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Blind spot: How reactionary colorblindness has infected our courts and our politics

Ian Haney López, Earl Warren Professor of Public Law | June 9, 2011

Arizona Attorney General Tom Horne knows racism when he sees it, and he isn’t afraid to publicly castigate the most recent agents of race hate. Horne is an outspoken opponent of racism in a state roiling with tensions about “illegal aliens” and “anchor babies.” The bigotry Horne especially rebukes? Courses like “Latino literature.” If Horne has his way, the Tucson public school system—serving a student body that’s over half Mexican American and, like other districts, already suffering hard economic times—will lose $15 million in state funding this year unless it terminates its Mexican American Studies program. According to Horne, classes in the program spread “one-sided propaganda” and “brainwash” impressionable young minds by teaching un-American calumnies—that there’s prejudice against Mexican Americans in Arizona, for instance.

Horne’s effort to whip up public hysteria about the place of Hispanics in our society owes its success to the right-wing co-optation of colorblindness. This story began in law but now defines our politics. Conservatives such as Horne and Supreme Court Chief Justice John Roberts have managed to take the moral high ground away from liberals on race. Using a reactionary form of the old colorblind ideal of a society free from racial oppression, they have declared that our society must no longer see race at all—especially not in continued patterns of mistreatment and definitely not as a basis for remedial efforts. Reactionary colorblindness justifies ignoring continued inequality and attacking affirmative action. In addition, reactionary colorblindness has become a favored tool among racial demagogues in American politics.

Colorblindness once represented an argument for toppling Jim Crow segregation. Reflecting back on her early work with Thurgood Marshall, U.S. District Judge Constance Baker Motley recalled that “Marshall’s favorite quotation was, ‘Our Constitution is color-blind.’ … It became our basic creed.” In the hands of Marshall the lawyer, “colorblindness” demanded that the state not use race to oppress and demean. In a masterful exercise of rhetorical jujitsu, however, beginning in the 1970s, the political right concocted a perverse version of the colorblind ideal. It truncated the meaning of colorblindness into a flat bar on the express use of race—which meant, by then, not Jim Crow laws but remedial efforts to overcome racial injustice. This is clearly not what Marshall envisioned. As Marshall the justice would remind the Court in one of its first affirmative-action cases: “It is because of a legacy of unequal treatment that we now must permit the institutions of this society to give consideration to race in making decisions about who will hold the positions of influence, affluence, and prestige in America.”

Today, reactionary colorblindness asserts that explicitly using race is always immoral and unjust. In the tendentious formulation offered by Justice Clarence Thomas, “government-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice.” This proposition is breathtaking: Affirmative action is “just as noxious as” whites-only schools and juries, blacks forced to the back of the bus, and criminal bans on interracial marriage. This is absurd—but for the fact that over the last three decades, Supreme Court conservatives have elevated this risible logic into a constitutional truth. Thomas and his ilk have hijacked Marshall’s dream of colorblindness, turning it instead into a basis for curtailing affirmative action in higher education, ending preferences in employment, stopping set-asides in government contracting for minority- and women-owned businesses, and limiting voting districts created to give nonwhites a majority. In all these realms, conservatives wield reactionary colorblindness like a sword to slash away at programs designed to achieve the integration ideals of the civil-rights movement.

Yet colorblindness today does more than simply cut away at remedial efforts. Perhaps even more detrimentally, it also severely limits what counts as racism in the first place. Reactionary colorblindness insists that every express use of race is suspect; as a corollary, it disfavors only the express use of race. This approach, epitomized in the “intent doctrine,” demands direct proof of malice by a specific culprit. Consider the 1987 McCleskey v. Kemp decision weighing whether racism tainted Georgia’s death-penalty machinery. The Court had to accept as uncontroverted fact the grim reality that in Georgia, blacks who murdered whites were sentenced to death at 22 times the rate blacks who killed blacks were given the death penalty. But the Court brushed this aside, opining that these statistics proved “at most … a discrepancy that appears to correlate with race.” The conservative justices instead obliged the plaintiff, Warren McCleskey, a black factory worker convicted of killing a white police officer during a 1978 attempted robbery in Atlanta, to directly prove that some state official had acted with overt malice. It did not matter that racial discrimination builds at each stage of the criminal-justice system, from arrest to charging to conviction to sentencing. It did not matter that such discrimination reflects a toxic brew of well-hidden animus, unconscious biases and stereotypes, and entrenched disadvantages. It certainly did not matter that racial discrimination is a fact of life in Georgia and has been since slavery. The Court refused to acknowledge any of this, because ostensibly, all that mattered in considering McCleskey’s challenge to his death-penalty sentence was whether McCleskey could prove that some state actor had hurled a racial epithet at him. The Supreme Court has also used the intent doctrine in other cases to uphold gross racial disparities in school funding, street closings between black and white neighborhoods, caste-like structures in employment, and hiring procedures that disproportionately exclude minorities. Indeed, since 1980, the Supreme Court has never used the malice standard to find racial discrimination against nonwhites.

