Code Switch
3:15 pm
Wed April 23, 2014

Two Justices Debate The Doctrine Of Colorblindness

The Supreme Court ruled Monday that Michigan voters' 2006 decision to ban affirmative action in the state's higher education system passed constitutional muster.

But much of the attention on the decision has zeroed in on a specific exchange between Justice Sonia Sotomayor and Chief Justice John Roberts on the idea of "colorblindness" — the notion that the consideration and discussion of race perpetuate racial division.

Roberts is, of course, skeptical of racial preferences in education; he famously wrote in a school busing case that "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race." (In this case, the plurality that Roberts joined said it wasn't ruling on the question of affirmative action but whether the state's voters could decide on affirmative action via the ballot.)

But Sotomayor pushed back, and she remixed Roberts' much-quoted line in doing so. "The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination," she wrote.

Here's the part of her dissent that's gotten the most attention:

"Race matters. Race matters in part because of the long history of racial minorities being denied access to the political process. ... Race also matters because of persistent racial inequality in society — inequality that cannot be ignored and that has produced stark socioeconomic disparities.

"And race matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away. Race matters to a young man's view of society when he spends his teenage years watching others tense up as he passes, no matter the neighborhood where he grew up. Race matters to a young woman's sense of self when she states her hometown, and then is pressed, 'No, where are you really from?', regardless of how many generations her family has been in the country. Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home. Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: 'I do not belong here.'

"In my colleagues' view, examining the racial impact of legislation only perpetuates racial discrimination. This refusal to accept the stark reality that race matters is regrettable. The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.

"As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter."

To which Roberts issued a rebuttal:

"The dissent states that '[t]he way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race.' And it urges that '[r]ace matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: 'I do not belong here.'

"But it is not 'out of touch with reality' to conclude that racial preferences may themselves have the debilitating effect of reinforcing precisely that doubt, and — if so — that the preferences do more harm than good. To disagree with the dissent's views on the costs and benefits of racial preferences is not to 'wish away, rather than confront' racial inequality. People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate."

We wanted to highlight some other considerations of the decision (and the differing opinions therein) that are worth your time, and which tackle the case from markedly different points of view.

MSNBC's Adam Serwer writes that "colorblindness" as invoked by opponents of affirmative action is markedly different from that term's traditional meaning.

"Roberts's 'colorblindness' bears only a superficial resemblance to the concept as understood by past champions of equal rights, since as applied by the conservative majority on the court the approach has had dire consequences for racial minorities. ... Roberts's argument that affirmative action, rather than racism, reinforces those 'crippling thoughts' is all the more remarkable given that Sotomayor sits on the court with a fellow Justice who once belonged to a group that would have barred her from attending Princeton."

Slate's Emily Bazelon said that there may be a silver lining in this ruling both for folks in favor of affirmative action and for those opposed to it.

"For liberals as well as conservatives, there's an upside to that outcome, despite the expected denunciation by groups like the NAACP and the ACLU. According to Richard Kahlenberg of the Century Foundation, who has studied affirmative action for years, in seven of the states that have banned it, leading and other public universities have maintained black and Latino enrollment and admitted more low-income students. As I explained in October, 'Some of the schools have taken income and wealth and neighborhood into account. Some have plans that admit the top 10 percent of high school graduates statewide. Three have banned legacy preferences.' Those are strategies for achieving racial diversity that also improve socioeconomic diversity, which at many selective schools is sorely lacking."

Ilya Somin of the Volokh Conspiracy said that it's a mistake to discuss the effect affirmative action will have on minorities, because it will have different consequences for different minority groups.

"But, in reality, banning racial preferences in admissions affects different minorities in different ways. It may well burden African-Americans, Hispanics, and other groups favored by affirmative policies currently practiced in universities (though the literature on educational mismatch suggests that the benefits are not unambiguous). But current affirmative action policies also often harm those minority groups that score well on conventional academic admissions standards, most notably Asian-Americans. Thus, it cannot be said that the Michigan amendment is a straightforward case of burdening racial minorities while benefiting the majority. In reality, the policy affects different minority groups in different ways."

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