Focus on Affirmative Action

A project of the African American Policy Forum

Listen to the show accompanying this myth: HERE

Today's Guests Are:

Eduardo Bonilla-Silva: Professor of Sociology at Duke University. Professor Bonilla-Silva gained visibility in the social sciences with his 1997 article in the American Sociological Review, titled “Rethinking Racism: Toward a Structural Interpretation,” where he challenged social analysts to analyze racial matters from a structural perspective rather than from the sterile prejudice perspective. His research has appeared in journals such as the American Sociological Review, Sociological Inquiry, Racial and Ethnic Studies, Race and Society, Discourse and Society, Journal of Latin American Studies, and Research in Politics and Society among others. To date he has published three books, White Supremacy and Racism in the Post-Civil Rights Era (co-winner of the 2002 Oliver Cox Award given by the American Sociological Association), Racism Without Racists: Color-Blind Racism and the Persistence of Racial Inequality in the United States (2004 Choice Award), and White Out: The Continuing Significance of Racism (with Ashley Doane).

 

 

Mark Fancher : Mark P. Fancher is the attorney for the Racial Justice Project of the ACLU of Michigan. Through his work he addresses: attacks on affirmative action, racial discrimination against public school students of color, racial profiling, public defender system reform, and juvenile sentencing issues.

 

 

 

 

MYTH: Colorblindness is, and always has been, a basic American ideal. Its advocates oppose affirmative action not because they oppose racial progress, but because it contradicts our societal consensus on colorblindness.

FACT: Colorblindness was never a foundational principle of the Constitution. Rather, it is an ideological perspective developed by the judiciary which masks the social reality of the many forms of racial inequality that are embedded in the structures of American society. The Constitution aspires to racial equity, not colorblindness. Thus, affirmative action is consistent with American principles because it is designed to facilitate the creation of a more equitable society. Unpacking colorblindness and revealing it to be mere fantasy is a key step in promoting equality in the United States.

The idea of colorblindness appropriates the language of the Civil Rights Movement — language that was used in that specific context against white-only schools, restaurants,and stores; language used against widespread segregation and racial violence; and language used against all of the efforts to make Blacks second class citizens — and redirects it back against the remnants of the Movement itself. The blood that was spilled to win these rights, the Movement's symbols, and even its martyrs have been co-opted into this new language of colorblindness, a language that declares an end to the Movement and the policies that it brought about.

Colorblindness implies that "race" is no more significant than eye color in contemporary America. In this light, its supporters insist that to treat people equally they must all be treated the same. The logic of this perspective hinges on the belief that, in essence, America has transcended the racism of its past and that, for the part, we are now all similarly situated across racial lines.


The power of the rhetoric of colorblindness obscures the invidiousness of this idea and the danger it poses for those genuinely concerned with the elimination of racial discrimination in the United States. Emerging out of a legacy of resistance to racial equality, this notion cleverly co-opts the language of the Civil Rights Movement, empties it of meaning, and promotes a social vision that masks the experience of racial subordination.


In fact, colorblindness is not a fundamental constitutional value. Nor is it race-neutral. It does not ignore race, nor does it allow for people to be treated fairly and equitably. Indeed, it serves as a constitutional shield for white privilege while embracing the language of racial justice.


Construction of Colorblindness as a Constitutional Principle


In looking at the language of the fourteenth amendment, we can see that it is broad in scope, but opaque in meaning. What does it mean to “deny to any person the equal protection of the laws?” See text of the 14th Amendment HERE. Are race conscious policies by definition unconstitutional? The idea of colorblindness suggests just that. Race is seen as an irrelevant characteristic, and discrimination as a thing of the past. This perspective turns the meaning of the Fourteenth Amendment inside out, and calls for the elimination of race conscious programs such as affirmative action.


Did You Know?


The primary purpose of the Fourteenth Amendment was to incorporate Blacks into the civic, economic and political mainstream of American life following the Civil War. To advance this purpose, Congress, the same entity that crafted the Fourteenth Amendment, routinely used race-conscious methods such as:

  • The establishment of a freedmen’s bureau to assist former slaves in overcoming systemic racial oppression
  • The funding of rac- conscious school integration programs in Kentucky and elsewhere
  • The passage of a “Resolution Respecting Bounties to Colored Soldiers”
  • The creation of Black colleges and universities such as Howard University.

Click HERE for more on the history of the Fourteenth Amendment.

In a brief before the United States Supreme Court, 51 distinguished historians, including John Hope Franklin, argued

it is beyond serious historical dispute that the Congress that passed the Fourteenth Amendment ….did not strive for [an] antiseptic race-neutrality…. Instead, [it] vigorously enacted race-conscious legislation which [it] understood as wholly consistent with the Fourteenth Amendment—and indeed, sometimes, the only way to realize that Amendment’s purpose.

It was this history of the Fourteenth Amendment -- a history that fully supports the use of state sponsored race conscious initiatives -- that inspired the Civil Rights Movement and that served as a backdrop to the historic Supreme Court decision in Brown v. Board of Education. Ironically, conservative forces that once actively and sometimes violently opposed such initiatives have now adopted the language of the Civil Rights Movement to undermine its goals.