The ascension of John Roberts to colorblind jurist-in-chief has made the legal situation even more perilous. For decades, the Court condemned remedial measures on the ostensible ground that they constituted “noxious” discrimination against whites. But in the 2007 school-integration case, Parents Involved in Community Schools v. Seattle School District No. 1, Roberts led a 5-4 majority in striking down efforts to preserve integration by occasionally using race as a tie-breaker in assigning students to schools—though the majority acknowledged that no student suffered any particular harm. Under this more “pure” form of reactionary colorblindness, the mere act of considering race, rather than treating someone better or worse on the basis of race, constitutes the core sin. If so, however, this raises the distinct threat that reactionary colorblindness may evolve into a bar on considering race at all, including in the general policy-making arena. This threat was sharpened in the 2009 New Haven firefighter case, Ricci v. DeStefano. New Haven decided to halt a round of promotions when it became apparent that the initial procedures disadvantaged almost all black and Hispanic candidates, exposing the city to liability for discrimination. Again ruling 5-to-4, the conservative justices held that considering racial impact in order to avoid potential discrimination itself constituted racial discrimination. That bears repeating, though the logic induces vertigo: to consider race, even in order to avoid discrimination, is discrimination.

In the legal arena, Marshall’s colorblind ideal has been twisted into a reactionary defense of the status quo. Colorblindness denies that there is discrimination against nonwhites and simultaneously transmogrifies efforts to promote integration—or even simply to avoid discrimination—into racism. Enter now politicians like Arizona’s Tom Horne. Since Richard Nixon, Republicans have been using racially potent language to stir anxiety among whites. The so-called Southern Strategy involved luring white voters in that region, and ultimately across the country, out of the Democratic Party’s fold by appealing to racial fears stoked in seemingly neutral language, most notably complaints about welfare and crime. Politicians didn’t have to use epithets or make naked appeals to racial solidarity; their complaints about welfare queens and strung-out gang-bangers worked just as well. Yet in using such transparent rhetoric, the Republicans were always open to criticism for playing dirty with race. Willie Horton may have helped win an election, but at least liberals cried foul and kept the cost of racial demagoguery high. Not so today, when conservatives have adopted the parry and punch of reactionary colorblindness.

Witness how Horne gets away with targeting a Hispanic studies program that is helping Tucson’s Mexican American students overcome the odds (students in the program went on to college at triple the rate of their peers outside it). Many of the program’s proponents regard Horne’s campaign as an effort to deny those students a meaningful education—that is, as the latest episode in the long-running serial of segregated and subpar schooling for nonwhites. But Horne has a ready retort. Asked by The New York Times whether he might be likened to bigoted state officials from the days of Jim Crow segregation, Horne lashed out: “They are the ‘Bull Connors.’ They are the ones resegregating.”

Today’s colorblind warriors anoint themselves the guardians of our civil-rights ideals—and then announce that race-consciousness is the new Jim Crow. This is how it becomes possible to see racism in efforts to talk (and teach) about discrimination against Mexican Americans. Meanwhile, by recognizing discrimination only when animus is directly proved, today’s colorblind partisans blind themselves to enduring racial disparities—and also defend their own race-baiting. Horne stands among a number of Arizona politicians fanning the flames of racial discontent, and in turn, he and his cohort are participating in a long tradition of mobilizing voters through coded racial appeals. Yet, unlike many of their predecessors, today’s racial demagogues occupy the moral high ground courtesy of reactionary colorblindness. Under that version, remember, only express references to race—meaning invocations of biology or the use of racial epithets—count as racism. In contrast, alarmism about the cultural or behavioral deficiencies of nonwhites is not racist; it’s hard-nosed realism, or so we’re repeatedly told. This is the new, well-honed jujitsu of reactionary colorblindness in action: Exploit race (use coded terms to stir up racial animosity); parry (brush aside charges of racism by demanding proof that you used an old-fashioned slur); punch (accuse your critics of constantly playing the race card). The colorblind ideal of a society free of racial oppression demands continued attention to race; reactionary colorblindness instead attempts to retard racial progress and foment new racial divisions.

Cross-posted from The American Prospect.