Race-Consciousness

• Author: Edward J. Erler
• Pages: 2094-2096

Page 2094

It was once widely believed that BROWN V. BOARD OF EDUCATION (1954, 1955) had removed the last vestiges of race-consciousness from the Constitution. Many observers saw the Brown decision as a vindication of Justice JOHN MARSHALL HARLAN'S lone dissent in PLESSY V. FERGUSON (1896). Harlan's critique of the majority's SEPARATE BUT EQUAL DOCTRINE was summarized in these famous words: "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law." In the years between Plessy and Brown, the ideal of a "color-blind" Constitution served as one of the central tenets of liberal CONSTITUTIONALISM.

Today, however, some leading liberal constitutionalists argue that adherence to the ideal of a color-blind Constitution was a mistake. It has been only recently discovered that "color-blindness" was all along a "myth" or, at best, a "misleading metaphor." The principal reason for the volte-face on the part of liberal activists is summarized by Laurence H. Tribe, who writes that "judicial rejection of the "separate but equal' talisman seems to have been accompanied by a potentially troublesome lack of sympathy for racial separateness as a possible expression of group solidarity." Indeed, it seems to be true that the expression of racial or ethnic group solidarity does require something like the old?and once justly decried?"separate but equal doctrine." Tribe's tergiversations indicate, however, that it is not yet entirely fashionable to speak openly about the desirability of returning to separate but equal. Attacks on the idea of a color-blind Constitution, on the other hand, are legion.

A curious feature of the Brown decision is that it did not make a comprehensive condemnation of racial classifications or entirely overrule the Plessy decision. Only racial classifications that were said to produce "feelings of inferiority" were deemed to violate EQUAL PROTECTION, and from the psychological evidence adduced by the Court, this was "proven" to be the case only in the context of grammar school education. Presumably, racial SEGREGATION that did not stigmatize one race or ethnic group as inferior would survive the test adumbrated in Brown. Thus, Brown did not overrule all racial classifications?or treat them as SUSPECT CLASSIFICATIONS?but left open the possibility that under certain circumstances racial classifications could be "benign" if the classification were designed to produce racial class remedies rather than racial class injuries. Resort to the doctrine of STRICT SCRUTINY in the Brown case would probably have effectively fore-closed the future use of race as a legitimate classification.

Perhaps the best expression of the new understanding of "separate but equal" was made by Justice HARRY A. BLACKMUN in his separate opinion in REGENTS OF UNIVERSITY OF CALIFORNIA V. BAKKE (1977): "I suspect that it would be impossible to arrange an affirmative-action program in a racially neutral way and have it successful.? In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently." Justice Blackmun could have used the word "separately" in lieu of "differently" without changing his meaning in the slightest. Indeed, it has been the advent of...