The Benefits and Risks of a Color-Blind Society: Discussing Racial Discrimination Laws

The Benefits and Risks of a Color-Blind Society: Discussing Racial Discrimination Laws

If the United States wants to move towards a color-blind society, there are certainly significant problems if this country were to ultimately achieve that. Yet, the laws of this nation say otherwise. The Equal Protection clause is an affirmation of the idea that under the law, everyone is equal and no law shall apply more or less from one person to another. This was the Amendment saying that the United States would not tolerate discrimination and that states could not disadvantage one group of citizens over another. The Civil Rights Act of 1964 was an reaffirmation of the Equal Protection clause and is an explicit statement that the United States shall not discriminate. Now if we only look as far as at these laws on the books, we will find that this country is in fact already a color-blind society. Therefore there should not be any problems changing the way things are since this country is already there. However, the United States is not a color-blind society. It is not even close. The fact that in some ways this country has these laws and ideals stating that all persons of different races are to be treated equal does not mean everything is equal. The United States, for most of its history was anything but a society that ignored color and treated people of different races equally.

Historically speaking, minorities in this country, especially blacks, have been severely oppressed by laws of this nation and by significant groups of the white majority. Blacks have been discriminated against overtly and subtly throughout this nation's history. This racial discrimination has left lasting consequences on American society. Justice Ginsburg points out in her dissent for Gratz v. Bollinger (1504), that even today “unemployment, poverty, and access to healthcare vary disproportionately by race.” Ginsburg goes on to say that “Bias both conscious and unconscious, reflecting traditional and unexamined habits of thought, keeps up barriers that must come down if equal opportunity and nondiscrimination are ever genuinely to become this country's law and practice.” The consequences of that racism have not gone away with just the removal of racism from government but have lasted on. In this, Justice Ginsburg illustrates just what the risk of moving to a society that does not recognize race or ethnic background as factor to include the laws of this country. If we refuse to take race and ethnicity into account, it becomes extremely difficult to correct for the damage racial discrimination has done and the lasting consequences of that damage Chief Justice Roberts states in Parents Involved in Community v. Seattle states that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race” (1444). Even though Chief Justice Roberts makes an excellent point on how to stop discrimination by governmental entities, it does little to fix the lasting damage done to minorities in the past by de jure and de facto discrimination. The question is how to fix the damage of this discrimination against racial minorities without going against the protections this country holds as principle.

The University of Michigan tried to fix this damage by using point system for applicants which gave a bonus to racial minority applicants. In Gratz v. Bollinger (1501), the Court held that the University of Michigan's use of a point system that automatically assigns 20 points to racial minorities is a violation of both the Civil Rights Act of 1964 and the Equal Protection clause. Chief Justice Rehnquist cites the Bakke (1978) case as the basis for the decision in Gratz (1502-1503). “In Bakke, Justice POWELL reiterated that “[p]referring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake.” (Gratz v. Bollinger1502-1503). Chief Justice Rehnquist also says out that Justice Powell did emphasize that it would be allowable for a university to use race or ethnic background as a plus in their admissions program (Gratz v. Bollinger 1503). The University of Michigan was not applying the quota system that was found in the Bakke (1978) case in which a certain numbers of spots were held solely for racial minority applicants but instead assigning a bonus of 20 points to the racial minority applicants. Although, the difference between the quota system which did not allow for white students to compete at all for the reserved spots and a point system that gives racial minorities a head start towards gaining admission is clear, both fell into the illegal and unconstitutional category since it did satisfy the standard of “narrowly tailored measures that further compelling government interests” (Gratz v. Bollinger 1502). Therefore, for any system including race as a factor to be permissible, it must narrow in scope so that it does nothing besides what it was intended to do and have a compelling government interest. However, the fact that the admissions system automatically gives these points to any member of minority race was deemed to not be narrowly tailored (Gratz v. Bollinger 1503). Chief Justice Rehnquist points out that Justice Powell in Bakke (1978) stated that race of applicant could be considered as long as it was not decisive. Chief Justice Rehnquist continues by saying that the automatic 20 points “has the effect of making “the factor of race...decisive” for virtually every minimally qualified underrepresented minority applicant (Gratz v. Bollinger 1503). However, the factor that made it decisive in the Bakke (1978) case was that minority students did not have to compete in any way against whites for admissions spots in the medical school. While 20 points does give applicants who belong to a racial minority a decent head start, it falls way short of the required 100 points for guaranteed admission. The minority applicants in this case must still compete against white students. But since the Court wants to uphold an interpretation of the 14th Amendment that sees using race as any sort of significant numerical factor as a violation, the system is unacceptable.

