Florida A&M University College of Law Scholarly Commons @ FAMU Law Journal Publications Faculty Works Spring 2000 The American 'Legal' Dilemma: Colorblind I/ Colorblind II--The Rules aH ve Changed Again: A Semantic Apothegmatic Permutation John C. Duncan Jr Florida A&M University College of Law, [email protected] Follow this and additional works at: http://commons.law.famu.edu/faculty-research Part of the Constitutional Law Commons, Education Law Commons, Fourteenth Amendment Commons, and the Law and Race Commons Recommended Citation John C. Duncan, Jr., The American 'Legal' Dilemma: Colorblind I/Colorblind II--The Rules Have Changed Again: A Semantic Apothegmatic Permutation, 7 Va. J. Soc. Pol'y & L. 315 (2000) This Article is brought to you for free and open access by the Faculty Works at Scholarly Commons @ FAMU Law. It has been accepted for inclusion in Journal Publications by an authorized administrator of Scholarly Commons @ FAMU Law. For more information, please contact [email protected]. THE AMERICAN 'LEGAL' DILEMMA: COLORBLIND I/COLORBLIND II-THE RULES HAVE CHANGED AGAIN: A SEMANTIC APOTHEGMATIC PERMUTATION John C. Duncan, Jr.* * Visiting Professor, University of Oklahoma College of Law. Ph.D., Stanford Univer- sity; J.D., Yale Law School; M.B.P.A., Southeastern University; M.A., M.S., with Hon- ors, University of Michigan; B.A., with Distinction, DePauw University. Inspiration for this Article was blossomed by my recently deceased mother, Yvonne A.J. Duncan (M.C.S., Boston University; B.A., West Virginia State University), who instilled in me and many others appreciation and understanding of Negro, Colored, Black, and Afro- American history. She received her degrees in the 1940s, when women, much less black women, were not encouraged by society to further their education. Others who inspired were my grandfather, Colmore Duncan, who, since American Negroes could not fight in World War I under the American flag for the cause of freedom and world peace, fought under the French flag and received two Croix de Guerre; my father, John C. Duncan, Sr., who rose in the United States Army from private to major through World War II, Korea (Bronze Star), to just before Vietnam, living through the segregated Army, Truman's Executive Order, and the newly integrated Army. My brother, A. Milano Duncan, and my sister, lo-Aurelia H. Duncan, also provided sources of experience for this Article. Other distinguished persons years ahead of their time who significantly inspired were my beloved grandmother, Bessie L. Jackson, my wife's father, Walter T. Lunsford, my wife's mother, Sally M. Lunsford, and my wife's grandmother, Elizabeth M. Lunsford, all of whom were pioneers in the cause of equal rights and justice. My wife, Elizabeth D. Lunsford Duncan (J.D., Howard University School of Law; B.A., Fisk University), who has served as Majority Counsel and General Counsel for two committees of the United States Congress, provided not only encouragement but also valuable insights and re- search assistance. Utmost appreciation is due to research assistants B. Justin Jack, Jim Oldner, and Michelle Payne, but especially due to Matthew Cordon, who provided ex- ceptional research assistance and proofreading. The author has taught a variety of sub- jects domestically and internationally. His anthropological linguistics and legal back- ground, personal experiences, along with the many people who have influenced him, provided the guidance and inspiration for the theme of this Article. The experiences, people, and teachings cover over one hundred years, including the cases of Plessy, Brown, Bakke, and Hopwood. Does the "American Dilemma" of color blind us to make us go around in circles? 316 Virginia Journalof Social Policy & the Law [Vol. 7:3 INTRODUCTION .............................................................................. 318 I. A LEGAL, PHILOSOPHICAL, AND ANALYTICAL LOOK AT RACISM-THE FOUNDATION FOR COLORBLIND .................. 324 A. State Action, the Problem of Selectivity, and Racism... 327 1. Individual and Social Injustice in Government Selectivity ............................................................... 327 2. Result-Based Theories of Antidiscrimination L aw ......................................................................... 34 3 a. Stigm a ................................................................. 343 b. Group Disadvantage Theory ............................... 