|
"Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the Negro group...Any language in contrary to this finding is rejected. We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal." |
|
| —Earl Warren, Chief Justice of the U.S. Supreme Court |
Justice Clarence Thomas’s concurring opinion in Louisiana v. Callais opens the door to an argument that even Brown v. Board of Education cannot survive his colorblind constitutionalism. In ‘Callais’, Thomas declared that Section 2 of the Voting Rights Act is “repugnant to any nation that strives for the ideal of a color-blind Constitution” because it effectively awards racial groups “an entitlement to roughly proportional representation” and requires states to sort citizens by race. If this logic is applied consistently—and Thomas has spent three decades insisting it must be—then ‘Brown’ itself collapses under the weight of the same reasoning.
Thomas’s argument in ‘Callais’ rests on an absolutist reading of the Fourteenth Amendment: government may never classify citizens by race. Period. He cites Justice Harlan’s dissent in Plessy v. Ferguson (1896) as the true lodestar: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Under this framework, any state action that distributes benefits or burdens based on race is “repugnant” to the Constitution, regardless of whether the purpose is segregation or integration, discrimination or remedy.
But here is the tension Thomas has never squarely confronted: ‘Brown’ did not merely strike down de jure segregation. It inaugurated decades of race-conscious remedies—mandatory busing, racial balancing formulas, school assignment plans explicitly engineered to achieve particular racial ratios, and federal oversight of district lines drawn explicitly to produce racially mixed student bodies. Those remedies, which the Court later endorsed in cases like Swann v. Charlotte-Mecklenburg Board of Education, required the very thing Thomas condemns in ‘Callais’: the government treating citizens as members of racial groups rather than as individuals.
Thomas’s ‘Callais’ concurrence explicitly condemns the idea that “racial groups” possess any constitutional “entitlement” based on their demographic share. Yet the most aggressive readings of ‘Brown’—the ones that justified court-ordered busing and racial quotas in admissions—do precisely that. They assume that black children are entitled to a certain racial composition in their classrooms as a remedy for past discrimination. Under Thomas’s reasoning, that is no more legitimate than Louisiana’s assumption in ‘Callais’ that minority voters are entitled to a second majority-minority district.
Under Attorney General Eric Holder, the Department of Justice aggressively expanded “disparate impact” liability across housing, lending, and policing—a theory that treats neutral, race-blind policies as unlawful whenever they produce statistical imbalances among racial groups. From a colorblind constitutional perspective, this framework is structurally unconstitutional because it punishes state and private actors for failing to distribute outcomes by race, effectively mandating that government and regulated entities engage in race-conscious decision-making to avoid liability. Where the Equal Protection Clause, as interpreted in Washington v. Davis, demands proof of discriminatory purpose before constitutional fault attaches, disparate impact liability imposes constitutional penalties based solely on demographic results—coercing schools, cities, and businesses to adopt racial quotas, adjust standards, or abandon neutral criteria in order to engineer proportionality. By compelling actors to consider race as a proxy for compliance, Holder’s disparate impact regime transforms the Fourteenth Amendment’s guarantee of individual equality into a mandate for group-based equity, rendering the Constitution’s promise of colorblind justice little more than a contingent calculations game.
The logical extension of Thomas’s ‘Callais’ reasoning is that if the Constitution is colorblind, then courts may not order desegregation by race any more than they may order segregation by race. A judge who adjusts school boundaries to achieve racial balance is no more “colorblind” than a school board that maintains Whites-only academies. Both are engaging in racial sorting. Thomas nods at this conclusion in his concurrences in Parents Involved in Community Schools in Seattle, where he argued that ‘Brown’ was about ending government discrimination, not about achieving racial balance. But ‘Callais’ sharpens the point into an axiom: race can never be a factor. If so, then the remedial machinery ‘Brown’ spawned was unconstitutional from the start.
Of course, Thomas himself would likely draw a distinction between striking down a race-based law and ordering a race-based remedy. But that distinction evaporates under the logic of ‘Callais’. A remedy that assigns children to schools based on skin color to correct a prior racial classification is still a racial classification. The Constitution Thomas describes knows no exceptions—not for “benign” discrimination, not for remedial purposes, and not for desegregation.
Therefore, if one takes seriously Thomas’s declaration in ‘Callais’ that ours is a “color-blind Constitution” that cannot tolerate racial sorting of any kind, Brown v. Board of Education as it was actually implemented—and perhaps even the principle that courts may use race-conscious means to dismantle segregation—cannot stand. The same Constitution that forbids racial gerrymandering under the VRA forbids racial assignments under desegregation decrees. The honest conclusion of Thomas’s reasoning is not that ‘Brown’ was rightfully colorblind, but that much of what ‘Brown’ was interpreted to require was, by his lights, ‘Brown’s constitutional undoing. Look for it to make headlines ahead of 2028’s Presidential election.
Editorial comments expressed in this column are the sole opinion of the writer
