Our Bench Memo friend, Ed Whelan, explains that the clear intent of BROWN was not to integrate, but desegregate, to command the assignment of students to schools on a nonracial, nondiscriminatory basis. Breyer is wrong to say it’s obvious that the precedent could be used to justify a racially conscious educational remedy to somehow compensate for patterns of residential segregation. So, contrary to the Court’s unanimous ruling in SWANN, "Court ordered busing" is clearly unconstitutional. It’s not as clear that the voluntary use of race by legislative bodies as one factor many in some sort of narrowly tailored remedy is; truth to tell, BROWN can’t be cited as settling that issue authoritatively one way or the other. The psychotherapeutic argument of BROWN is mushy and has been abused in many ways, but arguably all racially based remedies stigmatize minorities, unless the remedial character for particular, identifiable individuals is very transparent. The real issue on our nation’s deliberative agenda is this: Is the educational objective of diversity--which the Court typically justifies according to the First, not Fourteenth, Amendment--really weighty enough to justify compromising the elementary individualistic principle of nondiscrimination on the basis of race? It is, in truth, not a compelling state interest and does not even pretend to have a remedial effect for particular individuals who have suffered discrimination.
It is revealing that the Chief was compelled to rely on the plaintiff's brief rather than the text of Brown to make his point. The text of Brown clearly indicates that not just desegregation but actual integration is necessary to provide equal educational opportunity for blacks and to remedy feelings of inferiority. The public schools, as the emergent place where equality of opportunity is guaranteed, is precisely the place for this new socialization. The Brown Court would indeed have been wiser to follow Peter's elegant formulation that "all racially based remedies stigmatize minorities, unless the remedial character for particular, identifiable individuals is very transparent." But it did not. Of course, where the NYT is clearly wrong and "reckless" is in its statement that the Court now has "ordered the public schools to become more segregated." It is possible that Roberts and Thomas and Whelan and Lawler and maybe Jeffrey can successfully interpret Brown, the REAL BROWN, in light of the 14th Amendment and common sense, but the text of Brown makes this a task. (Note again Thomas's lengthy attention to the inconclusiveness of social science research in his concurrence.)
Sorry, one more take. Another thing that should be said concerning the new NLT/NRO "benign" interpretation of Brown is to note the political context. Brown was preeminently an attack upon the South. A soft Brown that would not insist on integration would have failed perhaps in bringing to an end the final Reconstruction of the South. The South had to be punished, again. In the event, violence with regard to school busing occurred in the less mannered North (if memory serves) due to the break up of the old ethnic communities (so much for the old diversity). My point is that Brown and its progeny cannot be understood discretely. It was all part of a piece, political and social and legal. I do not see why it cannot be admitted that the Roberts Court is correcting or refining Brown without "overturning" it, which of course is out of the question due to its sancrosanct status.