Race, Affirmative Action, and the Law

by Randall Kennedy

  HISTORY

  The single most widely cited statement associated with the idea of color blindness is a declaration by Justice John Marshall Harlan:

  In respect of civil rights, common to all citizens, the Constitution of the United States does not … permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights.…There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.4

  Harlan made this statement in 1896 in dissenting from the Supreme Court’s ruling in Plessy v. Ferguson, which upheld the constitutionality of a Louisiana law that required passengers of different races to occupy “equal but separate” cars on intrastate trains. The Court concluded that the compulsory racial separation was reasonable in light of custom and public opinion. Harlan, by contrast, saw the law as a stigmatizing brand inflicted on Negroes.

  Everyone knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks as to exclude colored people from coaches occupied by … white persons.…What can more certainly arouse race hate, what can 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 the public coaches occupied by white citizens?5

  Harlan’s assertion that government ought not be allowed to make racial distinctions in the enjoyment of civil rights stemmed in part from a resilient but marginalized strand of thought and feeling in nineteenth-century America. Contributors to this tradition included the women dissidents who petitioned the Massachusetts legislature in 1839 “to repeal all laws … which make any distinction … on account of color.”6 Another contributor was Charles Sumner, who, in attacking racial segregation in the Boston public schools, maintained that any and all racial discriminations amounted to unacceptable manifestations of caste. More immediately, Justice Harlan’s evocation of the color-blind Constitution echoed the brief of the losing lawyer in Plessy. Albion Tourgée remarked that “Justice is pictured blind and her daughter, the Law, ought at least to be color blind.”d 7 Condensing that language, Harlan made it more memorable.e

  Justice Harlan offered no historical or textual support for his claim that “our Constitution is color blind.” There is little support to offer. Congressional framers of the Fourteenth Amendment declined to accept language that would have expressly prohibited government from drawing racial lines. Wendell Phillips proposed a Fourteenth Amendment that would have proclaimed that “no state shall make any distinction in civil rights and privileges … on account of race, color, or descent.”8 If adopted, that proposal would have required, as a constitutional rule, color-blind immediatism. That proposal, however, was not adopted; what was adopted was a purposefully open-ended standard that says nothing about racial distinctions. Moreover, many of the framers and ratifiers of the Fourteenth Amendment countenanced laws that explicitly differentiated people on a racial basis. In a few instances, Congress enacted laws that benefited only “colored” persons. More widespread were state laws that separated people along racial lines. Most discussed at the time were laws that prohibited people of different races from marrying one another. When asked whether such statutes were inconsistent with the demand that states afford all persons “the equal protection of the laws,” the principal framers of the Fourteenth Amendment replied that there was no such inconsistency: whites could not marry blacks, just as blacks could not marry whites—all were subject to the same law and thus treated equally. The Supreme Court ratified that understanding of the Equal Protection Clause in 1883 (thirteen years before Plessy), in a unanimous ruling that included Justice Harlan. In Pace v. Alabama, the Court upheld an Alabama law that punished interracial fornication more harshly than intraracial fornication.9 Since the law applied the same set of punishments to whites as to blacks, the Court saw no constitutional infirmity in the statute. It was, in the Court’s view, race-neutral. True, even at the dawn of the Equal Protection Clause, there were some who repudiated oppressive racial laws that were camouflaged by race-neutral formalism.10 But that perspective was an outlier among those with political influence.11

  In addition to the absence of any reference by Harlan to a textual or originalist constitutional basis for his famous declaration is another noteworthy feature—one often obscured by casebook editors and others who decline to quote what the justice stated immediately before his allusion to color blindness. He wrote,

  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, if it remains true to its great heritage and holds fast to the principles of constitutional liberty.12

  What Harlan seemed to be saying was that, to remain ascendant, “the dominant race” did not need to resort to ruses like “equal but separate,” precisely because it was dominant and would “continue to be for all time” if it observed “the principles of constitutional liberty.” These principles, he suggested, posed no real threat to white supremacy. Under the new regime of the Thirteenth, Fourteenth, and Fifteenth Amendments, white supremacy in American society could continue unabated, albeit in a new form. This reading of Harlan’s color-blindness declaration comports realistically with the historical, as opposed to the romanticized, Justice Harlan—after all, he was a former slave owner, initially opposed the Thirteenth Amendment, and tolerated various forms of segregation, notwithstanding his Plessy dissent.f 13

  Whatever its limitations, the Harlan dissent did challenge Jim Crow segregation. Perhaps unsurprisingly, therefore, it was absent from the pages of the United States Reports during the long period when segregation was seen as an innocuous racial distinction, as opposed to a dangerous form of racial discrimination. But the absence continued even after the Court began to view segregation critically. References to the Harlan dissent appear in neither Brown v. Board of Education nor any of the other Supreme Court decisions of the 1950s that invalidated state laws requiring racial segregation. The first time the Harlan declaration surfaces explicitly in a Supreme Court opinion subsequent to Plessy v. Ferguson is in a concurring opinion by Justice William O. Douglas in a 1961 case, Garner v. Louisiana, that invalidated the arrest of civil rights demonstrators.14 That reference, however, is fleeting; for the remainder of the 1960s it does not reappear.

