Saturday, December 04, 2021

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 Abstract

Excerpted From: Jerome Mccristal Culp, Jr., Colorblind Remedies and the Intersectionality of Oppression: Policy Arguments Masquerading as Moral Claims, 69 New York University Law Review 162 (April, 1994) (138 Footnotes) (Full Document)

 

JeromeMcCristalCulpJrOne of the myths we tell children and law students is that the law is or can be colorblind. This myth posits colorblindness, or inattention to race, as a moral requirement of all “right” thinking people and all good law. The truth, however is that racial justice and colorblindness are not the same thing. Race-neutral policies are only as good or bad as the results they produce. No one thinks that economic efficiency or the labor theory of value are moral requirements indeoendent of their impact on the components of justice. In like manner, to assume that ignoring race in making social policy will bring about justice or achieve morality is legal fanta There are several reasons that Americans nonetheless have come to mythologize colorblindness as racial justice. First, many people believe that participants in the Civil Rights Movement sacrificed their blood, sweat, and tears for a colorblind world. This vire of the Civil Rights Movement is best captured by Martin Luther King, Jr's famous exhortation that people ought “not to be judged by the color of their skin but bu the content of their character.” If colorblindness was good enough for Martin Luther King, many argue, then it ought to be good enough for a society that still aspires to the movement's goals of equality and fair treatment.

A second reason people see colorblindness as a moral requirement is that it is easy: the colorblind principle permits judges to decide difficult issues without discussing the kind of moral system to which we aspire. In a colorblind world of mythic justice, will black people be assimilated or remain distinct? Will racial distinctions be seen as interesting flavoring in the melting pot or as important components of an individual's personality? How are race and culture connected? Rather thab providing answers to these important questions, colorblindness permits us to avoid any discussion of the morality or justice of assimilation, nationalism, or cultural difference. Instead, its proponents simple assert that justice and morality are vested within colorblindness.

A final and related reason for the persistence of the colorblind myth is that Americans simply do not have a concept of justice that can take account of racial difference. Colorblindness, therefore, is thought to embody racial justice fully. Black leaders are in part to blame for this state of affairs. In fashioning policy prescriptions to end racial oppression, many civil rights leaders criticized the policy of racial separation for limiting the economic, legal, and social opportunities of blacks. Some people have used that criticism to bolster a claim that attention to color is always and everywhere evil, and that colorblindness is always and everywhere a moral good.

These justifications for colorblindness are all overly simplistic. Dismantling Jim Crow does not require an acceptance of colorblindness. Ans, as our history shows, colorblindness has often not been a defense against the oppressive effects of racism. Martin Luther King, Jr., worked for civil rights for almost fifteen years. Much of his work required black people to become more, rather than less, race-conscious in their thinking in order to achieve change, and much of his program included race-conscious responses to the existing evil of racism. Still, people have created a mythic Martin Luther King, Jr., and associated him with a fictional notion of colorblindness. In a similar fashion, the Supreme Court has adopted colorblindness as a legal watchword, even as it systematically limits the access of blacks to jobs and jury duty, and permits racially disparate and onerous police interrogation and investigation of black Americans.

Myths are often created to fill a necessary psychological space. Colorblindness has been created to help us get over the difficulty of race in a society where race is particularly powerful. In our post-civil rights legal world, race is like the nakedness in the fairy tale of the emperor's new cloths--something only the bold or the unsophisticated are willing to acknowledge. The “grownups” tell us that we are clothed with a nonracial reality; indeed, we are told by many that we too could see that “race doesn't matter” if only we were appropriately committed to individual achievement and liberal justice. Many individuals argue that if we simply were to extend principles of colorblindness to all aspects of our private lives, the issue of race would go away as an important legal and social phenomenon. Some would extend this principal to a whole array of concerns, from gender to appearance. However, this effort to make the world colorblind (or blind to any number of issues) has to confront the fact that, in general, we refuse to limit private actions that produce consequences in both the private and public sphere. Proponents of colorblindness call for restrictions on the lega; use of race in public policy, even though they know that private actors will continue to use race for negative purposes. In short, race-neutral principles cannot prevent covert, oppressive uses of race.

