As the constitution color-blind? "… Class remedies, such as affirmative action and racial set-asides, assume that all members of the 'monolithic white majority' are guilty of racial class injuries and all members of 'discrete and insular' minorities are victims of such injuries."

USA Today (Society for the Advancement of Education), July, 2004 by Edward J. Erler

Warren maintained that to segregate school children "solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely to be undone.... Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority."

In Plessy, the majority had argued that a legal separation of the races does not imply a relationship of superior and inferior that any "feelings of inferiority" generated by the separation merely were subjective. Any "assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority," the majority wrote, "is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it."

For its part, the Brown decision based its finding on the same ground of Interpretation as Plessy. It differed in its interpretation of facts, not in its principle of constitutional construction. According to the Brown decision, Plessy only was in error insofar as it was inconsistent with the authority of modern psychology, which tells us that a "feeling of inferiority" is a fact of inferiority from the point of view of equal protection analysis. Thus, the authority of modern psychology replaced the authority of the Constitution.

Harlan's justly celebrated dissent in Plessy never was mentioned by Warren, who seems to have gone nut of his way to avoid a ruling that the Constitution is color-blind. The Brown decision stands for the proposition that racial classifications of fend the Constitution only when they create feelings of inferiority Understanding this, defenders of affirmative action and other forms of racial preference today argue that racial classifications that are designed to benefit "discrete and insular" minorities, rather than harm them, do not create "feelings of inferiority" or "stigmatize" the benefited races. Thus did Brown invigorate the "separate but equal" doctrine of Plessy".

The continued vitality of "separate but equal" was made abundantly clear in Justice Harry Blackmun's opinion in the 1978 affirmative action case of Regents v. Bakke: "I suspect that it would be impossible to arrange an affirmative action program in a racially neutral way and have it successful.... In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently." Blackmun could well have said "separately" instead of "differently" without changing his meaning. Although not generally recognized by the legal and political elites of the time--or those of today--it was a scandal to see this once justly decried doctrine making its way back to respectability.

The Civil Rights Act of 1964, in the tradition of Harlan's dissent, was a good expression of what the 14th Amendment meant by "equal protection of the laws." It prohibited discrimination against individuals on the basis of race, ethnicity, and religion. It embodied equal opportunity as its principle of distributive justice--the equal protection of equal fights. It required that natural talents and abilities, not artificial distinctions based on race or ethnicity, should be the measure of success. It insisted that fights belong to individuals, not racial classes or ethnic groups. The role of law as the rule of reason--demanded no less. However, these noble aspirations of the Civil Rights Act almost immediately were deemed inadequate. In June. 1965. Pres. Lyndon Johnson set the tone for a new vision of civil rights. "Freedom is not enough," he proclaimed. "It is not enough just to open the gates of opportunity.... We seek ... not just equality as a right and a theory but equality as a fact and equality as a result.... To this end equal opportunity is essential, but not enough."