A Colorblind Supreme Court?
by Asa Gordon

rederick Douglass, in response to a "colorblind" civil rights ruling by a  conservative Supreme Court exactly 121 years ago,  delivered a message lost on Justice Thomas and his dissenting minority in Gutter v. Bollinger, decided June 23, 2003.

"It is our lot to live among a people whose laws, traditions, and prejudices  have been against us for centuries, and from these they are not yet free. To assume that they are free from these evils simply because they have changed their laws is to assume what is utterly unreasonable and contrary to facts. Large bodies move slowly. Individuals may be converted on the instant and change  their whole course of life. Nations never. Time and events are required for the  conversion of nations."

 Douglass' poignant outburst proved to be a prophetic critique of the Supreme  Court's assertion in 1883 that American society had arrived at a stage where  it could treat its citizens with color-blind fairness, providing African  Americans full equality with other citizens of the United States.  In this  emasculation of the amendments and acts that formed the foundation of Reconstruction, Justice  Joseph P. Bradley's majority opinion declared:

"When a man has emerged from slavery and by the aid of beneficent legislation  has shaken off the inseparable concomitants of that state, there must be some  stage in the progress of his elevation when he takes the rights of a mere  citizen and ceases to be the special favorite of the law and when his rights as a  citizen or a man are to be protected in the ordinary mode by which other  men's rights are to be protected."

Thus the Supreme Court took the position that only 18 years removed from the  constitutional amendment that abolished slavery, sufficient time had passed to  sunset race-conscious "beneficent legislation" to redress the legacy of  American slavery. In a chilling resurrection of this discredited reasoning, Justice Sandra Day O'Connor delivered the opinion of the Court in Gutter v. Bollinger that "25  years from now, the use of racial preferences will no longer be necessary to  further the interest [in racial diversity] approved today."

In Gutter , the Court formally embraced the colorblind reasoning of Justice Powell in Regents of the University of California v. Bakke(1978) that sufficient time had passed since Brown v. Board of Education(1954) to  justify sunsetting race-conscious "beneficent " affirmative action polices to  redress the legacy of American apartheid.  Indeed, the Court announced its intention to fully embrace the rationale of Justice Joseph P. Bradley's 1883 opinion ending Reconstruction.


Douglass' observations on the naïveté of the Supreme Court's color-blind reasoning in the civil rights cases(1883) are clearly lost on the majority of our contemporary Supreme Court Justices. Douglass declared that "The practical construction of American life is a convention against us.  Human law may know no distinction among men in respect of rights, but human  practice may. Examples are painfully abundant "

Gutter provides a contemporary example of how standardized testing serves  as a " practical construction of American life " that negates efforts to redress racial inequity. The mere allegation of reverse racism transforms proof of group bias by an oppressive group into proof of bias against a member of the oppressing group.  It is a universal sociological axiom that statistically significant underachievement by any distinct group on standardized test scores is a manifest realization of that group's low ethnic status or position in the social structure that administers the test.

As sociologists report in "Measured Lies: The Bell Curve Examined", in Sweden, Finnish people are viewed as inferior.

the failure rate for Finnish children in Swedish schools is very high. When Finnish children immigrate to Australia, however, they do well--as well as Swedish immigrants. Koreans do poorly in Japanese schools where they are viewed as culturally inferior; in American schools, on the other hand, Korean immigrants are very successful. The examples are numerous, but the results generally follow the same pattern: racial, ethnic, and class groups who are viewed negatively or as inferiors in a nation's dominant culture tend to perform poorly academically. 'Understood this way, groups' test scores are not the beginning of an explanation for inequality but the end of one. The beginning is history.

 Therefore it may be the ultimate expression of institutionalized racial bias that standardized test results which provide proof to social scientists of bias against African-Americans as a racial group are used in our courts as the basis for proof of reverse discrimination against any member of the  white race favored by the test results. Admissions policies are thus precluded from any consideration of race to redress test results that establish societal racism against blacks as a class to the detriment of  individual whites.

