StemCell Therapy

This massive societal shift was met with backlash from some white citizens, who resented attempts at leveling the playing field through policies such as busing, racial quotas, affirmative action, and disparate-impact standards. They argued that these disruptive measures infringed on their personal liberties and had the effect of discriminating against them.

As desegregationist policies reached states and cities, white parents vacated public-school systems rather than integrate them, and the Supreme Court began hearing cases from white claimants who cited the unfairness of remedial policies governing hiring and promotion practices, university admissions, and government-contract allocations.

But the dynamics soon shifted. It wasnt long before those groups that were once making color-conscious arguments in support of racial segregation began using the principles of color-blind constitutionalism to assert that racially progressive policies were discriminating against white Americans.

Meanwhile, Thurgood Marshall ascended to the Court and grew dismayed that color blindness was now the main thrust of the legal argument against practical measures seeking to establish a racially egalitarian society. He wrote in his Regents of the University of California v. Bakke dissent, It is more than a little ironic that, after several hundred years of class-based discrimination against Negroes, the Court is unwilling to hold that a class-based remedy for that discrimination is permissible.

Adam Serwer: The Supreme Court is headed back to the 19th century

In Marshalls formulation, color-blind constitutionalism was a wholly appropriate approach for obtaining the equal rights of a subjugated people, but an insufficient guide to unmaking the societal disadvantages that racism had wrought. That is, he considered it in the words of the old gospel hymnIt once was blind, but now it sees.

This view accords with what scholars have long known. The political theorist Iris Marion Young argued that when unequal societies throw off statutory constraints and declare all citizens equals henceforth, preexisting group hierarchies are perpetuated unless proactively addressed. The upshot is that color-blind constitutionalism in unequal societies compels the lifting of state-sanctioned discrimination, but the ensuing remediation must be color-conscious in the same way that the harms were.

More recent conservative-leaning Supreme Courts seem to disagree. In a series of cases that tackle racial preferences and attempts at racial redress, the Court has found that a color-blind reading of the Constitution complicates or outright rejects color-conscious policies, even if they are implemented with the intent of furthering racial equality. For example, in Adarand Constructors, Inc. v. Pea (1995), a case challenging affirmative action in government contracts, the Court established that race-based classifications must meet strict scrutiny, the highest standard of judicial review. In Shelby County v. Holder (2013), the Court ruled that a measure intended to protect voters of color in jurisdictions with a history of racial discrimination was unconstitutional, effectively gutting the Voting Rights Act of 1965. The Court determined that Michigans affirmative-action ban was constitutional in Schuette v. Coalition to Defend Affirmative Action (2014).

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How Conservatives Turned the Color-Blind Constitution Against Racial Progress - The Atlantic

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