- The Washington Times - Tuesday, July 3, 2007

From its inception, the signature creed of the United States has been the treatment of persons based on character, industry and achievement irrespective of skin color. The United States Supreme Court honored that creed in Parents Involved in Community Schools v. Seattle School District No. 1 (June 28, 2007) by invalidating elementary and secondary school assignments pivoting on race in both Seattle, Wash., and Louisville, Ky.

In a narrow 5-4 ruling, the court upheld the thrilling protest of Justice John Marshall Harlan to the odious separate-but-equal doctrine of Plessy v. Ferguson (1896): “Our Constitution is colorblind, and neither knows or tolerates classes among citizens.”

But it was not always that way. The original Constitution sanctioned slavery, an evil Thomas Jefferson worried would beget harrowing retribution. In Dred Scott v. Sanford (1857), the Supreme Court declared blacks “had no rights which the white man was bound to respect.” And then came the war; the surrender of Robert E. Lee to Ulysses S. Grant at Appomattox; and, the ratification of the Civil War Amendments calculated to purge the nation of race-based thinking. The 13th, 14th, and 15th Amendments prohibited slavery and government sponsored racial discrimination.

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The grand promise of the Civil War Amendments was cruelly compromised during eight decades of Jim Crow following Reconstruction. Blacks were chronically lynched, assaulted, disfranchised, ostracized or otherwise oppressed by the dominant white race. The Supreme Court generally endorsed the prevailing white bigotry in cases like Plessy.

It belatedly recognized its grievous error in Brown v. Board of Education (1954), which put a dagger in racial distinctions. Brown held that intentionally segregated schools denied black children of equal educational opportunities by tacitly denoting the black race as inferior.

The chief vice was not unequal facilities, but the encouragement of racial divisions and race-based stereotyping that had chronically fueled race riots or strife from Tulsa, Okla., to Cairo, Ill., to Atlanta, Ga. Thus, the black plaintiffs in Brown urged: “[T]he 14th Amendment prevents states from according differential treatment to American children on the basis of their color or race… 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 14th Amendment to use race as a factor in affording equal educational opportunities among its citizens.”

In Martin v. Anderson (1964), the court held that ballot designations of candidates on the basis of race were unconstitutional because they promoted racial bloc voting. The court further elaborated in Rice v. Cayetano (2000) that “{bullet}ne of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.”

The racial discrimination at issue in Parents Involved was admittedly not a reprise of Brown. The latter addressed racially discriminatory school assignments as one component of white supremacy. Its squalid purpose was to brand blacks as subservient and to engender an atmosphere hospitable to private acts of discrimination or violence.

Parents Involved, in contrast, involved discrimination against whites, the still dominant race both politically and economically capable of defending itself. Moreover, the race-based assignment schemes did not stigmatize whites as inferior. Indeed, they were calculated to mitigate monochromatic schools and presumptively to upgrade the learning experiences of blacks by their association with white classmates. The white students who were denied their school preferences because of race in Parents Involved did not remotely suffer the psychological trauma or demoralization at work in Brown.

The 14th Amendment, however, prohibits both small and colossal violations. It protects individual, not group rights. And it regards race-based distinctions as inherently mischievous because it teaches the people by example to think and act along racial fault lines. Separate-but-equal water fountains would be unconstitutional no matter how equal the drinking experiences. So Chief Justice John Roberts sermonized in Parents Involved: “The way to stop discrimination on the basis of race is to stop discrimination on the basis of race.”

Inestimable national unity is gained through the constitutional doctrine that there is only one race in the United States. It is American. Renewed experiments with racial distinctions like those implicated in Parents Involved would fracture that unity.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

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