That question matters more than ever as the Supreme Court weighs the future of affirmative action. Most observers expect a ruling that imposes colorblindness as a constitutional mandate. The plaintiffs in the two cases challenging affirmative action insist that the Supreme Court implicitly endorsed colorblindness in
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That question matters more than ever as the Supreme Court weighs the future of affirmative action. Most observers expect a ruling that imposes colorblindness as a constitutional mandate. The plaintiffs in the two cases challenging affirmative action insist that the Supreme Court implicitly endorsed colorblindness in Brown v. Board of Education. The argument involves what the veteran Supreme Court reporter Linda Greenhouse called a “double bank shot”: Brown repudiated the infamous 1898 opinion upholding racial segregation in Plessy v. Ferguson; therefore it must have embraced the dissenting opinion in Plessy, in which Justice John Marshall Harlan famously insisted that “our Constitution is color-blind.”
Like most double bank shots, this one misses the mark: Brown doesn’t endorse colorblindness, nor does it need to. The Brown court simply rejected segregation as inconsistent with the contemporary demands of equality: “[s]egregation … has a detrimental effect upon colored children … denoting the inferiority of the negro group. … Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected.” It is doubtful that colorblindness is even consistent with Brown, given that opinion’s emphasis on substantive equality: The Brown court cared, almost exclusively, about the scientific evidence that segregation injured Black children — not about the form that the injury took.
Colorblindness seems heroic and noble when contrasted to the Plessy majority’s embrace of what would become Jim Crow segregation. But colorblindness was no ringing endorsement of racial equality. Few of its proponents cite the entirety of Harlan’s dissent, or even the entire paragraph in which the term “color-blind” appears. It begins:
“The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time if it remains true to its great heritage…”
Harlan’s commitment to colorblindness was premised on the confidence that it was perfectly compatible with white supremacy. Today’s colorblindness is true to Justice Harlan’s promise.
In practice, it’s not so simple. For example, when considering what colorblindness would require in university admissions, Roberts asked Cameron T. Norris, the lawyer for Students for Fair Admissions, whether Harvard could consider an applicant’s experience with racial discrimination. Norris answered yes, as long as the university did not do so because of the applicant’s race. Justice Amy Coney Barrett worried that a distinction between race and an experience of racial discrimination was “slicing the salami pretty finely. …” She asked, “What about other types of racial experiences, such as pride in a racially specific culture or heritage?” Those, Norris said, are also “not off limits.” Later, Norris insisted that the Freedmen’s Bureau, established to assist emancipated slaves, was consistent with the colorblind interpretation of the 14th Amendment because it did not make a racial classification. Justice Brett M. Kavanaugh followed up by asking whether an admissions preference for the descendants of slaves should also be legally acceptable. Here Mr. Norris drew the line: Such a preference, he insisted, is a “proxy for race.”
The two laws that govern these disputes are the Equal Protection Clause of the 14th Amendment, passed as part of Reconstruction, and Title VI of the Civil Rights Act of 1964, which prohibits discrimination in programs that receive federal funding, part of what some call the Second Reconstruction. According to the advocates of colorblindness, these laws, enacted with the unambiguous purpose of remedying the legacy of slavery, prohibit considering the unique experiences faced by the descendants of slaves. The irony is almost good enough for a Stephen Colbert monologue. How did we get here?
In the analogous context of employment discrimination, affirmative action was, for a short period of time in the 1970s, seen as a logical extension of laws prohibiting race discrimination. Private companies doing business with the government have a legal duty to avoid “underutilization” of historically excluded minority groups, whether the problem resulted from their own past discrimination or because of widespread discrimination in the broader labor market, job-training opportunities, or K-12 education. Affirmative action was one way to correct a “manifest imbalance” in the work force. As was true of the Freedmen’s Bureau, this was a common-sense response to the evils of institutionalized racism.
Affirmative action was controversial because all efforts to desegregate the nation’s workplaces, neighborhoods, and schools were controversial. Many objected to what they considered “forced racial mixing” — the same refrain that had resonated since the era of massive resistance to the school desegregation required by Brown v. Board of Education. In the employment context, there was also the slightly less contemptible objection that desegregation would come at the expense of the groups that predominated in racially segregated workplaces. Here, resistance to desegregation was based not on atavistic aversion but self-interest.
