Abstract
Excerpted From: Goldburn P. Maynard Jr., Enforced Colorblindness, 81 Washington and Lee Law Review 1749 (2025) (685 Footnotes) (Full Document)
Race consciousness in America is just about dead. That can be depressing for those of us who believe that race-conscious remedies are still important and effective in the struggle to achieve equality, but it is the reality. Even the limited exceptions are disappearing. On Friday, February 2, 2024, the Supreme Court declined to issue an injunction (while pending appellate review) to block the use of race in admissions at the U.S. Military Academy at West Point. According to the Court, the record for the case was underdeveloped, and the "order should not be construed as expressing any view on the merits of the constitutional question." The case against West Point was brought before the United States District Court for the Southern District of New York by Students for Fair Admissions, an organization founded by conservative activist Edward Blum for the sole purpose of challenging race-conscious measures.
Blum has been on a crusade against race consciousness since the 1990s and was also involved in Shelby County v. Holder, which struck down Section 4(b) of the Voting Rights Act of 1965 ("VRA"). He has been largely successful in his quest, turning his attention to military academies in late 2023. In a sense, he was responding to a footnote in the majority opinion of Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, the case which struck down race-conscious affirmative action. In the footnote, Chief Justice John G. Roberts Jr. limited the reach of the Harvard decision by exempting military academies from its holding. Chief Justice Roberts underscored that the academies have "distinct interests." If the use of race in admissions at military academies survives, which is far from certain, it will be a tiny carveout that proves the general rule that race can no longer be considered by the government. We are now in an era of enforced colorblindness--such enforced colorblindness applies to unexpected areas outside of education.
Some of us were queasy as the date for the release of the Harvard decision approached because we worried about the effect--a decrease in minority numbers at many higher learning institutions. But there was another unexpected emotion. When the decision was released in June 2023, I felt some sadness but also relief--relief that it was over. Relief that progressives would not have to fight for a policy that was effective in a sense but also had conservative fingerprints all over it. The relationship between liberalism and affirmative action has always been uneasy because it is not really a progressive policy. Progressives were left holding the bag by President Nixon on something quite uncomfortable, a policy that helped but did not go far enough. There is a progressive case for ending race-conscious remedies. For example, in recent decades, Richard D. Kahlenberg has fought for class-based affirmative action on the basis that it is fairer and more consistent with the original goals of the program. Similarly, scholars who center around class issues argue that the focus, and even fetishization, of race can distract from larger issues of inequality.
Still, the Court's enforced colorblindness leaves those of us who care about racial justice in an uncomfortable place wherein the solutions must be carefully and indirectly presented, so as not to offend activists like Blum. This Article argues that the end of race-conscious measures is also an opportunity to reconsider the underpinnings of equality-enhancing policy goals. For the United States, completely ending wealth or income inequality is likely impossible and probably undesirable, so it cannot be that total equality or identical wealth is the goal.
A better potential theoretical underpinning for pro-equality efforts is equality of opportunity ("EOO"). This is an elastic principle that has many shortcomings. While criticized extensively by progressives, it more closely aligns with what courts, policymakers, and the public tend to express as a bedrock American value. While this is not a perfect choice, EOO has long been a part of debates over remedies for inequality and provides a viable entry point to this complex discussion. Considered from a perspective of resource egalitarianism, federal policies often fall woefully short of EOO, which is consistently invoked by courts and others. Looking at starting points leaves plenty of room to challenge inequality in the United States in a manner that more closely aligns with deeply theorized philosophical principles and avoids the current third rail of race. It also reveals that social insurance and safety net policies carry particular moral weight given United States' history, continued discrimination, and long-standing classism in America.
It would be naive to ignore the loss caused by invalidating the use of race-conscious measures, but there is some opportunity with every closed door. This Article makes two significant contributions. First, while there is a substantial body of articles that analyze race consciousness and colorblindness, this Article is the first to focus on the Biden Administration's recent racial equity ("RE") efforts and the plight of Black farmers. Second, while EOO has long been discussed in the racial justice literature, it is commonly viewed negatively. This Article explicitly marshals EOO in a progressive fashion, arguing that it can serve as the basis for bold policy proposals.
This Article proceeds as follows. Part I provides an overview of the death of race-conscious measures through court challenges. Four areas show that race-conscious remedies are dead: (1) contracting/grants/set asides; (2) hiring; (3) voting; and (4) education. The Part then focuses on aid to farmers to show how courts have limited the federal government's power to ameliorate even the most well-documented instances of discrimination. Part II considers how race-conscious efforts began as a pragmatic solution to widespread resistance to racial equality. The Part then focuses on the heyday of the remedial approach to ending discrimination: the Warren Court. From the beginning, sympathetic judges planted in the remedial approach the seeds of its own destruction. Part III proposes a refocus to EOO policies. This is by no means a perfect solution but rather a pragmatic use of the narrative and principles that are attractive to the Court and most Americans. Taking EOO policies seriously reveals a surprising gap between the language of EOO and federal government policies. The final Part briefly concludes.
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There are many reasons to question our progress on achieving equality. For example, in terms of the wealth gap, we are not on a path to convergence. On the eve of the Civil War the white-Black wealth gap ratio was 56:1. This wide difference has continued to play a role today. However, the nation closed the gap to 5:1 by 1983. That is where the convergence ended, as both income and capital gains began to diverge. By 2019, the wealth gap was back up to 6:1. Economists have estimated that given current policies, the wealth gap will continue to diverge. However Social Security has been shown to close the racial wealth gap in retirement wealth. This suggests that income support policies and social insurance policies that disproportionately help those at the bottom could have an effect. This would not have the same dramatic effect that reparations payments could have, for example, but it would still represent real progress.
While the wealth gap is of particular importance because it is a direct link to slavery, gap-closing and disparity rhetoric have not been very successful in recent decades. Given the Court's enforced colorblindness, any reparations scheme would face high constitutional hurdles. The oft-maligned EOO still offers opportunities to enhance equality substantially at a time when economic insecurity and precarity are rampant. More robust socio-economic rights, more comprehensive government transfers, and increased efforts to tackle the ways inheritance can undermine EOO would go a long way towards helping Black Americans, even if they do not provide the dramatic change I tend to favor.
Both fortunately, and unfortunately, these are all federal government policies subject to contestation and change. The history of the USDA is a reminder that the federal government has vast resources at its disposal. However, given the discrimination the USDA perpetuated, a healthy skepticism of federal government interventions is also crucial. In coming years, it will be imperative to ensure that government transfers are made in an equitable fashion, with sufficient outreach to those who are most likely to be overlooked. Income support and social insurance policies have been shown to be durable in recent decades, and in an economically precarious world, there is room for continued struggle to improve them.
Assistant Professor of Business Law and Ethics, Kelley School of Business, Indiana University--Bloomington.
