Page:Students for Fair Admissions v. President and Fellows of Harvard College.pdf/153

14 be admitted “ ‘on a racially nondiscriminatory basis.’ ” It distorts the dissent in Plessy to advance a colorblindness theory. ; see also (, concurring) (“[T]oday’s decision wakes the echoes of Justice John Marshall Harlan [in Plessy]”);  (, concurring) (same). The Court also invokes the Brown litigators, relying on what the Brown “plaintiffs had argued.” ;, (opinion of ).

If there was a Member of this Court who understood the Brown litigation, it was Justice Thurgood Marshall, who “led the litigation campaign” to dismantle segregation as a civil rights lawyer and “rejected the hollow, race-ignorant conception of equal protection” endorsed by the Court’s ruling today. Brief for NAACP Legal Defense and Educational Fund, Inc., et al. as Amici Curiae 9. Justice Marshall joined the Bakke plurality and “applaud[ed] the judgment of the Court that a university may consider race in its admissions process.” 438 U. S., at 400. In fact, Justice Marshall’s view was that Bakke’s holding should have been even more protective of race-conscious college admissions programs in light of the remedial purpose of the Fourteenth Amendment and the legacy of racial inequality in our society. See id., at 396–402 (arguing that “a class-based remedy” should be constitutionally permissible in light of the hundreds of “years of class-based discrimination against [Black Americans]Negroes [sic]”). The Court’s recharacterization of Brown is nothing but revisionist history and an affront to the legendary life of Justice Marshall, a great jurist who was a champion of true equal opportunity, not rhetorical flourishes about colorblindness.

Two decades after Brown, in Bakke, a plurality of the Court held that “the attainment of a diverse student body” is a “compelling” and “constitutionally permissible goal for