The renewed criticism of affirmative action programs has revived the national debate on whether a color-blind society is attainable or even desirable. But the color-blind ideal has a long history of rejection in American politics, said Andrew Kull, an Emory law professor. "Nondis-crimination was the idea that lost again and again."
"With the passage of the Civil Rights Act of 1964, the nation seemed to have reached agreement on nondiscrimination as the legal benchmark for racial equality," said Kull, author of The Color-Blind Constitution. Ironically, it was passage of the act that set the stage for abandonment of the color-blind ideal.
Once the act became law, "people suddenly realized that legal equality was not enough," said Kull. "A demand for `equality of results' led to policies that imposed proportional outcomes on racial lines--first school desegregation, then affirmative action in employment, and later voting rights. Because the color-blind ideal stood in the way of such policies, civil rights supporters decided that color-blindness wasn't so important after all--or at least that we could put it off temporarily."
But the persistence of the color-blind ideal is at the heart of the current debate, said Kull. "Part of the reaction being heard today is a practical concern about how effective racial preferences have been in achieving their objectives," he said. "But there's also a sense in which people's notions of fairness and justice in racial matters became fixed in the 1960s, when they were finally associated with a standard of strict nondiscrimination. For many Ameri-cans, that principle hasn't changed."
Kull set out in The Color-Blind Constitution to trace the legal argument for color-blindness. Despite the book's title, "the Constitution is not color-blind and never was," he said. "A blanket prohibition of racial classification is impossible to locate in a literal reading of the constitutional text."
For about 120 years, until the early 1960s, the color-blind proposition was a radical idea that few courts or legislatures would adopt, Kull explained. The "moderate" alternative, he said, was "a rule that the government could discriminate by race so long as its discrimination was `reasonable.' That same constitutional rule--permitting reasonable use of racial classifications to achieve a proper governmental purpose--has been used in the past to justify both racial segregation and affirmative action."
Despite its long standing as a liberal goal, Kull suggested, the color-blind ideal has been rejected by those who see it as an obstacle to greater racial equality. "The real argument is whether policies designed to compensate for disadvantage need to employ racial criteria in order to be effective," he said. "The controversial racial preferences were the creation of the Nixon administration--people who had little interest in social programs, who wanted to move straight to the bottom line. Liberals used to believe that we could have both nondiscrimination and equal outcomes, but no one ever said it would be easy."
-- Elaine Justice