[*PG443]COLOR-BLIND RACISM IN GRUTTER AND GRATZ

Keith R. Walsh*

RACISM WITHOUT RACISTS: COLOR-BLIND RACISM AND THE PERSISTENCE OF RACIAL INEQUALITY IN THE UNITED STATES. By Eduardo Bonilla-Silva. Lanham, Boulder, New York, and Oxford: Rowman & Littlefield 2003. Pp. 213.

Abstract:  In Racism Without Racists: Color-Blind Racism and the Persistence of Racial Inequality in the United States, Eduardo Bonilla-Silva examines how whites use color-blindness as a tool to perpetuate racial inequality without themselves sounding racist. He asserts that white America’s justifications for the continued second-class status of African Americans stem from a new, post-Civil Rights racial ideology that he calls color-blind racism. Bonilla-Silva argues that color-blind racism, which is founded upon the belief that race no longer matters, is currently the dominant racial ideology in the United States. This Book Review ratifies Bonilla-Silva’s argument through an examination of the recent Supreme Court decisions on affirmative action in higher education, which demonstrably undervalue the persistence of racial inequality in the United States. Through the use of a color-blind ideology, the Justices mask the seriousness of racial inequality in the United States and may be hastening an end to racial progress before its time.

Introduction

On June 23, 2003, the United States Supreme Court in Grutter v. Bollinger reaffirmed the constitutionality of race-targeted admissions policies that intend to foster diversity in higher education.1 Read together with its companion case, Gratz v. Bollinger, however, it is clear that only the most limited use of race in admissions will withstand the Court’s application of strict scrutiny to racial classifications.2 These [*PG444]rulings come at a time when black Americans continue to face daunting barriers in their attempt to attain an education equal to that of most white Americans.3 Although the Court upheld a narrow use of race-conscious admission policies, it employed a color-blind ideology that severely minimizes the scope of racial inequality in higher education.4 The Court’s recent undervaluation of the persistence of racial inequality in higher education should raise concern about the continuation of racial progress in the United States.5

In his recent book, Racism Without Racists: Color-Blind Racism and the Persistence of Racial Inequality in the United States, Eduardo Bonilla-Silva analyzes the use of color-blind ideology as a tool to perpetuate the second-class status of blacks.6 Although Bonilla-Silva’s book focuses on the use of color-blind ideology by the average, white American citizen, the application of his framework to the recent Supreme Court decisions on affirmative action demonstrates that the ideology is so pervasive that it is utilized even by the nation’s highest court.7

Racism Without Racists examines the ways white America justifies the continued second-class status of African Americans without actually sounding or appearing racist.8 Bonilla-Silva contends that these justifications stem from a new racial ideology, which he calls color-[*PG445]blind racism.9 He argues that ongoing racial inequality in the United States is perpetuated by “new racism” practices that are not as overt as Jim Crow racism.10 During the Jim Crow era, the racial status quo was justified as the result of the alleged biological and moral inferiority of blacks.11 Color-blind racism, however, does not rely on these same simplistic and overtly racist arguments.12 Bonilla-Silva asserts that, today, whites justify the continued second-class status of minorities as the product of market dynamics, naturally occurring phenomena, and blacks’ cultural limitations.13 These arguments, which appear even in Supreme Court opinions, mask the true status of blacks in the United States and support the fallacy that race no longer matters.14

This Book Review accepts Bonilla-Silva’s argument that in the post-Civil Rights era, color-blind racism perpetuates the second-class status of blacks, and finds in the Supreme Court’s recent decisions on affirmative action in higher education a disturbing manifestation of this new trend.15 In Grutter and Gratz, the Justices refuse to argue that affirmative action policies are still necessary because blacks lag far behind whites in education, a reality that runs afoul of the principle of equality upon which the Fourteenth Amendment was drafted.16 Instead, the Justices hide behind color-blind doctrine.17 By adhering [*PG446]to the standard of strict scrutiny—in particular, the requirements that there be a “compelling government interest” behind the use of racial classifications and that the program be “narrowly-tailored” to that interest—the Court corroborates Bonilla-Silva’s assertion that color-blind racism is prevalent in the debate over the worth of race-based government programs.18 How can we as a nation expect to narrow the gap between blacks and whites if our highest court’s constitutional analysis does not properly account for racial inequality to the extent necessary to continue racial progress? If it is not a grave enough problem to warrant factoring into the Court’s constitutional analysis of affirmative action, why should Congress or state legislatures worry about racial discrimination when enacting laws?

