The Perils of a Colorblind Society

Here is another paper without footnotes. Wrote this on the last day of finals, so that explains any shittiness (aside from me being shitty). When thinking about race in our society, many adhere to the belief that race should not matter. I fundamentally disagree because our country was built on widespread structural racial distinctions, and putting one's head in the sand regarding racial matters will only perpetuate our sordid history. Ignorance is not bliss. This paper looks at this idea from a legal perspective. I wrote this for one of the preeminent scholars on race in this country, so apologies for any turgid legalese.

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According to its proponents, the colorblind ideal is genuinely egalitarian. By disavowing classifications drawn on the basis of race, we affirm the moral irrelevance of race and honor equal opportunity. If race is truly irrelevant, why do blacks continue to stay at the bottom of nearly any economic measuring device? The post Civil War Amendments were passed in an effort to attempt to put blacks in this country on equal footing with their white counterparts. The Supreme Court since then has changed the way we look at these Amendments and equal protection in general. Have we progressed as a society enough to where race does not matter? The Court thinks so. In reality, this supposed neutrality by the Court ends up harming blacks in many ways. This paper will trace the roots of the anticlassification principle and discuss how it is inimical to the true goals of equal protection.

THE BROWN LINE OF CASES

Like many legal principles, a healthy understanding of the law from its nascent stages is vital. In taking this approach, one can begin to understand the core principles and legal justifications behind the law as well as how it has changed over time. Perhaps arguments supporting the victorious side have fallen on deaf ears or have been manipulated over time to mean something else. Either way, a sound understanding of the early law will enable one to see where the law is heading and potential implications of following the status quo.

In 1951, thirteen parents on behalf of twenty students filed a class action suit against the Board of Education of Topeka, Kansas. These parents were concerned with the law set forth in Plessy v. Ferguson in 1896, which stated separate but equal treatment of races did not violate the Fourteenth Amendment. The parents asserted this system of racial separation, while masquerading as providing separate but relatively equal treatment of both white and black Americans, instead perpetuated inferior accommodations, services, and treatment for black Americans. The Plessy Court said segregation did not violate the Equal Protection Clause because it inflicted no legally cognizable harm on blacks. The Brown Court considered that argument and, after remarking on the significance of educational opportunity in modern life, said, “To separate children from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” This language seems to support the idea that the Court was interested in the harm done to black schoolchildren. The Court went on to say, Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to retard the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racially integrated school system.

This Court presently interprets this to mean the Fourteenth Amendment prohibits any classification based on race, but there is no language from the opinion stating this contention. In fact, a look at the era surrounding Brown suggests leaving this language out was intentional. Contemporaneous with Brown, Fifth Amendment case law dictated close scrutiny of government policies classifying on the basis of race. Bolling v. Sharpe, a case decided along with Brown, said segregation in District of Columbia school systems violated the Fifth Amendment’s Due Process Clause. The Court, in mentioning racial classification in Korematsu and Bolling but not Brown, appears to have done that purposely. The Brown opinion, therefore, can properly be read not as condemning racial classification, but as addressing the consequences of separating schoolchildren in a specific institutional context. Other evidence of this comes from the Court refusing to hear a challenge to Virginia’s anti-miscegenation law in Naim v. Naim. If the Court really did announce classification based on race is presumptively invalid in Brown, surely it would have decided to hear a case dealing with the prohibition of marriage on the basis of racial classification. It is difficult to reconcile the present view that Brown eliminated any classification based on race with the circumstances at the time of the case showing the Court did no such thing. Perhaps the Brown Court meant racial classifications should be looked at on an individual basis to determine if they are appropriate. No matter what one thinks, there is no language from the opinion saying classifications based on race are presumptively invalid. Continuing this analysis of history will help show what Brown has come to mean today.

