This summer, the Supreme Court continued one of its longest-standing legacies: upholding White Supremacy.
In 1857, Dred Scott v. Sandford ruled that enslaved peoples were not American citizens and upheld slavery as a legal institution.
In 1896, Plessy v. Ferguson accepted “separate but equal” as constitutional, leading to 100 years of Jim Crow. The decision aligned with the belief that Black Americans, although no longer enslaved, were still lesser citizens.
In 1987, McCleskey v. Kemp determined that statistical evidence of racial discrimination under a law was constitutionally acceptable. Within a decade, the number of minorities in prison was greater than the total number of all people incarcerated during the year preceding the case.
The Harvard v. Students for Fair Admissions decision on Affirmative Action is the Supreme Court tradition’s next iteration, as well as a prime example of White Supremacy’s modern hood of choice: color-blind racism.
My terminology, color-blind racism and subsequent definitions are heavily based on the recent academic work of Eduardo Bonilla-Silva, Tyrone Forman and Amanda Lewis. The concept, to be discussed, has yet to reach the widespread political or public conscience; however, it accurately and pertinently describes the current racial reality. Color-blind racism — or color blindness — is an ideology that upholds White Supremacy’s dominance. It is built on five main principles: (1) most people don’t notice or care about race anymore; (2) racial equity has mostly been achieved; (3) persistent racial inequality results from individual or cultural — rather than structural — shortcomings; (4) the United States functions as a meritocracy; and (5) therefore, there is no need for institutional remedies — such as Affirmative Action — to redress persistent racialized outcomes.
The summer’s Supreme Court ruling and color blindness’s widespread reach highlight the Constitution’s deficiencies and reveal the need for a dramatic structural change, a new constitutional amendment.
Whether you have realized it or not, you’ve already seen color-blind racism around you. Likely, you have heard a politician, family member or classmate say:
I don’t see color.
The tagline, while seemingly inane, is a manifestation of color blindness. But the quip is just the tip of the iceberg. To see below the surface, we must ask, how did color-blind racism come to the forefront of White Supremacy?
The question shares a common answer with other important civil rights questions, such as, “Why did Jim Crow replace slave codes?” And, “Why were eugenics and scientific racism replaced with cultural stereotypes?” The unifying reason: Once a system of dominance’s methods become ineffective — often when the methods become unjustifiable — they are replaced by more effective means.
America’s system of racial dominance — White Supremacy — is founded on protecting and expanding Whiteness: a term representing social, economic and political privilege, among others. When White Supremacy had to adapt to the Civil Rights Movement, it turned to color-blind racism.
The Civil Rights Movement effectively shifted the country’s social and public morality. Tolerance of racial violence and discrimination plummeted. After experiencing atrocities — such as Emmett Till and the violent reactions to the Birmingham protest — and learning from Civil Rights leaders — like Martin Luther King Jr., Rosa Parks, Malcolm X and Angela Davis — it became harder and harder for Americans to justify a system that explicitly discriminated based on race.
In the legal sphere, the Supreme Court ruled segregation and explicit discrimination unconstitutional across many cases, including Brown v. Board of Education, Bailey v. Patterson and Jones v. Mayer Co. The federal government codified the end of de jure — legally explicit — discrimination by passing the Civil Rights Act of 1964, the Voting Rights Act of 1965 and the Fair Housing Act of 1968. Public approval of the Civil Rights Act totaled nearly 2-to-1 (58% to 31%). A year later, the Voting Rights Act garnered a 76% support rate. While prejudice was still rampant, explicit racial discrimination became increasingly taboo in public spaces and indefensible in the courtroom. To continue to uphold Whiteness’s dominance and codify it into the law, White Supremacy would now have to avoid the appearance of racial discrimination.
Color blindness offered the ideal channel for White Supremacy to adapt.
The transition to color-blind racism can be summarized as a move from explicit racial discrimination to an implicit and subversive entity. The ability to deny race as a factor allows discriminatory actions and outcomes to be legally defensible and morally justified, both to society and the self. It enables color-blind rhetoric users to believe they are exempt from repudiation — free from the label “racist.” This mental gymnastics is easier to see when deployed in discourse.
The police didn’t stop the man who was simply walking down the street because he was Black. It was because he was suspicious.
Why do people still talk about slavery? It was so long ago.
