fit=crop&dpr=1 754w, https://images.theconversation.com/files/462855/original/file-20220512-13-1ulxfv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=301&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/462855/original/file-20220512-13-1ulxfv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=301&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The building that was Summerton High School, the town’s all-white school, closed in 1966 to avoid integration. Years later, it became a school district administration office.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Summerton_High_School.jpg">Bill Fitzpatrick via Wikimedia Commons</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<h2>The aftermath</h2>
<p>It took <a href="https://www.theatlantic.com/education/archive/2020/09/firsts-school-segregation-south-carolina/616492/">years after the landmark Brown decision</a> for its effects to really be felt in South Carolina. The first K-12 district in the state to desegregate was Charleston County School District, in <a href="http://www.scequalizationschools.org/desegregation-at-last.html">September 1963</a>. </p>
<p>Clarendon County school officials decided to close Summerton High School in 1966 to avoid integration. Instead, white parents sent their children to <a href="https://doi.org/10.2307/j.ctv10tq3jn">the newly built private Clarendon Hall school</a>. Meanwhile, the Black students remained at Scott’s Branch High School. </p>
<p>Summerton High School stayed closed for over 20 years, only reopening in the late 1980s as an administrative office for the school district.</p>
<p>Although the outcome of the Brown decision arguably led to equal facilities, resources and bus transportation, it fell short of significantly integrating Black and white students in the district’s public schools. In 2022, Summerton public schools remained <a href="https://www.publicschoolreview.com/south-carolina/clarendon-01-school-district/4501740-school-district">95% Black</a>, while most white students in Summerton attended the private Clarendon Hall school.</p><img src="https://counter.theconversation.com/content/177418/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>I have met and interviewed descendants of the Joseph A. De Laine family, Pearson family, Briggs family and Elliott family mentioned in the article.
I am a tenured Professor in the Educational & Organizational Leadership Dept., College of Education, Clemson University. </span></em></p>The Brown v. Board of Education case, which resulted in the Supreme Court outlawing school segregation, originally started in Clarendon County, South Carolina.Roy Jones, Professor of Leadership, Counselor Education, Human and Organizational Development; Executive director, Call Me MISTER, Clemson UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1778492022-05-13T12:15:36Z2022-05-13T12:15:36ZUS schools are not racially integrated, despite decades of effort<figure><img src="https://images.theconversation.com/files/461338/original/file-20220504-16-rl3u6o.jpg?ixlib=rb-1.1.0&rect=68%2C43%2C4091%2C3224&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Court-ordered desegregation has happened in the U.S. as recently as 2015, when a federal judge issued a desegregation order to the Cleveland, Miss., school district.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/DesegregationAfterBusing/8b893af637dc4f649c093e983c0d005f/photo">AP Photo/Rogelio V. Solis</a></span></figcaption></figure><p>Nearly seven decades after the U.S. Supreme Court’s unanimous landmark <a href="https://www.history.com/topics/black-history/brown-v-board-of-education-of-topeka">Brown v. Board of Education decision</a> in 1954, the court’s declared goal of integrated education is still not yet achieved.</p>
<p>American society continues to <a href="https://www.brookings.edu/research/new-census-data-shows-the-nation-is-diversifying-even-faster-than-predicted/">grow more racially and ethnically diverse</a>. But many of the nation’s public K-12 <a href="https://nces.ed.gov/blogs/nces/post/new-report-shows-increased-diversity-in-u-s-schools-disparities-in-outcomes">schools are not well integrated</a> and are instead predominantly attended by students of one race or another.</p>
<p>As an <a href="https://scholar.google.com/citations?user=8z4YFq0AAAAJ&hl=en&oi=ao">educational sociologist</a>, I fear that the nation has effectively decided that it’s simply not worth continuing to pursue the goals of Brown. I also fear that accepting failure could portend a return to the days of the case that Brown overturned, the <a href="https://supreme.findlaw.com/supreme-court-insights/plessy-v--ferguson-case-summary.html">1896 Plessy v. Ferguson decision</a>. That case set “<a href="https://www.history.com/topics/black-history/plessy-v-ferguson">separate but equal</a>” facilities for different races, including schools and universities, as the national priority. </p>
<p>The Brown decision was based upon a repudiation of that idea and the recognition that “separate but equal” was never achieved. I remain convinced it never will be.</p>
<h2>A historic push</h2>
<p>In many ways, it would be startling to declare the ideal of integrated schooling a lost cause. Integration was so important in 1957 that Republican President Dwight D. Eisenhower <a href="https://www.npr.org/2007/09/24/14654126/little-rock-remembers-troops-arrival">sent federal troops</a> to Little Rock, Arkansas, to ensure that nine Black students were safe when they enrolled in the city’s Central High School. </p>
<p>Despite the federal government’s intervention, in the 1960s and 1970s, many communities across the U.S. experienced <a href="https://theconversation.com/how-did-white-students-respond-to-school-integration-after-brown-v-board-of-education-164671">considerable conflict and even bloodshed</a>. Many white citizens actively and violently opposed school integration, which often came in the form of <a href="https://theconversation.com/the-supreme-court-decision-that-kept-suburban-schools-segregated-120478">court-mandated busing</a> of Black students to schools in predominantly white neighborhoods. </p>
<p>Despite the opposition, many Americans <a href="https://www.worldcat.org/title/children-of-the-dream-why-school-integration-works/oclc/1080251375">worked incredibly hard</a> to make integration happen, and its <a href="https://tcf.org/content/commentary/school-integration-is-popular-we-can-make-it-more-so/?session=1">benefits are clear</a>: Many American children have experienced enhanced educational opportunities and improved academic success as a result of these efforts.</p>
<h2>Separated, if not segregated</h2>
<p>However, in 2018-2019, the most recent school year for which data is available, <a href="https://www.pewresearch.org/fact-tank/2021/12/15/u-s-public-school-students-often-go-to-schools-where-at-least-half-of-their-peers-are-the-same-race-or-ethnicity/">42% of Black students attended majority-Black schools</a>, and 56% of Hispanic students attended majority-Hispanic schools. Even more striking, 79% of white students in America went to majority-white schools during the same period.</p>
<p>Those statistics signal the existence of what is, in fact, a racially separate educational system. But these statistics about race don’t show how common separation by socioeconomic status is in most urban schools throughout the U.S. Low-income Black and Hispanic students are most likely to attend schools where the <a href="https://www.civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/segregating-california2019s-future-inequality-and-its-alternative-60-years-after-brown-v.-board-of-education/">majority of children are poor</a> and the <a href="https://www.usnews.com/news/blogs/data-mine/2015/01/28/us-education-still-separate-and-unequal">resources available to serve them are inadequate</a>.</p>
<p>Since 2001, education policymakers have made bold promises to close what has been called the “<a href="https://www.brookings.edu/articles/broken-promises-what-the-federal-government-can-do-to-improve-american-education/">racial achievement gap</a>.” Yet they have largely ignored the fact that throughout the nation, poor children of color are most likely to attend schools where they are not only separated by race and class, but where the <a href="https://www.theatlantic.com/education/archive/2016/02/concentration-poverty-american-schools/471414/">quality of the education they receive is below</a> that of their white peers.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/461347/original/file-20220504-21-thv1g3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A young Black girl in a white dress walks through a crowd of white people" src="https://images.theconversation.com/files/461347/original/file-20220504-21-thv1g3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/461347/original/file-20220504-21-thv1g3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=404&fit=crop&dpr=1 600w, https://images.theconversation.com/files/461347/original/file-20220504-21-thv1g3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=404&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/461347/original/file-20220504-21-thv1g3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=404&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/461347/original/file-20220504-21-thv1g3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=508&fit=crop&dpr=1 754w, https://images.theconversation.com/files/461347/original/file-20220504-21-thv1g3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=508&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/461347/original/file-20220504-21-thv1g3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=508&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">In 1962, Carolyn Roberson, at center in a white dress, was one of the first Black students to attend Pensacola High School in Pensacola, Fla.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/CivilRightsSchoolIntegration/6a403b857a864b65bb23a9ed2ce41ffb/photo">AP Photo/Jim Bourdier</a></span>
</figcaption>
</figure>
<h2>Housing and school choices</h2>
<p>Several factors help to explain the degree of race and class separation and educational inequality that is now pervasive in America. To begin with, many communities throughout the United States continue to be characterized by a high degree of racial and socioeconomic separation. However, while residential patterns pose an obstacle, a 2018 study by the Urban Institute found that <a href="https://www.urban.org/features/segregated-neighborhoods-segregated-schools">neighborhood segregation does not in itself explain</a> current patterns of school segregation. The study identified several cities and suburban communities where schools are significantly more segregated than the neighborhoods in which they are located. </p>
<p>Policies that allow parents to choose which of their district’s public schools their children attend have done little to alter these trends and, in fact, may contribute to the problem. Several studies have shown that <a href="https://doi.org/10.3390/educsci9030205">public charter schools</a> are <a href="https://www.educationnext.org/do-charter-schools-increase-segregation-first-national-analysis-reveals-modest-impact/">more likely to be intensely racially divided</a> than traditional public schools. </p>
<p>Furthermore, in most major American cities, affluent residents are <a href="https://nces.ed.gov/programs/coe/indicator/cgc">more likely to enroll their children</a> in private schools than public schools. This includes many affluent parents of color, who often choose to enroll their children in predominantly white independent schools in search of a better education, even when their children <a href="https://www.brookings.edu/blog/how-we-rise/2021/11/24/growing-up-as-a-black-male-student-in-white-suburbia-what-i-learned/">experience race-related microaggressions and alienation</a>.</p>
<p>In the past 20 years, cities such as <a href="https://www.jchs.harvard.edu/sites/default/files/Harvard_JCHS_mapping_neighborhood_change_boston_january_2019.pdf">Boston</a>, <a href="https://www.nytimes.com/2021/08/17/realestate/black-homeowners-gentrification.html">New York</a>, <a href="https://303magazine.com/2022/02/denvers-neighborhoods-changing/">Denver</a>, <a href="https://www.politico.com/news/magazine/2022/04/15/washington-dc-gentrification-black-political-power-00024515">Washington, D.C.</a>, and <a href="https://www.seattletimes.com/seattle-news/data/as-south-seattle-gentrifies-white-people-become-largest-racial-group/">Seattle</a> have seen affluent <a href="https://www.brookings.edu/blog/the-avenue/2015/10/01/more-big-cities-are-gaining-white-population-census-data-show/">white populations increase</a> – but the overwhelming majority of students in those cities’ public schools are from <a href="https://www.cgcs.org/domain/360">low-income Black and Hispanic households</a>. Those sorts of racial imbalances have increasingly become the norm.</p>
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<a href="https://images.theconversation.com/files/461348/original/file-20220504-11-ixl8f6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A group of young Black people sit around tables in a classroom" src="https://images.theconversation.com/files/461348/original/file-20220504-11-ixl8f6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/461348/original/file-20220504-11-ixl8f6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/461348/original/file-20220504-11-ixl8f6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/461348/original/file-20220504-11-ixl8f6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/461348/original/file-20220504-11-ixl8f6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/461348/original/file-20220504-11-ixl8f6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/461348/original/file-20220504-11-ixl8f6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">High school medical students at the King/Drew Magnet High School of Medicine and Science in Los Angeles await a visit from U.S. Surgeon General Vivek H. Murthy in 2021.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SurgeonGeneralCalifornia/fdcb374b648c4d7e8ed9c211cf628bcd/photo">AP Photo/Damian Dovarganes</a></span>
</figcaption>
</figure>
<h2>Integration can succeed</h2>
<p>When the poorest and most vulnerable children are concentrated into particular schools, it is even more difficult to achieve racial equality in educational opportunity, either through integration as called for by Brown or by pursuing “separate but equal” as called for by Plessy.</p>
<p>There is good reason to be concerned. For decades there has been <a href="https://www.urban.org/sites/default/files/publication/65766/2000369-Child-Poverty-and-Adult-Success.pdf">consistent evidence</a> that when schools serve a disproportionate number of children in poverty, they are <a href="https://doi.org/10.1001/jamapediatrics.2015.1475">less likely to improve students’ academic success</a>.</p>
<p>The evidence also shows that when Black and Hispanic children attend racially integrated schools, they tend to <a href="https://tcf.org/content/facts/the-benefits-of-socioeconomically-and-racially-integrated-schools-and-classrooms/?agreed=1">outperform their peers who do not</a>. For example, students who have participated in the <a href="https://metcoinc.org/">Metco program</a>, a voluntary desegregation effort that makes it possible for children of color from Boston to be bused to affluent schools in the suburbs, have <a href="https://pioneerinstitute.org/pioneer-research/education-pioneer-research/metco-merits-more/">fared better academically</a> than their counterparts who remained in Boston’s racially isolated schools. The research doesn’t show whether that is because of the superior resources available in predominantly white suburban schools or the fact that they have parents who are active enough to get them into suburban schools. It may be that both factors play a role.</p>
<p>A <a href="http://transformschools.ucla.edu/beyond-the-schoolhouse-digging-deeper/">2018 study</a> from UCLA found that all the schools that produce significant numbers of Black students who are eligible for admission to the University of California are racially integrated. Unfortunately, the study also found that most Black students in Los Angeles don’t attend integrated schools.</p>
<p>However, the study also found one notable exception: the <a href="https://www.kingdrew.net/">King/Drew Health Sciences Magnet High School of Medicine and Science</a> in the Watts neighborhood of Los Angeles. That school, which serves almost exclusively Black and Hispanic students, <a href="http://transformschools.ucla.edu/beyond-the-schoolhouse-digging-deeper/">sends more Black students to the University of California</a> than any other high school in the state of California. </p>
<p>At King/Drew, students have a <a href="https://www.kingdrew.net/apps/pages/index.jsp?uREC_ID=1526142&type=d&pREC_ID=1374191">rigorous, enriched education</a> that includes many honors and <a href="https://www.kingdrew.net/apps/pages/ap">Advanced Placement courses</a>. Those opportunities are the norm at many affluent suburban schools, but they are <a href="https://www.americanprogress.org/article/closing-advanced-coursework-equity-gaps-students/">rare at public schools in urban areas</a>.</p>
<p>The scarcity of schools like King/Drew – well-resourced and serving a low-income or majority-minority student body – should serve as a reminder that racially separate schools are rarely equal. When Thurgood Marshall and the NAACP took the Brown case, they knew that <a href="https://www.smithsonianmag.com/history/how-thurgood-marshall-paved-road-brown-v-board-education-180977197/">funding for education generally followed white students</a>.</p>
<p>That was true in 1954, and it is largely true today. A recent study found that nonwhite school districts in the U.S. receive <a href="https://edbuild.org/content/23-billion">US$23 billion less in funding</a> than predominantly white schools, though they serve the same number of students.</p>
<p>For this reason, on the occasion of the 68th anniversary of the Brown decision, I believe it is important to remember why and how civil rights and educational opportunity remain so deeply intertwined. Despite its flaws and limitations, the effort to racially integrate the nation’s schools has been and continues to be important given the type of <a href="https://www.census.gov/library/visualizations/2021/comm/a-more-diverse-nation.html">pluralistic and diverse nation</a> the U.S. is becoming. It also plays a central role in the ongoing pursuit of racial equality.</p><img src="https://counter.theconversation.com/content/177849/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Pedro A. Noguera does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Though the 1954 Brown v. Board ruling required the integration of public education, US schools remain separated by race.Pedro A. Noguera, Dean, USC Rossier School of Education, University of Southern CaliforniaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1829082022-05-11T14:41:12Z2022-05-11T14:41:12ZUS Senate to vote on abortion rights bill – but what would it mean to codify Roe into law?<figure><img src="https://images.theconversation.com/files/462507/original/file-20220511-13-9qbhu7.jpg?ixlib=rb-1.1.0&rect=26%2C71%2C5964%2C3916&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Senate Majority Leader Chuck Schumer speaks to reporters ahead of a vote on abortion rights.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtAbortionCongress/788ce60694544a0e88e5cbb6aca84b6b/photo?Query=abortion%20Senate&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=1277&currentItemNo=18">AP Photo/J. Scott Applewhite</a></span></figcaption></figure><p><em>The U.S. Senate is <a href="https://www.npr.org/2022/05/11/1097980529/senate-to-vote-on-a-bill-that-codifies-abortion-protections-but-it-will-likely-f">expected to vote on May 11, 2022</a>, on a bill that would enshrine the right to an abortion into law.</em></p>
<p><em>The Democrats’ bill, the <a href="https://www.congress.gov/bill/117th-congress/house-bill/3755/text">Women’s Health Protection Act</a>, isn’t expected to pass – a previous attempt was blocked by the Senate. But it reflects attempts by abortion rights advocates to find alternative ways to protect a woman’s right to the procedure following the publication of a <a href="https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473">leaked draft opinion</a> from Justice Samuel Alito indicating that a majority on the Supreme Court intend to overturn Roe v. Wade.</em></p>
<p><em>But is enshrining abortion rights via legislation feasible? And why has it not been done before? The Conversation put these questions and others to <a href="https://www.bu.edu/law/profile/linda-c-mcclain/">Linda C. McClain</a>, an expert on civil rights law and feminist legal theory at Boston University School of Law.</em></p>
<h2>What does it mean to ‘codify’ Roe v. Wade?</h2>
<p>In simple terms, to <a href="https://www.law.cornell.edu/wex/codify#:%7E:text=To%20codify%20means%20to%20arrange,by%20subject%2C%20into%20a%20code.">codify something</a> means to enshrine a right or a rule into a formal systematic code. It could be done through an act of Congress in the form of a federal law. Similarly, state legislatures can codify rights by enacting laws. To codify Roe for all Americans, Congress would need to pass a law that would provide the <a href="https://www.nytimes.com/2022/05/03/us/what-is-roe-v-wade.html">same protections that Roe</a> did – so a law that states that women have a right to abortion without excessive government restrictions. It would be binding for all states.</p>
<p>But here’s the twist: Despite some politicians saying that they want to “codify Roe,” Congress isn’t looking to enshrine Roe in law. That’s because <a href="https://www.oyez.org/cases/1971/70-18">Roe v. Wade</a> hasn’t been in place since 1992. The Supreme Court’s <a href="https://www.oyez.org/cases/1991/91-744">Planned Parenthood. v. Casey</a> ruling affirmed it, but also modified it in significant ways. </p>
<p>In Casey, the court upheld Roe’s holding that a woman has the right to choose to terminate a pregnancy up to the point of fetal viability and that states could restrict abortion after that point, subject to exceptions to protect the life or health of the pregnant woman. But the Casey court concluded that Roe too severely limited state regulation prior to fetal viability and held that states could impose restrictions on abortion throughout pregnancy to protect potential life as well as to protect maternal health – including during the first trimester.</p>
<p>Casey also introduced the “<a href="https://reproductiverights.org/wp-content/uploads/2020/12/WWH-Undue-Burden-Report-07262018-Edit.pdf">undue burden” test</a>, which prevented states from imposing restrictions that had the purpose or effect of placing unnecessary barriers on women seeking to end a pregnancy prior to viability of the fetus.</p>
<h2>What is the Women’s Health Protection Act?</h2>
<p>Current efforts to pass federal legislation protecting the right to abortion center on the proposed <a href="https://www.congress.gov/bill/117th-congress/house-bill/3755/text">Women’s Health Protection Act</a>, introduced in Congress by Rep. Judy Chu and sponsored in the Senate by Sen. Richard Blumenthal in 2021. It was passed in the House, but was <a href="https://time.com/6152473/abortion-roe-v-wade-democrats/">blocked in the Senate</a>. Democrats put the bill forward for a procedural vote again after Alito’s draft opinion was made public. Supporters of the bill are still expected to fall short of the votes they need. Rather, the vote is being used, in the <a href="https://www.npr.org/2022/05/10/1097820801/senate-democrats-plan-a-vote-on-abortion-rights-but-its-unlikely-to-pass">words of Democratic Sen. Amy Klobuchar</a>, “to show where everyone stands” on the issue.</p>
<p>The legislation would build on the undue burden principle in Casey by seeking to prevent states from imposing unfair restrictions on abortion providers, such as insisting a <a href="https://www.vice.com/en/article/vbnqw4/abortion-clinics-are-closing-because-their-doorways-arent-big-enough">clinic’s doorway is wide enough</a> for surgical gurneys to pass through, or that <a href="https://www.guttmacher.org/state-policy/explore/targeted-regulation-abortion-providers">abortion practitioners need to have admitting privileges</a> at nearby hospitals. </p>
<p>The Women’s Health Protection Act uses the language of the Casey ruling in saying that these so-called TRAP (Targeted Regulation of Abortion Providers) laws place an “undue burden” on people seeking an abortion. It also appeals to Casey’s recognition that “the ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” </p>
<h2>Has the right to abortion ever been guaranteed by federal legislation?</h2>
<p>You have to remember that Roe was very controversial from the outset. At the time of the ruling in 1973, most states had restrictive abortion laws. Up to the late 1960s, a <a href="https://www.nytimes.com/1973/01/28/archives/gallup-poll-finds-public-divided-on-abortions-in-first-3-months.html">majority of Americans opposed abortion</a>. A poll at the time of Roe found the public evenly split over legalization.</p>
<p>To pass legislation you have to go through the democratic process. But if the democratic process is hostile to what you are hoping to push through, you are going to run into difficulties.</p>
<p>Under the U.S. system, certain liberties are seen as so fundamental that protecting them should not be left to the whims of changing democratic majorities. Consider something like interracial marriage. Before the Supreme Court ruled in <a href="https://www.oyez.org/cases/1966/395">Loving v. Virginia State</a> that banning interracial marriages was unconstitutional, a number of states still banned such unions.</p>
<p>Why couldn’t they pass a law in Congress protecting the right to marry? It would have been difficult because at the time, the <a href="https://news.gallup.com/poll/163697/approve-marriage-blacks-whites.aspx">majority of people were against</a> the idea of interracial marriage.</p>
<p>When you don’t have sufficient public support for something – particularly if it is unpopular or affects a non-majority group – appealing to the Constitution seems to be the better way to protect a right. </p>
<p>That doesn’t mean you can’t also protect that right through a statute, just that it is harder. Also, there is no guarantee that legislation passed by any one Congress isn’t then repealed by lawmakers later on.</p>
