Colorblind Violates Equal Protection

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Matthew Franck notes that on one of Barack Obama's exam questions from when he was teaching law, he asks whether an equal protection challenge can be brought against a law requiring states to be color-blind. Franck says he knows of lots of people who think the equal protection clause requires states to be color-blind, but he hasn't encountered a serious argument anywhere that such laws violate the equal protection clause. I haven't either, but I don't read law reviews. Still, such an argument isn't hard to imagine, and I think it's actually a sound argument.

The equal protection clause entitles people of all races to equal protection of the laws. The laws therefore need to be able to rely on the distinction between members of one race and members of another if they are to ensure that each race is equally protected by them. Therefore, color-blind laws, which disallow the state from paying attention to race, violate the equal protection clause.

It sounds like a pretty good argument to me. As a policy issue, I don't mind restricting affirmative action in universities to class rather than race, or at least ensuring that the standards aren't lowered as much as they are. There's a significant argument that the way affirmative action is typically practiced in that setting (as opposed to in the workplace, which is a very different matter) seems to me to harm the people it's intended to help, given that admissions officers already go out of their way to promote diversity (so there's no discrimination to combat at that level), and it means accepting people who won't be able to do as well and then will appear less good when they graduate than they would at a lower institution with much higher grades and more time for extracurriculars. There are other negatives too, but that's the one that seems decisive to me. I think it's much better to work at the high school level and below to help kids do better in school, to care more about school, and to think of college as something worth doing.

But I can't see how it could be good to ban affirmative action by not allowing a state to recognize racial distinctions in any way. That sort of law is not just bad policy. It really is unconstitutional because it prevents enforcement of the equal protection clause.


It looks like you're missing the distinction between de facto and de jure discrimination. The equal protection clause was not intended to address the first of these and, as such, is not a prescription for the enactment of legislation designed to bring about a de facto equality. Rather, it is a requirement for the equal application of whatever laws are passed. The 14th Amendment deals with state action. Anything the state does cannot be, nor can it significantly contribute to, the cause of discrimination or unequal protection. On the other hand, even when it is within its power to do so effectively, the state is under no constitutional obligation to address inequities that arise from within the private sector. Consequently, I don't think your argument's going to work. Colorblind laws are designed to prohibited other types of legislation, e.g., workplace affirmative action. It is not enough to show that the repeal of an affirmative action law would reverse progress toward equality. At the very least, you also would need to show that the inequality addressed by the affirmative action law was, to a sufficient degree, the result of state action. Otherwise, the remedy not being constitutionally required, its repeal can hardly be constitutionally prohibited.

I don't think my argument assumes any of those things. All I'm assuming is that you can't bring an equal protection challenge to a law on the basis of race if you can't use racial terms. I don't think affirmative action is constitutionally required or prohibited, so I'm not going to claim that its repeal is constitutionally prohibited. Here's a concrete case that illustrates the problem better. Suppose we pass a colorblind amendment to a state constitution, which means the state can't recognize racial categories in any official capacity. Then someone passes a segregation law based on race. That law is illegal because of the colorblind amendment. Nevertheless, you can't say so. There's no way to bring the complaint, because it's illegal for the state to recognize it in any way that uses racial terms, and there's no way to recognize it without racial terms. So the colorblind law violates the equal protection clause.

There are plenty of policy reasons to oppose such laws, but what was interesting about Obama's exam question is that it's suggestive of a constitutional reason for opposing them. It's possible that what he has in mind is more like what you're criticizing. I could certainly see someone trying that, and I think what you're saying might well be the right response. But the argument I have in mind is very different and doesn't seem to me to have those problems.

Obama's question, at least according to Franck's account, concerns legislation “that required a state to be color-blind in public education, hiring, and contracts.” Washington Initiative 200 reads, “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” Colorado Amendment 46 is virtually identical. Neither one requires a blanket prohibition on official state recognition of racial categories. Moreover, I can't think of any legislation that does.

The situation you describe reminds me a bit of Shelley vs. Kraemer. Property owners sued to enforce a covenant restricting the sale of a home to black buyers. The court found that, because the covenant itself was a private matter, it was legal and violated no one's 14th Amendment rights. The plaintiffs still lost, though. It turns out that judicial enforcement of such a covenant constituted state action, which would have been a violation of the equal protection clause.

I know California voters did consider (but didn't pass) an initiative in 2003 (the same election as the recall of Governor Davis) that would have prevented the state from keeping any records whatsoever of any resident's race. It would have been illegal for the state even to record that information. People were calling it a racial privacy initiative. It was worded as follows:

"Should state and local governments be prohibited from classifying any person by race, ethnicity, color, or national origin? Various exemptions apply."

The exemptions, according to Wikipedia, were: "medical data; law enforcement descriptions; prisoner and undercover assignments; actions maintaining federal funding."

