Let’s pick up where we left off last week.

May 17, 2024, marks the 70th anniversary of the U.S. Supreme Court’s 1954 landmark decision in Brown v. Board of Education.

Concurring in Missouri v. Jenkins, the school-desegregation from Kansas City, Justice Clarence Thomas in effect wrote in 1995 that Brown had reached the right result partly for the wrong reasons.

There’s much more to the Thomas concurrence that can fit here, yet here’s some of it.

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“It never ceases to amaze me that the courts are so willing to assume that anything that is predominantly black must be inferior

“(T)hreads in our jurisprudence have produced this unfortunate situation. … (O)ur cases to support the theory that black students suffer an unspecified psychological harm from segregation that retards their mental and educational development. This approach not only relies upon questionable social science research rather than constitutional principle, but it also rests on an assumption of black inferiority.

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“The mere fact that a school is black does not mean that it is the product of a constitutional violation. … “(T)he differentiating factor between de jure segregation and so called de facto segregation … is purpose or intent to segregate.”

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“(T)he existence of one race schools is not by itself an indication that the (s)tate is practicing segregation. The continuing ‘racial isolation’ of schools after de jure segregation has ended may well reflect voluntary housing choices or other private decisions.

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“In effect, the (federal-district) court (in Kansas City) found that racial imbalances constituted an ongoing constitutional violation that continued to inflict harm on black students. This position appears to rest upon the idea that any school that is black is inferior, and that blacks cannot succeed without the benefit of the company of whites.

“The … willingness to adopt such stereotypes stemmed from a misreading of our earliest school desegregation case. In Brown v. Board of Education, the (c)ourt noted several psychological and sociological studies purporting to show that de jure segregation harmed black students by generating ‘a feeling of inferiority’ in them.

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“Indeed, Brown … did not need to rely upon any psychological or social science research in order to announce the simple, yet fundamental truth that the (g)overnment cannot discriminate among its citizens on the basis of race. As the (c)ourt’s unanimous opinion indicated: ‘(I)n the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal.’ At the heart of this interpretation of the Equal Protection Clause lies the principle that the (g)overnment must treat citizens as individuals, and not as members of racial, ethnic or religious groups. It is for this reason that we must subject all racial classifications to the strictest of scrutiny.

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“Segregation was not unconstitutional because it might have caused psychological feelings of inferiority. Public school systems that separated blacks and provided them with superior educational resources–making blacks ‘feel’ superior to whites sent to lesser schools–would violate the Fourteenth Amendment, whether or not the white students felt stigmatized, just as do school systems in which the positions of the races are reversed. Psychological injury or benefit is irrelevant … .

“Regardless of the relative quality of the schools, segregation violated the Constitution because the (s)tate classified students based on their race. Of course, segregation additionally harmed black students by relegating them to schools with substandard facilities and resources. But neutral policies, such as local school assignments, do not offend the Constitution when individual private choices concerning work or residence produce schools with high black populations. The Constitution does not prevent individuals from choosing to live together, to work together, or to send their children to school together, so long as the (s)tate does not interfere with their choices on the basis of race.

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“(T)here is no reason to think that black students cannot learn as well when surrounded by members of their own race as when they are in an integrated environment. Indeed, it may very well be that what has been true for historically black colleges is true for black middle and high schools. Despite their origins in ‘the shameful history of state enforced segregation,’ these institutions can be ‘”both a source of pride to blacks who have attended them and a source of hope to black families who want the benefits of . . . learning for their children.”‘

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“After all, if separation itself is a harm, and if integration therefore is the only way that blacks can receive a proper education, then there must be something inferior about blacks. Under this theory, segregation injures blacks because blacks, when left on their own, cannot achieve. To my way of thinking, that conclusion is the result of a jurisprudence based upon a theory of black inferiority.

“This misconception has drawn the courts away from the important goal in desegregation. The point of the Equal Protection Clause is not to enforce strict race mixing, but to ensure that blacks and whites are treated equally by the (s)tate without regard to their skin color.”

When Dr. Randy Elf was a law clerk at the United States District Court for the Southern District of Alabama, the Mobile school-desegregation case had been on the court’s docket for several decades.

(c) 2024 BY RANDY ELF