The groups in question were, of course, white, but it would be too simplistic to describe them as superordinate in the contemporary American socioeconomic hierarchy. Many of the jobs where employment-discrimination laws had their greatest effect were dominated by specific ethnic groups who had themselves been targets of discriminatory animus. Shut out of more prestigious employment, people of Irish, Italian, and Polish descent found work in skilled trades, manufacturing, construction, law enforcement and firefighting. In many markets, they dominated certain job categories, smoothing the way for other members of their ethnic group and effectively — and often deliberately — excluding outsiders. This status quo was problematic, but it had a certain reciprocity: If Irish Americans dominated a police department, Italian Americans might control the fire department. But, of course, both groups could exclude late-comers such as African Americans.
In the 1970s, employment-discrimination laws were disrupting these ethnically exclusive networks. In an important sense, people of all races and ethnicities benefited when previously exclusive sectors of the economy were newly opened to them. But white people as a group lost ground as they had to compete with Black workers who had been relegated to the most menial and least remunerative jobs.
It added insult to injury that the outsiders pushing their way in with the backing of the federal courts were the most despised group in the nation. Racial conflict in Northern cities was, in this sense, a version of longstanding inter-ethnic competition, but on steroids. An ethnically homogenous labor union or a police or fire department would be resistant to anyone from outside the group. But race raised the stakes for both sides. Desegregation was a civil-rights issue. The prestige of the federal courts and the moral reputation of the nation was on the line. As a consequence, Black applicants could, occasionally, force open ethnically exclusive workplaces with court orders that required significant changes to long-established practices and objectively verifiable improvements.
Desegregation was also a threat, not only to economic opportunity but also to the hard-won racial status of white ethnic groups that had once been considered inferior to the still-dominant white Anglo-Saxon Protestant elite. The historian Noel Ignatiev argued that the Irish “became white” only in the early 20th century by using white racism to distinguish themselves from Black Americans, and one could tell a similar story about other ethnic groups that improved their social status through assimilation — which included a tacit embrace of racial hierarchy. Desegregation affected the schools, jobs, and neighborhoods of non-Anglo white Americans first and most dramatically, suggesting that they were still not entirely white in the eyes of the elite judges, lawyers, and federal bureaucrats who would force them to work, live, and attend public schools alongside Black people.
This type of ethnic/racial conflict has been central to some of the more notable disputes surrounding civil rights. For example, in the 2009 case Ricci v. deStefano, the Supreme Court adjudicated a dispute involving a decision by the City of New Haven, Conn., to revisit promotion criteria that had screened out all of the Black applicants for promotion in the city’s fire department. The city insisted that established civil-rights law, which prohibits the use of employment criteria that have an unjustified racial impact, required it to revise the promotion process. White firefighters who would have been promoted under the abandoned criteria sued the city for racial discrimination and Justice Anthony M. Kennedy wrote a majority opinion that vindicated their claim. If the successful applicants had not been white, he reasoned, the city would have proceeded with the promotions under the old criteria; therefore the decision to revise the process was racially discriminatory. The opinion put civil-rights law at odds with itself: On the one hand, the law required the city to avoid employment practices with an unjustified racial impact; on the other, according to Kennedy’s opinion, it required it to ignore the racial impact of its employment practices.
Ricci v. deStefano was a textbook example of colorblindness in practice. The law forbade considering race, even when doing so was the only way to stop racial discrimination. Ricci was also an example of the kind of inter-racial/ethnic conflict that shaped civil-rights law and inspired the emergence of the colorblindness idea. The New Haven Fire Department was sued for discriminating against Black applicants in the 1970s and forced to reform its exclusionary practices. This was just as the demographics of the area were changing. White residents were moving to the surrounding suburbs in a pattern of white flight typical of the era. Even as New Haven became a heavily Black city, the senior positions in its fire department remained almost exclusively white. Black New Haven residents resented this. Some described nonresident city employees as “living off of New Haven without living in New Haven.” Meanwhile, white firefighters resented losing their dominance in the department because of what they considered overly aggressive enforcement of civil-rights laws.
