Tuesday, November 24, 2020

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Article Index

Introduction

Once again, recent incidents have revealed that the colorblind thesis, the notion that "race" does not or should not matter and that society and its laws are or can be colorblind, is simply unfounded. Race discrimination in the context of the workplace received significant media attention when an executive of Texaco, Inc. tape-recorded meetings where company executives belittled minority employees and discussed the unlawful destruction of documents sought by plaintiffs in a pending employment discrimination suit. The plaintiffs alleged, inter alia, that minority employees worked in a racially hostile environment and that Texaco had systematically discriminated against minorities in promotions. The meetings were secretly tape-recorded in 1994 by Texaco's then-senior coordinator for personnel services, Richard Lundwall, and were turned over to the plaintiffs' attorney by Lundwall after he was dismissed from Texaco during a reduction-in-force. News accounts of the contents of the tapes reported Texaco executives referring to African American employees as "black jelly beans" and "niggers" and complaining about the celebration of Kwanzaa by Blacks. While Texaco's top official has condemned the tapes and the statements made by company executives, one African American commentator notes that "the Texaco tapes are to the issue of job discrimination what the Rodney King tapes were to police brutality." The public reaction to the jury's not guilty verdict in the O.J. Simpson trial gave rise to the contention that "urban black juries all too often put race above justice" and evoked cries of concern and even outrage over the nation's intractable Black-White divide. The aftermath of the Simpson trial was characterized by discussions of the differing perceptions of many Whites and African Americans of the police and the criminal justice system and the use of the "race card." Also consider the October 16, 1995 Million Man March on Washington, D.C. For some, the "day of atonement" was a source of pride and a day in which African American males united to address pressing issues facing their community. For others, the march was a self-serving platform for Louis Farrakhan, an individual they considered to be anti-Semitic, sexist, homophobic, and "a man whose presence and power is an affront to all who genuinely seek a color-blind, and color-just, America." Others asked how "this great moment in American cultural politics was orchestrated by the demagogic leader of a black fascist sect, while no other nationally prominent black leader could have pulled it off?" Some considered the march to be consistent with or, conversely, antithetical to their understanding of Martin Luther King, Jr.'s call for a colorblind society. For Anita Hill, bell hooks, Angela Y. Davis, and Patricia J. Williams, among others, the exclusion of women from the march reflected Black male patriarchy and the sacralization of masculinity. If the country's reaction to the Simpson verdict and the Million Man March were not enough to highlight the nation's continuing (and arguably expanding) racial chasm, consider the recent publication of Dinesh D'Souza's The End of Racism. D'Souza argues, inter alia, that race is still the most divisive issue of our time; that African Americans "continue to show conspicuous evidence of failure" in the workplace, schools and colleges, and in maintaining intact families and secure communities; that "circumstances of poverty and deprivation in which blacks find themselves in America today are not the cause, but the result, of low intelligence;" that "black culture also has a vicious, self-defeating, and repellent underside that it is no longer possible to ignore or euphemise;" and that "African Americans seem woefully lacking in the skills needed to compete effectively in a multiracial society." If "blacks can close the civilization gap," D'Souza writes, "the race problem in this country is likely to become insignificant." These controversial and derogatory statements are made, incredibly, by an individual who espouses "colorblindness" while simultaneously categorizing and separating people on the basis of race and color. The Texaco race discrimination charges, the Simpson trial and verdict, the Million Man March, and D'Souza's The End of Racism: these are but a few recent incidents highlighting the perpetual and problematic color line as well as bringing to light American society's "integral, permanent, and indestructible component" of racism. These and other historical and contemporary developments, by demonstrating that minorities continue to be subjected to numerous forms of harmful discrimination, form the backdrop for this Article's discussion and ultimate rejection of the colorblind thesis. This Article focuses on one particular aspect of the colorblind thesis: the misuse of Martin Luther King, Jr.'s image and legacy by liberals, neoliberals, conservatives, and neoconservatives "who cheaply invoke Dr. King's words even as they kill the substance and spirit of his radical message." The campaign supporting the adoption of Proposition 209, the California Civil Rights Initiative ("CCRI"), directly illustrates the misappropriation of King's legacy. Supporters of this anti-affirmative