The Rhetoric of Colorblind Constitutionalism: Individualism, Race and Public Schools in Louisville, Kentucky

Abstract:     
The Court, in its race jurisprudence, has employed a narrative structure of Rhetorical Neutrality, an approach that "privileges individualism over the substantive claims of historically oppressed groups." The Louisville school case represents the Court's colorblind constitutionalism: history and context are ignored, the Fourteenth Amendment is reinterpreted so that race-conscious remedial approaches are rejected, and the present day effects of past discrimination are explained in neutral terms that perpetuate systemic discrimination. Drawing on demographic data and constitutional theory, this Article argues for a doctrinal approach that restores the substantive content of the Fourteenth Amendment. It rejects colorblind constitutionalism and its underlying neutral rhetoric.

Keywords: colorblind constitutionalism, Fourteenth Amendment, race, affirmative action, school desegregation, integration, Constitutional Law

Accepted Paper Series