Taking Us From 2022 to 1868: Protecting Brown v. Board of Education in Light of Dobbs v. Jackson Women’s Health Organization
Friday, June 24 was the last day of school in Richmond Public Schools, a day of celebration. That happiness came to a screeching halt mid-morning, when the Supreme Court of the United States released its opinion in Dobbs v. Jackson Women’s Health Organization (Dobbs), overturning Roe v. Wade. In one-fell swoop, Justice Samual Alito and the conservative majority on the Court obliterated nearly 50 years of legal precedent and an essential element of the fundamental right to privacy as protected by the 14th Amendment. This Supreme Court’s conservative majority has spent much of this term issuing rulings that limit our rights and freedoms in a “regressive constellation of…decisions, rulings and law that are set to remake America in the GOP’s image.”¹ The decision in Dobbs is perhaps the most shocking decision of 2022 because it also offers a slippery slope to the loss of other rights and freedoms for our country by restricting the protections of the 14th Amendment including, as discussed here, as they pertain to public education.
Justice Alito held in Dobbs that because the right to an abortion is neither found in the text of the Constitution nor deeply rooted in the nation’s history and tradition, the power to regulate abortion must return to the state. The 14th Amendment to the Constitution has historically been a powerful tool used to expand rights, liberties, and freedoms in our country since its ratification in 1868. The 14th Amendment includes a Citizenship Clause, Privileges or Immunities, Due Process Clause (for both substantive and procedural due process), and an Equal Protection Clause. These various clauses have been used time and again to correct the systemic failings and inequities in our nation, ranging from the Equal Protection Clause making segregation unconstitutional in Brown v. Board of Education; the Substantive Due Process Clause giving rise to a right of privacy that encompasses the right to an abortion in Roe v. Wade; and the Equal Protection Clause leading to a right to gender equality in Reed v. Reed. From the outset, it should be noted that the Supreme Court has never held that the Due Process Clause infers a Constitutional right to a basic minimum education, though at least one Circuit Court has ruled that there is such a right. Suffice it to say that this current Supreme Court would probably not find that a right to a basic minimum education is “deeply rooted in this Nation’s history and tradition” and thus a Constitutionally fundamentally right anytime in the near future.
Dobbs discusses a different aspect of Substantive Due Process in finding that there is no longer any protection for abortions in the Constitution: the Right to Privacy. The Supreme Court has held that the Right to Privacy is a penumbra — or group — of rights understood to emanate from the Bill of Rights and the 14th Amendment (as Substantive Due Process) since Griswold v. Connecticut, a 1965 case about access to contraception. But in Dobbs, Justice Alito unreasonably concludes that the right to abortion access is not a part of the right to privacy because it is not “deeply rooted in this Nation’s history and tradition.” And the test for whether something is deeply rooted in our history and tradition, according to Justice Alito, is whether that right was an essential part of the life of the nation in 1868, when the 14th Amendment was ratified. Justice Alito concludes that because, according to his troubling analysis of history, the right to an abortion was not deeply rooted in our history and tradition in 1868, there is no right to an abortion now (despite 50 years of reliance by pregnant people and others on the right to an abortion and medical procedures related by any way at all to abortions). Ironically, Justice Alito extolled the virtues of Brown v. Board of Education in his Dobbs opinion, even though the nation, mired in white supremacy, did not conceive of equal protection leading to the end of segregation in 1868.
Because of Justice Alito’s analysis in overturning Roe v. Wade, it is now reasonable to fear that other fundamental rights the Supreme Court previously said are a part of our right to privacy might be at risk. Justice Clarence Thomas stated as much in his concurrence to Dobbs, noting that “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold v. Connecticut, Lawrence v. Texas (finding it unconstitutional to criminalize consensual, sexual conduct between individuals), and Obergefell v. Hodges (finding a constitutional right to marry for same-sex couples). It is completely conceivable to imagine a cascade of cases where the Supreme Court takes away more of the individual rights and freedoms we have exercised for years as part of the right to privacy.
Some legal commentators have gone even further and pointed out that the “deeply rooted in this Nation’s history and tradition” analysis in Dobbs also throws the sanctity of legal precedent regarding the Equal Protection Clause, such as Brown v. Board of Education, into doubt. The Supreme Court in Dobbs did not just drop our society back into a pre-Roe v. Wade world, when pregnant people did not have access to legal, safe abortion, especially those that did not have the financial resources to skirt abortion restrictions; it also dropped us back in 1868 based on its analysis of the 14th Amendment. As a result, it is exceedingly easy to imagine the Supreme Court’s Conservative majority arguing that the Equal Protection Clause must also be interpreted as giving rights only that were endemic to the history of the nation in 1868. Far-right legal activists will almost certainly use the same logic to attempt to revoke the seminal 1954 Brown v. Board of Education ruling that segregated facilities are not inherently equal and violate the equal protection clause of the 14th Amendment. The legal argument that our nation must revert to a concept of equality and due process that existed in 1868 is particularly frightening because it calls back to a time when the abhorrent 1896 Plessy v. Ferguson ruling, holding that segregation does not violate the equal protection clause, was good law.
