Does Colorblind = Oblivious? (Obliviously Not!)

Jack Balkin returns today (oops, make that yesterday; time flies…) with an interesting post on “Why the ‘Ten Percent Solution’ Isn’t Colorblind.”

It reprises many of the points made in comments to earlier posts here, here, and here. Balkin may be nonplussed to learn that those comments clearly reveal that many conservatives agree with his view that the Texas Plan fails the colorblind test. Balkin writes:

There is no question that the Ten Percent solution is a race conscious remedy. The avowed purpose of the Ten Percent solution is to increase minority enrollments at Texas state universities. If race-consciousness means taking race into account in government decisionmaking, the ten percent plan is clearly race conscious.

One might object that colorblindness merely means that the policy may not mention race on its face or make explicitly racial categories. But that undermines the moral case for colorblindness, making it only a fig leaf for otherwise unconstitutional motivation. The Supreme Court has wisely never adopted this view. It matters not whether the language of the plan is facially neutral if a racially discriminatory purpose for enacting the policy can be shown….

I find Balkin’s argument curious; either it’s a bit confused, or I am (or, I guess, both). He seems to be saying that the Texas Plan is based on “unconstitutional motivation” and is thus “racially discriminatory.” I can easily understand this argument when it comes from a Terry Pell (see comments referred to above) or a Roger Clegg, but I don’t understand it coming someone like Balkin, who actively supports “diversity” plans that are much more overtly and purposefully discriminatory than Texas’s. Perhaps he simply doesn’t regard “racially discriminatory” as legally fatal any more, and so does not mean to say that courts should reject the Texas plan. But that, in turn, would suggest that he rejects the “disparate impact” theory of discrimination, which he clearly does not. (In his post that I discussed yesterday, he criticized conservatives for “insisting that government policies that had a predictable and foreseeably disproportionate impact on racial minorities but did not make overt racial classifications did not offend the colorblindness principle,” and in a Jan. 15 post he had nice things to say about Griggs v. Duke Power.) His argument here reinforces a notion I’ve long had, which is that a commitment to diversity — and the regime of racial preferences necessary to maintain it — is fundamentally incompatible with civil rights laws outlawing racial discrimination.

But whatever a Judge Balkin would do with the Texas Plan, Professor Balkin is here concerned to demonstrate that it is not colorblind, and hence that Bush and the conservatives are presumably hypocritical to support it. I believe this view is mistaken, and it is mistaken in part because it doesn’t take seriously enough the colorblind argument that rights inhere in individuals.

Because [under the Texas Plan] it is predictable that the top students at de facto segregated schools will be black or Latino, it is unnecessary to take their individual race into account in admitting them. This preserves the illusion that everyone is treated as an individual, not as a member of a group, and is treated the same regardless of their race. But that illusion is only made possible by fixing the rules of the game beforehand with a deliberate eye to the predicted racial balance of the incoming class. You can call this a lot of things, but colorblind is not one of them.

I don’t believe it is an “illusion” that under the Texas Plan applicants are treated as individuals and not as group members, but reasonable people can disagree about this. I certainly see Balkin’s point. But I also see a fundamental flaw in it. Under his approach, no policy is colorblind if its purpose and effect primarily benefits minorities. Forget about the Texas Plan. Forget about affirmative action in its original sense of outreach and taking affirmative steps to insure that no person is disadvantaged because of race. They’re small potatoes. Welfare? It’s unconstitutional if its proponents were aware that it disproportionately benefits blacks, let alone supported it in part for that reason. Indeed, on Balkin’s logic, the Civil Rights Act of 1964 and all the other civil rights laws are discriminatory!

You may think I exaggerate, but recall that the day after California voters passed Proposition 209, which stated that

The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting…

the ACLU sought an injunction declaring that it violated the 14th Amendment! (A federal district judge granted it but was overturned by the Ninth Circuit.)

Colorblindness requires that every individual be treated without regard to race, that no benefits or burdens be distributed to individuals on the basis of race. It does not require obliviousness to race, nor does it require that every policy affect every group identically.

Balkin argues that

support for [the Texas 10%] plan among opponents of affirmative action reveals the basic problem with colorblindness as a theory of equality: Colorblindness taken seriously leads to unpalatable results that most Americans would reject as undesireable, unequal, and unfair.

But rejection of colorblindness leads to an affirmation of the necessity of ongoing racial discrimination, which I suspect more Americans reject as undesirable and unfair, and to such absurdities as the argument that anti-discrimination measures violate the 14th Amendment.

UPDATE – Jack Balkin has replied with a terrific, long post. Go read it. As I emailed him, I’m sure I read slower than anyone who’s ever gotten this far in school, and I think even slower than that. Thus it will take me a while to digest what Jack has written. Indeed, it is dense enough (I mean this in a good sense, not that it is incomprehensible) that it may require more chewing, i.e., brainpower, than I can provide. But that’s never stopped me before, and I expect to have more to say later this evening or tomorrow. Meanwhile, I’m off to play tennis for a coupla hours (blogging is consuming, but not all-consuming).

Will Rogers once said that when the Okies migrated to California they raised the collective I.Q. of both states. Similarly, the arrival of Balkinization has already injected the blogosphere with a jolt of high-octane I.Q.; I hope the time he spends on it won’t detract too much from the intellectual atmosphere at Yale Law School.