In Honor of Dr. Martin Luther King’s Birthday

In 1954, when the United States Supreme Court unanimously declared in Brown v. Board of Education that “separate educational facilities are inherently unequal,” civil rights activists around the nation hailed the pronouncement as a great victory.

In 1957, Martin Luther King, Jr. described Brown as “a legal and sociological death blow to an evil that had occupied the throne of American life for several decades.”

He predicted that: “With the coming of this great decision we could gradually see the old order of segregation and discrimination passing away, and the new order of freedom and justice coming into being.”

In praising Brown, Dr. King emphasized the ways in which a principle of non-discrimination would not only promote equality but also advance liberty by enabling African Americans to achieve economic independence and political voice.

Brown itself seemed to support this view. The Court described access to education as a prerequisite to democratic participation and personal accomplishment.

Indeed, the justices went so far as to observe that “it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.”

As this passage from Brown suggests, equality and liberty are intertwined like two strands of a double helix that makes up our nation’s DNA — at least when it comes to preserving individual rights.

Equality standing alone cannot tell us what the critical elements of opportunity are — the freedoms that make our flourishing possible. Without a strong sense of how liberty shapes our personhood and dignity, equality can mean little more than a race to the bottom for the unfortunate and disadvantaged.

Conversely, freedom by itself cannot impose the limits that grow from respect for the rights of others. Without regard for norms of fair play, liberty can become a license to overreach the helpless and the poor.

Taken together, however, equality of opportunity will give us the freedom to pursue our dreams, while freedom will allow us to grow as individuals who can lay claim to equal dignity and respect.

Leaders like Dr. King never forgot the essential relationship between freedom and equality. When he told the nation that “I have a dream,” it was not simply a dream in which people of all races would be judged by the content of their character rather than the color of their skin. It also was a dream in which freedom would ring “from every village and hamlet, from every state and city” so that all people would have the chance to live out our country’s creed, vote for just and fair political representation, and work to achieve a better future for themselves and their children.

If freedom did not ring, equality would be a hollow promise.

Unfortunately, since the Court handed down its landmark decision in Brown, the justices have unraveled the strands of liberty and equality that together constitute our democratic identity.

In 1973, in San Antonio Independent School District v. Rodriguez, students and parents challenged a public school financing system that led to wide disparities in per-pupil expenditures based on the wealth or poverty of particular districts.

In rejecting this challenge, the Court concluded that there is no fundamental right to equal educational opportunity.

The justices no longer seemed to view meaningful access to schooling as foundational to our prospects as citizens and workers.

Because Rodriguez treated the provision of an adequate education as primarily a political question, the Court acquiesced in the entrenchment of marked inequality for vulnerable communities with limited resources and influence.

Shorn of any connection to the right to education, equality of opportunity has become an increasingly formalistic and effete doctrine in the ensuing years.

The Court now views any official consideration of race as inherently suspect, and so it insists on colorblind policies even in the face of glaring racial inequalities.

In school desegregation cases, the justices traditionally have made an exception for race-conscious remedies that counteract the effects of past discrimination.

As federal district courts across the country find that vestiges of prior wrongs have been eradicated and lift busing orders, public schools often revert to being racially identifiable.

Some school boards have tried to reduce racial isolation by adopting voluntary integration plans, but the Court has rejected race-conscious student assignments as an impermissible form of discrimination.

The upshot of this jurisprudential shift is that school boards can largely disregard disparities that produce unequal educational access, but cannot attend to the harms of racially identifiable schools without risking a constitutional veto.

Dr. King observed that, “Injustice anywhere is a threat to justice everywhere. Therefore, no American can afford to be apathetic about the problem of racial justice.”

Today we must remember that a Constitution that treats liberty and equality as divisible does more than betray children in schools isolated by race and poverty. This act of doctrinal legerdemain also does a grave disservice to the rest of us.

In the end, none of us is truly free if some of us can be relegated to dead end lives, and none of us is truly equal if some of us can be left behind before our lives have truly begun.

Rachel F. Moran is dean and Michael J. Connell Distinguished Professor of Law at U.C.L.A. School of Law, and has written and lectured extensively on issues of equity and access in education.