EDST 391-083
Color-Blind Nation: Worthy or Worthless Ideal?

• Kennedy, pp. 55-67 ("Persuasion and distrust") {Mills book and ER}
• Roberts & Stratton, only pp. ix-xiv ("Introduction") {ER}

Your two readings (pp. 55-67 of Kennedy's "Persuasive and Distrust" and pp. ix-xiv of Roberts and Stratton) disagree about whether racial preferences are constitutional.

Roberts and Stratton state emphatically that they are unconstitutional and illegal. As support they interpret the 14th Amendment (equal protection clause) and 1964 Civil Rights Act as requiring color-blindness. They favor the principle of non-discrimination by race.

Kennedy disagrees and argues that anti-discrimination law must be interpreted in its social and historical context of rampant discrimination against blacks. He argues therefore that the Brown decision and other Supreme Court case law prohibit, not racial discrimination, but racial subordination. In this manner, Kennedy can interpret anti-discrimination law as permitting and perhaps even requiring racial preferences for blacks. Where non-discrimination might require insensitivity to race (color-blindness), non-subjugation requires sensitivity to race (color-consciousness) as long as such subjugation prevails.

Most broadly, Roberts and Stratton suggest that racial preferences will return us to feudalism and Kennedy that they will rid us of racial feudalism.

Question:

1. Which argument do you find the more convincing, and why? Please explain.