Wednesday, September 20, 2017

Innocent Whites and Colorblindness

  Innocent Whites, Racial Politics, Exploitation and Colorblindness

    • Colorblindness, Individuality, And Merit: An Analysis Of The Rhetoric Against Affirmative Action, John E. Morrison, 79 Iowa L. Rev. 313-366, 335-340 (1994). 

A pervasive argument against affirmative action is that it actually creates or exacerbates racial problems. A common version of this argument is the concern about racial politics. For example, consider Richmond v. J.A. Crosen Co. In that case Richmond, Virginia, with five of the nine city council seats held by African-Americans, enacted an affirmative action plan for city construction contacts. Justice Scalia charged that this "set-aside clearly and directly benefi[tted] the dominant political group, which happens also to be the dominant racial group." Another version of the same point is the claim that affirmative action programs injure "innocent whites," thereby encouraging the growth of white-supremacy groups. One final version argues that affirmative action is susceptible to exploitation because these programs proportedly benefit only middle-class African- Americans who do not need the help as much as those in lower socio-economic classes.

These related concerns are secondary arguments that arise from a combination of individuality and merit. Essential individualism and absolute standards can work well together. Absolute standards rhetorically support defining individuality as essential individualism because the most objective judgments of merit are useless if the social unit they measure is unstable. A historical understanding of how individuals and groups interrelate might be sufficiently stable for such an objective measure. Its historical nature, however, undermines claims that merit rather than history is responsible for the measured differences. Absolute merit standards also support the choice of essential individualism because merit determines the distribution of economic benefits and burdens. The social structure in this country, given the norm of private property, distributes rewards and punishments to the essential individual.

Conversely, the choice of essential individualism helps define merit as absolute standards. Individuality implies that absolute standards are appropriate because relative standards would require an inquiry into the difficulty of overcoming various obstacles. This inquiry would examine how others with the same social and cultural backgrounds deal with the obstacle. Thus given essential individualism, merit must be absolute standards to avoid such a group-based inquiry.

If merit is absolute standards and people are essentially individuals, racial politics and exploitation are wrong because essential individuals receive benefits or burdens for reasons other than merit. Merit should determine the distribution of benefits and burdens. Racial politics are wrong because they ignore these standards in distributing goods to particular political interest groups, all the while masquerading as civil rights that benefit society as a whole. Individuality dictates the level at which to look for harms and benefits. Thus, the harms are to Allan Bakke, Wendy Wygant, and Brian Weber; the beneficiaries are Carl Stotts, and Philip Paradise, Jr. "Innocent whites" are the victims of these politics.

The exploitation argument parallels the racial politics argument, except the context is the African-American community rather than society as a whole. According to this argument, exploitation is wrong because middle-class African- Americans do not automatically deserve more than middle-class Euro-Americans. Affirmative action distributes goods to individuals who do not need the help, under the guise of helping individuals that do. These poorer African- Americans are the innocent victims of this exploitation.

More intriguing than how individuality and merit work together, though, is the tension between these arguments and the other primary term, colorblindness. The "innocent whites" form of the argument exposes the tension by its reference to the adversely affected party's race. This argument acknowledges that race is real, that it does have a stable meaning within our culture. Such an acknowledgement is catastrophic for colorblindness, which has as its major premise that race is not stable enough to use in judicial decision making. Most opponents of affirmative action, however, avoid this tension by using the rhetoric of individuality to remove the explicit reference to racial groups. They simply refer to the alleged victims as innocent "others." . . . . The racial politics argument could violate colorblindness in the same way the term "innocent whites" does. For example, the concern only about African-Americans taking over a specific polity. The racial politics argument conflicts with colorblindness in a more fundamental way, however. For racial politics even to be possible, race must be something more than an arbitrary, meaningless grouping. Many of the opponents of affirmative action believe politics is nothing more than special interest groups competing for scarce political resources. These interest groups require some form of group identity and similarity of interest. Therefore, if racial politics are possible, race must be something more than arbitrary groupings. The races must have meaningful identities.

The exploitation argument conflicts with colorblindness for the same reasons. Arguing that some African-Americans exploit affirmative action programs requires a definition of the intended beneficiaries of affirmative action. Any such definition necessarily will be a definition of what it means to be an African-American, or a member of some other racially defined group. The assumption behind the exploitation argument is that middle-class African- Americans are not really African-Americans because they are not disadvantaged enough. Making this argument, however, admits the possibility of accurately defining racial groups. Exploitation, like racial politics, can occur only if racial categories have meaning. This admission directly conflicts with the idea of colorblindness, which argues that race is inherently arbitrary. A slightly more sophisticated version of the racial politics argument implicitly acknowledges the societal existence of different races. In this version, opponents of affirmative action argue that although race socially exists, it evades legal definition. Therefore, legal acknowledgement would lead to intractable political battles and further racial strife. This argument is ultimately self-defeating, because colorblindness draws just as much attention to race as does race- consciousness. If courts cannot define race, they can neither follow racial divisions nor ignore them because they do not know what to follow or ignore. If "African-American" is too unstable to use in an affirmative action plan because it means too many things, it is equally unstable to determine whether or not the term falls within a particular category of prohibited terms. The only way for colorblindness to function is for it to adopt an implicit definition of race. Thus, acknowledging race and not acknowledging race equally exacerbate racial tensions by asking the same questions: What are the race words? By what test do we know they are race words? How can we legally use these words? Moreover, admitting the existence of race, while denying its importance, is likely to be counterproductive. There is no particular reason to believe that if the law ignores race, race will go away. Instead, ignoring the social importance of race ensures its perpetuation because courts could not intervene in racial politics unless the victor erred and used a prohibited racial classification. Acknowledging that racial classifications do not create race or racial politics leaves the law in a precarious position. If race is a problem that exists beyond racial classifications, and if the courts can police only for racial classifications, courts are impotent to directly address racial problems.

