Colorblindness cripples. How much it does so becomes apparent when its principles are applied without nuance. The plaintiffs who argued their case before the Supreme Court this week sounded to me to be of the persuasion that there should absolutely be no regard to color. This is a problem.
I'm not close enough to the law to understand what the Constitution directs historically with regard to its ability to percieve race but I do have a principle I think which ought to be applied. I call the idea 'effective resonance'.
The reasoning behind it has to do with the notion that all racist acts are not equal either in intent or effect. The state does have a compelling interest in insuring that society does not exclude groups but I don't see that it is useful in policing all instances of racist discriminations. For this reason I have come up with three classes of racist offense. These of course are informal and don't stand up to legalistic definitions but you should get the picture:
Class Three - Background NoiseThe matter of Effective Resonance adds a second dimension to this classification. I consider it an important context because it takes into account the ability of a group to withstand the inevitable turmoil of ethnic, religious or racial animus. I believe this to be something that changes over time and that the law should be sensitive to that robustness or lack thereof.
This will include all such insults, slights and disrespect as is generally expected to be found everywhere in this nation. Examples include but are not limited to being ignored by cabbies, flying confederate flags, nazi propaganda, being mistaken for the help, being shown costume jewelry, being asked one's opinion of, or to account for the opinions of the Fungibles, and most nigger calls.
Class Two - Political Intransigence
Class Two racism involves denials of public accomodation or private standing which are not criminal, yet grossly unfair and unjust. Such acts would include imposition of glass cielings, racial profiling, white flight, medical misdiagnosis, educational tracking, false arrest, false imprisonment, racist vois dire, racist jury nullification, denials of service with plausible deniability, any institutional individual or institutional racism which must be tried in civil courts and all such active bigotry one associates with hate groups which fall short of incitement.
Class One - Crime
Theft, criminal defamation, cross burnings (now), hate crimes, murder, rape & all that stuff for which America has never made any extraordinary effort to repair.
Let us consider several well known examples from the not too distant past. In the first case consider the significance of the restrictions place against blacks from sitting in the front of the bus. In the course of human events, this is little more than humiliating. And yet in the case of Rosa Parks, the willingness to defy this racist rule was quite courageous. That is because at the time such rules exemplified the extraordinary control whites had over blacks.
One could hardly imagine it necessary today to escort black highschool children into a white school with federal troops. Yet this precaution, dare I say this remedy, was entirely appropriate for the integration of Little Rock highschool 2 generations ago.
What has changed greatly since those days is the power of black American individuals to move freely in society. This derives not soley from the change in the law, but because of the collective power of the group to work around such difficulties. Today the law is fairer and the power of individual blacks to absorb such pains as sitting in the back of the bus or not accept police escorts is greater.
What I am suggesting is that for the same reasons Class Three racist offenses have not been outlawed and criminalized is not because they are not racist, but because despite the fact that they are racist and offensive black mobility in society is not restricted inordinately. Blacks as a group and those interested in black success are too strong.
On the other hand, could we say the same thing for Arabs and Muslims in post 9/11 America? No. Today they are more vulnerable.
When we look at racial discriminations we should consider the robustness of the context of the group in question as well as the severity of the act itself. This is an important distinction that many critics of Affirmative Action make when they say it is not as necessary today as it was 20 years ago. Despite the fact that individual blacks may be just as underprivileged today as the very first Affirmative Action beneficiaries does nothing to diminsh its stigma today. One cannot escape the fact that individuals are judged in the context of the benefit to their group, in fact the entire question of Affirmative Action is one of social justice. Is America made weaker or stronger because of it?
If the legitimacy of positive discriminations for individuals of a group owes something to the status of that group, likewise the severity with which we judge negative discriminations should be considered in light of the status of the group to which the discriminated individual belongs. The aim after all is to keep all groups in the mainstream of American life with special regard to their race, gender and creed.