<h2>So generally, rights have more enduring protection if the Supreme Court rules on them?</h2>
<p>The <a href="https://www.supremecourt.gov/about/constitutional.aspx">Supreme Court has the final word</a> on what is and isn’t protected by the Constitution. In the past, it has been seen as sufficient to protect a constitutional right to get a ruling from the justices recognizing that right.</p>
<p>But this leaked opinion also points out that one limit of that protection is that the Supreme Court may overrule its own precedents.</p>
<p>Historically, it is unusual for the Supreme Court to take a right away. Yes, they said the <a href="https://www.oyez.org/cases/1850-1900/163us537">Plessy v. Ferguson ruling</a> – which set up the legal basis for separate-but-equal – was wrong, and overruled it in <a href="https://www.oyez.org/cases/1940-1955/347us483">Brown v. Board of Education</a>. But Brown recognized rights; it didn’t take rights away. </p>
<p>If Alito’s draft ruling is to be the final word, the Supreme Court will be taking away a right that has been in place since 1973. For what I believe is the first time since the end of the Lochner era, the Supreme Court would be overriding precedent to take away a constitutional right from Americans. While Justice Alito notes that, in 1937, the Court overruled “an entire line” of cases protecting “an individual liberty right against federal health and welfare legislation,” that “right” to economic liberty and freedom of contract was as much one of businesses as much as for individuals. The Court has not overruled of the long line of cases (in which Roe and Casey fit) protecting “liberty” in making significant decisions about intimacy, sexuality, family, marriage, and reproduction. </p>
<p>Moreover, the leaked opinion is dismissive of the idea that women have to rely on constitutional protection. “Women are not without electoral or political power,” <a href="https://www.politico.com/news/2022/05/02/read-justice-alito-initial-abortion-opinion-overturn-roe-v-wade-pdf-00029504">Alito writes</a>, adding: “The percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so.”</p>
<p>But this ignores the fact that women <a href="https://www.nbcnews.com/think/opinion/roe-v-wade-overturned-supreme-court-abortion-draft-alitos-legal-analys-rcna27205">rarely make up close to half</a> of the members of most state legislative bodies.</p>
<h2>So are the promises to get Congress to protect abortion rights realistic?</h2>
<p>Republicans in the Senate successfully blocked the proposed Women’s Health Protection Act. And unless things change dramatically in Congress, there isn’t much chance of the bill becoming law. </p>
<p>There has been talk of trying to <a href="https://www.reuters.com/legal/government/us-supreme-court-abortion-move-sparks-calls-ending-senates-filibuster-2022-05-04/">end the filibuster rule</a>, which requires 60 votes in the Senate to pass legislation. But even then, the 50 votes that would be needed might not be there.</p>
<p>What we don’t know is how this Supreme Court leak will affect the calculus. Maybe some Republican senators will see that the writing is on the wall and vote with Democrats. Republican senators Susan Collins and Lisa Murkowski <a href="https://www.collins.senate.gov/newsroom/senators-collins-and-murkowski-introduce-bill-to-codify-supreme-court-decisions-on-reproductive-rights_roe-v-wade-and-planned-parenthood-v-casey">introduced legislation</a> earlier this year that would codify Roe in law, but isn’t as expansive as the Women’s Health Protection Act. Senator Collins has <a href="https://www.washingtonpost.com/politics/2022/05/05/sen-collins-voices-opposition-legislation-that-would-create-statutory-right-abortion/">recently indicated</a> that she will not support the Act out of concern for religious liberty of anti-abortion health providers. </p>
<p>And then we have the midterm elections in November, which might shake up who’s in Congress. If the Democrats lose the House or fail to pick up seats in the Senate, the chances of pushing through any legislation protecting abortion rights would appear very slim. Democrats will be hoping that the Supreme Court ruling will mobilize pro-abortion rights voters.</p>
<h2>What is going on at a state level?</h2>
<p>Liberal states like Massachusetts have <a href="https://www.boston.com/news/policy/2020/12/29/massachusetts-senate-override-abortion-access/">passed laws that codify Roe v. Wade</a>. Now that the Supreme Court’s apparent intentions are known, expect similar moves elsewhere. Massachusetts and other states are looking to go a step further by <a href="https://www.npr.org/2022/05/01/1095813226/connecticut-abortion-bill-roe-v-wade">protecting residents who help out-of-state women</a> seeking abortion. Such laws would seemingly counter moves by states like Missouri, which is seeking to <a href="https://www.latimes.com/opinion/story/2022-03-11/editorial-missouri-might-make-it-illegal-to-help-a-woman-get-an-abortion-elsewhere-thats-ridiculous">push through legislation that would criminalize helping women</a> who go out of state for abortions.</p>
<h2>Wouldn’t any federal law just be challenged at the Supreme Court?</h2>
<p>Should Congress be able to pass a law enshrining the right to abortion for all Americans, then surely some conservative states will seek to overturn the law, saying that the federal government is exceeding its authority. </p>
<p>If it were to go up to the Supreme Court, then conservative justices would presumably look unfavorably on any attempt to limit individual states’ rights when it comes to abortion. Similarly, any attempt to put in place a federal law that would restrict abortion for all would seemingly conflict with the Supreme Court’s position that it should be left to the states to decide. </p>
<p><em>This is an updated version of an article <a href="https://theconversation.com/what-would-it-mean-to-codify-roe-into-law-and-is-there-any-chance-of-that-happening-182406">originally published on May 5, 2022</a>.</em></p><img src="https://counter.theconversation.com/content/182908/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Linda C. McClain does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Lawmakers in the US Senate are set to vote on a bill that would enshrine abortion into law. But is there a route to legislation?Linda C. McClain, Professor of Law, Boston UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1824062022-05-05T12:41:34Z2022-05-05T12:41:34ZWhat would it mean to codify Roe into law – and is there any chance of that happening?<figure><img src="https://images.theconversation.com/files/470889/original/file-20220625-18-jy05t3.jpg?ixlib=rb-1.1.0&rect=0%2C41%2C5560%2C3653&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Joe Biden has called on Congress to codify Roe.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-joe-biden-addresses-the-supreme-courts-decision-news-photo/1404904365?adppopup=true">Alex Wong/Getty Images</a></span></figcaption></figure><p><em>Abortion rights advocates are looking for alternative ways to protect a woman’s right to the procedure following the <a href="https://theconversation.com/us-supreme-court-overturns-roe-v-wade-but-for-abortion-opponents-this-is-just-the-beginning-185768">Supreme Court’s decision to overturn</a> Roe v. Wade.</em></p>
<p><em>Responding to the ruling by the majority conservative justices, President Joe Biden <a href="https://www.whitehouse.gov/briefing-room/speeches-remarks/2022/06/24/remarks-by-president-biden-on-the-supreme-court-decision-to-overturn-roe-v-wade/">called on lawmakers to act</a>. “Let me be very clear and unambiguous: The only way we can secure a woman’s right to choose and the balance that existed is for Congress to restore the protections of Roe v. Wade as federal law,” he said.</em></p>
<p><em>But is enshrining abortion rights in legislation feasible? And why has it not been done before? The Conversation put these questions and others to <a href="https://www.bu.edu/law/profile/linda-c-mcclain/">Linda C. McClain</a>, an expert on civil rights law and feminist legal theory at Boston University School of Law.</em></p>
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<h2>What does it mean to ‘codify’ Roe v. Wade?</h2>
<p>In simple terms, to <a href="https://www.law.cornell.edu/wex/codify#:%7E:text=To%20codify%20means%20to%20arrange,by%20subject%2C%20into%20a%20code.">codify something</a> means to enshrine a right or a rule into a formal systematic code. It could be done through an act of Congress in the form of a federal law. Similarly, state legislatures can codify rights by enacting laws. To codify Roe for all Americans, Congress would need to pass a law that would provide the <a href="https://www.nytimes.com/2022/05/03/us/what-is-roe-v-wade.html">same protections that Roe</a> did – so a law that says women have a right to abortion without excessive government restrictions. It would be binding for all states.</p>
<p>But here’s the twist: Despite some politicians saying that they want to “codify Roe,” Congress isn’t looking to enshrine Roe in law. That’s because <a href="https://www.oyez.org/cases/1971/70-18">Roe v. Wade</a> hasn’t been in place since 1992. The Supreme Court’s <a href="https://www.oyez.org/cases/1991/91-744">Planned Parenthood. v. Casey</a> ruling – which was also overturned in the latest ruling on abortion, Dobbs v. Jackson Women’s Health Organization – affirmed it, but also modified it in significant ways. </p>
<p>In Casey, the court upheld Roe’s holding that a woman has the right to choose to terminate a pregnancy up to the point of fetal viability and that states could restrict abortion after that point, subject to exceptions to protect the life or health of the pregnant woman. But the Casey court concluded that Roe too severely limited state regulation prior to fetal viability and held that states could impose restrictions on abortion throughout pregnancy to protect potential life as well as to protect maternal health – including during the first trimester.</p>
<p>Casey also introduced the “<a href="https://reproductiverights.org/wp-content/uploads/2020/12/WWH-Undue-Burden-Report-07262018-Edit.pdf">undue burden” test</a>, which prevented states from imposing restrictions that had the purpose or effect of placing unnecessary barriers on women seeking to end a pregnancy prior to viability of the fetus. The Dobbs ruling replaces the “undue burden” test with the much weaker “rational basis” test for judicial review. Going forward, state restrictions on abortion must receive a “strong presumption of validity” and courts must uphold them as long as there is a “rational basis” for the legislature thinking that those laws advance “legitimate state interests.”</p>
<h2>What is the Women’s Health Protection Act?</h2>
<p>Recent efforts to pass federal legislation protecting the right to abortion center on the proposed <a href="https://www.congress.gov/bill/117th-congress/house-bill/3755/text">Women’s Health Protection Act</a>, introduced in Congress by U.S. Rep. Judy Chu and sponsored by Sen. Richard Blumenthal in 2021. It was passed in the House, but is <a href="https://time.com/6152473/abortion-roe-v-wade-democrats/">blocked in the Senate</a>.</p>
<p>The proposed legislation was built around the undue burden principle of the now overturned Casey ruling. It sought to prevent states from imposing unfair restrictions on abortion providers such as insisting a <a href="https://www.vice.com/en/article/vbnqw4/abortion-clinics-are-closing-because-their-doorways-arent-big-enough">clinic’s doorway is wide enough</a> for surgical gurneys to pass through, or that <a href="https://www.guttmacher.org/state-policy/explore/targeted-regulation-abortion-providers">abortion practitioners need to have admitting privileges</a> at nearby hospitals.</p>
<p>The Women’s Health Protection Act used the language of the Casey ruling in saying that these so-called TRAP (Targeted Regulation of Abortion Providers) laws place an “undue burden” on people seeking an abortion. It also appealed to Casey’s recognition that “the ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”</p>
<p>Without eliminating the filibuster, which would require 50 votes in the Senate, the bill is unlikely to pass. However, after Dobbs was announced, Democratic Senator Joe Manchin – who opposes eliminating the filibuster – issued a statement <a href="https://abcnews.go.com/Politics/democrats-congress-protect-abortion-rights-now/story?id=85647505">that he supported a bipartisan effort</a> to “put forward” legislation to “codify the rights Roe v. Wade previously protected.” </p>
<h2>Has the right to abortion ever been guaranteed by federal legislation?</h2>
<p>You have to remember that Roe was very controversial from the outset. At the time of the ruling in 1973, most states had restrictive abortion laws. Up to the late 1960s, a <a href="https://www.nytimes.com/1973/01/28/archives/gallup-poll-finds-public-divided-on-abortions-in-first-3-months.html">majority of Americans opposed abortion</a>. A poll at the time of Roe found the public evenly split over legalization.</p>
<p>To pass legislation you have to go through the democratic process. But if the democratic process is hostile to what you are hoping to push through, you are going to run into difficulties.</p>
<p>Under the U.S. system, certain liberties are seen as so fundamental that protecting them should not be left to the whims of changing democratic majorities. Consider something like interracial marriage. Before the Supreme Court ruled in <a href="https://www.oyez.org/cases/1966/395">Loving v. Virginia State</a> that banning interracial marriages was unconstitutional, a number of states still banned such unions.</p>
<p>Why couldn’t they pass a law in Congress protecting the right to marry? It would have been difficult because at the time, the <a href="https://news.gallup.com/poll/163697/approve-marriage-blacks-whites.aspx">majority of people were against</a> the idea of interracial marriage.</p>
<p>When you don’t have sufficient public support for something – particularly if it is unpopular or affects a non-majority group – appealing to the Constitution seems to be the better way to protect a right. </p>
<p>That doesn’t mean you can’t also protect that right through a statute, just that it is harder. Also, there is no guarantee that legislation passed by any one Congress isn’t then repealed by lawmakers later on.</p>
<h2>So generally, rights have more enduring protection if the Supreme Court rules on them?</h2>
<p>The <a href="https://www.supremecourt.gov/about/constitutional.aspx">Supreme Court has the final word</a> on what is and isn’t protected by the Constitution. In the past, it has been seen as sufficient to protect a constitutional right to get a ruling from the justices recognizing that right.</p>
<p>But the opinion in the Dobbs case which overturned Roe and Casey also points out that one limit of that protection is that the Supreme Court may overrule its own precedents.</p>
<p>Historically, it is unusual for the Supreme Court to take a right away. Yes, they said the <a href="https://www.oyez.org/cases/1850-1900/163us537">Plessy v. Ferguson ruling</a> – which set up the legal basis for separate-but-equal – was wrong, and overruled it in <a href="https://www.oyez.org/cases/1940-1955/347us483">Brown v. Board of Education</a>. But Brown recognized rights; it didn’t take rights away. </p>
<p>In the Dobbs decision, the Supreme Court has taken away a right that has been in place since 1973. For what I believe is the first time, the Supreme Court has overridden precedent to take away a constitutional right from Americans.</p>
<p>Moreover, the majority opinion penned by Samuel Alito is dismissive of the idea that women have to rely on constitutional protection. “Women are not without electoral or political power,” <a href="https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf">Alito wrote</a>, adding: “The percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so.”</p>
<p>But this ignores the fact that women <a href="https://www.nbcnews.com/think/opinion/roe-v-wade-overturned-supreme-court-abortion-draft-alitos-legal-analys-rcna27205">rarely make up close to half</a> of the members of most state legislative bodies. Moreover, as Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor countered in their dissent, the point of constitutional rights is that they “should put some issues off limits to majority rule.”</p>
<h2>So are attempts to get Congress to protect abortion rights realistic?</h2>
<p>Republicans in the Senate successfully blocked the proposed Women’s Health Protection Act. And unless things change dramatically in Congress, there isn’t much chance of the bill becoming law. </p>
<p>There has been talk of trying to <a href="https://www.reuters.com/legal/government/us-supreme-court-abortion-move-sparks-calls-ending-senates-filibuster-2022-05-04/">end the filibuster rule</a>, which requires 60 votes in the Senate to pass legislation. But even then, the 50 votes that would be needed might not be there.</p>
<p>What we don’t know is how this Supreme Court decision will affect the calculus. Republican senators Susan Collins and Lisa Murkowski <a href="https://www.collins.senate.gov/newsroom/senators-collins-and-murkowski-introduce-bill-to-codify-supreme-court-decisions-on-reproductive-rights_roe-v-wade-and-planned-parenthood-v-casey">introduced legislation</a> earlier this year that would codify Roe in law, but that bill isn’t as expansive as the Women’s Health Protection Act. It too failed.</p>
<p>Perhaps in the wake of the court’s overruling of Roe and Casey, <a href="https://www.manchin.senate.gov/newsroom/press-releases/manchin-statement-on-scotus-decision-to-overturn-roe-v-wade">calls for bipartisan efforts</a> to “codify” Roe may signal increased willingness to pass federal legislation to protect abortion access. But some Republicans in Congress <a href="https://www.ny1.com/nyc/all-boroughs/news/2022/06/24/republican-mccarthy-congress-abortion-roe-v-wade">are already calling for federal legislation</a> to do exactly the opposite.</p>
<p>And then there are the midterm elections in November, which might shake up who’s in Congress. If the Democrats lose the House or fail to pick up seats in the Senate, the chances of pushing through any legislation protecting abortion rights would appear very slim. Democrats will be hoping that the Supreme Court ruling will mobilize pro-abortion rights voters. Indeed, in his remarks on the Supreme Court decision, Biden made clear that <a href="https://www.cnn.com/2022/06/24/politics/midterms-politics-abortion/index.html">Roe is now on the ballot</a>.</p>
<h2>What is going on at a state level?</h2>
<p>Liberal states like Massachusetts have <a href="https://www.boston.com/news/policy/2020/12/29/massachusetts-senate-override-abortion-access/">passed laws that codify Roe v. Wade</a>. Now that the Supreme Court’s decision is out, expect similar moves elsewhere. Other states are going a step further by <a href="https://www.npr.org/2022/05/01/1095813226/connecticut-abortion-bill-roe-v-wade">protecting residents who help out-of-state women</a> seeking abortion. Such laws would seemingly counter moves by states like Missouri, which is seeking to <a href="https://www.latimes.com/opinion/story/2022-03-11/editorial-missouri-might-make-it-illegal-to-help-a-woman-get-an-abortion-elsewhere-thats-ridiculous">push through legislation that would criminalize helping women</a> who go out of state for abortions.</p>
<p>The dissent anticipates a host of such state efforts in the wake of Dobbs. In <a href="https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf">his concurrence</a>, Justice Brett Kavanaugh raised the question of whether, in light of Dobbs, a state may “bar a resident of that state from traveling to another state to obtain an abortion.” He said the answer would be “no,” based on the constitutional right to “interstate travel.” But whether states will feel constrained from trying these and other measures to restrict out-of-state abortion care for their residents is another question.</p>
<h2>Wouldn’t any federal law just be challenged at the Supreme Court?</h2>
<p>Should Congress be able to pass a law enshrining the right to abortion for all Americans, then surely some conservative states will seek to overturn the law, saying that the federal government is exceeding its authority. </p>
<p>If it were to go up to the Supreme Court, then conservative justices would presumably look unfavorably on any attempt to limit individual states’ rights when it comes to abortion. After all, Dobbs repeatedly asserts that Roe and Casey erred by removing the abortion issue from the states. Similarly, any attempt to put in place a federal law that would restrict abortion for all would seemingly conflict with the Supreme Court’s position that it should be left to the states to decide. That said, the dissenters warned that there was nothing in the Dobbs majority opinion that limited passing federal legislation to restrict or ban abortion throughout the United States.</p>
<p><em>Editor’s note: This article was updated on June 25, 2022.</em></p><img src="https://counter.theconversation.com/content/182406/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Linda C. McClain does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>President Joe Biden has urged lawmakers to act over abortion rights following the Supreme Court decision to overturn Roe v. Wade. But is there a route to legislation?Linda C. McClain, Professor of Law, Boston UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1816872022-05-03T13:09:51Z2022-05-03T13:09:51ZA New Orleans community center rises from its ugly history as a segregated school<figure><img src="https://images.theconversation.com/files/460601/original/file-20220429-19-rcfqn8.jpg?ixlib=rb-1.1.0&rect=179%2C201%2C4613%2C3901&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A U.S. Federal Marshal escorts Gail Etienne to her first day of school on Nov. 14, 1960.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/first-grade-negro-girl-is-escorted-by-us-federal-marshals-news-photo/507249693?adppopup=true"> Underwood Archives/Getty Images</a></span></figcaption></figure><p>They were known as “<a href="https://www.nbcbayarea.com/news/national-international/resilience-and-hope-60-years-after-new-orleans-school-desegregation/2825768/">the McDonogh Three</a>,” and unlike many stories of the tumultuous civil rights era, this one has a hopeful ending. </p>
<p>On May 4, 2022, Leona Tate, Gail Etienne and Tessie Prevost are scheduled to cut the ribbons around the front door of the former <a href="https://civilrightstrail.com/attraction/mcdonogh-19/">McDonogh 19 Elementary School</a>.</p>
<p>Located in New Orleans’ <a href="https://www.nola.com/news/katrina/article_a192c350-ea0e-11ea-a863-2bc584f57987.html">Lower 9th Ward</a>, the school was the scene of some of the nation’s fiercest anti-integration school battles in the early 1960s. </p>
<p>At the time, Tate, Etienne and Prevost were 6-year-old Black girls who wanted to attend first grade. </p>
<p>White protesters, mostly women, heckled and spat and shouted racist slurs at them as they tried to enter the school. Threats of violence were intense, and when local police could not keep the peace, federal marshals were called in. </p>
<figure class="align-center ">
<img alt="A group of white women are standing across the street from a school and screaming at three black girls." src="https://images.theconversation.com/files/460594/original/file-20220429-27-fb08e6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/460594/original/file-20220429-27-fb08e6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=537&fit=crop&dpr=1 600w, https://images.theconversation.com/files/460594/original/file-20220429-27-fb08e6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=537&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/460594/original/file-20220429-27-fb08e6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=537&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/460594/original/file-20220429-27-fb08e6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=675&fit=crop&dpr=1 754w, https://images.theconversation.com/files/460594/original/file-20220429-27-fb08e6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=675&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/460594/original/file-20220429-27-fb08e6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=675&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">White mothers scream at three 6-year-old girls entering McDonogh 19 Elementary School on Nov. 18, 1960.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/at-mcdough-elementary-in-new-orleans-louisiana-mothers-of-news-photo/514907048?adppopup=true">Bettmann/GettyImages</a></span>
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<p>Now named after the three women, the school has been transformed into the <a href="https://www.tepcenter.org/">TEP Center</a>, whose name consists of the first letters of each woman’s last name. It <a href="https://neworleanscitybusiness.com/blog/2022/02/10/former-mcdonogh-19-to-reopen-as-senior-housing-civil-rights-center/">has been redesigned</a> to include affordable housing and exhibition space focused on the civil rights era and the three women’s stories.</p>
<p>As co-author of “<a href="https://www.peterlang.com/document/1068872">William Frantz Public School: A Story of Race, Resistance, Resiliency, and Recovery in New Orleans</a>” I, along with research colleagues Meg White and Martha Viator, spent four years combing through archives researching school desegregation in New Orleans. </p>
<p>What we learned is that the story of the McDonogh Three has been mostly overlooked. But through sheer determination, they were able to restore a building that now bears their names and celebrates their contributions to the civil rights movement.</p>
<p>In our view, their story further challenges society to end the racism that once engulfed a New Orleans community – and still lingers today. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/v3HVtwznmdA?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">A ceremony honoring the McDonogh Three with the participation of U.S. Marshals.</span></figcaption>
</figure>
<h2>Anti-integrationist protests</h2>
<p>The story of the <a href="https://neworleanshistorical.org/items/show/1353">McDonogh Three</a> could not have had an uglier beginning.</p>
<p>In its landmark <a href="https://www.archives.gov/milestone-documents/brown-v-board-of-education#:%7E:text=On%20May%2017%2C%201954%2C%20U.S.,amendment%20and%20was%20therefore%20unconstitutional.">Brown v. Board of Education</a> decision, the U.S. Supreme Court ruled in 1954 that segregated public schools were unconstitutional. Several Southern states <a href="https://digitalcommons.bowdoin.edu/cgi/viewcontent.cgi?article=1084&context=honorsprojects">refused to comply</a> and sometimes violently resisted the ruling to desegregate their schools.</p>
