4

Racial Discrimination and Color Blindness

Alleging “racial discrimination” is one of the most frequently employed forms of moral criticism of behavior related to race. It is often viewed as a form of racism, both personal and institutional. What is “racial discrimination” and why is it wrong?

Linguistically, “to discriminate” originally meant merely to make distinctions. It can be used honorifically to mean “to distinguish superior from inferior quality,” as in wines or associates, and to say that someone is “discriminating” is to praise her. But the verb is now generally a term of reproach, implying that the agent has used some characteristic as an unjustifiable basis for treating otherwise similarly situated persons unequally. We do not say that a college has discriminated against applicants with a D average in high school if it fails to admit them, nor do we say that a state university discriminates against nonresidents if it favors state residents. Because of the continuing presence of the older meaning, however, “discrimination” sometimes conflates the two strands of meaning to imply that any making of distinctions (justified or not) is morally wrong (for example, allowing only people from Indiana into a Hoosiers Club).

Even when the word is more carefully confined to unjustified distinctions used as a basis to benefit and burden categories of persons, it turns out not to name a single, unified moral wrong.1 Forms of discrimination are morally wrong for distinct reasons, depending on the reason or motive for the differential treatment, the characteristics utilized to discriminate, and the social context.

Discrimination and Treating Persons as Individuals

One oft-cited account of the wrong of discrimination can be dispensed with at the outset. Some say that discrimination is wrong because it fails to treat a person as an individual, instead treating her simply as a member of a group. This is either misleading or false. When we select applicants for a job, an award, a place in college, and the like, we are always interested, and rightly so, only in certain of the person’s characteristics and not others. Applicants admitted to college on the basis of grades, test scores, and recommendations are no more being treated as individuals than those admitted on the basis of those three factors plus their racial identity. In both cases a collection of group characteristics is used to make the selection.

Racial identity differs from grades and test scores in being an involuntary (sometimes called “ascribed”) characteristic—one is simply born into it and, normally, can not escape it—whereas the applicant must exert some personal effort in acquiring the other characteristics. But the difference between acquired and ascribed characteristics is a different difference from that between being treated as an individual versus a member of a group.2 In general, ascribed characteristics—race, gender, parentage, ethnicity, place of origin—are no less central to most persons’ sense of individual identity than are acquired characteristics.

Perhaps because of the strong cultural cachet of individualism in American culture, people often complain that they feel some part of their experience or qualifications has been overlooked or insufficiently credited by saying they have not been treated as an individual. But this seems to me a confusion. As we saw in chapter 3, being treated as an individual is indeed an important value. But it is seldom what is at stake in potential contexts of discrimination.

Discrimination as Unfairness: Reliance on Irrelevant Characteristics

One common understanding of the wrong of discrimination is that it involves using an irrelevant characteristic to select someone for disadvantage or benefit—for example, to select someone for pilot training because he has dark hair. Typically such discrimination is also seen as socially costly because it prevents the selection of appropriately qualified individuals. Discrimination on the basis of irrelevant characteristics is understood to be morally wrong as well, in being unfair to qualified persons not selected.

This idea of discrimination is a more conceptually and empirically complex idea than its popular use often acknowledges, for it requires distinguishing between relevant and irrelevant characteristics. That distinction in turn depends on the goals and tasks of the job or institution; qualities or characteristics are relevant or irrelevant only in relationship to such goals and tasks.3 For example, the goals of a restaurant chain are presumably to run effective and profitable restaurants. Assume that to accomplish these goals the company currently needs a chef and a computer programmer. It would not be unfair to an experienced and first-rate computer programmer to be rejected for the chef job.

But let us consider a more complex example, especially pertinent to disputes about affirmative action. A selective university may have several goals—preparing knowledgeable and engaged citizens, with an appropriate range of communicative skills, for a democratic and culturally pluralistic society; training leaders for different communities comprising the nation; conveying a body of core knowledge to the next generation; instilling a passion for lifelong learning; preparing students for socially valuable occupations; and the like. These goals provide a basis for distinguishing between relevant and irrelevant qualities in aspirants for positions in the student body.4 Relevant qualities in admitted students will be those that best enable the institution to realize these goals.5

Quite often aspirants’ qualities that are popularly considered to be related to institutional goals, hence relevant to selection, are not especially likely to advance those goals. For instance, SAT scores are not strongly predictive of the likelihood of an aspirant becoming an engaged citizen, skilled in communication with those of different experiences and backgrounds, or committed to utilizing her knowledge for civic purposes. Indeed, the scores are not even particularly predictive of academic success after the first year in four-year colleges.6 Thus the normative and empirical structure underlying judgments about discrimination can be difficult to establish with much precision,7 even though certain characteristics will almost always fall into the category of the “irrelevant”—for example, the interviewer did not like the applicant’s looks—and so will provide instances of wrongful discrimination and injustice to the applicant.8

