In a 2003 Supreme Court decision, Justice Sandra Day O’Connor famously said, “We expect that 25 years from now, the use of racial preferences will no longer be necessary.” Five years to go and … fat chance. Academia’s support for racial preferences has only increased since 2020—the year of racial hysteria and COVID panic—and it shows no signs of slowing down.
Now, just before a SCOTUS decision on racial preferences in college admissions, Richard Thompson Ford, the George E. Osborne Professor of Law at Stanford University, argues in the Chronicle of Higher Education that racial discrimination should be permanent. His piece is titled “The False Promise of Colorblind Admissions: You can’t stop racial discrimination without considering race,” a position also endorsed by celebrity scholar Ibram X. Kendi and other bien pensants from Stephen Colbert to the New Yorker.
Ford points to an apparent legal inconsistency:
The two laws that govern these disputes are the Equal Protection Clause of the 14th Amendment, passed as part of Reconstruction, and Title VI of the Civil Rights Act of 1964, which prohibits discrimination in programs that receive federal funding … According to the advocates of colorblindness, these laws, enacted with the unambiguous purpose of remedying the legacy of slavery, prohibit considering the unique experiences faced by the descendants of slaves [emphasis added].
Ford considers it ironic that laws he claims were intended to remedy the aftereffects of slavery should be used to defend colorblind racial indifference. It is not obvious, however, that the moral imperative to treat people equally, independent of their immutable characteristics, should take second place to a historical compassion that apparently has no time limit—and that applies to a race rather than to individuals. Ford never considers that the equal-treatment imperative has weight on its own. For him, law seems to be consequential, and affirmative action is just compensation—compensation that should go to “descendants of slaves” forever.
(It is worth noting the argument that blacks should be grateful for slavery, since, without it, they would have grown up in Africa. Since net migration today is from Africa to the US, rather than the reverse, it is obvious that contemporary African Americans have gained rather than lost from slavery. Because slavery is a bad thing, many are reluctant to admit that it might have had long-term benefits, even for blacks.)
Ford also traces the origin of colorblindness to a false dichotomy:
Brown v. Board of Education  … repudiated the infamous 1898 opinion upholding racial segregation in Plessy v. Ferguson; therefore it must have embraced the dissenting opinion in Plessy, in which Justice John Marshall Harlan famously insisted that “our Constitution is color-blind.”
Brown said that racial segregation is wrong, but Ford says that colorblindness is not the only alternative. Plessy, of course, said that separate facilities for blacks and whites are fine, so long as they are equal—facilities, not necessarily outcomes. Brown declared, rather opaquely, that “separate educational facilities are inherently unequal,” without explaining exactly why. Either way, Ford contends,
It is doubtful that colorblindness is even consistent with Brown, given that opinion’s emphasis on substantive equality: The Brown court cared, almost exclusively, about the scientific evidence that segregation injured Black children — not about the form that the injury took [emphasis added].
The injury was “proved” via a set of experiments with children and dolls. The relevance of these data to real life is unproven. In fact, these experiments provide no basis for the conclusion that legal segregation is responsible for black–white disparities. Post-segregation, black-dominated schools still tend to perform below average academically and score lower on objective tests. Whether this disparity is caused by de facto segregation, quality of teaching, or individual differences in the children is still a matter of debate.
Ford concludes that the legal case for colorblindness remains unsettled. He is concerned that SCOTUS will decide in its favor. He contends that arguments defending colorblindness and critiquing affirmative action are racist. For example,
Affirmative action was controversial because all efforts to desegregate the nation’s workplaces, neighborhoods, and schools were controversial. Many objected to what they considered “forced racial mixing” — the same refrain that had resonated since the era of massive resistance to the school desegregation required by Brown v. Board of Education.
Ford declines to say why desegregation efforts were “controversial,” besides a racist objection to racial mixing. School desegregation involved busing. Parents, both black and white, might well have reasonable objections to forcibly uprooting their children, but Ford only considers the racism explanation.
Colorblindness took another hit in 1971 through Griggs v. Duke Power. Here, the court held that:
Even if there is no discriminatory intent, an employer may not use a job requirement that functionally excludes members of a certain race if it has no relation to measuring performance of job duties. Testing or measuring procedures cannot be determinative in employment decisions unless they have some connection to the job.
