George Will on Diversity Education and the Supreme Court

Will points out (as does Clarence Thomas in his concurring opinion see pages 49 -84) how far the courts have twisted and tortured the purposes of Brown vs. Board of Education.

How did we get from this: "Distinctions by race are so evil, so arbitrary and invidious that a state bound to defend the equal protection of the laws must not invoke them in any public sphere" (the NAACP's brief, written by Thurgood Marshall, in the 1954 Brown v. Board of Education desegregation case), to this: Local public education establishments routinely taking cognizance of race in assigning children to schools?

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Although progressive people would never stoop to racial stereotyping, they evidently believe that any black or other minority child, however young, or from whatever social background, makes a predictable and distinctive -- you might say stereotypical -- contribution to "diversity."

Breyer said that last week's decision abandons "the promise of Brown." Actually, that promise -- a colorblind society -- has been traduced by the "diversity" exception to the Equal Protection Clause. That exception allows white majorities to feel noble while treating blacks and certain other minorities as seasoning -- a sort of human oregano -- to be sprinkled across a student body to make the majority's educational experience more flavorful.

Justice Thomas:

To equate the achievement of a certain statistical mix in several schools with the elimination of the system of systematic de jure segregation trivializes the latter accomplishment. Nothing but an interest inclassroom aesthetics and a hypersensitivity to elite sensibilities justifies the school districts’ racial balancing programs. [...]

(“[R]acial discriminations are in most circumstances irrelevant and therefore prohibited”). And appropriately so.“The Constitution abhors classifications based on race, not only because those classifications can harm favored racesor are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdensor benefits, it demeans us all.” [...]

Unlike de jure segregation,there is no ultimate remedy for racial imbalance. Individual schools will fall in and out of balance in the natural course, and the appropriate balance itself will shift with aschool district’s changing demographics. Thus, racial balancing will have to take place on an indefinite basis—acontinuous process with no identifiable culpable party and no discernable end point. In part for those reasons, theCourt has never permitted outright racial balancing solelyfor the purpose of achieving a particular racial balance. [...]

“[R]acial paternalism and its unintended consequences can be as poisonous and pernicious as any other form of discrimination.”... As these programs demonstrate, every time the government uses racial criteria to “bring the races together,” ... someone gets excluded, and the person excluded suffers an injury solely because of his or her race. The petitioner in the Louisville case received a letter from the school board informing her that her kindergartener would not be allowed to attend the school of petitioner’s choosing because of the child’s race. ... Doubtless, hundreds of letters like this went out from both school boards every year these race-based assignment plans were in operation. This type of exclusion, solely on the basis of race, is precisely the sort of government action that pits the races against one another, exacerbates racial tension, and “provoke[s] resentment among those who believe that they have beenwronged by the government’s use of race.” [...]

...the dissent argues that the social science evidence is “strong enough to permit a democratically elected school board reasonably to determine that this interest is a compelling one.” ... This assertion is inexplicable. It is not up to the schoolboards—the very government entities whose race-based practices we must strictly scrutinize—to determine what interests qualify as compelling under the Fourteenth Amendment to the United States Constitution. [...]

The dissent accuses me of “feel[ing] confident that, to end invidiousdiscrimination, one must end all governmental use of race-conscious criteria” and chastises me for not deferring to democratically elected majorities. .... Regardless of what JUSTICE BREYER’s goals might be, this Court does not sit to “create a society that includes all Americans” or to solve the problems of “troubled inner city schooling.” ... We are not social engineers. The United States Constitution dictates that local governments cannot make decisions on the basis of race. Consequently, regardless of the perceived negative effects of racial imbalance, I will not defer to legislative majorities where the Constitution forbids it. It should escape no one that behind JUSTICE BREYER’s veil of judicial modesty hides an inflated role for the Federal Judiciary. The dissent’s approach confers on judges the power to say what sorts of discrimination are benign and which are invidious. Having made that determination (based on no objective measure that I can detect), a judge following the dissent’s approach will set the level of scrutiny to achieve the desired result. Only then must the judge defer to a democratic majority. In my view, to defer to one’s preferred result is not to defer at all. [...]

Most of the dissent’s criticisms of today’s result can be traced to its rejection of the color-blind Constitution. ... The dissent attempts to marginalize the notion of a color-blind Constitution by consigning it to me and Members of today’s plurality.... But I am quite comfortable in the company I keep. My view of the Constitution is Justice Harlan’s view in Plessy: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” .... And my view was the rallying cry for the lawyers who litigated Brown. ...(“That the Constitution is color blind is our dedicated belief”); Brief for Appellants in Brown v. Board of Education, O. T. 1952, No. 1, p. 5 (“The Fourteenth Amendment precludes a state from imposing distinctions or classifications based upon race and color alone”);... see also In Memoriam: Honorable Thurgood Marshall, Proceedings of the Bar and Officers of the Supreme Court of the UnitedStates, X (1993) (remarks of Judge Motley) (“Marshall had a ‘Bible’ to which he turned during his most depressed moments. The ‘Bible’ would be known in the legal community as the first Mr. Justice Harlan’s dissent in Plessy
v. Ferguson, 163 U. S. 537, 552 (1896). I do not know of any opinion which buoyed Marshall more in his pre-Brown days . . .”). [...]

The dissent appears to pin its interpretation of the Equal Protection Clause to current societal practice and expectations, deference to local officials, likely practical consequences, and reliance on previous statements from this and other courts. Such a view was ascendant in this Court’s jurisprudence for several decades. It first appeared in Plessy, where the Court asked whether a state law providing for segregated railway cars was “a reasonable regulation.” ... The Court deferred to local authorities in making its determination, noting that in inquiring into reasonableness “there must necessarilybe a large discretion on the part of the legislature.” ... The Court likewise paid heed to societal practices, local expectations, and practical consequences by looking to “the established usages, customs and traditions of the people,and with a view to the promotion of their comfort, and the preservation of the public peace and good order.” ... Guided by these principles, the Court concluded: “[W]ecannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia.” [...]

The segregationists in Brown embraced the arguments the Court endorsed in Plessy. Though Brown decisively rejected those arguments, today’s dissent replicates them to a distressing extent.