Part I of this Book Review gives a brief overview of Bonilla-Silva’s exposition of the ideology he calls color-blind racism. Part II establishes the urgent need for the Court to recognize racial inequality in higher education. By drawing on empirical data, this part of the analysis illustrates that racial inequality in higher education still is a serious problem. Parts III and IV of this Book Review argue that even the Supreme Court employs color-blind racism in its two most recent opinions on the constitutionality of affirmative action in higher education. These sections analyze the Court’s reliance on color-blind doctrine, and their utilization of what Bonilla-Silva calls the “central frames,” “main stylistic components,” and the “major story lines” of color-blind racism in America today. This Book Review concludes that, discouragingly, adherence to color-blind racism in America’s highest court may already be stunting the growth of racial progress in the United States at a time when racial equality is still an unrealized dream.19

I.  Color-Blind Racism

Bonilla-Silva intends Racism Without Racists to be a “wake-up call” to whites about the importance race plays in shaping the lives of blacks.20 Relying on interview data, Bonilla-Silva analyzes the various manifestations of color-blind racism with the goal of revealing their remarkably color-conscious result.21

[*PG447] Bonilla-Silva first discusses the central themes, or “frames,” of color-blind racism: abstract liberalism, naturalization, cultural racism and minimization of racism.22 Bonilla-Silva argues that the frame of abstract liberalism relies on ill-formed notions of “equal opportunity” and economic liberalism to explain the racial status quo.23 The use of the “language of liberalism,” exemplified by the assertion, “I am all for equal opportunity, that’s why I oppose affirmative action,” allows whites to argue against all measures to eradicate de facto racial inequality, while seeming reasonable and moral.24 Naturalization, captured by the idea that the current state of racial inequality is “just the way things are,” is a frame that whites utilize to explain phenomena such as segregation as a natural, and thus nonracial, occurrence.25 The cultural racism frame, illustrated in the comment, “blacks have too many babies,” explains the status of racial minorities as a product of cultural deficiencies.26 Finally, the frame of minimization, reflected in comments such as, “It’s better now than in the past,” or, “There is discrimination, but there are plenty of jobs out there,” downplays the significance that race plays in the progress of minorities in the United States.27 Bonilla-Silva contends that whites utilize these frames both independently and collectively to argue against measures to improve the status of blacks, while turning a blind eye to the reality of racial inequality.28 As the analysis below demonstrates, the Supreme Court uses two of these frames in particular, abstract liberalism and minimization, when it analyzes the constitutionality of race-conscious admissions policies.29

[*PG448] Bonilla-Silva also discusses the style of color-blindness.30 In the post-Civil Rights era, public norms have changed.31 The linguistic manners of racism, Bonilla-Silva argues, have adapted to this change in a way that permits whites to justify white privilege in an age when overtly expressing such views would be unacceptable in most social circles.32 He argues that color-blind racism, like all other ideologies, has created a group of “stylistic parameters,” which provide it with a means of expression to the public.33 Thus, Bonilla-Silva describes the style of an ideology as the “linguistic manners and rhetorical strategies (or race talk)” that are used to express its frames and story lines.34 The style of color-blind race talk allows whites to adopt arguments that explain racial inequality without using racial epithets.35

Bonilla-Silva focuses on five specific elements of the style of color-blind racism.36 First, he points out that whites avoid using offensive racial language when engaging in color-blind race talk.37 Second, Bonilla-Silva provides an analysis of the “semantic moves” whites rely on as “verbal parachutes” to remove any risk of sounding racist.38 Third, Bonilla-Silva explains the role that diminutives play in whites’ racial discourse.39 Fourth, he illustrates how discussion of racially sensitive topics often produces incoherence in many whites.40 Finally, Bonilla-Silva ex[*PG449]plores the role of projection in the articulation of the frames and story lines of color-blind racism.41 This final element of color-blind race talk, exemplified by Justice Thomas’s opinion in Grutter v. Bollinger, plays a significant role in the debate over the use of affirmative action.42