An incredible amount of controversy arose from the Brown decision. This controversy centered around the rationale adopted by the Court in its decision. As stated above, the Court overturned Plessy v. Ferguson on the idea that there was recognizable harm to black children. Separating black children created a sense of inferiority, which caused harm; ultimately meaning the practice was unconstitutional. The Opponents of Brown focused on this harm aspect in their criticism. In finding this separation harmed black children, the Court cited several studies in what is famously known as Footnote Eleven. Harm then became the axis on what Brown turned. If critics could diminish the claims of harm, they felt they could diminish Brown. They did just this by providing scientific research showing it was not segregation that harmed black children, but integration. By turning the debate to harms, critics asked what and whose harms are to be protected. One can think of many harms, so multiplying the harms to which the law might attend was a way of putting in issue the question whether those interpreting the Constitution ought to treat the dignitary injuries associated with group subordination as constitutionally cognizable harms at all. Courts in the South then decided several cases either directly conflicting with Brown or severely limiting it. The Naim Court in Virginia said laws prohibiting interracial marriage actually prevented harm. The Louisiana Court followed suit by saying interracial children are so harmed by societal pressures that anti-miscegenation laws are necessary under Brown. Maryland said public beaches and bathhouses could be segregated because members of each race were more comfortable with each other.

A school of thought emerged from the South described as “Neutral Principles”. This way of thinking said constitutional decisions should rest on reasons other than a judge’s sympathy for the claims of contending social groups. Herbert Wechsler’s writings paved the way for this thinking. He offered his own interpretation of Brown - racial segregation is, in principle, a denial of equality to the minority against whom it is directed; that is, the group that is not dominant politically and, therefore, does not make the choice involved. To Wechsler, Brown was a case about the subordination of one race to another. To him, antisubordination was not constitutionally neutral and Brown was incorrectly decided. The issue was about choosing between two groups; something the Court should not be allowed to do. The Court should look at groups based on neutral principles and not choose one over the other. Competing views arose. Louis Pollack argued Brown created a legal presumption against all legal restrictions which curtail the civil rights of a single racial group. The Equal Protection Clause therefore prohibited state policies that inflicted the kinds of status harm that whites had historically inflicted on blacks. Pollack disagreed with Wechsler’s idea of neutral principles. He said the three post-Civil War Amendments were fashioned to one major end – an end to which we are only now making substantial strides – the full emancipation of the Negro. Looking at the post-Civil War Amendments in context, they were established to combat the long history of slavery. Therefore, in order to fully restore one historically disenfranchised group, that group’s interests could outweigh a group not historically slighted. Charles Black agreed with this point of view in saying, “When the directive of equality cannot be followed without displeasing the white, then something that can be called a ‘freedom’ of the white must be impaired.”

THE EMERGENCE OF ANTICLASSIFICATION

The 1960s ushered in new ways of thinking. The idea of anticlassification emerged with the Fifth Circuit’s Jefferson County opinion. Here, Judge Wisdom upheld the Department of Health, Education and Welfare’s enforcement of Title VI of the Civil Rights Act of 1964. In his opinion, Judge Wisdom obviated the need to follow the controversial practice of balancing harms and choosing between groups. Instead, the Court condemned state-imposed separation by race as an invidious classification and for that reason alone unconstitutional. It said, The Brown I finding that segregated schooling causes psychological harm and denies equal educational opportunities should not be construed as the sole basis for the decision. So construed, the way would be open for proponents of the status quo to attempt to show, on the facts, that integration may be harmful or the greater of two evils. Indeed that narrow view of Brown I has led several district courts into error. We think that the judgment “must have rested on the view that racial segregation is, in principle, a denial of equality to the minority against whom it is directed.” The relief Brown II requires rests on recognition of the principle that state-imposed separation by race is an invidious classification and for that reason alone is unconstitutional. Classifications based upon race are especially suspect, since they are odious to a free people. In short, compulsory separation, apartheid, is per se discriminatory against Negroes.

This was an interesting opinion because it appeared to directly address the Southern opponents of the Brown decision. One interpretation is the Court devised this anticlassification framework as a way to combat the Southern argument that segregation is allowable if they can show whites are just as harmed as blacks. No matter the interpretation or reasons behind the Court’s actions, this decision, along with McLaughlin v. Florida and Loving v. Virginia, established a strict scrutiny framework for classifications based on race.

