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COPYRIGHT 2007 Stanford Law School
INTRODUCTION
I. COLORBLINDNESS: RADICAL, REACTIONARY, REJECTED A. The First Reconstruction B. Emerging Theories of Race, 1900-1950s C. The Liberal Argument for Colorblindness in Brown D. The Use and Rejection of Colorblindness as a Limit on Racial Reform II. FROM RACE TO ETHNICITY A. Structural Racism B. Race as Ethnicity C. Ethnicity and Early Critiques of Affirmative Action III. EARLY LEGAL ARGUMENTS FOR COLORBLINDNESS A. Incipient Critiques of Affirmative Action in the Legal Academy B. Alexander Bickel C. Richard Posner IV. ETHNICITY AND REACTIONARY COLORBLINDNESS A. Ethnicity and Antidiscrimination Law B. Whites as Vulnerable Minorities C. Formal-Race and Culture-Race V. BAKKE A. Statutory Colorblindness B. Against Colorblindness C. A Nation of Minorities D. Black Is White, White Is Black E. Integration, Societal Discrimination, and Diversity F. Powell, Glazer, and Ethnic Revival VI. CONSTITUTIONAL COLORBLINDNESS A. Richmond v. Croson VII. INEFFECTIVE LIBERAL OPPOSITION TO REACTIONARY COLORBLINDNESS A. William Brennan B. John Hart Ely and Paul Brest CONCLUSION
I believe that there is a moral [and] constitutional equivalence between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality.... In each instance, it is racial discrimination, plain and simple.
--Justice Clarence Thomas ([dagger])
INTRODUCTION
Justice Clarence Thomas's equation of laws designed to subjugate with those intended to foster equality is laughably absurd. "Laws designed to subjugate a race": surely this must include slave law, black codes, and Jim Crow regulations; the doctrine of discovery and the trail of broken treaties; the Chinese exclusion acts, naturalization limited to "white persons," alien land laws, and Japanese internment; and the legal instantiation of Manifest Destiny imposed on the northern half of Mexico, Puerto Rico, and Hawaii. Can Thomas really believe that the limited use of race-conscious means to promote integration constitutes instead another, equivalent instance of racial oppression? This claim merits only derision--but for the fact that it underlies contemporary constitutional antidiscrimination law.
Drawing on decisions and reasoning from the 1970s, the Supreme Court in the last three decades has moved ever closer to a full embrace of an anticlassification or colorblind conception of the Equal Protection Clause. (1) Under this approach, much criticized by legal scholars, the Fourteenth Amendment demands the highest level of justification whenever the state employs a racial distinction, irrespective of whether such race-conscious means are advanced to enforce or to ameliorate racial inequality. (2) Contemporary constitutional race law insists on a stark congruence between hostile racial practices on the one hand and efforts to respond to societal discrimination on the other. But when this risible equivalence is stated so baldly, the intellectual problem with contemporary colorblindness is immediately manifest: what justifies the strict moral and constitutional equation of affirmative action and Jim Crow?
This Article probes the conceptions of race and racism used to legitimize the rise of "reactionary colorblindness." By reactionary colorblindness I mean an anticlassification understanding of the Equal Protection Clause that accords race-conscious remedies and racial subjugation the same level of constitutional hostility. (3) I use this term to distinguish the current doctrine from colorblindness generally.
Given the long and sorry history of racial subordination in the United States, there is tremendous rhetorical appeal to Justice John Marshall Harlan's famous dissent in Plessy v. Ferguson that "[o]ur constitution is colorblind, and neither knows nor tolerates classes among citizens." (4) At first blush, it seems difficult to argue against the insistence that the state should finally eschew all racial distinctions. But as it stands now, this appeal depends almost entirely on the conflation of colorblindness as an ideal vision of a future society, and as a means to achieve this end. (5) In evaluating colorblindness as an actual mechanism for racial change, even Justice Sandra Day O'Connor--herself the author of many of the decisions shifting the Court toward reactionary colorblindness--belatedly recognized that context matters. (6) With cursory attention to context, one can trace a general shift over the twentieth century from colorblindness as a progressive demand to a reactionary one.
