Color-Blind Constitution?

Debbie says:

While the U.S. political blogs concentrate on the (indefensible) commutation of Scooter Libby’s sentence, and the (entertaining) discussion of how the Vice President can be excluded from the executive branch, the Supreme Court has knocked the foundation out from under Brown vs. Board of Education, the landmark case that prevented school segregation for over 40 years.

Thanks to a link from the fabulous women at Racialicious, I found this excellent article by Risa Goluboff on the background of the decision. Rather than concentrating on the horrible effects of this Supreme Court action, Goluboff examines some of the theory behind it, and how conservatives are using the concepts of color-blind racism to destroy the anti-segregation gains of the 1960s.

The question we need to ask is: How did the conservative justices manage to appropriate Brown so completely? How did they so easily convert Brown from an opinion championing racial equality into one that countenances—even requires—continuing racial inequality and segregation in the name of the Constitution? The answer is simple: through abstraction. They have abstracted a decades-long struggle for racial progress into a single formalistic harm: government classifications on the basis of race.

Goluboff’s piece is full of information I didn’t know: apparently, Brown was a departure from the civil rights strategies of its time.

Before Brown, lawyers had attempted to challenge not only the stigma of state-mandated segregation, but also the public and private, racial, economic, political, and social harms that flowed from the massive and complex system of racial and economic subordination that was Jim Crow. The civil rights law they aimed to construct would have prohibited state-mandated segregation, to be sure. But that was only the starting point for a fundamental transformation of the American racial caste system…

Such a transformation required challenges to government policies in education, employment, voting, housing, and more, as well as to the policies adopted by private employers and business owners. The civil rights movement aimed to create true, substantive equality with integrated schools and workforces, with average incomes and academic achievement at the same level.

The Brown case was handled differently. In an apparent attempt to make a clear-cut case with a clear-cut ruling, they focused on the concept of state-imposed segregation, instead of the cornucopia described above.

Once Brown was constructed as it was, Jim Crow became synonymous in popular understanding with state-mandated segregation. And the answer to Jim Crow became the “color-blind Constitution.” If the Constitution is color-blind, goes the reasoning of today’s conservatives, then the harm of classification is felt no less when intentions for racial progress are good than when they are bad; and no less by white schoolchildren than by black ones.

I have no criticism of the good people who put the Brown case together. They certainly had no way of envisioning how their anti-racist agenda would be used in the future. Given the current political climate, even the most broad-spectrum anti-segregation decisions would certainly be at risk. And, of course, their strategy is no excuse for the Supreme Court’s crappy decision, which guarantees years if not decades more of misuse of children of color at the hands of the system. At the same time, I find it instructive to see the history of how narrowing your political objectives for immediate gain can eventually undermine your whole structure.

“The master’s tools will not dismantle the master’s house.” — Audre Lorde

segregation, integration, United States, racism, colorblind racism, Supreme Court, Brown vs. Board of Education, Body Impolitic

1 thought on “Color-Blind Constitution?

  1. I’ve said it before and I will say it again: the way to disarm racism in cases like this is to take a non-“racial” approach to racism.

    Consider for example a college whose admissions policy gave preference points not for “race,” but for economic disadvantage, based on some combination of factors like parental income, neighborhood, budget of local school, etc. If a given “race” is at a true disadvantage, this will provide a balancing factor similar to that provided by a standard AA program, but do so without taking “race” into account at all. The more disadvantaged a “race” is, the more advantage this program would provide to members of that “race.”

    This is a little harder to do with an EEO-type program, or a M/WBE purchasing program, but I believe that, with sufficient cleverness, it could be done.

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