To see how this structure underlying judgments of unfair discrimination works, and bears on issues of race, let us imagine that I am forming a club of high school students. The purpose of the club is to help students learn to communicate honestly and fruitfully with members of other racial groups, and to learn to work cooperatively in cross-racial groups in community-improvement activities. Suppose that the school population is somewhat evenly divided among the five principal ethnoracial groups, but a plurality are Latino and a small minority are white. One of my criteria for selection is interest, which I assess through interviews, speaking with teachers, and a written statement from the applicant. Among the white students, half seem to meet that standard unequivocally; another half are minimally qualified in that respect. On the other hand, many more of the Latinos appear to have the requisite degree of interest. To further the goals of the groups, I feel I need to have a “critical mass” from each of the groups, so I admit some of the marginally interested whites and turn down some of the clearly enthusiastic Latinos.

It might seem that I am turning down more qualified Latinos; but this interpretation would be misleading, since “would contribute to the racial makeup required to carry out the goals of the club (fostering interracial exchange, and allowing the students to work in racially mixed teams on community projects)” amounts to a qualification that an individual white student possesses to a substantially higher degree than a Latino student. So the aspirants’ racial identity is clearly pertinent to the institutional goals and hence to the relevant selection criteria.

On the other hand, if I exclude an applicant because I don’t like his mother, this judgment is based on an irrelevant characteristic, is unfair to the student, and constitutes wrongful discrimination.

An analogous argument was made for the relevance of racial identity in college admissions by Justice Lewis Powell in the famous 1978 Bakke case.9 He allowed that an educational institution could plausibly argue that a racially diverse student population would serve important educational purposes, and that, under the First Amendment, educational institutions should be free to make such judgments and draft race-sensitive admissions policies (subject to certain restrictions) to advance them.10 Under that rationale, racial identity becomes one qualification among others.

My point in citing Powell’s ruling is not to argue in favor of affirmative action. Rather, I suggest that an incomplete argument against Powell’s diversity rationale to say that it involves “discrimination against whites,” on the sole grounds that black and Latino racial identity are taken as characteristics pertinent to admission.11 A finding of discrimination requires plausibly defending a certain normative background—a conception of the goals of the institution in question and a plausible account of how these determine qualifications in applicants for scarce positions.

Skin Tone Discrimination vs. Racial Discrimination

The injustice of selection on irrelevant characteristics is independent of the personal motive behind the selection. The selector may not like the applicant’s looks; hold a grudge against him; not like his mother; or mistakenly believe the irrelevant characteristic to be relevant. Such motives may have moral implications regarding the discriminator, but the injustice to the excluded person lies simply in the intentional use of the irrelevant characteristic.

Whatever the complexities of establishing a structure that undergirds discrimination based on irrelevant characteristics, such unfairness can not be the central moral wrong involved in many forms of group discrimination, and of racial discrimination in particular. To see this, let us imagine an employer, Yvonne, who has a fondness for a certain skin color—say, the somewhat golden or tawny color of the actress and singer Jennifer Lopez.12 Yvonne attempts to select only job seekers with this skin tone; she rejects those with very pale skin or very dark skin. Some members of every racial (and virtually every ethnic) group possess Yvonne’s favored skin color, and Yvonne makes no racial distinction at all; her work force includes Asian Americans, blacks, Latinos, Native Americans, and whites. They just all have a skin tone like Jennifer Lopez’s, or as close to that as Yvonne can get given her pool of applicants.

Granted, in the real world Yvonne is an unlikely figure, for skin-color preference is generally bound up with race. A Mexican American student ruefully relates her father’s remarking to her that she was dark, but beautiful;13 and a preference for lighter skin color permeates most Latin American cultures.14 White preference for lighter skin color among blacks is reflected in the substantially greater earnings of light-skinned than dark-skinned African Americans.15 Prejudice exists among African Americans on the matter of skin tone, reflecting Eurocentric standards of beauty in the dominant culture.16 Nevertheless, Yvonne’s skin color preferences are intelligible, conceivable, and instructive.17 We can all agree that hers is not a fair employment policy, for she utilizes a characteristic that is irrelevant to the performance of the jobs for which he is hiring. She does practice “skin tone discrimination.”

But Yvonne’s policy is not the same as discriminating on the basis of race. Imagine that a black applicant, Terry, applies for a job in Yvonne’s business and one in Amy’s business, and that he is well qualified for both. Yvonne rejects Terry because his skin tone is not like Jennifer Lopez’s. Amy rejects him because he is black—black in the sense that he is regarded, and regards himself, as a person who is “racially black.” Amy is prejudiced against black people—in the racial, not the skin color sense (no one’s skin color is, strictly speaking, black)—and does not want them working for her.

Most Americans would, I think, agree that it is worse to discriminate on the basis of race than merely on the basis of skin tone. Why is this? It is sometimes said that discrimination based on any ascribed and immutable characteristic is especially wrongful, since the subject can not do anything about it.18 Both race and skin color are, however, immutable characteristics, so that fact cannot explain the moral difference.

