Brown and the Colorblind Constitution

Abstract

This Essay offers the first in-depth examination of the role of colorblind constitutionalism in the history of Brown v. Board of Education. In light of the recent Supreme Court ruling in Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007), such an examination is needed today more than ever. In this case, Chief Justice John Roberts drew on the history of Brown to support his conclusion that racial classifications in school assignment policies are unconstitutional. Particularly controversial was the Chief Justice's use of the words of the NAACP lawyers who argued Brown as evidence for his colorblind reading of the landmark school desegregation decision. I argue that while the historical record shows widespread faith in the claims of colorblind constitutionalism at the time of Brown, including among the lawyers for the NAACP and their allies, these claims were just one of many ways in which civil rights advocates challenged the constitutionality of school segregation. And, more importantly, any effort to claim Brown as a foundation stone for colorblind constitutionalism must confront the fact that the Supreme Court clearly rejected a sweeping anticlassification justification for its decision in Brown.

Keywords: Brown v. Board of Education, Parents Involved, School Segregation, Supreme Court, Civil Rights