Recent developments in the law suggest a triumph of “colorblind” ideology, a success that, counter-intuitively, has proven highly detrimental to the interests of people of color. The ideology of color blindness proclaims that it is opposed to racism, yet it is used to justify the most blatant forms of race discrimination.
In Shelby County v. Holder, a 5-4 majority of the US Supreme Court overturned a key provision of the Voting Rights Act (VRA) that had determined which geographical territories were required to obtain pre-approval of voting changes before they went into effect. The court held that the preclearance requirement was no longer necessary for these territories because the type of race discrimination that had inspired the provision was a thing of the past. In the oral argument before the Supreme Court, Justice Antonin Scalia, one of the Justices voting with the majority, referred to the VRA as a form of “racial entitlement.”
In another case, Fisher v. University of Texas, the Supreme Court overturned a decision upholding a University of Texas affirmative action plan that, consistent with Supreme Court precedent, allowed race to be one factor in the selection of the entering class. In the Fisher ruling, the court said that race could not be used as a factor unless there was absolutely no other way of ensuring racial diversity.
In the State of Florida v. Zimmerman, (the Trayvon Martin case) a Florida jury acquitted an armed private security guard of all criminal charges after he gunned down an African-American youth he had followed and accosted, as the boy was returning to his house from a store. The boy was “profiled” by the guard because he was African American and was wearing a “hoodie,” popular attire associated with urban black youth.
The case was prosecuted by an all-white prosecution team before an all-white jury under court instructions from a white judge that precluded any discussion of racial profiling – the exact reason why George Zimmerman had singled out Martin to follow and ultimately kill him.
The results in these cases reflect the culmination of a long-term right-wing campaign to convince Americans that the United States has reached a stage in its development where racial considerations that benefit African Americans have no role to play in large spaces of public life. Notwithstanding the brutal and extensive history of race as a direct means of subordinating Africans Americans throughout US history, this campaign has continuously argued, even in the immediate aftermath of the Civil War, that African Americans were in no need of special assistance to overcome the “badges and incidents” of over 300 years of slavery.
As early as 1875, only ten years after the conclusion of the Civil War, the US Supreme Court declared one of the nation’s important early civil rights statutes to be unconstitutional, stating: “When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws….”
This language signaled to the violent reactionary forces led by the Ku Klux Klan that it was time to seize the offensive after northern armies were removed from defeated Southern states following the Hayes-Tilden compromise of 1876. Vigilante groups, as well as those exercising state power, unleashed a reign of terror on black people to extinguish their newly acquired civil rights, especially the right to vote.
The violent suppression in those years, targeting African Americans through acts of color consciousness, but disguised with the rhetoric of color blindness and ending “special privileges,” kept African Americans out of the political process until they fought their way back in during the civil rights years of the mid-20th century. But barely a generation after Martin Luther King’s famously misunderstood admonition that one should be judged by the content of one’s character rather than the color of one’s skin, right-wing forces used his very language to roll back not just affirmative action, but more general antidiscrimination laws under the ahistorical idea that the Constitution was “colorblind” and made no room for racial distinction – even to remedy racial injustice.
In 1980, Ronald Reagan brought with him to Washington an army of right-wing groups and individuals who had been percolating in conservative think tanks across the nation. Fueled by a 1971 memo by future Supreme Court Justice Lewis Powell attacking 1960s as a massive assault on business and free enterprise, these groups came to power intent on rolling back the gains of the 1960s, particularly the gains of African Americans. William French Smith as Attorney General, and William Bradford Reynolds, as the head of the Civil Rights Division of the Department of Justice, argued for a “color-blind Constitution” as part of a significant attack on affirmative action and the gains of people of color. Reagan brought in younger voices, such as future Chief Justice John Roberts, to write memos as White House Counsel, arguing that the Voting Rights Act was unconstitutional.
The effects of color-blind ideology are clear in this year’s decisions on the Voting Rights Act, the Texas affirmative action plan and the killing of Trayvon Martin. In the voting rights case, states had been identified for the preclearance requirement because of their extensive histories of racial discrimination, which carried over from the late 19th century into the 1960s and beyond. It was because of their race-conscious activity that these states were kept under close oversight for racial discrimination. The Supreme Court had upheld this statutory framework numerous times, most recently in 2006, when a Congressional review concluded that it was still necessary. The main thing that changed between 2006 and 2012 was the election of an African-American male as President, in part due to record-high turnout among black voters.