Justice Samuel A. Alito Jr. wrote a concurrence in Ricci, which emphasizes the role of political pressure from Black community leaders but neglects the department’s long history of discrimination. It’s commonplace to assume that racial experience shapes the judicial philosophy of Black jurists such as Thurgood Marshall and Clarence Thomas; here, the influence of the white ethnic experience is evident in the perspective of Alito. He empathizes with Frank Ricci, not just as a white victim of “reverse discrimination,” but also as a striving Italian-American protecting his hard-won gains from craven white liberal elites cowed by racial mau-mauing.
The least chartable interpretation of the Supreme Court’s turn to colorblindness is that it, like Justice Harlan’s colorblindness, reflects racial chauvinism and preserves white supremacy. It’s also plausible that colorblindness simply reflects an ideologically conservative preference for the status quo: The court takes the side of incumbent groups at the expense of those still struggling for a place at the table.
A more charitable view is that colorblindness is an attempt to manage inter-ethnic conflict, premised on the idea that race is a type of ethnicity. The idea that race is no different than white ethnicity may seem perverse today, with America’s racial divide continuing to be an intractable feature of social organization after 50 years of civil-rights enforcement. But, in the 1970s, even in the aftermath of the long hot summers that consumed Watts and Camden in chaos and fire, a naïve optimism about racial justice was commonplace. Racial divisions, the thinking went, were a product of Jim Crow segregation in the South and, to a lesser extent, overt discrimination in the rest of the country. Civil-rights laws had eliminated or would eliminate these obstacles and hence it was only a matter of time until African Americans would join Irish Americans and Italian Americans in assimilating to the prosperous American mainstream.
The most influential proponent of this view was the Harvard sociologist Nathan Glazer. Writing with Daniel Patrick Moynihan in 1963, Glazer predicted in Beyond the Melting Pot: The Negroes, Puerto Ricans, Jews, Italians, and Irish of New York City that racial hostility and even residential segregation would recede into history as Black Americans, freed from the shackles of Jim Crow and overt discrimination, caught up with other ethnic groups. In the 1980s, Glazer opposed affirmative action because, in his view, it mandated not equality of opportunity but equality of result. But his opposition was rooted in his belief that racial difference was a type of ethnic difference that could be overcome without such affirmative measures. The Irish, Italians, and Jews (Glazer was Jewish and had risen from humble origins to the pinnacle of American intellectual life) had overcome hostility and prejudice to succeed and prosper without preferential treatment. So would the Puerto Ricans and the Negroes.
The misconception that the United States is a nation of minorities, each equally vulnerable to unfair prejudice, is the reason affirmative action requires an extraordinary justification.
When Lewis F. Powell Jr. wrote his influential opinion in Regents of the University of California v. Bakke, he adopted, almost verbatim, Glazer’s view of race relations. According to Powell, the 14th Amendment, despite its origins in Reconstruction, could not reflect “the struggle for equality of one racial minority [Black people]” because in the intervening years “the United States had become a Nation of minorities. Each had to struggle — and to some extent struggles still — to overcome the prejudices not of a monolithic majority but of a ‘majority’ composed of various minority groups. … As the Nation filled with the stock of many lands, the reach of the [equal protection] Clause was gradually extended to all ethnic groups. …” Powell insisted that the 14th Amendment could not distinguish among America’s many minorities and recognize the distinctiveness of the Black experience. Nor could it allow preferential treatment of all disadvantaged minority groups, for then — “the only ‘majority’ left would be a new minority of white Anglo-Saxon Protestants.”
Reading this, one might imagine that overt anti-Black discrimination ended with Reconstruction and America had become a nation of equally situated minorities in the interim. But of course, this was far from true. In fact, a mere 14 years before Powell wrote his Bakke opinion, racial discrimination in employment, housing, and the provision of basic services had been lawful and widespread in much of the United States. Powell’s home state of Virginia prohibited interracial marriage less than 10 years before the court heard Bakke and had been the crucible of the infamous “massive resistance” to school desegregation less than 20 years before. Yet Powell worried that white Anglo-Saxon Protestants were a vulnerable minority that affirmative action would reduce to second-class citizens. Today, this remarkable inversion goes unnoticed as lawyers parse the details of the diversity rationale that Powell grudgingly endorsed as an acceptable rationale for affirmative action. But the misconception that the United States is a nation of minorities, each equally vulnerable to unfair prejudice, is the reason affirmative action requires an extraordinary justification.