action proposal which calls for racial neutrality and a colorblind America, regularly invoked King's name, suggesting that he would have embraced such a measure. The California Republican Party prepared a television commercial in support of the proposition that included King's reference to his dream of a colorblind and a content-of-character world. After opponents of the measure and civil rights leaders, including Coretta Scott King, denounced such use of King's words, complaining that King's legacy was being distorted, the "I Have a Dream" segment was removed from the commercial. The dangers of this misappropriation of "King-as-icon" and his legacy are illustrative of the ways in which facts and historical figures are distorted and in which iconolatry is substituted for reasoned argument. These dangers, as well as the need to identify and refute inaccurate distortions of history, are discussed in this Article. I. Colorblind or Color-Aware? Should law and public policy be colorblind? What are the tangible effects of applying a purportedly colorblind analysis in a world in which race and color play an undeniable role in the quantity and quality of opportunities for people of all races? Would colorblindness perpetuate the often crippling effects of past and present discrimination? Can those who have benefited from the anticompetitive advantages of de jure and de facto discrimination validly claim that colorblindness should now be the moral and legal norm? A call for colorblindness seems peculiar in a nation wherein race has been the most critical, and the most powerful [issue], in effecting political change. Race has crystallized and provided a focus for values conflicts, for cultural conflicts, and for interest conflicts--conflicts over subjects as diverse as social welfare spending, neighborhood schooling, the distribution of the tax burden, criminal violence, sexual conduct, family structure, political competition, and union membership. . . . Whether race-consciousness is improper, illegal, or unconstitutional has been the focus of judicial and scholarly debate between those who contend that the Constitution and laws should be applied in a colorblind fashion, and those who reject that notion in favor of color-aware application of our laws. A. Colorblindness The colorblind thesis embodies one facet of several broad subjects of public policy including: equality, the meaning and application of an antidiscrimination principle, societal conceptions of permissible private/public choices, and the definition of impermissible discrimination. Proponents of colorblindness posit that "[c]lassifying persons according to their race is more likely to reflect racial prejudice than legitimate public concerns; the race, not the person, dictates the category." The lesson to be drawn "from centuries of race-based laws, traditions, and customs designed to subordinate blacks is that race should seldom be used as a criterion for decisionmaking, even when its use purports to make restitution for the present effects of a racist past." In the constitutional context, the Supreme Court, cognizant of the likelihood of prejudice in race-conscious classifications, has subjected such classifications to the strictest of scrutiny and has determined that, to pass constitutional muster, the classification must be justified by a compelling governmental interest necessary to accomplish a legitimate purpose. Colorblindness is a policy choice and not, as many assert, a moral principle. Proponents of colorblindness include those who maintain that "[i]f it was wrong to discriminate against black people on the basis of their color, . . . it must be equally wrong to discriminate in favor of black people on the basis of their color." The mantra of the proponents of colorblindness "is Justice John Marshall Harlan's aphorism. . .that 'our Constitution is color-blind."' Some advocates of colorblindness believe that "merit" is the ultimate conception of colorblindness and that "people are treated unjustly and discriminated against 'when their merit is assessed according to their status rather than according to the value of their traits or products."' According to that view, any consideration of race "remains a regrettable if necessary deviation from the ideal of a color-blind meritocratic system." In the aftermath of the United States Supreme Court's decision in Brown v. Board of Education, "colorblindness" was a dominant theme and slogan of the Civil Rights Movement. Brown was viewed as a major victory of the Civil Rights Movement, helping to establish "colorblindness as the central principle of the law governing racial discrimination." The colorblindness thesis dictates that the immutable characteristic of skin color is meaningless. The colorblind position supports a legal skepticism of racial categories and racial classifications. . . . The apparent goal is to treat everyone equally without reference to context, situation, history or culture. On its face, the position is ostensibly neutral, in keeping with the dictates of procedural fairness and formal equality. . . ." Again, the aphorism of colorblindness conveys the message that the "essence of the obligation not to discriminate is for the pertinent decision-maker not to take color or race--any color or race--into consideration. The effect of blindness is to