Confusing Race with Skin Color: The Hopwood Decision

Before answering our question directly, let us look at how confusions between race and skin color, and consequent misunderstandings of the character of racial discrimination, vitiated the court’s reasoning in the important Hopwood case in 1996.19 The University of Texas law school, attempting to compensate for decades of its own and the University of Texas system’s exclusion of blacks and Latinos (especially Mexican Americans), adopted a policy of admitting some blacks and Latinos with somewhat lower test scores than nonadmitted whites. The policy was also meant to reap the educational benefits of a more racially diverse student body under the Bakke rationale. But the Fifth Circuit Court of Appeals ruled that the university could no longer use the racial identity of its applicants in selecting admittees.

In its decision the court concluded that “the use of race, in and of itself, to choose students simply achieves a student body that looks different. Such a criterion is no more rational on its own terms than would be choices based upon the physical size or blood type of applicants.”

The court appears to confuse race and skin color. Mere skin color, or skin tone, considered entirely apart from its racial significance in our society, is indeed an arbitrary feature. Like blood type or physical size, it is unrelated to any legitimate educational purpose. If we look at skin color in this way, the University of Texas’s preference for more blacks and Latinos in its student body is as arbitrary as Yvonne’s preference for workers who have Jennifer Lopez’s skin color. An admissions policy based on skin color would be irrational and unfair, and discriminatory for that reason.

But race is not skin tone, and it is not arbitrary in relation to university admission in the way skin tone is. Race, like gender, is a deeply significant social identity arguably pertinent to legitimate goals of institutions of higher education.20 College admissions offices do not ask applicants to describe their precise skin tone but to state their racial identity.

The court is somewhat disingenuous in this portion of its argument. Cheryl Hopwood, a white applicant who might have been admitted but for the existence of the affirmative action program, brought (with three other whites) a claim of racial not skin tone discrimination against the university.

So let us return to our earlier question. If racial discrimination is morally wrong not only because it unfairly utilizes an irrelevant characteristic to allocate benefits and burdens, what is the further moral wrong? Antidiscrimination law is suggestive. Laws prohibit discrimination on the basis of various characteristics, which thereby define “protected categories.” Race, national origin, religion, sexual orientation, weight (obesity),21 disability, and age are protected categories in different legal venues. Robert Post suggests that the purpose of antidiscrimination laws is to neutralize widespread forms of prejudice targeted at the possessors of such characteristics, and he cites Justice Byron White’s opinion in Cleburne v. Cleburne Living Center, Inc. that statutory classifications of “race, alienage [immigration status], or national origin” “are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy—a view that those in the burdened class are not as worthy or deserving as others.”22

Expressing judgments of inferior worth that are widespread in the society is surely a wrong over and above the wrong of arbitrary discrimination, burdening the victims beyond the material injustice they suffer merely from being discriminated against on the basis of irrelevant characteristics. Amy’s, but not Yvonne’s, rejection of Terry is discrimination as prejudice. Amy’s discrimination involves two forms of wrong; Yvonne’s only one.

The prejudice must be widespread to embody the wrong I speak of. An individual may, for idiosyncratic reasons, have an animus against people from Kansas. But prejudice against Kansans does not meet that condition, whereas prejudice against women, Latinos, or lesbians does. Such widespread judgments of lesser worth or deficiency constitute stigma.23 Anti-Kansan bigotry may in an individual case be no different in degree than anti-Latino bigotry, but the latter invokes a stigmatizing that the former does not, and so harms its targets more substantially.

The harm of group stigma involves targeting an entire group that has an identity as a group, and regarding which the standing of the group affects the standing of individuals, an important part of whose identity is as members of that group.24 Groups defined by race, religion, national origin, immigrant status, and gender are groups in this sense, and are thus, when they are the target of widespread devaluing judgments, vulnerable to the harm of group stigma.

The harm of maintaining a group in a subordinate, marginalized, or inferiorized position is a material counterpart to stigma. If blacks, Native Americans, or women recognize their identity as part of a group that is unequally placed with regard to economic, political, civic, or social standing, discrimination that excludes or subordinates them perpetrates an injustice on the entire group. Such harm is not inflicted on groups that, although having a distinct conception of themselves as groups, are not subordinate (men, whites), nor on merely nominal groups, which share a common characteristic but do not conceive of themselves as a group in the sense described above (such as “people who do not have the same skin color as Jennifer Lopez”).