This metamorphosis in the political register of colorblindness is reflected in the arguments made by Thurgood Marshall the lawyer and Thurgood Marshall the Supreme Court Justice. As counsel for the NAACP in the late 1940s and early 1950s, Marshall repeatedly encouraged his colleagues to cite Harlan's famous injunction, seeking thereby to wield colorblindness against the racial degradation given constitutional sanction by Plessy. (7) Yet as the Court struck down Jim Crow laws and Congress proscribed major forms of private discrimination over the course of the 1950s and 1960s, civil rights activists increasingly recognized the need for state and public actors to use race-conscious means to target the edifices of inequality. In this new context, the call for colorblindness came instead from those opposing racial integration: the language of colorblindness, enshrouded with the moral raiment of the civil rights movement, provided cover for reactionary opposition to race-conscious remedies. By 1978, Justice Marshall found himself urging the Court in its first full affirmative action case to reject colorblindness. "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," Marshall inveighed. (8) As the nation's racial commitments swung from defending to dismantling formal white supremacy, the practical import of colorblindness shifted from promoting to defeating integration, and its valence slipped from progressive to reactionary.
Marshall did not prevail in his colorblind arguments, either for it as a lawyer or against it as a Justice. Today, colorblindness as a presumptive bar on affirmative action--that is, reactionary colorblindness--has been firmly read into the Fourteenth Amendment. The most striking feature of contemporary colorblindness lies not in the mere fact of its opposition to race-conscious remedies, however, but in the strict doctrinal equation of affirmative action and Jim Crow racism. Supporters of affirmative action, such as Justice William Brennan, conceded that race-conscious preferences raise troubling issues, for instance undermining liberal notions of individual merit and potentially fueling racially divisive politics as well as stigmatic notions of minority inability. (9) Indeed, Brennan's concerns led him to favor heightened, though not strict, constitutional scrutiny of affirmative action. (10) Yet the underlying premise of reactionary colorblindness is not simply that race-conscious remedies raise moral and political and even constitutional problems, but that benign and invidious discrimination are indistinguishable and equally pernicious. This Article's purpose is to carefully historicize this foundational assertion of noxious congruence.
In the 1960s, a broad consensus began to emerge that racism reflected more than the prejudice of discrete individuals but represented instead a deeply entrenched aspect of U.S. society. (11) This conceptualization implied a national obligation to undertake sweeping structural reform. Simultaneously, however, a countervailing racial theory developed in the 1960s and early 1970s, drawing on notions of ethnicity elaborated early in the twentieth century to celebrate pluralism among whites. This competing narrative suggested that racial subordination was largely past and that social inequalities, if any, reflected the cultural failings of minorities themselves, while further postulating that there existed no dominant white race as such, but instead only a welter of competing cultural groups defined in national origin terms, for instance, Irish- or Italian-Americans. Under this conception, not only did the supposed absence of entrenched disadvantage strip affirmative action of its primary rationale, but preferential treatment for non-whites amounted to invidious discrimination against other "minorities"--that is, the discrete national origin groups into which whites had been disaggregated.
As arguments for reactionary colorblindness developed in the 1970s, its proponents confronted the task of explaining why the command of equality proscribed efforts to undo the legacy of centuries of racial oppression. These arguments could not be made solely in legal terms, but required as well the elaboration of a legitimating account regarding the nature of race and racism in the United States. Placing developments in equal protection law in the larger context of evolving racial ideas, my primary aim in this Article is to demonstrate that race-as-ethnicity provided the first coherent intellectual justification for reactionary colorblindness. My secondary aim is to critique this impoverished account of race, as well as reactionary colorblindness generally.
I start from the premise that race constitutes a socially and legally produced hierarchical system structurally embedded in U.S. society. (12) I insist on this irrefragable point not because my argument depends on a specific conception of racial subjugation, but because it requires the recognition that a general dynamic of systemic group subordination lies at the core of race in the United States. (13) Charles Black wrote in 1960 that the many forms of racial oppression were "matters of common notoriety, matters not so much for judicial notice as for the background knowledge of educated men who live in the world." (14) I write in a similar vein (though admittedly at somewhat greater length). I will not spend time establishing the fact of racial hierarchy, but will note where legal thinkers have failed to grapple with it, as it forms the basis of my critique of both ethnicity theory and reactionary colorblindness.
