In the current issue of The American Prospect, I charge that many liberals and civil rights advocates have been too quick to accommodate to a reactionary Supreme Court plurality that considers the nation’s racial problems to be solved or beyond remedy. The Court now says that institutions of higher education must be “colorblind” in their admissions procedures, because racial preferences are unacceptable unless designed as a remedy for specific state-sponsored acts to discriminate against African Americans. And such acts, the Court says, are no longer responsible for African Americans’ disadvantages.
It may well be pragmatically necessary for universities to operate within the confines of Court rulings by substituting recruitment of low-income students for African Americans and by seeking “diversity” in incoming classes. But necessary though these policies may be in the short term, they are flawed because the descendants of American slaves and the victims of government-sponsored Jim Crow rules, in the North as much as in the South, remain uniquely entitled to affirmative action. And while students from low-income families are easy to identify, it is much more difficult to remain colorblind while continuing to identify working and middle-class African American students who are the most deserving of university admission assistance.
My article “The Colorblind Bind” explores these issues by reviewing two books by African American law professors on affirmative action. One, Place, Not Race, by Sheryll Cashin, agrees with the Court plurality that affirmative action for African Americans is passé; instead, she advocates achieving diversity by recruiting students of any race or ethnicity who live in low-income neighborhoods. The other, For Discrimination, by Randall Kennedy, explains why the commonplace objections to affirmative action are flawed, although it does not show why it is a necessary remedy for (in Justice Ruth Bader Ginsburg’s words) “an overtly discriminatory past, the legacy of centuries of law-sanctioned inequality.”
While accommodation to Supreme Court decisions is necessary, when liberals and civil rights advocates do so without objection, they make it less likely that a future Court will change course. We are, after all, only one vote away from a different plurality. And Justice Ginsburg has a new vocal ally in Justice Sonia Sotomayor. The Chief Justice glibly explains his colorblind policy by proclaiming that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In a recent case, Justice Sotomayor boldly challenged him: “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”
Read the full review of the Cashin and Kennedy books.