Finally, Bonilla-Silva examines the story lines of color-blind racism.43 He asserts that with the advent of color-blind racism, new anecdotes and personal experiences have developed that perpetuate minorities’ new, but still second-class status.44 Bonilla-Silva argues that during discussions about race-related issues, whites often insert these stories, such as “I Did Not Get a Job (or a Promotion), or Was Not Admitted to a College, Because of a Minority,” to “provide the emotional glue and seal of authenticity needed to validate strong racial claims.”45 Indeed, in his majority opinion to Gratz v. Bollinger, Chief Justice Rehnquist relies on similar story lines to invalidate the University of Michigan’s race-conscious admission’s policy.46 Color-blind racism, in all of its forms, is particularly important in an area such as higher education, which, as the next section demonstrates, continues to suffer from racial inequality.

II.  The Persistence of Racial Inequality in Higher Education

An examination of empirical data reveals that racial inequality in higher education is still a serious problem, and thus it is urgent for the Supreme Court expressly to recognize racial inequality in higher [*PG450]education.47 Although many in white America may believe that the gap between whites and blacks in higher education has all but closed during the recent era of court-sanctioned affirmative action, the numbers continue to show a gap in access to colleges and universities between these two racial groups.48 According to the Department of Education, despite the fact that almost one-half of all whites believe that blacks have attained education levels equal to that of whites, only 16% of all black adults are college-educated as opposed to 28% of adult whites.49 The United States is still a nation where the number of incarcerated black men substantially outweighs the number of black men in colleges and universities.50

Part of the reason for the continuation of the racial gap in education is the disparity between whites and blacks on test scores that claim to measure scholastic aptitude and intelligence.51 For instance, the average black student scores lower than 75% of white students on most standardized tests for admission into college, law school, medical school, and business school.52 In some instances, blacks score below more than 85% of whites.53 Blacks make up less than 1% of the top scoring group on the SAT and ACT, two of the most frequently-used college admissions exams, and are similarly underrepresented as high-scorers on admissions tests for professional schools.54 The Journal of Blacks in Higher Education reported in a study that if scores on standardized tests became the decisive factor for all students in gaining admission to America’s leading universities, black enrollment would drop by as much as 80%.55 An examination of the disparity in scores on standardized tests provides strong evidence that the elimination of race-conscious admissions policies would seriously diminish the numbers of blacks enrolled in higher education.56 This conclusion is strengthened by the disastrous effect that the removal of affirmative action has actually had on black enrollment.57

Recent statistics on student enrollment in public colleges and universities in states that have eliminated the use of race as a factor in admissions put to rest any debate over whether race-conscious admissions policies are still necessary to ensure that blacks attain educational levels commensurate with those of whites.58 States such as Texas, Florida, and California have found it difficult to maintain a significant black presence in their public institutions of higher learning in the wake of court decisions, referenda, and executive orders banning affirmative action.59 For example, after Texas stopped using race-conscious admissions policies, the University of Texas experienced a precipitous drop in black enrollment.60 In 1996, the university enrolled 266 black students, while in 1997, the first year of race-neutral admissions, black enrollment decreased to 190.61 As a result of the passage of Proposition 209, a legislative measure in California prohibiting race-conscious admissions, black enrollment at the University of California in the years 2000 and 2001 [*PG452][*PG451]was about twenty percent below the level of black enrollment during the era of affirmative action.62

In an attempt to remedy this situation, some state universities have decided to institute so-called percentage plans.63 Percentage plans increase minority enrollment at state universities by guaranteeing admission to all high school students who graduate in the top percentages of their respective high school classes.64 Thus, the policy results in the automatic admission to state universities of students from the top percentages of inner-city schools despite low standardized test scores.65 This admissions policy has increased black enrollment in these states to levels commensurate with those while affirmative action policies were in place.66 There are several glaring problems with these plans, however, including their dependence on high school segregation to achieve the desired effect of increasing black enrollment.67 Percentage plans seek to solve one problem, low black enrollment, by relying on the existence of another problem, residential segregation.68

Furthermore, despite state efforts to institute percentage plans to increase black enrollment in the post-affirmative action era, these plans have not been used in professional school admissions policies.69 The application of a percentage plan to professional schools is difficult to envision because these schools admit students from all over the country and abroad, and colleges and universities are much more integrated than high schools where the student body composition is impacted greatly by residential segregation.70 As a result, black law school enrollment in these states still remains well below levels when affirmative action policies were in place.71

