I'm playing nice with the neighbors
John at Discriminations has one more Brown vs. Board of Education post, and it's a bit better than the last one:
I can't let all the "legacy of Brown" celebration/lamentation fade away without noting a point (which I've made several times in the past, such as here, here, and here) that none of them made: those who support racial preferences actually are following Plessy v. Ferguson, not Brown.
The meaning of Brown is that there can be no "separate but equal" because separation on the basis of race is inherently unequal, and hence that official classification by race is a violation of equal protection. The holding in Plessy, by contrast, was that the Constitution does not require colorblindness (as Justice John Marshall Harlan argued so eloquently in his dissent), and hence that racial discrimination can be reasonable and thus constitutional.
But still wrong.
John doesn't take into account the distinction between procedural law and substantive law. It's the common logical flaw in all attacks on plans that take race into account in any way.
Substantive law vs. procedural law: Substantive law creates, defines, and regulates legal rights and obligations. Procedural law defines the rules that are used to enforce substantive law.
An example of the difference that's less emotionally charged while remaining a decent parallel than the field of race relations is traffic law enforcement.
A maximum speed limit exists on any stretch of road…substantive law. And though I'm tempted to allow certain folks to thing the parallel is the rather simplistic speed limit = quota, it is that rate of progress one would achieve strictly through one's own efforts. Racism allows one to exceed the speed limit.
Now in the real world, if you have someone exceeding the speed limit, how can those responsible for enforcing the limit…procedural law…do so?
They must exceed the speed limit to catch the speeder.
This logical flaw in the argument is also the legislative tactic that has allowed the dismantling of a lot of legal progress. Gut the procedural law for financially expedient (i.e., engineered via supply side tactics) reasons and you can leave alone, or even strengthen, the substantive law and still lose moral ground.