Duke Power was prevented from requiring educational accomplishment (in the form of a high school diploma or a minimum IQ score) as a condition of employment if the job, in the judgment of the court, did not require it. There are many logical and scientific problems with this rule, of course, beginning with “What’s the job?” and “How do they know?” but it shows the weakness of the color-blind position in 1971 and the willingness of the legal system to bend “equal protection” in the direction of racial equity (i.e., equal results).
But colorblindness—which Ford, like Kendi and the New Yorker, considers to be racist—returned to favor in 2009. Ford comments:
For example, in the 2009 case Ricci v. deStefano, the Supreme Court adjudicated a dispute involving a decision by the City of New Haven, Conn., to revisit promotion criteria that had screened out all of the Black applicants for promotion in the city’s fire department [emphasis added].
No, black applicants were not “screened out”; they failed an examination. They screened themselves out. (Does Ford think that blacks are incapable of passing examinations?) In this case, the court found in favor of the colorblind defendant.
This is just one of many cases in which Ford ignores racial differences in ability and interests as potential non-racist sources of differential societal outcomes. Black and white populations are identical in every behavioral aspect, apparently. He argues, instead, that the fire department’s “long history of discrimination” should have figured in the court’s decision. The department should be punished now for colorblindness because of alleged racism in the past. It’s like finding an innocent person guilty because he has a record of convictions (not that the fire department had been actually convicted of anything). Once a thief, always a thief. This is not the usual idea of justice.
Colorblindness also prevailed in a more overtly discriminatory case, in 2007. Ford again:
Parents Involved in Community Schools v. Seattle School District No. 1, which invalidated the desegregation policies of two school districts because they involved race-based admission criteria for over-subscribed magnet schools.
Ford cites a legal principle he terms “anti-balkanization” as the basis for this colorblind decision. Anti-balkanization is the idea that racial/ethnic groups should not be treated differently, so as to “prevent racial resentment.” Even though the Seattle ruling apparently “allowed for affirmative action in strictly limited circumstances,” Ford still objects because it “treat[s] race as one of many ethnic divisions that threaten to divide American society.” Evidently, blacks should always be treated differently because of their racial history.
I have tried to unravel the tangled logic and legal precedent behind Professor Ford’s anti-colorblindness. But this article reveals that his position derives not from a close reading of the law but from passionate anti-white resentment. How else can we interpret a passage like this:
Colorblindness transforms the 14th Amendment’s repudiation of white supremacy into its opposite: a preoccupation with the dissatisfaction of white people losing racial privilege. A substantive agenda to preserve and reinforce traditional racial hierarchy hides under the cloak of colorblind neutrality.
In service of this resentment, Ford consistently ignores, or explains away, racial disparities with phrases like “intergenerational educational advantages,” “the unique experiences faced by the descendants of slaves,” or (a traditional favorite) “systemic racism,” while ignoring an obvious factor in black–white differences: individual differences in interests and abilities, or the “content of their character,” to use a well-known phrase. If black schoolchildren, or would-be firefighters, fail, it is often because of their behavior, not their race. Their performance may be deficient for many reasons: quality of education, family environment, and, yes, inherited characteristics both cultural and biological. The mix of factors is unknown and is likely to remain so, especially as scientific research on the topic is selectively censored. But ignoring these individual differences has allowed the vaporous, unmeasurable, and socially corrosive idea of systemic racism to take their place.
Professor Ford’s solution is to allow, even encourage, the use of race in admissions—affirmative action forever. Like Kendi, he argues that “if we stop using racial categories, then we will not be able to identify racial inequity,” presumably assuming, like Kendi, that disparities prove racism ipso facto.
If the moral argument against affirmative racial discrimination fails to convince, then at least look at its practical consequences, what Ford dismisses as the “balkanization” argument. When racial or ethnic bias is government policy, the outcome is invariably bad. Neither morality nor Machiavelli favor group preferences, as economist Thomas Sowell argued in a powerful 1989 article, “‘Affirmative Action’: A worldwide disaster,” and in his 2019 book Discrimination and Disparities.
Sowell’s view was confirmed again recently. Riots, protesting an affirmative-action-style upgrade of a majority ethnic group in Manipur, India, led to at least 50 deaths. Apparently, “ethnic resentment” exists. Resentment is still mild in the US, but it can only increase if affirmative action persists.
Professor Ford wants America to abandon colorblindness and embrace the immoral and socially destructive “worldwide disaster” of affirmative action. The court should not listen to him.
Image: Adobe Stock