What Brown v. Board of Education Should Have Said: The Nation's Top Legal Experts Rewrite America's Landmark Civil Rights Decision

By Jack M. Balkin | Go to book overview

Sunstein, J., concurring in the judgment.

While I agree with his conclusion, I cannot join the opinion of the Chief Justice, which, like those of several other members of this Court, seems to me to decide too many complex questions, many of them not properly presented here. Rather than embarking in new directions, or offering adventurous interpretations of constitutional provisions on which the parties do not rely, I would emphasize the continuity of our decision today with the whole fabric of existing law. Indeed, the result in this case is nearly foreordained by our precedents, and the ruling of Plessy v. Ferguson has become an extraordinary anomaly in our jurisprudence, one that deserves immediate burial. I write separately to explain what I believe are the key holdings in these cases, and to offer a rationale that is necessary to explain those holdings.


I.

Invoking what they see as basic constitutional principle, plaintiffs contend that the Equal Protection Clause forbids separate but equal schooling. Invoking what they see as long-standing understandings and traditions, defendants contend that it does not. Of course we are not writing on a clean slate. In several cases involving racial discrimination, this Court has held that the Constitution raises severe doubts about any system of racial discrimination that has the purpose or effect of subordinating Negroes or other groups likely to be subject to prejudice.1 And in a series of more recent cases involving school segregation in particular, we have suggested that any system of segregation in education faces an extremely heavy burden of justification. These cases do not resolve this one, which we have been careful to leave undecided and indeed expressly reserved. But taken as a whole, they raise substantial doubts about the defendants' position here.

-174-

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