treat all colors as normative equivalents. . . ."Important questions concerning the connection of race and culture and the effects thereof on the lives of African Americans would not be addressed in a colorblind regime, for "colorblindness permits us to avoid any discussion of the morality or justice of assimilation, nationalism, or cultural differences. Instead, its proponents simply assert that justice and morality are vested within colorblindness," and that a colorblind and race-neutral approach "does not suffer the drawbacks of traditional race-based action such as injustice to dispreferred groups, stigmatization of preferred ones, and flagrant race consciousness." B. Color-Awareness For those who are color-aware, the "ideal of a society in which race is as insignificant a factor as eye color" has an initial but illusory appeal. In contrast to advocates of colorblindness, those who are color-aware do not believe that true colorblindness can ever exist. Rather, people who are color-aware view efforts to implement a colorblind regime as a form of race subordination that fails to acknowledge White hegemony even while fostering it. Of course, color-awareness of the subordinating variety has existed throughout the nation's history. Slavery, the legally enforced subordination of African Americans, and the effects of past and present discrimina-ion are harmful and powerful forces. Proponents of color-awareness do not deny these overwhelming instances where color-awareness has resulted in the subjugation of people of color. However, in today's society, where the baseline is not colorblind, the laws and Constitution need to be applied in a more remedial color-aware manner to address both the imbalance and the reality that racial and ethnic biases still exist. Color-awareness advocates argue that "racial justice and colorblindness are not the same thing. Race-neutral policies are only as good or bad as the results they produce. . . . [T]o assume that ignoring race in making social policy will bring about justice or achieve morality is legal fantasy." Moreover, people of color may not want to be treated as raceless or colorless, since so much of who they are is the result of growing up as a person of color in America. To "e-race" individuals is to deny them a meaningful identity and separate them from their own flesh and blood. Adoption of a colorblind approach would permit society in general and courts in particular to avoid accounting for and grappling with fundamental issues raised by past and present discrimination. Color-awareness, rather than sidestepping these issues, posits that it is permissible and desirable to take race and color into account when remedying the present effects of past racial discrimination. In that regard, Title VII of the Civil Rights Act of 1964 is a color-aware statute. While Title VII is colorblind in the sense that an employer covered by the statute may not lawfully consider a person's race in making employment decisions, the statute effectively results in color-aware conduct on the part of employers. For example, in pattern and practice disparate treatment suits, the statistical "underrepresentation" of Blacks can raise the inference of intentional discrimination by employers which may cause an employer to take steps to limit its vulnerability to such legal claims by being aware of the racial demographics of its work force and by taking steps to address any underrepresentation of African Americans. Also, statistical underrepresentation in an employer's work force can be critical in disparate impact cases wherein a statutory violation can be found even in the absence of an unlawful employer motive. In order to avoid exposure to liability from a disparate impact suit an employer may seek to maintain a racially "representative" work force which effectively requires that it act in a race-conscious manner. Color-awareness advocates thus believe that color-awareness comports with a reality in which a person's race and color are observable characteristics; after all, we all can distinguish among colors. Even the visually colorblind, who may not be able to differentiate colors, can distinguish between races. In sum, color-awareness best describes and most accurately captures the historical, contemporary, contextual, and nuanced dimensions of this nation's history and color line. As stated in Palmore v. Sidoti, it "would ignore reality to suggest that racial and ethnic prejudices do not exist or that all manifestations of those prejudices have been eliminated." Those who are color-aware are more likely to see the full dimensions of racial caste and subordination than are those who limit their legal and social inquiries to misguided attempts at achieving a purportedly neutral colorblind position. To borrow the words of Stanley Crouch, colorblindness is: a fiction that shrinks our understanding of this country by avoiding the evidence of those things seen just about everywhere--in our politics, our mass media, on our menus, our campuses, our showroom floors, in our department stores, our malls, our bureaucracies, the lobbies of our hotels, our movie theaters, at our airports, on our highways, in our advertising. Color-awareness is not similarly flawed.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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