For example, one year after the Fifth Circuit Court of Appeal’s Hopwood v. Texas ruling, which forced Texas universities to end their use of affirmative action polices on constitutional grounds, the University of Texas School of Law enrolled only four black students, whereas before, it consistently enrolled twenty to forty blacks each year.72 By 2001, black enrollment at the law school had increased to sixteen, but still remained below the pre-Hopwood levels.73 Similarly, the School of Law at the University of California at Berkeley enrolled only one black student in 1997, which was the first academic year after affirmative action had been banned at the school.74 Also, while black enrollment increased at U.C. Berkeley Law School in 2001 to fourteen, this was still well below the level in the years immediately preceding the abolition of race-conscious admissions, which was consistently in the twenties and thirties.75

National statistics on black educational attainment and the results of the elimination of affirmative action policies at select schools provide irrefutable evidence that a racial gap still exists in American higher education.76 These statistics also provide compelling support for the argument that the Supreme Court must recognize this gap in its constitutional analysis on race-based admissions policies.77

[*PG454][*PG453]III.  The Supreme Court’s Reliance on Color-Blindness in Grutter and Gratz

Given the troublesome existence of a racial gap in higher education, it is particularly worrying that the Supreme Court uses color-blind doctrine to down-play the seriousness of the problem, which may ultimately contribute to educational inequality by bringing an end to affirmative action before its time.78 In the summer of 2003, the Supreme Court handed down its latest opinions on the constitutionality of race-conscious admissions policies.79 This marked the first time that the Court had critically examined the use of race as a factor in student admissions under the Equal Protection Clause of the Fourteenth Amendment since its 1978 landmark decision in Regents of the University of California v. Bakke.80 Since the Court’s splintered ruling in Bakke, Justice Powell’s plurality opinion in that case has functioned as the model for constitutional analysis of race-targeted admissions policies.81 In a five-to-four decision in Grutter v. Bollinger, the Court, drawing on Justice Powell’s decision in Bakke, upheld the University of Michigan Law School admissions policy and declared that student body diversity is a compelling governmental interest that can validate the use of race as a “plus” factor in admissions.82 In Gratz v. Bollinger, however, the Court limited the scope of the holding in Grutter by striking down the University of Michigan’s undergraduate admissions policy because it was not narrowly tailored enough to advance an interest in diversity.83 In a six-to-three decision, the Court ruled that the undergraduate admissions policy was unconstitutional because it did not provide individualized consideration of each applicant.84

Even more discouraging than the Court’s decision narrowly to limit affirmative action in higher education was the Court’s utilization of color-blind ideology in reaching its conclusion.85 An examination of the Court’s reasoning in both Grutter and Gratz illustrates that the Justices rely strongly on color-blind doctrine by adhering to the standard of strict scrutiny and by using, in varying degrees, Bonilla-Silva’s central frames, main stylistic components, and major story lines of color-blind racism to determine the constitutionality of affirmative action.86

In Grutter and Gratz, the Court applied its strict scrutiny standard of review to the question of whether the respective schools’ admissions policies were unconstitutional.87 The Court had previously held that the strict scrutiny standard of review applies to all racial classifications irrespective of the race of those burdened or benefited by the classification.88 Moreover, the Court has described strict scrutiny as a standard [*PG456][*PG455]that can be satisfied only by narrowly tailored means that further compelling governmental interests.89 The Court’s use of race-neutral criteria, such as diversity and individualization, in the analysis of “compelling government interest” and “narrowly tailored” in its recent decisions on affirmative action allow the Justices to sidestep a larger social problem—namely, the ongoing need for race-conscious admissions policies because of the persistence of a racial gap in education.90

A.  Compelling Interest

The Court’s holding in Grutter, that student body diversity is a compelling interest, resolved the debate among the lower federal courts as to whether Bakke was still valid precedent.91 Justice O’Connor’s majority opinion affirms Justice Powell’s holding in Bakke that institutions of higher education have a compelling interest in obtaining diverse student bodies.92 The Court’s opinion stresses the benefits of student body diversity for all students.93 The Court’s reliance on diversity as the compelling interest that justifies the race-conscious admissions policies, however, is a convenient way for the Justices to couch their holding in race-neutral terms.94