This essay argues that the colorblind principle is not a moral requirement, but rather a policy argument resting on several invalid assumptions. In particular, I want to advance the seditious idea that we will not change the racial present until we adopt an effective program of race-conscious policies, for only race-conscious policies can alter the racial status quo in this country. I contend that the argument for colorblindness ultimately argues in favor of a racialized status quo that leaves black people and other racial minorities in an unequal position. By the phrase “racial status quo,” I mean the economic reality that African Americans are twice as likely to be unemployed and are more likely to be fired than are white Americans. They are also less likely to be employed in positions that provide status or higher income. Despite the many antidiscrimination laws passed since 1964, black Americans still earn substantially less income than whites. Indeed, even in pure market transactions where the race of the purchases would not seem to matter--such as the purchase of an automobile--there is significant evidence that it does: black purchasers are treated very differently than are white purchasers by sales staff.

Several other scholars and at least one Supreme Court Justice seem to have embraced, at least partically, the notion that race-conscious policy is necessary to rectify this situation. None, however, has examined the full implications of this truth. For example, David Strauss has called colorblindness a “slogan” and “myth” and has argued powerfully that one cannot attack discrimination without hurting “innocent” people and drawing attention to race. Professor Strauss argues persuasively that the antidiscrimination principle is a double-edged sword and, properly understood, may require some race-conscious hiring to get around the economic and legal difficulties of enforcing antidiscrimination legislation. Kathleen Sullivan has argued that we ought to focus race-conscious policies on remedying future inequalities that are likely to exist rather than look for past “bad” actors. Louis Michael Seidman has made the interesting observation that Brown v. Board of Education and Miranda v. Arizona both enforce a false sense of equality by suggesting that people have consented to their oppression Professor Neil Gotanda has argued that colorblindness is a multifaceted thing when used by the courts, but that it cannot, as presently formulated, achieve its goal of equality. None of these important and thoughtful scholars has attempted to deconstruct the widely accepted notion of colorblindness as morality. When Justice O'Connor laments that “(W)e ought not delude ourselves that the deep faith that race should never be relevant has completely triumphed over the painful social reality that, sometimes, it may be” she assumes both that colorblindness is the moral imperative--our long-term goal--and that it is simply human foible that prevents such a glorious eventuality. Even though Justice O'Connor's assumption is shared across the political spectrum, I believe her conclusion concerning the moral status of colorblindness is not only wrong, but dangerous, because it removes whole questions from the legal discourse, questions that we desperately need to ask. In addition, I want to emphasize that racial oppression is constituted of multiple oppressions that exist in our society--including gender, class, sexual orientation, and ethnic oppressions--all intersecting to create a complicated reality that simplistic dictates of “race-neutrality” can never hope to address.

Accordingly, I conclude that colorblindness--far from a moral principle that ought to govern everywhere--is an inadequate policy prescription for altering the racial status quo. In Part I, I discuss historical treatment of the concept of colorblindness and distinguish moral arguments from policy arguments. In Part II, I examine the major public policy arguments made in defense of colorblindness and argue that there are better ways to pursue racial justice. I also contend that, for reasons that are understood elsewhere but not applied against the race-neutral argument, it is generally impossible to attack racism without dealing with race. In Part III, I turn to the Court's recent decision in Shaw v. Reno to show how thw application of colorblind principles is itself often an impossible proposition in a world where the temptation to “peek” at race is compelling.

A BRIEF HISTORY OF THE COLORBLIND PRINCIPLE

(The question is simply how to create a legal system that considers blacks to be) white men with black skins, nothing more and nothing less.