Generational wealth didn’t affect my acceptance to college. I proved my superior merit by scoring higher on the SAT.
We are not passing strict voting laws to restrict Black and Brown voters. We are doing it to prevent election fraud.
Maintaining Whiteness requires more than just ideology — it also needs strategy. Color-blind tactics can be boiled down to four main approaches: justifying racism, undermining belief in structural racism and justice movements, de facto discrimination and preventing restorative policy.
Using this framework, we can see color-blind fabric weaving across multiple spheres.
We hear media sources utilize racially coded language. The usage of “thug” to villainize Black and Brown men and “rioters” to delegitimize Black Lives Matter protesters sits in the front of my mind. These exemplify how those who hold positions of power — whether political, legal, social or in media — ingeniously utilize color-blind ideology to ensure others genuinely believe its tenets.
We see historical erasure in education, as states like New Hampshire, Florida and Idaho eliminate critical elements of slavery and Jim Crow from public school education. Actions intended to prevent future generations from knowing about enduring racial trauma and inequalities.
We have experienced the War on Crime and the War on Drugs dominating the political landscape since the late ’60s and ’70s. These “race-neutral” policies started after essential rights — voting rights, education, job opportunities and housing — couldn’t be restricted explicitly based on race. These “wars” justified the disproportionate restriction of these very rights in Black and Brown communities. De facto discrimination follows this model, using neutral language while maintaining and aggravating existing inequalities.
The result of color-blind strategy and rhetoric is oppressive and violent actions, with the perpetrators denying racism and White Supremacy as factors and supporters intrinsically believing these defining factors are irrelevant.
By challenging Affirmative Action this summer, Students for Fair Admissions — the golden boy of color-blind racism — has become the restorative policy’s newest opponent. SFFA’s founder, Edward Blum, on the other hand, is no rookie at all. Blum has a long history of legally challenging restorative policy, engaging in efforts to repeal voting rights protections since the ’90s — culminating in the Shelby v. Holder — and funding the failed attempt to repeal Affirmative Action in Fisher v. University of Texas in 2016. Blum and SFFA’s goals are synonymous with Color Blindness.
SFFA’s argument in the Harvard case centered on the claim that Affirmative Action programs discriminate against Asian Americans. The facade that they are fighting for equity launders SFFA and Blum’s discriminatory efforts. Their fight was never about Asian Americans’ rights. SFFA’s board consisted of Blum, Abigail Fisher (the plaintiff in Fisher v. University of Texas) and Richard Fisher (Abigail’s Fisher’s” father). As previously mentioned, White Supremacy is adaptable, and after their failed attempt in 2016, the group found a more effective strategy to achieve their goal: using Asian Americans.
During the trial, SFFA also challenged the use of racial classifications, highlighting the inconsistencies and inaccuracies in Harvard’s and the University of North Carolina’s race classification. SFFA is right; racial categories used at these institutions and nationwide are woefully inadequate. The “Asian” category doesn’t accurately capture the numerous ethnicities and historical backgrounds included under the label. There is no specific category for any Middle Eastern Americans; institutions included them under “white.” However, just because institutions haven’t reached an acceptable standard doesn’t mean that considering race itself is incorrect. Without the ability to consider race, inequalities formed based on race cannot be remedied.
But what made these strategies effective was not just their moral suasion, but also their constitutional grounds. SFFA utilized a tool color-blind activists have been targeting for years: the Constitution and its 14th Amendment.
Yes, one of the Reconstruction amendments — the same amendment that the Civil Rights Movement used as its constitutional basis to end Jim Crow, and led to the vast expansion of rights.
The 14th Amendment states, “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws,” and it gives Congress the power to enforce these provisions. It is this last clause, the Equal Protection Clause — “nor deny to any person within its jurisdiction the equal protection of the laws” — that has become the battleground between restorative policy and color-blind racism.
The Supreme Court’s judicial review power has allowed it to set precedents defining the Constitution. The Court’s Equal Protection Clause precedent on race-based college admissions, set during Regents of the University of California v. Bakke (1978) and upheld during Fisher, allows for Affirmative Action programs under “strict scrutiny.” Strict scrutiny means all programs need a “compelling government interest,” and there is no more “narrowly tailored” way to achieve that interest.
