Unconscious Devotion To Colorblindness

A ubiquitous trope of the race preference pushers is that we’re all racist, whether we know it or not. Google “unconscious racism” and you’ll be drowning in links to argument’s like The Guardian telling you that “You’re probably more racist and sexist than you think,” Katie Couric asking (and you can guess her answer) “Do You Have an Unconscious Racist Bias?” and Psychology Today trumpeting “Studies of Unconscious Bias: Racism Not Always By Racists.”

The unconscious, however, is a mansion of many rooms, some of them so open and accessible that psychoanalysis is not necessary to see that the principle of colorblindness— the belief that treating people without regard to their race, creed, or color — is so deeply embedded in the American psyche and sense of fairness that even preference pushers who think they’ve abandoned it have not been able to escape its power. In unguarded moments, with their attention elsewhere, they too sound like they believe in colorblind racial equality.

A few days ago, to pick one example, Michael Dorf, a highly regarded Cornell law professor, offered the following possible defense of the indictment of Texas governor Rick Perry:

In numerous ways and circumstances, the law confers power on people but restricts–sometimes with criminal penalties–the means by, and purposes for which, they may permissibly exercise that power. Governors and other state officials have the power to make personnel decisions. Some of these decisions are considered discretionary, in the sense that they are not subject to review by others who think that they reflect a poor policy or personal judgment. Nonetheless, such decisions are not wholly unconstrained by law. For example, a public official who fired or refused to hire someone based on race would thereby violate the Constitution.

What I find interesting here is not Dorf’s view of the Perry indictment (actually that is interesting, and it has been persuasively criticized by Eugene Volokh, here) but his confident assertion that race-based employment decisions by a public official violate the Constitution.

What makes that assertion of interest here is not its substance, which readers know I endorse, but its  source, since Prof. Dorf is such a prominent defender of race-based decisions in higher education — a co-author of amicus briefs defending race-based preferential treatment in both the Grutter and Fisher cases. To his credit Prof. Dorf does not deny that affirmative action is “race-based,” a term that appears seven times in a piece he wrote discussing the Supreme Court’s decision to hear Fisher, a piece that acknowledged liberal (along with conservative) inconsistency:

Roughly since the time when the Court decided Bakke, liberal supporters of affirmative action have contended that they accept that strict scrutiny applies to all racial classifications, even as they define strict scrutiny to mean not-so-strict scrutiny when it comes to affirmative action.  Traditional strict scrutiny—of the sort that applies to race-based classifications that disadvantage racial minorities—is almost impossible to satisfy.  By contrast, the watered-down version of strict scrutiny that the more liberal Justices apply in affirmative action cases is difficult to distinguish from the intermediate-scrutiny approach that the four liberals endorsed in the Bakke case.

I don’t mean to single out Prof. Dorf. He is certainly not alone in seeming to agree that race-based decisions are wrong … except when he is consciously defending them.

Take, for example, Christopher Edley, former Harvard law professor, former Dean of  Boalt Hall, the law school at the University of California, Berkeley. I’ve written about Prof. Edley on several occasions (some listed in An Edley Medley), such as here in 2002 where I described him as a “former White House aide, co-author of President Clinton’s ‘mend it, don’t end it’ review of affirmative action policies, advisor to Clinton’s race commission, fervent advocate of racial preferences (he described Stephan and Abigail Thernstrom’s America in Black and White as ‘a crime against humanity’), and advisor to the 2000 Gore campaign.” I mention Edley now because of a comment of his arguing that “our rich religious diversity” provides a model for racial diversity that I quoted in that 2002 post:

“We are fairly united as one of the most religious nations on earth,” Edley wrote, “but we worship differently, celebrate that fact, and recognize that religious differences should play only a limited role in our social and economic lives. Perhaps a model along these lines is what is needed in race.” (Edley, “Why Talk About Race?” Washington Post OpEd, 7 December 1997, p. C1.)

“Indeed it is,” I commented, “but this ‘model’ suggests a conclusion that Edley and other preferentialists will not like. If ethnic and racial groups are now analogous to religious sects, why should it be permissible for the state to grant preferences to the former when it is clearly prohibited from doing so to the latter?” Edley, in short, like Dorf, seems to accept the neutral non-discrimination principle … except for race-based affirmative action.

Or take another well-known Harvard law professor, Laurence Tribe, whom I quoted in a post on Solomon Fears … And Inconsistencies during the controversy over the Solomon Amendment, which threatened universities with losing federal funds if their law schools barred access to recruiters from the Defense Department because of  opposition to the military’s policy at time regarding gays. Tribe had perceptively noticed that a case in which the Supreme Court had upheld the revocation of fundamentalist Bob Jones University’s tax exemption after the IRS found that its policy against interracial dating was “against public policy — a result uniformly and vociferously applauded by liberals — might pose problems for universities opposing policies passed by Congress, signed by the president, and implemented by the Defense Department:

”Some universities like Bob Jones or some analog of Bob Jones on the gender side might well be able to generate a First Amendment argument,” Tribe says [in a Boston Globe interview I quoted]. ”And I would hate to see a world in which that kind of First Amendment claim became a general blueprint for avoiding the neutral across-the-board application of anti-discrimination rules.”

“But,” I asked in my post, and repeat here,

how is it possible to take Tribe seriously here since, as a supporter of racial preferences in admissions and hiring, he actually opposes “the neutral across-the-board application of anti-discrimination rules”? Indeed, since all the law schools involved here themselves practice (legal) discrimination in what they believe is a good cause, promoting “diversity,” and invite recruiters on their campuses whose firms and companies do the same, they are standing in a glass house when they throw stones at another institution for engaging in allegedly discriminatory (but legal) behavior to promote what it regards as a good cause, protecting order in the military, especially since both the “don’t ask, don’t tell” policy to which the Solomon critics object and the Solomon Amendment itself are both clearly the “public policy” of the United States.

Tribe, in short, almost reflexively supports “the neutral across-the-board application of anti-discrimination rules” … except where he doesn’t, such as providing benefits and burdens based on race that are the essence of affirmative action.

I could continue with a seemingly unending stream of examples of liberals invoking the “without regard” principle of neutral, colorblind equality who nevertheless blithely support every example of race-based preferential treatment, with its inherent corrollary of race-based discrimination, they encounter, but I’ll close with only one more, from a prominent Harvard Law School graduate. “This is America,” he proclaimed.

And our commitment to religious freedom must be unshakeable. The principle that people of all faiths are welcome in this country and that they will not be treated differently by their government is essential to who we are….

In this country we treat everybody equally and in accordance with the law, regardless of race, regardless of religion.

That was President Obama, defending the right of Muslims to build a mosque at Ground Zero. To the best of my knowledge President Obama has never opposed any policy that provided preferential treatment based on race or appointed anyone to any position who opposed such policies, but even he recognizes that “This is America” and most Americans instinctively, as part of our national DNA, view the “without regard” principle as embodying basic fairness.

Americans may be unconscious racists (though I doubt it), but Americans, even liberals, are also unconscious egalitarian believers in the “without regard” principle, even those who consciously reject it.





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