I would like to distinguish between policy arguments, which make claims about the impact of a particular decision upon concerns measurable in some particular way, and moral arguments, which make claims about justice. The statement in the Declaration of Independence that all men are created equal is a moral claim based on notions of justice embedded in Jeffersonian language. The argument for market economies in Eastern Europe is a policy argument based on the “failure” of communism and the “success” of capitalism. The claim by Justices Marshall and Brennan that the death penalty is immoral is obviously a moral claim, as is the claim by Justices Scalia and Rehnquist that some crimes are so heinous that they require the state to respond by taking the offender's life. The argument that the dealth penalty will reduce the number of murders is a policy argument about the efficacy of capital punishment that is used to enhance the moral claim for the penalty's necessity.

Neither side of a moral debate is likely to be persuaded by proof that the policy claims support or discredit their moral positions. Policy arguments can be disaproved by empirical evidence and challenged by showing that in some situations the policy does not work or has contrary results. To refute a moral claim, however, first requires some agreement on the moral framework. Only then can one discuss whether the moral policy advocated conforms to the agreed-upon framework.

Of course, these two different kinds of claims are connected. People enhance their moral claims with arguments about the social efficacy of a particular policy. And policy arguments presume some implicit moral code for valuation. Those in favor of free markets argue that they have produced and will produce a more moral society because individual economic freedom supports the general ability of individuals to become “complete” citizens. Here, the moral argument reinforces the policy claim for the efficacy of markets.

It is because of the differences between the two types of arguments that policy claims masquerading as moral claims can be so powerful. Since the only way to refute a moral claim is to question the framework of valuation, these policy claims tend to force their opponents to argue with and lose to strawmen. It therefore becomes important to distinguish between the moral arguments and the policy arguments embedded in social discourse.

The genuine moral goal associated with race is to end race-based oppression. Colorblindness may sometimes accomplish this moral goal, but it is not the goal itself. Therefore, the colorblind principle in modern constitutional discourse must be seen as a policy argument and not a moral precept.

It is easy to see that the colorblind ideal is not sufficient to protect us from the moral dilemmas if one examines early efforts of our citizens to be colorblind. The white men who adopted the Constitution refused to put the words “race,” “color,” or “slavery” anywhere in its text. The Constitution was thus formally “neutral” towards race, slavery, and color. This conscious decision to be colorblind, of course, did not prevent the creators of the American constitutional order from accepting the pernicious American form of slavery. The Constitution was, in modern constitutional parlance, facially neutral while protecting subjugation by private parties and even governmental entities.

Moreover, the Constitution is colorblind in a particular inapt and improper way. Although the text's silence on race might allow the superficial appearance of racial “equality,” in fact the colorblindness serves to enforce the racial present. By denying the law the power to take account of and, therefore, to rectify the status quo, colorblind morality sustains a racially subordinate present for African Americans.

When courts and commentators argue for colorblindness, they implicitly are making both a public policy claim and a moral statement. The policy assertion is that colorblindness will achieve social goals effectively, and the moral claim is that the society so produced will be an objectively good one. If we understand, however, that the public policy claim ultimately reinforces the status quo of a society that is racially oppressive, then it is clear that the moral claim actually defends the white supremacy reflected in existing social arrangements. In such a “race-neutral” world, subordination of black people becomes the natural state unchangeable by public policy or other efforts by governmental agents.

I want to acknowledge at this point that there are reasons for wanting to protect the status quo. For the white majority in this country , the status quo may seem to represent powerful property and status rights that are difficult to forsake. I have some stake in the status quo as a member of the middle class, a tenured law professor who owns a house and an automobile and enjoys a well-paid, highly regarded job. While it may be morally right to provide some level of stability and protection to interests such as these, stability itself does not represent universal fairness. In a system of racial inequality, the moral claim of colorblindness is, in reality, an enfircement and defense of a status quo that leaves blacks and many other racial minorities at the bottom of the economic ladder.

When I speak of the status quo, I do not mean an absolutely fixed relationship between blacks and whites, but rather a range of positions responsive to the relative power of blacks and whites in American society. At various points, African Americans have made progress relative to whites in various ways (though not as much as some believe) . Their progress has been greatest during periods associated with race-conscious public policies such as the activities of the Freedman's Bureau during Reconstruction and the race-conscious policies of the government during World War II and the Vietnam War.

