It doesn’t take a huge leap to go from worrying about the fall of Roe v. Wade to wondering what other rights could be on the Supreme Court’s chopping block.
One thing in Brown’s corner is that it’s not a substantive due process case, unlike Roe.
The issue Justice Clarence Thomas says he has with Roe and the other cases he mentioned in the opinion, is that they all fall under this area of the law known as substantive due process, explains Stephen Wermiel, a constitutional law professor at the American University Washington School of Law.
It’s a little complicated so bear with us, but substantive due process protects folks from the government infringing on their fundamental rights, things like marriage or privacy, that aren’t explicitly in the constitution, but the Supreme Court has said are implied.
“I don’t think [Brown] would fall on Thomas’ list,” says Wermiel, because it’s not a substantive due process case.
An argument could be made, says Wermiel, that the majority opinion’s logic that Roe was wrong in part because it created chaos and unsettled laws could have been made about Brown v. Board back in the day. Over a decade after the ruling, many southern states refused to abide by the verdict.
However, today, Wermiel says that no one is seriously proposing overturning Brown v. Board. Mostly because the folks who don’t want integrated schools have already won.
As of 2017, almost 70 percent of all Black children in the United States attended schools that are highly segregated by race, according to the Economic Policy Institute.
And to understand how we got here, Lisa A. Crooms-Robinson, a constitutional law professor at Howard University School of Law, says we need to take a look at what Brown v. Board actually did (or more importantly, what it didn’t do).
“We start with separate but equal has no place in K-12 education,” said Crooms-Robinson. “And what we realized is Brown is not a mandate for integration, nor does it give states or local school boards the ability to seek integration, rather, it mandates to desegregate, which is completely different.”
In layman’s terms, a court can order a school district to stop intentionally segregating students based on race. However, those court orders aren’t permanent, she says.
So whenever the court feels the school has done a good enough job, they can release them from the order.
“At that point, then there’s really nothing that state can do,” said Crooms-Robinson. “Particularly using race as even one factor to maintain integration.”
But wait, you might be asking, why can’t the school district’s just order folks to integrate or affirmatively act to promote diversity?
Well, that’s because the guys who brought you the end of Roe, Justices Clarence Thomas, Samuel Alito, plus some other notable additions, think promoting diversity is racist.
No seriously, here’s what Thomas said when he put the final nail in the coffin of K-12 integration efforts.
“Disfavoring a color-blind interpretation of the constitution,” wrote Thomas, “would give school boards a free hand to make decisions on the basis of race– an approach reminiscent of that advocated by segregationists in Brown v. Board.”
In 2006, the Supreme Court held that the Seattle School districts efforts to ensure diversity in their school system by using race as a tiebreaker to determine who got into which school, violated the equal protection clause.
In doing so, they “tied local school districts’ hands to use race as one factor often of many in making determinations… of school admissions or a school assignment,” said Crooms-Robinson.
“You theoretically could still have a court order desegregation,” says Wermiel. “But I don’t think there are many if any court ordered desegregation cases still going on.”
Next term, the Supreme Court will hear an affirmative action case looking at higher education.
“The higher ed cases on the docket for the next time,” said Crooms-Robinson. “Will be, I would suspect the end of race based affirmative action.”