Part I reviews the changing understandings of race in the United States to the mid-twentieth century, while also briefly tracing colorblindness during and since Reconstruction. After discussing postbellum efforts to use colorblindness against racial caste laws, it focuses on the attempt to use colorblindness as a shield against integration in the 1950s and 1960s, a tactic emphatically rejected by the Supreme Court. Part II notes the emergence of a structural understanding of racial domination in the 1960s, and details the countervailing effort to recast race relations in ethnic terms, reflected for instance in the work of leading neoconservatives such as Patrick Moynihan and Nathan Glazer. Part III explores early attempts by legal scholars to justify a regime of reactionary colorblindness, interrogating the impassioned rhetoric of Alexander Bickel as well as the first fully elaborated demand for a constitutional ban on affirmative action, authored by Richard Posner in 1974. Building on these background sections, Part IV highlights Glazer's seminal contribution to arguments against affirmative action made in a 1975 book entitled Affirmative Discrimination, where he wove together ethnicity and colorblindness. (15) Part V identifies Regents of University of California v. Bakke as a critical juncture when the Supreme Court fully engaged the debate over reactionary colorblindness, showing how Justice Lewis Powell's opinion constitutionalized Glazer's ethnic framework. Part VI adumbrates the first adoption of conservative colorblindness by a Supreme Court majority in Richmond v. Croson, demonstrating the justificatory power of Powell and Glazer's ethnic analysis. Finally, Part VII critiques the inability of affirmative action's liberal defenders, including Justice Brennan, John Hart Ely, and Paul Brest, to respond effectively either to the ethnicity model or to the equation of affirmative action with racial discrimination.
I do not propose to assess here the constituent components of colorblindness, either as legal doctrine or as racial ideology. While I hope eventually to turn to that work, such a project would focus principally on the 1980s and 1990s and, in any event, excellent work on this topic already exists. (16) This is a history of the ideas about race and racism in the United States used in the 1970s by legal elites, meaning leading constitutional scholars and Supreme Court Justices, to justify the claim that under our Constitution race-conscious remedies and racial subordination are equal evils.
I. COLORBLINDNESS: RADICAL, REACTIONARY, REJECTED
Contemporary colorblindness arises out of both the doctrinal flow of Supreme Court cases that washed away Jim Crow and the larger flood of changing racial ideas over the twentieth century. This Part briefly surveys those mingled elements by focusing on the period from Reconstruction to Brown v. Board of Education, (17) during which time colorblindness was often advanced as a method to attack racial hierarchy; and then from Brown to the Swann decisions in 1971, (18) when multiple jurisdictions developed a sudden tropism toward the colorblind Constitution, only to have the Supreme Court firmly reject colorblindness as a limitation on racial reform.
A. The First Reconstruction
Contemporary proponents of reactionary colorblindness almost invariably draw a straight line from Harlan's 1896 Plessy dissent to their own impassioned advocacy for race blindness in all circumstances today. Andrew Kull, for example, on the first page of his 1992 book, The Color-Blind Constitution, quotes Harlan's invocation of colorblindness before baldly asserting: "The comfortable metaphor stands for an austere proposition: that American government is, or ought to be, denied the power to distinguish between its citizens on the basis of race." (19) Like virtually every other modern fan, however, Kull elides Harlan's acknowledgement of white superiority in the very paragraph in which he proclaimed fealty to colorblindness. That paragraph began: "The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time...." (20) As this statement makes immediately manifest, the earliest battles over colorblindness took place in terms and with implications we scarcely understand today.