As evidenced by the majority opinion in Grutter, the Court’s decision minimizes the scope of racial inequality in this country, specifically in the area of education, and takes a race-neutral approach to the compelling interest question in an effort to gain white acceptance.95 Although Justice O’Connor does acknowledge that “race unfortunately still matters” and that “the diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity[,]” these statements seem to be dicta and are not crucial to the holding that obtaining student body diversity is a compelling interest for an institution of higher learning.96 The Court could have simply stated that blacks still lag far behind whites in all areas of higher education, and that colleges and universities therefore have a compelling interest in ensuring equal access to public education.97 Instead, as to the compelling interest question, the Court consciously invited Americans to view affirmative action as a benefit for all, not just for blacks.98 The Court, as it did in its decision in Brown v. Board of Education, should have ignored whether or not its decision would enjoy broad acceptance among whites.99 The Court should have made a clear and unequivocal declaration that, until equality among the races is truly a reality in the area of education, institutions of higher learning have a compelling interest in implementing race-conscious admissions policies.100

[*PG458][*PG457]B.  Narrowly Tailored

After holding that the University of Michigan’s undergraduate college and its law school had a compelling interest in obtaining a diverse student body, the Court determined whether the respective race-conscious admissions policies were narrowly tailored to further that interest.101 An examination of both Grutter and Gratz reveals that the most important aspect of a race-conscious admissions policy in constitutional analysis is the policy’s ability to provide sufficient individualized review.102 In evaluating whether the specific programs were narrowly tailored, the Court once again took a predominantly race-blind approach to its analysis.103 The Court in Grutter approved the admissions policy at the University of Michigan Law School in large part because it provides individualized review by seriously weighing other diversity factors besides race that benefit non-minority applicants.104 By the same token, the Court in Gratz struck down the admissions policy employed by the University’s undergraduate program because it utilized a mechanistic assignment of points based on race, and thus was not sufficiently individualized or flexible to satisfy the narrowly tailored requirement.105 The Court’s framing of the narrowly tailored issue as an inquiry into whether the specific admissions policy provides individualized review is a distressing example of the color-blind frame of abstract liberalism discussed by Bonilla-Silva.106

In particular, the Court utilizes the frame of abstract liberalism to make its narrowly tailored analysis sound reasonable and moral even when the outcome of the analysis may serve to perpetuate de facto racial inequality.107 One of the foundations of liberal thinking is a focus on individual rights.108 Through the lens of liberalism, group-based goals, pursued through means such as race-conscious programs, are viewed as detrimental to the pursuit of individual autonomy.109 The abstract liberalism frame can be seen in the Court’s insistence, in Grutter and Gratz, on individual review of all applicants.110 For example, Chief Justice Rehnquist utilizes this frame and its focus on individualism in the majority opinion in Gratz to rule against the race-conscious admissions policy employed by the University of Michigan’s undergraduate program.111 Under that policy, according to Chief Justice Rehnquist, virtually every underrepresented minority who applied was granted admission solely on account of his or her race.112 Thus, the university did not provide its applicants comprehensive individualized review, but instead, made race rather than individual merit the focus of the admissions process.113 The application of abstract liberalism to the affirmative action debate erroneously presupposes that minorities are on equal ground with whites, and that minorities would therefore be able to compete in a system that only recognizes individual merit.114

The Court’s application of strict scrutiny is a glaring example of the Justices’ predominantly color-blind approach to the issue of race-conscious admissions.115 In effect, the Justices do not place enough [*PG460][*PG459]emphasis on the persistence of racial inequality in America’s institutions of higher learning.116

IV.  Other Evidence of the Court’s Complicity in
Color-Blind Racism

In her majority opinion in Grutter v. Bollinger, Justice O’Connor employs another frame of color-blind ideology by “minimizing” racism.117 Bonilla-Silva contends that color-blind ideologists minimize racism when they argue against affirmative action because they believe that race is no longer an important factor affecting minorities’ educational opportunities.118 Opponents of affirmative action rely on this frame, for instance, to argue that racial discrimination does not affect the chances of admission for blacks applying to schools and universities.119 Although Justice O’Connor does not contend that race no longer affects the chances of blacks in the area of education, she minimizes the significance of racial inequality in this country.120 In her opinion, Justice O’Connor asserts: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”121 It is true that minorities’ positions in higher education have improved since race-conscious admissions policies were first validated by the Court twenty-five years ago, but to suggest that fifty years of affirmative action can repair the damages arising from centuries of slavery and Jim Crow oppression grossly underestimates the struggles that blacks still face in their march towards equality.122 Although her opinion upholds the race-conscious admissions policy at the University of Michigan Law School, Justice O’Connor relies, in part, on the color-blind frame of minimization to mask the true scope of racial inequality in higher education, and in so doing, gives credence to the argument that there is no longer a substantial impediment to blacks’ chances to compete in the admissions process.123