This is the ironic nature of the evidential underpinning of American jurisprudence that is at the foundation of Bakke, Hopwood, Taxman, and Gratz. A. charge of reverse racism by any individual white will insure that this nation's forward drive in racial inequity for blacks will be fueled by a test engine that in fact proves that blacks are victimized as a racial group by the dominant white culture.

Douglass, in his "Address to the people of the United States" (September 24, 1883), declared:
 "Though the colored man is no longer subject to be bought and sold, he is still surrounded by an adverse sentiment which fetters all his movements. In his downward course he meets with no resistance, but his course upward is resented and resisted at every step of his progress ...  The color line meets him everywhere ... In spite of all your religion and laws he is a rejected man. ... and yet he is asked to forget his color, and forget that which everybody else remembers. ... He is sternly met on the color line, and his claim to consideration in some way is disputed on the ground of color."

 Thus in commentary made over 120 years ago, Douglass specifically addressed a  Supreme Court ruling on civil rights legislation deemed by the Court to be  "beneficent" to the black race and “disputed on the ground of color”.  That ruling precisely mirrors the current opinions on affirmative action held by Justice Thomas and his conservative  colleagues on the Court. Douglass' comments are as devastating to today's conservative  justices as they were one score and one century ago.

  Yesterday and Today 
Gutter v. Bollinger
  • Frederick Douglass’ observations on the naïveté of the Supreme Court’s color-blind reasoning in the civil rights cases of 1883 are clearly lost on most of today’s Supreme Court justices.
  • Gutter v. Bollinger provides a contemporary example of how standardized testing negates efforts to redress racial inequity.
  • The mere allegation of reverse racism transforms proof of bias by an oppressive group into proof of bias against a member of the oppressing group.
  • Statistically significant underachievement by any distinct group on standardized test scores is a manifest realization of that groups low ethnic status or position in the social structure that administers the test.
  • Douglass specifically addressed a ruling that the Supreme Court deemed to be “beneficent” to the black race and “disputed on the ground of color.”
  • That ruling mirrors the opinions on affirmative action currently held by Justice Clarence Thomas and his conservative colleagues.
  On June 23, 2003, in Gutter v. Bollinger, the Supreme Court ruled by a 5 to 4 majority to approve the University of Michigan law school's affirmative action  approach to enrolling a "critical mass" of blacks, Latinos and Native Americans. The Court thus ratified diversity as a rationale for race-conscious admissions in higher education. 

       In rejecting a white applicant's claim that diversity did not serve an adequately compelling governmental interest to justify race-conscious admissions, the Court adopted the color-blind rationale of Justice Lewis Powell's singular opinion Regents of the University of California v. Bakke(1978), which ruled out racial quotas but allowed for the consideration of race in admissions.

       The majority opinion cited the briefs filed by large U.S. corporations and former military officials to argue that the compelling government interest in diversity programs was "substantial." Businesses argued that an educated, culturally diverse workforce was essential for competitiveness in the U.S. and world economy.  Military leaders expressed concern for military cohesion, and insisted that an integrated officer corps produced by diverse military academies and ROTC programs was vital to national security.

       However, the majority also held the view that diversity-based affirmative action admission programs should not become a permanent feature of American life and should no longer be necessary 25 years hence. The Court declared that universities should prepare to phase out such programs in the next generation.

       In his dissenting opinion in Gutter v. Bollinger, Justice Clarence Thomas invoked a quote by Frederick Douglass, but the purported message was lost on the majority of Justices. Though the quote was referenced widely by the major media, Thomas had in fact overlooked a more relevant Douglass quote that specifically addressed the colorblind rationale of the majority and dissenting justices.


  In his dissenting opinion in Gutter, Justice Thomas chose to ignore contemporary remarks made by Douglass that were clearly relevant to the Supreme Court's disingenuous historical use of color-blind rationales in interpreting the equal protection clause of the Fourteenth Amendment. Instead, he selected remarks Douglass made before the Fourteenth Amendment was adopted into the U.S. Constitution.

  The following extract is taken from Justice Thomas' deceptive editing of Douglass' 1865 address: "In regard to the colored people, there is always more that is benevolent,  I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us... .Do nothing with  us! Your doing with us has already played the mischief with us. ... All I ask is, give him a chance to stand on his own legs! Let him alone! ... Your  interference is doing him positive injury."