Although subordination involves a material dimension that stigma lacks, typically it is not only material. Subordination, when recognized by the larger society as a salient inequality, tends to generate inferiorizing and stigmatizing rationales about the nature or culture of the group.25 Nevertheless, stigma is not the same as subordination. Andrew Koppelman suggests that disabled people are subordinated but not devalued or despised; institutions discriminate against them by failing to provide adequate access and accommodation, but this is not generally intentional.26 I am not sure that Koppelman is right about the devaluing; disabled people are generally thought incapable along a wider range of activities than they actually are, and the condition still seems to me to carry a general stigma. Still, it is possible for a group to be marginalized or subordinated without being stigmatized. Conversely it is possible for a group to be stigmatized without being subordinated. The vulnerable groups discussed in chapter 2—Jews, Japanese Americans, and especially Arabs—suffer from some degree of stigma, although probably not to the degree of blacks or obese persons.

A discriminatory policy need not involve a stigmatizing motive or a desire to subordinate in order to inflict the harms of either stigma or subordination. Discrimination from innocuous or reasonable motives, but directed toward already stigmatized or subordinated groups, can inflict such harms.

Statistical or “Rational” Discrimination

Statistical, or what has been referred to as “rational,” discrimination illustrates, among other things, the wrong of contributing to stigma and subordination from a nonprejudicial motive. In its most pristine form, statistical discrimination involves taking racial identity as a probable sign of some other characteristic, one which it is reasonable to take into account in the context at hand. Taking it into account need not involve racial animus or prejudice, and thus some regard statistical discrimination as morally unproblematic. But this is mistaken. Let us consider an oft-cited example.

In several American cities, cabdrivers frequently pass by prospective black customers, citing fear of being robbed, or of being asked to take the customer to neighborhoods they consider unsafe.27 Were the cab-drivers able to interview customers to find out where they were heading and to determine whether they seemed unthreatening, presumably the drivers would gain the information necessary to make a well-informed decision as to the probable safety of picking up a given customer. But since cabdrivers are not allowed to interview prospective customers, the cabdriver makes a decision based on incomplete evidence—most conspicuously, the customer’s race (when this is phenotypically obvious) and attire.28

The cabdrivers’ actions are called “rational discrimination” because it is assumed that they are not a product of racial prejudice or animus but of generalizations concerning the likelihood of the prospective customers’ posing a threat. It is important to examine whether such a phenomenon is morally problematic, and whether it should count as racial discrimination. But it can not be assumed at the outset that every case of a cabdriver bypassing a black prospective customer should count as rational discrimination. For one thing, the driver’s citing of “statistical” danger may mask racial animus, his real motive.

Less obviously, the nature of the cognitions the cabdriver cites as supporting his fear may be suspect. At the most basic level, he might be operating from the same racial stereotypes (associating blackness with danger) shared by many Americans, rather than from genuine knowledge of the probabilities of danger to him, even when he cites statistics that turn out to be true. (He might be aware of cases of victimized cabdrivers, without having any idea how likely that victimization is.) In his discussion of cabdrivers and racism, Dinesh D’Souza manifests (and contributes to, especially since his book was a best-seller) such stereotyping or overgeneralizing when he says, “These fears [of blacks] seem to be borne out by cabdriver muggings and killings,” citing in support only a single example of murder of a cabdriver and not providing the race of the assailant.29

In addition to baseless stereotyping, cabdrivers might overgeneralize on the basis of their own experience or experience of other drivers. They may have been robbed by a black person, or know of someone who has, and jump to the conclusion that they have reason to fear black customers in general. Although overgeneralizing from one’s own experience is hardly confined to race, it is especially fostered by the cultural salience of race, which invites such overgeneralization, stereotyping, and homogenization of racial groups. If I have once been mugged by a red-headed man, I am unlikely to believe it reasonable to fear all red-headed men in the future.

We can not assume that any individual case of presumptive rational discrimination is such; when operating in an area of powerful antiblack stereotypes, it may not be possible to disentangle facts from stereotypes in a given individual’s motivation.30 Still, it is important to investigate what a morally appropriate response would be to the sort of information alleged to warrant rational discrimination. Consider the following statistic: blacks are arrested for 62 percent of armed robberies, though they make up only 12 percent of the population.31 How do these statistics translate into the comparative threat of a black individual about whom nothing else is known? Can we conclude that the average black is approximately five times more likely than a white to commit armed robbery? We can not, since arrest rates are affected not only by actual rates of perpetration but by stereotypes and other racial biases.32

It is important to recognize the difficulty of securing figures that indicate actual differentials in violent criminal activity. Nevertheless, let us suppose for the sake of argument that blacks commit robbery at three times the rate of whites. This is a significant difference, but from the perspective of danger to the cabdriver it is not the relevant statistic. What he needs to know is not whether person X is more likely than person Y to rob him but how likely person X is to rob him. A gun owner is more likely to shoot me than a non-gun owner; but this does not mean that the former is in the least likely to shoot me. Comparative statistics are relevant only to the extent that they bear on actual likelihood of harm.

So consider the statistic provided by Jody Armour (see note 30) in his discussion of rational discrimination: in 1994, 1.86 percent of black males were arrested for violent crimes. Does that statistic provide a basis for a cab driver to be fearful of a black male prospective customer? If one extrapolates (keeping in mind that violent crime has declined since 1994), it means that in a given year less than one out of fifty black males might commit a violent crime. This is not trivial (remember, however, Armour’s is only an arrest statistic), but it does not license a cabdriver’s general fearfulness that would lead to passing up every black male customer.