The conceit of a nation of minorities continued to animate the court’s equal-protection jurisprudence. The Yale Law School professor Reva Siegel described a variant of this idea as an “anti-balkanization principle” in her interpretation of Justice Kennedy’s tortured opinions in Ricci and in the 2007 case Parents Involved in Community Schools v. Seattle School District No. 1, which invalidated the desegregation policies of two school districts because they involved race-based admission criteria for over-subscribed magnet schools. According to Siegel, the anti-balkanization principle is different than the strict color-blindness of conservatives: it typically has allowed for affirmative action in strictly limited circumstances but limits it to prevent racial resentment. The difference was one of degree: While moderate conservatives such as Kennedy, who styled himself very much in the model of the genteel Southern patrician Powell, grudgingly accepted that race-conscious remedies to deep-seated discrimination were necessary to ward off resentment and unrest among long-excluded minority groups, the hard-right wing of the court seems to notice only the possibility of resentment among white people who object to affirmative action.
Both Powell’s nation of minorities idea and Kennedy’s anti-balkanization principle (as read — and to be frank, improved — by Siegel) treat race as one of many ethnic divisions that threaten to divide American society. Neither is in fact colorblind. These more equivocal and moderate versions of colorblindness reveal the implicit racial politics underlying colorblindness generally. Colorblindness transforms the 14th Amendment’s repudiation of white supremacy into its opposite: a preoccupation with the dissatisfaction of white people losing racial privilege. A substantive agenda to preserve and reinforce traditional racial hierarchy hides under the cloak of colorblind neutrality.
Throughout the 1970s and 1980s, civil-rights laws required employers and other institutions to confront these kinds of systemic racial disadvantages. Colorblindness, by contrast, requires us to be blind to them. American legal tradition does not require this willful ignorance; to the contrary, a focus on systemic racism has been a staple of mainstream anti-discrimination policy since the early 1970s. The very first time the Supreme Court considered a dispute under Title VII of the Civil Rights Act of 1964, in 1971’s Griggs v. Duke Power, the court held that the law prohibits practices that act as “built-in headwinds” for underrepresented minority groups — even if those practices were not racially motivated. As in Ricci, and in today’s selective universities, this dispute involved a standardized test that screened out a disproportionate number of Black applicants. There, the court connected generations of segregation in inferior schools to lower scores on standardized tests. To ignore the racial impact of such facially colorblind employment criteria would ensure that even colorblind employers would carry the injustices of Jim Crow into the future.
A substantive agenda to preserve and reinforce traditional racial hierarchy hides under the cloak of colorblind neutrality.
The disparate-impact theory of discrimination was controversial, and in the years following Griggs the court limited its scope in the employment and fair-housing contexts and declined to extend it to the analysis of constitutional law. The most charitable explanation for this turn away from disparate impact is that the court, like Nathan Glazer, believed that racial disadvantage would eventually dissipate on its own. But there was little to justify this faith, and the intervening years made it more and more unjustified. Indeed, Glazer himself, a good social scientist, examined the evidence — especially Douglas Massey and Nancy Denton’s devastating book American Apartheid — and realized his mistake. By 1997, in his book We Are All Multiculturalists Now, he admitted that his earlier conception of race as a type of ethnicity was misguided: “There is nothing that concentrates the mind on an issue more sharply than discovering one has been wrong about it,” he remarked.
Glazer’s early naïve optimism was more justifiable than that of Powell or Kennedy for a very simple reason: It followed from overestimating the strength of the civil-rights laws that Powell and Kennedy were instrumental in weakening. Glazer, like many Americans, believed that civil-rights laws would eliminate racial obstacles root and branch. But to do that, as the disparate-impact theory in Griggs illustrates, the law could not be colorblind. It had to identify the practices of racial exclusion established in the era of overt discrimination and deal with them. Prohibiting those practices was one means of doing this; affirmative action was another. Civil-rights activists and politically moderate government bureaucrats alike believed both were important parts of the commitment to racial justice. Both were under attack, not only from resentful white members of society, but also from resentful white members of the Supreme Court.