This new way of approaching equal protection shifted the lens from the harms of racial segregation to the wrongs of legislative classification. The McLaughlin Court evidenced this in its reasoning dealing with antimiscegenation laws. There, the Court did not talk about how prohibiting interracial cohabitation harmed a certain race. It did not connect the prohibition of whites and blacks being together with the history of black subjugation. Perhaps this was because the Court was used to the Southern objection to the comparison of harms approach. Instead, the Court based their decision on a presumption against racial classification. The Court followed this with its decision in Loving striking down laws against interracial marriage. Again, the Court did not address the harms on particular racial classes. It did, however, provide another layer of analysis by saying the law was unconstitutional based on failing the strict scrutiny analysis as well as because it enforced a system of racial hierarchy. This analysis of events shows a progression in the 1960s from looking at group harm to a presumption against racial classification and a demand for legislative rationality. However, Courts still understood equal protection as a race-asymmetric constraint on governmental action; they understood that the purpose of equal protection doctrine was to prevent the state from inflicting certain forms of status harm on minorities.

Questions arose regarding the constitutionality of states voluntarily acting in order to integrate. In the 1960s, Courts repeatedly held that governments could use race-specific measures to break down de facto segregation (racial imbalance) in the nation's public schools even when there was no finding of a constitutional violation. In Swann v. Charlotte-Mecklenburg Board of Education the Court said, “School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities; absent a finding of a constitutional violation, however, that would not be within the authority of a federal court.” This shows Courts viewed the Equal Protection Clause as a tool to protect blacks from harms caused by hierarchal and status-cementing measures by the government. The Clause was not violated when governments used race-based measures to combat segregation.

THE EXPANSION OF BROWN

The 1970s further developed the anticlassification doctrine and brought in new ideas of colorblindness. More questions arose regarding race-conscious efforts to enforce integration. The Court again addressed education in 1976, this time striking down race-conscious admissions at the U.C. Davis School of Medicine. In its decision, the Court brought back the notions of addressing harms to minorities. This was a landmark decision because it effectively expanded Brown to protect whites from discrimination – reverse discrimination. Powell’s opinion was also a rejection of the race-asymmetric and antisubordination frameworks set forth in prior decisions. He even changed the perceived purposes of the Fourteenth Amendment by saying it is “no longer possible to peg the guarantees of the Fourteenth Amendment to the struggle for equality of one racial minority.” He continued, “During the dormancy of the Equal Protection Clause, 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 of whom it was said – perhaps unfairly in many cases – that a shared characteristic was a willingness to disadvantage other groups. As the Nation filled with the stock of many lands, the reach of the Clause was gradually extended to all ethnic groups seeking protection from official discrimination.” These abrupt shifts in the purpose of the Fourteenth Amendment and the application of the Equal Protection Clause carry many implications. The Fourteenth Amendment was no longer a device to address the inequalities felt by blacks in America. State action was now “neutral” and “equal,” however disproportionately it harmed minorities, unless it employed a suspect classification or reflected discriminatory purpose, a concept the Court related back to forms of racial animus or “antipathy” that the presumption against classification was intended to constrain.

Bakke did much more than clarify the anticlassification principle; it completely changed the way the Court looks at race. Powell did this by looking at ethnicity as opposed to race in his opinion. He disaggregated the white “majority” into “various minority groups” who “struggle” against “prejudice,” while converting racial minorities into groups that shared an identical American experience with white ethnics. The color-line erased, the United States now progressed harmoniously as a “Nation filled with the stock of many lands,” and the Constitution gave equal concern to “all ethnic groups seeking protection from official discrimination.” “Ethnic groups” in Powell's usage constituted no casual synonym for race, but instead a heavily laden term signifying a conception of group dynamics in the United States in which racial hierarchy had ceased to operate. He did this by looking at history through an ethnic lens. He defined this as a nation of minorities and referred to Celtic Irishmen, Chinese, Austrian resident aliens, Japanese and Mexicans as groups protected at one point. Saying all of these groups went through some sort of adversity made it seem like race operated similarly across the board. The logic stated if the Irish and Japanese went through similar hardships, they should be treated equally. The Constitution should therefore be concerned with all ethnic groups seeking protection from discrimination. Powell destroyed the traditional views of majorities and minorities. Instead of whites being the traditional majority and blacks the minority, everyone was a minority at some point. His statement, “The concepts of “majority” and “minority” necessarily reflect temporary arrangements and political judgments,” confirms. He transformed society from a system of dominant and subordinate races to an amorphous plurality of ethnicities. Because this dominant/subordinate framework no longer existed, the Constitution could not choose between ethnicities. If multitudinous ethnic groups stood in relations of shifting competition forming only temporary majorities, no special solicitude for racial groups seemed required. Black was now white.

