Today, Constitutional Accountability Center released the newest chapter in our Constitution at a Crossroads series: “Brown v. Brown: Will the Supreme Court Interpret the Equal Protection Clause to Invalidate Measures Designed to Promote Equal Opportunities and Redress Our Nation’s Long History of Racial Discrimination?” 

This latest Crossroads chapter focuses on the text and history of the Constitution’s Equal Protection Clause, the landmark civil rights case Brown v. Board of Education, and the Supreme Court’s treatment of both.  In the decades after Brown, the Supreme Court upheld and broadly interpreted civil rights statutes such as the Civil Rights Act of 1964, the Voting Rights Act of 1965, and other race-conscious measures that sought to bring the Constitution’s promise of racial equality under the 14th Amendment to life.

But over the last quarter-century, in a string of bitterly divided rulings, conservatives on the Rehnquist and Roberts Courts have redefined the meaning of the Equal Protection Clause and started to use Brown as a weapon to attack affirmative action and many of the remedies available under the iconic civil rights statutes enacted by Congress to make Brown’s promise of meaningful equality a reality.  These rulings have dramatically limited the government’s power to redress racial isolation in schools, enact affirmative action programs, and draw districts in which racial minorities have a fair chance of electing their candidate of choice. 

Read the Crossroads chapter on Brown v. Board of Education.

In the next Supreme Court Term, in the case of Fisher v. University of Texas, the Roberts Court has the opportunity to extend this reasoning to strike down the race-conscious admissions policy at Texas’ flagship public university.  Or, perhaps, Fisher will finally be the case where Justice Kennedy, who has voted consistently with the Court’s conservative bloc in striking down race-conscious measures, but carved out a less absolute position on this issue, will finally break from his conservative colleagues.

Either way, this much is certain: The Equal Protection Clause and the meaning and legacy of the Supreme Court’s most celebrated civil rights ruling are at a Crossroads.