Thus it is not clear that the cabdriver case is really a case of rational discrimination, where that is understood to mean not only making a decision based on statistics rather than bias or stereotypes but making a warranted decision. And even if the fear were rationally warranted, this does not settle the matter of whether it is morally correct or not. There is a high cost to black people of cabbies acting on such fears. Being unable to get transportation is not a trivial matter; it can seriously hinder one’s work, home life, and social life. But there is a stigmatic harm as well. Being unable to avail oneself of public accommodations is a sign of second-class citizenship. Licensing the general idea that black males are to be feared plays in to a stigmatizing of blacks as appropriately shunned in public places. Moreover, black females are bound up with males as a group, and hence they will experience a sense of public devaluing as well. New York City appears to recognize the moral and civic costs of allowing cabdrivers to shun a racially defined category of customers by making it illegal for a cab driver to refuse a fare.33

The form of rational discrimination surveyed here causes stigmatic and inferiorizing harm to a racially-defined population. The harm is not itself an aim of the discriminatory acts, only a by-product. But the discrimination sends the message that blacks are a group to be feared and shunned. The cabdriver may deeply regret his decision to pass up the black customer, yet by doing so he contributes to the stigma suffered by blacks. As Jody Armour points out, by riding in cars and airplanes, we take small risks every day, and “incremental race-based risks are not meaningfully different from thousands of other risks we assume every day in return for a comfortable, convenient, decent, and democratic way of life.”34

Not all statistical discrimination is unwarranted and immoral. Suppose for example that a white man has committed several rapes in a small geographical area, and has been identified as between twenty-five and thirty-five years old and over six feet tall. Women walking in that area would be justified in avoiding any white men who seemed to fit that description, even though many innocent persons would be shunned and might well experience a sense of insult at being regarded as a potential rapist. The same would be true with regard to a black man.35 The point is that even when the statistical basis for the contemplated racial discrimination is sound, there are moral costs to engaging in that discrimination and these must be acknowledged and weighed on the moral ledger. The costs might not always involve as strong a stigmatizing, or depriving of an important personal and civic good, as is involved in the cabdriver case. Still, they must be taken into account; the subject should also consider bearing the burden of trying to acquire the information that would allow her to make a judgment not based on the individual’s race.36

Not only can discrimination from an innocuous motive contribute to stigma, but a group can become stigmatized as a result of discrimination, even where it was not before. This argument is plausibly made by those who oppose allowing insurers to engage in, or be privy to the results of, genetic screening of potential insurees. If insurers utilize such information to charge higher premiums, and especially to deny coverage, to those found to have genetic predispositions to certain medical conditions, this is likely to have the effect of creating the latter as a stigmatized group—as something like “biological undesirables.”37

I do not mean that every group-based discriminatory policy has the effect of stigmatizing the group in question. The group must be vulnerable to being stigmatized, as persons with genetic “defects” are. But able-bodied people, or white people, are not comparably vulnerable, and policies that discriminated against them would not have the effect of stigmatizing them as groups.

I have discussed discrimination in relation to the allocation of various benefits and burdens. There are two importantly distinct classes of these. One is reward goods, the other equality goods. Rewards are goods appropriately allocated to some but not all. Prizes, jobs, and places in selective institutions are examples. Equality goods are those to which everyone is equally entitled. Failure of a group, however defined, to secure reward goods is not necessarily a form of discrimination. Failure of a group to be given its share of equality goods, however, is by itself an injustice; and an institution (or individual) charged with delivering such goods discriminates if it fails to do so. This is why Ms. Verano, the teacher in chapter 1 who fails to hear her black students’ parents, can be said to be doing an injustice to her students. Without adequate input from the parents, she is unable to provide an education equal to that of her other students. The “rationally discriminating” cabdrivers also deprive blacks (or black males) of an equality good—access to transportation and a sense of civic equality.38 By contrast, the racially discriminating employer is at fault not for depriving blacks of a good to which all are entitled, like education and transport, but for acting out her prejudice to deprive blacks of a reward good.39

To summarize the argument about the multiple wrongs involved in discrimination, an act or policy of discrimination can be wrong for four different reasons: (1) it unfairly excludes a qualified individual on the basis of a characteristic irrelevant to the task for which selection is being made; (2) it is done out of prejudice; (3) the prejudice is pervasive and (for that or other reasons) stigmatizing; (4) the discrimination helps to sustain the group whose members are discriminated against in a subordinate position. These four reasons carry different moral valences. Discrimination against a stigmatized or subordinate group is more harmful than that against a nonstigmatized or nonsubordinated group. Thus women but not men, gays and lesbians but not straights, obese but not thin persons, blacks and Latinos but not whites suffer this harm.40 So moral asymmetry such as argued for in chapter 2 governs many group-based discriminations (and not only racial ones).

