The Rhetoric of Colorblind Constitutionalism: Individualism, Race and Public Schools in Louisville, Kentucky
Penn State Law Review, Vol. 112, No. 4, 2008
University of Louisville School of Law Legal Studies Research Paper Series No. 2009-02
38 Pages Posted: 28 Sep 2008 Last revised: 4 Jul 2009
Date Written: July 30, 2008
Abstract
The Court, in its race jurisprudence, has employed a narrative structure of Rhetorical Neutrality, an approach that "privileges individualism over the substantive claims of historically oppressed groups." The Louisville school case represents the Court's colorblind constitutionalism: history and context are ignored, the Fourteenth Amendment is reinterpreted so that race-conscious remedial approaches are rejected, and the present day effects of past discrimination are explained in neutral terms that perpetuate systemic discrimination. Drawing on demographic data and constitutional theory, this Article argues for a doctrinal approach that restores the substantive content of the Fourteenth Amendment. It rejects colorblind constitutionalism and its underlying neutral rhetoric.
Keywords: colorblind constitutionalism, Fourteenth Amendment, race, affirmative action, school desegregation, integration, Constitutional Law
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