In the Parents Involved case, the Supreme Court determined that using race as a criterion for determining which school a child will attend is unconstitutional, thereby upholding a long-standing legal idea: “Our constitution is colorblind.” This famous line was penned by Justice Harlan in his dissenting opinion in “Plessy v Ferguson,” and it has been used both for good and evil by all manner of folk.

There was no wifi connection at the auditorium, but I’ve uploaded my notes from the talk below the fold. Sorry if the notes are sloppy. I’ll try to go back through and link to relevant court cases with pull quotes later on. I’m actually thinking about throwing it all on a “Critique of Colorblindness” resource page. Stay tuned.

Lopez suggests that the ideology of “colorblindness” has actually paved the way for a new kind of racism. I’m especially intrigued by Lopez’s idea that colorblindness is used both as a shield to protect modern-day segregation, and as a sword to cut down more egalitarian measures. Lopez argued that the Court’s 2007 ruling in “Parents Involved” has effectively redefined racism for the national legal system. That is, as long as school administrators aren’t stupid enough to say, “I’m using this policy to keep the black kids out,” they’re completely protected by the constitution. To make policy that enables segregation, even on thinly veiled references to race will still be protected by the constitution. You know the references he’s talking about. “It’s so hard to teach those kids. They come from communities marred by a culture of failure, or an entitlement culture, or gang violence, or they don’t speak English.” As long as you don’t specifically say, “Black people,” or “Latinos,” you’re free and clear from a constitutional perspective. With this decision, the Court has embraced a colorblind view of the world that says, “Keep race out of your decision-making processes, and everything will be fine. If we don’t pay attention to race, these problems will go away.”

Notes:

Chief Justice Roberts, writing for the majority, said, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Why?
roberts: meritocratic principle — to judge based on ancestry overlooks their worth, merit and abilities. violate this liberal meritocratic principle. does afirm. action violate liberal meritocratic principle. at least on one level, it certainly does. in some sense, one’s race is not something one has control over, and to be treated differently does violate the liberal meritocratic principle. is this why afirm. action should be unconstitutional? NO! Lots of things are constitutional, but violate the l.m. like residence. i was born somewhere, but that affects things. what about familial wealth? many students who are qualified to attend yale law, cannot enroll because they cannot afford tuition as a function of familial wealth. this seems to violate the l.m.p. “Even there” — there’s something about race that’s SO IMMUTABLE. Okay — gender. Sex segregated bathrooms. If you violate the norm of sex segregated bathrooms, the force of the state would be arrayed against you. but this segregation does not violate the constitution. we as a society believe strongly in the l.m.p. and we as a society violate it ALL THE TIME.

1973 – san antonio v. rodriguez. school finance case: edgewood has low property values; 360 dollars/yr/pupil on education. allenwell heights — lower taxes, but alamo heights had 594$/yr/pupil. 167% more money available for students. propose that the principle issue – the resources available affect education. does this violate meritocracy? it seems to. these kids will receive qualitatively different educations in a way that has nothing to do with their merit/capacity. does this violate the constitution? 1973 – the supreme court said ABSOLUTELY NOT. Does affirmative action violate l.m.p.? What if the answer’s no?

Rodriguez: what were the racial compositions of these two: edgewood was 90% mexican american, 6% black. Alamo heights was majority white. After 300 years of economic, political and cultural organization based on white superiority, race and class are completely intertwined in the U.S. Affirmative action is an affront to meritocracy. an effort to assure meritocracy. an effort to overcome ingrained, sustained burdens that makei t more difficult for minority children to succeed according to their talents.

but for the purpose of argument, let’s assume it DOES violate l.m.p.?

