Advancing Individual Rights
Consider the following two scenarios:
You walk in the schoolhouse door, seeking admission for your child. The Administrator meets you with a snarl: "We don’t take people of your race here. Get out."
You walk in the schoolhouse door, seeking admission for your child. The Administrator meets you with a smile: "I’m sorry. We already have too many people of your race here. Please go away."
Appreciate the difference?
To the Left, the first example – at least if the victim comes from a Politically Correct, certified minority; all bets are off if the victim is white or, often, Asian – represents an example of invidious discrimination and, hence, violates the Constitution. The second example represents merely an effort to achieve "diversity" and is, hence, ‘benign’ and permissible.
Notice, however, that from the perspective of the child, the identity of result; in each case, she finds herself on the curb, excluded from an educational opportunity for no better reason than the color of her skin.
The latter policy represents yet another example of the pernicious ideology of the identity-obsessed Left, which subordinates individual rights to group membership. If individual rights and opportunity must be sacrificed to achieve a "diverse" classroom, so be it. Such is a price that the Left is willing to make a (usually white) child pay.
As a matter of both constitutional law and policy, though, such is self evidence nonsense, as Chief Justice Roberts put it:
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
But the Left does not see "civil rights" as rights possessed by individuals, but, rather, rights possessed by groups. Treating children equally and fairly, as individuals, counts for little if, ultimately, the school fails to reflect the politically-correct racial mix. Individual rights must take a back seat to the perceived societal benefits flowing from "diversity".
As Justice Thomas so eloquently wrote, if discrimination against children – assigning them to schools based upon skin color – was wrong in 1954 when the Court decided Brown, it cannot be right today. The Constitution does not morph over time; it remains fixed, constant, knowable. As the lead counsel for plaintiffs in Brown stated:
"We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens. "
If that proposition of law was correct in 1954 – and it was – it remains unassailable today.
Interesting, isn’t it? The advocates of civil rights won that debate. They argued, with passion, that the Constitution forbids taking account of race and – although an academic debate exists over precisely how far the Framers of the 14th Amendment intended to go in banning race-conscious governmental policies – their absolutism prevailed.
Now, the entirely predictable and utterly hysterical editorial by The Times asserts that it’s considered ‘radical’,‘conservative’, and ‘right wing’ to accept precisely the argument advanced by plaintiffs in Brown.
But, actually, such hysteria is entirely consistent with the Left’s view of constitutional law. On occasion, I engage in friendly debate with Assemblywoman Linda Greenstein, who avers that the Constitution "lives and breathes", changing – by judicial fiat – when circumstances (read: the Left’s desired policy outcomes) require new, judicially mandated policy. Obviously, not even Brown – iconic thought it might be – is safe. The Left will not permit even Brown to stand in the way of a Politically Correct result. If a fair reading of Brown, and of the position asserted by plaintiffs therein, stands in the way of using race to advance "diversity", Brown must go. And the Left abandoned it with abandon.
Brown held, in no uncertain terms, that denying educational opportunity to a child based upon skin color violated the 14th Amendment. Curious, isn’t it, that the Left should consign Brown to the ash heap of history, all in the name of a "living, breathing" Constitution? Alas, the Left, in a stunning display of revisionism, now asserts that Brown – which asserted an individual right to be free of the consequences of official racial classification – can, somehow, justify creating an entirely new class of victims of senseless racial discrimination.
The "diversity" storm troopers champion the asserted benefits of their particular racial utopia every bit as fervently as did the segregationists of old, and they’re wrong – from a policy perspective – for precisely the same reasons. The racial composition of a particular entity makes precisely no (official) difference. The assertion, for instance, that Blacks can’t learn unless sitting next to whites is so patently insulting as to merit no response. (How do kids in Africa manage?) It’s of no more concern that the entire debating club is white than it is that the entire basketball team is black. Or vice versa. Provided that the kids are treated as individuals, the ethnicity of their classmates matters not one whit.
Groupthink runs squarely up against traditional liberal (and, here, I use that word with great respect) values. The civil rights advocates of old understood one thing perfectly: racial discrimination is NEVER "benign" and ALWAYS victimizes someone. The plurality, yesterday, took a giant step toward reaffirming the expressed view of the Brown plaintiffs, that government must NEVER take account of race. It did so not by changing the Constitution to serve "conservative" policy ends, but by reading the document and respecting precedent. It acted as a Court should act, respecting the Constitution as it exists, not as the Justices might wish it to be.
