Friday Dec 01

COMMUNITY DEVELOPMENT CORNER - If You Don’t See Race Then You Don’t See Racism:

The Pursuit of Color Blindness and the Continuing Injustices of the Supreme Court

As the US Supreme Court proceeds blindly down its path of race neutrality and colorblindness, it fuels concrete realities of racial inequality, assuring the perpetuation if not exacerbation of that inequity, and delays the time when the nation just might achieve some semblance of colorblindness and racial equity. In the Court’s June decision rejecting the right of universities to use race as one of several factors in a holistic admissions program, it created significant new barriers to equal educational opportunity and the benefits that could flow from a more equitable education system.  (Students for Fair Admissions Inc. v. Harvard and Students for Fair Admissions Inc. v. University of North Carolina June 29, 2023). Perhaps more foreboding is the sweeping damage that may occur in the nation’s labor and housing markets, community development programs, health care industries, and other venues as a result of the Court’s decision in these two cases.

In its decision the Court overturned 40 years of precedent in which it had repeatedly found constitutional college and university admission programs that considered race as one factor in their admission programs. (See California v. Bakke 1978, Grutter v. Bollinger 2003, and Fisher v. University of Texas 2013) But in erroneously arguing that the equal protection clause of the 14th amendment and Title VI of the Civil Rights Act of 1964 (which bans discrimination in any program receiving federal financial assistance) require colorblind policy and practice, the Court pronounced an end to such affirmative action.  Writing for the majority in this 6-3 decision Chief Justice John Roberts wrote:

Proposed by Congress and ratified by the States in the wake of the Civil War, the Fourteenth Amendment provides that no State shall “deny to any person…the equal protection of the laws.”  Proponents of the Equal Protection Clause described its “foundational principle” as “not permitting any distinction of law based on race or color.”

He later goes on to assert that “We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment also constitutes a violation of Title VI.”

This decision and the three concurring opinions by Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh repeatedly label the Harvard and UNC programs as “discrimination” violating the race neutral and colorblind requirements of federal law.

But these rules require no such color blindness.  In fact, the primary objective of Congress in passing the 14th Amendment and Title VI was to change the material conditions facing racial and ethnic minorities, particularly African Americans, not to lock in some formal notion of neutrality detached from the context in which they were promulgated. As Justice Ketanji Brown Jackson stated during oral arguments last October, “The entire point of the amendment was to secure the rights of the freed former slaves.” And in her dissent Justice Sonia Sotomayor wrote:

Proponents of the Amendment declared that one of its key goals was to “protect the black man in his fundamental rights as a citizen with the same shield which it throws over the white man.”…That is, the Amendment sought “to secure to a race recently emancipated, a race that through many generations was held in slavery, all the civil rights that the superior race enjoy.”

The Congress that passed the 14th Amendment enacted several race-conscious policies aimed primarily to bring former slaves into the mainstream. The most frequently noted was the Freedman’s Bureau created to help the former slaves become self-sufficient. In reference to affirmative action, President Lynden Johnson stated in his famous Howard University commencement address in 1965:

You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say “you are free to compete with all others” and still justly believe that you have been completely fair…We seek not just legal equality as a right and a theory, but equality as a fact and equality as a result.

Reinforcing Rather than Reducing White Supremacy

The Court majority’s worshipping at the altar of color blindness simply freezes the status quo, bakes in historical inequities, and assures their perpetuity going forward. Two key related fatal ideas underpin and reinforce these dynamics. One is that today’s youth are not responsible for the sins of our past and secondly that the inequities of our past are somehow behind us now.

In his concurring opinion Thomas wrote:

Today’s 17-year-olds, after all, did not live through the Jim Crow era, enact or enforce segregation laws, or take any action to oppress or enslave the victims of the past. Whatever their skin color, today’s youth simply are not responsible for instituting the segregation of the 20th century; and they do not shoulder the moral debts of their ancestors.  Our Nation should not punish today’s youth for the sins of the past.

Thomas goes on to offer a series of straw men:

Then as now, not all disparities are based on race; not all people are racist; and not all differences between individuals are ascribable to race…  And their race is not to blame for everything – good or bad – that happens in their lives.

