In a separate opinion, Justice Anthony M. Kennedy, always eager to elaborate the obvious, or at least complicate it, explained that the goal of racial balance might still be sought by various means - drawing attendance zones, for example, or tracking students by race to see if all are served equally. But he drew the line at discriminating against any individual student because of race. Fair enough, and constitutional enough in hazy theory. (Justice Kennedy is no Sandra Day O'Connor, but he does what he can to blur the law.)
The really striking opinion in this case was delivered by an associate justice, Clarence Thomas. His concurrence may prove as memorable as John Marshall Harlan's great dissent in Plessy v. Ferguson, in which the ideal of a color-blind Constitution was first pronounced. His contemporary restatement of Justice Harlan's thesis rang with the same moral authority, but Clarence Thomas' words were reinforced by personal experience. Maybe that was the source of their moving eloquence.
In response to the argument that racial discrimination is now permissible because it's for a good cause - racial balance - Justice Thomas pointed out that the Constitution does not waive the rights of the individual because an elite has decided its motives are pure. He noted that advocates of racial preferences in the last century also considered their separate but equally exalted aim (social stability) worth the ignoble means.
Neither good intentions nor stirring shibboleths (Diversity! States' Rights!) can in the end justify denying American citizens, even a small minority of them, the rights guaranteed by the Constitution of the United States. Changing the color of the race involved does not change the principle at stake. To quote Justice Thomas: "What was wrong in 1954 cannot be right today."
After half a century of various detours and delays, the original spirit of Brown v. Board of Education shines again, so brightly that those who consider their own concept of the ideal society the highest consideration, may be blinded by the light. Shielding their eyes, they try to take refuge in various and complicated sophistries that are a credit to their ingenuity - but not to their consistency. What was wrong in 1954 cannot be right today. That brightness, a rare sighting after all these dimmed years, has a name: Reason.
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