Powell did this by casting whites as just another subordinated group. He did this by disaggregating whites into discrete ethnicities, insisting these groups faced discrimination in the past, and implying the rights and remedies reserved for preferred minorities threatened white ethnic subgroups. In effect, this elite group behind hundreds of years of subjugation became just as much of a minority as blacks. In fact, these whites were being discriminated against because they were classified as such. Whites then became the victims of affirmative action.

The Bakke Court went on to change the way it thought about integration. Efforts to introduce blacks to exclusively white institutions were not referred to as integration. Powell never even mentioned the word. Instead, he said these efforts were pursuing some specified percentage of a particular group merely because of its race or ethnic origin. He continued by saying, “Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake.” This way of thinking meant the Court looked at integration not as a practice of achieving equality, but as a discriminatory preference of blacks over whites. Breaking race down to competing ethnic minorities enabled this reasoning.

THE END OF SOCIETAL DISCRIMINATION

Bakke displayed a solidification of anticlassification principles and used them to limit antisubordination values. But a large question remained unanswered – is a government allowed to remedy societal discrimination against a race by using racial classifications? Consider the City of Richmond in the 1970s. Its population was fifty percent black, but only two-thirds of one percent of its construction projects went to minority owned businesses over a five-year span. A federal government study found racial nepotism virtually defined the construction sector, and a near total exclusion of minorities receiving dollars from local trade associations. The mayor even said, “I can say without equivocation, that the general conduct in the construction industry in this area . . . is one in which race discrimination and exclusion on the basis of race is widespread.” The City felt it should do something so it, noting this historical pattern of discrimination, created a program setting aside contracting money for minority owned businesses.

Could a city employ race-conscious measures to combat societal discrimination? The Court found in the absence of proof of a particular act, racism could no longer be used as an explanation for societal action. Societal discrimination is an amorphous concept of injury that may be ageless in its reach into the past. This is a threshold moment – taking action to alleviate societal discrimination suffered over hundreds of years is no longer allowable. This is effectively a pronouncement that racism is over in our society. To suspect whites of discrimination without specific proof is now stereotyping whites. Without this specific proof, the Court presumes racial neutrality governs social and economic life. The Court came to this conclusion by again disaggregating race into small ethnic groups and looking at them through a colorblind lens. It said, “To accept Richmond's claim that past societal discrimination alone can serve as the basis for rigid racial preferences would be to open the door to competing claims for ‘remedial relief’ for every disadvantaged group. The dream of a Nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement would be lost in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs.” Because the City was classifying whom to give money based on race, the Court found strict scrutiny applied in order to protect minorities. Which minorities though? Taking the new ethnic as opposed to race viewpoint, the Court again found it necessary to protect the white minority.

Bakke and Richmond show the Court now views whites and blacks as the same. This tabula rasa for racial attitudes in American society dictates we forget all of the societal and institutional racism from the beginning of America. Slavery, Jim Crow, poll taxes, redlining antimiscegenation laws and lynching simply no longer matter. Even with a government study and quotes from the mayor confirming racial discrimination in the area, the Court will not find discrimination unless there is specific proof of intent.