The novel theory propounded by the court to justify the decision and underscore the ideology of color blindness – the idea of “equal sovereignty” among the states – has no root in United States law. Indeed the “three-fifths compromise,” which allowed Southern states to count slaves as three-fifths of a person for purposes of bolstering their representation in the federal government, belies such a doctrine.
If the court had been candid in its analysis, it would have said what Justice Scalia suggested at oral argument, that the VRA was an unconstitutional “racial entitlement” that violated the ideology of color blindness. That states such as Texas and North Carolina have been so quick to enact voting rules with an obvious discriminatory purpose and effect suggests that again, as in 1875, they understood the green light from the Supreme Court. A literacy test in 1963 and a requirement for photo ID in 2013 are both race-neutral on the surface – and racially unequal in their impact.
While new to the areas of voting rights, “color blindness” has long been used in the conservative critique of affirmative action. Echoing the language of the Supreme Court from 1875, a 2007 opinion by Chief Justice John Roberts stated: “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.” This choice of words brings to mind the famous observation of Anatole France: “In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.”
The Supreme Court did not entirely wipe out affirmative action in the University of Texas case, but it sent a warning, very similar to that issued about the VRA in 2009: universities were told that they could not utilize race as a factor to diversify academic admissions decisions unless there was no racially-neutral alternative available. But since 1973, when the court decided its first college admissions affirmative action case, university administrators have been unsuccessful in finding a race-neutral way to obtain racial diversity.
In the Trayvon Martin case, the consequences of color blindness were tragic. Jurors never discussed whether George Zimmerman stalked Trayvon Martin and ultimately killed him because of racial animus toward young black men wearing hoodies, even though Zimmerman’s language at the time strongly suggested that this was what prompted his actions. Even operating under the shadow of the Stand Your Ground Law, it is inconceivable that a fair jury could have acquitted, had it been allowed to ask itself whether Zimmerman would have tracked and accosted a white person under identical circumstances. Under federal law, crimes stemming from racial animus are crimes against civil rights. Yet the jury was never allowed to consider the most likely explanation of the cause of the crime, because the judge ruled race out of the matrix, and the all-white prosecutorial team didn’t make a fight over it. The entire proceeding was tainted and corrupted by the ideology of color blindness.
That color consciousness is not just a more accurate way of understanding 21st century US reality, but also a more effective means for obtaining justice in court, is demonstrated by the decision in the Floyd v. City of New York stop-and-frisk case. Mayor Michael Bloomberg and his police commissioner assert that stop-and-frisk is a legitimate way of decreasing crime. From their perspective, street crimes affect black and white communities and are disproportionately caused by members of an identifiable population demographic consisting of young black males. To Bloomberg, a tactic that targets that demographic segment is not racial profiling: it is a color-blind, race-neutral result of normal police work. The problem Bloomberg ignores is that the data showed, and the court concluded, that the overwhelming majority of those black males stopped and frisked were stopped without any basis besides their membership in the target demographic. In other words, their actions did not provide a probable cause for the stop, and they would not have been stopped if not for the color of their skin. In effect, the NYPD’s practice treats young black men as guilty until proven innocent. This was exactly the case with Trayvon Martin, and has long been deemed to violate the Constitution. It is disturbing to see a mayor of a major metropolitan area use race as part of a calculated profiling strategy and simultaneously assert that the policy is a race-neutral color-blind attack on crime.
Color-consciousness exists in anti-discrimination law because of the historic use of race to subordinate, and color-conscious remedies are needed to end that subordination. This is exactly what the ideology of color blindness fails to acknowledge.
“By their fruits ye shall know them” – and the fruits of color-blind ideology include the acquittal of the killer of Trayvon Martin, the evisceration of affirmative action and a wave of new attempts to suppress the African-American vote. It will take a prolonged and persistent effort, outside the courtroom and inside it, to reassert the use of the law as a tool for attacking, rather than excusing, racial inequality. But the popular reaction against color-blind jurisprudence suggests that many people are willing to take that on.