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Social Science History 24.2 (2000) 429-434

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Colorblind versus Color-Conscious Justice

David R. James

Symposium on J. Morhan Kousser's Colorblind Injustice: Minority Voting Rights
and the Undoing of the Second Reconstruction (University of North Carolina Press, 1999)

Critical reviews of social science research such as that presented in Colorblind Injustice typically take one of two approaches. The most popular approach evaluates the merits of the research and includes an appraisal of the logical coherence of the guiding theory or questions, the validity of the inferences made from the empirical observations, and the like. The second approach evaluates the policy implications of the research conclusions. Here I take the second rather than the first approach because I find Kousser’s research to be a masterful [End Page 429] demonstration that racial motivations produced the electoral laws and redistricting efforts in Los Angeles, Memphis, Georgia, North Carolina, and Texas between the 1950s and 1990. Furthermore, Kousser shows how the development of Supreme Court doctrine concerning the use of racial criteria in redrawing electoral districts is logically flawed and a departure from legal precedents set in the 1950s and 1960s. The current trend toward a standard of colorblindness ignores the history of discrimination against blacks and Latinos and perpetuates racial injustice. Hence, the title of the book.

The policy implications of these conclusions are less clear. Colorblind Injustice argues that state officials must continue to use race as a criterion for redrawing electoral district boundaries in order to increase the chances that the interests of black voters will be represented. Recent Supreme Court decisions claim that colorblind policies are required by the equal protection clause of the Fourteenth Amendment. Colorblind Injustice responds that state officials must use race as a criterion to create minority opportunity voting districts if racial minorities are to receive equal protection.

Public policies are based on one of two principles of equity. The first principle claims that the state should treat all citizens equally. Equity is preserved if all are treated the same way regardless of status differences that confer advantages and disadvantages on citizens in everyday life. Colorblind policies are consistent with this principle of equity if blacks and whites are viewed as equals. States that enforce policies of this kind are liberal democratic states. The second principle holds that citizens who differ in fundamental ways should be treated in a manner that reduces inequalities among them. Citizens with different needs, handicaps, advantages, or disadvantages should be treated differently in order to compensate for the existing inequities. State policies that treat citizens differently in order to reduce inequalities between groups are consistent with the second principle of equity. Race-conscious policies that diminish racial inequalities by compensating for past and present race discrimination are consistent with the second principle of equity. States that use race as a criterion to confer different advantages and disadvantages on members of racial groups are racial states. Of course, racial states violate the second principle if they discriminate against some racial groups and produce greater inequalities.

These two equity principles provide the normative and legal basis for the protection of citizenship rights in the United States. State funding of education [End Page 430] provides a convenient illustration.1 Earlier in this century, states typically provided funds for schools on a per-pupil basis. States regarded children of school age as having identical educational needs, so it made sense—it was equitable—to provide schools with identical amounts of funds per student. Funding schools according to this formula is consistent with the first equity principle that equals must be treated equally.

In the present period, states recognize that some students have special needs that differ from those of the typical student. For example, some children have learning disabilities; others may come to school hungry because their families are too poor to provide them with adequate nutrition. The Supreme Court recently ruled that public schools must provide medical services to children with special needs as long as a physician is not needed to administer them. Because students have different needs, justice is served...


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