  The Harlan declaration became an oft used rhetorical weapon only later, when it was deployed against affirmative action policies that would have been almost inconceivable when Plessy was decided.g Justice Potter Stewart (joined by William Rehnquist) inaugurated the practice in 1980, when he began a dissent to the Court’s validation of a federal minority business set-aside program by quoting Harlan.15 Elaborating, Stewart wrote that in Plessy the Court had upheld “a statute that required the separation of people on the basis of race … because it was a ‘reasonable’ exercise of legislative power and had been ‘enacted in good faith for the promotion of the public good.’ ” Now, he complained, “the Court upholds a statute that accords a preference to citizens who are ‘Negroes, Spanish speaking, Orientals, Indians, Eskimos, and Aleuts,’ for much the same reasons. I think today’s decision is wrong for the same reason that [Plessy] was wrong.”h

  In 1989, Justice Scalia invoked “our Constitution is colorblind” to explain his vote to invalidate a municipal business set-aside program analogous to the one to which Stewart had objected. According to Scalia:

  The difficulty of overcoming the effects of past discrimination is as nothing compared with the difficulty of eradicating from our society the source of those effects, which is the tendency—fatal to a Nation such as ours—to classify and judge men and women on the basis of their country of origin or the color of their skin.16

  In 2007, Justice Clarence Thomas invoked the Harlan declaration in a case that was not precisely an affir
mative action dispute but did involve the legality of state action challenged by whites who claimed that, on account of race, their children had been victimized by reverse discrimination. Supporting the plaintiffs, Thomas declared, “My view of the Constitution is Justice Harlan’s view.”17

  APPARENT ATTRACTIONS OF COLOR BLINDNESS

  Constitutional color blindness has several apparent attractions. It offers a clear rule—disregard race altogether in assessing people—that is vivid, succinct, and simple: it enjoys the bumper sticker advantage.18 It is understandable to all and amenable to accountability. It appears to promise a clean break with a long-standing and ugly practice.

  Color blindness also offers the allure of heroic associations, at least until the 1970s. Above I quoted the color-blindness rhetoric of nineteenth-century radical racial egalitarian Wendell Phillips. His ideological heirs kept this rhetoric alive throughout the twentieth century. The first time racial “color blindness” surfaces in the pages of the New York Times is in a story on December 26, 1942, that begins

  Complete social, political and economic emancipation for the Negro in a world that is seeking true democracy was advocated here [in Black Mountain, North Carolina] by the Fellowship of Southern Churchmen in a statement which calls upon all followers of democracy and Christianity to become “color blind.”19

  In the next mention, a year later, the Times quotes scholar-diplomat Ralph Bunche, declaring that real democracy is “color blind.”i 20

  Throughout the 1950s and ’60s, in sermons, speeches, editorials, essays, letters, briefs, and conversations, opponents of segregation raised high the banner of color blindness to shame, challenge, and overcome state-enforced racial separateness. Champions of conservative constitutional color blindness are not fabricating the quotations they cite in which the lawyers attacking segregation praised color blindness. The appellants in Brown v. Board of Education did declare in their brief: “that the Constitution is color blind is our dedicated belief.”21 During oral argument, the representatives of the appellants did assert, “we have one fundamental contention which we will seek to develop … and that contention is that no State has any authority under the equal protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.”22 Judge Constance Baker Motley did state that the “Bible” to which the great Thurgood Marshall turned in his most depressed moments was the Harlan declaration.23

  A major lesson articulated by leading figures in the Civil Rights Revolution was that assessing people without regard to race was the proper, enlightened, virtuous way to judge individuals. Of course, that view was always contested: the Civil Rights Revolution was a hydra-headed movement that contained large and influential strains of black nationalism.24 But color blindness was one of its signature themes. That theme gained enormous prestige, and understandably so. It seemed to be the very antithesis of segregationist race consciousness. It voiced a healthy desire to break free from the suffocating anti-colored bigotry that had saturated every sphere of American life.j It expressed an urge to tear away the blinders that prevent people from appreciating fully the humanity of others.

  Constitutional color blindness, at least certain versions of it, displays additional attractions. One is a healthy skepticism regarding the ability of individuals and institutions to distinguish between various sorts of racial distinctions—including the good, the bad, and the evil. After all, leading twentieth-century jurists—including Oliver Wendell Holmes, Jr., Louis Brandeis, Benjamin Cardozo—failed to recognize the reality of Jim Crow racial distinctions. And in Korematsu v. United States, a Supreme Court that decried invidious racial discrimination simultaneously affirmed it in an egregious ruling upholding the unwarranted internment of people of Japanese descent during World War II—a ruling supported by some of the leading civil libertarians and civil rights champions of the day.25 A color-blind constitutionalist might well argue, with Plessy and Korematsu in mind, that in the presence of the entrancing race line, no one, including the judges, can safely be trusted. Where race is concerned, he might contend, we must lean over backwards to protect ourselves from ourselves.

