65 years ago, the Supreme Court ruled 9-0 to end school segregation. Now Trump’s appointees to the federal bench and Department of Justice refuse to say they support it. What does the future hold?
MARC STEINER Welcome to The Real News Network. I’m Marc Steiner. It’s great to have you all with us. This week is the 65th anniversary of Brown v. Board, the decision that ended legal segregation in our public schools and launched the beginning of the end of legal segregation in America, but schools are now more segregated than ever, especially in northern liberal states, and Latinos are now the most segregated population. Are integrated schools important? Are they the answer? What does Brown mean for the 21st century? What does it mean that Trump’s appointments to both the federal judiciary and the Justice Department refuse to answer questions about their stand on Brown v. Board? It’s unprecedented. And when civil rights comes under DOJ, what could all that mean? Speaking of precedent, what about the future of stare decisis, judicial precedents, in the wake of Brown and Roe v. Wade, and other rulings, and Justice Breyer’s dire warning just last week. Well, we’ll tackle all this with our guest, Michael Higginbotham, who is the Joseph Curtis Professor of Law and former Dean at the University of Baltimore School of Law, who wrote Race Law: Cases, Commentary, and Questions. Welcome back to Real News. Good to see you.
MICHAEL HIGGINBOTHAM Thank you, Marc. Good to be with you.
MARC STEINER So, where do we begin? Let’s begin here. How do you dissect, given the state of segregation in our schools today, even though it’s not legal segregation, it’s there? There’s been a lot of white flight from schools. America is no longer an issue of just black and white. Black, white, various Latino populations, and Asian populations— they changed nature of our schools. 48 percent of our schools now are white, white students, which is diminishing all the time, going to private schools, wherever. What does Brown v. Board mean for the 21st century? How do you define it for now?
MICHAEL HIGGINBOTHAM Yeah. I think it’s very important for people to understand what Brown stood for. It was a very limited decision in the sense that it stood for the fact that the state, the government, could no longer separate individuals in schools based upon race, so they couldn’t forcefully separate individuals. That was the limited holding of Brown, but it’s come to mean much more. It’s come to mean an inclusivity in America, an equal opportunity in America, and that’s really the problem we’re dealing with today, that we have not achieved the promise of Brown. We have not achieved an integrated society. We haven’t achieved a society where you have equal opportunity for all.
MARC STEINER Well so, we’re talking about 65 years, though, right?
MICHAEL HIGGINBOTHAM Yes, we are.
MARC STEINER So I know from my own childhood growing up— a segregated elementary school, all white, got to junior high school, it was racially mixed, went to high school here in Baltimore, and the school was one-third black and two-thirds white, but then things changed. Those schools are now almost 100 percent black, in this city and across the country. In California, the question is around Latino populations being segregated as well. So, how do you apply it for now though? It seems to me there are questions— the battle around busing in Boston that exploded around this country and all over America, here in Maryland as well, and in Delaware with Biden’s unfortunate comment about that. We’ll talk about that another day. [laughs] What does that mean for now? How do we define what it means to have an integrated society, integrated school system? Do we need to push integration? Is it okay to have separate schools, separate but equal, when it was not equal?
MICHAEL HIGGINBOTHAM Well, as you say, Marc, separate but equal was never equal, and that was a huge problem because what we want to do today is, we want to do two things, and this is the promise of Brown. We not only want to integrate our schools, but we also want to have equality of opportunity within those schools. So a lot of things that we’re doing—There was tremendous resistance to Brown. You talked about busing, you know, tremendous resistance to busing. We’ve had busing in the country for a long time. A lot of kids had to be bused to schools, but once it was about racial integration, there was a great deal of resistance to such busing. And so, there are a lot of tools we can use to implement integration and to implement quality of education, but there’s resistance to that because it costs money, because it involves sometimes people doing things that they’re hesitant to do, that they don’t want to break down barriers, and we need to do that. We need to continue to build bridges between groups. We came over on different boats, and the country kept us in different boats for so long. That’s what Plessy v. Ferguson, the 1896 case, “separate but equal,” allowed. It allowed the government to separate on the basis of race from birth to death and that’s what we had until Brown. That’s why Brown was so important, because it gave the promise of an integrated and equality of society.
MARC STEINER So when you mention Plessy v. Ferguson, I mean, this begs the next question I’m really interested in here, which has to do with the fact that many of Trump’s appointees to the courts that are about to be confirmed, refused to give an opinion when testifying before the Senate— six of them, I believe, about—
MICHAEL HIGGINBOTHAM And the deputy attorney general nominee. Yeah.
MARC STEINER And the deputy attorney general. That was going to be in my next statement as well— about Brown v. Board. Then, you have Justice Breyer and you can talk about this case he talked about, where he said there’s a danger here. We’re just willy-nilly overthrowing precedent without good cause, and if you tie into that, that Plessy v. Ferguson was precedent that was overturned because of Brown v. Board and other cases that came after that—Tell me what minefield we’re walking into here.