IMPLICATIONS OF THE COLORBLIND, ANTICLASSIFICATION PRECEDENT

Suppose a fire department in the South creates a new position. This new position requires education at a high school equivalency so the company decides it needs to administer a test to any applicant. After administering the test, a manager notices something does not seem right. More whites seem to be passing than blacks. The manager thinks to herself and realizes one experiment does not prove anything. The company hires new people to replace the ones who failed. They take the test too. Again, whites seem to outperform blacks. A few months later the manager tests another round of employees. The same thing happens again; blacks fail much more often than whites do. Eventually the manager realizes out of the twenty positions that require a passing score, whites occupy nineteen. A reasonable third person would look at this scenario and think something was up. This is a fire department in the South, long known for its problems with race relations. The position only requires a high school education, so the pool of applicants is not significantly limited. Why is it that so many whites are passing and blacks failing? How can we fix the problem? Anticlassification and colorblind principles limit the options available. It seems logical to take note of the historical practice of limiting minority employment and enact measures aimed at evening out the racial makeup. But these principles say it would be discriminatory to help the blacks failing the test in any way. Confirmation of this criticism came when the Court saw a case similar to this scenario. It involved a challenge to an employment exam that excluded four times as many blacks as whites applying for a position on the District of Columbia police force. The Court made clear that proving discriminatory purpose was now not only permitted, but required in all cases challenging facially neutral state action having a disparate impact on protected classes.

Now imagine a state passes strong new drug laws. It feels one drug is more caustic to the community than others, so it enacts harsher penalties for possessing this drug. The state then does a study and finds 98.2 percent of defendants convicted of possessing this drug are black. A reasonable person would probably look at a law that is virtually only enforced against black people and think something was amiss. Following the anticlassification doctrine, only a showing of discriminatory intent by the legislature would violate the Equal Protection Clause. Again, a real world example confirms this. The Eighth Circuit argued that Congress did not adopt the sentencing differential “because of” its impact on African-Americans; rather, Congress had reasons for determining that crack cocaine posed a greater societal threat than powder cocaine, and this judgment in turn supplied justification for adopting the 100 to one sentencing ratio despite its foreseeable adverse impact on African-Americans. The Eighth Circuit's opinion in Clary is especially striking because it overturned a lengthy lower court decision that explored the history of racial bias in the criminal justice system and the sociology of the recent war on drugs, striking down the sentencing guidelines on the grounds that they manifested unconscious racial bias.

PROBLEMS WITH THE ANTICLASSIFICATION, COLORBLIND PRECEDENT

In the author’s opinion, a legal position dictating no classification based on race along with looking at the world through colorblind glasses leads to disastrous results. Furthermore, these legal principles are inimical to the goals of the post Civil War Amendments. After the Civil War, America realized it needed to take action in order to ensure blacks achieved equal footing with their white counterparts. The way the Court has interpreted the Brown line of cases has led to policies that directly contradict the goals of the post Civil War Amendments. Instead of allowing practices aimed at achieving racial equality by helping a historically subjugated group of people, the Court has made these measures unconstitutional. This precedent equates laws designed to subjugate with laws designed to end subjugation. Integration of racially homogeneous areas is now discrimination. This is clearly an absurd result. The present line of thinking appears to directly contradict the goals of Congress shortly after the Civil War.

The author contends this is such a disastrous result because colorblind thinking presumes blacks and whites are now on equal footing. This is far from accurate. The percentage of blacks under the poverty line in 2006 was 24.2 percent. That number is 8.2 percent among whites. That is even with thirty years of economic development in the black community since the solidification of anticlassification principles. No one can doubt this country has a history of institutional and societal racism that has led to discrimination en masse. Hugely disparate poverty statistics are prima facie evidence of this. To use the discriminatory intent logic, because this country took intentional discriminatory measures such as slavery and Jim Crow laws to retard the economic progress of blacks in this county, this country is presumed to continue this practice until a showing otherwise. The difference in the poverty level percentages above implies this country has not taken this affirmative action and is direct evidence against the colorblind principle claiming we are all equal.