  Another case that lends support to skepticism regarding the capacity of courts to suitably distinguish between permissible and impermissible types of racial discrimination is Swain v. Alabama (1965).26 In Swain, the Supreme Court upheld racially discriminatory peremptory challenges for purposes of trial tactics while banning racially discriminatory peremptory challenges for purposes of excluding a race wholesale from jury service. Over the next several decades, it became clear that courts were simply unable to police that differentiation; they routinely allowed both sorts of racially discriminatory peremptory challenges.27 In Batson v. Kentucky (1986),28 the Court finally conceded that failure and barred racially discriminatory peremptory challenges altogether.k

  Another context that draws into question the capacity of courts to distinguish appropriately between permissible and impermissible racial distinctions is racial profiling—the use of race as a factor in police surveillance.29 Defenders of racial profiling differentiate racial harassment, which they abjure, from the good-faith use of race for law enforcement, which they support. The latter, they argue, is defensible because it enables authorities to screen, at less expense, those sectors of the population that are more likely than others to contain the criminals for whom officials are searching. Proponents of this theory stress that resources are scarce, that dangers are grave, and that efficiently locating criminals helps everyone—including, sometimes especially, those in the groups subject to racially selective surveillance. They maintain that it makes good sense to consider whiteness if the search is for a Ku Klux Klan assassin, blackness if the search is for drug couriers in certain locales, and Arab ethnicity if the search is for agents of al Qaeda.30

  Opponents, by contrast, resist the attempt to create a protected category of “good” racial discrimination for purposes of law enforcement. They see racial discrimination in surveillance as frightening and illegitimate across the board. Stressing the harm racial profiling generates (including the fear, resentment, and alienation felt by innocent people in the profiled group), opponents laud the virtues of a strict antidiscrimination rule.

  A notable feature of this conflict is that many partisans of each of the racial-profiling positions embrace rhetoric, attitudes, and values that are completely at odds with those they adopt when confronting affirmative action. Supporters of racial profiling who trumpet the urgency of communal needs when discussing law enforcement suddenly become fanatical individualists when condemning affirmative action. Supporters of profiling who are willing to impose what amounts to a racial tax on profiled groups denounce affirmative action for betraying color blindness. A similar turnabout can be seen on the part of affirmative action supporters. Impatient with talk of communal needs when assessing racial profiling, they often have no difficulty with subordinating the interests of individual white candidates to communal missions such as overcoming past racial wrongs. Opposed to race consciousness in law enforcement, they demand race consciousness in deciding whom to admit to college or select for a job.31

  There are still other controversies that highlight difficulty in determining the character of racial distinctions. One involves housing quotas.32 Integrationists committed to preserving multiracial neighborhoods came up with the idea of controlling the racial demographics of residency to prevent the phenomenon of “tipping.” Tipping occurs when a group (typically whites) flees an area en masse when they perceive that the number of newcomers from a different group (say, blacks) is sufficiently large to irrevocably change the racial character of the neighborhood. The number that provokes panic is known as the “tipping point.” People flee fearing that the neighborhood will deteriorate rapidly, destroying their investment in their home. To stabilize integrated communities, reformers have recommended the imposition of racial quotas that prevent the influx of “too many” people of this or that group (tho
ugh typically what that means in practice is preventing the influx of “too many” Negroes). Color-blind immediatists denounce such quotas. But so, too, do some proponents of affirmative action who see the quotas as demeaning impediments that prevent African Americans from obtaining the housing they need. At the same time, there are some proponents of affirmative action who defend housing quotas. They acknowledge that the quotas racially restrict housing resources but emphasize that the quotas preserve a delicate rarity in America: integrated residential arrangements.

  Or consider race policy and adoption.33 Until recently, many states practiced race matching. They encouraged prospective parents to adopt children of the same race as themselves, often discouraging or even barring interracial adoption. Officials and like-minded allies argued that same-race placements would put vulnerable children in settings in which their status as adoptees was less evident, in which they would avoid the prejudice that still targets multiracial families, and in which their own identities would perhaps be better supported by similarly situated parents. Was race matching good or bad? Opinions vary. Some who support affirmative action condemn race matching, while some who support affirmative action embrace race matching.

  Such complexities challenge the notion that racial distinctions can confidently be sorted and policed. One solution is to ban all racial discriminations. That response stems from doubts about capacities to deal appropriately with the seductions of racial selectivity. The argument runs that “because neither legislators nor judges may be trusted to choose wisely in this vexed area, and because we know that racial classifications are often highly injurious, our only safety lies in foreclosing altogether a power of government we cannot trust ourselves to use for good.”34