It did allow the legislature to add exemptions if there is a legitimate public interest, but the law allows for the abuse I presented, since it doesn't include equal protection lawsuits, which doesn't fall under the categories listed. The closest is law enforcement descriptions, but this isn't technically law enforcement but enforcement of a constitutional provision regarding laws (which is a higher-order function about laws, not a function of law-enforcement officers in their duty to carry out laws and bring violators to be held accountable). Unless the legislature were to add that, it would have allowed for the situation I described, and the court wouldn't be allowed to consider race in its decision whether an equal protection violation had occurred. This was actually the paradigm case of colorblind laws, and my understanding is that it served as the template for all the other ones, but maybe I was wrong about that. It certainly would have been one of the things Obama was considering at the time, since his question was in 2003, the same year as the California initiative.

Now Obama's actual question doesn't go this far, since as you say it only considers an initiative that restricts it to public education, hiring, and contracts. But that doesn't mean it's a zany question, as Francks says. In the context of a California initiative that goes well beyond this where there's at least a not-ridiculous argument that it violates the equal protection clause, it's actually a good question to ask law students if a more restricted initiative does. Suppose Obama had presented my argument to his students, and then he asked them this question. The smartest students might realize that his argument doesn't apply, even if it's a good argument. Other students might not see that and might just present his argument (whether they agree with it or not), thinking he'd like that. I've certainly asked questions like that to provoke students into applying an argument to a different context. So I don't think Francks has a really good criticism of the question. I'd be surprised if there weren't people at the time criticizing this law as a violation of equal protection, and Obama wanted to see if his students could consider such an argument and apply it in the restricted context he presents, giving reasons why or why not such a challenge might be made.

Washington I-200 was passed in 1998. California Proposition 54 begins with similar restrictions, “The State shall not classify any individual by race, ethnicity, color, or national origin in the operation of public education, public contracting, or public employment.” I'm guessing that these specific categories are immune from exemption, since the next part, which includes conditions for legislative exemptions, expands the proscription on classification to just about everything else a state could be doing. It begins, “The State shall not classify any individual by race, ethnicity, color, or national origin in the operation of any other state operations...”

I agree that Obama's question is legitimate, especially in the context of simply trying to get students to think. Franck's reaction strikes me more as ideological reflex than anything else. Even so, I'd still have to answer that Proposition 54 does not violate the equal protection clause. Wikipedia missed one of the exemptions, which is, “Nothing in this section shall be interpreted as prohibiting action which must be taken to comply with federal law...” Furthemore, the last part makes the entire section [the proposition was for the addition of section 32 to article 1 of the California Constitution] self-executing, stating, “If any part or parts of this section are found to be in conflict with federal law or the United States Constitution, the section shall be implemented to the maximum extent that federal law and the United States Constitution permit. Any provision held invalid shall be severable from the remaining portions of this section.” As I see it, the most obvious candidate for invalid provision would be the prohibition against collecting racial classification data on government forms. But that would depend on the extent to which the absence of such data would impede the function of the courts.

If it says it's invalidated by any conflict with federal law, isn't it then in conflict with some of the Civil Rights laws of 1964-65? I'm pretty sure some of those require collecting information about people's race, although maybe it's state-specific and doesn't include California.

If the argument I presented is correct, then the law invalidates itself for having that disclaimer about conflicts with the Constitution. It doesn't mean that it doesn't violate equal protection. It means it does and thus doesn't go into effect. But that should be true even if it doesn't have that statement, so I don't see how that statement should change anything. The law is invalid if it's unconstitutional, whether those in authority over whether it gets enforced recognize it or not.

The constitutional disclaimer is not redundant. The point was to keep the courts from overturning the entire law should part of it be found to be unconstitutional or in conflict with federal law. Instead, it would be “implemented to the maximum extent that federal law and the United States Constitution permit.” So, for instance, if there were conflicts with federal civil rights laws about collecting racial information, there would be an exception for whatever the federal law required. Any other record keeping, not required to comply with the federal law, would still be prohibited. Or say that the law, as written up to the point of this disclaimer, would have violated equal protection according to your argument. In that case, the ability of the state to recognize racial categories for purposes of hearing the case would be made an exception. As a result, the law would no longer be in violation. I can actually see the record keeping portion of this law being completely gutted by the possible exemptions. Even so, I think the part outlawing affirmative action would have held up.

Overturning affirmative action would have held up, and there may have been other bits that held up. I guess it ultimately depends on how the courts would handle the unconstitutionality. They've sometimes sent laws back to the lower courts to redefine according to a constitutional limit that they declare, and they've sometimes nullified them. Justice O'Connor's last opinion for the Supreme Court sent an abortion law back to a lower court to reword according to a constitutional limit without nullifying the law itself, and sometimes they've declared parts of laws ok and others not (as with Planned Parenthood v. Casey).

If you haven’t already read it, I would highly recommend Kenan Malik’s Strange Fruit (see Amozon for reviews).

His The Meaning of Race just arrived in the mail and if it’s half as good as SF I’ll be more than pleased.

From Malik's Wikipedia entry, it sounds as if he's got a bit of a premature diagnosis of racial categories as no longer necessary and purely harmful. If that's accurate, it's not the kind of new view that his Amazon blurbs say he's got, but they say nothing about what his view actually is. That's not to say that there's nothing new in it, but it doesn't sound as if his overall view is much different from one of the standard ones out there.

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