<p>Louisiana was one of them. Six years after the Brown decision, protesters <a href="https://www.jstor.org/stable/274776">vehemently opposed</a> the <a href="http://crdl.usg.edu/events/new_orleans_integration/?Welcome">Orleans Parish School Board’s desegregation plan</a> and targeted the all-white McDonogh 19 school, which the three Black girls aimed to attend. </p>
<p>“I remember riding in the car, coming up to the school, looking out the window and seeing these mobs of people,” <a href="https://www.nbcbayarea.com/news/national-international/resilience-and-hope-60-years-after-new-orleans-school-desegregation/2825768/">Etienne said in an interview</a>. “… I felt like if they could get to me, they’d want to kill me, and I didn’t know why.” </p>
<p>Political resistance to desegregation delayed the girls’ enrollment from September until mid-November. When they finally were permitted to go to classes, protesters still <a href="http://www.kitchensisters.org/present/the-mcdonogh-three-first-day-of-school/">did their best</a> to intimidate them and their families.</p>
<figure class="align-center ">
<img alt="Three white men dressed in business suits and wearing arm bands are escorting three black girls from school." src="https://images.theconversation.com/files/460150/original/file-20220427-1097-4oki4o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/460150/original/file-20220427-1097-4oki4o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=741&fit=crop&dpr=1 600w, https://images.theconversation.com/files/460150/original/file-20220427-1097-4oki4o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=741&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/460150/original/file-20220427-1097-4oki4o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=741&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/460150/original/file-20220427-1097-4oki4o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=931&fit=crop&dpr=1 754w, https://images.theconversation.com/files/460150/original/file-20220427-1097-4oki4o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=931&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/460150/original/file-20220427-1097-4oki4o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=931&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Federal marshals escort three Black girls from the previously all-white McDonogh 19 Elementary School on Nov. 15, 1960.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/three-african-american-girls-leave-the-previously-all-white-news-photo/515280276?adppopup=true">Bettmann/GettyImages</a></span>
</figcaption>
</figure>
<p>Not understanding the intentions of the protesters, one of the girls said in later interviews that they thought the police were there to prevent the cars they were riding in from hurting the bystanders. </p>
<p>“I thought a parade was coming,” Tate recalls before wondering, “And why did I have to go to school on Mardi Gras.”</p>
<p>The girls spent much of <a href="http://www.kitchensisters.org/present/the-mcdonogh-three-first-day-of-school/">that first day</a> sitting in the hallway outside the principal’s office. </p>
<p>In an interview years later, Tate said when they were finally brought to their classroom, white students got up and left. </p>
<p>By the end of their first day, most of the white students had been withdrawn from the school. Within days, <a href="https://www.hnoc.org/interactive-lesson/nola-resistance/integrating-mcdonogh-19%E2%80%94introduction">all the white students</a> had left McDonogh 19. </p>
<figure class="align-center ">
<img alt="Hundreds of white people are protesting on a street against racial integration." src="https://images.theconversation.com/files/460588/original/file-20220429-22-mgqa19.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/460588/original/file-20220429-22-mgqa19.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=422&fit=crop&dpr=1 600w, https://images.theconversation.com/files/460588/original/file-20220429-22-mgqa19.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=422&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/460588/original/file-20220429-22-mgqa19.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=422&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/460588/original/file-20220429-22-mgqa19.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=531&fit=crop&dpr=1 754w, https://images.theconversation.com/files/460588/original/file-20220429-22-mgqa19.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=531&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/460588/original/file-20220429-22-mgqa19.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=531&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">School segregationists demonstrate in the streets of New Orleans on Nov. 21, 1960.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/segregationists-demonstrate-in-the-streets-of-new-orleans-news-photo/1156197316?adppopup=true">AFP via Getty Images</a></span>
</figcaption>
</figure>
<p>The protesters also left, having achieved their goal of preventing white and Black children from attending classes together. The only students were the three Black girls. </p>
<p>But the threat of violence remained, and throughout the school year, U.S. Marshals escorted the girls to and from school.</p>
<figure class="align-center ">
<img alt="Two men dressed in dark suits are seen walking up stairs to a school with a little black girl." src="https://images.theconversation.com/files/460134/original/file-20220427-22-mzyg1k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/460134/original/file-20220427-22-mzyg1k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=753&fit=crop&dpr=1 600w, https://images.theconversation.com/files/460134/original/file-20220427-22-mzyg1k.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=753&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/460134/original/file-20220427-22-mzyg1k.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=753&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/460134/original/file-20220427-22-mzyg1k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=946&fit=crop&dpr=1 754w, https://images.theconversation.com/files/460134/original/file-20220427-22-mzyg1k.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=946&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/460134/original/file-20220427-22-mzyg1k.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=946&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">U.S. Marshals escort Ruby Bridges to the William Frantz Elementary School in New Orleans on Nov. 28, 1960.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/ruby-bridges-is-escorted-by-us-federal-marshals-into-news-photo/507247753?adppopup=true">Underwood Archives/Getty Images</a></span>
</figcaption>
</figure>
<p>The three girls at McDonogh were not the only ones requiring armed protection. </p>
<p>During the same time, at the William Frantz Elementary School, <a href="https://www.womenshistory.org/education-resources/biographies/ruby-bridges">Ruby Bridges</a> faced a similar fate when trying to integrate an all-white school. Though Bridges’ story is more widely known, all <a href="https://voicesofthecivilrightsmovement.com/Video-Collection/2022/1/30/Honoring-the-Legacy-of-the-New-Orleans-Four">four girls</a> are credited with desegregating New Orleans Public Schools. </p>
<h2>From tragedy to triumph</h2>
<p>Named after the wealthy <a href="https://www.wwno.org/education/2020-06-19/slave-owner-john-mcdonoghs-money-left-a-long-legacy-of-inequitable-education-in-new-orleans">slave owner John McDonogh</a>, the school struggled in the decades following 1960. </p>
<p>White flight from the city of New Orleans and its public schools resulted in a <a href="https://hechingerreport.org/new-orleans-schools-still-struggle-with-diversity-integration/">resegregation of the school</a> almost immediately, only this time it became an all-Black school. High rates of poverty and crime affected the surrounding neighborhood in the 1970s and ‘80s.</p>
<p>One sign of progress occurred in the mid-1990s when the school was renamed after jazz legend and New Orleans native Louis Armstrong.</p>
<p>But at the end of the 2004-05 school year, the district decided to close the school, due in part to low test scores and also because inadequate funding had caused the building to fall into significant disrepair. </p>
<p>The facility was further <a href="http://archive.oah.org/special-issues/katrina/Landphair.html">damaged by Hurricane Katrina</a> in August 2005, and the Orleans Parish School Board planned to sell the historic building, deeming it too expensive to repair.</p>
<p>The building sat vacant for over 10 years. </p>
<p>Born and raised in the neighborhood, Tate’s roots run deep, as did her connection to the history that happened at McDonogh.</p>
<p>Like Prevost and Etienne, Tate graduated from New Orleans’ public schools. She remained in New Orleans and following Katrina chose to stay in the city despite <a href="https://www.theadvocate.com/baton_rouge/news/article_d1bd4e2f-396b-5559-ad2a-baa37968d45e.html">the mass exodus</a> of many residents.</p>
<p>She never gave up on the Lower 9th Ward, the school building or her commitment to <a href="https://www.nola.com/news/education/article_c10b1497-3208-5b6b-89d3-3e5aaf418503.html">telling the story</a> of events that took place on what she considered the <a href="https://www.nola.com/news/education/article_c10b1497-3208-5b6b-89d3-3e5aaf418503.html">hallowed ground</a> of the school.</p>
<p>In 2009, Tate founded the <a href="https://www.leonatatefoundation.org/mcdonogh-19">Leona Tate Foundation for Change</a>. Over the years, the fledgling foundation raised US$725,000 to purchase the building.</p>
<p>Tate also <a href="https://savingplaces.org/stories/a-new-orleans-rehabilitation-marks-a-fresh-start-for-the-site-of-a-key-civil-rights-moment#.YmwBEfPMLt0">led efforts</a> to place the building on the <a href="https://www.nps.gov/subjects/nationalregister/index.htm">National Register of Historic Places</a>. </p>
<p>In 2016, Tate achieved her goal. The designation formally recognized the contributions of Tate, Etienne and Prevost for their role in the civil rights movement. </p>
<p>Now, Tate’s efforts have transformed the building from an abandoned school to a community anchor. </p>
<p>The building provides a new home for the Lower Ninth Ward Living Museum, which displays photographs and offers oral histories from those who lived in the community during the civil rights and post-Katrina eras.</p>
<p>In addition, the TEP Center provides office space for two community groups. One of them, “Ringing the Bell,” provides support for teachers who want to incorporate the history of the civil rights movement into their curriculum. </p>
<p>The other group, Voices of Resistance and Hope, is a partnership with the <a href="https://nmaahc.si.edu/">National Museum of African American History and Culture</a> that collects contemporary stories of African Americans. </p>
<p>Both Etienne and Prevost praised Tate and her determination.</p>
<p>“I’m just glad that we are being given an opportunity to remind those who have forgotten,” <a href="https://savingplaces.org/stories/a-new-orleans-rehabilitation-marks-a-fresh-start-for-the-site-of-a-key-civil-rights-moment#.YmwBEfPMLt0">Etienne said</a>. “"That the true and full story gets out there. That’s all we’ve ever wanted, really. Thank God it is finally happening.”</p>
<p>Describing Tate and Etienne as “her sisters for life,” Prevost explained <a href="https://savingplaces.org/stories/a-new-orleans-rehabilitation-marks-a-fresh-start-for-the-site-of-a-key-civil-rights-moment#.YmwBEfPMLt0">in an interview</a> that she sees the project as a step toward healing larger racial divisions. </p>
<p>“We have to come together and forget all of this foolishness,” Prevost said. “That’s what we need to do.”</p><img src="https://counter.theconversation.com/content/181687/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In the early 1960s, the McDonogh 19 school was the site of fierce opposition to racial integration. The building is now owned by one of the Black girls who first integrated the school.Connie L. Schaffer, Associate Professor of Teacher Education, University of Nebraska OmahaMartha Graham Viator, Associate Professor Emeritus of Education, Rowan UniversityMeg White, Associate Professor of Education, Stockton UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1810302022-04-15T12:12:14Z2022-04-15T12:12:14ZLegacy of Jim Crow still affects funding for public schools<figure><img src="https://images.theconversation.com/files/458256/original/file-20220414-12-njujv9.jpg?ixlib=rb-1.1.0&rect=0%2C5%2C3404%2C2440&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">School funding inequities persist along racial and economic lines. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/freshman-students-walk-the-hallway-in-between-classes-news-photo/1231511735?adppopup=true">David L. Ryan/The Boston Globe via Getty Images</a></span></figcaption></figure><p>Nearly 70 years ago – in its 1954 <a href="https://www.law.cornell.edu/supremecourt/text/347/483/USSC_PRO_347_483_1">Brown v. Board</a> decision – the Supreme Court framed racial segregation as the cause of educational inequality. It did not, however, challenge the lengths to which states went to ensure the unequal funding of Black schools.</p>
<p>Before Brown, Southern states were using segregation to signify and tangibly reinforce <a href="https://www.loc.gov/exhibits/brown/brown-segregation.html">second-class citizenship</a> for Black people in the United States. The court in Brown deemed that segregation was inherently unequal. Even if the schools were “equalized” on all “tangible factors,” segregation remained a problem and physical integration was the cure, the Court concluded.</p>
<p>That framing rightly focused on segregation’s immediate horror – excluding students from schools based on the color of their skin – but obscured an important fact. In addition to requiring school segregation, many states also had long segregated school funding. Some had used “<a href="https://uncpress.org/book/9781469638942/racial-taxation">racially distinct tax</a>” policies that reserved separate funds for white and Black schools. Other states had <a href="https://www.jstor.org/stable/1084950?seq=1">moved school funding responsibility and control</a> from state officials to local communities. Local officials could then <a href="https://www.law.ua.edu/pubs/lrarticles/Volume%2065/Issue%202/11%20Guyse%20519-538.pdf">ensure inequality without any specific law mandating it</a>.</p>
<p>Brown’s focus on physical segregation inadvertently left important and less obvious aspects of local funding inequality unchecked. Those practices still drive underfunding in predominantly poor and minority schools. Through the University of South Carolina School of Law’s <a href="https://sc.edu/study/colleges_schools/law/centers/constitutional_law/index.php">Constitutional Law Center</a>, since 2021 we have been documenting the <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4082368">historical connection</a> between segregation and states’ reliance on local school funding. In our view, until states stop relying so heavily on local school funding, the equal educational opportunities that Brown first sought will remain out of reach for K-12 students in the 21st century. </p>
<h2>What’s wrong with local funding</h2>
<p>A large body of evidence shows “<a href="https://learningpolicyinstitute.org/product/how-money-matters-report">money matters</a>.” </p>
<p>Increased spending <a href="https://www.nber.org/system/files/working_papers/w28517/w28517.pdf">improves</a> college attendance rates, graduation rates and test scores. But, as a 2018 report revealed, school districts enrolling “the most students of color receive <a href="https://edtrust.org/wp-content/uploads/2014/09/FundingGapReport_2018_FINAL.pdf">about $1,800, or 13%, less per student”</a> than districts serving the fewest students of color.</p>
<p>A more recent <a href="https://www.educationnext.org/costs-cutting-school-spending-lessons-from-great-recession/">analysis</a> further demonstrated that school funding cuts during the Great Recession disproportionately affected Black students and exacerbated achievement gaps. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/458257/original/file-20220414-24-yclruz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A Black man teaches a classroom full of students." src="https://images.theconversation.com/files/458257/original/file-20220414-24-yclruz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/458257/original/file-20220414-24-yclruz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/458257/original/file-20220414-24-yclruz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/458257/original/file-20220414-24-yclruz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/458257/original/file-20220414-24-yclruz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/458257/original/file-20220414-24-yclruz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/458257/original/file-20220414-24-yclruz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">In most U.S. states, local school funding drives more resources toward middle-income students than poor students.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/kent-taylor-state-administrator-superintendent-for-the-news-photo/564003467?adppopup=true">Gary Friedman/Los Angeles Times via Getty Images</a></span>
</figcaption>
</figure>
<p>Most school funding gaps have a simple explanation: Public school budgets rely heavily on <a href="https://apps.urban.org/features/school-funding-do-poor-kids-get-fair-share/">local property taxes</a>. Communities with low property values can <a href="https://www.law.cornell.edu/supremecourt/text/411/1">tax themselves at much higher rates</a> than others but still fail to generate anywhere near the the same level of resources as other communities. </p>
<p>In fact, in <a href="https://apps.urban.org/features/school-funding-do-poor-kids-get-fair-share/">46 of 50 states</a>, local school funding schemes drive more resources to middle-income students than poor students. The local funding gap between districts mostly serving middle-income versus poor students in <a href="https://apps.urban.org/features/school-funding-do-poor-kids-get-fair-share/">New Jersey</a>, for example, is $3,460 per pupil. While state and federal programs often send additional funds to poor students, they are insufficient to fully meet the <a href="https://edtrust.org/wp-content/uploads/2014/09/FundingGapReport_2018_FINAL.pdf">additional needs of low-income students</a>.</p>
<h2>Missed opportunities to cure local funding</h2>
<p>In Brown v. Board, the court glossed over the history of school segregation and its nuances. The court said it was impossible to “turn the clock back to 1868,” when the nation adopted the Fourteenth Amendment, or “even 1896,” when the court authorized segregation. Instead, it <a href="https://www.law.cornell.edu/supremecourt/text/347/483/USSC_PRO_347_483_1">declared</a> that “we must consider public education in the light of its full development and its present place in American life throughout the Nation.”</p>
<p>This pivot let the court tackle segregation on a slate scrubbed clean of history’s mess. But it also deprived the court of any serious consideration of Southern states’ complex and racially motivated system of local school funding.</p>
<p>Later court decisions did not even recognize that a problem with local funding might exist. To the contrary, they put a preference on local funding over remedying inequality. In the 1973 case of San Antonio Independent School District v. Rodriguez, the court rejected a challenge to the inequality local school funding causes, reasoning that “local control” over school funding was <a href="https://www.law.cornell.edu/supremecourt/text/411/1">“vital to continued public support of the schools”</a> and “of overriding importance from an educational standpoint as well.”</p>
<p>A year later, in Milliken v. Bradley, the Supreme Court blocked a desegregation remedy that would have spanned multiple districts. Finances and local autonomy were at the heart of the court’s rationale. It <a href="https://www.law.cornell.edu/supremecourt/text/418/717">wrote</a>, “No single tradition in public education is more deeply rooted than local control over the operation of schools.” In its view, desegregation between districts would destroy that tradition and create a host of problems regarding local school funding.</p>
<p>To be sure, those decisions did not preclude desegregation within individual districts. But the Court declared desegregation and school funding inequality that occurs between school districts – as opposed to within school districts – as largely beyond the reach of federal judicial power.</p>
<h2>Funding, control and segregation</h2>
<p><a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4082368">Our research</a> reveals that during <a href="https://theconversation.com/the-constitutional-right-to-education-is-long-overdue-88445">the South’s Reconstruction</a>, Black people and progressive whites saw <a href="https://www.ednc.org/deep-rooted-a-brief-history-of-race-and-education-in-north-carolina/">state control</a> as the solution to inadequate and unequal education. They adopted <a href="https://kansaspress.ku.edu/978-0-7006-2437-9.html">policies to that effect</a>, many of which were <a href="https://review.law.stanford.edu/wp-content/uploads/sites/3/2018/03/70-Stan.-L.-Rev.-735.pdf">enshrined in state constitutions</a> rather than laws reversible by the legislature. </p>
<p>Local communities were certainly important to the implementation of schools, but states like <a href="https://www.jstor.org/stable/40703363?seq=7">Texas</a> and <a href="https://encyclopediavirginia.org/entries/public-school-system-in-virginia-establishment-of-the/">Virginia</a> centralized school administration, school finance and a variety of other policies. Some states, such as <a href="https://www.zinnedproject.org/news/tdih/South-Carolina-Constitutional-Convention">South Carolina</a>, placed the core issue of physical segregation under state control and prohibited it outright. </p>
<p>Then, during the Jim Crow era, localism became the tool to <a href="https://www.jstor.org/stable/1084950?seq=1">reverse this progress and equality</a>. States <a href="https://www.ednc.org/deep-rooted-a-brief-history-of-race-and-education-in-north-carolina/">increased reliance on local taxation</a>, gave local <a href="https://www.johnmarshall.edu/lawreview/current-volume/volume-3-number-2/">white officials discretion</a> over state funds, and <a href="https://www.law.ua.edu/pubs/lrarticles/Volume%2065/Issue%202/11%20Guyse%20519-538.pdf">constitutionally secured segregation</a>. Some went so far as to craft <a href="https://uncpress.org/book/9781469638942/racial-taxation/">color-coded funding systems</a> where white taxes <a href="https://www.ednc.org/deep-rooted-a-brief-history-of-race-and-education-in-north-carolina/">funded white schools</a> exclusively. </p>
<p>Others, like <a href="https://babel.hathitrust.org/cgi/pt?id=nyp.33433007186806&view=1up&seq=80&skin=2021&q1=%22thus%20designated%22">South Carolina</a>, achieved the same end by letting taxpayers select which of the segregated schools would receive their funds. Southern leaders openly linked local funding and control to the <a href="https://www.worldcat.org/title/journal-of-the-constitutional-convention-of-the-state-of-south-carolina/oclc/15184574">“wisdom” of segregation</a>. </p>
<p>The development of Northern local <a href="https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1282&context=nulr">school systems</a> was historically distinct. Yet, even in some Northern states, racial antagonism and concerns over segregation prompted pushes for <a href="https://www.worldcat.org/title/black-struggle-for-public-schooling-in-nineteenth-century-illinois/oclc/459793798">local decision-making</a>. More generally, some Northern states followed a trajectory similar to Southern states: Illinois, for example, imposed a <a href="https://www.jstor.org/stable/40194509?seq=41">statewide property tax</a> for <a href="https://www.worldcat.org/title/black-struggle-for-public-schooling-in-nineteenth-century-illinois/oclc/459793798">white education</a> with supplemental local funding before the Civil War. Ironically, though, it ultimately became one of the states <a href="https://nces.ed.gov/pubs2020/2020301.pdf">most dependent on local funding</a>.</p>
<h2>Toward a more fair system</h2>
<p>While Brown v. Board declared school segregation itself unconstitutional, other related aspects of segregated schools – particularly the decentralization of school funding – continued unchecked after it. The longer those aspects remained, the more courts accepted them as a neutral aspect of delivering public education. </p>
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<p>An important step in remedying entrenched school funding inequalities is to first recognize that they are rooted in the history of Jim Crow segregation. Another potential step is to return to the more centralized approach of Reconstruction – an <a href="https://openyls.law.yale.edu/bitstream/handle/20.500.13051/8741/32_102YaleLJ805_1992_1993_.pdf?sequence=2&isAllowed=y">approach</a> that states during their progressive eras have long recognized. And this step makes good constitutional sense, too. After all, <a href="https://scholarlycommons.law.northwestern.edu/nulr/vol111/iss1/1/">every state constitution</a> places the ultimate obligation to fund and deliver public education on <a href="https://casetext.com/case/claremont-school-district-v-governor-3">states</a>, not local governments.</p><img src="https://counter.theconversation.com/content/181030/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Local control over school funding leads to uneven resources between districts, two legal scholars maintain.Derek W. Black, Professor of Law, University of South CarolinaAxton Crolley, Constitutional Law Fellow, University of South CarolinaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1752092022-01-20T13:45:31Z2022-01-20T13:45:31ZOverruling Roe may not be conservatives’ best strategy – Brown v. Board of Education shows how Supreme Court can uphold precedent while gutting its meaning<figure><img src="https://images.theconversation.com/files/441615/original/file-20220119-27-120irna.jpg?ixlib=rb-1.1.0&rect=7%2C29%2C4985%2C3330&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Overturn Roe? They might not have to.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/abortion-rights-advocates-and-anti-abortion-protesters-news-photo/1236932147?adppopup=true">Oliver Douliery/AFP via Getty Images</a></span></figcaption></figure><p>Tens of thousands of anti-abortion protesters <a href="https://www.washingtonpost.com/dc-md-va/2022/01/18/march-for-life-2022/">are expected to descend</a> on Washington on Jan. 21, 2022, for the <a href="https://marchforlife.org/about-the-march-for-life/">March for Life</a> rally – as they have done annually since 1974 to protest the Roe v. Wade ruling of the previous year.</p>