The debate in Plessy over the state's use of race did not turn on affirmative action, as it does now--indeed, the Congress which drafted the Fourteenth Amendment also enacted numerous laws specifically benefiting blacks. (21) Rather, the central question concerned where to place limits on the state's participation in fostering the separation of racial groups understood--by all members of the Court--to be unequal by nature (hence Harlan's comfortable endorsement of white superiority). Harlan and the majority agreed on the basic premise that the state could enforce racial separation in the social but not in the civic or political arenas; they differed on where to draw the line between those spheres. (22) For Harlan, the segregated train cars at issue in Plessy implicated the capacity of blacks to participate as full citizens in civil life, whereas the majority saw such segregation only as a regulation of social relations sanctioned by long usage and custom. Two years later, Harlan would write for a unanimous Court in supporting a whites-only high school, finding no "clear and unmistakable disregard of rights secured by the supreme law of the land"--education, Harlan concluded, lay within the social sphere in which the state could mandate racial separation. (23)
Harlan simply never meant to proscribe all governmental uses of race through his evocative call for colorblindness. Indeed, a fairer read (albeit one that also suffers from historical presentism) would link Harlan's effort to craft a broad conception of the civil sphere to opposition to state involvement in racial oppression, or more generally to an antisubordination stance. The civil arena mattered so greatly because state exclusions from public life threatened to reduce the newly emancipated once again to an inferior social status sanctified by law. Thus, immediately before his invocation of colorblindness, Harlan stated that "in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here." (24) And in another, more compelling portion of his dissent, he asked: "What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens?" (25) Harlan's central objection to Louisiana's use of race in Plessy turned on relations of group domination and subordination, on state-sanctioned superior classes and legally degraded castes. Whether or not one can fairly harness Harlan to a proaffirmative action interpretation of the Fourteenth Amendment, the call for colorblindness during Reconstruction, as in Harlan's hands, principally aimed at combating racial oppression. (26)
Even during that epoch, though, colorblindness had the potential to impede efforts to break down racial hierarchy. After Plessy, explicitly race-based regulations designed to enforce a racial caste system arose across a broad range of "social" arenas, from education to marriage to public facilities. But in the civil and political spheres, involving, for instance, jury duty and voting, the Court barred racial exclusion in cases such as Strauder v. West Virginia. (27) In response, in these areas colorblind subordination became the norm, and encountered no constitutional hostility. Thus, in Williams v. Mississippi, the Court considered a poll tax and other facially race-neutral limitations on voting which Mississippi boldly admitted were aimed at getting around the constitutional prohibition on racial discrimination: "Restrained by the Federal Constitution from discriminating against the negro race, the convention discriminates against its characteristics, and the offences to which its criminal members are prone." (28) Responding to this confession of anti-black hostility, the Court nevertheless ruled that "nothing tangible can be deduced from this.... [T]he operation of the [Mississippi] constitution and laws is not limited by their language or effects to one race. They reach weak and vicious white men as well as weak and vicious black men...." (29) Even where a state confessed its discriminatory intent, so long as it accomplished its malignant purpose in a manner that did not employ a racial classification, the Court found the Constitution satisfied. Having forbidden states from using race as an explicit basis for subjugation in the civil and political spheres, the Court nonetheless acquiesced to racial oppression in those arenas so long as achieved in a facially colorblind manner.
Colorblindness as a ban against the use of race has no inherent political valence; instead, its emancipatory or repressive implications arise from the racial milieu generally and even more specifically in terms of the racial classifications to be prohibited. Colorblindness is merely a rule or a policy prescription; one must distinguish colorblindness as a means and as an end, for as a method it utterly lacks a transcendent moral quality, and instead takes on political and social significance only by virtue of its instant application. (30) During Reconstruction and especially after Plessy, proponents of colorblindness saw in it a potential to undermine the explicitly race-based subordination that formed the core of Jim Crow segregation. But during this period, and in a way that strikingly anticipated our current situation, the Supreme Court instead used colorblind reasoning to preserve racial hierarchy, by upholding facially neutral but nevertheless deeply racially oppressive state action. (31)
B. Emerging Theories of Race, 1900-1950s
By the late nineteenth century, the earlier American belief that racial hierarchy reflected a divine order made manifest by the continental separation of races and by their obvious branding with different colors had largely given way to the certainty that racial stratification reflected a natural ordering of myriad human groups measurable through the techniques of scientific empiricism. Under this conception, races reflected natural biological divisions, and racial groups differed not just in terms of physical markers, but more fundamentally in terms of group abilities, temperaments, and destinies. There was, under this world view, no "racism" as such, but instead only social and legal practices that recognized innate differences.
