Color-blindness, Racism, and Disparate Impact

[A. Serwer]

When TNC first asked me to guest-blog, I thought I was going to be doing a lot more posts on comic books and video games then I ended up doing as a result of everything that's happened this week.. I wrote this post on Wednesday but I've saved it until today because most of my posts this week have been well--dense, and I didn't want to overwhelm the blog with text, but here goes.

There was some discussion over in my previous post on Ricci over the issue of disparate impact and whether it should be considered racism, or whether the government really has any business dealing with it. Commenting on the Ricci case on Wednesday, George Will said this:

The nation shall slog on, litigating through a fog of euphemisms and blurry categories (e.g., "race-conscious" actions that somehow are not racial discrimination because they "remedy" discrimination that no one has intended). This is the predictable price of failing to simply insist that government cannot take cognizance of race.

The problem with this kind of "colorblindness" is that some of the most pressing issues of justice and equality in this country are the result of policies that are race-neutral on their face but discriminatory in practice. Drug laws for example, including the sentencing disparity between crack and powder cocaine are "race-neutral." You cannot prevent a black child from attending a mostly white public school, but in practice public schools are segregated by race. Laws that take away voting rights from felons do little to discourage crime, but they do disenfranchise thousands of black men. The sub-prime crisis hit minorities harder than it did whites--but loans were ostensibly given based on credit rather than race--yet we know this isn't true. Will would have the government ignore all racial disparities, and therefore shirk all efforts to rectify them through policy, as though this was what MLK had in mind when he spoke of color and character.

I don't see the virtue in simply disregarding these effects in the name of "color-blindness." An ostensibly race-neutral policy that has the same purpose or effect as a flagrantly racist one should be scrutinized, and quite frankly the race neutral veneer on some of these policies is quite easily penetrated. What color-blindness offers is an opportunity to ignore racial disparities while perpetuating the policies that produce them. I agree that racial disparities alone, while important enough to raise an eyebrow, don't necessarily mandate a change in policy. But what happened in the Ricci case was not merely that the written test resulted in racial disparities, but that the city was out of touch with almost two-thirds of other municipalities which use other forms of evaluation that don't result in similar problems and evaluate firefighters more effectively. Likewise, I would argue that the problem with the racial disparity in crack/powder cocaine sentencing isn't just that the law clearly adversely affects blacks and may have been designed to do so, it's that in practice it's swelled the ranks of the incarcerated without providing any tangible benefit to the communities it's meant to protect.

Will's "color-blindness," then, isn't so much blind to race as it is to justice. His preoccupation with the Ricci case alone--I'm hard pressed to think of a time when Will found a modern instance of racial discrimination not directed at white men offensive--implicates Will's tribal sensibilities. Will certainly wanted the court to take into account Ricci's case in order to conclude that he had been discriminated against because he's white, because he gloats about it in his Op-Ed, quoting the relevant portion of Kennedy's opinion in italics.

Also, I'd just like to point out that the impact of affirmative action has been pretty minimal. Black folks are still underrepresented everywhere, the fact that affirmative action based on race (rather than say gender) is of such single minded focus for people like Will undermines claims of "color-blindness."

Moreover, Will's colorblind platitudes would be more convincing if they weren't removed from all historical context. Legalized slavery and segregation were the law in this country for most of its existence, and the latter was strenuously supported by Will's ideological cohorts and predecessors. One can argue that America's obligation, even to people it once exploited, begins and ends with granting them the opportunities it once denied--but it isn't meeting that obligation if it continues to utilize ostensibly "race-neutral" policies that have the same effect as nakedly racist ones. While racial disparities may not be the intended outcome, the decision to actively support such policies, or to turn one's back regardless of the results, is a conscious decision that belies any claim to "color-blindness".

Now, that doesn't mean that all solutions to racial disparities need be race conscious to the level that affirmative action is. I think that there's a strong case to be made for shifting to a class-based system of AA for college admissions, less so for employment or government contracts. Most notably, President Obama has sought to rhetorically frame black issues as "American issues", which is distinct from conservative color-blindness in that it uses advocacy for ostensibly race-neutral policies (universal health care, public teacher accountability) to rectify racial disparities, rather than perpetuate them or turn a blind eye to their perpetuation. (Obama confirmed this in an interview with the AP yesterday.)

There is an important argument to be had over what degree policies meant to rectifiy historical inequalities ought to be race-neutral. There may be much better and more effective ways of dealing with racial disparities that don't offend so many sensibilities, and the erosion of things like affirmative action may force policy makers to think more creatively in this area. But to argue that, for example, the government has no business noticing that 1 in 15 black men is in prison or viewing that as a serious problem after centuries of legalized racial bias isn't--and shouldn't be called--colorblindness. It's racism. It's also the kind of utopian nonsense conservatives usually make fun of liberals for having--as long as the government is run by human beings, it will be subject to prevailing cultural biases. What Will is really saying is he has no problem with that.