<p>Whether they have reason to march against abortion in 12 months’ time is uncertain, though. It will likely depend on how the Supreme Court decides the case <a href="https://www.oyez.org/cases/2021/19-1392">Dobbs v. Jackson Women’s Health Organization</a>, which deals with a Mississippi law that bans most abortions in the state after the 15th week of pregnancy. </p>
<p>Speculation about the justices’ anticipated decision, expected by June, seems to be less about whether they will eviscerate the Roe decision – which recognized a <a href="https://theconversation.com/will-roe-v-wade-be-overturned-and-what-would-this-mean-the-us-abortion-debate-explained-173156">constitutional right to abortion</a> without excessive government interference – and <a href="https://theconversation.com/supreme-court-signals-shift-on-abortion-but-will-it-strike-down-roe-or-leave-it-to-states-to-decide-when-personhood-occurs-172934">more about how</a> they might do it. </p>
<p>Prior to justices taking up Dobbs, much of the commentary on how the Court would deal with abortion was that it would kill Roe quietly, bit by bit, in a series of piecemeal rulings. But after <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/19-1392_4425.pdf">oral argument</a> on Dec. 1, 2021, a <a href="https://www.newyorker.com/news/daily-comment/the-supreme-court-looks-ready-to-overturn-roe">swift and unambiguous overturning</a> is now thought possible.</p>
<p>In that December hearing, lawyers arguing the case and several justices <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/19-1392_4425.pdf#page=13">discussed the criteria for overturning</a> established precedent, which is a rule of law created by an earlier case. They referenced some of the “<a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/19-1392_4425.pdf#page=36">great overrulings</a>” in the Court’s history, citing 1954’s <a href="https://www.oyez.org/cases/1940-1955/347us483">Brown v. Board of Education</a> – which ended legal racial segregation in public schools – as the <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/19-1392_4425.pdf#page=113">greatest of them all</a>.</p>
<p>As a <a href="https://isearch.asu.edu/profile/275962">legal scholar</a>, I know that the Brown decision was of huge consequence. But it wasn’t the simple overruling that many see it as today. The care taken by the justices in 1954 in making that landmark ruling might have lessons for the current justices’ forthcoming decision in Dobbs. </p>
<h2>‘Dramatic shift’</h2>
<p>The precedent that Brown supposedly overruled was <a href="https://www.oyez.org/cases/1850-1900/163us537">Plessy v. Ferguson</a>, the 1896 Supreme Court ruling that created the “separate but equal” doctrine enforced throughout the Jim Crow era.</p>
<p>Plessy held that the <a href="https://www.law.cornell.edu/constitution/amendmentxiv">Fourteenth Amendment’s requirement of equal protection</a> was satisfied by providing facilities of equal quality – in Plessy, it was railroad cars – even when citizens were segregated by race.</p>
<p>In <a href="https://www.oyez.org/cases/1940-1955/347us483">Brown</a>, the Supreme Court came down unanimously in favor of ending public school segregation. But many have assumed that in so doing the justices ruled that Plessy had been wrongly decided and decisively overturned it.</p>
<p>Chief Justice John Roberts asserted as much in his <a href="https://www.govinfo.gov/content/pkg/GPO-CHRG-ROBERTS/pdf/GPO-CHRG-ROBERTS.pdf">own confirmation hearings</a> in 2005. When asked if the Court broke new ground in Brown, he replied: “Of course it was a dramatic shift. And the overruling of Plessy v. Ferguson was exactly that.”</p>
<p>But I believe the Brown decision was actually far more subtle. A careful reading shows that it did not overrule Plessy. Rather, it followed and applied Plessy rigorously.</p>
<p>The Court determined that separating children in public schools on the basis of race in and of itself harmed minority children psychologically. </p>
<p>A <a href="https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=2979&context=clr">famous footnote</a> in Brown cited social science studies in support of that factual finding.</p>
<p>And that finding of harm was crucial. It meant that racial segregation of public school children could never be “separate-but-equal,” as <a href="https://www.ourdocuments.gov/print_friendly.php?flash=false&page=transcript&doc=87&title=Transcript+of+Brown+v.+Board+of+Education+%281954%29">required by Plessy</a>:</p>
<p>“We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated … are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.”</p>
<p>The Court ruled that the moment the government places those children into separate schools, no matter how equal the physical facilities and educational services, the minority children are being excluded, made to feel inferior, and thereby harmed. In short, it failed Plessy’s test.</p>
<p>The Brown ruling did not overturn Plessy. It did not even carve out an exception to Plessy. </p>
<p>Instead, it followed Plessy and its logic to arrive at the conclusion that segregated public schools flunked the separate-but-equal test. Nothing more. The day after Brown was announced, Plessy was still standing.</p>
<h2>Destroying precedent … by following it</h2>
<p>The justices in Brown were doubtless aware of the virulent racism that existed in parts of the U.S. and the controversy around segregation. They were aware that some Americans would <a href="https://www.naacpldf.org/ldf-celebrates-60th-anniversary-brown-v-board-education/southern-manifesto-massive-resistance-brown/">violently resist legally mandated desegregation</a>. </p>
<p>If they were going to begin the process of desegregating America, they knew they had to do it with a minimum of swagger and a maximum of respect for precedent.</p>
<p>But the lesson of Brown is not, or not only, to try to minimize violent reaction. More important for the Court and the law, it is that judges who set out to change the future might be more effective if they can avoid ripping up the past.</p>
<p>Narrow though the Brown ruling was, it provided what Constitutional law expert Justin Driver <a href="https://www.nytimes.com/2018/09/19/books/review/justin-driver-schoolhouse-gate.html">described as</a> “a powerful rhetorical and moral weapon that helped to catalyze the nation toward the goal of racial equality.” Brown was cited in subsequent years to help advance the proposition that segregation of other kinds was also unconstitutional – even though Brown itself said no such thing – and its impact expanded and spread.</p>
<p>Brown eventually destroyed Plessy – not by overruling it, but by following it.</p>
<p>Could today’s justices be as ingenious as their predecessors in Brown, and find a subtle and deferential way to bring about the sweeping legal change they might have in mind, while still respecting well-established precedent? We soon shall see. </p>
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<p class="fine-print"><em><span>Michael J. Saks has donated to the American Civil Liberties Union and to candidates for various public offices. </span></em></p>Brown v. Board didn’t overrule ‘separate-but-equal’ but it had that end. A law scholar explains how there is a lesson there for conservatives on today’s Court looking to end abortion in the US.Michael J. Saks, Regents Professor, Arizona State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1688192021-10-26T12:20:58Z2021-10-26T12:20:58ZSupreme Court rulings always include the perspective of a white male, but often exclude viewpoints of Black and Latina justices<figure><img src="https://images.theconversation.com/files/426714/original/file-20211015-20-11zdyi5.jpg?ixlib=rb-1.1.0&rect=104%2C19%2C3890%2C2151&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Justices of the U.S. Supreme Court on December 3, 2018, in Washington.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/justices-of-the-u-s-supreme-court-including-associate-news-photo/1068166706?adppopup=true">Jonathan Ernst-Pool/Getty Images</a></span></figcaption></figure><p>In recent decades, much progress has been made in diversifying the <a href="https://www.cnn.com/2018/07/09/politics/supreme-court-justice-minorities-trnd/index.html">Supreme Court</a>. While only white males served as justices for <a href="https://www.americanprogress.org/issues/courts/reports/2019/10/03/475359/building-inclusive-federal-judiciary/">more than 175 years</a>, the court now includes three female justices, one Black and one Latina justice. </p>
<p>Despite the increased diversity, however, the court’s voting rules often exclude minority viewpoints.</p>
<p>Like most other courts, the Supreme Court decides its cases by a majority vote. If at least five of the nine justices agree on a resolution, they are able to determine the court’s decision and impose their preferred outcome.</p>
<p>If other justices disagree, they cannot ensure that their views are taken into account by the majority. They can only write a dissenting opinion to express their disagreement with the majority’s decision.</p>
<p>Two justices who are especially likely to have their views not reflected, and therefore must write dissenting opinions, are <a href="https://www.nytimes.com/2018/06/26/us/sonia-sotomayor-dissent-travel-ban.html">Sonia Sotomayor</a> and <a href="https://apnews.com/article/ny-state-wire-supreme-court-of-the-united-states-courts-government-and-politics-d2193e4af07e58dac0f1a85e2405fe97">Clarence Thomas</a>.</p>
<p>Consider the <a href="https://www.scotusblog.com/wp-content/uploads/2020/07/Frequency-in-majority-7.20.20.pdf">court’s cases from its 2019-20 term</a>, not including non-controversial 9-0 decisions. </p>
<p>When there were disagreements among the justices, Sotomayor dissented in 44% of cases, according to the news site <a href="https://www.scotusblog.com/wp-content/uploads/2020/07/Frequency-in-majority-7.20.20.pdf">SCOTUSblog</a>. In those cases, the court’s decisions lacked the perspective of its only minority female member. </p>
<p>Similarly, Thomas also dissented in 44% of cases when the court <a href="https://www.scotusblog.com/wp-content/uploads/2020/07/Frequency-in-majority-7.20.20.pdf">vote was not unanimous</a>. In those cases, the court’s decisions lacked the perspective of its only minority male member. </p>
<p>No other justice’s voice was excluded as often as were those of Sotomayor and Thomas. And with five white male justices on the court, it’s numerically impossible for the court to render a decision that lacks the perspective of a white male justice. </p>
<h2>Single opinions the norm</h2>
<p>As a <a href="https://law.unlv.edu/faculty/david-orentlicher">constitutional law scholar</a> who has written extensively about the <a href="https://theconversation.com/supreme-court-polarization-is-not-inevitable-just-look-at-europe-99356">Supreme Court</a>, I believe there is a ready solution to this exclusion of minority viewpoints. Drawing from the example of jurors and the history of the court between 1801 and 1940, the justices could decide their cases by a unanimous vote.</p>
<p>Criminal juries decide their cases unanimously, and <a href="https://scholarship.law.cornell.edu/facpub/307/">studies demonstrate</a> that, as a result, the majority gives greater consideration to minority viewpoints. Those in the minority participate more in the jury’s deliberations, and their perspectives play a greater role in shaping the jury’s decision. </p>
<p>The Supreme Court also could ensure minority participation by deciding its cases unanimously.</p>
<p><a href="https://scholarship.law.cornell.edu/clr/vol100/iss4/2/">Between 1801 and 1940</a>, the high court generally decided its cases with a single, consensus opinion. As <a href="https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1217&context=law_and_economics">Chief Justice John Marshall recognized</a> in 1801, the court strengthens its authority when it speaks in a unified voice. Hence, he established a norm for the court of consensus decisions.</p>
<p>As Marshall <a href="https://scholarship.law.cornell.edu/clr/vol100/iss4/2/">wrote</a>, “The course of every tribunal must necessarily be, that the opinion which is delivered as the opinion of the court, is previously submitted to the judges; and, if any of the reasoning be disapproved, it must be so modified as to receive the approbation of all, before it can be delivered as the opinion of all.” </p>
<p>During Marshall’s <a href="https://oconnorlibrary.org/speeches-writings/william-howard-taft-importance-unanimity">first four years</a> as chief justice, all of the court’s opinions were issued for the court as a whole, with just one concurring opinion and no dissenting opinions. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/426715/original/file-20211015-28-te3jqh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Members of the 1943 Supreme Court." src="https://images.theconversation.com/files/426715/original/file-20211015-28-te3jqh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/426715/original/file-20211015-28-te3jqh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=456&fit=crop&dpr=1 600w, https://images.theconversation.com/files/426715/original/file-20211015-28-te3jqh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=456&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/426715/original/file-20211015-28-te3jqh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=456&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/426715/original/file-20211015-28-te3jqh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=573&fit=crop&dpr=1 754w, https://images.theconversation.com/files/426715/original/file-20211015-28-te3jqh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=573&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/426715/original/file-20211015-28-te3jqh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=573&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Members of the Supreme Court pictured in 1943. Left to right, front row: Associate Justices Stanley F. Reed and Owen J. Roberts; Chief Justice Harlan Fiske Stone, and Associate Justices Hugo Black and Felix Frankfurter. Back row: Associate Justices Robert H. Jackson, William O. Douglas, Frank Murphy and Wiley B. Ruthledge.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-newest-picture-of-members-of-the-supreme-court-of-the-news-photo/515571516?adppopup=true">Bettmann/Getty Images</a></span>
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<p>Marshall’s successors maintained this <a href="https://scholarship.law.cornell.edu/clr/vol100/iss4/2/">norm of consensus</a> for most of the court’s history. By 1941, only about 8% of cases included a dissenting opinion. </p>
<p>But when Harlan Fiske Stone became chief justice in 1941, he encouraged <a href="https://scholarship.law.cornell.edu/clr/vol100/iss4/2/">the expression of dissenting viewpoints</a>. Stone believed that sound principles would result from “the clash of competing and sometimes conflicting ideas.”</p>
<p>Today, one or more justices dissent in <a href="https://www.scotusblog.com/2021/07/in-barretts-first-term-conservative-majority-is-dominant-but-divided/">more than half of the rulings</a>.</p>
<p>Importantly, when single opinions were the norm, scholars have found that justices on both sides would <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3569058">move toward the other side</a> to reach consensus. Lead justices would shape their drafts to secure broad support from their colleagues. As a result, justices who initially disagreed with the majority were able to join their colleagues in a unanimous decision. </p>
<p>As the legal scholar <a href="https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1185&context=fss_papers">Robert Post</a> has observed, Chief Justice William Howard Taft “was willing to go to extraordinary lengths to modify his own opinions to reach out to others.”</p>
<p>And even after 1940, justices often recognized the importance of consensus. Perhaps the most famous example occurred in 1954, when <a href="https://constitutioncenter.org/blog/on-this-day-the-supreme-court-rules-against-segregation">Chief Justice Earl Warren</a> was able to forge a unanimous decision in the case of Brown v. Board of Education that struck down segregated schools.</p>
<h2>Consensus opinions</h2>
<p>Unanimous decisions are better decisions. No single justice has a monopoly on the perfect legal interpretation – they all have their blind spots. The collective wisdom of the full bench is superior to that of a mere majority of justices.</p>
<p>Empirical research on group decisions confirms this. </p>
<p>As one <a href="https://doi.org/10.1006/obhd.1996.0061">important study found in 1996</a>, “Heterogeneous groups outperform homogeneous groups on tasks requiring creative problem solving and innovation, because the expression of alternative perspectives can lead to novel insights.”</p>
<p>When people with different perspectives make decisions together, they can identify solutions that none of them acting alone would have recognized. Their different ideas can combine to identify new approaches that better serve the public interest. </p>
<p>[<em>Over 115,000 readers rely on The Conversation’s newsletter to understand the world.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=100Ksignup">Sign up today</a>.]</p>
<p>Majority voting allows for decisions based on a narrower rather than broader range of perspectives. It is incoherent to value a diversity of perspectives and then employ a decision-making rule that frequently disregards an important part of that diversity. This is especially the case when the Supreme Court can decide critical issues by a 5-4 margin.</p>
<p>By restoring a norm of unanimous decisions, the Supreme Court would give voice to all of its justices and the unique perspectives that each of them brings.</p>
<p>As Chief Justice <a href="http://www.washingtonpost.com/wp-dyn/content/article/2006/05/21/AR2006052100678.html">John Roberts has observed</a>, “The rule of law benefits from a broader agreement.”</p><img src="https://counter.theconversation.com/content/168819/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Orentlicher serves as a Democrat in the Nevada legislature.</span></em></p>Despite a historically diverse high court, its voting rules often fail to include minority viewpoints. That could be avoided if justices decided their cases by unanimous vote.David Orentlicher, Professor of Law and Co-Director, Health Law Program, University of Nevada, Las VegasLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1646712021-10-04T13:08:11Z2021-10-04T13:08:11ZHow did white students respond to school integration after Brown v. Board of Education?<figure><img src="https://images.theconversation.com/files/423656/original/file-20210928-23-pu36dn.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C6920%2C6930&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The collective memory of school desegregation is of anger and division, like in this photo of 15-year-old Elizabeth Eckford walking away from a crowd outside a high school in Little Rock, Ark.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/elizabeth-eckford-ignores-the-hostile-screams-and-stares-of-news-photo/517322800">Bettmann via Getty Images</a></span></figcaption></figure><figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/281719/original/file-20190628-76743-26slbc.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/281719/original/file-20190628-76743-26slbc.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=293&fit=crop&dpr=1 600w, https://images.theconversation.com/files/281719/original/file-20190628-76743-26slbc.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=293&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/281719/original/file-20190628-76743-26slbc.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=293&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/281719/original/file-20190628-76743-26slbc.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=368&fit=crop&dpr=1 754w, https://images.theconversation.com/files/281719/original/file-20190628-76743-26slbc.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=368&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/281719/original/file-20190628-76743-26slbc.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=368&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<p><em><a href="https://theconversation.com/us/topics/curious-kids-us-74795">Curious Kids</a> is a series for children of all ages. If you have a question you’d like an expert to answer, send it to <a href="mailto:curiouskidsus@theconversation.com">curiouskidsus@theconversation.com</a>.</em></p>
<hr>
<blockquote>
<p><strong>What did white children have to say about their “all-white” schools integrating? – Julia M.N., age 11, New York City</strong></p>
</blockquote>
<hr>
<p>In 1954, the Supreme Court ruled in <a href="https://www.archives.gov/education/lessons/brown-v-board#background">Brown v. Board of Education</a> that racially segregated schools violated the civil rights of Black students. Black Americans throughout the country celebrated the decision as a blow to anti-Black racism. </p>
<p>Whites’ reactions to the case varied, depending on where they lived and whether their local communities had a history of segregation, either through laws or just local customs and practices. White students’ acceptance of this social change was significantly shaped by their parents’ political beliefs about school desegregation. </p>
<p>Stories of peaceful transition to integration are less known than stories of white defiance.</p>
<p>The Supreme Court case was named for a lawsuit that originated in Topeka, Kansas, in 1951, <a href="https://www.nps.gov/articles/brown-v-board-of-education.htm">opposing public school segregation</a>. The segregationist Topeka School Board was embarrassed by the publicity associated with the case because of the <a href="https://www.history.com/this-day-in-history/kansas-enters-the-union">history of Kansas</a> as a state where slavery was illegal. So eight months before the landmark Supreme Court decision, the board members reversed their prior stance, resolving “to terminate … segregation in the elementary schools as rapidly as is practicable,” according to meeting minutes. </p>
<p>Those records also showed that some white parents threatened to withdraw their children if they were expected to share classrooms with Black students or Black teachers.</p>
<p>Other white parents embraced the new desegregation policy, like the parents of Clay Elementary School student Nancy Jones. Jones’ parents advised her to “<a href="https://www.cjonline.com/news/20190430/brown-v-board-of-education-in-1954-students-felt-impact-of-integration-in-topeka-elementary-schools">be friendly with the new students and to treat them with kindness and respect</a>.”</p>
<p>Although Black students began attending integrated schools in Topeka in 1954, it wasn’t until 1957 that the city assigned Black teachers to predominantly white schools. And even then, anticipating what it called “social hazards,” the School Board let white parents choose whether they wanted their kids to only have white teachers or to let the district assign students and teachers without regard to race.</p>
<p>The parents of Randolph Elementary School student Mike Worswick were among those who chose the latter. It was a decision that indirectly supported the integration of Black teachers.</p>
<p>“<a href="https://www.cjonline.com/news/20190430/brown-v-board-of-education-in-1954-students-felt-impact-of-integration-in-topeka-elementary-schools">It turned out to be one of the best things of my life</a>,” Worswick recalled in an interview years later.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/423659/original/file-20210928-22-1nzd7aj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Several students wave and cheer through a window in a brick building" src="https://images.theconversation.com/files/423659/original/file-20210928-22-1nzd7aj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/423659/original/file-20210928-22-1nzd7aj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=412&fit=crop&dpr=1 600w, https://images.theconversation.com/files/423659/original/file-20210928-22-1nzd7aj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=412&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/423659/original/file-20210928-22-1nzd7aj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=412&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/423659/original/file-20210928-22-1nzd7aj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=517&fit=crop&dpr=1 754w, https://images.theconversation.com/files/423659/original/file-20210928-22-1nzd7aj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=517&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/423659/original/file-20210928-22-1nzd7aj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=517&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">During Boston’s school desegregation debate in 1974, there was cheering as well as violence.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/AfricanAmericanIntegrationAnti-SchoolMABusingStudents/3b15fdafd763453f81ff9cff371b54d0/photo">AP Photo/PBR</a></span>
</figcaption>
</figure>
<p>Jones, whose parents had urged kindness, was upset when she found out about violence that erupted in other places across the nation.</p>
<p>“<a href="https://www.cjonline.com/news/20190430/brown-v-board-of-education-in-1954-students-felt-impact-of-integration-in-topeka-elementary-schools">We never saw anything like that in Topeka</a>,” she recalled in 2019.</p>
<p>Americans’ collective historical memory of desegregation is filled with visual images of white resistance in Southern cities like Little Rock, Arkansas, in 1957 and northern cities like Boston in 1974.</p>
