From a nice column by Bruce Ramsey in the Seattle Times:
Sen. Edward Kennedy, D-Mass., was interested in Brown v. Board of Education, the 1954 case that banned segregation in public schools. William Rehnquist, the late chief justice, had expressed his doubts about that case half a century ago. How about the new chief justice? Would he be sensitive, Kennedy asked, to minorities who were not asking for a handout, but a hand up?
Certainly. Roberts expressed his sensitivity. He blessed the Brown decision. But in the Brown decision, he said, Chief Justice Earl Warren had not ruled that segregation was illegal because it forced black Americans into poor schools. Disparity was not the constitutional problem. “The genius of the decision,” Roberts said, “was the recognition that the act of separating the students was where the violation was.”
It was a careful answer, and one that bodes ill for what the Kennedy wing delicately calls “taking race into account.”
This exchange nicely raises perhaps the most crucial point in the recent history of race in America: Did Brown bar the state from treating people differently based on their race, or did it in effect require “taking race into account” in order to produce constitutionally mandated integration, or, now, “diversity”?
As I’ve written here before, Brown
on one view commanded the elimination of racial discrimination and on the other commanded the presence of racial integration. The first view was based on and re-inforced the principle that bars the state from distributing burdens or benefits based on race. The second positively requires the state to engage in precisely that form of racial regulation.
On this point I believe Roberts was absolutely correct: the central meaning of Brown was that “the act of separating the students,” i.e., treating them differently based on their race, was unconstitutional, and wrong.