The Hazards of “Colorblind Equality”

by
Wanjiru Njoya
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The words of Lewis Carroll are often cited in reference to the culture wars and the redefinition of words whose meaning used to be regarded as plain.

“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master—that’s all.”

This is the fate that befell the phrase “equal opportunities,” which has been used to justify all manner of “diversity, equity and inclusivity” (DEI) schemes. It will also be so with “colorblind equality,” a phrase now being championed by egalitarians as a counterpoint to DEI. Egalitarians are committed to promoting equality in one form or another and are thus engaged in a debate over whether colorblind equality would be a suitable replacement for DEI.

The public debate appears in one sense to be largely a semantic debate about the meaning of words, how best to define the egalitarian values underpinning the Civil Rights Act and the Fourteenth Amendment. The debate focuses on how equality should be implemented—what labels to attach to the relevant enforcement schemes. On that front, “colorblind equality” is certainly preferable to DEI because colorblindness emphasizes the equal treatment of all races, and it is a more precise term than the amorphous DEI. However, ultimately the particular words used to describe equality schemes make little difference. For defenders of liberty, the essential point to note about such schemes is their underlying premise that the government has a role to play in enforcing equality. Moreover, the enforcement process inevitably tends to expand equality far beyond what the strict words of the law permit. The result is endless litigation on the meaning of equality terms and concepts. Litigation is effective in giving pause to the equality industry, a good example being the stern letters warning medicals schools to expect legal action if they fail to abolish racial preferences in admissions. However, litigation can only go so far: it often prompts the equality industry to regroup under new slogans. It is like a sinister game of whack-a-mole. When racial segregation is banned, more affinity spaces for specified races soon pop up, defined as

a physical or virtual space intended to be free of bias, conflict, criticism, or potentially threating actions, ideas, or conversations. The purpose of an affinity space is to provide a positive, affirming environment for groups, often those who feel marginalized, to come together and engage in open and honest dialogues.

Justice and Equality in the Classical Liberal Tradition

Justice in the classical liberal tradition is not defined or understood by reference to racial identity or any other form of personal identity—as reflected in the idea of “blind justice.” To libertarians, justice is based on the concept of self-ownership. Justice, as expressed in Roman law, means to give each man his own. One could of course say justice is colorblind, sex blind, gender blind, or age blind and list all the identity features to which justice is blind, but that would add nothing useful to the concept of justice and would serve to obscure rather than to clarify the meaning of justice. Similarly, equality in the classical liberal sense means formal equality before the law, without the need to list all the types of personal identities that are to be treated as equal before the law.

In an age of identity politics, the classical liberal definitions of justice and equality are deemed to be insufficient. Each identity group would like to center itself on a definition of justice: social justice, racial justice, gender justice, and the like. In this sense, the concept of “colorblindness,” while rejecting racial preferences, is a theoretical construct with race at its heart in that it defines equality as “race blind equality” and justice as “race blind justice.” It is an ideology that defines equality and justice by reference to the correct approach to the races.

The debate surrounding colorblindness is in that sense not merely a semantic debate. On closer inspection, it can be seen to be substantially a debate about racial entitlement and how this should be reflected in the law. Critical race theory (CRT) ideologues and progressive proponents of “anti-racism” view “colorblindness” as a doctrine that belongs in truth to the civil rights movement, seeing it as a slogan whose overriding aim is to advance the cause of black people. As expressed recently in the New York Times, progressives regard conservatives as having “hijacked” the idea of colorblindness by subverting it to undermine the very goal that colorblindness (in the progressive view) was originally intended to advance. Progressives are opposed to conservative interpretations of “colorblindness” because they consider it a threat to the specific types of race-based preferences that they favor.

This political tug of war over the correct meaning of colorblindness illustrates the hazard of viewing justice and equality through a racial lens. The battle over the meaning of colorblindness will continue to fuel the public debates about racial identity and racial ideologies. This is the wrong direction of travel. Race should become less important to theories of justice, not more important, as the ideal form of justice is one in which race is irrelevant. For this reason, the heated debates over colorblindness are far from edifying.

In the equality literature, colorblindness is defined as “the racial ideology that posits the best way to end discrimination is by treating individuals as equally as possible, without regard to race, culture, or ethnicity.” Colorblindness defines ethical values by reference to race—how we treat people based on their race—and thereby gives effect to an antidiscrimination principle that centers racial identity in a definition of justice. The ideology of colorblindness, as with any other racial ideology, prioritizes theories of race, anti-racism, “race blindness,” or “racelessness” as a moral or ethical theory although it does so for an ostensibly good purpose, namely to advance racial equality.

Further, if we compare “colorblind equality” to “DEI,” a significant overlap between the two doctrines becomes apparent—significant in the sense that there is a real danger of the two doctrines, in practice, being treated as indistinguishable. A DEI office transformed into a “colorblind equality” office would largely be able to continue with business as usual. For example, “colorblindness” is defined as “treating individuals as equally as possible,” while DEI is defined as “recognizing and addressing barriers to provide opportunity for all individuals and communities to thrive.” The stated goal of equity—namely to provide opportunity for underprivileged individuals to “equalize” their opportunities with those of privileged individuals—expresses the view that people’s opportunities are not equal and something must be done to equalize them or to punish institutions who fail to provide equal opportunities, while “colorblindness” sees the goal of equality as that of eradicating racial discrimination. In practice, how is colorblind eradication of racial discrimination different from equity eradication of “barriers to opportunity”?