But nobody has made these assertions.  Such flights of fantasy lead Thomas and the majority generally to simply miss the critical context in which their empty rhetoric of colorblindness plays out.

While today’s 17-year-olds did not own slaves or pass Jim Crow laws, it is the case that they, and other demographics, still suffer from the indignities or enjoy the privileges of past behavior.  In her dissent Jackson points to just some of today’s racial disparities in terms of wealth, health, homeownership, employment and other venues, along with the public policies that fueled these disparities and concludes:

And I could not possibly discuss every way in which, in light of this history, facially race-blind policies still work race-based harms today (e.g. racially disparate tax-system treatment; the disproportionate location of toxic-waste facilities in Black communities; or the deliberate action of government at all levels in designing state highways to bisect and segregate black urban communities).

Interestingly, despite the onslaught of race neutral colorblind rhetoric the Court does carve out one exception.  Military academies are not covered.  Writing for the majority Roberts offers “This opinion does not address the issue, in light of potentially distinct interests that           military academies may present.” Jackson cogently replies “The Court has come to rest on the bottom-line conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker, not the boardroom.”

This decision would also allow applicants to discuss how race affected their lives including how they overcame barriers of discrimination. But such discussion must be tied to “that student’s courage and determination” or “that student’s unique ability to contribute to the university.  In other words, the student must be treated based on his or her experiences as an individual – not on the basis of race.”  Jackson cogently responds again that this is simply “an attempt to put lipstick on a pig.”

Future Damage

More problematic is where the logic of the Court’s argument might lead going forward. Roberts argues for the majority that “what cannot be done directly cannot be done indirectly.” Does this mean that many of the alternatives to race-conscious approaches to diversity that have been proposed might also be challenged?  Several observers have suggested that affirmative action based on socio-economic status might be a constitutionally permissible approach. Reaching out to students who are from single parent households or who would be first-generation college students might offer a related strategy. Other tactics include accepting a particular percentage of all high school graduating classes which might help students from segregated schools.  Additional outreach and recruitment by universities in inner city neighborhoods could increase minority applicants.  Many have called for the elimination of legacy admits and favored treatment for children of current faculty and donors.  Many of these approaches have been tried but have not achieved the level of diversity of those programs that allowed for consideration of race. For example, after the state of Michigan banned consideration of race in college admissions black enrollment dropped from 7 percent in 2006 to 4 percent in 2021. A similar pattern was found in California, again despite implementation of many of the proposed alternatives.

But going forward it is likely that these programs will be challenged as simply back-door, still race conscious and therefore unconstitutional efforts to achieve racial diversity.  Such challenges are already being prepared. For example, Students for Fair Admissions Inc. has already announced that they will be challenging the exemption for military academies.

It is not just college admission programs that could be affected.  Thomas wrote in his concurrence that “the Fourteenth Amendment recognizes that classifications based on race lead to ruinous consequences for individuals and the nation…Consequently all racial classifications are inherently suspect.” What does this mean, for example, about corporate diversity efforts?  Despite research demonstrating that more diverse workforces are more productive and profitable, they could and likely will be challenged as unconstitutional race-conscious efforts.  The Wall Street Journal has already chimed in that “Corporate diversity and equity programs that divide and classify by race should also be on notice that they will face legal challenges.” What about community benefits agreements that steer capital to traditionally underserved neighborhoods often targeting minority communities?  Will special purpose credit programs be suspended? Will health care clinics set up by medical schools in low-income neighborhoods that are disproportionately non-white have to close? No doubt there will be legal challenges to all such initiatives.  The future implications of this decision cannot be predicted precisely, but they are likely to be far-reaching.

Roberts concluded that “Eliminating racial discrimination means eliminating all of it.” This decision assures that it will now take longer to in fact end discrimination and create the color-blind world that many claim is the objective. Quoting Jackson one more time:

It is no small irony that the judgment the majority hands down today will forestall the end of race-based disparities in this country, making the colorblind world the majority wistfully touts much more difficult to accomplish.

This decision will perpetuate inequities that have long been baked into many venues of American life.  Perhaps that is just the point.

GREGORY D. SQUIRES is a research professor and professor emeritus in the Department of Sociology at George Washington University.