Olatunde Johnson
Brown anniversaries have a familiar cadence. We celebrate Brown v. Board of Education—the stunning work of lawyers to undo the legality of “separate but equal” and advance desegregation in education and public life—and yet we also lament how much work remains to achieve meaningful equality in schools and beyond. Brown often seems to exist more in principle than in reality; the actual remedies to advance integration are elusive.
And this 70th anniversary is particularly portentous as we are reminded by the Supreme Court how the principle underlying Brown is in fact deeply contested. The Supreme Court’s 2023 opinion in SFFA v. Harvard/UNC invokes Brown more than eighty times. But the majority, concurrences, and dissents take sharply different views on the meaning of the decision and its interpretation of the Equal Protection Clause. Is Brown centrally about ridding the law of racial classifications and promoting “color-blindness” as the majority and concurrences suggest? Or does Brown, as the dissents urge, stand for equal citizenship and substantively equal educational opportunities—goals that might require race-conscious steps to address inequalities that result from past and ongoing discrimination and exclusion? With the majority view prevailing (for now), racial justice advocates may wonder, what in Brown is still worth embracing? Considered together with the 2007 decision in Parents Involved, Brown risks becoming an obstacle to achieving educational equity.
What does Brown’s complex legacy suggest for areas outside of education? On this 70th anniversary of Brown, the Poverty & Race editors asked me to consider the meaning of Brown for housing in particular. SFFA reminds us that the meaning of Brown is profoundly shaped by the Supreme Court doctrine and, in that doctrine, the role of the State in maintaining housing segregation is either invisible or invoked to subvert any meaningful integration remedy.
It was not always so. The Court’s 1971 decision in Swann v. Charlotte-Mecklenburg County was perhaps the high point of the Court’s willingness to order far-reaching and meaningful remedies for school segregation that violated the Equal Protection Clause. It held that courts could take actions, such as redrawing school boundaries and other measures to eliminate segregation “root and branch” (consistent with the 1968 Green v. County School Board of New Kent County ruling), to promote integration. The Court allowed a metropolitan remedy that extended beyond local borders created by residential segregation. Swann involved the Charlotte-Mecklenburg school district, a single, large county system, making Swann the Court’s “first and only metropolitan-wide desegregation decision” (Orfield, 2015). In striking down the county’s “freedom of choice” plan and reliance on neighborhood assignments, the Court recognized the connections between housing and school segregation.
But by the 1980s and 1990s, the Supreme Court began to retreat on implementing meaningful school desegregation remedies, and it did so by ignoring the role of state actors in creating segregated living patterns, as well as the symbiotic relationship between schools and housing.
Milliken, whose 50th anniversary we also celebrate this year, is perhaps the apotheosis of the Court’s erasure of the relationship between school and housing segregation, and its narrow view of the Equal Protection right at stake and a court’s remedial power. When the Court refused to allow an interdistrict remedy, it took local government boundaries as sacrosanct and refused to acknowledge the complicity of government at every level in creating patterns of segregation. A stunning illustration of the Court’s conception of residential segregation as having no genesis in state action necessary for finding an Equal Protection violation was Justice Stewart’s concurrence in Milliken, in which he stated that the causes of housing segregation are “unknown and unknowable.” If the Court had decided Milliken v. Bradley differently, the connections between housing and school segregation would have been made visible. Interdistrict, urban-suburban remedies might have produced meaningful and durable educational integration.