<p>One iconic photo was taken at Little Rock’s Central High School on Sept. 4, 1957. That day, Arkansas Gov. Orval Faubus ordered the Arkansas National Guard to <a href="http://www.americaslibrary.gov/aa/eisenhower/aa_eisenhower_littlerock_1.html">block Black students’ entry into the school</a>. Local newspaper photographer Will Counts photographed one of the Black students, 15-year-old Elizabeth Eckford, after she was turned away from school. Eckford was surrounded by white students in the picture, as one named Hazel Bryan, also 15, is yelling at her.</p>
<p>The picture quickly spread through national news outlets, and Bryan became the symbolic face of Southern white racism. The notoriety haunted Bryan, who <a href="https://www.npr.org/2011/10/02/140953088/elizabeth-and-hazel-the-legacy-of-little-rock">apologized to Eckford five or six years later</a>.</p>
<p>While Bryan and her fellow students became a public spectacle, the fact that most whites did nothing was less remarked upon.</p>
<p>White students who supported integration knew that if they came to Black students’ aid, they risked social repercussions, or worse. Central High junior Robin Woods was “ashamed” of her peers’ behavior outside of school that September day, but did not get involved. When a Black classmate forgot his math book that day, though, Woods shared hers. That act of kindness was met with a “<a href="https://www.facinghistory.org/resource-library/choices-little-rock/choices-people-made-white-students-and-teachers-central-high-school">gasp of disbelief</a>,” and a year of harassment followed.</p>
<p>Central High School senior Marcia Webb also witnessed her peers’ aggression toward the integrating Black students, who became known as the “<a href="https://www.history.com/topics/black-history/central-high-school-integration">Little Rock Nine</a>.” At the time she was more interested in high school dances and athletic events than the emerging political storm, a racial privilege that was denied her new Black classmates. </p>
<p>“I’m sorry to say now, looking back, that what was happening didn’t have more significance and I didn’t take more of an active role,” she recalled. “But I was interested in the things that most kids are.” </p>
<p>As an adult, Webb expressed regret for her unwillingness to intervene:</p>
<p>“<a href="https://www.facinghistory.org/resource-library/what-happened-next-arkansas-national-guard">[H]urt can come from words, from silence even, from just being ignored</a>.” </p>
<hr>
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<p class="fine-print"><em><span>Charise Cheney does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Americans’ collective memory of school desegregation involves crowds of screaming white protesters. But less well known are the whites who stood by quietly, and those who approved of the changes.Charise Cheney, Associate Professor of Ethnic Studies, University of OregonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1686002021-09-28T19:04:06Z2021-09-28T19:04:06ZThe Supreme Court’s immense power may pose a danger to its legitimacy<figure><img src="https://images.theconversation.com/files/423333/original/file-20210927-27-11bt8b3.jpeg?ixlib=rb-1.1.0&rect=24%2C0%2C8155%2C5464&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Supreme Court has no army to enforce its decisions; its authority rests solely on its legitimacy.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-u-s-supreme-court-is-shown-june-21-2021-in-washington-news-photo/1324719634?adppopup=true">Win McNamee/Getty Images</a></span></figcaption></figure><p><a href="https://constitutioncenter.org/blog/why-the-supreme-court-starts-on-the-first-monday-in-october">The first Monday in October</a> is the traditional day that the U.S. Supreme Court convenes for its new term. Analysts and soothsayers carefully read the signals and forecast the direction the court will take. This year the scrutiny seems a little more intense, as the court takes up several highly charged cases. </p>
<p>Alexander Hamilton famously thought the judiciary would be the weakest branch of government. <a href="https://avalon.law.yale.edu/18th_century/fed78.asp">He recognized that the Supreme Court lacked “the sword and the purse”</a> and could not enforce or implement its own decisions. Rather, it would need to rely on the good offices of the other branches.</p>
<p><a href="https://scholar.google.com/citations?user=utLMvy4AAAAJ&hl=en">As a student of</a> the Supreme Court, I have examined how the power and authority of the Court have waxed and waned over the centuries. The modern Supreme Court, dating back to <a href="https://www.oyez.org/cases/1940-1955/347us483">Brown v. Board of Education in 1954</a>, is one of the <a href="https://press.princeton.edu/books/paperback/9780691141022/political-foundations-of-judicial-supremacy">most powerful tribunals in the world and across history</a>. </p>
<p>That immense power has arguably made the court a leading player in enacting policy in the U.S. It may also cause the loss of the court’s legitimacy, which can be defined as popular acceptance of a government,
political regime or system of governance.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/423338/original/file-20210927-15-a3bji5.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Six Black schoolchildren involved in the Brown v. Board of Education case, dressed up and standing in a line." src="https://images.theconversation.com/files/423338/original/file-20210927-15-a3bji5.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/423338/original/file-20210927-15-a3bji5.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=411&fit=crop&dpr=1 600w, https://images.theconversation.com/files/423338/original/file-20210927-15-a3bji5.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=411&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/423338/original/file-20210927-15-a3bji5.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=411&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/423338/original/file-20210927-15-a3bji5.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=517&fit=crop&dpr=1 754w, https://images.theconversation.com/files/423338/original/file-20210927-15-a3bji5.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=517&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/423338/original/file-20210927-15-a3bji5.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=517&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">In Brown v. Board of Education, the Court ruled that racially segregated public schools were unconstitutional. These are the children involved in the landmark case.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/portrait-of-the-children-involved-in-the-landmark-civil-news-photo/88533848?adppopup=true">Carl Iwasaki/Getty Images</a></span>
</figcaption>
</figure>
<h2>May it please the Court</h2>
<p>When the founding fathers designed U.S. government, <a href="https://www.washingtonpost.com/news/politics/wp/2017/02/13/the-president-was-never-intended-to-be-the-most-powerful-part-of-government/">Congress was supposed to be the most powerful institution</a>. But gridlock has sapped its vitality. Presidents, who have enormous power in foreign affairs, are often constrained in domestic politics. The limits on the Supreme Court - no army, no administrative enforcers - may be real, but the judiciary, with the Supreme Court at its apex, has become in the view of some, the most powerful branch of government. </p>
<p>One of the lures of the Supreme Court is that a victory can be etched in stone as a precedent that can be used for decades.</p>
<p>The U.S. government, states, corporations, unions and interest groups are among the so-called “<a href="https://www.journals.uchicago.edu/doi/10.2307/2960277">repeat players</a>” who strategically use the courts – including the Supreme Court – to supplement their lobbying efforts and further their policy objectives. </p>
<p>An interest group like the <a href="https://www.aclu.org/about/aclu-history">American Civil Liberties Union</a> might go to the Supreme Court to protect a bookseller’s free expression. The <a href="https://kinginstitute.stanford.edu/encyclopedia/national-association-advancement-colored-people-naacp">National Association for the Advancement of Colored People</a>, now called simply the NAACP, might challenge state or national legislation that is perceived to suppress voting rights. The U.S. government might prosecute a defendant charged with violating an indecency act. <a href="https://www.americanbar.org/groups/judicial/publications/appellate_issues/2019/winter/judicial-courage-judicial-heroes-and-the-civil-rights-movement/">Civil rights advocates famously used the judicial branch</a> because Congress, the president or both were not responsive. </p>
<p>Groups, of course, might use the courts because the judiciary is the most appropriate venue to defend the rights of unpopular groups or ensure protections for defendants. The courts might <a href="https://press.uchicago.edu/ucp/books/book/chicago/R/bo3621952.html">better protect against tyranny of the majority</a>. Groups might bring a case to protect the free exercise of religion by Muslims or challenge aid to religious schools as favoring one religion over another. </p>
<h2>The ultimate resource: legitimacy</h2>
<p><a href="https://news.gallup.com/poll/316817/approval-supreme-court-highest-2009.aspx">The Supreme Court’s public approval</a> annually hovers around 50% to 60%, which is much better than Congress and typically better than the president. But that <a href="https://www.forbes.com/sites/alisondurkee/2021/09/22/supreme-courts-approval-rate-plunges-amid-abortion-debate-poll-finds/">approval is at its lowest ebb in decades</a>. </p>
<p>The <a href="https://www.businessinsider.com/supreme-court-nominations-us-history-amy-coney-barrett-2020-10">controversy over recent nominations</a>, threats to <a href="https://www.nbcnews.com/politics/supreme-court/democrats-introduce-bill-expand-supreme-court-9-13-justices-n1264132">pack the court</a>, and whispers that <a href="https://theconversation.com/the-supreme-court-has-overturned-precedent-dozens-of-times-in-the-past-60-years-including-when-it-struck-down-legal-segregation-168052">certain precedents are about to be overturned</a> have held the court up to more attention and threaten its legitimacy. And the <a href="https://www.cambridge.org/core/books/curbing-the-court/97B607067A2E7392C2223EF7E642FC7A">court’s ultimate authority rests on its legitimacy</a>. If the court is seen as too political, it will bleed this precious resource. </p>
<p>The Supreme Court has almost complete discretion over the cases that it hears. It annually gets <a href="https://us.sagepub.com/en-us/nam/the-supreme-court-compendium/book244744">7,000 to 8,000 petitions for its attention</a> and it routinely takes about 85 cases for full review. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/423345/original/file-20210927-21-3wsgeo.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Anti-abortion activists holding signs in front of the Supreme Court." src="https://images.theconversation.com/files/423345/original/file-20210927-21-3wsgeo.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/423345/original/file-20210927-21-3wsgeo.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/423345/original/file-20210927-21-3wsgeo.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/423345/original/file-20210927-21-3wsgeo.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/423345/original/file-20210927-21-3wsgeo.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/423345/original/file-20210927-21-3wsgeo.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/423345/original/file-20210927-21-3wsgeo.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Supreme Court will take up a case this term that challenges the constitutional right to an abortion.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/AbortionBattlegrounds/78ad9c6eb1ee40a3b0064f1e5de97c3a/photo?Query=U.S.%20Supreme%20Court%20protest&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=340&currentItemNo=31">AP Photo/Jose Luis Magana</a></span>
</figcaption>
</figure>
<p>The court takes cases <a href="https://www.routledge.com/The-Supreme-Court-in-a-Separation-of-Powers-System-The-Nations-Balance/Pacelle/p/book/9780415894302">to resolve disputes between lower courts and because the parties are raising important issues</a>. But having a really important issue does not ensure the court will review it. </p>
<p>Sometimes the court simply wants to let an issue <a href="https://www.routledge.com/The-Supreme-Court-in-a-Separation-of-Powers-System-The-Nations-Balance/Pacelle/p/book/9780415894302">develop a little more in the lower courts before addressing it</a>. The court may not want to get ahead of public opinion. For years, the court simply <a href="https://www.routledge.com/The-Supreme-Court-in-a-Separation-of-Powers-System-The-Nations-Balance/Pacelle/p/book/9780415894302">refused to take cases involving gay rights</a>. Sometimes, they try to avoid an issue in hopes Congress or the states might be compelled to intervene.</p>
<p><a href="https://www.supremecourt.gov/about/constitutional.aspx">The court’s ultimate decision is binding precedent</a> on lower courts and the justices themselves. </p>
<p>The <a href="https://www.jstor.org/stable/3481421">justices have been criticized for</a> using the court to make policy decisions. This is controversial in part because the justices are not elected and enjoy lifetime tenure. They cannot be voted out of office. </p>
<p>Critics prefer that the <a href="https://www.routledge.com/The-Supreme-Court-in-a-Separation-of-Powers-System-The-Nations-Balance/Pacelle/p/book/9780415894302">court adopt judicial restraint and defer</a> to the elected branches of government who could be removed by the voters if they oppose their policies. <a href="https://www.britannica.com/topic/judicial-activism">Both sides charge the other with being activists</a>, which is the worst insult you could levy at a judge. </p>
<p>But the court’s willingness to push its way into the political maelstrom has quietly been welcomed by the other branches that can avoid the difficult questions and <a href="https://www.cambridge.org/gb/academic/subjects/politics-international-relations/american-government-politics-and-policy/american-politicians-confront-court-opposition-politics-and-changing-responses-judicial-power">then curry favor with the voters by criticizing the court</a>. </p>
<h2>A court of law or of men and women?</h2>
<p>As this Supreme Court term begins, opponents and proponents of reproductive rights are <a href="https://www.nytimes.com/2021/05/17/us/politics/supreme-court-roe-wade.html">predicting the court will overrule one of its precedents, Roe v. Wade</a>. Of course, this would not be the first time that such a prediction has been made. </p>
<p>Anyone analyzing the court needs to reconcile two competing realities. First, <a href="https://www.cambridge.org/core/books/decision-making-by-the-modern-supreme-court/56145C06CC46E9D321A0BEE9FD46045D">justices are relatively consistent in their decision-making</a>: <a href="https://newrepublic.com/article/162878/barrett-roberts-moderate-supreme-court-term">Conservatives issue conservative decisions</a> and <a href="https://www.usatoday.com/story/opinion/2019/09/10/liberal-supreme-court-justices-vote-in-lockstep-not-the-conservative-justices-column/2028450001/">liberals issue liberal ones</a>. Second, the court itself <a href="https://theconversation.com/the-supreme-court-has-overturned-precedent-dozens-of-times-in-the-past-60-years-including-when-it-struck-down-legal-segregation-168052">seldom overrules one of its precedents</a>. In addition, despite the divisions on the court, usually about <a href="https://us.sagepub.com/en-us/nam/the-supreme-court-compendium/book244744">one-third of the cases are decided unanimously</a>.</p>
<p>Two decades ago, seven of the sitting justices at the time expressed the <a href="https://www.cambridge.org/core/books/curbing-the-court/97B607067A2E7392C2223EF7E642FC7A">view that Roe was wrongly decided</a>, but a majority of that court never voted to relegate it to the dustbin of history. </p>
<p>On the other hand, <a href="https://theconversation.com/the-supreme-court-has-overturned-precedent-dozens-of-times-in-the-past-60-years-including-when-it-struck-down-legal-segregation-168052">when the court does overturn precedents</a> – for instance, <a href="https://constitutioncenter.org/blog/on-this-day-the-supreme-court-rules-against-segregation#:%7E:text=The%20decision%20of%20Brown%20v,Ferguson%20in%201896.">Brown reversed Plessy v. Ferguson, ending legal segregation</a> – it is after the passage of time. <a href="https://press.princeton.edu/books/paperback/9780691136332/the-politics-of-precedent-on-the-us-supreme-court">Fifty years is typical</a> and Roe is approaching that hallmark.</p>
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<p>Occasionally, the court makes a decision that is out of step with public opinion and may pay a hefty institutional price. When the <a href="https://www.oyez.org/cases/1850-1900/60us393">Taney Court issued the Dred Scott v. Sanford ruling in 1857</a>, <a href="https://www.britannica.com/event/Dred-Scott-decision">claiming freed enslaved people could not become citizens and overruling the Missouri Compromise</a> that balanced the number of free and slave states, <a href="https://www.theatlantic.com/ideas/archive/2020/09/liberal-reckoning-courts/616425/">the decision weakened the judiciary for decades</a>. When the <a href="https://www.smithsonianmag.com/history/when-franklin-roosevelt-clashed-with-the-supreme-court-and-lost-78497994/">conservative-leaning court gutted portions of the New Deal</a>, <a href="https://www.archives.gov/education/lessons/separation-powers">President Franklin Roosevelt attacked the court</a> and the court backed down. </p>
<p>Overturning Roe would invite criticism and closer scrutiny. It might expose the court as an institution that makes the law rather than one that interprets it.</p><img src="https://counter.theconversation.com/content/168600/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Richard L. Pacelle Jr. does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Supreme Court is a leading player in enacting policy in the US. But it has no army to enforce its decisions; its authority rests solely on its legitimacy.Richard L. Pacelle Jr., Professor of Political Science, University of TennesseeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1597912021-07-28T12:18:06Z2021-07-28T12:18:06ZLessons from segregated schools can help make today’s classrooms more inclusive<figure><img src="https://images.theconversation.com/files/408694/original/file-20210628-19-bcxfl1.jpg?ixlib=rb-1.1.0&rect=4%2C0%2C3190%2C2050&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Black teachers comprise just 7% of U.S. public school teachers even though 16% of their students are Black. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/dewayne-henry-holds-a-sign-as-he-protests-outside-of-mystic-news-photo/1225949451">Jessica Rinaldi/The Boston Globe via Getty Images</a></span></figcaption></figure><p>The intent of school desegregation is clear: Black and white children should attend the same schools, and Black children should not be relegated to inferior buildings, learning materials and extracurricular activities.</p>
<p>While separate-but-equal is <a href="https://www.uscourts.gov/educational-resources/educational-activities/history-brown-v-board-education-re-enactment">no longer legal</a>, the reality is that today many Black children <a href="https://www.npr.org/sections/live-updates-protests-for-racial-justice/2020/07/07/888469809/how-funding-model-preserves-racial-segregation-in-public-schools">do not experience</a> inclusive public school education. Inclusive education not only responds to the needs, interests and backgrounds of Black children, but it also incorporates diverse learning – such as not teaching predominantly white history. </p>
<p>As scholars of <a href="https://www.inclusivefaculty.com">inclusive education</a>, particularly for <a href="https://www.drlissad.com/">Black and deaf students</a>, we believe public schools need to do much more to serve the needs of these children.</p>
<h2>Shared experiences</h2>
<p>Before the 1954 <a href="https://www.oyez.org/cases/1940-1955/347us483">Brown v. Board of Education</a> decision, Black children attended segregated schools that were full of Black teachers and other leaders who shared their <a href="https://medium.com/@jacobhoerger/lived-experience-vs-experience-2e467b6c2229">Black experience</a>. </p>
<p>These adults passed along spoken and unspoken rules about living while Black in the United States. A contemporary example might be teaching and <a href="https://whyy.org/segments/they-see-me-as-a-role-model-black-teachers-improve-education-outcomes-for-black-students/">role modeling confidence</a> in the face of negative stereotypes and statistics. For example, having just one Black teacher by third grade reduces the risk of Black boys dropping out of high school <a href="https://www.npr.org/sections/ed/2017/04/10/522909090/having-just-one-black-teacher-can-keep-black-kids-in-school">by 39%</a>.</p>
<p><a href="http://aas.emory.edu/home/people/faculty/siddle-walker-vanessa.html">Vanessa Siddle Walker</a>, a professor of African American educational studies, summarizes three goals of inclusive education: <a href="https://www.gse.harvard.edu/news/19/03/harvard-edcast-long-struggle-justice">access, aspiration and advocacy</a>. Access is using the same buildings and educational resources as other neighborhood children. Advocacy is having leaders who inform and support Black children. And aspiration is offering Black children models of what success can look like as adults.</p>
<p>Black children in segregated schools did not have access to the same buildings and educational resources as white children. Desegregation was an attempt to solve the access barriers and a step forward from the <a href="https://www.nytimes.com/2019/07/12/opinion/sunday/it-was-never-about-busing.html">worst educational</a> <a href="https://www.loc.gov/collections/civil-rights-history-project/articles-and-essays/school-segregation-and-integration/">inequities</a> <a href="https://www.pbs.org/wgbh/americanexperience/features/freedom-riders-jim-crow-laws/">under Jim Crow</a>.</p>
<p>But <a href="https://www.epi.org/publication/schools-are-still-segregated-and-black-children-are-paying-a-price/">inequities and segregation persist</a>. Many of today’s K-12 public school students have teachers who are <a href="https://www.edweek.org/teaching-learning/opinion-far-too-many-educators-arent-prepared-to-teach-black-and-brown-students/2021/04">unprepared and unable</a> to inform and support Black students’ realities of being Black. Nor can they offer examples of what success looks like for Black adults. Black teachers comprise just <a href="https://doi.org/10.1177/0031721717690363">7% of U.S. public school teachers</a> even though 16% of their students are Black. </p>
<p>Furthermore, the messages within schools since integration have not supported Black children in general. We believe desegregated schools today are <a href="https://www.gse.harvard.edu/news/14/08/addressing-racial-inequity-curriculum-and-school-culture">systemically racist</a>. For example, most history lessons <a href="https://www.splcenter.org/20180131/teaching-hard-history">don’t teach a true picture</a> of what enslaved people experienced in the founding of this country. And generally, school curriculum paints racism as a thing of the past – ignoring the racism that Black people experience now. Most teachers <a href="https://doi.org/10.1080/13613324.2010.488902">lack specific training</a> in anti-racist and inclusive teaching and learning.</p>
<p>Anti-Black bias is also visible when school dress codes <a href="https://www.chalkbeat.org/2020/1/16/21121830/states-and-cities-are-banning-hair-discrimination-here-s-how-that-s-affecting-schools">don’t allow Black hairstyles</a> like dreadlocks or braids. <a href="https://nypost.com/2019/10/16/black-kids-more-likely-to-be-suspended-than-white-kids-over-same-behavior/">Unfair disciplinary approaches</a> mean Black students are more likely to be suspended than white students. This punitive focus feeds the <a href="https://www.parents.com/kids/education/theres-a-student-to-prison-pipeline-happening-in-schools-and-the-unfair-disciplining-of-blank-and-latino-students-is-feeding-it/">school-to-prison pipeline</a> in which Black students are overrepresented in the criminal justice system starting with school disciplinary actions.</p>
<p>Other examples include <a href="https://www.insidehighered.com/news/2017/10/24/study-finds-high-school-teachers-have-differing-expectations-black-and-white">lower teacher expectations</a> of Black students compared to white students. Researchers have shown that <a href="https://www.brookings.edu/blog/brown-center-chalkboard/2020/07/01/anti-blackness-and-the-way-forward-for-k-12-schooling/">communities and school zones</a> with higher levels of anti-Black bias also have lower Black student test scores. </p>
<p>Law professor and author <a href="https://www.hup.harvard.edu/catalog.php?isbn=9780674014718">Patricia Williams</a> coined the phrase “<a href="https://repository.law.miami.edu/cgi/viewcontent.cgi?article=2092&context=umlr">spirit murdering</a>” to recognize the <a href="https://www.edelements.com/blog/lies-used-to-spirit-murder-black-and-brown-children">devastating impact</a> this education system has on Black people. <a href="https://bettinalove.com/about/">Bettina Love</a>, a professor of educational reform and abolitionist teaching, expands on this <a href="https://www.edweek.org/leadership/opinion-how-schools-are-spirit-murdering-black-and-brown-students/2019/05">by saying</a>, “Racism is more than physical pain; racism robs dark people of their humanity and dignity.” </p>
<figure class="align-center ">
<img alt="A rally of students and families wearing red T-shirts that say 'I fight to end equality'" src="https://images.theconversation.com/files/408689/original/file-20210628-15-14wpjid.jpg?ixlib=rb-1.1.0&rect=8%2C0%2C2986%2C1998&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/408689/original/file-20210628-15-14wpjid.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/408689/original/file-20210628-15-14wpjid.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/408689/original/file-20210628-15-14wpjid.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/408689/original/file-20210628-15-14wpjid.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/408689/original/file-20210628-15-14wpjid.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/408689/original/file-20210628-15-14wpjid.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Students, parents and teachers rally in Brooklyn in 2015 to demand racial justice in New York City schools after a report showed Black and Hispanic students are increasingly confined to some of the worst-performing city schools.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/thousands-of-students-parents-and-educators-rally-in-news-photo/491688874">Spencer Platt/Getty Images</a></span>
