The latest edition of Hillsdale College’s Imprimis features Cal State-Bernardino political science professor Edward Erler‘s discussion of the potential impact of the U.S. Supreme Court’s pending decision in Fisher v. Texas, a case involving a race-based university admissions process.

Curiously enough, the Court’s failure to deal with the issue of racial classifications can be traced to the 1954 case of Brown v. Board of Education, not for its result—segregated schools did violate the Equal Protection Clause—but for its failure to declare that the Constitution was colorblind. In 1896, the Supreme Court had rendered its infamous “separate but equal” decision in Plessy v. Ferguson: As long as races were treated equally, the Plessy majority had said, segregation did not offend the Equal Protection Clause, because a mere separation of the races did not imply “a badge of inferiority.” Justice Harlan, in a lone dissent, wrote, “Our Constitution is colorblind, and neither knows nor tolerates classes among citizens.” Justice Harlan would have disallowed racial segregation as a matter of constitutional law. In the Brown case, however, Chief Justice Warren was disinclined to rely on the Constitution, writing that “we cannot turn the clock back to 1868” when the Fourteenth Amendment was adopted. Its “most avid proponents,” Warren stated, “undoubtedly intended . . . to remove all legal distinctions” among citizens, but its opponents “were antagonistic to both the letter and the spirit [of the Amendment] . . . and wished . . . the most limited effect. What others in Congress and the state legislatures had in mind,” he continued, “cannot be determined with any degree of certainty.” Why the opponents of the Fourteenth Amendment enter the calculus here is a mystery. After all, they lost! But in Warren’s irrefragable logic, the fact that the opponents had another vision seems to cast doubt on any attempt to rely on the Constitution.

Rather, Warren decided that a more reliable basis for a decision was modern social science. Whereas Plessy had concluded that separate is not inherently unequal, by 1954 experimental psychology indicated that, at least in the context of grammar school education, a separation of the races creates a “feeling of inferiority . . . that may affect [the] hearts and minds [of school children] in a way unlikely to be undone.” “Whatever may have been the extent of psychological knowledge at the time of Plessy,” Warren concluded, “this finding is amply supported by modern authority.” So the difference between the holdings in Plessy and in Brown was not a difference in constitutional construction, but a matter of developments in the science of psychology. Under the tutelage of Chief Justice Warren, modern psychology had replaced the Constitution for purposes of equal protection analysis. As a result, only those racial classifications that create “feelings of inferiority” are proscribed by the Constitution. This left open the question of whether racial classifications that are designed to benefit, rather than harm, a racial class violate the Equal Protection Clause.

The Supreme Court only needs to take one short step to do the job that Brown v. Board of Education failed to do. It should declare that the Equal Protection Clause of the Fourteenth Amendment commands a colorblind Constitution which neither knows nor tolerates classes among citizens. Fisher v. Texas should be the case where the Court completes the job.