Constitution should strike down affirmative action:
Hirabayashu – japanese internment cases. Roberts suggests that history provides the answeR: injurious uses of race have led us to forbid the use of race. clarence thomas’s concurring opinion says: “my view of the constitution — our constitution is colorblind, and does not know … justice harlan gave the line “our constitution is colorblind.” did harlan in 1896 argue that the constitution is colorblind in the sense of any use of race. That’s NOT what Harlan was doing in 1896. In the same paragraph, he said: “the white race deems itself to be the dominant race in this country. and so it is.” harlan accepted the premise of black inferiority. the question was under what circumstances could the state differentiate between blacks and whites. the only question was whether train ravel (which was segregated) had to do with the marketplace or with travel. for harlan, you couldn’t use race to segregate trains (the civil arena).

yet such a powerful phrase. such a clear and moral call to do … what? it’s ambiguous.
thurgood marshall for the NAACP, seized on the line “colorblind” to argue that every state and action that used race to do injury. on marshall: “harlan’s descent was marshall’s bible. marshall would read aloud from harlan’s descent.” “our constitution is colorblind.” it became our basic creed. Why? because that phrase if taken to mean the state cannot ever make distinction on race — had the potential in one strike to end all of across segregation. it could’ve ended it all. all the official segregations of schools, buses, public accommodations. all would have fallen if the court thad adopted colorblindness as proposed by thurgood marshall. did brown v board do that? they argued for colorblindness, but the court only said that desegregation should go forward with all deliberate speed. it delayed striking down miscegenation laws. the south was MOST deeply committed to racial etiquette. the proposition that blacks and whites were not permitted to marry. court dismissed the miscegenation case in 1955? 65? in 1967 the court said CLEARLY that anti-miscegenation laws violated constitution.

the court didn’t embrace colorblindness. even in 1967, the court did not embrace colorblindness. the NAACP for the first time since the late 40s, did not argue that the court SHOULD. loven v virginia, NAACP did NOT come to the court and argue colorblindness, unlike the marshall cases. 1) ending formal segregation would not be enough to promote equality. 2) in order to achieve real equality, race conscious means would be necessary, 3) colorblindness was beginning to surface as a reactionary argument to stop integration.

immediately after brown v board, some argued that 14th amendment did not require integration.
“the constitution is colorblind. it should no more be violated to promote integration than it should to promoted segregation.” a south carolina court. “you can’t have race conscious to segregate OR to integrate.”
one state prohibited use of race to do schools.
absolutely essential ; south made a boldfaced effort to capture the language of colorblindness. 9-0 decision in 1971, the supreme court said NO. the constitution is NOT colorblind; not in a way that would prevent the use of race to achieve integration. but starting in the 1980s, the court began to change its mind. in 1989 richmond v prosen, in 1995 adderand, struck down affirmative action that generally track the colorblind rationale. in michigan, o’connor, the swan decision – overturning north carolina’s effort to use colorblindness; majority said it was irrelevant. “those who sought to use colorblindness to stall integration stalled in 1971, won in 2007.

maybe we want to sign on to colorblindness as a way forward – a vision for the future. but to use it as a tactic, a policy, we must measure its effect. its moral stature can only come based on its effect. sometimes it has a good potential. others it preserves segregation .think of the recalcitrant south in the late 60s and 70s.

how should we evaluate colorblindness in the seattle and louisville cases? roberts is saying, ‘segregation, integration’ – it’s the same case in both cases.
1) segregation was about social debasement. promoting the idea that minorities were tainted, disease ridden, filthy. morally dirty. innately inferior, morally and intellectually. such a degraded species that ALL contact with them had to be avoided. social debasement lies at the heart of segregation.
2) populate control. education would unfit slaves for their role as enslaved people, raise their expectations, of political participation, etc. in jim crow, liberal north rallies around tuskegee institute and booker t washington’s idea that the tuskegee institute was good for blacks – they don’t need liberal arts ed, just vocational. economic and political control of minorities.
3) fiscal considerations: public expense is an expensive proposal. how much better if you wouldn’t have to spend money on them. blacks can pay for the high school, though it’s a whites only high school. (harlan case.)

and segregation still lingers today. after brown v board, not much changed.
1968, 78% of black students attended over 90% black schools. by 1980, that dropped to 23%. 23% of black in south attended a 90% black school. still some segregation, but far less.
200, that number had begun to creep back up. in 2002, across country, 1/3 of black children go to school that are 90% black. 1/20 of black and latino go to 99% black and latino schools. it’s a response that seeks to break the connection between race and character at the social level. to insist the notion that there are racially unfit/dirty people. that parents and students will get to KNOW each other in that social contact, the evil of the idea that one group is superior, one is inferior. integration is an insistence on social equality.
2) it’s also a plea for an adequate education.
3) repudiation of the idea that some are destined to work with their hands, while some are destined to work with their minds.
4) in a democracy, funds and political resources flow toward the majority.
this is what seattle and louisville were attempting to do.