There is an even more confounding aspect to the concern about racial politics, however. In City of Richmond v. J.A. Croson Co., Justice O'Connor hesitantly notes that African-Americans were on or just over the verge of majority status in Richmond, thereby raising the specter of racial politics. Simultaneously, she avoided holding that racial composition of the relevant political unit is a legitimate part of equal protection analysis. The reason for Justice O'Connor's tight-rope act is obvious. A racial analysis of the political units that adopt laws would have a dramatic impact on equal protection law. Less obvious is the troubling assumption behind such a vision of racial politics. The perception is that only minority racial groups engage in racial politics. Perhaps this belief stems from a sense that Euro-Americans are not a race. Therefore, Euro-Americans are incapable of racial politics by definition. In Wygant v. Board of Educ., Justice White's concurrence fuels these suspicions. He writes: "This policy requires laying off nonminority teachers solely on the basis of their race . . ., and retaining other teachers solely because they are black." Justice White makes two telling points. First, Euro-Americans have defined their ethnic heritage only in the negative-"nonminorities." Second, Justice White names the African-American race as "black" rather than just using the word "race" as he did for Euro-Americans. This shift infers that "black" has some positive meaning, while "white" is virtually without meaning. Justice Scalia's opinion in City of Richmond v. J.A. Croson Co. confirms these suspicions. Attempting to distinguish Fullilove v. Klutznick, he argues that "racial discrimination against any group finds a more ready expression at state and local levels than at the Federal level." This equation of racial politics with local politics assumes no racial group is large enough to capture the national political structure. Such an assumption must rest on the perception of Euro-Americans as a nonrace.

Euro-Americans must lose their ethnicity to maintain the neutrality of colorblindness. If colorblindness requires some image of race to function, as the racial politics argument tacitly acknowledges, the model will be the nonrace of Euro-Americans. Few outside the Euro-American community would accept such a model as neutral. That Euro-Americans can accept such a model is testimony to their fear of racial guilt.

At the heart of colorblindness lies Euro-Americans' racial guilt. Euro- Americans can attempt to deny that guilt by denying they are a race. Analyzing the specter of African-American racial politics, however, reveals the concern is really about Euro-American politics. Thus, the racial politics argument, by relying on merit and individuality, contradicts colorblindness. Attempts to resolve this problem reveal the Euro-Americans at the center of colorblindness, denying they are any race at all. [BACK   Reconsidering Strict Scrutiny Of Affirmative Action

    • Brent E. Simmons, Reconsidering Strict Scrutiny Of Affirmative Action, 2 Mich. J. Race & L. 51-93, 51-53 (Fall 1996). Copyright (C) 1996 Michigan Journal of Race & Law; Brent E. Simmons 

Constitutional history is repeating itself. One hundred years after adoption of its now discredited "separate but equal" doctrine in Plessy v. Ferguson, the U.S. Supreme Court is once again directing the future course of race relations in the country. Just as it did more than a century ago in overseeing the demise of Reconstruction, the Supreme Court is obstructing yet another national consensus supporting affirmative measures to eliminate systemic discrimination from American society. By narrow majorities, the Court has meticulously laid the groundwork for a new and untested colorblind jurisprudence, with the ultimate aim of invalidating government use of race-conscious affirmative action as an instrument of public policy in dismantling entrenched patterns of systemic discrimination against minorities and women. . . . But a constitutional requirement of "colorblindness" would bar all uses of racial classifications by state and local government, including the use of race-conscious programs to end systemic discrimination. Such a requirement, however, is supported neither by the original intent of the framers nor by the history of the Equal Protection Clause. It would also represent a radical departure from fifty-eight years of modern equal protection jurisprudence. . . .

Race and gender discrimination spans the socioeconomic spectrum. In fact, the effects of discrimination may be more pronounced at the top of the economic ladder, where the power, prestige, and monetary stakes are at their greatest. Though often related, discrimination and socioeconomic disadvantage present distinct problems that require distinct solutions. Limiting affirmative action to "social and economic disadvantage," as some have proposed, would not effectively address the "glass ceiling" phenomenon. While minorities and women in corporate management suffer no economic disadvantage, too often they are still the victims of race and gender discrimination. . . . Under the artificial constraints of strict scrutiny, however, the courts are free to veto the government's choice of more effective, race- conscious means. The Supreme Court's unfortunate and ill-conceived adoption of strict scrutiny as the constitutional standard for reviewing race- conscious affirmative action should be reconsidered for several reasons.

First, comprehensive remedies for historic and systemic discrimination against minorities and women are proper subjects for legislative and executive--rather than judicial--resolution. In strictly reviewing policy determinations by the politically accountable branches of government, the courts have exceeded their proper constitutional role. The Supreme Court's rejection of "societal discrimination" as a basis for remedial action by government simply underscores the inappropriateness of applying strict scrutiny--within the context of individual "reverse discrimination" claims--to broadly based social policies.

Second, even assuming certain constitutional limits on the use of race- conscious affirmative action, the use of strict scrutiny to create a "colorblind jurisprudence" displaces more than half a century of settled equal protection doctrine.

Third, the inconsistent application of strict scrutiny by state and federal courts has undermined legitimate efforts to dismantle systemic discrimination in public employment, contracting, and higher education.  

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