Notably, the Justices use these frames of color-blind racism in a non-mutually exclusive manner.124 For instance, Justice O’Connor would find it difficult explaining racial matters through the abstract liberalism frame without also utilizing the minimization frame.125 Justice O’Connor’s insistence that all admissions policies be highly individualized without allowing race to play a significant role seems reasonable only if one overlooks the fact that, under any system based solely on individual merit, blacks will be at a serious disadvantage to whites in the admissions process.126 Bonilla-Silva contends that, by using these frames in a manner similar to “the way children use building blocks,” opponents of affirmative action feel justified in saying, “I am all for equal opportunity, that’s why I oppose affirmative action” because they can subsequently say, “Everyone has almost the same opportunities to succeed in this country because discrimination and racism are all but gone.”127 As demonstrated by the seamlessness and strength of the Supreme Court’s opinion in Grutter, when these frames are bundled together, they form an “impregnable yet elastic wall that barricades” the nation from the unpleasant reality of racial inequality.128

Justice Thomas also utilizes the “style” of color-blindness in his recent opinion in Grutter.129 Bonilla-Silva argues that color-blind racism, like all other ideologies, has created a group of “stylistic parameters” that provide a means of expressing its ideas to the public.130 Projection, [*PG462][*PG461]on such parameter, is a linguistic tool that people use to shield themselves from guilt.131 For instance, critics of affirmative action often couch their opposition to the policy in terms of a concern over how affirmative action makes blacks feel about themselves.132 The style of color-blind racism, and in particular, the linguistic tool of projection, is illustrated by various of Justice Thomas’s assertions in Grutter.133 For instance, Justice Thomas states, “[Race-conscious] programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are ‘entitled’ to preferences.”134 In addition, Justice Thomas argues that race-conscious admissions policies are objectionable because they set up under-qualified black students for failure.135 Justice Thomas’s approach demonstrates that those who argue against affirmative action by adopting a color-blind ideology can make themselves feel less guilty about their role in the perpetuation of racial inequality.136 They accomplish this self-justification by stating that race-targeted policies stigmatize minorities by making people feel that the minority student must only have been admitted because of affirmative action.137 Thus, the argument goes, minorities are left feeling inferior to whites, even if they were admitted or hired because they were equally qualified for the school or the position.138

Indeed, by embracing this inferiority argument in his own words, Justice Thomas adopts color-blind racism.139 He states in Grutter:

When blacks take positions in the highest places of government, industry, or academia, it is an open question today whether their skin color played a part in their advancement. The question itself is the stigma—because either racial discrimination did play a role, in which case the person may be deemed ‘otherwise unqualified,’ or it did not, in which case asking the question itself unfairly marks those blacks who would succeed without discrimination.140

As Justice Thomas’s opinion demonstrates, the style of color-blind racism allows individuals to maintain a color-blind image as they advance positions that perpetuate racial inequality and white privilege.141 In reality, however, whites are the ones who receive preference based upon their race because of their history of comparative wealth and social privilege, and thus should feel inferior because the market is so heavily tilted in their favor.142

Furthermore, the Supreme Court perpetuates color-blind racism by utilizing the ideology’s major “story lines” to invoke sympathy that affirmative action hurts innocent people who merit being admitted.143 When making points on race-related issues, individuals who utilize color-blind racism often insert these stories, which validate strong racial claims.144 Similar to the common story of, “I Did Not Get a Job (or a Promotion), or Was Not Admitted to a College, Because of a Minority,” Chief Justice Rehnquist, in his majority opinion in Gratz v. Bollinger, emphasizes that highly qualified whites are hurt by the race-conscious admissions policy utilized by the University of Michigan.145 In a hypothetical, Chief Justice Rehnquist explains that person C, a highly qualified white student whose “extraordinary artistic talent rival[s] that of Monet or Picasso,” would likely be denied admissions to the University of Michigan in favor of person B, “a black who grew up in an inner-city ghetto . . . [and] whose academic achievement was [*PG464][*PG463]lower . . . .”146 The Chief Justice stresses that this example illustrates what is wrong with the admissions system at issue in Gratz.147

