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Blind Side—A Commentary by Kenji Yoshino

The following commentary was posted on Slate.com on Thursday, Dec. 7, 2006.

Blind Side
An argument for voluntary school integration that conservatives should like
By Kenji Yoshino

This Monday, the United States Supreme Court heard oral arguments on the student assignment plans that two school districts—in Seattle and Louisville, Ky.—use to maintain racial integration. During argument, the conservative majority on the court made clear that its commitment to colorblindness will lead it to approach these race-conscious plans with immense skepticism. Yet what that close scrutiny should reveal is that a commitment to colorblindness does not necessarily commit the justices to striking down these plans.

Under both plans, the district permits student choice but will override those choices if honoring them would harm a school's racial balance. The school districts defended their plans as the best way to secure the integrated education guaranteed in Brown v. Board of Education. However, under these plans, a student can be denied a spot at a school solely on the basis of her race. To the extent that they make a destiny out of a skin color, these plans are in conflict with Brown. Brown, then, is both a shield and a scourge for the districts.

During oral argument, the conservative justices on the court focused on how the plans were in tension with Brown. In response to a claim by one of the school district lawyers that the challenged plans were unlike affirmative action plans because "everyone got a seat," Chief Justice John Roberts fired back that "everyone got a seat in Brown as well." "But because they were assigned to those seats on the basis of race," Roberts continued, the court held that the scheme in Brown "violated equal protection." Similarly, Justice Anthony Kennedy stated "you're characterizing each student by reason of the color of his or her skin." Such classifications, he believed, "should only be, if ever allowed, allowed as a last resort."
 
The conservative argument here, which we have heard repeatedly in the affirmative action context, needs to be taken seriously. The country yearns to transcend its racial history. A government program that classifies on the basis of race teaches the rest of the nation to think in racialized terms. The conservative justices, by contrast, are asking that colorblindness begin today.
 
Progressives can respond by asserting that colorblindness is not a desirable end, given that race could usefully track enduring cultural and social differences in society. This seems misguided. We increasingly see that individuals of every race can and do exhibit every social or cultural trait, and that this is a good thing. A stronger progressive argument would point to ends other than colorblindness (such as remedying the effects of past discrimination) that warrant the use of color-conscious means. These contentions, however, are not likely to engage conservatives who believe in colorblindness über alles. In addressing such conservatives, a different argument must be made.
 
Justice John Paul Stevens made this argument in a dissent to one of the early affirmative action cases, Wygant v. Jackson Board of Education. In defending an affirmative action plan that sought to retain minority teachers over white ones, Justice Stevens observed that the school was not promoting differences among the races. To the contrary, the school's affirmative action program sought to teach students that racial differences were irrelevant. But it could do so effectively only, Justice Stevens maintained, if people of different skin colors were interacting with one another.
 
"The fact that persons of different races do, indeed, have differently colored skin," he maintained, "may give rise to a belief that there is some significant difference between such persons. The inclusion of minority teachers in the education process inevitably tends to dispel that illusion, whereas their exclusion could only tend to foster it." He put it more vividly elsewhere in the opinion: "It is one thing for a white child to be taught by a white teacher that color, like beauty, is only 'skin deep'; it is far more convincing to experience that truth on a day-to-day basis during the routine, ongoing learning process."
 
Stevens' argument has fallen out of the constitutional vernacular, in which racial diversity—which often assumes that there are deep social and cultural differences among the races—is all the rage. But it should be resuscitated, particularly in cases like the one argued Monday. Unlike many affirmative action plans, the Seattle and Louisville plans do not maintain that individuals of different racial backgrounds tend to think, feel, or act differently. Rather, these plans make no assumption that race is anything other than "skin deep." They use race to convince students of its superficiality.

Granted, it is optimistic to hope that those who believe the government must be strictly colorblind will ever accept this argument. But those more broadly committed to social colorblindness should feel its strength. Justice Stevens' insight that governmental consciousness of color can be the best path to social colorblindness flirts with irony but not with contradiction. And it answers, in a way other arguments do not, the adherents of colorblindness on their own terms.

Kenji Yoshino is the Guido Calabresi Professor of Law at Yale Law School and author of the recently published Covering: The Hidden Assault on Our Civil Rights.