</figcaption>
</figure>
<h2>Indigenous, bilingual and deaf students</h2>
<p>These losses in the move toward school integration also apply to other underrepresented students throughout the U.S. </p>
<p>Indian Residential Schools were established in the late 19th and early 20th centuries to forcibly <a href="https://www.theatlantic.com/education/archive/2019/03/traumatic-legacy-indian-boarding-schools/584293/">assimilate Native American children</a> into Euro-American culture. </p>
<p>For today’s students who aren’t native English speakers, bilingual language policies in the U.S. have usually focused on <a href="https://doi.org/10.1007/s11125-019-09449-x">English fluency</a> rather than supporting continued fluency in the native language as well.</p>
<p>Meanwhile, schools for deaf and hard of hearing children <a href="https://academic.oup.com/jdsde/article/19/2/203/377828">are closing</a>. That’s partly because small, specialized schools <a href="https://lao.ca.gov/Publications/Report/3498">are expensive</a>, and partly because placement decisions by special education teams increasingly send these kids to <a href="https://academic.oup.com/jdsde/article/19/2/203/377828">local schools first</a>. <a href="https://sites.ed.gov/idea/statute-chapter-33/subchapter-ii/1412/a/5">Special education law</a> requires that – to the maximum extent possible – students with disabilities are educated with children without disabilities. </p>
<p>In all of these cases, students on the margins have much less direct access to adults with similar life experiences. </p>
<h2>More inclusive classrooms</h2>
<p>There are many ways to make today’s classrooms more inclusive. </p>
<p>School leaders – from teachers and principals to district superintendents – can partner with local communities to determine how to improve their children’s schools. One solution is for every school to have role models that represent a school’s diversity - such as Black, deaf and Indigenous.</p>
<p>Curriculum designers can rely on more Black and other diverse perspectives to help address the <a href="https://doi.org/10.1007/s11256-020-00563-1">historical whitewashing of U.S. history</a> and integrate horrific events such as the <a href="https://theconversation.com/100-years-after-the-tulsa-race-massacre-lessons-from-my-grandfather-161391">Tulsa Race Massacre</a>.</p>
<p>Training programs can better prepare all teachers to teach about race and diversity, and to support marginalized students. </p>
<p>In short, we believe current practices are spirit-killing: They <a href="https://www.edweek.org/leadership/opinion-how-schools-are-spirit-murdering-black-and-brown-students/2019/05">bulldoze over children, families and communities</a>, leaving them academically traumatized and fighting to be seen and heard. The above recommendations come from a perspective of spirit-uplifting instead. </p>
<p>Most importantly, we believe society needs to admit that the experiment of desegregation has not solved the problem. It has not led to true abolition, inclusion and deep learning in U.S. public education for children who are Black, Indigenous, bilingual, deaf or have disabilities. </p>
<p>[<em>Get the best of The Conversation, every weekend.</em> <a href="https://theconversation.com/us/newsletters/weekly-highlights-61?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=weeklybest">Sign up for our weekly newsletter</a>.]</p><img src="https://counter.theconversation.com/content/159791/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sara Schley receives funding from the National Science Foundation's IUSE program (award # 162581), titled Collaborative Research: Accessible STEM Instruction with Deaf Students -- Supporting Faculty in Pedagogical Exploration and Innovation. </span></em></p><p class="fine-print"><em><span>Lissa Ramirez-Stapleton received funding from the Ford Foundation (2018-2019 Postdoc Fellow) and The Institute for Citizens & Scholars (2019 Fellow). This funding did not directly impact the writing of this piece. </span></em></p>Two scholars of inclusive education explain how segregated Black schools advocated for Black children in a way that’s often missing from today’s desegregated classrooms.Sara Schley, Professor of Learning Sciences and Inclusive Pedagogy at the National Technical Institute for the Deaf, Rochester Institute of TechnologyLissa Ramirez-Stapleton, Associate Professor of Deaf Studies, California State University, NorthridgeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1627522021-06-30T12:14:54Z2021-06-30T12:14:54ZCritical race theory: What it is and what it isn’t<figure><img src="https://images.theconversation.com/files/408729/original/file-20210628-27-g6yv82.jpeg?ixlib=rb-1.1.0&rect=0%2C4%2C2995%2C2043&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Lyndon Johnson signing the 1964 Civil Rights Act, which aimed to do away with racial discrimination in the law. But discrimination persisted.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/CivilRightsAct5Things/2bb46ead55594550b57e184e605c75e8/photo?Query=(renditions.phototype:horizontal)%20AND%20civil%20rights%20U.S.%20Johnson&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=72&currentItemNo=10">AP file photo</a></span></figcaption></figure><p>U.S. Rep. Jim Banks of Indiana sent a <a href="https://www.politico.com/f/?id=0000017a-3f65-d283-a3fb-bf6f99470000">letter</a> to fellow Republicans on June 24, 2021, stating: “As Republicans, we reject the racial essentialism that critical race theory teaches … that our institutions are racist and need to be destroyed from the ground up.” </p>
<p>Kimberlé Crenshaw, a law professor and central figure in the development of critical race theory, said <a href="http://transcripts.cnn.com/TRANSCRIPTS/2105/22/cnr.04.html">in a recent interview</a> that critical race theory “just says, let’s pay attention to what has happened in this country, and how what has happened in this country is continuing to create differential outcomes. … Critical Race Theory … is more patriotic than those who are opposed to it because … we believe in the promises of equality. And we know we can’t get there if we can’t confront and talk honestly about inequality.” </p>
<p>Rep. Banks’ account is demonstrably false and typical of many people publicly declaring their opposition to critical race theory. Crenshaw’s characterization, while true, does not detail its main features. So what is critical race theory and what brought it into existence? </p>
<p>The development of critical race theory by legal scholars such as <a href="https://www.law.nyu.edu/news/DERRICK_BELL_MEMORIAM">Derrick Bell</a> <a href="https://www.law.columbia.edu/faculty/kimberle-w-crenshaw">and Crenshaw</a> was largely a response to the slow legal progress and setbacks faced by African Americans from the end of the Civil War, in 1865, through the end of the civil rights era, in 1968. To understand critical race theory, you need to first understand the history of African American rights in the U.S.</p>
<h2>The history</h2>
<p>After 304 years of enslavement, then-former slaves gained equal protection under the law with passage of <a href="https://constitutioncenter.org/interactive-constitution/amendment/amendment-xiv">the 14th Amendment in 1868</a>. The 15th Amendment, in 1870, guaranteed voting rights for men regardless of race or “<a href="https://constitutioncenter.org/interactive-constitution/amendment/amendment-xv">previous condition of servitude</a>.” </p>
<p>Between 1866 and 1877 – the period historians call “Radical Reconstruction” – African Americans began businesses, became involved in <a href="https://www.britannica.com/topic/Radical-Reconstruction">local governance and law enforcement and were elected to Congress</a>.</p>
<p>This early progress was subsequently diminished by state laws throughout the American South called “<a href="https://www.crf-usa.org/brown-v-board-50th-anniversary/southern-black-codes.html">Black Codes</a>,” which limited voting rights, property rights and compensation for work; made it illegal to be unemployed or not have documented proof of employment; and could subject prisoners to work without pay on behalf of the state. These legal rollbacks were worsened by the spread of “<a href="https://www.britannica.com/event/Jim-Crow-law">Jim Crow</a>” laws throughout the country requiring segregation in almost all aspects of life.</p>
<p>Grassroots struggles for civil rights were constant in post-Civil War America. Some historians even refer to the period from the New Deal Era, which began in 1933, to the present as “<a href="https://academic.oup.com/jah/article-abstract/91/4/1233/710119">The Long Civil Rights Movement</a>.” </p>
<p>The period stretching from <a href="https://www.oyez.org/cases/1940-1955/347us483">Brown v. Board of Education</a> in 1954, which found school segregation to be unconstitutional, to the <a href="https://www.hud.gov/program_offices/fair_housing_equal_opp/aboutfheo/history">Fair Housing Act of 1968</a>, which prohibited discrimination in housing, was especially productive. </p>
<p>The civil rights movement used practices such as civil disobedience, nonviolent protest, grassroots organizing and legal challenges to advance civil rights. The <a href="https://press.princeton.edu/books/paperback/9780691152431/cold-war-civil-rights">U.S.’s need to improve its image abroad</a> during the Cold War importantly aided these advancements. The movement succeeded in banning explicit legal discrimination and segregation, promoted equal access to work and housing and extended federal protection of voting rights. </p>
<p>However, the movement that produced legal advances had no effect on the increasing <a href="https://heller.brandeis.edu/iere/pdfs/racial-wealth-equity/racial-wealth-gap/roots-widening-racial-wealth-gap.pdf">racial wealth gap</a> between Blacks and whites, while school and housing segregation persisted.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/408735/original/file-20210628-27-17gz3en.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A young Black man on a skateboard pushes his son in a stroller on a sidewalk past blighted buildings in Baltimore." src="https://images.theconversation.com/files/408735/original/file-20210628-27-17gz3en.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/408735/original/file-20210628-27-17gz3en.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/408735/original/file-20210628-27-17gz3en.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/408735/original/file-20210628-27-17gz3en.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/408735/original/file-20210628-27-17gz3en.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/408735/original/file-20210628-27-17gz3en.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/408735/original/file-20210628-27-17gz3en.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The racial wealth gap between Blacks and whites has persisted. Here, Carde Cornish takes his son past blighted buildings in Baltimore. ‘Our race issues aren’t necessarily toward individuals who are white, but it is towards the system that keeps us all down, one, but keeps Black people disproportionally down a lot more than anybody else,’ he said.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/AmericaDividedAmericanMomentsPhotoGallery/7e9800eca46d437b8b82eb9a54614b67/photo?Query=(renditions.phototype:horizontal)%20AND%20Divided%20America%20Black&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=76&currentItemNo=37">AP Photo/Matt Rourke</a></span>
</figcaption>
</figure>
<h2>What critical race theory is</h2>
<p>Critical race theory is a <a href="https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/civil-rights-reimagining-policing/a-lesson-on-critical-race-theory/">field of intellectual inquiry that demonstrates the legal codification of racism in America</a>. </p>
<p>Through the study of law and U.S. history, it attempts to reveal how racial oppression shaped the legal fabric of the U.S. Critical race theory is traditionally less concerned with how racism manifests itself in interactions with individuals and more concerned with how racism has been, and is, codified into the law. </p>
<p>There are a few beliefs commonly held by most critical race theorists. </p>
<p>First, <a href="https://youtu.be/GLcg6jyg3zk">race</a> is not fundamentally or essentially a matter of <a href="https://youtu.be/wuaSnYtvsdU">biology</a>, but rather a <a href="https://youtu.be/sA5MJqlmtZs">social construct</a>. While physical features and geographic origin play a part in making up what we think of as race, societies will often make up the rest of what we think of as race. For instance, 19th- and early-20th-century scientists and politicians frequently described people of color as intellectually or morally inferior, and used those false descriptions to justify oppression and discrimination. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/n4TAQF6ocLU?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Legal scholar Kimberlé Crenshaw, who devised the term ‘critical race theory,’ explains what it is – and isn’t.</span></figcaption>
</figure>
<p>Second, these racial views have been codified into the nation’s foundational documents and legal system. For evidence of that, look no further than the “<a href="https://apnews.com/article/electoral-college-slavery-election-2020-race-and-ethnicity-government-and-politics-0ef97970a86255bf89c897838fcdb335">Three-Fifths Compromise</a>” <a href="https://www.thirteen.org/wnet/slavery/experience/legal/docs2.html">in the Constitution</a>, whereby slaves, denied the right to vote, were nonetheless treated as part of the population for increasing congressional representation of slave-holding states. </p>
<p>Third, given the pervasiveness of racism in our legal system and institutions, racism is not aberrant, but a normal part of life. </p>
<p>Fourth, multiple elements, such as race and gender, can lead to <a href="https://www.jstor.org/stable/1229039">kinds of compounded discrimination that lack the civil rights protections</a> given to individual, protected categories. For example, Crenshaw has forcibly argued that there is a lack of legal protection for <a href="https://law.justia.com/cases/federal/district-courts/FSupp/413/142/1660699/">Black women as a category</a>. The courts have treated Black women as Black, or women, but not both in discrimination cases – despite the fact that they may have experienced discrimination because they were both. </p>
<p>These beliefs are shared by scholars in a variety of fields who explore the role of racism in areas such as education, health care and history. </p>
<p>Finally, critical race theorists are interested not just in studying the law and systems of racism, but in changing them for the better.</p>
<h2>What critical race theory is not</h2>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/GRrzhnrqQNY?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Florida Gov. Ron DeSantis, giving his version of what critical race theory is.</span></figcaption>
</figure>
<p>“Critical race theory” has become a catch-all phrase among legislators attempting to ban a wide array of teaching practices concerning race. State legislators in <a href="https://legiscan.com/AZ/text/SB1532/id/2390101">Arizona</a>, <a href="https://www.arkleg.state.ar.us/Acts/FTPDocument?path=%2FACTS%2F2021R%2FPublic%2F&file=1100.pdf&ddBienniumSession=2021%2F2021R">Arkansas</a>, <a href="https://legislature.idaho.gov/wp-content/uploads/sessioninfo/2021/legislation/H0377.pdf">Idaho</a>, <a href="https://www.house.mo.gov/billtracking/bills211/hlrbillspdf/2087H.01I.pdf">Missouri</a>, <a href="https://webservices.ncleg.gov/ViewBillDocument/2021/1523/0/DRH30167-TC-22">North Carolina</a>, <a href="http://webserver1.lsb.state.ok.us/cf_pdf/2021-22%20ENR/hB/HB1775%20ENR.PDF">Oklahoma</a>, <a href="https://www.scstatehouse.gov/sess124_2021-2022/prever/4325_20210504.htm">South Carolina</a>, <a href="https://capitol.texas.gov/tlodocs/87R/billtext/html/HB03979E.htm">Texas</a> and <a href="http://www.wvlegislature.gov/Bill_Status/bills_text.cfm?billdoc=SB618%20INTR.htm&yr=2021&sesstype=RS&i=618">West Virginia</a> have introduced legislation banning what they believe to be critical race theory from schools. </p>
<p>But what is being banned in education, and what many media outlets and legislators are calling “critical race theory,” is far from it. Here are sections from identical legislation in <a href="http://webserver1.lsb.state.ok.us/cf_pdf/2021-22%20ENR/hB/HB1775%20ENR.PDF">Oklahoma</a> and <a href="https://wapp.capitol.tn.gov/apps/BillInfo/Default.aspx?BillNumber=HB0580">Tennessee</a> that propose to ban the teaching of these concepts. As a <a href="https://www.memphis.edu/philosophy/people/bios/david-gray.php">philosopher of race and racism</a>, I can safely say that critical race theory does not assert the following:</p>
<blockquote>
<p>(1) One race or sex is inherently superior to another race or sex;</p>
<p>(2) An individual, by virtue of the individual’s race or sex, is inherently privileged, racist, sexist, or oppressive, whether consciously or subconsciously;</p>
<p>(3) An individual should be discriminated against or receive adverse treatment because of the individual’s race or sex;</p>
<p>(4) An individual’s moral character is determined by the individual’s race or sex;</p>
<p>(5) An individual, by virtue of the individual’s race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;</p>
<p>(6) An individual should feel discomfort, guilt, anguish, or another form of psychological distress solely because of the individual’s race or sex.</p>
</blockquote>
<p>What most of these bills go on to do is limit the presentation of educational materials that suggest that Americans do not live in a meritocracy, that foundational elements of U.S. laws are racist, and that racism is a perpetual struggle from which America has not escaped.</p>
<p>Americans are used to viewing their history through a <a href="https://www.oxfordreference.com/view/10.1093/acref/9780199541430.001.0001/acref-9780199541430-e-3300">triumphalist lens</a>, where we overcome hardships, defeat our British oppressors and create a country where all are free with equal access to opportunities. </p>
<p>Obviously, not all of that is true.</p>
<p>Critical race theory provides techniques to analyze U.S. history and legal institutions by acknowledging that racial problems do not go away when we leave them unaddressed.</p>
<p>[<em>Understand what’s going on in Washington.</em> <a href="https://theconversation.com/us/newsletters/politics-weekly-74/?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=politics-most">Sign up for The Conversation’s Politics Weekly</a>.]</p><img src="https://counter.theconversation.com/content/162752/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Miguel Gray does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A scholar of race and racism explains what critical race theory is – and how many people get it wrong.David Miguel Gray, Assistant Professor of Philosophy, Affiliate, Institute for Intelligent Systems, University of MemphisLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1549072021-02-10T13:15:21Z2021-02-10T13:15:21ZFighting school segregation didn’t take place just in the South<figure><img src="https://images.theconversation.com/files/383414/original/file-20210209-21-ego0yv.jpg?ixlib=rb-1.1.0&rect=0%2C9%2C6025%2C3860&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">School boycott picketers march across the Brooklyn Bridge to the Board of Education in 1964.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/collaboration/boards/34ORdnAZ_EWMjlv4alVWIA">Bettmann Archive/Getty Images</a></span></figcaption></figure><p>Whether it’s black-and-white photos of Arkansas’ <a href="https://nmaahc.si.edu/blog-post/little-rock-nine">Little Rock Nine</a> or Norman Rockwell’s famous painting of New Orleans schoolgirl <a href="https://www.britannica.com/biography/Ruby-Bridges">Ruby Bridges</a>, images of school desegregation often make it seem as though it was an issue for Black children primarily in the South.</p>
<p>It is true that Bridges, the Little Rock Nine and other brave students in Southern states, including North Carolina and Tennessee, changed the face of American education when they tested the 1954 <a href="https://www.oyez.org/cases/1940-1955/347us483">Brown v. Board of Education decision</a> that mandated the desegregation of public education. But the struggle to desegregate America’s schools in the 1950s and ‘60s did not take place solely in the South. Black students and their parents also boldly challenged segregated schooling in the North.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/383374/original/file-20210209-19-10i8p8w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A group of African American students read books together in a small room." src="https://images.theconversation.com/files/383374/original/file-20210209-19-10i8p8w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/383374/original/file-20210209-19-10i8p8w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=464&fit=crop&dpr=1 600w, https://images.theconversation.com/files/383374/original/file-20210209-19-10i8p8w.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=464&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/383374/original/file-20210209-19-10i8p8w.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=464&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/383374/original/file-20210209-19-10i8p8w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=583&fit=crop&dpr=1 754w, https://images.theconversation.com/files/383374/original/file-20210209-19-10i8p8w.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=583&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/383374/original/file-20210209-19-10i8p8w.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=583&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Little Rock Nine form a study group together after being prevented from entering Central High School in 1957.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-little-rock-nine-form-a-study-group-after-being-news-photo/514877764?adppopup=true">Bettmann/Contributor via Getty Images</a></span>
</figcaption>
</figure>
<p>Mae Mallory, a Harlem activist and mother, serves as an example. Her name may not be the first one that comes to mind when it comes to 1950s school desegregation battles. Yet Mallory made history – and changed the face of public education – when she filed the first <a href="https://www.worldcat.org/title/strange-careers-of-the-jim-crow-north-segregation-and-struggle-outside-of-the-south/oclc/1156961651&referer=brief_results">post-Brown suit</a> against the New York City Board of Education in 1957.</p>
<h2>Prompted by her children</h2>
<p>Mallory got involved in education activism after her children – Patricia and Keefer Jr. – told her about the deplorable conditions of their segregated school, <a href="https://www.worldcat.org/title/letters-from-prison-the-story-of-a-frame-up/oclc/30500574">P.S. 10</a> in Harlem. Mallory joined the Parents Committee for a Better Education and became a vocal advocate of Black children’s right to a safe learning environment.</p>
<p>The turning point came when she indicted the racist school system in her January 1957 testimony before the New York School Board’s Commission on Integration. Mallory embarrassed the board by remarking that P.S. 10 was “<a href="https://www.worldcat.org/title/exposing-the-whole-segregation-myth-the-harlem-nine-and-new-york-citys-school-desegregation-battles/oclc/7323678892&referer=brief_results">just as ‘Jim Crow’”</a> as the Hazel Street School she had attended in Macon, Georgia, in the 1930s. Her testimony was an integral part of the parental complaints that forced the board to construct a new building and hire new teachers.</p>
<h2>A larger battle</h2>
<p>Encouraged by this victory, Mallory began a fight to end the New York City Board of Education’s segregation practices. Existing zoning maps required her daughter, Patricia, to attend a junior high school in Harlem. Mallory argued that this school was inferior to others in the area and would not adequately prepare her daughter for high school. Instead, she enrolled Patricia in a school on Manhattan’s Upper West Side.</p>
<p>The board blocked Patricia’s enrollment. Mallory took action. With the help of a young Black lawyer, <a href="https://www.nytimes.com/1987/03/10/obituaries/paul-b-zuber-is-dead-at-age-60-fought-segregated-school-systems.html">Paul Zuber</a>, she sued, claiming existing zoning policies relegated her daughter – and other Black children – to segregated, inferior schools. Filed three years after Brown, Mallory’s suit forced the Board of Education to face the fact that segregation was a persistent problem in New York City public schools. Eight other mothers joined Mallory’s fight. The press dubbed them the “<a href="http://amsterdamnews.com/news/2017/jun/15/mae-mallory-often-ignored-militant-activist/">Harlem 9</a>.” </p>
<h2>Making headlines</h2>
<p>Once filed, Mallory’s suit became front-page news in <a href="https://www.nytimes.com/2020/07/30/podcasts/nice-white-parents-serial-2.html">The New York Times</a>. A year later, however, the case stalled. In an effort to spur the suit along, the Harlem 9 instituted a boycott of three Harlem junior high schools. Zuber knew that the mothers would face charges of violating compulsory school attendance laws. This, in turn, would force a judge to rule on their suit.</p>
<p>In December 1958, Judge Justine Polier <a href="https://www.worldcat.org/title/exposing-the-whole-segregation-myth-the-harlem-nine-and-new-york-citys-school-desegregation-battles/oclc/7323678892&referer=brief_results">sided with the Harlem 9</a>, declaring: “These parents have the constitutionally guaranteed right to elect no education for their children rather than to subject them to discriminatory, inferior education.” The Harlem 9 gained the first legal victory proving that de facto segregation existed in Northern schools. The decision galvanized local Black parents, causing hundreds to request transfers for their children to better schools.</p>
<h2>A compromise</h2>
