The Colorblind Lottery

Abstract

Although the Supreme Court upheld Michigan Law School's admissions policies in Grutter, the multiple opinions in that case revealed the deep divisions that remain over the legitimacy of race-conscious policies and the meaning of equal protection. At the heart of this division lies disagreement over the concept of colorblindness. For Justices Scalia and Thomas, as well as the advocacy groups that backed the plaintiffs in Grutter and Gratz, colorblindness is an absolute imperative, prohibiting race-conscious decision-making in all but the most dire situations.

This insistence on formal colorblindness has lead to the conclusion in several recent court cases that race-conscious decision-making is so problematic that even a lottery is preferable. Although this claim has gone largely unnoticed, it follows logically from an insistence on formal colorblindness. This Essay examines the juxtaposition of race and chance as one way of unpacking the meaning of "colorblindness." The demand that decision-making be colorblind is often motivated by basic notions of fairness: persons should be judged according to their individual merit, not some irrelevant, arbitrary criterion over which they have no control. Yet decision by lot does not necessarily promote these values any more than taking race into account. Lotteries may appear neutral because they rely on chance to select winners; however, this focus masks the substantive choices that determine who is and who is not given a chance to participate. Comparing race and chance also helps conceptualize the burden imposed by race-conscious policies. Far from what the rhetoric suggests, race-conscious policies do not necessarily deprive whites of fixed entitlements. Instead, their impact is to alter the odds of success between racial groups. And in situations, like higher education, in which white claimants far outnumber racial minorities, the impact on white applicants is often quite minimal.

Contrasting race-conscious decision-making with choosing by lot reveals that "colorblindness" is often merely shorthand for other types of fairness arguments. To continue to insist on colorblindness in situations where those arguments do not apply - for example, when the alternative is a lottery - reveals the inherent circularity of formal colorblindness.