Should We Be Color-Blind?

by Tim Sommers

“Cleave,” “buckle,” and “dust” are contranyms. They are their own opposites. To dust means to remove, or sprinkle, with dust. To buckle means to collapse or secure. To cleave means both to divide and to stick to tenaciously.

In that spirit, an astro-turf Federalist Society group, opposing affirmative action and pro-active diversity in college admissions, calls itself “Students for Fair Admissions.” The Supreme Court is on the brink of using two upcoming cases brought by Students for Fair Admissions – SFA v Harvard and SFA v the University of North Carolina – to end the last vestiges of any attempts to address discrimination in the college admissions process.

One of the most widely-quoted slogans in Supreme Court history – right up there with ‘You shouldn’t shout fire in a crowded theatre’ and ‘I can’t define obscenity, but I know it when I see it’ – is “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

This approach to equal protection and fair equality of opportunity suggests that the way to address racial discrimination is to not see race, to be, metaphorically at least, color-blind. This is called the “categorization” approach to jurisprudence about race and it echoes the ‘Don’t say gay’ law in DeSantis’ Florida. It’s the ‘Don’t say race’ approach. (Also, the ‘Don’t say sex,’ but here I’ll stick with race, though I would be happy to discuss sex and other protected categories in comments.) Can we solve racism by being blind to race? Well, can we end discrimination against people with mobility challenges by not seeing wheelchairs?

Justice Sotomayor’s rejoinder to the categorization slogan, by the way, is that, “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.” This fits the “caste” – as opposed to categorization – approach. The point of equal protection and anti-discrimination law generally, on the caste view, is to undermine unjustified social and political hierarchies that disadvantage certain groups – people of color, women, people who are LGBTQ+, people with ability challenges, indigenous people, etc. (Unfortunately, the list goes on.) The idea is that you can’t fight hierarchies by simply outlawing the use of the labels that identify them.

From California v Bakke (1978) to Fisher v University of Texas (2013), the Supreme court has held that any kind of explicit, or quota-based approach, to affirmative action in admissions is unconstitutional, but that universities have a legitimate interest in diversity that can be allowed shape admissions in a holistic fashion. Some one more cynical than I might say this makes diversity the ‘Don’t say affirmative action’ approach. There’s an argument that could be made that old-fashioned, clunky, quota-based affirmative action is preferable to the explicitly more “holistic,” but therefore vaguer and less transparent, diversity approach, but I won’t make it. I want to focus to the fact that while color-blindness is not a helpful legal or political ideal at this point, we can’t do away with it altogether.

So, why shouldn’t we follow the Federalist wing of the Supreme Court in counting color-blindness as a core principle of Constitutional jurisprudence? Because the Constitution is not now, nor has it ever been, color-blind.

It feels weird to even have to say this, but slavery was central to the Constitution as written and ratified. Slavery was not just a buttress to the Constitution; it was a load bearing wall. So, so much for an “originalist” defense of a color-blind Constitution.

What about after the Civil War? Did the Constitution become color-blind? The Reconstruction Amendments, in theory at least, abolished slavery (the 13th), declared that all people born the U.S. citizens owed due process (14th), and gave people of color and former slaves the vote (the 15th). However, Congress explicitly rejected inserting “without distinctions of race or color” anywhere into these, and the flurry of legislation that followed used racial criteria freely – foundationally even. The point was never to achieve color-blindness. The point was to address both the urgent needs of, and the long-standing injustices perpetrated against, people of color.

Color-blindness is a modern idea and it arises out of claims (as in Bakke) that affirmative action is “reverse discrimination.” The thought is that it is equally bad to allow college admissions to favor groups previously disadvantaged as to continue favoring the advantaged.

Say two groups are stopped in the middle of a relay race. The referee says that team A is way ahead because they have cheated in various ways, including intentionally sabotaging team B. Therefore, the current lead runner on team B is to come up to the same place, or even be slightly ahead of A, before the race is restarted. Imagine group A arguing for team-blindness. We should ignore team membership, since each person is an individual and not all were involved in the sabotage and it would be just as bad for the innocent to lose ground to group B as the sabotaged, so it would be fairer to allow each team to move the lead  runner forward the same distance before restarting the race. This is how color-blindness becomes blindness to racism instead of blindness to race.

What if we say, well, we had color-blindness going forward plus more attention to the social background institutions that favor some over others, especially addressing educational inequalities and poverty, that would solve the problem. One issue is that this argument is usually disingenuous. This is the same kind of bad faith argument that some who favor outlawing abortion make. It won’t be so bad as long as we also increase social programs to help children and young mothers, they argue. First of all, this is beside the point, which is bodily autonomy, but, secondly, when and where has this ever happened?

Further, a realistic look at what institutional supports would be necessary to achieve fair equality of opportunity reveals it would be more daunting to do so than defenders of color-blindness want us to believe. For example, John Rawls has argued that we need a regulatory regime, measures “to prevent excessive concentrations of property and wealth;” and free, high-quality, and universal education and health care, if we want fair equality of opportunity. Are we ready to do all that instead of using race-based criteria to do something about the racial caste system now?

It’s revealing that conservative commentators who love to quote Martin Luther King Jr. on his dream that people will be judged one day, “not by the color of their skin, but the content of their character,” invariably leave out that King prefaced that remark by noting that people of color in America  live “on a lonely island of poverty in the midst of a vast ocean of material prosperity” – and King insisted on many occasions that equal opportunity requires that property be “widely distributed.”

In any case, college admissions seems like one of the places it makes the most sense to intervene for the sake of fairness. If you are not going to make college admissions easier for previously disadvantaged people, then where are you going to intervene to address historical and ongoing discrimination?

Now here’s a phrase that often gets political philosophers, among others, in trouble: “In an ideal world…” Nonetheless, in an ideal world, there is some sense in which opportunity and due process should be color-blind. My own view is that the right not to be discriminated goes beyond equal opportunity and due process. We have an inalienable, fundamental right not to be discriminated against for irrelevant or pernicious reasons – an inalienable right on par with freedom of speech and religion and the other fundamental rights.

Now, in one sense, this is still not color-blindness since it’s hard to see how to make this approach work without something a list of what kinds of reasons are irrelevant or pernicious which presumably mentions race. The ultimate ideal of nondiscrimination, however, is not having a certain distribution of types of people represented in all social roles, the point is to have social roles equally open to all people. We shouldn’t lose sight of the principle, as Tommie Shelby puts it, that we “have no rational basis for choosing principles [of justice] that would favor one race over another.” The long run ideal is not to further entrench ascriptive identities, but to give people as much freedom to choose as possible.

Philosophers in recent decades have often objected to, or even rejected, such “ideal theories” in political philosophy. This is one reason why. The ideal theorist’s insistence that we can’t give up entirely on color-blindness can become a cudgel to beat back progress against our racial caste system.

The problem, according to me anyway, is that ideal principles have a kind of quasi-logical priority over nonideal principles that won’t go away. I’m not sure we can’t really make sense of what equal opportunity is, or would be, if we give up entirely on what it would look like if it were ever achieved. Maybe, it’s just this simple.

Pretending to be color-blind does not get us to actual color-blindness. But color-blindness should still be where we are heading. Otherwise, what is the social ideal behind “equality protection” and “equality of opportunity” as applied to race, if not that race itself should cease to be any kind of factor at all?