From Swords to Ploughshares
Elgar Law and Entrepreneurship series
Edited by Lateef Mtima
Chapter 4: The colorblind marketplace?
“Our Constitution is color blind”, Justice Harlan famously exhorted in his dissent to the Supreme Court’s opinion upholding state policies of separate but equal facilities for whites and nonwhites in Plessy v. Ferguson. Over the nearly century and half since, color blindness has evolved into a constitutional principle undermining state actions that seek to segregate and differentiate among persons based on racial characteristics. Blindness to color has expanded to gender equality and a disregard to other inherent characteristics by the state in its distribution of benefits and imposition of burdens. The colorblind principle, however, has come under scrutiny by legal scholars and policymakers as it serves to block progressive policies designed to integrate public institutions and promote racial and cultural diversity. Some scholars have gone further to claim that colorblindness serves to enforce racial hierarchies with white culture, or even the white race, being the norm and color as a mark of difference. Defenders of colorblindness, on the other hand, claim that any mention of race is itself racist, including any accusation of racism. There is a vertiginous circularity to a strong adherence to the colorblind principle, especially when used to block any government policies that seek to remedy past discrimination. Central to the controversies over colorblindness is the value of diversity. Affirmative action policies, particularly in the area of school admissions, may have justification in the promotion of diversity.
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