Document Type


Publication Date



Liberals have generally cheered the Supreme Court's decision in Grutter v. Bollinger as validating the continued use of affirmative action in the struggle against racial injustice. But the Supreme Court's modern race cases rest on a misunderstanding of the nature of contemporary racial discrimination. From Brown, to Bakke, to Grutter, the Court has advanced a colorblind conception of racial equality that treats race-conscious affirmative action as constitutionally suspect, because it deviates from an aspirational baseline of race neutrality that lies at the core of the equal protection clause. However, race neutrality is a hopelessly artificial concept in a Nation like ours, that continues to make race an operative factor in the allocation of nearly all significant societal resources. Rather, it is colorblind race neutrality that should be viewed as constitutionally suspect, because that is what now constitutes the culture's preferred form of racial discrimination. Contemporary "race neutrality" is simply a modern descendent of the more traditional forms of invidious discrimination that have been practiced in the United States since the Nation was founded. And the Supreme Court's current preference for race-neutrality over race-consciousness is a modern descendent of the Court's own tradition of complicity in racial discrimination. Part II of this article describes the Supreme Court's current conception of racial discrimination, emphasizing the manner in which the Court has confused the concept of race neutrality with the concept of racial equality. Part III argues that the concept of race neutrality is constitutionally suspect, because it has now become a tool for discriminating against racial minorities. Part IV argues that the only way in which we are ever likely to remedy the systemic discrimination that continues to permeate American culture is by pursuing the precise racial balance goals that the Supreme Court has deemed to be unconstitutional. Part V concludes that the Supreme Court is once again impeding the Nation's progress toward racial equality, as it has done so many times in the past.

Publication Citation

21 Const. Comment. 221-250 (2004)