The current Supreme Court overturned over 40 years of precedent with their Harvard decision. Much has been said about the justices who voted to do so. Justice Clarence Thomas’ history of taking improper gifts from a conservative billionaire and his staff receiving payments from lawyers have captivated public attention. Many people have griped about conservative justices turning their heads at decades of precedent.
However, the discourse obscures the more significant issue. Like many other inequitable situations, it is not bad apples, but an oppressive system.
Civil rights have relied on precedent instead of constitutional codification for too long. While these decisions that established the various precedents at the time were huge victories, stopping at those wins has made fundamental rights temporary, existing at the Supreme Court majority’s whim. The recent decisions on abortion and affirmative action both highlight this weakness. It’s true — the Court often operates on past precedents. However, as we have seen, precedent is changeable, and a strict constitutional requirement is not.
Color-blind activists seized this opportunity.
They realized that Affirmative Action was built on weak ground. They realized the 14th Amendment was written in race-neutral words — “nor deny to any person.” And while it prohibits explicit discrimination, it does not mention rectifying racial inequalities. They realized that addressing racial disparities, on its face, is technically an “unequal” act since the policies only benefit certain specific groups — especially if you don’t take into account historical contexts. This argument fit perfectly into the ideology they had been building among the U.S. public, and now they had a Supreme Court sympathetic to their beliefs.
A painful reality is, following the Constitution to the letter, the SFFA and other color-blind activists have a solid case. Given the historical context, it seems likely that those who adopted the 14th Amendment didn’t intend for it to allow restitutive policy.
To me, the most shocking evidence comes from the defense for Affirmative Action in Harvard and other Affirmative Action cases. The most effective legal argument under “compelling government interest” is that diverse student bodies benefit the school’s learning environment. The construction of the 14th Amendment doesn’t allow advocates of Affirmative Action — or any restitutive policy — to defend such programs by proving they rectify historical discrimination. It forces them to show that the program benefits everyone.
But what if a diverse environment didn’t benefit all students? Would that mean there was no basis for Affirmative Action? The Court’s precedent conveys the message: Restorative racial policy is only acceptable if it benefits white-identifying individuals. The issue is currently irrelevant as the Harvard decision deemed the learning environment argument unconstitutional, yet if we do return to the former Court precedent, as many advocates are calling for, the status quo will still be insufficient to amend racial inequalities.
This reality brings me to the conclusion that to truly attain equality, the United States needs a new constitutional amendment. The 14th Amendment made explicit oppression unconstitutional; now, we need an amendment that specifically allows for restorative policy and outlaws de jure discrimination. In a world where the Supreme Court, the government and the public recognized the differential impact of race and allowed for fully restorative policy, maybe the 14th Amendment would be enough. Unfortunately, we do not live in that world.
Our generation must advocate for this monumental change. A new amendment’s feasibility does face many questions. How can we garner the extra support needed to adopt a new amendment, when we can’t even pass a new voting rights bill? How can we get three-fourths of states to ratify the bill when state legislatures are overwhelmingly conservative? Will Democrats be willing to cut the string they hold us by? If you don’t vote for us, your rights will be taken away. The obstacles may seem insurmountable, but so did the barriers the Civil Rights Movement faced. It is time for our generation to shoulder the burden of our forebears.
In the meantime, each of us can set the foundations for change.
We must re-historize our nation’s past. Fighting against policies that sanitize the United States’ racialized foundations and increasing educational opportunities inside and outside school walls will allow more Americans to see through Color Blindness’s propaganda.
We must politicize the need for a constitutional amendment. The political power structure must be forced to recognize the Constitution’s weakness as an important issue before an amendment can become a reality.
We must build coalitions. As an Indian American, I have seen my community, as well as many others, turn their back on Black Americans. Our rights and our very existence in this country are a direct result of Black Americans’ hard work and sacrifice; we must return the favor. All minority groups, and even socio-economically disadvantaged white Americans, sit under the oppressive force of White Supremacy. Together, we can build the voting base to force those in power to listen to our calls. Groups like the Rainbow Coalition have shown the possibility and potential of such coalitions. We must follow this example.
Each step backward is a chance to learn. Each step forward, no matter how small, brings us closer to the goal. The journey is long, but the imperative is undeniable.
MiC Columnist Kuvin Satyadev can be reached at email@example.com