How Antidiscrimination Law Learned to Live with Racial Inequality

Abstract

This Article explores a great paradox at the heart of the prevailing paradigm of American antidiscrimination law: the colorblindness ideal. In theory, and often in practice, that ideal is animated by a genuine commitment to liberal, individualist, race-neutral egalitarianism. For many of its partisans, colorblindness entails not only a negative injunction against race-conscious decisionmaking, but also, crucially, an affirmative program for the achievement of true racial equality. For these proponents, scrupulously race-neutral decisionmaking both advances the interests of racial minorities and embodies the best aspirations of the civil rights movement. In this worldview, colorblindness offers the only true antidote for both racial inequality and racism itself, hastening the day when race will be, as the Supreme Court has put it, “truly irrelevant.” And indeed, the logical simplicity and moral clarity of the colorblindness ideal give it a certain intuitive appeal.

This Article argues that recent history in fact belies such claims. Critics of the colorblindness model have long observed that the Supreme Court’s insistence on race-neutrality has proven a poor remedy for entrenched racial inequality. Remarkably - and here is the paradox - the Court’s very enforcement of the colorblindness ideal has itself fueled the reproduction of racial difference. In the service of colorblindness, the Burger and Rehnquist Courts, in dialogue with a host of influential social scientists and public intellectuals, redefined racial inequality from a wrong in and of itself - and as such a presumptive object of civil rights enforcement - to a morally benign legal irrelevancy. The Court did so by reconstructing African Americans from a class characterized, for the purpose of civil rights enforcement, by the systematic social, economic, and political subordination endured by its members, to a class characterized by its ethnically distinctive culture. By unveiling this critically neglected racial project, this Article casts new light on how American antidiscrimination law, though unequivocally committed to racial equality in theory, has learned to live with racial inequality in fact.

Keywords: Antidiscrimination Law, Colorblindness Ideal, Racial Equality, Racial Inequality, Racial Minorities, Civil Rights Movement, Racism, Supreme Court, Race-Neutrality

JEL Classification: K19, K39, K49, J15, J71, J78