Looking for Justice Marshall

A recent survey conducted by the Kellogg Foundation, due out today, reveals startling conclusions about the available opportunities for children of color in their communities.  In general, these children have fewer opportunities to gain access to good health care and education, and their communities are less safe and fail to provide them with adequate support.  According to Gail Christopher, a Kellogg Foundation vice president, "you have major, major pockets of poverty in this country, many of which are tied to race."

These findings remind me of the work of Robert Coles, Jonathan Kozol and Alex Kotlowitz, among others.  These are not new findings.  Coles and Kozol, for example, have documented the destabilizing effects of race and poverty on the children of this country for well over forty years.   Yet we still find ourselves in the same place.
When I read these accounts, I cannot help but think of our equal protection jurisprudence.  Somehow, whatever we as a nation decide to do to solve these structural inequalities must not involve the explicit use of race.  We may not, for example, reserve seats in our incoming freshman classes for minority children, unless we have a compelling reason to do so.  That would be unfair to white children, and this is one of those rare settings where unfairness is readily equated with unconstitutionality.  What we can do, instead, is institute a ten-percent plan, which ensures that the top ten percent of of the graduates in all high schools across a state are guaranteed admission to the college of their choice.

This is pathetic at best.

I mean all of it. that we care so little about our poor children of all races, and how the Court, under the guise of equal protection, influences the choices available.  If this is what made Justice Marshall an activist judge, his concern for those at the bottom of the well, then it is clear that we need a few more activist judges like him.