Both DEI and “colorblind equality” set out to advance racial equality, though they differ on the correct means of achieving that goal. Both thus encounter the challenges that face all racial equalization schemes: What is entailed, in practice, by treating all races equally? How would we test whether all races are being treated equally? More importantly, faced with complaints that people have been treated unequally based on their race—and complainers there will always be—on what basis should such claims be adjudicated?

“Colorblindness” Is Not “Our Shared Value”

The fact that conservatives are now at the forefront of promoting “colorblindness” as a necessary corollary of equality under the law illustrates the truth of Murray Rothbard’s words: “It is rare indeed in the United States to find anyone, especially any intellectual, challenging the beauty and goodness of the egalitarian ideal.” Conservatives accept the premise that the US Constitution requires “colorblind equality,” and they are now engaged in an unholy tussle with CRT ideologues as to what exactly is meant by “colorblind.”

In a time when any breach of “our shared values” is framed as a threat to “our democracy” and treated as justification for legislating identity-based “hate crimes,” it is important to be clear on what “our shared values” truly are. It is important to be clear that egalitarian values, by whatever name described, are not “our shared values.” Egalitarianism simply reflects a particular political ideology, one with which many people disagree. As Rothbard explains, the egalitarian ideal is neither beautiful nor good, and it leads only to the “world of horror fiction” so powerfully depicted by Kurt Vonnegut, who in his short story “Harrison Bergeron” imagined a society in which superior people are handicapped so everyone will be equal. Rothbard is right to say that the equalization of human beings is horrifying precisely because it ignores the reality that while we are equal in our humanity (that is, we are all equally human), we are not equal in our attributes: “The horror we all instinctively feel at these stories is the intuitive recognition that men are not uniform, that the species, mankind, is uniquely characterized by a high degree of variety, diversity, differentiation; in short, inequality.” From a natural-rights libertarian perspective, egalitarianism amounts to a “revolt against nature” regardless of the label attached to it.

Once the egalitarian premise is accepted, no words or slogans can be coined which would prevent socialists from implementing the same types of redistributive schemes that are now opposed for being unjust, such as affirmative action. There is no magic form of words that can redeem an inherently flawed ideology. Moreover, once the goal of equality is enshrined in law, it becomes inevitable that its meaning and interpretation will continue to expand its scope. Courts over the years have increasingly set aside the presumption of innocence; the burden of proof is now on anyone accused of discrimination to prove that their decision is justified, and the reason given by courts for this judicial lawmaking is that it would otherwise be impossible to enforce antidiscrimination law. In these conditions, what should we expect from “colorblind equality”?

What’s in a Label?

One might ask what would be so bad about calling equality “colorblind” and henceforth referring to the Constitution as “the colorblind Constitution.” After all, we all want the Constitution to be colorblind, don’t we? This would surely be a good way to signal one’s virtue, if one were so inclined. We could call the United States “the colorblind United States” and affix the term “colorblind” to all institutions, beginning with “the colorblind Supreme Court.”

The concept of “colorblind equality” is defended by both liberals and conservatives, who believe the civil rights industry would work much better if it aspired to promoting colorblindness. However, their dream is unachievable precisely because they do not agree on what the dream is, and as one wit put it, we cannot even be sure that Dr. King, a known plagiarist, was the real visionary of the famous dream that inspires his colorblind followers, although “I have a dream” certainly resounds much better than “I have borrowed someone else’s dream.”

Justice John Roberts, giving the opinion of the Supreme Court in the affirmative action cases, depicts colorblindness as a term central to the US Constitution, holding that “the Constitution itself required a colorblind standard on the part of government.” The dissenting opinions, however, defended the CRT view of colorblindness as a substantive ideal of racial justice. CRT rejects the conservative definition of colorblindness on grounds that conservatives undermine and subvert the true goal of colorblindness. The dissenting justices thus consider the established legal understanding of colorblindness to be wrong. As Justice Roberts remarked, “For what one dissent denigrates as ‘rhetorical flourishes about colorblindness,’ post, at 14 (opinion of SOTOMAYOR, J.), are in fact the proud pronouncements of cases like Loving and Yick Wo, like Shelley and Bolling—they are defining statements of law.”

The whole point of CRT is to overthrow “defining statements of law,” and it would be a mistake to dismiss CRT out of hand given that most of the staff enforcing colorblind equality will have been trained in some form of CRT, and the doctrines of CRT are slowly but surely creeping into the judiciary. Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, dissenting, described the conservative view of colorblindness as “superficial,” arguing that in doing so it “subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society.”

Therefore, the term “colorblind” cannot serve simply as a term to signal good intentions, to express one’s conviction that racial discrimination is wrong. It is a politically loaded term that involves understanding the law as a race-relations manual and the Constitution as some sort of race-relations charter. It ignores the debates surrounding the Civil Rights Act and the Fourteenth Amendment and instead assumes egalitarian values and the antidiscrimination principle to be uncontested. The Supreme Court’s insistence on referring to the Constitution as “the colorblind Constitution” is for that reason rather unfortunate (see, for example, the ruling of Justice Clarence Thomas, which goes to great lengths to depict the Constitution and indeed all relevant legal principles as “colorblind”).

If we were to treat the notion of “colorblindness” as the animating principle of the Constitution, the law, and the very concepts of justice and quality, we would thereby concede the moral, ethical, and ideological debates to those who assert that our interpretation of the world must be based, one way or another, on race. Instead, we should regard liberty, not “colorblindness,” as our highest ideal.