Indeed, Justice Alito has invoked this preference for understanding the 14th Amendment as understood in 1868 to critique the Obergefell decision, noting that, “[w]hatever liberty means, though, in 1868 it did not mean the right to enter into a same-sex marriage. … Whatever you think about this, it’s not there in the 14th Amendment.” Again, Justice Alito’s “test” for whether something is protected by the Constitution is if it is “implicit in the concept of liberty” and “deeply rooted in the nation’s history and tradition.” We know that white supremacy is deeply rooted in this nation’s history and tradition, and any call for interpreting the Constitution based on the tradition of that time is, plainly put, terrible. This kind of judicial interpretation reduces all of our lives — and access to public education — to what was considered right more than 150 years ago. This is egregious and unacceptable, as stated by Chief Justice Earl Warren in Brown v. Board². Reducing our society’s notion of equality to that of 1868 also echoes the calls of the Southern Manifesto, published in 1956 by Strom Thurmond and Richard B. Russell, Jr., calling for massive resistance to integration in response to Brown v. Board of Education because schools were not integrated in 1868³.
Texas Governor Greg Abbott has already spoken of implementing this “life in 1868 rose-colored glasses” interpretation of the 14th Amendment to Brown v. Board of Education by arguing that the state of Texas is under no obligation to provide a free, public education. Public education was not common or recognized in the Constitution in 1868, and so Abbott and the far-right will no doubt try to assert that a public education is not a right belonging to us all. Governor Abbott also argues that the state has a compelling interest in keeping undocument non-citizens from accessing public education in Texas, advocating for the overturning of the Supreme Court case Plyler v. Doe (which held that states must provide equal public education funding to undocument non-citizens). A Republican Governor of a state who has aspirations for national office (see: Youngkin) arguing that a state is under no obligation to provide a public education at all or to a certain class of individuals based on the legal reasoning embraced in Dobbs should be chilling to all of us.
Dobbs is an attempt by this Court’s majority to start to strip away freedoms, liberties, and public goods that belong to the people. Many liberal legal commentators argued that Roe V. Wade would remain safe when Justices Gorsuch, Kavanagh, and Coney Barrett were nominated to the Supreme Court. That complacency and belief in institutions to protect our Constitutional rights has led us here: to a runaway Supreme Court restricting freedoms and liberties rather than enhancing them. We must not be complacent when it comes to our other precious privacies, equalities, and freedoms. Public education is a public good already so clearly under attack on many, whether through attacks on locally elected school boards, attacks on books in public school libraries, false concern about so-called CRT taught in schools, expanded charter and laboratory schools, and the desire to use public vouchers or tax breaks for private and/or religious education. Dobbs and the far-right argument that due process, equal protection, and our 14th Amendment must be viewed from the lens of 1868 is a threat to all of our bodies and — as it implicates our access to equality in public goods, including public education — our minds.
¹ This “constellation” of shocking limitations in 2022 court cases include: (1) gun owners can now carry firearms for self-defense in public (New York State Rifle & Pistol Assoc. v. Bruen); (2) the Environmental Protection Agency cannot reduce carbon output at existing power plants (West Virginia v. Environmental Protection Agency); (3) public grants can be used for private, religious schools (Carson v. Makin); (4) prayer is allowed in school (Kennedy v. Bremerton School District); (5) limits to Indian sovereignty on Indian lands (Oklahoma v.Castro-Huerta); (6) denial of class-wide injunctive relief to immigrants (Garland v. Aleman Gonzalez); (7) limiting bond for immigrants in removal proceedings (Johnson v. Arteaga-Martinez); (8) border patrol officers now have immunity for constitutional violations within 100 miles of the country’s border (Egbert v. Boule); and (9) a police officer can no longer be sued for a constitutional violation for failing to offer Miranda warnings (Vega v. Tekoh). For its next term, the court has agreed to hear cases regarding affirmative action as well as election law and the independent state legislature doctrine in Moore v. Harper, with potentially tremendous negative consequences for the state of long-standing legal precedent in our country.
² “In approaching this problem, we cannot turn the clock back to 1868, when the Amendment was adopted, or even to 1896, when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.”
³”When the amendment was adopted, in 1868, there were 37 States of the Union. Every one of the 26 States that had any substantial racial differences among its people either approved the operation of segregated schools already in existence or subsequently established such schools by action of the same lawmaking body which considered the 14th amendment.”