MICHAEL HIGGINBOTHAM Sure. The minefield is one called stare decisis and what that is, is a principle that we must respect and follow the precedent, the precedent that has been established by the Supreme Court. Previous cases establish a precedent and the court is very reluctant to overrule that precedent, unless there’s a very, very good reason. The court doesn’t like to say it was wrong, even if it’s a previous court that was wrong. So, you mention Plessy v. Ferguson and you mention Brown. The fascinating thing about Brown, when I talk about the court’s reluctance to admit it was wrong, Brown is a 9-0 decision. It was argued twice and Thurgood Marshall, of course, represented Linda Brown. The great litigator— 32 and 3 before the Supreme Court— had the best record. It was argued twice and what happened is, on the first time it was argued, you had an initial determination that was made, where did the Justices stand on this. There were three Justices who were prepared to uphold Plessy and they had reargument once there was a change in the court because the Chief Justice stepped down. Earl Warren— President Eisenhower appointed Earl Warren to replace Vinson, who stepped down.
And so, Earl Warren requested reargument and the reason why he did that is because he wanted to see if he could get a unanimous decision, 9-0, which he thought would be even more impressive with respect to stare decisis, establishing precedent, so he had reargument on two issues. One, whether or not education was different than transportation. And then, two, what was the effect of state segregation on how black children felt. On those two issues, under reargument, they distinguished in the Brown decision, Plessy. So, they never overruled Plessy and people look at me like, hey professor, what are you talking about? Just look at the case. The case specifically says, any language in Plessy contrary to our finding today is no longer valid, but they never overruled Plessy. Now subsequently, what happened is, in any segregation case, the court simply said Brown governs, but the language of the case never overruled Plessy. That’s because Earl Warren wanted a 9-0 decision and two justices were prepared to dissent, both from southern states. Earl Warren was worried that if you had two dissenting justices from southern states, that would send a message that this is somehow a northern decision, or somehow a decision that states didn’t need to follow.
MARC STEINER So two very quick questions here. One is, when you describe what you just described, does that mean the same argument could be made to overturn or to not pay attention to Brown v. Board, or Roe v. Wade, or any other decision that has really defined this society for the last 50-60 years?
MICHAEL HIGGINBOTHAM Well, certainly, I think Justices that do not like the Roe v. Wade decision, I think those Justices will attempt to distinguish cases from Roe. I think that’s what you may see, particularly cases providing restrictions on abortion. You may see Justices attempting to distinguish those cases from Roe to say these restrictions today do not constitute an undue burden, which is basically the governing rule for determining whether or not restrictions on abortion violate the Constitution or not. Do they indicate an undue burden? Do they cause an undue burden on women who have a fundamental right to abortion? So, that’s what you’re going to see today. I don’t think you’re going to see—Well, there’s an attempt to what this recent Alabama legislation on restricting abortion. There is an attempt to see whether or not Roe should be overruled. If the court takes the case, then that will be the issue, but I’m not convinced that that will be a case that the court will take.
MARC STEINER I really do hope that your trust in the law and how it’s done in America is actually right and it could actually work, [laughs] but I’m also curious— you know, Sherrilyn Ifill, who is now the head of the Legal Defense Fund, the NAACP Legal Defense Fund.
MICHAEL HIGGINBOTHAM She’s in big footsteps. She’s in Thurgood Marshall’s shoes.
MARC STEINER Yes, and she’s filling them, I think.
MICHAEL HIGGINBOTHAM Yes, indeed.
MARC STEINER She’s not just using the walk, she’s filling them, I think. [laughs]
MICHAEL HIGGINBOTHAM She’s not only talking the talk. She’s walking the walk. Absolutely.
MARC STEINER But one of the things she said is, we’re in a dangerous place, a real dangerous place in terms of precedent and in terms of civil rights justice in this country when appointees by Trump will not answer the question, will they uphold, or do they agree with Brown v. Board. If you can’t answer that question, what are you saying? She’s saying this is a really dangerous area we’re walking into. What are your thoughts?
MICHAEL HIGGINBOTHAM I agree 100 percent with Sherrilyn on that. Brown is, as I said, it’s an easy case to agree with. A 9-0 decision where the court simply says, the government can’t separate on the basis of race. It’s an easy decision to agree with. And so, any judicial nominee who says I can’t answer the question of whether I agree with Brown, is way out, they’re not in the mainstream at all. And look, we’ve had three conservative nominees to the Supreme Court who have said we agree 100 percent with Brown, including Brett Kavanaugh, including John Roberts, including Sam Alito. They all said, look, Brown is an excellent case and we have no issue with it. So to have some nominees today have an issue with Brown is really troubling because, as I said, Brown stands for the promise of racial equality. And who today would question that promise? It really causes concern, I think, for reasonable Americans.
MARC STEINER Well, Michael Higginbotham, first of all, I appreciate you coming over to the studio today. Thank you so much for being here and it’s always good to see you. I appreciate your thoughts and ideas. Thank you so much.
MICHAEL HIGGINBOTHAM Delighted to be with you.
MARC STEINER And I’m Marc Steiner here for The Real News Network. Thank you all for joining us. Take care.