"Color-blindness" a mask for maintaining white supremacy as right-wing ideologues deny history of race-conscious justice

June 30, 2023 - In response to the Supreme Court’s ruling striking down affirmative action on college campuses, the Center for Constitutional Rights issued the following statement:

This loss, while devastating, is unsurprising. The Roberts Court has arguably been the most hostile to racial justice and Black civil rights since the post-Reconstruction Plessy Court, which rejected the promise of the 13th, 14th, and 15th Amendments for the horror of Jim Crow. This Court’s obsession with “colorblindness” – a concept nowhere reflected in the Constitution or the lived reality in this country – is a euphemistic mask for maintaining a default reliance on white supremacy. Such “neutrality” has helped perpetuate centuries of systemic segregation, brutality, mass criminalization, and the associated diminution of Black political power and wealth. 

After all, the Roberts Court cares nothing about white-centered forms of preferential treatment, such as legacy admissions. While white students continue to dominate elite campuses despite their alleged unfair treatment under affirmative action, legacy admissions – because of the very history of racial exclusion in education – categorically exclude almost all Black, Latinx and Indigenous students. 

But the ideology of white supremacy on display gets even worse – or at least more naked. The Court actually green-lights continued race conscious admissions in military academies, signaling that in the United States, it is okay – even necessary – to recruit and train Black, Indigenous and Latinx students to fight U.S. wars of aggression but not to recruit and train them to be doctors, lawyers, teachers, and leaders. 

This Court consistently chooses to ignore continuing racism throughout the secondary school system, which is designed to prepare students for higher education. At the same time, it continues to deny the patent race-consciousness of the Reconstruction Amendments which, along with related civil rights statutes, promised radical transformation of politics in this country. Their explicit purpose was to repair, through special consideration, the distinct and brutal deprivations of slavery and its afterlife – those “badges and incidents” – which persist to this day. Ignoring the purpose of the Reconstruction Constitution, the Court traffics only in the 1787 slavery constitution, here protecting a modern manifestation of white property rights to keep previously excluded people from entering the institutions that can support their thriving. 

With this decision, the Court grotesquely co-opts and distorts the reasoning of Brown v. Board of Education and its heroic advocate, Thurgood Marshall. Brown and its progeny were designed to end what the Court now calls race neutrality –  known at the time as “separate but equal.” No amount of gaslighting by the right-wing ideologues who have captured this Court should obscure the fact that the aim of Brown and Reconstruction was to produce race-conscious justice. To suggest, as this Court does, that taking race into account to help those that society has historically repressed is the legal or moral equivalent of using race as a reason to repress is confusing the medicine for the disease. Integration is not segregation.

Through no fault of advocates, the longstanding focus on race-consciousness as a means of promoting diversity, as opposed to remediating centuries of racist discrimination and exclusion, was always insufficient. The project of affirmative action should be one of recognition and repair.

Our task is to continue to mobilize and organize to dismantle the vast structures of discrimination in our society – in schools, police departments, prisons, courts, financial institutions, and legislative bodies – and to build toward a transformed society that ensures meaningful democratic participation for Indigenous, Black, Latinx, and other marginalized communities. That, more than an elite university education, will be the source of ultimate liberation for the millions of people harmed by today’s ruling.