Which side is Brown vs. Board on?

KENNETH W. MACK is a professor at Harvard Law School. He is writing a book on American civil rights lawyers.

AS THE Supreme Court wrestled with race-conscious school assignments in Seattle and Louisville, Ky., last week, the justices drew historical figures into the debate. In the most heated bits from the various opinions, each side accused the other of contradicting the objectives of the individuals who laid the groundwork for Brown vs. Board of Education.

In his opinion, Chief Justice John G. Roberts Jr. quoted Robert L. Carter — the black plaintiffs’ attorney in Brown — to support the proposition that the Constitution prohibits school districts from taking race into account in student assignment. Justices John Paul Stevens and Stephen G. Breyer, on the other hand, argued that the principles of racial integration expressed in Brown required the high court to uphold the school districts’ use of race.

Roberts’ argument carried the day. But the justices’ disagreement illustrates a problem well known to generations of law school students: When trying to decide a hard case, you can find two valid, established legal principles that will lead to two diametrically opposing conclusions. This observation was first articulated by an early 20th century group of reformers called “legal realists.” The hardest cases, they noted, are the products of long-standing, unresolved societal conflicts — so precedents often support both sides. As one phrased it, legal principles “are in the habit of hunting in pairs.”


The same problem plagues historical interpretations. But that doesn’t prevent supporters and opponents of race-consciousness from buttressing their stances with references to the principles held by famous civil rights figures. “History will be heard,” asserted Roberts. But if history speaks on this subject, it does so in two voices.

Take Justice John Marshall Harlan, for instance, hero to both sides of this debate. He was the lone dissenter in Plessy vs. Ferguson, the 1896 Supreme Court decision upholding a law that required racially segregated train cars in Louisiana. Harlan’s most famous phrase, “Our Constitution is color-blind,” coined in his Plessy dissent, is frequently cited (including by Justice Clarence Thomas in his concurring opinion last week) as if it proves that Harlan would have invalidated all governmental racial classifications.

Most observers fail to notice what the Great Dissenter wrote several paragraphs later: that Chinese persons are members of “a race so different from our own” that it is permissible to deny them the citizenship rights that white Americans enjoy.

Three years after Plessy, Harlan also wrote an opinion for the court that rejected a constitutional challenge to a whites-only school and strongly indicated that school segregation did not violate the 14th Amendment. So as a historical precedent, Harlan stands for two contradictory principles. One sweeps away all state-mandated race consciousness, and the other makes distinctions between black Americans and Chinese immigrants, or between segregated railroads and segregated schools.

The historical figure who gets much of the credit for writing Harlan’s principles into American law is the noted civil rights lawyer Charles Houston. Houston formulated the NAACP’s strategy for fighting segregated schools, won its first Supreme Court victory in that arena and mentored Thurgood Marshall as a student and a lawyer for the National Assn. for the Advancement of Colored People. As vice dean, Houston transformed Howard Law School into the institution that trained many of the lawyers, including Marshall and Carter, who fought education segregation right up to Brown vs. Board of Education.

Although not mentioned explicitly in the recent Supreme Court decision, it was Houston’s principles most of all that the justices debated. Yet Houston, too, apparently stands for two opposing principles. Even as he was formulating the NAACP’s civil rights strategy, he was serving on the school board that administered segregated schools in Washington. Indeed, Houston expressed pride in the district’s legally segregated schools. One of his last civil rights cases was an attempt to gain more resources for its black schools — an argument he was still pushing on the eve of the Brown litigation.


Even Carter, invoked to great effect by Roberts, presents a similar historical problem. Carter, 90, is a federal judge in New York, and he recently published an autobiography. One cannot read it without concluding that he followed a set of lifelong moral principles that were utterly opposed to racial segregation. When Brown was wending its way through the courts, it was certainly possible to find him arguing that any use of race in school assignment is constitutionally suspect.

Yet Carter later admitted that his efforts in Brown were focused on overturning Plessy’s separate-but-equal doctrine, not at formulating a legal rule to guide future attempts to create racial equality. Indeed, within a decade of the Brown decision, he confessed to having mixed feelings about the use of race-conscious remedies to achieve integration, though he eventually firmly endorsed them.

It is tempting to believe that history can provide clear guidance on our difficult modern legal questions. Yet a close look at the historical figures invoked by the Supreme Court last week reveals that they were as deeply conflicted about race-consciousness in their own times as we are in ours. History has a lot to tell us, but it rarely provides a clear signpost. In hard cases, historical precedents, just like legal ones, are in the habit of hunting in pairs.