Colour Blindness: a Legal Perspective

In recent years, the term ‘racial colour blindness’ has become somewhat politically charged in the “United States. This article seeks to present the complex legal, social and philosophical implications which the idea of colour blindness. I will also attempt to outline a brief history of colour blindness in U.S. and show how political perceptions of it have changed over the years. All of this I will be discussing specifically with a legal lens, examining how the Constitution, the Civil Rights Act (1964) and the recent and pertinent case Students for Fair Admissions v. Harvard (2023) grapple with both the ideological and practical interpretations of colour blindness.

Racial colour blindness, according to Wikipedia, ‘refers to the belief that a person’s race or ethnicity should not influence their legal or social treatment in society’. The term was first used in Justice John Marshall Harlan’s dissenting opinion to Plessy v. Ferguson (1896).  This important Supreme Court decision ruled that racial segregation laws did not violate the Constitution, as long as the facilities for people of colour were equal in quality to those of white people. This infamous ideology came to often be known as “separate but equal” or the “Jim Crow laws”. Although his opinion was of the minority, Justice Harlan, with commendable persistence, wrote:

“Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.”

He wrote this in reference to the Equal Protection Clause of 14th Amendment, which said that “any State … [shall not] deny to any person within its jurisdiction the equal protection of the laws.” Harlan’s interpretation suggests that law should treat all citizens equally, regardless of skin colour. Moreover, any legal distinction of race, such as the segregation upheld in Plessy v. Ferguson, which posited that racial segregation was constitutional as long as the facilities of each race were equal in quality, violated the Equal Protection Clause.

It took 58 years for Justice Harlan’s vision of a more integrated, legally equal society to begin to come into existence. Plessy v. Ferguson was first partly overruled by the Supreme Court’s decision in Brown v. Board of Education (1954), which established that racial segregation in public schools, even among schools of equal quality, is unconstitutional. This was a major step forward in the Civil Rights movement of the 50s and 60s, culminating in the landmark Civil Rights Act (1964), which criminalised discrimination of race, colour, religion, sex, and national origin, remaining “one of the most significant legislative achievements in American history. The Act is another important piece of legislature which the colour blindness debate revolves around, as it begs the question of how to define and interpret the idea of discrimination, just as the Equal Protection Clause requires us to define equality. Martin Luther King Jr.’s famous quote, “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character”, embodies the colour-blind vision of America which Justice Harlan strove for. As we have determined from the Equal Protection Clause and the Civil Rights Act, to be legally “judged by the colour of their skin” is unlawful. The law, in this ideal sense, is colourblind.

What are the problems with colour blindness?

The idea of colour blindness has other implications which extend beyond the simple and commendable definition of not judging by colour or race. Colour blindness, in one sense, is not just a method of achieving fairness and equality. It is also a deliberate disregarding of race. The colour-blind State is one which fails to see race distinctions among its citizens, which numerous critics label as a blatant disregard of systemic racism in society. Systemic racism, also known as institutional racism, is a form of ‘institutional discrimination which can include polices and practices that exist throughout a whole society or organisation that result in and support a continued unfair advantage to some people and unfair or harmful treatment of others”. In simpler terms, institutional racism suggests that the entire legal, social and political system in which citizens exist is biased against race in its core. Rather than being represented by simple instances of racist acts, which are easy to identify in practice e.g. being called a racist slur, systemic racism has a “much less overt, more subtle nature”, as race permeates into every crevice of a nation: into  class, economy, employment, healthcare, government, education, and perhaps most importantly, the law.

Can legal colour blindness be racist?

As race and race distinctions are so universal, some say that a legally colour blind world is simply impossible, since the law has racism in its veins, so to speak. This is a fair point, especially in the case of the US and the UK, which were countries built by the Atlantic Slave Trade. It makes logical sense, given that the American War of Independence and the Constitution both existed decades before the abolishment of slavery, the dissolution of racial segregation, the Civil Rights Act, for critics to question the Constitution. Moreover, even if the law is colour blind in trial, e.g. a person shoplifting from a corner store, it cannot take into account the broader societal circumstances and class factors which caused the person to shoplift. In a sense, the law, even when it perfectly does not distinguish race, may permit systemic racism to exist, by virtue of being colour blind, or equal.