<p>The parties reached a settlement in February 1959. The Harlem 9’s children would not enroll in the schools for which they were zoned. Nor would they be able to engage in “open choice” – the parents’ request to send their children to a school of their choosing.</p>
<p>Instead, they would attend a Harlem junior high school that offered more resources, including college prep courses, although it was still largely segregated. The Harlem 9 would be allowed to continue with their ultimately unsuccessful civil suit against the board. <a href="https://doi.org/10.1093/jsh/shy085">The mothers had also filed a million-dollar lawsuit</a> seeking damages for the psychological and emotional toll their children endured in segregated schools. This was a compromise on all fronts. However, Mallory and the other mothers gained a substantial victory in forcing the court and the Board of Education to confront the segregation that existed in New York City public schools. Their boycott also became a unifying strategy for subsequent struggles, most notably for the <a href="https://www.zinnedproject.org/news/tdih/nyc-school-children-boycott-school/">1964 New York City school boycott</a>. During this boycott, hundreds of thousands of parents, students and activists engaged in a daylong protest of segregation and inequality in public city schools.</p>
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<p>The Harlem 9’s fight serves as an important reminder that school desegregation protests were popular and successful in the North as well as in the South. It also provides insight into the prominent role Black women had in these struggles and the diverse range of strategies they deployed – from championing “open choice” to school boycotts – to help their children have access to equal education. </p>
<p>Even more importantly, perhaps, their fight demonstrates the importance of appreciating the different ways in which Black women compelled schools to make good on the Brown decision – a fight that, nearly 70 years later, is still being fought. The Supreme Court’s mandate in the Brown decision that public schools desegregate with “<a href="https://www.backstoryradio.org/blog/with-all-deliberate-speed/">all deliberate speed</a>” is unfinished. Nationwide, <a href="https://www.nytimes.com/2019/05/02/learning/lesson-plans/still-separate-still-unequal-teaching-about-school-segregation-and-educational-inequality.html">Black children remain</a> in schools that are <a href="https://www.vox.com/2018/3/5/17080218/school-segregation-getting-worse-data">segregated</a>, <a href="https://edbuild.org/content/23-billion">underfunded</a> and <a href="https://www.insider.com/states-with-the-best-and-worst-public-education-systems-2019-8">overcrowded</a> – much as they were when Mallory began her fight.</p><img src="https://counter.theconversation.com/content/154907/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ashley Farmer receives funding from National Endowment for the Humanities</span></em></p>In the 1950s, Harlem mother Mae Mallory fought a school system that she saw as ‘just as Jim Crow’ as the one she had attended in the South.Ashley Farmer, Assistant Professor of History & African and African Diaspora Studies, The University of Texas at AustinLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1495832020-11-13T13:43:33Z2020-11-13T13:43:33ZOnce a symbol of desegregation, Ruby Bridges’ school now reflects another battle engulfing public education<figure><img src="https://images.theconversation.com/files/368354/original/file-20201109-23-1rgbeqh.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C3000%2C1989&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">US deputy marshals escort 6-year-old Ruby Bridges outside William Frantz Public School in New Orleans in 1960.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/RubyBridgesSegregation/83ac2adbc8e147a2b80b20992ef70a97/photo?Query=Ruby%20AND%20Bridges&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=55&currentItemNo=28">AP Photo</a></span></figcaption></figure><p>On Nov. 14, 1960, after a long summer and autumn of volleys between the Louisiana Legislature and the federal courts, Ruby Bridges, a 6-year-old Black girl, was allowed to enroll in an all-white school. Accompanied by federal marshals, Bridges entered William Frantz Public School – a small neighborhood school in New Orleans’ Upper Ninth Ward.</p>
<p>If that building’s walls could talk, they certainly would tell the well-known story of its desegregation. But those same walls could tell another story, too. That story is about continued racism as well as efforts to dismantle and privatize public education in America over the past six decades.</p>
<p>As <a href="https://scholar.google.com/scholar?as_allsubj=all&as_sauthors=%22Schaffer%2C+Connie+L%22&as_q=">scholars</a> <a href="https://scholar.google.com/citations?user=OWsZ31oAAAAJ&hl=en&oi=sra">of</a> <a href="https://scholar.google.com/scholar?as_allsubj=all&as_sauthors=%22White%2C+Meg%22&as_q=">education</a>, we combed through multiple archives to <a href="https://www.peterlang.com/view/title/67650?format=EPDF">uncover this story</a>.</p>
<figure class="align-center ">
<img alt="An older woman stands in front of a painting of a young Black girl walking to school" src="https://images.theconversation.com/files/368900/original/file-20201111-15-1spz9jk.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/368900/original/file-20201111-15-1spz9jk.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/368900/original/file-20201111-15-1spz9jk.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/368900/original/file-20201111-15-1spz9jk.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/368900/original/file-20201111-15-1spz9jk.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=504&fit=crop&dpr=1 754w, https://images.theconversation.com/files/368900/original/file-20201111-15-1spz9jk.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=504&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/368900/original/file-20201111-15-1spz9jk.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=504&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Lynda Gunn, who modeled as Ruby Bridges for Norman Rockwell’s 1964 painting ‘The Problem We All Live With,’ poses in front of the painting in 2016.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/lynda-gunn-poses-next-to-the-1964-rockwell-painting-the-news-photo/578335742?adppopup=true">Timothy Tai/The Boston Globe via Getty Images</a></span>
</figcaption>
</figure>
<h2>A civil rights landmark</h2>
<p>News outlets covering the Ruby Bridges story published numerous photographs at the time. But the Frantz school, and racist reactions to desegregating it, really captured America’s attention in 1964, after Look magazine ran a photo of <a href="https://www.youtube.com/watch?v=l4Trz-ijBYg">Norman Rockwell’s iconic painting of Bridges</a> walking to the school.</p>
<p>Disney’s movie “<a href="https://www.euzhanpalcy.net/rubybridges">Ruby Bridges</a>” and an <a href="http://www.ala.org/awardsgrants/content/through-my-eyes">award-winning children’s book</a> solidified the school’s iconic role in the civil rights movement. In 2005, just months before Hurricane Katrina caused serious structural damage to the school, Frantz was added to the <a href="https://catalog.archives.gov/id/73974310">National Register of Historic Places</a>. </p>
<p><a href="https://www.instagram.com/p/CHTJMbWBx6r/">A viral illustration</a> of Vice President-elect Kamala Harris walking alongside a silhouette of Bridges as depicted in Rockwell’s painting has captured that attention again.</p>
<p><div data-react-class="InstagramEmbed" data-react-props="{"url":"https://www.instagram.com/p/CHUdleKjItx","accessToken":"127105130696839|b4b75090c9688d81dfd245afe6052f20"}"></div></p>
<h2>Resistance of white residents</h2>
<p>For the remainder of Bridges’ first school year, crowds protested outside the school building. They threatened Bridges, her family and the families of the few white children who continued to attend. Most parents withdrew their children from Frantz and enrolled them in all-white, private schools instead. </p>
<p>Racism drove many white families from the neighborhoods near the school and other areas of New Orleans to abandon the city. White enrollment steadily declined throughout New Orleans’ public schools, dropping more than 50% between 1960 and 1980.</p>
<p>By 2005, only <a href="https://www.louisianabelieves.com/docs/default-source/katrina/final-louisana-believes-v5-enrollment-demographics22f9e85b8c9b66d6b292ff0000215f92.pdf?sfvrsn=2">3% of the students enrolled</a> in the city’s public schools were white – <a href="https://nces.ed.gov/surveys/ruraled/tables/B.1.b.-1.asp?refer=urban">far below average</a> for midsize American cities.</p>
<p>In the 1970s, the neighborhoods surrounding Frantz <a href="https://scholarworks.uno.edu/td/449/">experienced pronounced poverty</a>. A growing number of students throughout New Orleans – <a href="https://teachneworleans.net/nola-by-the-numbers/">most of whom were Black</a> – attended schools that <a href="http://www.ascd.org/ASCD/pdf/journals/ed_lead/el_197911_geisert.pdf">were underfunded</a>.</p>
<p>Still, Frantz teachers and students persevered.</p>
<p>The school offered Black history events, special science programs, anti-drug campaigns, and classes in African dance and social skills. At one point, <a href="https://www.guideposts.org/inspiration/inspiring-stories/stories-of-hope/in-1960-little-ruby-bridges-bravely-entered-an-all-white-school">Bridges volunteered</a> at Frantz as a liaison between the school and families. </p>
<h2>National reform and charter trend</h2>
<p>However, the resilience of the students and the teachers at Frantz proved no match for powerful forces promoting a disruptive approach to public school accountability.</p>
<p>In the late 1980s, school choice advocates like <a href="https://www.aft.org/ae/winter2014-2015/kahlenberg_potter">Albert Shanker</a> promoted charter schools as a means to reform public education in America and to replace academically struggling schools like Frantz. Some school reformers believed these publicly funded yet independently run schools could offer more instructional innovations than centralized school districts. </p>
<p>In the 1990s, <a href="https://www.louisianabelieves.com/docs/default-source/district-support/comprehensive-assessment-system-overview-2017-2018.pdf?sfvrsn=8">Louisiana developed LEAP</a>, an accountability system based on mandatory high-stakes testing. Like similar programs that were popping up in school districts across the country, it didn’t account for the impact of poverty on test scores while generating <a href="https://www.louisianabelieves.com/data/reportcards/">report cards</a> for Louisiana schools.</p>
<p>Frantz’s report cards categorized the school as “unacceptable” or “below average.” In June 2005, the school district voted to <a href="https://cdn.theconversation.com/static_files/files/1320/Thevenot_-_Five_Elementary_Schools_to_Close.pdf?1605058134">close Frantz</a>.</p>
<h2>Guise of recovery</h2>
<p>A year before the school closed, Louisiana passed legislation authorizing the takeover of schools the LEAP system labeled as failing. As local officials shuttered Frantz, state officials stripped the New Orleans school board of its authority and transferred responsibility of five schools to the newly formed <a href="https://www.louisianabelieves.com/schools/recovery-school-district/">Recovery School District</a>. The state Department of Education, which oversaw the schools, promptly converted them to charters.</p>
<p>When Americans turned their attention to New Orleans following <a href="https://theconversation.com/hurricane-kids-what-katrina-taught-us-about-saving-puerto-ricos-youngest-storm-victims-101509">Hurricane Katrina</a>, many wrongly assumed the Recovery School District was part of the massive, multifaceted federal response to the hurricane.</p>
<p>In reality, Katrina provided a convenient opportunity for charter school advocates. They capitalized on the post-Katrina recovery to rewrite the story of public education in New Orleans by establishing a system completely dominated by for-profit and not-for-profit charter schools. </p>
<p>School reformers touted the system as a model to improve struggling education systems. In fact, after Hurricane Maria destroyed much of Puerto Rico, the island’s <a href="https://twitter.com/JuliaBKeleher/status/923724280885661696">secretary of education</a> declared it an “opportunity to create new, better schools,” and called New Orleans a “point of reference.”</p>
<p>Meanwhile, the building that had housed Frantz sat abandoned and in need of <a href="https://savingplaces.org/stories/desegregation-landmark-new-orleans-education-healing#.X6SjE2hKjcs">massive repairs</a>. Following renovation, it reopened in 2013 as a charter school, <a href="https://akiliacademy.org/">Akili Academy</a>.</p>
<h2>An all-charter district</h2>
<p>The historic building now tells a <a href="https://www.nola.com/news/education/article_30fbef6e-b476-11e9-a3b5-57480c7a30f7.html">contemporary story of an all-charter district</a>.</p>
<p>In the past, New Orleans voters held the school board accountable for its oversight of the former Frantz school and other neighborhood public schools like it. Unlike Frantz, Akili is a charter school that students throughout the city are eligible to attend. It is under the direction of the private board of <a href="https://crescentcityschools.org/">Crescent City Schools</a>, a charter management organization.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/368212/original/file-20201109-15-1us9kje.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A sign saying Akili Academy on a beige brick building" src="https://images.theconversation.com/files/368212/original/file-20201109-15-1us9kje.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/368212/original/file-20201109-15-1us9kje.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=424&fit=crop&dpr=1 600w, https://images.theconversation.com/files/368212/original/file-20201109-15-1us9kje.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=424&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/368212/original/file-20201109-15-1us9kje.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=424&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/368212/original/file-20201109-15-1us9kje.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=533&fit=crop&dpr=1 754w, https://images.theconversation.com/files/368212/original/file-20201109-15-1us9kje.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=533&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/368212/original/file-20201109-15-1us9kje.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=533&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Akili Academy occupies the former William Frantz Public School building.</span>
<span class="attribution"><span class="source">Mandy Liu</span>, <span class="license">Author provided</span></span>
</figcaption>
</figure>
<p>Government funding provides <a href="https://crescentcityschools.org/wp-content/uploads/2020/06/CCS-annual-report-2019-rev-sp-lg.pdf">90% of Akili’s current revenue</a>. The Crescent City board and others like it spend those tax dollars and determine how to educate the city’s children. Privately appointed charter board members face no accountability to voters.</p>
<p>Such a system can mute voices of local voters, most of whom – <a href="https://doi.org/10.1002/ecs2.1922">in this part of New Orleans</a> – are Black.</p>
<p>[<em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>.]</p>
<p>Today, a large Akili Academy banner hangs outside the new main entrance, beneath smaller lettering that reads: William Frantz School. Only an inscription by a rarely used side entrance bears the school’s full historic name: William Frantz Public School. A statue of Bridges, erected in 2014, stands in a far corner of the school’s back courtyard.</p>
<p>We see the fate of Ruby Bridges’ historic school as a stark indicator that the public education system she fought to integrate as a little girl may be a relic of the past.</p><img src="https://counter.theconversation.com/content/149583/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Is the public education that Ruby Bridges fought to integrate a relic of the past?Connie L. Schaffer, Associate Professor of Teacher Education, University of Nebraska OmahaMartha Graham Viator, Associate Professor Emeritus of Education, Rowan UniversityMeg White, Associate Professor of Education, Stockton UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1417612020-08-20T12:16:18Z2020-08-20T12:16:18ZI prepare aspiring teachers to educate kids of color – here’s how I help them root out their own biases<figure><img src="https://images.theconversation.com/files/353019/original/file-20200814-14-1glyv3e.jpg?ixlib=rb-1.1.0&rect=0%2C405%2C5760%2C3423&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The vast majority of K-12 teachers are white.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/diverse-college-freshman-in-class-with-hispanic-royalty-free-image/526086957"> SDI Productions/E+ via Getty Images</a></span></figcaption></figure><p>I’m a professor who has spent the last 10 years <a href="https://scholar.google.com/citations?user=HkqWBSEAAAAJ&hl=en">preparing new teachers to enter the workforce</a>. I also study how race, culture and power influence education and childhood development at a time when more than half of the roughly 50 million children who attend U.S. public schools <a href="https://nces.ed.gov/programs/coe/indicator_cge.asp">are nonwhite</a>, unlike most of their teachers. About four in five public school teachers <a href="https://nces.ed.gov/programs/coe/indicator_clr.asp#f2">are white</a>, according to the latest official data.</p>
<p>This underrepresentation is especially acute for <a href="https://www.ed.gov/news/press-releases/report-state-racial-diversity-educator-workforce">Black male teachers</a>. While one in four teachers are men, merely 2% are Black men.</p>
<p>Research indicates that students of color benefit from <a href="https://doi.org/10.3102%2F0034654319853545">being taught by people who look like them</a>. </p>
<p>One of these benefits is that students of color experience a more <a href="https://doi.apa.org/doiLanding?doi=10.1037%2Fcdp0000220">positive sense of their own ethnic and racial identities</a>. I think it’s essential today that all K-12 teachers develop the cultural awareness, empathy and <a href="https://nmaahc.si.edu/learn/talking-about-race/topics/being-antiracist">anti-racist disposition</a> to effectively teach students from diverse backgrounds.</p>
<p><iframe id="4Mc65" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/4Mc65/2/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<h2>A lack of familiarity</h2>
<p>By and large, the aspiring teachers in my classes are white people who plan to teach in <a href="https://doi.org/10.1177%2F0042085912447516">urban schools where children of color</a> are in the majority. And based on what my colleagues and I routinely witness, they tend to possess little to no experience with or cultural knowledge of people who aren’t white.</p>
<p>Many of <a href="https://doi.org/10.1016/j.cedpsych.2020.101836">my students describe themselves as colorblind</a>. This is the idea and practice that ignoring or overlooking racial and ethnic differences somehow makes one not racist. Those who practice colorblindness tend to feel that racial harmony can occur if they pretend to not see or acknowledge what makes us different from one another. </p>
<p>However, researchers have found that racial colorblindness can <a href="https://doi.org/10.1177%2F2332649220941024">actually function as a form of racism</a>.</p>
<p>My own experience points to one reason why this occurs. I often perceive that these same students harbor <a href="https://digscholarship.unco.edu/cgi/viewcontent.cgi?article=1056&context=jeri">racial biases</a> and negative cultural assumptions about people of color – particularly Black people and Latinos.</p>
<p>Likewise, I find that most of these white students possess little to no understanding of <a href="https://cie.asu.edu/ojs/index.php/cieatasu/article/view/1661">their own racial and ethnic identities</a>. Also, I often observe that they aren’t familiar with even basic aspects of U.S. history such as the contributions and experiences of Native Americans and African Americans.</p>
<p>But because these aspiring teachers live in a multicultural nation, I believe that it is more important than ever for them to acquire a serious understanding of racism and this nation’s rich multicultural history. I also think they will become better teachers if they leverage that understanding and work to <a href="https://theconversation.com/uncovering-the-roots-of-racist-ideas-in-america-71467">become anti-racist</a>.</p>
<p>I define anti-racism as the active process of identifying and eliminating racism by transforming systems, structures, policies, practices and attitudes. The goal of anti-racism is a more equitable redistribution and sharing of power.</p>
<p>Key findings in education research indicate that effective teachers are those who have <a href="https://eric.ed.gov/?id=EJ1209436">experienced deep learning about racism, bias and cultural diversity</a>. Among white students, their perspectives on race and culture may be enhanced through <a href="https://scholarworks.sfasu.edu/jma/vol4/iss1/2/">authentic experiences in ethnically diverse settings</a>. Other studies have shown how white students benefit by intentionally <a href="https://www.tandfonline.com/doi/abs/10.1080/00933104.2020.1724578">confronting difficult subjects such as inequity and anti-racism</a>.</p>
<p>One of the ways that I help to broaden students’ understanding is by incorporating historical content into class assignments. I also introduce content that introduces students to the history and life experiences of diverse cultures. Also, I provide opportunities for students to interact with other cultures through literature, film and music. </p>
<p>For example, in addition to learning about the <a href="https://www.tolerance.org/magazine/spring-2004/brown-v-board-where-are-we-now">Brown v. Board of Education</a> Supreme Court ruling, students also learn about both its <a href="https://doi.org/10.4148/1936-0487.1085">intended benefits and some of its negative outcomes</a> – such as the more than 38,000 Black teachers and administrators who lost their jobs.</p>
<p>This focus on historical contexts, inequity and cultural diversity is quite common – <a href="https://www.theatlantic.com/education/archive/2017/01/how-teachers-learn-to-discuss-racism/512474/">especially in urban teacher education programs</a>. My goal is to challenge students to think more deeply about themselves, about others and about the diversity of the children they may one day teach.</p>
<p>These are, in my view, necessary steps to developing teachers who are more reflective, thoughtful and culturally informed.</p>
<h2>Consequences of bias</h2>
<p>Many studies have illustrated the dangers of racial bias among teachers, such as <a href="https://www.mitpressjournals.org/doi/abs/10.1162/rest_a_00838">lower expectations for students of color</a> and <a href="https://doi.org/10.1177%2F2372732219864707">harsher discipline</a> for them. There’s also evidence that racial bias can contribute to <a href="https://www.pnas.org/content/116/17/8255.short">higher dropout rates</a>, <a href="http://kirwaninstitute.osu.edu/racial-disproportionality-in-school-discipline-implicit-bias-is-heavily-implicated/">lower academic achievement and future incarceration</a>.</p>
<p>In their investigation of racial bias and school discipline in K-12 settings, a team of Princeton University researchers examined federal data that covered 32 million Black and white students across 96,000 K-12 schools. They found that Black students experienced <a href="https://www.princeton.edu/news/2019/04/02/racial-bias-associated-disparities-disciplinary-action-across-us-schools">higher rates of expulsion</a> and suspension. They were, in addition, more likely to be arrested in school and subjected to law enforcement interventions than white students. </p>
<p>The researchers found that 13.5% of Black students received out-of-school suspensions, as opposed to only 3.5% of their white classmates. Their findings indicated that racial bias fuels disparities in school discipline, as have similar studies.</p>
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<h2>Centering equity in education</h2>
<p>In my classes, students learn about and discuss student differences besides race and ethnicity, such as gender, ability, sexual orientation, gender identity, primary language, religious beliefs and residence. They also develop skills that allow them to reflect on their own backgrounds and to understand how their personal history shapes their perspectives.</p>
<p>The students learn that actively embracing diversity and working toward equity are core qualities of professional educators.</p>
<p>What teachers understand about bias must go beyond mere knowledge of subject matter and instructional strategies. They also need to learn ways to honor and respect the history and heritage of all their students, a discipline known as “<a href="https://doi.org/10.1177%2F0042085920902244">teaching for equity</a>.”</p>
<p>Equity-focused teacher educators are versed in <a href="https://doi.org/10.1080/00405841.2020.1740020">ethnic studies</a>, as well as history, power and privilege. </p>
<p>Research shows that students benefit academically when their teachers possess cultural awareness, have <a href="https://research.upjohn.org/up_workingpapers/231/">high expectations</a> for all their students and <a href="http://dx.doi.org/10.1037/cdp0000220">believe that all their students have the potential</a> to learn and succeed regardless of their personal backgrounds.</p>
<p>However, to get there, teachers must first transform themselves.</p><img src="https://counter.theconversation.com/content/141761/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lasana D. Kazembe does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Instilling a positive sense of ethnic and racial identity and belonging can help children learn.Lasana D. Kazembe, Assistant Professor, IUPUILicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1428922020-07-31T12:23:24Z2020-07-31T12:23:24ZPoor, minority students at dilapidated schools face added risks amid talk of reopening classrooms<figure><img src="https://images.theconversation.com/files/350522/original/file-20200730-21-8pzubc.jpg?ixlib=rb-1.1.0&rect=0%2C7%2C5163%2C3431&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Making schools safe will take more than wiping down surfaces.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Virus-Outbreak/91610a70f3a640e588d421f0979d9c69/47/0">AP Photo/Charlie Neibergall</a></span></figcaption></figure><p>Classrooms, gyms and cafeterias at schools across the U.S. have remained empty for months now. And despite some districts <a href="https://www.timesfreepress.com/news/local/story/2020/jul/28/chattooga-schools-one-first-districts-reopen/528505/">beginning to reopen</a>, many others will remain closed amid fears that prematurely restarting in-person classes could <a href="https://www.usatoday.com/story/opinion/voices/2020/07/13/reopen-schools-coronavirus-online-learning-classrooms-column/5427438002/">cost more lives in the pandemic</a>.</p>