In Grutter v. Bollinger (1506), the use of racial preferences is allowed. Justice O' Connor cites Bakke (1978), in saying that any race-conscious admissions program cannot use a quota system that will “insulat[e] each category of applicants with certain desired qualifications from competition with all other applicants.” However Justice O'Connor continues by saying that a program that does include racial preferences is allowable if it is “flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight” (Grutter v. Bollinger 1508). The goal the University of Michigan Law School is aiming for is obtaining a diverse student body. The University of Michigan Law School plans on achieving this diverse body by looking at a variety of factors for each applicant including test scores, GPAs along with “ recommendation, the quality of the undergraduate institution, the quality of the applicant's essay, and the areas and difficulty of undergraduate course selection” (Grutter v. Bollinger 1506). The Law School aims to achieve a diverse student body consisting of different ethnic and racial background and to enroll a critical mass of minority students (Grutter v. Bollinger 1507). Justice O'Connor points out that since the goal is not racial balancing but instead diversity, the admissions goal is constitutional (Grutter v. Bollinger 1507). The difference here from the University of Michigan's undergraduate admissions policy in Gratz v. Bollinger is that each applicant for the Law School receives a highly individualized, holistic review of their file and gives this individual consideration to applicants of all races (Gratz v. Bollinger 1509). So while each Law School applicant is evaluated by a variety of categories without giving race and ethnicity a numerical weight, the policy is narrowly tailored and therefore it is permissible to include race as one of these categories.

Instead of using a system with set and objective standards, in the pursuit of a color-blind Constitution, the Court has allowed for race to only be taken into account when pursuing diversity. Also the system requires that each applicant be evaluated individually with consideration for many different categories for how the applicant will add to the diversity of the school. Also, the categories can not be ranked with a numerical system if the system includes race or ethnic background. Instead each candidate's racial background must subjectively weighed against all the other categories to be evaluated. In this, a person's race is being pushed as something that is not important and can not be considered unless it is for the sake of diversity and that as little weight as possible is assigned to it. This idea of diversity seems to have little power in correcting for the damages of past racial discrimination. It does not help to correct for that blacks who have were born and raised in the poorest of neighborhoods, most likely didn't have the free time or even the possibility of being the captain of the debate team or the money to afford SAT prep classes and tutors. Justice Souter points out in Gratz v. Bollinger that a “nonminority applicant who scores highly in” the many other categories the University of Michigan included “can readily garner a selection index exceeding that of a minority applicant who gets the 20-point bonus (Gratz v. Bollinger 1505). So without this bonus, many minority applicants do not stand a chance against white applicants.

In Parents Involved in Community Schools v. Seattle School District No. 1. (2007), Chief Justice Roberts states that another justifiable ground for “use of a racial classifications” besides diversity is the “compelling interest of remedying the effects of past discrimination” (Parents Involved v. Seattle 1442). However, Chief Justice Roberts says that the Seattle, WA and Jefferson County , KY schools in question can not claim this interest since Seattle schools were never officially segregated by law and the Jefferson County schools had been desegregated since 2000 (Parents Involved v. Seattle 1442). So it appears that an institution must have been the cause of damage by using harmful racial discrimination in the past and must still have some remnant left of the discrimination deemed unacceptable in and at the time of Brown v. Board of Education (1954) to have a compelling interest. Yet, Justice Breyer points out in his dissent for Parents Involved v. Seattle that local communities have been allowed to desegregate even if it wasn't required of them (Parents Involved v. Seattle 1447). He continues by pointing the long history of using race-conscious measures to help improve the conditions of race (Parents Involved v. Seattle 1449). Justice Breyer points out that this country has used race-conscious measures and should continue using the plethora of race-conscious measures in order to maintain “hard-won gains,” and prevent “de facto resegregation” (Parents Involved v. Seattle 1450). It is this idea that an institution can continue to use the compelling government interest to remedy past intentional discrimination even if it wasn't a law on the books or if the institution has achieved its first goal.

The United States has used race-conscious measures in correcting for racial discrimination and the damages that it has caused. That is what this nation risks losing if it interprets the 14th Amendment and Civil Rights Act of 1964 as blinders to race. Instead this country should continue to be aware of race, the role it has played and the role it continues to play. To ignore race now is to accept the racial discrimination of the past.