Discriminating Liberals

By CLINT BOLICK

[w] ASHINGTON

-- This month marks the 100th anniversary of one of the most shameful episodes in American jurisprudence: the Supreme Court's decision on May 18, 1896, in Plessy v. Ferguson, which upheld the pernicious "separate but equal" doctrine.

But far from fading quietly into history, Plessy's core premise -- that the Government may classify people on the basis of race -- remains alive and well, nourished by the same liberal advocates who once vowed its demise.

The case of Homer Adolph Plessy was one of the earliest "public interest" lawsuits aimed at producing a favorable constitutional precedent. The litigation was financed by private railroad companies chafing under laws requiring them to segregate passengers according to race.

Plessy was considered an ideal test plaintiff because, although light-complexioned and only one-eighth black, under Louisiana's race statute he was deemed black and consigned to railroad cars for "coloreds." When he purchased a first-class ticket and refused to sit in the segregated car, Plessy was arrested.

In his argument, Plessy cited the 14th Amendment, which restrains state governments from violating civil rights. The results were disastrous. By 8 to 1, the Supreme Court held that the 14th Amendment was not "intended to abolish distinctions based upon color" that were "reasonable," in the words of Justice Henry B. Brown. Separation of the races was natural and did not imply inferiority, the majority concluded.

The sole dissenter, Justice John M. Harlan, disagreed vehemently.

"In respect of civil rights," he wrote, the Constitution does not "permit any public authority to know the race of those entitled to be protected in the enjoyment" of those rights. H arlan expounded the essential principle of equality under law: "There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. . . . The law regards man as man, and takes no account of his surroundings or his color when his civil rights as guaranteed by the supreme law of the land are involved."

Harlan's eloquent words provided the rallying cry for the civil rights movement during its 58-year quest to overturn Plessy.

The National Association for the Advancement of Colored People, founded in 1909, committed itself to the "abolition of color-hyphenation and the substitution of straight Americanism."

In Brown v. the Board of Education, Thurgood Marshall argued before the Supreme Court that the Constitution denies "any power to make any racial classification in any governmental field."

It was "the dissenting opinion of Justice Harlan, rather than the majority opinion in Plessy v. Ferguson," Marshall declared, "that is in keeping with the scope and meaning of the 14th Amendment. That the Constitution is colorblind is our dedicated belief."

In its 1954 decision, the Court struck down the concept of "separate but equal." But the ruling failed to fully embrace Harlan's dissent or to affirm, once and for all, that the Constitution is color-blind.

Over the next 10 years, with the passage of civil rights laws, many who once championed race neutrality, including Marshall, began to harbor hopes that the Government's power to discriminate could be harnessed for beneficent purposes.

The metamorphosis was complete by 1965.

President Lyndon B. Johnson announced in a speech at Howard University: "We seek not just . . . equality as a right and a theory, but equality as a fact and equality as a result." Thus commenced the modern era of official discrimination, characterized at various times as "remediation" "affirmative action" or "diversity."

So completely did liberals jettison their prior insistence on color-blind policies that in his 1979 opinion in Regents of the University of California v. Bakke, Justice Marshall derided Harlan's discourse, remarking that "we must remember . . . that the principle that the 'Constitution is color-blind' appeared only in the opinion of the lone dissenter."

Liberals abandoned their belief in equality of opportunity, embracing instead equal results and imposing a stifling race-conscious orthodoxy. "The goal of parity between the races," decreed John E. Jacob in 1985, then head of the National Urban League, "is the one constant that must be shared by anyone who presumes to hold a leadership position in the black community."

A century after Plessy, the Government still classifies Americans by race and on that basis determines in many instances where they can attend school, which Congressional district they are assigned or for which contracts or jobs or scholarships they are eligible to compete.

Real-world examples are almost as common and perverse as in Plessy's day.

Last year, in Montgomery County, Md., two half-Asian, half-Caucasian girls were denied admission to a French-immersion program at Maryvale Elementary because too few Asians attended their current school. Moving these two students, officials argued, would further isolate the remaining Asian children. Officials were unpersuaded by the argument that the move would increase the tiny Asian population at Maryvale.

In Yonkers, N.Y., black children are bused miles away from their homes and neighborhood schools in order to preserve racial balance.

Minnesota and Arkansas explicitly discriminate against nonblack families who wish to adopt black children. Many other states discriminate informally. The result of such restrictions: Nationally, nearly 50 percent of black children wait more than four years for adoption, compared with only 17 percent of white children.

Liberals once staked their moral claim on the universality of civil rights.

No longer. They have embraced race consciousness with fervor. Last year, after the University of California Regents voted to end affirmative action in admissions and hiring, the Rev. Jesse Jackson said rather illogically, "To ignore race and gender is racist and sexist."

In this way, modern liberals perpetuate the Plessy decision by replacing the notion of "reasonable" racial classifications with the concept of "benign" discrimination. America's tortured history provides abundant testimony that racial classifications are never reasonable or benign.

They invariably divide and injure every American, white and black, male and female.

As Justice Harlan recognized, no middle ground exists.

The Government will either have the power to classify and discriminate or it won't.

"There is no caste here," Justice Harlan wrote.

His noble aspiration remains as vibrant today as it was 100 years ago, and his prescription for a color-blind Constitution more urgent than ever.

Clint Bolick is litigation director at the Institute for Justice, a public interest law firm, and author of ``The Affirmative Action Fraud.''