The Gautreaux litigation perhaps stands as a more positive counterpoint to Milliken. Brought in Chicago in 1967, Gautreaux v. Hills was the first major public housing desegregation case, and is sometimes referred to as “the Brown v. Board of housing.” After a lower court found federal, state, and local governments complicit in creating racially segregated housing, the courts ordered the “disestablishment” of segregated housing, authorizing site selection and voucher remedies in lower-poverty suburbs following the remedial imperative of Swann. And when the case arrived at the Supreme Court, the Court sustained this remedy that crossed the boundaries between cities and suburbs, in effect allowing the metropolitan desegregation remedy that had been elusive in Milliken. The role of the federal government as defendant, which has funding and programmatic authority over housing in the metropolitan region not necessarily dictated by existing local government, provided an opening for both liability and remedy that extended beyond local government boundaries. Gautreaux provided the model for dozens of important public housing desegregation cases. It also ushered in what is known as the Gautreaux remedy—housing vouchers that can be used in a metropolitan area for desegregation—a mobility model so crucial in housing policy today. Unfortunately, the “disestablishment” remedy was not fully successful beyond vouchers in these cases, so very little scattered-site housing was built, relative to what was needed or even ordered by lower courts. This is in part because housing takes a long time to build and is often met with vigorous community resistance at every turn.
This is the mixed constitutional and litigation legacy of Brown in education and in housing: contestation about the scope of the Equal Protection right—certainly—and also insufficient, limited enforcement of the integration remedy. In this context, if we are to celebrate Brown, we must reclaim the equal citizenship principle of Brown, and also elevate the remedial principle that is necessary to vindicate the right, which has never been fully embraced in American public law. If Brown will mean anything, it is the glimmers of possibility that we see in Gautreaux and Swann: the notion that the State must play an affirmative role in undoing past racial harm and in producing the conditions of equal citizenship and inclusion in the distribution of important social goods.
Prior to SFFA, it would have been tempting to conclude that, this notion of Brown—inconsistently applied by the judiciary—would be realized most effectively through the work of policy advocates and social justice movements outside of courts. This work entails programs and policies to address residential segregation, interrupt the links between housing and school segregation, and invest in high-poverty neighborhoods of color and the people that live within them. However, it is not possible for racial justice advocates to do this work within communities without some degree of attention to the federal judicial sphere and how Brown is increasingly deployed within that sphere. The version of Brown offered in the SFFA decision threatens the democratic space in which advocates are working to address the racialized geography of opportunity. To make it plain: those opposing affirmative action are bringing equal protection challenges to a broad range of programs that seek to remedy racial inequality in housing, lending, environment, schools, employment, and contracts. These include programs that explicitly use race as a factor as well as those that are formally race-neutral but are motivated by the desire to address racial inequality. These challenges imperil efforts to provide reparations to Black residents excluded from buying or renting housing (Simone, 2021), race-conscious remedies for Black land loss, place-based environmental justice remedies, and efforts to provide students in high-poverty neighborhoods the opportunity to attend well-resourced public high schools (Starr, 2024).
Despite the reality of the current Supreme Court majority, this hollowing out of Brown and the abandonment of racial remedy should not go unchallenged by those seeking to advance racial justice. Indeed, housing should be a part of the doctrinal strategy to counter the narrative of state innocence that undergirds the Supreme Court’s equal protection law and distorts the meaning of Brown. The history of housing segregation provides a crucial throughline between 19th century slavery abolition and the residential segregation that became cemented in state, federal, and local programs by the mid-20th century. Residential segregation is also a crucial linchpin for understanding contemporary racial inequality and the persistence of educational, mobility, and wealth gaps—even in the absence of explicit racial classifications. Grappling with this history and contemporary reality, thus might expose and even reshape our jurisprudence in the years to come.
And while I am urging renewed attention to courts, work outside of courts will need to continue to be at the center of racial justice work. Racial justice advocates and those most affected by housing and educational inequality can partner with lawyers in constructing the strategies to reclaim Brown with the strategies that operate through litigation, as well as through policy and movement work. While the political and legal climate seems daunting, this is a project that demands our creativity and urgent attention.
Olatunde Johnson (ojohns@law.columbia.edu) is Professor of Law at Columbia Law School, a member of the American Law Institute, and Board Chair of PRRAC.
References
Myron Orfield, Milliken, Meredith & Metropolitan Segregation, 62 U.C.L.A. L. Rev. 364 (2015).
Brooke Simone, Municipal Reparations: Considerations and Constitutionality, 120 Mich. L. Rev. 345 (2021).
Sonya Starr, The Magnet School Wars and the Future of Colorblindness, 76 Stan. L. Rev. 161 (2024).
