In the name of colorblindness, where racism is kept intact by rendering race irrelevant, a new war is afoot in the United States against hard-earned policies advancing racial justice.
“Colorblindness” has been made the order of the day in the United States, the go-to commitment for conservatives regarding racial matters. Elevated to the default reference point, it is memically invoked, most lately in the conservative war on “Critical Race Theory” and resistance to any consideration of race in college admissions. In June 2023, the U.S. Supreme Court banned the use of affirmative action to advantage Black and Brown applicants in college admissions. Recourse to colorblindness, as Justice Ketanji Brown Jackson pointed out in her scathing dissent to this delimitation of affirmative action, is presumed without argument by Chief Justice John Roberts in formulating the majority decision as the overriding nonracial admissions standard.
In the wake of this decision, conservative activists have initiated legal cases to contest any recourse to race in corporate hiring and training initiatives as well as against the affirmative action admissions policies of the U.S. military academies, West Point and the Naval Academy. These cases have all been led by Edward Blum, the same conservative legal activist who filed the college admissions case. In its Harvard decision, the Supreme Court majority explicitly exempted the military academies from their otherwise general ban on university preferential admissions. It will be interesting to see how the Court responds to Blum’s constitutional challenge to the military cases.
Colorblindness, the dominant expression of racelessness, places the onus regarding racial inequity strictly on individual behavior. This effectively renders invisible the underlying inequitable structural and systemic differences that historic inequalities continue to reproduce anew. Those who claim to be colorblind or practice racelessness, “not to see race,” reveal that they refuse to “see” racially driven injustices or racism at all.
In concluding his majority opinion, joined by the other five conservative justices, Justice Roberts leaves open to an individual applicant to universities being able to show they faced racial adversity in their schooling while making it illegitimate for universities to elevate any applicant because belonging to an adversely affected racial group. But what is the difference, exactly, between declaring “my school treated me more poorly than my white co-students” and “my racial group, including me, were adversely affected or targeted by a discriminatory institutional rule or action”? A white student messaging that all Black students at the school should be enslaved, as happened in 2022 in Topeka, KS, is targeting any individual Black student without naming any. Would an individual group member have been better off but for her group being racially targeted? Surely so.
So, conservative myopia is abundantly evident concerning the enduring material structures and expressions of racism and their effects. In not seeing these historically inherited structures and effects, Roberts effectively dismisses them as a consideration regarding the need for affirmative action.
Justice John Marshall Harlan was the first to introduce a public legal case for colorblindness in a Supreme Court decision. In his often celebrated lone dissenting opinion to Plessy v. Ferguson (1896), he explicitly pointed out that “the white race” has nothing to fear from “colorblindness” given its
“dominance . . . in prestige, in achievements, in education, in wealth and in power. . .. 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.
What Harlan emphasized in a rare moment of racial honesty is that “the principles of constitutional liberty” will continue to reproduce and multiply the racially ordered inequalities advantaging whites constructed from the nation’s historical outset into the social structures defining the country. This is as true today as it was when Harlan was writing.
Consider one revealing example. In 2013, the Supreme Court struck down what had been a key Voting Rights Act requirement since 1965. Certain states would no longer have to receive “preclearance” from the U.S. Justice Department for voting system changes in those states to ensure Black voters would not, again, be more readily disparately impacted by the proposed changes than white voters, as they had been especially prior to 1965.
Writing for the majority, Justice Samuel Alito opined that “some disparity in impact does not mean a system [here, of voting] is not equally open.” So a system the impact of which — no matter lawmakers’ stated intentions—repeatedly makes it somewhat more difficult for Blacks than whites to vote, and by implication dampens Black voter turnout election after election, would not suffice to register the Court’s majority concerns over racial disparity. The law, after all, is meant to be, and on Alito’s consideration is—it must be — colorblind.
Alito, in short, finds a way of legally structuring racial disbenefits to Blacks into a key social system. Here, conservative critics would prefer to close down a significant question to pose: Does not racial impact consistently disadvantaging Blacks for the benefits of whites amount to a classic form of structural racism? After all, Blacks are being made in Republican-controlled states to face barriers meant to discourage their voting so whites — especially white conservatives — more readily get to maintain political power. Call this “colorblind” disadvantaging Harlan’s Rule.
Barely buried in Justice Harlan’s 1896 dissent, then, is a roadmap for rendering informal segregation mechanisms no longer needed to maintain white privilege and political power. The stress on untethered individual freedom parading as colorblindness —whether to say or do whatever one will—is all that is needed to reproduce perennial racial advantage. Philomena Essed conceptualizes this as “entitlement racism.”