Race science, however, began to break down in the early years of the twentieth century. In part, this reflected increasing categorical instability. The more closely students of race parsed humanity, the more unstable racial categories became, including the "easy" groupings of white and black, red and yellow. (32) In addition, however, by the 1920s a more fundamental attack on race had developed, challenging not just racial categories, but the connection between race and ability. Led by cultural anthropologist Franz Boas, social scientists increasingly rebutted the claim that race explained anything at all about group or individual temperament, intelligence, or potential. (33) Boas began arguing as early as the 1880s that culture, and not human evolution, explained differences between groups. By the 1910s and 1920s, many social scientists insisted that race either did not exist at all (a nod to categorical instability) or amounted to no more than superficial physical differences. In either event, however, the real action lay not in the physical realm but instead within the sphere of culture, understood as the sum total of social organization (rather than as the folkways of particular sub-groups). (34) Thus, in the early part of the twentieth century, a liberal race theory developed that pictured race in terms of merely superficial physical differences, and that decidedly repudiated the claim that nature placed races in hierarchical relationship to each other. This theory was "liberal" in the sense that it broke from racial theories that sought to justify the status quo of stark racial hierarchy, and also because it rejected the connection between racial group membership and individual ability and worth. It was also liberal in contradistinction to the more radical claim, still on the horizon, that race and racism formed bedrock elements of U.S. society that would necessitate fundamental structural change to achieve racial justice.
Despite the ascendance of this liberal view of race as physiognomic and irrelevant, however, in the 1920s and into the 1930s powerful segments of U.S. society, including the courts and legislatures, remained committed to biological theories of innate and meaningful difference. During this period, the naturalistic conception of race evolved into eugenics, biological race theory's most virulent expression. Under this ideology, not only did nature place races along a continuum of intelligence, capacity, and worth, but racial mixing inevitably led to racial degeneration, thus warranting aggressive efforts to maintain supposed racial purity. Perhaps no one more successfully proselytized this calumny in the United States than Madison Grant in his 1916 text The Passing of the Great Race:
The cross between a white man and an Indian is an Indian; the cross between a white man and a negro is a negro; the cross between a white man and a Hindu is a Hindu; and the cross between any of the three European races and a Jew is a Jew. (35)
These beliefs spawned legislation in the United States closing the border to southern and eastern European immigrants, and also promoting the sterilization of "low-grade" whites (with "grade" supposedly measuring, among other things, intelligence and criminality). (36) In Germany, such views gave rise to the 1935 Nuremberg Laws on Citizenship and Race and soon thereafter to the monstrosity of racial extermination. Experience with this brand of racial extremism during World War II spelled the near death of eugenics in the United States. (37)
The extreme racialization of European groups, in particular the utter dehumanization of Jews, led to the introduction of a new word into the popular vocabulary of the United States: "racism." George Fredrickson, in his history of that phenomenon, concludes that "[t]he word 'racism' first came into common usage in the 1930s when a new word was required to describe the theories on which the Nazis based their persecution of the Jews." (38) The emergence of "racism" marked a tremendously important intellectual juncture, for it signaled an increasingly robust recognition that notions of racial hierarchy were contestable (and indeed detestable) ideas and not instead acquiescence to natural fact. In the 1940s, undoubtedly drawing on the terrible events in Europe, Justice Frank Murphy became the first Supreme Court Justice to use the word racism in a Court opinion. (39) He used that term in five cases between 1944 and 1948, clearly having in mind the racial horrors of Nazism-as when he condemned efforts to restrict land ownership by persons of Japanese descent as "an unhappy facsimile, a disheartening reminder, of the racial policy pursued by those forces of evil whose destruction recently necessitated a devastating war. It is racism in one of its most malignant forms." (40) By and large, however, the concept of racism was not applied across the white/non-white divide until the 1960s, instead remaining a term that primarily designated illegitimate and unfounded thinking that racially distinguished among whites. (41) Until the 1960s, for many the color line continued to mark a natural division between superior and inferior races. Murphy's invocation of racism proved two decades premature, for the Court would not again talk in such stark terms until 1967, when in Loving v. Virginia it branded antimiscegenation laws instances of "White Supremacy." (42)