347 B. Majority Rule and the Problem of Racism ..................... 351 1. Underlying Utilitarian Concepts .............................. 354 2. Pluralist Preference-Pushing or Assimilationist Individualism: Blacks in a Lose-Lose Predica- m en t ........................................................................ 35 9 a. Pluralism and the Dilemma of Group Harm ....... 362 b. Assimilationism on White Terms ....................... 368 C . D oes R ace M atter? ............................... ......................... 376 II. SOME IMPOSSIBLE FEAT-THE TREACHEROUS JOURNEY OF "COLORBLINDNESS;" THE GRAVAMINA .............................. 379 A. The Etymology of Colorblind en Breve ........................ 382 B. Colorblind I: White Majority Dominance Reflected in Legislative A ction .................................................... 392 1. The First Reconstruction, Civil Rights, Harlan's 'Dissent-ery,' and Plessy ........................................ 392 2. The Uneasy Task of Counteracting the Dominant M ajority Preference ................................................ 399 C. Colorblind II: A Vicious Circle ..................................... 410 1. The Contrast of Immediate Effects Versus Cau- tionary and Deliberate Effects ................................ 410 2. Standards of Review, Judicial Politics and the In- tentional Ignorance of Race .................................... 413 3. Some Indicia of Colorblind II Jurisprudence ........... 423 4. Turning a Colorblind Eye in the Fifth Circuit and Elsewhere: The Hopwood Decision ....................... 426 III. THE AMERICAN 'LEGAL' DILEMMA... TO BE CONTINUED .... 430 A. The Concrete Costs of Diversity .................................... 430 1. Texas Schools following Hopwood ......................... 431 2. E lsew here ................................................................. 434 2000] ColorblindI/Colorblind 11 317 B. Class Based Affirmative Action .................................... 438 C. "Strivers:" Research Points to Alternative Affirma- tive A ction .................................................................... 443 D. "Stereotype Threat:" Thin Ice or "Black Ice"? ........ ...... 445 E. Pluralism and Assimilationism Revisited ...................... 446 IV. SUMMARY: THE RULES HAVE CHANGED AGAIN-A SEMANTIC APOTHEGMATIC PERMUTATION ......................... 450 C ON CLU SION ................................................................................. 452 318 Virginia Journalof Social Policy & the Law [Vol. 7:3 INTRODUCTION The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect to civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the su- preme law of the land are involved.' Justice John Marshall Harlan's dissent to the "ridiculous and shameful," 2 "racist and repressive," 3 and "catastroph[ic] ' ' 4 majority opinion in Plessy v. Ferguson created, in one sense, the "most powerful maxim in American law, ' '5 but the result in 1896 could have been anything but true.6 It stood for 58 years until the "sec- ond [e]mancipation" 7 of African Americans in Brown v. Board of 1 Plessy v. Ferguson, 163 U.S. 537, 559 (Harlan, J., dissenting) (emphasis added). 2 See Michael J. Perry, The Constitution in the Courts: Law or Politics? 145 (1994). 3 See Judith A. Baer, Equality Under the Constitution: Reclaiming the Fourteenth Amendment 112 (1983). 4 See Paul Oberst, The Strange Career of Plessy v. Ferguson, 15 Ariz. L. Rev. 389, 417 (1973). 5 John Minor Wisdom, Plessy v. Ferguson-100 Years Later, 53 Wash & Lee L. Rev. 9, 10 (1996) (noting that counsel to Plessy supplied Justice John Marshall Harlan with the phrase "Our Constitution is color-blind"). See also infra notes 266-76 and accompa- nying text. 6 But see Michael J. Klarman, Race and the Court in the Progressive Era, 51 Vand. L. Rev. 881, 895 (1998) ("The Court's decision [in Plessy] was, indeed, so fully congruent with the dominant racial norms of the period that it elicited little more than a collective yawn of indifference from the nation."); Benno C. Schmidt, Jr., Principle and Prejudice: The Supreme Court and Race in the Progressive Era. Part 1: The Heyday of Jim Crow, 82 Colum. L. Rev. 444,459 (1982). 7 Roger Wilkins, Dream Deferred but Not Defeated, in Brown v. Board of Education: The Challenge for Today's Schools 14, 15 (Ellen Condliffe Lagemann & Lamar P. 2000] ColorblindI/Colorblind II 319 Education [Brown 1].8 The maxim "Our Constitution is Color- blind"