Race as a Uniquely Invidious Basis for Discrimination

Many people would regard racial discrimination that is stigmatic or inferiorizing as the most morally odious kind of discrimination there is. The cultural and legal salience of the idea, and ideal, of “color blindness” is an important symptom of the special status granted to race.41 No other form of discrimination has generated a corresponding ideal of non-discrimination with anything remotely like the power of race blindness; we do not generally speak of “gender blindness,” “sexual orientation blindness,” or “disability blindness,” although most people think it wrong to discriminate against the groups in question. The power of the ideal arises from racial discrimination having proven historically, within the United States in particular, to be a particularly socially destructive form of discrimination.42 African Americans and Native Americans especially have been subjected to unparalleled discriminatory inferiorizing and dehumanizing ill-treatment.43 Latinos and Hispanics and Asian Americans, as racial groups, have also been subject to destructive forms of prejudice, stigma, exclusion, and discrimination. (As we shall see in chapter 6, the very idea of “race” itself was essentially invented to justify the mistreatment of these groups by “whites.”) The special status of race as a particularly invidious basis of discrimination is reflected in contemporary judicial developments. In a series of cases in the past several decades, the Supreme Court has declared that any law or policy that makes use of racial distinctions must be subject to “strict scrutiny.” Strict scrutiny is the most stringent of all tests of the legitimacy of group differentiation in law or policy, and involves demonstrating that the classification is necessary to achieve a compelling state interest; that the objective could not be achieved by a race-neutral policy; and other component standards that, taken together, are difficult to meet. Justice Lewis Powell, in one of the canonical cases in this development (the Bakke case), stated that “the perception of racial classifications as inherently odious stems from a lengthy and tragic history [that gender-based classifications do not share].”44 Among classifications defining protected categories, only racial classifications are subject to this level of scrutiny.

Three Meanings of “Color Blindness”

As a moral (and sometimes legal) ideal, color blindness has been understood in roughly three distinct ways, which I will call race neutrality, race egalitarianism, and racial harmony.45 I will discuss the first two here, and the third at the end of the chapter. Race neutrality denotes that racial categories are not to be utilized in the formulating of policies. The underlying moral idea is that since race is an odious social category, we should attempt as much as possible to jettison it. Race egalitarianism takes existing racial discrimination and the present effects of past discrimination as a reference point, and seeks to craft public policy that will counter the resultant inequalities to achieve some acceptable egalitarian norm, reflecting an ideal of nondiscrimination in opportunity. Whether race-neutral policies will serve that end is an empirical matter, but it is that end, not race neutrality itself, that constitutes race egalitarianism.

In recent years, in tandem with the legal developments mentioned earlier, public discourse, especially as it bears on race-related policy issues, has come increasingly to settle on the race neutrality understanding of “color blindness.” Indeed this principle has taken on an almost absolute, foundational status in moral discourse. A policy that makes explicit reference to race, or racial identities, is taken to stand condemned by that fact alone, independent of whatever the policy aims or is likely to accomplish (for example, to foster race egalitarianism).

The dispute over college admissions illustrates this extraordinary status of race neutrality as a moral principle. Complex questions about the purposes of educational institutions, the character of “merit” and “qualification” and the like, are swept aside in face of the view that it is simply wrong to take account of applicants’ racial identity in admissions. Stricter reliance on grades and test scores, a result of this stance, is professed while exceptions for athletes, “legacies” (offspring of alumni and alumnae), and geographical diversity are countenanced. No principled reason for allowing such exceptions while excluding race is given other than a circular reliance on the absolute principle of color blindness as race neutrality.

Particularly striking evidence that “color blindness” as race neutrality has become a bedrock policy principle thought to require little supporting argument for its use in a range of policy prescriptions is the public response to so-called “percentage plans” in college admissions. These plans guarantee places in state colleges and universities to graduating high school seniors within a certain percentile class rank in their school.46 The plans do not make qualitative distinctions between high schools, as most selective colleges currently do; a student graduating in the top 10 percent (or whatever percent) in a poor-quality school has as much right to a space in the state system as a student with the same rank in a more demanding school.

Percentage plans are clearly intended to serve the same racial egalitarian and diversity ends as the affirmative action policies that have been jettisoned (as a result of court rulings such as Hopwood and popular referenda). The racial segregation of high schools in states utilizing or contemplating the percentage plans guarantees that the plans will in fact generate the desired diversity. In virtually all high schools that are 100-percent black or Hispanic (or 100-percent black and Hispanic) the top 10 percent of the graduates (in the Texas plan, for example) will obviously include a substantial contingent of those groups. Prior to 1996, the University of Texas at Austin had, under a regime of affirmative action, 14.5 percent Hispanic and 4.1 percent black students in its entering class. Those figures dropped the next year, in the wake of Hopwood. In 1999, as a result of the 10-percent plan passed in 1997, the percentages were up again, to 14 percent Hispanic and 4 percent black.47 The plans make no explicit reference to race. They are color blind in the “race neutrality” sense. But, like affirmative action, they are race egalitarian, in seeking to reduce racial inequalities in college acceptance.