A quick check of the full Douglass speech reveals that the sentence  immediately preceding Thomas' selective quote is as follows: "I look over this country at the present time, and I see Educational Societies, Sanitary Commissions, Freedmen's Associations, and the like,--all very good."  Thus, Douglass opens the paragraph by praising a host of abolitionist affirmative action programs  that provided the foundation for the reconstruction era's Freemen's Bureau,  the most far-reaching affirmative action program ever instituted by the federal government.

Another significant sentence that Thomas edited out of Douglass' speech was  one that would have made clear the context for, "Do nothing with us!"  That sentence was: "Gen. Banks was distressed with solicitude as to what he should do  with the Negro." (Note: Banks had instituted a notoriously discriminatory labor policy in Louisiana, claiming that it was necessary to help prepare blacks to better handle freedom).

Douglass expressed his concern with Gen. Banks' policy early in his address: "I hold that that policy is our chief danger at the present moment; that  practically enslaves the Negro, and makes the [Emancipation] Proclamation of  1863 a mockery and delusion. ...That I understand Gen. Banks to do--to determine for the so-called freedman, when, and where, and at what, and for how much he  shall work, when he shall be punished, and by whom punished. It is absolute slavery. It defeats the beneficent intention of the Government, if it has beneficent intentions, in regards to the freedom of our people."

From his early Civil War experience recruiting black soldiers Douglass knew  he had good reason to question the sincerity of General Banks. In Forged in  Battle, The Civil War Alliance of Black Soldiers and White Officers, author Joseph T. Glatthaar writes:  "Free black militia officers in New Orleans whom Maj. Gen. Benjamin Butler had accepted into federal service in September 1862 were rapidly weeded out for purposes of racial purity by his successor, Maj. Gen. N. P. Banks. ...  regardless of qualifications or competence. ... Initially Banks tried to challenge these black officers on grounds of competence, which proved fruitless in many cases, particularly since they knew tactics and regulations as well as most white volunteer officers and had proven themselves very capable of command during combat."


  Perhaps the most outrageous deletion in Thomas' mangled quotation is the following sentence (in the original, it came immediately after, "Let him  alone!"). "If you see him on his way to school, let him alone, don't disturb him! If  you see him going to the dinner table at a hotel, let him go! If you see him going to the ballot- box, let him alone, don't disturb him! If you see him going  into a work-shop, just let him alone."

In a recent reaction to the Court's decision, Elaine R. Jones, president and director-counsel of the NAACP Legal Defense and Educational Fund, has declared incredulously that "the court has the impression that the white students who are suing had higher scores than all the black students who got into Michigan, It is not true. Also, plenty of white students got in with lower scores." In 1860, Douglass captured the astigmatic colorblind vision of the Supreme Court Justices, observing that prejudice is "always blind to what it never wishes to see, and quick to perceive all it wishes."

During his tenure on the Supreme Court, Justice Thomas has acquired the image of a man meekly seeking the approval of his conservative brethren on the Court, while humbly enduring their patronizing treatment. He himself has admitted playing that demeaning role during his early attempts to join the conservative power structure.  In a 1987 speech before The Heritage Foundation, Thomas lamented: "There was the appearance within the conservative ranks that blacks were to be tolerated but not necessarily welcomed. ... There was the constant  pressure and apparent expectation that even blacks who were ... conservative publicly had to prove themselves daily. ... Certainly, pluralism or different points  of view on the merits of ... issues was not encouraged or invited—especially from blacks. And, if advice was given, it was often ignored. ... For blacks the litmus test was fairly clear. You must be against affirmative action and against welfare. And your opposition had to be adamant and constant or you would be suspected of being a closet liberal. ... It often seemed that to be accepted within the conservative ranks and to be treated with some degree of  acceptance, a black was required to become a caricature of sorts, providing sideshows of anti-black quips and attacks."

 Justice Thomas' verbal caricature of Frederick Douglass in his Grutter dissent demonstrates that he is still willing to engage in these demeaning sideshows from the bench of the US Supreme Court.