That’s the thoughtful if partly misguided conclusion of Juan Williams. Williams is wrong that BROWN imposed a race-conscious remedy. It actually only demanded that a kid not be assigned to a school based on his race. But it is true that a unanimous court in SWANN (1971) ruled that BROWN actually mandated maxing out on real integration and so Court-ordered busing. All other educational considerations should give way to the goal of racial balance. It is disquieting that a proper understanding of BROWN eluded every member on the Court, and one reason for that is that BROWN just isn’t a well reasoned argument (although it was a perfectly correct decision). Now, Juan contends, racial malice just can’t be blamed for all our bad schools and the real scandal of very unequal educational opportunity. Our new goal should be much less about integration and much more about a good education for all our children. Empty, elitist talk about diversity should give way to a serious examination of what our devotion to equality really demands of us.
But Peter, Brown inherently mandated coercive integration by concluding that black kids' self-esteem was implicated in even de facto segregation. Thus they had to go to school with whites to get an equal education. And that's why Plessy wasn't really overturned legally. Though he doesn't make the point clearly, I think Juan is right here. He and Clarence agreed on this way back in the early 80's. I think the case yesterday is then a kind of turning point. The Court is modifying the reasoning of Brown without making it explicit, as you say in part because Brown was so poorly argued. Of course, there's always the possibility in future of a "compelling interest."
I just read Mona Charen's article posted at NRO, wherein she discusses Justice Thomas's concurrence in the schools case (which I have not yet read). Clarence makes the argument I pointed to above, as one would expect. By the way, I did read Thomas's concurrence in Morse v. Frederick, and it is great also, as Julie I think mentions below.
A good column by Juan Williams. Instead of living in the past like Breyer, the other SCOTUS judicial supremacists, the NAACP and the Democratic party, he's looking at current realities and what's best for kids.
Doesn't Brown actually say that it's the legal separation solely by race affects the heart and mind etc.? It just wasn't understood at the time as reversing Plessy by saying that legal separation could never be equal. The initial interpretation of Brown everywhere was neighborhood schools, there was no thought of busing or anything like that.The change in the view of
Brown came in Greene v. New Kent County etc. in response to a way of taking race out of the law while maintaining virtually perfect actual segregation. Brown clearly is concerned with de jure segregation, the de facto concerns came later, and certainly it's true enough that its mushy psycho argument could be spun to fit them.
Well, I see your point, though I think law in general got trumped by social science in the nerve of the Brown argument. I read Clarence's opinion this afternoon and the whole vast middle of it is a throughgoing refutation of the social science arguments about the psychological benefits to blacks of integrated education remade by Breyer. He also angers Breyer I'm sure by pointing out that many of his arguments were similar to those made by the segregations pre-Brown. It is likely that the Brown Court did not foresee the social engineering schemes nor the diversity regime that their argument would invite and encourage. Still, it took all this time to put Brown in its own "Locke Box," tenuously.
One more thought. Thomas's concurrences in this and in the Bong Hits Case are of a piece in pointing the right way to refounding American education. Also see his concurrence in Zelman.