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.