These plans appear to be widely acceptable to a public that rejects affirmative action’s explicit use of racial identity in admissions.48 There is something absurd in this differential acceptability. Both policies have the exact same race-sensitive and race-egalitarian and diversity purposes—to rectify past racial exclusions, and to ensure racial diversity in the student bodies of the states’ public colleges and universities. Both policies utilize less demanding standards for students of color than for white (and perhaps Asian) students. Students of color will be admitted in preference to whites with higher standardized test scores. Under affirmative action, a Latino applicant is essentially compared with all other Latino applicants, and, taking a variety of factors into account, is held on the average to a lower standard of test scores and grades than whites and Asians. In the percentage plans, a Latino student is compared only to members of her high school class; if her grades place her in the top 10 percent, she is admitted even if her standardized test scores are lower than the affirmative action cut-off point would have been. So affirmative action actually involves a more stringent qualification standard for admission than does the percentage plan.49

In both types of plan the explicit goal is racial—race egalitarianism and greater racial diversity. Moreover, in both plans the process of selection utilizes different standards for different racial groups, and in both some Latinos and blacks are admitted with scores inferior to those of unadmitted whites and Asians.50

The only difference between the two plans is that affirmative action explicitly utilizes racial identity in the selection procedure, while the percentage plan does not. This difference parallels one found in the Supreme Court case mentioned in chapter 1, in which a South Carolina voting district, enjoined from explicitly preventing blacks from registering to vote, imposed literacy requirements which it knew would have the same effect; the Supreme Court did not see a legally significant difference between these two situations, and most of us would be unlikely to see a relevant moral difference either. That so many people now do see a significant moral difference in the analogous college admission policies is testimony to the ascendancy of race neutrality as a bedrock moral principle in current popular discourse about race.

But conferring an almost absolute moral status on race neutrality does not accord with the historical and social basis for opposing racial discrimination. The historical record does not reveal odious use of all racial categorizing, but primarily its use to advantage whites and to subordinate blacks, Native Americans, and Latinos.

A different history might have supported race neutrality as a fundamental moral principle. Suppose, for example, that American history had been one of shifting racial power dynamics in which now one and now another group was dominant, and each made use of racial ideas to subordinate other groups. Blacks sometimes victimized Asians, sometimes whites; Asians sometimes victimized Latinos, sometimes blacks; and so on. Such a history would lend credence to a general and near absolute prohibition on all racial classifications. But that is not our history.

Race Egalitarianism

Our history does, however, provide the moral basis for an understanding of color blindness as racial egalitarianism (a social order in which racial identity does not affect basic life chances, and racial discrimination and its legacy are opposed). That understanding animated the Civil War amendments to the Constitution (thirteenth, fourteenth, and fifteenth), whose purpose was ending the racial caste system exemplified by slavery. They were not successful in this (see chapter 7), and the Civil Rights Act of 1964 and Voting Rights Act of 1965 had a similar purpose of integrating blacks into the mainstream of economic and political life, dismantling the forms and vestiges of the racial caste system that held sway in the southern United States and, in lesser forms, elsewhere as well. Although this legislation prohibited discrimination on the basis of race (and “color, religion, sex, and national origin”) in general terms, the context and legislative history of the Acts make it clear that race egalitarianism was its ultimate aim.51 The wording of the Civil Rights Act suggests that Congress might well have believed that race egalitarianism could be achieved by a prohibition of all forms of racial classification in employment (benefiting as well as burdening blacks), that is, by race neutrality. Its literal wording was in any case not implausibly read by the courts in subsequent decisions as forbidding affirmative action programs designed to correct for past racial injustice. Nevertheless, even though the courts ended up depriving employers, schools, and governments at all levels of an important means to achieve racial egalitarianism, that goal still remains a central component of the legislative intent behind both Acts.52

A violation of race neutrality, or “discrimination on the basis of race,” if it is unconnected to current and historical prejudice, stigmatizing, and inferiorizing, does not rise to a level of moral opprobrium that warrants according race neutrality status as a fundamental moral principle. For this reason, the kind of discrimination involved in affirmative action, if there is any, is not sufficiently odious to compel its condemnation independent of a moral assessment of the goals it aims to promote and the likelihood of its success in doing so. The violation of race neutrality involved in affirmative action is plausibly outweighed by the legitimate purposes of historical correction of exclusion, of encouraging diversity, and of creating a society in which all major racial groups are fully integrated.53