Nevertheless, the seemingly natural equation of races with socially salient differences had substantially foundered by mid-century, even as applied to blacks and other non-whites. Reflecting but also further catalyzing this break, in 1944 Gunnar Myrdal published An American Dilemma, marking a watershed in twentieth century racial thought. (43) Building on the framework advanced by Boas and other liberal race theorists, and with financial support from the Carnegie Foundation to underwrite "a comprehensive study of the Negro in the United States," Myrdal commissioned dozens of studies by many of the leading social scientists of the day, shaping the whole into a massive indictment of the systemic oppression of blacks in the United States. (44) Myrdal and his colleagues believed that race reflected social rather than biological divisions, or at most amounted to superficial physical differences such as "skin color," and had little or nothing to do with intelligence, morals, temperament, or character. (45) Instead, they laid social differences between races directly at the feet of culture and environment, or more specifically, the power of whites over blacks: "[P]ractically all the economic, social, and political power is held by whites. ... It is thus the white majority group that naturally determines the Negro's 'place.' All our attempts to reach scientific explanations of why the Negroes are what they are and why they live as they do have regularly led to determinants on the white side of the race line." (46) Myrdal's tome solidified the demise of biological racism among progressive thinkers and established a new paradigm in which social differences between races that previously served as evidence of innate superiority and inferiority now came to be understood as the result of illegitimate racial practices. (47)
This new racial analysis was simultaneously radical and palliative: radical, because it laid the blame for inequality squarely on a dominant culture wedded to racial hierarchy, but palliative because it assured America that triumph over its race problems lay readily within reach. Although the compendious studies assembled in An American Dilemma demonstrated the deep structural and functional dynamics of racial subordination, Myrdal's analysis relegated this material to the background, instead emphasizing discrimination as a matter of individual attitudes. Building on the view that race reduced to phenotype and nothing more, Myrdal attributed racially harmful actions to the persistence of the irrational belief that race said something meaningful about individual capacity. Thus, in his introduction Myrdal offered this prescription for change, using italics for emphasis:
The American Negro problem is a problem in the heart of the American.... It is there that the decisive struggle goes on. This is the central viewpoint of this treatise. Though our study includes economic, social, and political race relations, at bottom our problem is the moral dilemma of the American.... (48)
The core problem of race, Myrdal asserted, lay in misguided attitudes: the "dilemma" to which his title pointed was the need for Americans to choose between their vaunted ideals and their embrace of irrational prejudice. Its resolution, Myrdal assured his readers, was already settled. For Myrdal, the telos of American history pointed to a fast-approaching end to the injurious mythology of race. "What America is constantly reaching for is democracy at home and abroad," he wrote in his concluding chapter; "[t]he main trend in its history is the gradual realization of the American Creed." (49) The insurgent liberal race theory of the early twentieth century--in which race comprised only irrelevant somatic difference--became common wisdom among liberals by mid-century, but now further refined to include the beliefs that racial discrimination stemmed from individual maldisposition rather than structural dynamics, and that racial harmony required little more than convincing bigots to mend their irrational ways. (50)
C. The Liberal Argument for Colorblindness in Brown
In its campaign against segregation, the NAACP Legal Defense Fund continued the Reconstruction era pattern of attacking the use of racial classifications as a subordinating practice, and also began to draw on Myrdal's groundbreaking work. In 1947 Thurgood Marshall argued before the Supreme Court in Sipuel v. Board of Regents of University of Oklahoma, a precursor to Brown, that "[c]lassifications and distinctions based on race or color have no moral or legal validity in our society. They are contrary to our constitution and laws...." (51) Marshall attacked not classification per se, but rather segregation, and more particularly the oppression attendant to Jim Crow. In Plessy, the Court had rejected the idea that segregation harmed blacks, infamously writing: "If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it." (52) In turn, for the next five decades the Court continued to reason as if no subordination resulted from segregation, making the question of harm a central element in the challenge to Plessy and its progeny. To prove this victimization in Sipuel, Marshall turned for support to Myrdal, extensively citing An American Dilemma. (53) He used the same strategy combining an anticlassification argument with an emphasis on segregation's deleterious consequences in Brown, arguing that "[d]istinctions drawn by state authorities on the basis of color or race violate the Fourteenth Amendment," (54) and invoking An American Dilemma to support the contention that segregation necessarily caused racial degradation. (55) During oral argument in Brown, Marshall insisted that "Gunnar Myrdal's whole book is against the argument [for segregation].... I know of no scientist that has made any study, whether he be anthropologist or sociologist, who does not admit that segregation harms the child." (56)