Few would have predicted the steady erosion of civil-rights guarantees that would occur in the subsequent decades. This erosion wasn’t limited to disparate impact and affirmative action but extended to the symbolic heart of the civil-rights struggle: public education. The Supreme Court repudiated the assertive school-desegregation measures put in place to respond to massive resistance in the South and stubborn prejudice elsewhere. In 1974’s Milliken v. Bradley, the court blocked a desegregation order that a lower court had imposed to avoid, in its words, “opening a way to nullify Brown v. Board of Education.” In later years, under the guidance of the Supreme Court, the federal courts repudiated desegregation efforts nationwide. By the mid 1990s, resegregation of public schools was well underway. Today, America’s K-12 public schools are almost as racially segregated as they were in the late 1960s.
The Supreme Court had deliberately and systematically weakened the civil-rights laws that Glazer thought would smooth the way for African Americans to join the prosperous American mainstream. Glazer had failed to anticipate the scope of this retrenchment. One can’t say the same of those who brought it about.
But there are important differences. As compared with Black, Latino, and Native American communities, Asian Americans are residentially and socially well-integrated into the prosperous American mainstream. Asian Americans are much less likely to live in segregated neighborhoods or attend segregated primary schools. They are also less likely to marry within their own race — three telling indicators of social insularity. In this sense, Asian Americans fit more comfortably into a Glazer-like story of gradual but inexorable assimilation. While Asian Americans share with people who are Black or Latino the injuries of overt atavistic prejudice, the experience of many Asian Americans is closer to that of white ethnic groups with respect to the systemic racial disadvantages that affirmative action is designed to reconcile.
As a consequence, colorblindness is a mixed bag for Asian Americans. Here, it is important that the latest lawsuits are, strictly speaking, discrimination lawsuits challenging the whole range of college-admissions practices. Along with affirmative action, the discriminatory effect of legacy admissions, athletic preferences, regional preferences, and subjective considerations of character and personality are also at issue. Some of these other practices may disadvantage Asian American applicants. For example, it’s plausible that some subjective assessments of character are tainted by stereotypes or bias, and it’s possible that certain preferences themselves — such as those for patrician sports like lacrosse and squash — reflect cultural biases.
Of course, affirmative action is the only practice that involves an overt racial criterion and hence the only one easily challenged. Yet these other practices account for most of the alleged racial disadvantage as measured by the plaintiff’s own chosen metric: the discrepancy between the admissions rates for Asian American applicants and the admissions rates predicted by grades and test scores alone. Those disadvantages can’t be dealt with by ignoring race. After all, on the face of it, a university that considers personality, character, legacy status, and squash proficiency in its admissions decision is as colorblind as one that considers only grades and test scores. Colorblindness has nothing to say about such race-neutral criteria, whatever the racial composition of the resulting group of admittees. We must consider race to even ask whether these seemingly neutral criteria contain hidden biases — systemic, subconscious, or simply concealed.
Colorblindness insists that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” but this turns out to be harder than Chief Justice Roberts seems to imagine. When the City of New Haven changed its promotions process because of its racial impact, it thought it was stopping discrimination of the basis of race, but the court accused it of discriminating. If Harvard changes its admissions process, say, to reduce the weight of subjective assessment of character or preferences for the children of wealthy alumni — or, for that matter, grades and standardized test scores — because of their racial impact, would it be stopping discrimination? Or would it be discriminating against the groups that benefited from those factors? Roberts’s facile chiasm will not answer these questions, nor will colorblindness. Only an insightful analysis of the context surrounding the practices in question can help us to see whether they are justified. The answer will depend on how one weighs the burdens of historical racism, the benefits of diversity, and the demands of individualistic meritocracy — in other words, it will be controversial. The history of civil-rights law tells us that what counts as discrimination is determined not by logical deduction but by clear-eyed perspective. And perspective is the antithesis of any kind of blindness.