One remaining question is whether I have minimized the benefits that colorblind morality can produce. Take, for example, Loving v. Virginia, the 1967 decision which struck down a Virginia statute prohibiting interracial marriages because the statute violated the due process and equal protection clauses of the fourteenth amendment. Proponents of the colorblind principle would certainly contend that the advantages black citizens have gained from the elimination of a race-conscious statute (prohibiting all nonwhites from marrying whites with the exception of descendants of Pocahontas, are a direct result of the Court's implementation of the colorblind principle. Many would say that colorblindness served the goal of equality and morality by freeing interracial couples from the threat of criminal prosecution.

Unfortunately, this view of the racial reality is stunted and inexact. The real moral duty in Loving is not simply to permit those who wish to marry interracially to escape criminal prosecution, but rather to be able to choose whomover they wish to marry free from social and political violence. The Court's overturning of the Virginia statute did not make Virginia safe for the Lovings (a black woman and a white man), nor did it change the racial status quo in which an individual's status is changed because of a mixed marriage. The Court could not truly believe that it would be safe for an interracial couple to seek to marry in Virginia after this decision. The Court could have adopted a racially conscious policy that would truly protect the interests of people in racially mixed marriages, but it did not, primarily because the colorblindness principle does not aim to change the status quo; it simply asserts that colorblindness is morality. Black people who marry white people gain status, and some envy, both before and after the constitutional change. Whites who marry blacks continue to lose social status and family inheritances. Nothing in this principle of colorblind treatment alters the stereotypes associated with the miscegenation taboo. Rather, those rules have changed, to the extent they have, primarily as a result of concerted efforts of individuals to attack the racial stereotypes directly. In short, the colorblind principle does not eliminate the problem of racial subordination in our society or its social and economic consequences for African Americans.

Some proponents contend that colorblindness is the appropriate public policy given the traditional roles of the state and the private sector. This view holds that the government's job is to do no harm, and colorblindness fulfills this function because discrimination perpetrated by governmental action is more pernicious and because the government will always have difficulty determining what is correct or appropriate. Under this division of labor, the private sector is then free to create a new and different racial status quo if it wishes. The problem is that like most evolutionary processes, private individuals can produce change, but that change may not produce justice. What colorblindness does in the case of interracial couples, for example, is to assert a moral claim but nevertheless allow private parties to discriminate against people in both legal and illegal ways. Therefore, although colorblindness may be the correct policy in an appropriate situation, the proponents of colorblindness cannot simply “assume” that race-neutrality is synonymous with morality. Rather, they must convince us of a moral result.

Some of you who know your history better than the average law student and law professor will protest at this point that the colorblind argument was used most forcibly before the Civil War by “free” blacks seeking to extend the rule of law to themselves and others. I believe that their claims support rather than defeat my point, for ultimately what these early advocates argued for and what they got--in the limited instances in which they were successful-- is protection of their own priviledge, with little change in the racial order. Racial subordination did not end in Massachusetts just because blacks were finally admitted to the railway car.

In thinking and talking about how to deal with race, courts and commentators often confuse the notion of colorblindness--the removal of race from the legal and governmental discourse--with the antidiscrimination principle--the elimination of deprivations based on race. The antidiscrimmination principle can be read in a colorblind way; i.e., we could have written Title VII to require, for example, that people be hired on production and merit-based grounds. The statute would not mention race, but would implicitly eliminate racial choices in an employer's “meritorious” and “production-based” decision. However, Congress did not adopt this approach in passing the fourteenth amendment and Title VII of the 1964 Civil Rights Act. Instead, the Reconstruction amendments and the Civil Rights Acts of the modern era mandated the elimination of social and economic race priviledge.

This aspect of the antidiscrimination principle is explicitly colorconscious. Thus, race is a salient issue for courts when deciding whether the thirteenth or fourteenth amendments apply in constitutional interpretation. The antidiscrimination principle aims to change the present by enforcing different norms on some decisionmakers. However, the antidiscrimination principle cannot fulfill this aim when it is colorblind, precisely because it cannot then acknowledge the racial present. Although a colorblind antidiscrimination principle would perhaps prevent an increase in racial subordination, it cannot hope to change the status quo. The antidiscrimination principle therefore loses it power to effect real societal change when it becomes colorblind.