This way of thinking not only says race is no longer a problem, it effectively destroys race. As the Bakke and Richmond cases showed, the Court now views America as a nation of ethnic groups all in competition with one another. This ideology often results in whites becoming the “minority” in areas where there is direct evidence of past white economic hegemony. It seems absurd to say whites are being discriminated against when a state acts to remedy hundreds of years of white discrimination against blacks. This new ethnic way of looking at people will only further harm blacks. A court will now always be able to find an ethnic group in competition with blacks and claim it should not pick between the interests of either group. This puts minority groups against each other even more so than the present fight for limited economic resources between the groups.

Colorblindness also does not address the externalities of race problems. There is much ongoing scientific research attempting to figure out the reasons behind such differences in racial economics. Blacks might not be getting the same jobs as whites because they do not have the same education. A black school could be lagging behind because the kids do not pay attention. The kids could not be paying attention because they do not have father figures at home. The father figures could not be at home because of selective enforcement of laws by police. The police might have myriad laws to enforce because of discriminating legislative bodies. The point here is there are countless inputs going into the equation to figure out a problem. Anticlassification rules are so pernicious to the black community because when a body figures out the reasons behind one of these problems, they are not able to efficiently assist the group most in need by helping them specifically. Any measures doing that would be classifying based on race and therefore unconstitutional.

Anticlassification ideology also does not address inherent racial bias. Requiring discriminatory intent severely limits the ability to investigate racial bias. Emerging studies in the medical world show racial bias in the medical community. A recent study found white medical students were less empathetic toward black patients in one-on-one interviews. Another study showed 79 or 80 percent of white Americans show a preference for white over black. One more tested implicit bias by having participants identify the race of racially ambiguous faces. When faces were seen to display relatively hostile expressions, individuals were more likely to categorize them as black. When identical facial expressions of African Americans and European Americans changed from hostile to positive expressions, white viewers often perceived the hostility to linger longer in black faces. These studies show racial bias is alive and well in America. This is significant because anticlassification and colorblind ideology presumes neutrality until a showing of discriminatory intent. This is problematic because racial biases might be influencing actors much more than they realize. A law can pass that is considered facially neutral even though it was subconscious racial bias that was really behind the action. Since the Court demands conscious discriminatory intent, this effectively eliminates any investigation into what was really behind the policy.

This paper has shown how the Court has interpreted the Civil War Amendments to go completely against what they were tasked to do. Through its rulings, the Court has made several dangerous claims, proclaiming racial inequality is all but dead. Today, doctrines of heightened scrutiny function primarily to constrain legislatures from adopting policies designed to reduce race and gender stratification, while doctrines of discriminatory purpose offer only weak constraints on the forms of facially neutral state action that continue to perpetuate the racial and gender stratification of American society. We see cases such as Richmond where a city was not allowed to take action to correct hundreds of years of obvious and known discrimination because it discriminated against white people. The anticlassification principle is not tied to a utopian ideal in which the visibility of racial difference disappears. Rather, it is a tool for dismantling white supremacy and eradicating social practices that disadvantage historically subordinated groups. However, in application we see it is doing anything but.

The author suggests a system that takes race into account on a case by case basis and eschews the present competing ethnic groups worldview. Race is not something to run away from. It is naive to think we have achieved racial equality and therefore we can no longer assist certain racial groups because of past transgressions against them. Present disparate poverty statistics are directly connected to hundreds of years of discrimination and racial bias studies show this discrimination has not stopped. Because of this, disparate impact should be considered a violation of equal protection principles. Requiring discriminatory intent makes it far too easy for bodies to circumvent the true spirit of equal protection. A law against crack resulting in blacks comprising 98.2 percent of convictions confirms this. Furthermore, violation of equal protection in matters of race should also carry criminal sanctions. This would immediately make people think twice about enacting policies they know will disparately impact a certain race.

Much has changed in the fifty years since Brown. Unfortunately, the Court believes much more has changed than really has. In its attempt to look at everyone the same, the Court has failed to realize many problems subsist making us not the same. Hopefully the Court will realize its actions might potentially lead the march of civil rights in the opposite direction.