Accordingly, colorblindness with no content and racelessness without legal bite has become the conservative political anthem, their default chorus line. The century-and-a-quarter conservative reach for colorblindness is the insistence on individual agency while ignoring that structural conditions shape possibility. This commitment to colorblindness effectively renders segregation the outcome of seemingly neutral and untouchable informal determinants like individual preferences and market forces. In informalizing segregation, colorblindness and racelessness more generally render structural racism pretty much legally untouchable. Conservatives effectively deregulate segregation, removing it from government oversight, sanction, and curtailment.
Colorblindness and non-racialism — racial erasure rather than erasure of racism — are the articulations through which conservative anti-anti-racism gets enacted. Racelessness is simply the refusal to use race as terms or explicit references. Being colorblind or nominally raceless, however, does not necessarily entail being race-refusing. If critics believe it wrong to use racist terms, then they must be race-conscious. Those who care less about using racist terms obviously are, too. Because those professing racelessness are largely, if not exclusively, mindful of Black or Brown people; they are inevitably color-conscious.
Racelessness in a deeply racially structured state, then, presupposes being race-aware. Harlan, after all, emphasized that “whites” have nothing to worry about, with no concern for what people of color would have to continue to endure. Colorblindness is inevitably — one could say inherently- — race-conscious. In a deeply historically structured racial state, how could it be otherwise? Under the cloak of universal application, one does not hear that Blacks should be colorblind towards whites (consider here the free ride of legacy admits), but that Black and Brown people generally should be viewed as if behind a cloak of their racial invisibility. But to do so effectively renders unaddressable — “untouchable” — key considerations of their historical and contemporary experience. As Harlan’s dissent reveals, this is predicated on the disposition to preserve white privilege, power, and profitability, and economically, politically, and legally, avoiding addressing the enduring disadvantaging consequently at work.
So, colorblindness is, of necessity, race-conscious. To be colorblind, one must be conscious of the racial groups deemed the objects of colorblindness. Color may be the first-level sign of racial belonging; it is far from the only one. Address—whether as voice or mode of expression and place of dwelling — often reveals race. Schools attended, sports prevailingly played and followed, the whole range of cultural reference and comfort — especially when taken together, are racially revealing. Colorblindness is being weaponized for the purpose of extending exclusion of the supposedly colorless but still racially identified, turning legacy racism into anti-white racism. What we are left with is the extension of raceless racism.
The Supreme Court affirmative action lawsuits are reduced to declaring academic merit, measured by standardized test scores, as the sole admissions standard. However, standardized meritocracy has repeatedly been shown to embed racially discriminatory presumptions in cultural reference and historical touchstones, as well as privileged test preparation. It is the colorblind “solution” extended, racially neutral on its face but privileging and discriminatory in ongoing effect and impact.
Implicit in Justice Roberts’s majority decision in the Harvard University and UNC cases is the presumption that, whenever race is used as a criterion for admission, it somehow trumps all other considerations. This is a driving assumption also of prominent critics of Critical Race Theory, like Christopher Rufo and Mark Levin. There is no evidence that critical scholars of racism are committed to the claim that, in intersection “with other victimization categories” like gender, “race is always primary.” And the admissions policies of Harvard and UNC nowhere advance racial belonging as the primary or overriding selection criterion.
One more revealing piece of evidence. An implication of the SFFA decision is that white students will once again benefit in admissions. In the Bakke case (1978), the jumping-off point for conservative rejection of affirmative admissions, Justice Lewis Powell established that racial diversity could only qualify constitutionally by adding designated class spots to existing ones. Setting aside existing positions would arbitrarily remove benefits to those already enjoying them, presumptively white students. The current SFFA ruling does not just reduce spots for racially diverse populations, both in admissions and the job market. If the expanded spots remain in place, the recourse to colorblindness effectively adds opportunities for whites at the expense of those not. Whites who have screamed reverse discrimination against them now turn out to be right, perversely. Black and Brown people, consequently, are discriminated against in reverse — in the Supreme Court’s 2023 case seeking to reverse affirmative action — to renewed advantage for whites. Harlan now finally rules.
The Harvard-UNC decision, it is not too extreme to conclude, can be read as another pillar — along with curtailment of equal access voting, elimination of student loan relief, what students can read and be taught, rampant attacks on CRT, “wokeness,” and the like — of the structures being built for securing white minority rule and power as the country’s demography increasingly presages otherwise. Apartheid left us the blueprint for how this works. It appears that white power in America is currently in the process of updating the lesson plan.