The Supreme Court in Brown seemingly adopted Myrdal's framing of racial dynamics as irrational prejudice. In striking down school segregation, Chief Justice Earl Warren identified the principal harm of segregation as the "feeling of inferiority as to their status in the community" generated in black children by state-mandated racial separation. (57) This allusion to stigma invoked the prejudice model's emphasis on psychological injury, even as Warren's failure to note any of segregation's material harms implied an exclusive concern with individual bad actors and victims. That Warren said nothing about the gross inequalities attendant to segregation no doubt reflected other factors besides simply a subscription to liberal race theory. As many commentators have noted, Warren crafted his opinion to disparage as little as possible Southern racial institutions, the better to secure cooperation from other Justices as well as targeted school districts. In addition, the posture of the cases consolidated in Brown constrained a focus on material inequality, because the goal there was to finally attack the "separate" rather than merely the "equal" component of Plessy's "separate but equal" formulation. (58) Nevertheless, Myrdal's analysis set the terms of the debate in Brown about the nature of racism. A striking illustration of this comes from a memo on the case written by William Rehnquist in 1952, when he served as a clerk to Justice Robert Jackson. It concluded: "I think Plessy v. Ferguson was right and should be reaffirmed. If the Fourteenth Amendment did not enact Spencer's Social Statics, it just as surely did not enact Myrddhahl's [sic] American Dilemna [sic]." (59) The debate in Brown over the wrong of segregation was conducted in terms of liberal race theory. When Warren declared segregation inherently unequal, he adopted Myrdal's approach, leaving no doubt of his intellectual sources in his famous footnote eleven, which ended with "And see generally Myrdal, An American Dilemma." (60)
D. The Use and Rejection of Colorblindness as a Limit on Racial Reform
Even a decade after Brown, however, virtually no southern school systems had actually desegregated. (61) White support for Jim Crow segregation ran the gamut from endless litigation on the part of local school boards, to bold intransigence by state officials, to violence by angry mobs. (62) In addition, beginning almost immediately in the wake of Brown, various jurisdictions, many but not all of them in the South, declared that the Constitution barred discrimination but did not require actual integration. (63) From there, it was but a short step to the contention that the Constitution affirmatively prohibited the pursuit of integration through race-conscious means. Thus, in 1964 a district court in Ohio declared:
The law is color-blind and ... that principle, which was designed to insure equal protection to all citizens, is both a shield and a sword. While protecting them in their right to be free from racial discrimination, it at the same time denies them the right to consideration on a racial basis when there has been no discrimination. (64)
The following year, the federal district court in South Carolina quoted approvingly the conclusion that "[t]he Constitution is color-blind; it should no more be violated to attempt integration than to preserve segregation." (65) By 1965, reactionary colorblindness had emerged: according to the new friends of colorblindness, the Constitution forbade any state use of race, whether to segregate or--much more pertinently--to integrate.
But the effort to fashion a colorblind constraint on racial reform was also opposed at the lower court level, and eventually resoundingly rejected by the Supreme Court. Judge John Minor Wisdom of the Fifth Circuit offered the most comprehensive rebuttal:
The Constitution is both color blind and color conscious. To avoid conflict with the equal protection clause, a classification that denies a benefit, causes harm, or imposes a burden must not be based on race. In that sense, the Constitution is color blind. But the Constitution is color conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination. The criterion is the relevancy of color to a legitimate governmental purpose. (66)
Wisdom recognized the necessity of measuring the constitutional significance of colorblindness against the uses of race ostensibly proscribed. Where the goal was integration, he concluded, color-conscious means were both constitutional and necessary: "[D]isestablishing segregation among students, distributing the better teachers equitably, equalizing facilities, selecting appropriate locations for schools, and avoiding resegregation must necessarily be based on race." (67)
The Supreme Court added its voice to the rejection of colorblindness in 1968 in Green v. County School Board, and again twice in the 1971 Swann cases. In Green, a unanimous Court rejected as inadequate a "voluntary" integration plan, emphatically insisting that Brown did not simply prohibit discrimination: school boards were "clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would...
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