The sympathy that Chief Justice Rehnquist attempts to invoke for “innocent” whites who are allegedly hurt by affirmative action policies is undeserved.148 For example, in the context of college admissions, a study of five highly selective schools concluded that if whites filled all the open seats created by eliminating each school’s respective affirmative action policy, “the overall white probability of admission would rise by only one and one-half percentage points . . . .”149 Statistics such as these led one commentator to compare bitterness toward race-targeted government programs to resentment against setting aside parking spaces for the handicapped.150 According to the analogy, eliminating a reserved space would have only a minuscule effect on parking options for non-disabled drivers, but the sight of the open space would frustrate many passing motorists looking for a space to park.151 Many are likely to believe, mistakenly, that they would have parked in the space had it not been reserved.152 Thus, empirical data reveals that the anti-affirmative action argument advanced by the “I Did Not Get a Job (or a Promotion), or Was Not Admitted to a College, Because of a Minority” story line is flawed and contributes to masking the racial reality in the United States.153

In the Court’s recent opinions on affirmative action, the use of the story lines of color-blind racism, like the use of color-blind frames and style, undervalue the breadth and depth of racism.154 The opinions place a color-blind blanket over a constitutional debate that demands acknowledgement that the ideal of equality among the races is still a distant dream.155 The Court’s adoption of a color-blind ideology not only masks the irrefutable existence of a stark racial gap in higher education, but it may also ultimately worsen this gap by bringing a premature end to affirmative action.156

Conclusion

In his book, Racism Without Racists: Color-Blind Racism and the Persistence of Racial Inequality in the United States, Eduardo Bonilla-Silva alerts readers to the danger that a color-blind ideology will soon pervade discussions of race in the United States.157 The mechanisms of color-blind racism allow whites to advance positions that assure the perpetuation of white privilege.158 Under this color-blind guise, the arguments opposing affirmative action sound reasonable and moral.159 Yet individuals employ the frames, style, and story lines of color-blind racism to mask the fact that blacks still hold a second-class status in America.160 Thus, color-blind racism facilitates the perpetuation of racial inequality by obscuring the fact that there is even a problem to fix.161

Although Bonilla-Silva only examines the use of color-blindness by the average white American citizen, an examination of the two recent Supreme Court decisions on affirmative action reveals that even the Court at times employs a color-blind ideology and minimizes the seriousness of the racial gap that still exists in the United States.162 Throughout the Court’s opinions in Grutter v. Bollinger and Gratz v. Bollinger, the Justices refuse to discuss race at a time when a discussion of racial inequality is imperative to highlight the continued importance of affirmative action to the black community.163 The Court’s reluctance to [*PG466][*PG465]recognize the scope of racial inequality, and its insistence on couching its decisions in race-blind terms, assures wide-spread public approval and, unfortunately, assures blacks a second-class status.164

The Court seems to have forgotten that the purpose of affirmative action is to remedy historic wrongs that have been committed against African Americans.165 Make no mistake about it: centuries of slavery, oppression, and discrimination cannot be erased by twenty-five years of Court-sanctioned affirmative action.166 Although the Court in Grutter approves of a limited use of race-conscious admissions policies, the Court’s undervaluation of the African-American community’s continued need for affirmative action—especially in higher education, where it is so vital to improving the community’s social conditions—misleads one into believing that affirmative action need not be around for long.167

When race-talk is taken out of the affirmative action debate, the most important reasons for the program are lost.168 While diversity is certainly an important goal, it should not come before the goal of assuring that each individual in this country is guaranteed equal opportunity irrespective of race.169 The Court’s use of color-blindness guts its recent opinions on affirmative action of the most compelling reason [*PG467]for the continuation of race-targeted programs: racial inequality.170 As a result, Justice O’Connor’s forecast, that affirmative action will end in another twenty-five years, is likely to come true long before our country has made the gains necessary to ensure racial equality.171

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