Judging on Color

Pro Publica has a long and excellent take on the plaintiff behind the challenge to the University of Texas’ affirmative action program, Abigail Fisher. In short, her central claim—that UT denied her application because of her race (she’s white)—just isn’t true:



Later in the piece, Pro Publica goes to legal experts on both sides of the aisle for their perspectives. Erwin Chemerinsky, founding dean of the University of California, Irvine School of Law, holds that there’s no basis for the claim—made by Fisher’s lawyers—that the 14th Amendment mandates “colorblindness.”In drafting the Amendment, Congress recognized “an enormous difference between a white majority disadvantaging minorities and a white majority acting to remedy past discrimination.”

By contrast, libertarian Ilya Shapiro—a senior constitutional studies fellow at the Cato Institute—holds the opposing view:

“I am not going to speak to anyone else’s motives. It is unfair to paint people with the Jim Crow brush because they have those kinds of arguments,” he said. “I don’t like people being judged based on the color of their skin.” If a program “treats people different because one has a different skin color, I find that offensive and I think the Constitution does as well.”

This is a common formulation in American conversations over racism. As we tell children and remind adults, it’s “wrong to treat people differently for the color of their skin.” And that’s absolutely true; difference—superficial or otherwise—is no reason to deprive a fellow citizen of her rights and privileges. But it’s also important to understand that racism wasn’t—and isn’t—about treating people differently over the color of their skin.

The best way to understand (American) racism is as an ideology governing the relationship between the white majority and various minority groups, including the descendants of slaves. This ideology spawned a political philosophy—white supremacy—which governed American public policy for a century, and still influences current conditions. To put this in more concrete terms, racism was far more than separate water fountains and bus seats—it was underfunded schools, forced residential segregation, exclusion from decent jobs, and outright violence against upwardly mobile blacks and other nonwhites. This isn’t “treating people differently because of the color of their skin,” except in the most superficial sense. Anti-black racism was a response to slavery, and its persistence into the 20th century had as much to do with explaining and justifying the position of the former slaves and their descendants as it did with simple prejudice.

If you reject that Jim Crow was about the “color of others skin,” then you also have to reject the idea that colorblindness can do anything to alleviate racial inequality. To effectively combat racism, you have to take “race” into consideration. And the authors of the Civil War amendments—the 13th, the 14th, and the 15th—understood this. In his book Reconstruction, historian Eric Foner gives an overview of the GOP’s intra-party debate over the Fourteenth Amendment:

On the precise definition of equality before the law, Republicans differed among themselves. Even moderates, however, understood Reconstruction as a dynamic process, in which phrases like “privileges and immunities” were subject to changing interpretation. They preferred to allow both Congress and the federal courts maximum flexibility in implementing the Amendment’s provisions and combating the multitude of injustices that confronted blacks in many parts of the South.

The “radical” faction of the Republican Party, led by figures like Massachusetts Senator Charles Sumner, were vocal advocates of “equality before the law,” but that never precluded affirmative actions to improve conditions for freed slaves. And while many were invested in the ideology of free labor—granting equality and the full rights of citizenship would give freed slaves a chance to flourish—they also recognized the extent to which the federal government needed to provide aid to freed slaves, hence the Freedman’s Bureau and the Civil Rights Act of 1866. As Illinois Republican leader Jesse Fell insisted, the government had an obligation “to adopt measures for the safety and elevation of the African race. Their present nominal freedom is nothing but a mockery.”

At least to the Radical Republicans and their moderate allies, the Constitution didn’t preclude laws that “treated people different because one has a different skin color,” provided those were meant to alleviate racial discrimination. And for good reason: How else are you supposed to roll back the results of deliberate oppression if you can’t focus your efforts on the oppressed?

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