Berkeley law professor Goodwin Liu argues in an OpEd today not only that Brown v. Board of Education “unambiguously” stands for the proposition that classifying and assigning students by race to achieve “integration” is constitutional but even that “[n]othing in the opinion establishes or suggests colorblindness as a legal principle.”
I believe, you will not be surprised to hear (especially if you have read this, this, this, this, and this), that Liu reads considerably more into Brown than what was written or intended, and he also reads a considerable amount out of it that is there.
Like nearly all commentators who see the heart of Brown as a command of integration rather than a bar to discrimnation, Liu mistakenly equates “separation” — an absence of “racial balance” — with state-imposed “segregation,” and folds both of them into the general concept of “racial apartheid.”
As I argued here, however, I think that is mistaken:
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.”
… 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.
… what Brown barred was not the fact of “separation,” whether a lot or a little, but “segregation,” the policy of assigning students to schools based on their race. It was the racial discrimination inherent in that policy that made the “separate” schools inherently unequal, not the demographic fact of blacks attending schools primarily (or even exclusively) with other blacks….
… It seems to me that the underlying principle urged upon us by the Louisville and Seattle school boards and their defenders [including Professor Liu] is that “racial balance” is fundamental. Non-discrimination might be nice, but it’s not essential. What is essential, I believe they claim, is that the need for “racial balance” trumps everything…..
Liu writes that “Brown unambiguously held that racial apartheid has no place in public schools or elsewhere in public life.” That observation would not be troubling if it weren’t accompanied by Liu’s apparent belief that “racial imbalance,” wherever it appears, is the same thing as “racial apartheid” that must be corrected by governmental racial classifications.
Given that belief, I’m actually rather troubled when he makes what would otherwise be the unexceptionable observation that
[a] decade after Brown, Congress passed landmark civil rights laws that effectively integrated the nation’s restaurants, motels and workplaces. In short, Brown’s principal legacy has been the dismantling of state-sanctioned racial apartheid in the United States.
The Civil Rights Act of 1964, however, did not require “racial balance” or even integration of “restaurants, motels and workplaces.” It barred racial discrimination in those arenas. Given Liu’s view of the meaning of Brown, it’s surprising that he and his friends haven’t demanded a version of economic busing to ensure that every institution and organization has the required degree of “racial balance.”