Color Blindness as Racial Harmony

A third, distinct, meaning of “color blindness,” infrequently articulated as such but occasionally implicitly supplying some of the moral luster that idea conveys, is color blindness as racial harmony.54 This ideal builds on racial egalitarianism but goes beyond it. An important (if not primary) strand within the Civil Rights movement, racial harmony seeks a society in which different racial groups live harmoniously and interdependently with one another on a plane of equality. The groups do not lose their distinct racial identities, with the valued cultural dimensions attached to such identities (especially black identity); but race is neither a devalued nor a divisive identity. Color blindness here (as in racial egalitarianism as well) does not mean that the racial identities are literally not seen.55

A somewhat distinct and competing ideal is for no one to have racial identities at all; one can imagine this, perhaps, by envisioning so much intermarrying that it would become impossible to sort people into racial groups, and the idea of race would eventually become a relic of the past. But I think the more modest, yet still barely imaginable ideal of harmony and equality among racial groups is a worthy ideal, which captures some of what is at times meant by “color blindness”.

“Discrimination on the Basis Of”

If “discrimination” is confined to the wrongful allocation of burdens and benefits based on some group characteristics, the common expression “discrimination on the basis of race, gender, sexual orientation, and so forth” is misleading, in two ways. First, it implies that all differentiations based on race, gender, or sexual orientation are unjustified, no matter what their purpose. This is very implausible. We saw, with the two earlier examples of the discussion club and college admissions that race is sometimes a bona fide qualification for a reward good. Even if we confined “discrimination on the basis of” to the wrongful use of group classifications, the expression would, or could, still be misleading, since, as generally understood, it morally equates discrimination against stigmatized and inferiorized groups with discrimination (otherwise of the same type) against advantaged groups. In line with the argument of chapter 2, these forms of discrimination are not morally symmetrical. For these reasons, I suggest that we jettison the expression “discrimination on the basis of,” especially in contexts of moral asymmetry, for the foreseeable future.

What, then, is rightly called “racial discrimination”? That expression derives its moral valence from systemic, prejudice-based discrimination, and, although its use (like that of “racism”) has definitively extended beyond that context, I suggest that we confine it to forms of discrimination involving race that either stem from race-based prejudiced or that disadvantage an inferiorized or stigmatized group; it should not be used to denote all forms of racial differentiation.56 (Discrimination against whites that is motivated by antiwhite animus—for example, on the part of an admissions committee biased against whites—would be racial discrimination.)57

Discrimination against whites that is motivated by a benign, if misguided motive, would not, however, count as “racial discrimination.”58 For example, let us imagine that K-12 education in some particular state has improved to the extent that the grades and test scores of blacks, Latinos, and Native Americans are on a par with those of whites and Asians. Yet the state universities, which have been operating with affirmative action programs, continue to give preference to blacks and Latinos in admissions, simply because they have done so in the past and no one is paying much attention. However, the goals for which such programs were formerly necessary—providing a racially diverse educational environment for the development of personal and civic educational aims, training leadership from major racial groups, correcting for historical exclusions, promoting racial egalitarianism, and the like—can now all be met without taking applicants’ racial identity into account. In this context it would be wrong to do so.59

The admissions committee continues to favor black, Latino, and Native American applicants because they believe—incorrectly—that doing so is required to meet valid institutional objectives. They do not act from animus or prejudice toward white and Asian applicants, nor do their actions disadvantage inferiorized or stigmatized groups. Nevertheless, their acts constitute discrimination against the individuals in question; so it constitutes a form of wrongful racial differentiation, though not a wrongfulness of the level of “racial discrimination.” The wrongfulness is close to that involved in “discrimination based on irrelevant characteristic.”

Nevertheless, I think a somewhat greater wrongfulness attaches to racial differentiations than to others. The adherents of color blindness as race neutrality are onto something that is relevant here. Race is an especially invidious category, both uniquely inferiorizing and uniquely divisive; when its inferiorizing dimension has been neutralized, in affirmative action contexts, its divisive dimension still remains. Although it is entirely right and necessary to take race into account in the service of morally urgent goals such as racial justice, nevertheless race should be used as sparingly as possible in achieving that and other legitimate goals. Any use of racial classification, no matter who its intended beneficiary, should be carefully scrutinized to ensure that the goals for which it has been crafted are sound, and that the means used to attain them make as limited use of racial difference as is essential to meeting the goals. This is the moral truth in “strict scrutiny” legal doctrine, which the courts have wrongly utilized as virtually an absolute prohibition on racial classification.

Evolving judicial doctrine is correct in treating race as a particularly invidious basis of discrimination, but incorrect to infer from this that taking race into account to serve goals of egalitarianism and nondiscrimination should automatically be enjoined because doing so involves intentional use of racial classification. A tacit recognition of this uniqueness of race as a classification underlies the cultural force of the ideal of color blindness, but this ideal has been misunderstood to mean race neutrality rather than race egalitarianism or racial harmony, the promotion of both of which require rejecting race neutrality. Yet, although the promotion of racial justice requires preferences for stigmatized groups, all race preference is indeed, considered purely in its own right, morally suspect.