It’s impossible to agree with all the details of this constitutionally confused article. But it’s true enough that the Court has never said that the Constitution is colorblind and that all racial distinctions in our law are unconstitutional, and in BROWN it passed up a perfect opportunity to do so. The author’s case, in a way, would be even stronger if he realized that the Court didn’t really reverse PLESSY in BROWN. For one thing: PLESSY concerned transportation, and the psychological argument of BROWN applies only to the function of primary and secondary education. (The effect of segregation on the heart and mind of the train passenger has no effect on whether or not the train gets into the station on time.) But the author’s distinction between remedial and stigmatizing racial classifications doesn’t appear in BROWN either. There’s no reason not to read BROWN to say that all educational classifications based solely on race are equally stigmatizing or psychologically damaging.
BROWN aside, I’m undecided on whether or not a Court decision declaring all racial distinctions in the law unconstitutional would be unreasonable judicial activism.