As I mentioned in my previous post on Affirmative Action (AA), many people who agree that considerations besides grades, test scores and glittery resumes should factor into college admissions, would favor a focus on socioeconomic status (SES), rather than race, as a way to make college admissions more broadly inclusive and/or more fair. In light of the Supreme Court’s ruling two weeks ago, such approaches are set to receive much broader consideration.
But it's wrong to assume that methods focused on SES will necessarily pass legal muster in the future. The Times reported last week on successful efforts by the University of California at Davis Medical School to reach beyond the usual elite populations in its admissions. For the past decade it has been incorporating so-called adversity scores — essentially family economic circumstances and parents' educational background — into its admissions processes. The result has been that UC-Davis has accepted and enrolled a substantially higher percentage of lower income students, including Black students, than do many other medical schools. Davis has done so, it says, while only compromising very little the average incoming class GPA and MCAT scores. In light of the litigation against AA, other medical schools have been reaching out to Davis about their approach. But the Times also reports — and this should surprise no one — that conservative legal groups have threatened and begun suing institutions that adopt such approaches, on the grounds that they're just a proxy for race-based considerations. In his opinion for the Court, Chief Justice Roberts specifically warned against such efforts insofar as they might run afoul of the principle of color blindness that the Roberts Court has insisted is at the heart of the equal protection clause of the 14th amendment.
Indeed, from his early days on the Court, Roberts has been arguing that efforts to achieve greater racial balance in society are either themselves a form of discrimination or have passed their expiration date, or both. In a 2007 case involving school districts’ use of race for assigning students to schools, Roberts famously wrote that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race. “
Roberts deployed similar logic in knee-capping the Voting Rights Act a decade ago. And he pushed this line of argument hard in the recent AA case. In defending the majority's rejection of AA, Roberts hearkened back to Brown v. Board of Education to support his "color-blind" position. That case, of course, rejected the "separate but equal" doctrine that had codified legal segregation in the United States since the Plessy v. Ferguson ruling in 1897. Brown tossed Plessy on the grounds that "separate is inherently unequal." And Roberts attempted to throw the Brown standard back in the faces of Justices Brown Jackson, Sotomayor and Kagan in countering their support for AA, writing:
"While the dissent would certainly not permit university programs that discriminated against black and Latino applicants, it is perfectly willing to let the programs here continue. In its view, this Court is supposed to tell state actors when they have picked the right races to benefit. Separate but equal is 'inherently unequal,' said Brown.... It depends, says the dissent."
Roberts' argument has an elemental logic to it. Brown v. Board of Ed rejected racial discrimination, after all, and those who argued the case before the Supreme Court, including Thurgood Marshall1, insisted on a color-blind standard for adjudicating the school segregation cases. But in context, Roberts' attempt to use Brown to *reject* AA is perverse. Brown took aim at school segregation, whereby Black kids were legally barred from attending white schools. This was a cornerstone of the larger historical crime - a legal system that rendered Black people in the United States, from birth, as second class citizens. It was that fundamental violation of basic principles of fairness and equality that the Warren Court rejected in Brown.
In other words, "separate but equal" applied clearly and explicitly to segregated institutions. The fundamental harm the separate but equal doctrine had inflicted on Black Americans was segregation itself and all of its deleterious effects. Indeed, in its Brown opinion, the Warren Court clarified its view of the question of race neutrality in the 14th amendment:
"It ordains that no State shall deprive any person of life, liberty, or property, without due process of law, or deny to any person within its jurisdiction the equal protection of the laws. What is this but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color? The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race -- the right to exemption from unfriendly legislation against them distinctively as colored -- exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race." (my emphasis).
Roberts did not invent the color-blind standard. But he's applied it especially ruthlessly to stamp out race-based legal remedies. This isn't just a matter of historical interest. It could well rear its head if and when future legal challenges to affirmative action in employment or SES admissions processes, or other racially conscious approaches to remediate historical wrongs in broader swaths of American life come before the Court. Indeed, since American realities often make it impossible to extricate considerations of race from class, SES approaches, therefore, may well still have the whiff of the kinds of race-conscious remedies Roberts and his allies are mostly determined to stamp out. The result will be to further reinforce, not disrupt, the class and racial social hierarchies that conspire to create in America a society of vastly disparate life chances and opportunities.
(Again, non-trolly comments welcome).
As a Supreme Court Justice, Marshall lamented the Court’s increasing embrace of a color-blind standard as far back as the 1970s, writing in the 1978 Bakke AA case: “It is more than a little ironic that, after several hundred years of class-based discrimination against Negroes, the Court is unwilling to hold that a class-based remedy for that discrimination is permissible.” But the Bakke case *did* allow for considerations of race of the sort the Roberts Court has now rejected.
The NYT Daily just ran an interesting set of profiles related to AA. One was on Justice Thomas, which I listened while practicing compassion. I came away with the understanding that Thomas very possibly got into Yale Law thanks to AA, and he blamed the racism he felt at Yale on AA rather than on the racists, who would have treated him the same way with or without AA (cf. the sexism RBG faced at Harvard). He continued to blame AA for his failure to get a job straight out of law school after his mediocre performance at Yale (again cf. Ginsburg who didn't get any decent offers out of Columbia after finishing 1st, recognizing the problem as sexism rather than on any perception that she had been accepted to law school in the first place due to her sex). When he did get his first job with John Danforth, whom he had met at Yale, he probably reasoned he got the job because he deserved it rather than consider the possibility it was due to his Yale privilege. From the perspective of neuroscience, he isn't physiologically capable of supporting AA because it would confirm his own psychological fear that he didn't get to where he is out of merit but rather due to his race. Truth is, he is probably on the SCOTUS because of his race. Despite Bush's claims to the contrary, had a white justice resigned rather than Marshal, there's no way Bush would have picked him. And had Marshall refused to resign in 1991, Clinton would have chosen his replacement after his death in 1993, and any dreams Thomas had of making SCOTUS would have died with Marshall.
To summarize what this means for your question, "What does it mean to call the Constitution 'color-blind?'" it means that the justices who call it color-blind wish it so because in their lived experiences they deduct color from their own personal success. It's all about the meaning they give to the words of the Constitution, not about what the Constitution actually says.
If you have admissions officers sending emails, "haa-- we'll just use SES instead of race!" they might lose a court case, but what UC Davis is doing seems like just what we need and very likely to withstand any legal challenges. What I found disappointing about this was the number of NYT commenters along the lines of "I don't want one of those inferior doctors working on me" totally missing out on the fact that they are just as likely to be a great doctor, but look less impressive initially on paper because of the adversity. I think, if thoughtfully implemented, this adversity approach achieves many of the same goals and can actually be more fair, i.e., different from so many Harvard "Black" students being wealthy children of recent African immigrants. I do think there should be a real focus on helping the descendants of American slaves, but, though intrinsically race-based, it's about the legacy of slavery and Jim Crow, not just skin color.