Desegregation, “Diversity,” And The Meaning of Brown, Chapter 2

Chapter 1 of this post appeared two days ago, here.

Commenting on the issues in the racial school assignment cases, Robert Barnes writes in the Washington Post today that the oral argument yesterday

set up an interesting debate among the justices in which the liberals argued for a deference to local officials who have found a system that for the most part their constituents like, and conservatives arguing for the strict color-blind protections of the 14th Amendment.

As I’ve mentioned many times, I grew up in a time and place (Alabama in the 1950s) where the local officials over many years (including many years when the Constitution supported their choices) had found a system that “for the most part their constituents liked.” Those who didn’t like that system, including the NAACP and the NAACP Legal Defense Fund, like those today who don’t like systems that exclude students based on race, appealed to “the strict color-blind protections of the 14th Amendment.”

Justice Ginsburg, according to the Post article, responded to this point by “questioning whether using racial criterion to achieve integration ‘is the same as segregation….’” It is of course true that integration is not the same as segregation. It is appealing; segregation is offensive. But that, I submit, is not the question raised here, or anywhere. One way to frame what I think is the right question is to ask whether the Constitution allows for exceptions to its prohibitions in cases where the exception would allow a policy that is both appealing and popular.

Ah, but Justice Ginsburg and friends would reply, the 14th Amendment doesn’t really contain any “strict color-blind protections.” All it contains is a vague, amorphous, even porous command of “equal protection,” which means whatever we judges say it means.

I, of course, am not persuaded by this anticipated reply. I think it is clear that, however imperfectly, the 14th Amendment does embody the non-discrimination principle, however indeterminate the exact borders of that principle may be. But even though the exact dimensions of the Constitution’s principle of non-discrimination may be unclear, the principle in some form is at least clearly there. That’s considerably more than can be said for the principle (if that’s what it is) of “integration.” What, in other words, is the Constitutional warrant for allowing racial discrimination against some races for some purposes? If the state can allow racial discrimination some of its judges like, would a similar warrant allow it, say, to suppress speech some of it judges didn’t like?

In Chapter One I argued that Brown stands for the principle that students may not be burdened because of their race — not for the contending principle that cities must do whatever is necessary, including imposing burdens on students based on their race, to implement racially balanced integration — because that contending principle is not found in the Constitution. In doing so Brown was based on a belief — a correct belief — that the Constitution embodies the “without regard” principle of non-discrimination, that the contours of Constitutional principle do not simply coincide with whatever judges happen to regard as appealing policies that produce desirable effects.

Say What?