discrimination does not mean the same thing in desegregation vs integration. discrimination in segregation means racial subordination — treat people worse. in the context of integration, discrimination means make a distinction — notice that there are important differences that occur socially and resource-wise.
but that is the distinction in the meaning of discrimination that roberts refuses to make. roberts uses discriminating to mean the same thing in segregation and integration. colorblindness is used as a SWORD. not a shield. used to take DOWN relevant social differences. the same sword that the south sought to use in the late 1960s. a sword used to strike at the more egalitarian society.

as if that wasn’t bad enough, colorblindness is also a shield. it’s telling us what counts as racism – “any use of race.” even if mean to integrate. it’s also telling us what’s NOT racism. What is NOT racism is ANY action in which race is not EXPLICITLY mentioned. so: imagine a set of schools that are falling into a consistent pattern. One set is dilapidated, overcrowded, not enough books. The other set has books, after school programs, teacher/student ratios. imagine a racial difference here. what might be going on? it might JUST be the inertia of the past. 300 years of racial hierarchy, it’s no surprise that this hierarchy is built in to the material conditions of our society. is there are constitutional duty to remedy that sort of inertia? court says: ONLY if you can establish a direct link to past state-mandated segregation policies.

but MAYBE there are racial acts by current administrators. that wouldn’t be a surprise. is there a constitutional authority for that? The answer, is NO. unless somebody is foolish enough to actually use a racial term. the court has said, “unless you can find a bad actor who is stupid enough to say ‘i’m out to get blacks, i want to screw the hispanics,’ (administrators who largely doesn’t exist) then there’s no remedy for conscious racism because we will assume it simply doesn’t exist. what if they use thinly veiled terms? ‘fund these schools and underfund these because some communities are marred by a culture of failure, or a propensity of failure, or an entitlement mentality.” or what if they say ‘you just can’t teach people because they don’t speak english.’ what if you recognize these racialized stereotypes? NO REMEDY constitutionally.

colorblindness serves as a SHIELD to insulate self-evident racial practices from constitutional scrutiny as LONG as they don’t use a racial term. it INVITES new forms of racial discource. It tells people “if you can use our new discourse, you can get away with this.’

as long as these calumnies are grounded not in biology but in culture, it’s not RACISM. colorblindness invites a new racial discourse that insulates itself form the challenges of racist history. it gets to say i’m not a racist. you just have an inferior culture.’

in general, it’s a combination of inertia, conscious racism, cultural stereotypes. is there any constitutional ?? No.
BUT what if local administrators see this, and choose to do something about it. what if they undertake modest efforts to break this pattern? NO they cannot. for it is NOW for when the school constitution actually uses a race word, the court says ‘YOU cannot do that.”

conclusion:
what should we do?
constitutionally — the 14th amendment should allow democracy to work when it works best. when the polity wrestles over the difficult question of when to use race and comes to the conclusion that race should be used to break down patterns of racial inequality, the constitution should step back and allow democracy to work. but when we fail in our promise, and local majorities use race in a way that exacerbates that problem, then the 14th amendment should step in. i say that, “that sounds so obvious.” and yet so opposite to what the current supreme court is doing. as individuals, we MUST reject the superficial allure of colorblindness. ‘at some point in the far distant future, it will be good to have a country where race will not be noted,’ but as a means to get us there, it’s a failure. we don’t solve ANY social problem by refusing to talk about it. that’s just RIDICULOUS. all we do by refusing to talk about it is ensure that it will continue, fester and grow worse. you’ve got to tALK explicitly about race. and about NEW FORMS of RACISM.
plus we must design solutions, programs, policies that are EXPLICITLY race based. exclusively race based? not necessarily. i’d be all for policies that combine race and class. but unless we take on race directly and explicitly…

how long must we continue as a society to address race? perhaps as short a time as one dedicated generation. but here’s a better answer: we’ll need to mobilize around race so long as racial injury remains a part of our society.

