Colorblind Capture

64 Pages Posted: 9 Mar 2022 Last revised: 17 Nov 2022

Date Written: March 4, 2022

Abstract

We are facing two converging waves of racial retrenchment. The first, which arose following the Civil Rights Movement, is nearing a legal milestone. This term or the next, the Supreme Court will prohibit affirmative action in higher education. When it does, the Court will cement decades of conservative jurisprudence that has systematically eroded the right to remedy racial inequality.

The second wave is more recent but no less significant. Following 2020’s global uprising for racial justice, rightwing forces launched a coordinated assault on antiracism itself. The campaign has enjoyed early success. As one measure, GOP officials have passed, proposed or pre-filed hundreds of bills designed to stymie antiracist discourse, activism, and organizing.

To process this moment, scholars have surfaced continuities that bind racial retrenchment past and present. This includes decades of rightwing efforts to deny the relevance of race and racism in post-Jim Crow America. These accounts are not wrong. But they obscure a key variable that has long enabled racial backlash: the Left. Specifically, privileged voices on the Left continue to rehearse colorblind conceptions of race and racism—even when defending race-conscious reform.

I term this phenomenon "colorblind capture." To capture its ubiquity and impact, I explore decades of affirmative action litigation. This analysis reveals an underappreciated trend. Even as the Left champions affirmative action, the Right sets the terms of debate. This includes the pervasive reflex, on the Left, to defend affirmative action as a “racial preference.” This framing is neither inevitable nor strategic. The Left could, for example, defend race-consciousness as essential antidiscrimination—that is, a modest tool to mitigate existing racial (dis)advantage and, thereby, yield a more individualized, objective, and race-neutral process. But as litigation headed for the Supreme Court reveals, Harvard and UNC continue to rehearse rightwing talking points—even as they defend their own admissions policies.

This dynamic does more than compromise the legal case for race-conscious admissions. It also naturalizes within public discourse the notion that seeing race and attending to racism is wrong—the same logic that anchors resurgent efforts to brand antiracism as the new racism. Colorblindness, albeit a creature of the Right, has captured the Left. If left unaddressed, this phenomenon will continue to impede, and could imperil, the long and winding quest for racial justice in America.

Keywords: race, affirmative action, critical race theory, civil rights, antidiscrimination law, constitutional law

Suggested Citation

Feingold, Jonathan, Colorblind Capture (March 4, 2022). 102 Boston University Law Review 1949 (2022), Available at SSRN: https://ssrn.com/abstract=4049863 or http://dx.doi.org/10.2139/ssrn.4049863

Jonathan Feingold (Contact Author)

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

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