Constitutional colorblindness explained

Constitutional colorblindness is a legal and philosophical principle suggesting that the Constitution, particularly the Equal Protection Clause of the 14th Amendment, should be interpreted as prohibiting the government from considering race in its laws, policies, or decisions.^[1] According to this doctrine, any use of racial classifications, whether intended to benefit or disadvantage certain groups, is viewed as inherently discriminatory and thus unconstitutional.^[2]

Historical development

The concept of constitutional colorblindness can be traced back to Justice John Marshall Harlan's dissent in the Supreme Court's decision in Plessy v. Ferguson (1896), which upheld racial segregation under the "separate but equal" doctrine. Harlan wrote,^[3] Although his dissent did not prevail at the time, it has since been cited in support of the view that the Constitution prohibits racial distinctions of any kind.^[4]

The doctrine gained prominence in the late 20th century as part of conservative legal arguments against affirmative action and other race-conscious government policies. Supporters argue that the Equal Protection Clause mandates a race-neutral approach, meaning that laws and policies should not differentiate between individuals based on race, ethnicity, or color.^[5]

Legal interpretation

The principle of constitutional colorblindness is grounded in an interpretation of the Equal Protection Clause of the Fourteenth Amendment, which states that no state shall "deny to any person within its jurisdiction the equal protection of the laws." Advocates of colorblindness interpret this clause as requiring that all individuals be treated equally under the law, without regard to race.^[6]

Supporters of the doctrine argue that the use of race in government policies, such as affirmative action in education or employment, constitutes a violation of the equal protection guarantee, even if the intention is to remedy past discrimination. According to this view, the Constitution prohibits not only policies that disadvantage racial minorities but also those that give them preferential treatment.^[7]

Supreme Court rulings

The concept of constitutional colorblindness has been influential in several major Supreme Court cases involving race and equal protection:

• Regents of the University of California v. Bakke (1978): The Court held that while racial quotas in college admissions were unconstitutional, race could still be considered as one factor among others in a holistic admissions process. However, proponents of colorblindness argue that any consideration of race is inconsistent with the Equal Protection Clause.^[8]
• Parents Involved in Community Schools v. Seattle School District No. 1 (2007): The Court ruled that public school districts could not use race as the sole factor in student assignments to schools. Chief Justice John Roberts' majority opinion emphasized the colorblindness doctrine, stating, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."^[9]
• Fisher v. University of Texas (2013 and 2016): This case challenged the use of race in college admissions. While the Court upheld the university's race-conscious admissions policy, the decisions also reinforced the idea that such policies are subject to strict scrutiny and must be narrowly tailored to achieve the goal of diversity.^[10]
• Students for Fair Admissions v. Harvard (2023): The Court ruled that race-based affirmative action programs in college admissions processes violate the Equal Protection Clause.^[11] Chief Justice John Roberts in his majority opinion wrote, "Eliminating racial discrimination means eliminating all of it,"^[12] and Justice Clarence Thomas affirmed his "defense of the colorblind Constitution".^[13]

Criticism

Critics of constitutional colorblindness argue that it ignores the enduring impact of historical and systemic racial discrimination. They contend that race-conscious policies, such as affirmative action, are necessary to address the persistent inequalities that continue to affect marginalized communities. According to this view, treating everyone equally without acknowledging racial disparities perpetuates existing inequalities rather than correcting them.^[14]

Additionally, some legal scholars argue that the Equal Protection Clause was originally intended to protect racial minorities from oppression, and thus race-conscious remedies aimed at rectifying past injustices are consistent with the Constitution's purpose.^[15]

Contemporary debate

Constitutional colorblindness remains a central issue in the broader debate over affirmative action and racial equality in the United States. Proponents advocate for a race-neutral approach to government policies, while opponents emphasize the need for race-conscious efforts to promote diversity and correct systemic inequities. The Supreme Court's rulings on these issues continue to shape the legal landscape regarding race and equal protection.^[16]

See also

• Equal Protection Clause
• Affirmative Action
• Plessy v. Ferguson
• Brown v. Board of Education
• Regents of the University of California v. Bakke
• Parents Involved in Community Schools v. Seattle School District No. 1

Notes and References

1. Web site: Interpretation: The Equal Protection Clause Constitution Center . September 20, 2024 . National Constitution Center – constitutioncenter.org . en.
2. Kennedy . Randall . 1997 . Colorblind Constitutionalism . The Robert L. Levine Distinguished Lecture Series.
3. Web site: September 14, 2021 . Plessy v. Ferguson (1896) . September 20, 2024 . National Archives . en.
4. Web site: Interpretation: The Equal Protection Clause Constitution Center . September 20, 2024 . National Constitution Center – constitutioncenter.org . en.
5. Web site: Equal Protection and Race . September 20, 2024 . Justia Law . en.
6. Web site: Roger . July 2, 2023 . Justice Clarence Thomas on Affirmative Action and Equal Protection Under The Law . September 20, 2024 . DLD Lawyers . en-US.
7. Web site: Roger . July 2, 2023 . Justice Clarence Thomas on Affirmative Action and Equal Protection Under The Law . September 20, 2024 . DLD Lawyers . en-US.
8. Web site: Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978) . September 20, 2024 . Justia Law . en.
9. Web site: Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701 (2007) . September 20, 2024 . Justia Law . en.
10. Web site: 2015 . "Fisher v. University of Texas" . September 20, 2024 . Oyez . en.
11. Roman . Ediberto . 2024-01-01 . SFFA v. Harvard College: Closing the Doors of Equality in Education . Seattle University Law Review . 47 . 4 . 1333 . 1078-1927.
12. News: 2023-06-29 . Affirmative action: Supreme Court justices clash over 'colourblind' America . 2024-10-09 . en-GB.
13. Web site: 2023-07-01 . 'Colorblind Constitution': Supreme Court wrangles over the future of race in the law . 2024-10-09 . NBC News . en.
14. Reed . Douglas S. . 2021 . Harlan's Dissent: Citizenship, Education, and the Color-Conscious Constitution . RSF: The Russell Sage Foundation Journal of the Social Sciences . 7 . 1 . 148–165 . 2377-8261.
15. Web site: FindLaw Staff . Legally reviewed by Laura Temme, Esq. . July 27, 2022 . Affirmative Action Under the Fourteenth Amendment . FindLaw.
16. Haney Lopez . Ian . 2007 . “A NATION OF MINORITIES”: RACE, ETHNICITY, AND REACTIONARY COLORBLINDNESS . Stanford Law Review . 59 . 4.