[. . .]

The proponents of racial blindness have often viewed race-conscious policies as unidimensional. Even commentators who distinguish between different types of race-conscious remedies do so inconsistently . The Supreme Court seems to have fallen into that trap as well . In a number of its cases involving race, the Court has written about race-conscious policies without adequately distinguishing their uses. There are, however, many kinds of race-conscious policies. As I have defined them, race-conscious policies extend from antidiscrimination policies to fixed numerical requirements. All of these terms of race-conscious can, in some situations, help to alter the status quo. They use the best proxy we have for race-based disadvantage-- race--to try to alter its presence in the body politic. Of course, not all race-conscious policies are born equal, and it is possible for them to backfire. But it is not possible for change to occur without such policies.

The question many of you must be asking is: do we now how to use race consciousness to eliminate the status quo? The answer is that it depends on the circumstances. The appropriate race-conscious policy will depend on how deeply entrenched racial subordination is in a particular context. The intersection of race and other issues of oppression, like gender and class, also means that fashioning an appropriate race-conscious policy is more complicated than some have assumed; it requires ultimately that policymakers and judges apply practical policy, instead of simple bright-line rules, to eliminate the consequences or racial subordination.

Traditionally, courts and commentators have assumed that colorblind policies are superior because they are effective policies which will lead to morally just results. If, as I have shown, such a vire is incorrect, and if indeed colorblind policies cannot alter the status quo, then Professor Derrick Bell's argument that racism is a permanently entrenched feature of American politics becomes more obvious. If Professor Bell is describing accurately the racial present, this reality is precisley attributable to our refusal to acknowledge that positive change depends fundamentally on race-conscious, not race-neutral, policies.

Traditionally, courts and commentators have assumed that colorblind policies are superior because they are effective policies which will lead to morally just results. If, as I have shown, such a view is incorrect, and if indeed colorblind policies cannot alter the status quo, then Professor Derrick Bell's argument that racism is a permanently entrenched feature of American politics becomes more obvious. If Professor Bell is describing accurately the racial present, this reality is precisely attributable to our refusal to acknowledge that positive change depends fundamentally on race-conscious, not race-neutral, policies.

I should end by pointing out that not all race-conscious policies need to occur through government action. When blacks create communities of influence to alter the existing structure of life, those communities are angaging in a form of race-conscious policymaking. The eradication of the racial present ultimately requires a careful balancingof sophisticated programs that rely neither on the formalism of colorblindness nor on the naive notion that the status quo is easily remediable.

EPILOGUE

When my nephew visits me in the summer, I read to him from a collection of African folktales. One of his favorites is the story of the lizard and the turtle. This old African story concerns a lizard who believed in rules. The lizard saw a turtle in the road dragging some fruit attached to the turtle's tail. The lizard jumped on the fruit amd claimed it because he had found it in the road. The turtle complained that, since he had harvested the fruit and dragged it along the road, it rightfully belonged to him. The dispute was submitted to the legal authorities. The judges, a group of lizards, came back with the decision that the fruit should be divided in half and given to the two claimants. The turtle felt cheated, but took his fruit home and thought. The next day the turtle waited by the side of the road. When the lizard came by, he jumped on his back and said, “Look what I found!” The lizard complained that he could not possibly belong to the turtle, and they submitted the complaint to the legal authorities. Based upon the previously adopted rule, the authorities ordered the lizard be divided in half with half to be given to each claimant. The turtle went home happy.

The moral of the story is that formalistic rules seldom lead to justice. The colorblind principle is such a formal rule, and the likelihood that its implementation will lead to justice is just as problematic and contingent. Adjusting color-conscious policies to reflect justice and to achieve our policy goals has the potential to alter the racial present in more appropriate ways.


Professor of Law and Director of the John M. Olin Program in Law and Economics, Duke University.

 


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