Kharis White-McLaughlin (President of METCO) panel response:
dunbar school? segregated schools. many students lost teachers who cared about them. many lost their positions of power, because now they were moving into a different hierarchy. “is it an honest conversation? are all the players equal? if the community’s voice is not heard, in some ways we will do a disservice to them.” i can talk about how separate education may preserve certain good qualities, the bottom line is that democratic ideal is integration. we are to find ways to stay together. if there was a true belie that this nation would equally fund separate institutions, you might hear a different conversation from the community about how to deal with schooling and segregation.

METCO: why it is so necessary. something is terribly wrong with the patterns in our urban public schools. across this nation, unless there is something inherently wrong with children of color, something is terribly wrong. what are we educating some children for? are we providing the same type of education that we would provide in our white affluent communities? i would dare say no. as we look at housing across this nation, we still haven’t solved that. if you have quality housing, usually quality schooling will follow. but we haven’t solved that problem. when you look at healthcare, when you look at prison. does it mean one set of children is inherently bad? or do we deal with them in particular ways?

when i hear people talk about whether race still matters. when people talk about race, and what that means, and who they want with them…
we will find ways to educate the children we care about. if we know they’re supposed to do well, and they’re not doing well — we will figure out a way to fix it. but if we don’t care about them, it’s okay to talk about how well they don’t do. how their parents might have issues, how the neighborhood might have issues, and how impossible these issues are to fix.

so it’s worth having the conversation, no matter how tired it makes me. we still need to maintain the energy level to come together and have real discussions about how to do things differently.
it’s unfair that kids have to travel so many miles just to have an effective education.
1) all children need to understand the american ideals that have made this country great despite all its issues; children should understand their responsibility not only to themselves, to their families, but to the larger world
2) we need to truly value all of our children. we really need to let each one of these children know that they do matter. that they should have effective education, that they should have quality teachers, that they should have good curriculum, good books, and a decent school in which to learn in.
3) acknowledge how we treat some parents differently. children do not come to use separately from our families. in communities of color, they often feel disenfranchised and without a voice in their children’s education. schools need to figure out a way to bring the entire family unit into the school.

Question: o’connor – numerated specific steps for racial affirmative action to successfully expire in 25 years in the gruder case. her vote in gruder is inconsistent in her other cases.
Haney Lopez:
to treat someone fair means to recognize
integration as an ideal is an anti-subordination tactic. the benefits and burdens of integration would be shared around
‘there was no way whites would be subjected to the burdens of black schools.’ and not we have a rejection of integration. why? one can imagine ‘ i reject integration because i believe in a cultural pluralistic, hands-off society.’ but most repudiate integration because it hasn’t worked out that well. they’re repudiating its dystopian reality — the subordination that students of color face IN integrated WHITE schools.

after nazism, u.s. change, the south wised up and said ‘we all just want to hang out. leave it alone.’
integration that is effective takes place between people who are in equal positions of power. if you have to go to washington d.c. in the er, the segregated section, then you would know why we need integration. they had white and black fire stations.

claremont conference san francisco 1980.
tim wise – but larry elder says x, or john mcwhorter, …
“freedom of association” type argument. liberal – supported initial decisions for civil rights, but began to break when race conscious policies started to make substantive changes in jobs, schools, redistribution of wealth… the neocon was all for “no state mandated subordination” but opposed state mandated action at positive change. patrick moynihan, for example.
on haney lopez’s website: stanford law journal article that describes this history.

it’s very important for the right to claim the legitimacy associated with martin luther king, thurgood marshall. to say ‘we’re completely opposed to racism, but we also oppose all these changes people are trying to make.’ the right claims colorblindness from harlan and thurgood marshall. but the real background is the south in the 1960s. or nathan glazer in 1975 for powell’s language in the baki decision.

community in atlanta incorporating to make sure their school system gets the money from the community. a very poor town may actually need more. we have to acknowledge that we have an obligation to do something. we don’t have a problem paying a whole bunch of money to imprison people. if we took that money and put it into children, we might just see a big change.

all of these innovations in education and society work very well for people who have the means and have the strategy. what about the ones who don’t have that agency. poor white children is another example.

brown bag lunch discussion follow up.
sophia gordon hall follow up.
the facilitator promoted recycling/green choices in directing people to the reception.