Could Dobbs signal the end of Brown v. Board of Education?

OPINION: The governor of Texas said he plans to pursue banning undocumented immigrant children from Texas public schools. Dobbs could provide the foundation to dismantling Brown.

Editor’s note: The following article is an op-ed, and the views expressed are the author’s own. Read more opinions on theGrio.

When Politico published Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization, legal scholars expressed concern that similar arguments could eliminate other constitutional rights. The opinion challenges the use of the rights to privacy, liberty, and autonomy based in the 14th Amendment, on the premise that abortion was not found or even contemplated in the original text of the Constitution. Given that the 14th Amendment is one of the Reconstruction Amendments and is foundational to many of the constitutional rights we have been afforded as African-Americans, the draft opinion can impact many seminal cases we believed to be untouchable. Of special concern are the rights to an equal education found in Brown v. Board of Education.  

There is no language in the Constitution expressly guaranteeing the right to an equal education or an education at all. Following Alito’s reasoning, for equal education to survive, the right would need to be “deeply rooted in the nation’s history and tradition” and “implicit in the concept of liberty.” Although Alito directly cites Brown and its overturning of Plessy v. Ferguson—which established the “separate but equal” doctrine—as a reason why Roe v. Wade should be overturned, his use of the case does not guarantee its safety. Instead, the Dobbs draft may open the door for Brown to be challenged in one of two ways: if a state asserts a compelling reason to restrict access to public education or if a person can assert that education infringes on the free exercise of religion.  

The equal protection clause of the 14th amendment states: “No State shall make or enforce any law which shall…deny to any person within its jurisdiction the equal protection of the laws.” In Brown, the Supreme Court ended separate but equal, holding that segregating Black and white children into separate schools violated the equal protection clause. In Dobbs, Alito went back in time to discuss the history of abortion. Similarly, in Brown, the court looked at the historical role of education and compared it to the role of education at the time of the decision. The court noted that education had evolved from a mostly private function to a public one, making education “perhaps the most important function of our local and state governments.” But Brown does not declare that there is a public right to education—it merely requires that if public education is provided, it must be equal. So what would the result be if public education is eliminated?

On Thursday, Texas Governor Greg Abbott made comments that bring up two ways that Brown can be challenged: the complete elimination of public schools and by asserting a compelling state interest to limit who receives a public education. The compelling state interest argument is illustrated in Abbott’s comments that he plans to pursue banning undocumented immigrant children from Texas public schools. Brown contemplates the segregation of schools but does not discuss whether a public education must be provided to all children of school age, without regard to citizenship status. 

Because of Plyler v. Doe, most immigrant students have a right to the same free, public K–12 education as their U.S. citizen peers. When discussing the leaked Dobbs opinion on The Joe Pags Show, Governor Abbott stated, “Texas already long ago sued the federal government about having to incur the costs of the education program, in a case called Plyler v. Doe and the Supreme Court ruled against us on the issue….I think we will resurrect that case and challenge this issue again, because the expenses are extraordinary and the times are different than when Plyler v. Doe was issued many decades ago.” Abbott seems to be claiming a compelling state interest, due to the burden of funding public education for non-citizens. Abbott also seems to believe he can rely on Alito’s arguments in Dobbs to achieve his goals.  

Brown could be dismantled another way: by putting 14th Amendment rights that will be diminished if the draft Dobbs decision stands against First Amendment freedom of religion and speech. We already have a case that serves as a blueprint for how the freedom of religious exercise can triumph over 14th Amendment rights. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, a bakery refused to design a wedding cake for a same sex couple based on the owner’s religious beliefs. The Colorado Civil Rights Commission, evaluating the case under the state’s anti-discrimination law, found that the bakery discriminated against the couple.

In a 7-2 decision, the Supreme Court ruled that the commission did not use religious neutrality in crafting its order against Masterpiece Cakeshop in violation of the owner’s rights to exercise religion. The court avoided a discussion of whether anti-discrimination laws can generally be challenged by a free exercise of religion and freedom of speech. However, it does illustrate how a case that pits one party’s 14th Amendment rights against another’s First Amendment freedoms of religion and speech can be used to erode constitutional rights based on liberty. 

Assuming the outcome of the current draft of Dobbs stands, it will mark the end of a nearly 50 year effort to dismantle the right to choose as articulated in Roe. In that time, those in the anti-choice movement took a multifaceted approach to overturning Roe, including arguments that there is a compelling state interest in the health of pregnant persons and the life of the fetus. As a result of nearly annual challenges, the right to choose was limited by waiting periods and other procedural hurdles that made it more difficult to obtain an abortion, provider requirements and even medially unnecessary procedures. If Abbott’s comments signal a similar plan to dismantle Brown, Dobbs could provide the foundation. We could be in for decades of attempts to erode Brown by eliminating public schools, arguing compelling state interests or pitting freedom of religion against equal protection. 

Carliss Chatman is an associate professor of law at Washington and Lee University School of Law and the host of Getting Common on Voice America Network.  She is the author of Companies are People Too, a children’s book illustrated by Winsome Reed, and co-author of Business Enterprises: An Experiential Approach with Carla Reyes. Professor Chatman’s scholarship focuses on comparative personhood, corporate governance, business culture, entrepreneurship, and ethics. She teaches an array of business and commercial law courses, including ethics skills courses that focus on entrepreneurs and start-ups, mergers and acquisitions and deal financing.

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