One possible solution…

Critics of racial colour blindness argue that a country can combat systemic racism by implementing race-conscious policies—policies which seek to improve the conditions of racial minorities. Race-conscious policies ultimately may have two goals: 1) to compensate for past discrimination against a target minority and 2) to increase equality of opportunity. Race-conscious policies, with regard to the second point, have the same goal as the Equal Protection Clause and MLK’s speech, to promote racial equality, to create a world where one’s skin colour does not inhibit their opportunity and potential to succeed. These are manifested in a plethora of ways, such as affirmative action, numerical racial quotas, and Diversity, Equity and Inclusion practices.

What is affirmative action?

A particularly pertinent example of such policies is affirmative action, sometimes known as positive discrimination. Affirmative action is seen as a way of increasing equality of opportunity by considering race in admissions, among other factors. The aim of affirmative action is to ensure that students from underrepresented racial and ethnic groups—such as African Americans, Latinos, and Native Americans—have equitable access to educational opportunities at prestigious universities, in order to reduce systemic inequalities in society. In this way, universities practising affirmative action with regard to race are certainly not colour blind.

Does race-conscious affirmative action contradict the Equal Protection Clause?

According to the Supreme Court, the answer is yes. In Students for Fair Admissions v. Harvard (2023), the court ruled in a 6-3 decision against the use of race-conscious affirmative action in college admissions, effectively ending the practice at Harvard and other American universities. This overruled Grutter v. Bollinger (2003), which held that “a student admissions process that favours ‘underrepresented minority groups’ did not violate the Fourteenth Amendment's Equal Protection Clause so long as it took into account other factors evaluated on an individual basis for every applicant”. In other words, as long as the admissions process was holistic in that it considered many factors including race, race-conscious affirmative action was constitutional. Conversely in 2023, Students for Fair Admissions contended that Harvard’s race-conscious admissions violated the Equal Protection Clause of the 14th Amendment and the Civil Rights Act by favouring underrepresented minorities, leading to unfair treatment of Asian Americans, who do not receive the same benefits as other racial minorities. This is because affirmative action tends to hold them to higher academic standards, particularly at elite universities, in order to increase representation of other minority groups. The practice lies in stark contrast with MLK Jr’s speech; if I, an Asian-American, had applied to Harvard before 2023, I would have been undoubtedly “judged by the colour of my skin” to some extent.

The decision illuminates clearly the issues with race-conscious affirmative action. In terms of increasing equality of opportunity by favouring underrepresented groups, judging by such a broad group as race is vague and foolish. If their goal is to truly reduce systemic inequality, universities should first look towards socioeconomic circumstances: quantifiable and objective measurements of privilege, rather than the hazy measurement of privilege by race.

Colour blindness and political discourse

Colour blindness, in recent years, has become used in right-wing rhetoric against race-conscious policies. Conservative commentators have given the originally progressive idea new racist connotations, as a challenge to ‘wokeism’, rehashing MLK’s vision of America where people will not be “judged by the colour of their skin but the content of their character” as a defence against racism perpetuated towards white rights. Among the left, the idea of colour blindness is dismissed as a simple way for conservatives to mask racist views, as modern-day proponents of colour blindness are “geared toward combatting race-conscious policies” (Racial Color Blindness: Emergence, Practice, and Implications). Slogans like “All Lives Matter”, in response to Black Lives Matter, on their own seem like perfectly commendable beliefs, yet the phrase is undoubtedly charged with reactionary, anti-woke rhetoric, due to the extreme polarisation of each side. Each side perpetuates their own view about colour blindness, which causes each side to become more and more harsh and extreme. Now, according to an article from learningforjustice.org, colour blindness is “The New Racism”. A moderate position, distinct from both the conservative ‘racism against whites’ and the liberal whining is necessary.

Conclusion

Overall, the law must be colourblind. Fairness and equality can only be achieved when the law judges each citizen without the consideration of race, “regards man as man”, in the words of Justice Harlan. Even though the US had a horrifying and hypocritical colonialist past, where it failed to follow its own 14th Amendment, in the 21st century, it should maintain that ideal of justice and equality. If the legal system begins to deliberately favour racial minorities, its supposed impartiality is jeopardised. That said, systemic racism is very real and is ingrained very deep and must not be overlooked. But creating an imbalance in the opposite direction is not the way to rid the nation of it. If I, an Asian-American, were to steal a loaf of bread in my country, I should face the exact same sentence, whether I am black or white or Latino. Equal Protection is fundamental, and it is this ideal that American judges, lawyers, educators, politicians, activists should keep close to their hearts as we tumble through a tumultuous, polarised, angry age of US history.

-Thomas Zahl