<p>Local, state and federal officials <a href="https://www.nytimes.com/2020/07/08/us/politics/trump-schools-reopening.html">wrangle over how to make schools safe</a>, with concern over <a href="https://www.nbcnewyork.com/news/coronavirus/nyc-to-ask-state-for-extension-on-specific-back-to-school-plans/2540164/">how to sufficiently disinfect and ventilate</a> schools. But for low-income students, their teachers and families, returning to school is a more risky proposition due to the age and condition of the buildings to which they would return.</p>
<p>In a 2018 report to Congress, the <a href="https://www.usccr.gov/pubs/2018/2018-01-10-Education-Inequity.pdf">U.S. Commission on Civil Rights found that</a> “low income students and students of color are often relegated to low-quality school facilities” that lack “physical maintenance.” This can “negatively impact a student’s health,” the commission concluded.</p>
<p>I have seen this firsthand. As a former school superintendent and now as a <a href="https://education.iupui.edu/faculty-research/faculty-directory/murphy-hardy.html">university professor working with K-12 schools</a>, I see the inequities experienced by some of the U.S.’s most vulnerable students as a stark reminder of the <a href="https://www.wbur.org/onpoint/2019/09/09/achievement-gap-opportunity-education-schools-students-teachers">opportunity gap</a> holding many back. By requiring them to attend schools in desperate need of maintenance, I fear that the schools and classrooms attended by low-income students of color could become epicenters of a second wave of pandemic.</p>
<h2>Funding gap</h2>
<p>Even before the pandemic, some schools were a health risk. When data was last collected, in the 2012-13 school year, the average school was <a href="https://nces.ed.gov/pubs2014/2014022.pdf">found to be 44 years old</a>. High-poverty schools – those with more than 75% of students receiving free or reduced-price lunches – were typically older, <a href="https://nces.ed.gov/programs/digest/d18/tables/dt18_217.10.asp">closer to 50 years old</a>. This is important as aging school buildings are more likely to have problems with <a href="https://www.epa.gov/iaq-schools/take-action-improve-indoor-air-quality-schools">air quality</a>, <a href="https://www.mesothelioma.com/asbestos-exposure/jobsites/schools/">asbestos</a> and a variety of of other environmental toxicants. The National Center for Education Statistics estimates that <a href="https://nces.ed.gov/programs/digest/d18/tables/dt18_217.10.asp">19% of schools have “unsatisfactory” ventilation</a>.</p>
<p>Bringing U.S. school buildings up to acceptable standards would <a href="https://files.eric.ed.gov/fulltext/ED581630.pdf">cost US$145 billion annually</a>, according to the National Council on School Facilities. This compares to $99 billion average yearly spending on K-12 facilities – leaving an annual gap of $46 billion. </p>
<p>Students attending aging, inadequate schools are <a href="https://nces.ed.gov/pubs2014/2014022.pdf">more likely to be low-income minority students</a>. This isn’t a new problem. Back in 1996, the General Accounting Office <a href="https://www.gao.gov/assets/230/222833.pdf">released a report noting</a> that the schools in most need of repair are in cities with a minority enrollment of more than 50% and with more than 70% of the students classified as poor. Yet in a <a href="https://edlabor.house.gov/imo/media/doc/School%20Districts%20Frequently%20Identified%20Multiple%20Building%20Systems%20Needing%20Updates%20or%20Replacement1.pdf">report released earlier this year</a>, the GAO noted that per-student spending on repairs and construction remained 30% lower in high-poverty districts compared to low-poverty areas. More than 60 years on from the <a href="https://www.theatlantic.com/education/archive/2014/04/two-milestones-in-education/361222/">historic Brown v. Board of Education decision</a> that ruled separate was not equal, Black and brown students are still not given a fair chance.</p>
<p>Part of the problem is how schools are funded, which typically includes large contributions from local property taxes. As a result, richer districts can more adequately fund repairs and new buildings. Inadequate facilities in city schools – often seen as a legacy of white flight post school desegregation – are evidence that low-income students of color have been left behind. Many school districts are facing <a href="https://www.chicagotribune.com/coronavirus/ct-cps-new-cdc-isbe-guidance-schools-20200724-raohulhdzjcr3mafdnrdtu54k4-story.html">pressure to reopen despite the inadequate state of school facilities to protect the health of students and teachers.</a> Indeed, under a recent Senate proposal for school reopening, <a href="https://www.cnbc.com/2020/07/28/republicans-allot-70-billion-dollars-for-k-12-schools-but-tie-funding-to-in-person-learning.html">two-thirds of the $70 billion funding</a> offer will go only to schools that reopen.</p>
<h2>Lost learning</h2>
<p>The pandemic has underscored the importance of hygienic practices. In schools, this requires reliable plumbing and clean water in fountains, bathrooms and cafeterias. Meanwhile, effective air circulation and dependable HVAC systems can <a href="https://www.epa.gov/coronavirus/air-cleaners-hvac-filters-and-coronavirus-covid-19">help reduce airborne contaminants</a>. </p>
<p>This does not portend well for the ability of school facilities designed and built from a time long past to cope with the risk of COVID-19.</p>
<p>Reopening facilities before concerns over the safety of buildings are allayed could also lead to excessive absenteeism for both students and teachers. As it is, poor school building conditions <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2920982/">have been linked to students missing school</a>.</p>
<p>[<em>You need to understand the coronavirus pandemic, and we can help.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=coronavirus-help">Read The Conversation’s newsletter</a>.]</p>
<p>The dilemma that returning to school poses for lower-income parents and their children is yet another example of the inequitable opportunities for students of color. These are children for whom staying at home is likely to have a larger impact on their chances of educational success. A <a href="https://www.mckinsey.com/industries/public-sector/our-insights/covid-19-and-student-learning-in-the-united-states-the-hurt-could-last-a-lifetime#">recent McKinsey report estimates</a> that even with advances in online learning, the likely overall loss of learning resulting from the pandemic for a middle school student will be around 7 months. But, for Black, Hispanic and low-income students the loss is greater – ranging from 9 months for Black students to 10 months for Hispanic students and more than a year for low-income students. Research from the past two decades has already shown that education achievement is <a href="https://www.nap.edu/read/11574/chapter/8#48">associated with building age, maintenance and repairs</a> – factors that could now affect how how and when students go back to school.</p>
<h2>Carrot and stick</h2>
<p>Yet, in spite of all that we know about the quality of school facilities and their impact upon the health and learning of students, schools are <a href="https://www.nytimes.com/2020/07/08/us/politics/trump-schools-reopening.html">threatened with the withholding of federal dollars</a> if they don’t reopen. This carrot-and-stick approach does not appear to be rooted in the best interests of the students, teachers or their families. Instead, school reopening is seemingly viewed as <a href="https://www.reuters.com/article/us-usa-election-trump-education/trumps-push-to-reopen-schools-part-of-bid-to-boost-suburban-standing-idUSKCN24D0AK">key to an economic recovery that might determine the political future of this country</a>.</p>
<p>The Brown v. Board of Education ruling of 1954 sent Black children into hostile environments as the nation struggled with its moral compass. It appears that Black and low-income students of color might soon be sent into school buildings, some of which date from before that decision. This time, whether it is happening with their best interests in mind is at best debatable.</p><img src="https://counter.theconversation.com/content/142892/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hardy Murphy does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Concerns over how to make schools safe amid the coronavirus remain. But for many low-income students of color, old buildings in need of repair already presented a heath risk.Hardy Murphy, Professor of Education, IUPUILicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1409102020-06-23T19:56:23Z2020-06-23T19:56:23ZWhen Supreme Court justices defy expectations<figure><img src="https://images.theconversation.com/files/343288/original/file-20200622-55021-1biin20.jpg?ixlib=rb-1.1.0&rect=26%2C8%2C2959%2C1886&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Justice Neil Gorsuch, a Trump appointee, surprised many court watchers by authoring the decision to expand the Civil Rights Act.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-donald-trump-applauds-as-supreme-court-associate-news-photo/666861628?adppopup=true">Chip Somodevilla/Getty Images</a></span></figcaption></figure><p>The U.S. Supreme Court recently ruled in the important and much-anticipated case, <a href="https://www.oyez.org/cases/2019/17-1618">Bostock v. Clayton County, Georgia</a>, that the LGBTQ community is protected from employment discrimination. </p>
<p>The 6-3 ruling took many by surprise, in part because two conservative justices were in the majority, and one of them, Justice Neil Gorsuch, wrote the majority opinion. </p>
<p>In this transformative moment in U.S. history, when the public supports the recognition of fundamental human rights, including the right to marry the person of one’s choice, the law appears to be catching up with society. And the U.S. Supreme Court has decided cases in ways that <a href="https://www.pewforum.org/fact-sheet/changing-attitudes-on-gay-marriage/">reflect social realities</a>.</p>
<p>The principles of equality and nondiscrimination are at the heart of <a href="https://www.abc.net.au/religion/political-equality-and-american-democracy/10581912">American democratic tradition</a>. As <a href="https://dornsife.usc.edu/cf/faculty-and-staff/faculty.cfm?pid=1003632">a public law scholar</a>, I believe the bold decision in Bostock is consistent with a historic pattern of some justices defying expectations when faced with a major social transformation. </p>
<p>Instead of ruling to maintain the discriminatory status quo, they have demonstrated their commitment to these basic values of democracy by addressing historic injustices. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/343291/original/file-20200622-55013-1gg7tuy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/343291/original/file-20200622-55013-1gg7tuy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/343291/original/file-20200622-55013-1gg7tuy.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/343291/original/file-20200622-55013-1gg7tuy.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/343291/original/file-20200622-55013-1gg7tuy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/343291/original/file-20200622-55013-1gg7tuy.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/343291/original/file-20200622-55013-1gg7tuy.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Proponents of same-sex marriage across the country celebrated its legalization in 2015.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/thousands-of-same-sex-marriage-supporters-in-west-hollywood-news-photo/563914089?adppopup=true">Joe Kohen/Getty Images</a></span>
</figcaption>
</figure>
<h2>Disappointed presidents</h2>
<p>One classic example of a justice defying expectations to promote civil rights is <a href="https://www.oyez.org/justices/earl_warren">Chief Justice Earl Warren</a>, who was appointed by President Dwight Eisenhower and served on the court between 1953 and 1969.</p>
<p>Warren arrived at the court as a Republican with conservative credentials. He had <a href="https://www.jstor.org/stable/762484?seq=1">been a proponent of</a> President Franklin D. Roosevelt’s decision to <a href="https://www.sfchronicle.com/news/article/Calif-officials-including-Earl-Warren-once-13437345.php">place Japanese Americans in concentration camps</a>.</p>
<p>But as a Supreme Court justice, Warren did not meet the expectation that he would bring a conservative viewpoint to decisions. Instead, he championed civil rights as chief justice.</p>
<p>In 1954, he wrote the <a href="https://www.oyez.org/cases/1940-1955/347us483">landmark opinion in Brown v. Board of Education</a>, a unanimous decision which led to desegregration of public schools by overturning an 1896 precedent and rejecting the idea that “separate but equal” was constitutional. Social science showing the <a href="https://www.penguinrandomhouse.com/books/93824/simple-justice-by-richard-kluger/">psychic injury that racism caused</a> <a href="https://www.smithsonianmag.com/science-nature/psychologist-work-racial-identity-helped-overturn-school-segregation-180966934/">was crucial to this outcome</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/343566/original/file-20200623-188931-1obta3a.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/343566/original/file-20200623-188931-1obta3a.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/343566/original/file-20200623-188931-1obta3a.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=543&fit=crop&dpr=1 600w, https://images.theconversation.com/files/343566/original/file-20200623-188931-1obta3a.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=543&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/343566/original/file-20200623-188931-1obta3a.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=543&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/343566/original/file-20200623-188931-1obta3a.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=682&fit=crop&dpr=1 754w, https://images.theconversation.com/files/343566/original/file-20200623-188931-1obta3a.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=682&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/343566/original/file-20200623-188931-1obta3a.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=682&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The research conducted by Dr. Kenneth Clark and his wife, Mamie Phipps Clark, helped move the Supreme Court, in Brown v. Board of Education, to declare segregation in public schools unconstitutional.</span>
<span class="attribution"><a class="source" href="https://www.loc.gov/exhibits/brown/brown-brown.html#obj62">Gordon Parks, photographer; Library of Congress</a></span>
</figcaption>
</figure>
<p>Some have speculated about Warren and his unexpected shift. His sense of <a href="https://books.google.com/books/about/East_to_America.html?id=Yu51AAAAMAAJ">guilt over his active involvement in the Japanese American incarceration</a> was apparently influential. The notion among the legal community about Warren’s opinion in Brown v. Board of Education is that “<a href="https://muse.jhu.edu/article/13506">the Japanese Americans paid the ransom to free the Blacks</a>.”</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/343294/original/file-20200622-55009-48i1c4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/343294/original/file-20200622-55009-48i1c4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/343294/original/file-20200622-55009-48i1c4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=749&fit=crop&dpr=1 600w, https://images.theconversation.com/files/343294/original/file-20200622-55009-48i1c4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=749&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/343294/original/file-20200622-55009-48i1c4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=749&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/343294/original/file-20200622-55009-48i1c4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=941&fit=crop&dpr=1 754w, https://images.theconversation.com/files/343294/original/file-20200622-55009-48i1c4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=941&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/343294/original/file-20200622-55009-48i1c4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=941&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Earl Warren came to the Supreme Court as a conservative and later turned into a champion for civil rights.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/portrait-of-american-jurist-chief-justice-of-the-supreme-news-photo/82316310?adppopup=true">Bachrach/Getty Images</a></span>
</figcaption>
</figure>
<p>Although Eisenhower thought Warren would be <a href="https://rowman.com/ISBN/9780847696048/Justices-Presidents-and-Senators-A-History-of-U-S-Supreme-Court-Appointments-from-Washington-to-Clinton-revised-edition">conservative in his judicial philosophy, that was hardly the case</a>. In this and subsequent cases, <a href="https://supremecourthistory.org/timeline_court_warren.html">what was called the “Warren court”</a> became synonymous with a series of rulings that expanded the scope of constitutional rights. </p>
<p>When asked what he considered his most serious mistakes, Eisenhower replied: <a href="https://www.theatlantic.com/magazine/archive/2018/04/commander-v-chief/554045/">“They are both sitting on the court</a>.” </p>
<p>He was referring to Justice Warren and <a href="https://www.nytimes.com/1997/07/25/us/william-brennan-91-dies-gave-court-liberal-vision.html">Justice William Brennan, a Republican</a> who had been on the New Jersey Supreme Court and whom Eisenhower appointed to the Supreme Court in 1956. Both judges were more liberal in their judicial philosophy than anticipated. </p>
<p>In these instances and others, <a href="http://epstein.wustl.edu/research/JusticePresident.pdf">presidents have been known to be disappointed</a> by the <a href="https://academic.oup.com/jcs/article/17/3/530/814389">decisions of those they appoint</a>. </p>
<h2>Unusual coalitions</h2>
<p>When justices are confronted with a new type of discrimination and are unconstrained by past precedent, they may have the ability to form coalitions on the court to advance civil rights. For instance, <a href="https://www.nytimes.com/1986/11/09/business/archives-business-sexual-harassment-workplace-grueling-struggle-for-equality.html">the advocacy campaign against sexual harassment</a> outside of the court, aimed at addressing egregious misconduct in the workplace, appears to have exerted influence inside the court. </p>
<p>Even though women had experienced sexual harassment for centuries, no one had even coined a term for <a href="https://time.com/4286575/sexual-harassment-before-anita-hill/">the phenomenon until the 1970s</a>, when the federal government began to formulate new policies. </p>
<p>Policymakers recognized that sexual harassment was illegal when it took the form of coercing employees to perform sexual acts in exchange for rewards or to avoid losing their jobs or work-related benefits. </p>
<p>Subsequently, the Equal Employment Opportunity Commission, the federal agency with responsibility for dealing with employment discrimination, was inundated with complaints. </p>
<p>When the Supreme Court first considered this issue in <a href="https://www.oyez.org/cases/1985/84-1979">Meritor v. Vinson</a> in 1986, the notion was barely a decade old. Moreover, the central question was a novel one, whether an employee could sue for a different type of sexual harassment, a so-called “hostile work environment.”</p>
<p>In a <a href="https://www.oyez.org/cases/1985/84-1979">9-0 decision written by Chief Justice William Rehnquist</a> – who was appointed by President Richard Nixon and elevated to chief justice by President Ronald Reagan – the court <a href="https://wwnorton.com/books/9780393696738">unanimously</a> ruled that the protections in federal civil rights law did cover this type of sexual harassment. </p>
<p>The Meritor ruling, despite criticism of its treatment of relevant evidence and employer liability standards, was hailed as a victory for advocates of civil rights. </p>
<p>As with Bostock, the ruling in the <a href="https://kansaspress.ku.edu/978-0-7006-1323-6.html">Meritor decision was surprising</a>. Conservative justices had taken a liberal position and joined liberal justices in an effort to combat egregious misconduct in the workplace. They did this by expanding the scope of discrimination on the basis of sex with the new and more <a href="https://www.washingtonpost.com/outlook/2019/06/19/how-supreme-court-made-sexual-harassment-cases-more-difficult-win/">expansive interpretation of sexual harassment</a>.</p>
<h2>Marriage equality</h2>
<p>Another remarkable social change in American society is the recognition of same-sex marriage, known as marriage equality. Litigation began over this issue in the late 20th century with Baehr v. Lewin (1993), in which <a href="https://casetext.com/case/baehr-v-lewin-1">the Hawaii Supreme Court</a> held that the failure of a clerk to issue marriage licenses to a same-sex couple <a href="https://www.peterlang.com/abstract/title/57672">was a form of sex discrimination</a>. </p>
<p>As the Human Rights Campaign, Lambda Legal and other public interest organizations mounted campaigns advocating for same-sex marriage, public attitudes gradually shifted in favor of official <a href="https://www.lambdalegal.org/?gclid=EAIaIQobChMI_-TB-6aM6gIVIRh9Ch3OLwGyEAAYASAAEgIIg_D_BwE">recognition of customary marriages of same-sex couples</a>.</p>
<p>This social movement culminated in the landmark U.S. Supreme Court decision <a href="https://www.oyez.org/cases/2014/14-556">Obergefell v. Hodges</a> in 2015. Acknowledging that the U.S. had undergone a significant social transformation in accepting diverse types of intimate relationships, the court resolved to make the law match the times.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/343321/original/file-20200622-55017-lsemzq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/343321/original/file-20200622-55017-lsemzq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/343321/original/file-20200622-55017-lsemzq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/343321/original/file-20200622-55017-lsemzq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/343321/original/file-20200622-55017-lsemzq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/343321/original/file-20200622-55017-lsemzq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/343321/original/file-20200622-55017-lsemzq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/343321/original/file-20200622-55017-lsemzq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Amy Snow and Christelle Snow (R), who married in April 2015 under California law, celebrate the Supreme Court ruling on same-sex marriage in June 2015.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/amy-snow-and-christelle-snow-who-married-in-april-celebrate-news-photo/478728160?adppopup=true">David McNew/Getty Images</a></span>
</figcaption>
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<p>The 5-4 decision, which held that the right to marry is fundamental and guaranteed by the Constitution, was authored by Justice Anthony Kennedy. Kennedy said he voted in favor of this position even though <a href="https://www.bloomberg.com/news/videos/2018-11-28/retired-justice-kennedy-says-his-gay-marriage-ruling-surprised-him-video">it did not correspond to his own Catholic religious tenets</a>. </p>
<p>Kennedy said he undertook writing the landmark opinion because of his religious beliefs: “It seemed to me I couldn’t hide,” he told an interviewer. “The nature of injustice is you can’t see it in your own time,” <a href="https://www.bloomberg.com/news/videos/2018-11-28/retired-justice-kennedy-says-his-gay-marriage-ruling-surprised-him-video">Kennedy said</a>. “And as I thought about it more and more, it seemed to me just wrong under the Constitution to say that over 100,000 adopted children of gay parents could not have their parents married.”</p>
<h2>Social upheaval creates new context</h2>
<p>In the midst of immense social upheaval, courts and individual justices grapple with rules that must be reassessed in a new context – so it seems less surprising that justices consider carefully the meaning of equality and sex discrimination in light of the changing times. </p>
<p>This set of examples suggests that it may be unwise to presume that judges will vote in particular ways because of their backgrounds or judicial philosophy. Over the years, justices have felt the exigencies of the times that sometimes lead them to rule in ways that will protect the American constitutional order. Chief Justice John Roberts, expected to be more ideologically conservative in his rulings, has been praised for <a href="https://www.theatlantic.com/magazine/archive/2007/01/robertss-rules/305559/">his role in building consensus, his temperament and his fair-mindedness</a>.</p>
<p>While this certainly does not happen all the time, it may at least indicate that the U.S. political system can survive the ongoing crises of the 21st century associated with hyper-polarization. Ideological considerations, while often important in judicial decision-making, do not necessarily provide a guide to future decisions. </p>
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<p class="fine-print"><em><span>Alison Dundes Renteln does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Justice Neil Gorsuch joined the Supreme Court as a conservative. But his ruling in a major civil rights case is part of a pattern of justices setting aside ideology to address historic injustices.Alison Dundes Renteln, Professor of Political Science, Anthropology, Public Policy and Law, USC Dornsife College of Letters, Arts and SciencesLicensed as Creative Commons – attribution, no derivatives.