The History of the Fourteenth Amendment


The ideology of colorblindness falsely implies that the American Constitution forbids the use of race conscious initiatives. This is a clear misreading of constitutional history. And, it is easily refuted. In point of fact, the Fourteenth Amendment expressly authorized race conscious remedies, such as the Freedman’s Bureau, to address the legacy of slavery and continuing manifestations of racism. (To read more about the Fourteenth Ammendment and race-conscious remedies, read Eric Foner's authoritative history, Reconstruction: America's Unfinished Revolution, 1863-1877)


There is simply no basis for the belief that colorblindness was contemplated by the Framers of the Constitution, or that it was a value that motivated the passage of the Fourteenth Amendment. After all, the fourteenth amendment was enacted with the race-based purpose of removing the barriers to citizenship and equal opportunity confronted by African Americans in the aftermath of chattel slavery. To promote this goal, the federal government enacted laws and policies which quite explicitly utilized race to remedy both individual and systemic forms of discrimination.

The Judicial Invention of Colorblindness


Colorblindness is not a viable constitutional principle. It is an ideological construct that masks discrimination and facilitates racial subordination in American society. This form of judicial invention traces its origins to Justice Harlan’s famous dissent in Plessy v. Ferguson, the Supreme Court opinion upholding the “separate but equal” doctrine. In his dissenting opinion, Justice Harlan holds that “our constitution is color-blind, it neither knows nor tolerates classes among citizens.”


Did You Know?

The genesis of the colorblindness movement can be found in Justice John Marshall Harlan’s dissenting opinion in Plessy v. Ferguson, a case in which the Supreme Court upheld the “separate but equal” doctrine . In this case, Justice Harlan remarked as follows:


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, and holds fast to the principles of constitutional liberty. But in the view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. (Dissenting Opinion of Justice John Harlan in Plessy v. Ferguson)

As we can see, the advocates of colorblindness draw selectively from this passage because, in significant ways, it supports the opposite of colorblindness. In all things social, a case for white supremacy is advanced. Today, the mask of colorblindness functions to trivialize racial concerns. In so doing, it obscures the continuing problems of racism in American society, and serves the interests of white privilege.

With this single phrase, adherents to colorblindness found the basis by which to narrow and diminish the gains of the Civil Rights Movement. Their most recent target is affirmative action. In this context, they maintain that the Constitution must be “neutral” with respect to race: that the use of race to arbitrarily exclude people of color perfectly parallels the use of race to dismantle systemic forms of discrimination that unwarrantedly discriminate against them.


The politically motivated nature of this vision of colorblindness is evident in the selectiveness with which Justice Harlan’s dissent is read.

What about Brown?

The “Little Rock Nine” being escorted into school by the National Guard in the face of violent opposition to their attempt to integrate Little Rock Central High School in Little Rock, AK.

Brown v. Board of Education was a watershed moment in the history of the United States. The Supreme Court ruled that the Constitution would not tolerate “separate but equal” facilities in the public school system. Yet, the Court did not embrace colorblindness in this decision. Instead it lived up to its responsibilities to remove the racial barriers confronted by African Americans. It ruled that it was unconstitutional to use race to arbitrarily exclude American citizens. But, it neither explicitly nor implicitly ruled that race conscious policies designed to dismantle racist barriers were unconstitutional.

Former Chief Justice William Rehnquist provides a prime example of an individual who resisted equality and yet nonetheless embraced this restricted notion of colorblindness.

According to law professor Alan Dershowitz, “as a law clerk, William Rehnquist wrote a memorandum for Justice Jackson while the court was considering several school desegregation cases, including Brown v. Board of Education. Rehnquist’s memo, entitled “A Random Thought on the Segregation Cases,” defended the separate-but-equal doctrine embodied in the 1896 Supreme Court case of Plessy v. Ferguson. Rehnquist concluded the Plessy “was right and should be reaffirmed.” (Read more HERE).

As the Chief Justice of the Supreme Court, Rehnquist would become one of the architects and principle advocates for a colorblind vision of America that erased the reality of racial subordination from the court’s decision making process.


The Consequences of Colorblindness


Pretending either that America has a colorblind history or that we can have a colorblind present is a dangerous fantasy. It does not move us magically beyond our history of racism. It simply collapses all uses of race into one. From this perspective, they all exist on the same moral plane. In this narrative, all Americans are to be treated as though they are “similarly situated.” In a discourse on equality in the Kingdom of Heaven this makes a lot of sense. In a beloved community, one can assume that people are similarly situated. But, on the planet earth in the United States this makes little or no sense at all. In this context, race matters and must be accounted for, if people are going to be treated fairly and equitably as they strive to compete for goods and resources in society.

Bottom Line:

Today colorblindness continues to act to entrench segregation, even as it takes away our vocabulary for talking about racism. In Washington v. Seattle School District No. 1, for instance, the court ruled that a busing program aimed at integrating public schools was "no more permissible than [is] denying [members of a racial minority] the vote, on an equal basis with others." In precisely this respect, colorblindness as an ideology is rich in absurdity. Its an idea that leads to outcomes like placing the process of integrating schools in post-apartheid America on the same moral plane as denying Blacks the right to vote. In this sense, it is a destructive idea with destructive consequences. Indeed, if we had to once again today fight the famous civil rights battles, it would undermine the Brown v. Board of Education decision, and the achievements of the Civil Rights Movement over the past half century.

Mythbusting Homework:

During the Katrina aftermath, seasoned CNN reporter Wolf Blitzer said "You simply get chills every time you see these poor individuals... so tragically, so many of these people, almost all of them that we see, are so poor and they are so black, and this is going to raise lots of questions for people who are watching this story unfold."

What questions did Katrina raise for you? What lessons can Katrina offer us about the remaining differences between whites and Blacks in America? Do you think it is possible to be colorblind in a nation where race continues to impact the lives of so many? Is it desirable?

 

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