Hollowing out Brown versus Board

To say the Brown versus the Board of Education was a landmark Supreme Court ruling really understates the importance of that ruling. Brown effectively overturned the “separate but equal” precedent set by Plessy versus Ferguson and mandated integration. The Court’s decision yesterday rolls back a big piece of Brown by declaring unconstitutional any school choice plan that considers race as a factor, even if the purpose of the plan is to achieve racial diversity. By demanding that all such devices be colorblind, Chief Roberts, author of the majority opinion, has cut the legs out from under Brown. Justice Breyer’s dissent fleshes out the damage:

"The plurality pays inadequate attention to this law, to past opinions' rationales, their language, and the contexts in which they arise. As a result, it reverses course and reaches the wrong conclusion. In doing so, it distorts precedent, it misapplies the relevant constitutional principles, it announces legal rules that will obstruct efforts by state and local governments to deal effectively with the growing resegregation of public schools, it threatens to substitute for present calm a disruptive round of race-related litigation, and it undermines Brown's promise of integrated primary and secondary education that local communities have sought to make a reality. This cannot be justified in the name of the Equal Protection Clause."

Cannot be justified indeed...

Justice Kennedy does, however, offer a sliver of hope in that while he sided with the majority, he believes diversity is a goal worth pursuing and some acceptable proxy for race, like economic class or neighborhood can be used to craft a policy.

"The enduring hope is that race should not matter; the reality is that too often it does. This is by way of preface to my respectful submission that parts of the opinion by the Chief Justice imply an all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account. The plurality opinion is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race. The plurality's postulate that '(t)he way to stop discrimination on the basis of race is to stop discriminating on the basis of race,' is not sufficient to decide these cases. Fifty years of experience since Brown v. Board of Education should teach us that the problem before us defies so easy a solution. School districts can seek to reach Brown's objective of equal educational opportunity. The plurality opinion is at least open to the interpretation that the Constitution requires school districts to ignore the problem of de facto resegregation in schooling. I cannot endorse that conclusion. To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken."

Putting that aside, what I find most troubling is the willingness of the majority to once again abandon logic for the sake of conservative dogma. If racial integration in education is constitutionally mandated, how in the world is it unconstitutional to use race a factor in creating policy to achieve said integration? That is stupid and nonsensical. This is like asking someone to make dinner while wearing a blindfold. Sure, you may be able actually get something hot, but chances are the family will not like the outcome and you are going to be cut or burned in the process.

Here we have another case where the Roberts Court twists its reasoning to conform to their ideological mold. Saddest of all, these folks are going to be around for a long time and they will wreak much havoc.