Years ago, at a conference for lawyers, the topic of Martin Luther King’s assassination came up. People began to recount where they were when it happened. One woman recalled that she was in high school in Texas and that they were working on the school play that day. “We decided that the show must go on. I think he would have wanted us to move on.” She paused. “We weren’t one of those schools that cheered at the news.”
This particular revelation brought forward a heretofore invisible divide. Although everyone professed commitment to the legacy of the civil rights movement, there were hidden fault lines of passion among us. Many of the white participants, like the woman from Texas, had been in places where King’s assassination was remarked upon but generally passed over, hastily tucked into the background. For the black participants, his death was seismic. Even though King was past the height of his popularity within the black community, the assassination was a deeply disturbing harbinger of the riots to come, of unspeakable grief, of welling anger, a reminder of an endless array of martyrs. It was one of the few times I saw my father cry.
I have been thinking of that divide in perception in the wake of the Supreme Court’s recent round of decisions, all signaling a sharp turn to the right. There will be reverberations for many years from the opinions regarding abortion, employment discrimination and price-fixing. But the ruling that I find most grievous in its implications is the holding in Parents Involved in Community Schools v. Seattle School District and Meredith v. Jefferson County Board of Education. I have discussed in this column the absurdity of a rule that equates voluntary integration programs with legalized segregation so I won’t repeat myself now, much as I want to. What concerns me at the moment is the general lack of outcry that has met the decision that public school districts cannot take voluntary action to overcome racial inequality. This represents, for all intents and purposes, the overturning of Brown v. Board of Education. Yet the response in many quarters has been to put a positive spin on it. At least it was a plurality decision. At least Justice Kennedy allowed that diversity is an interest.
The July 1 New York Times Week in Review carried an upbeat analysis by Jeffrey Rosen, headlined “Can a Law Change a Society?” It was representative of many of the analyses that filled the papers of record. Rosen interviewed five constitutional law professors about the long-term impact of the ruling. There were a number of assumptions built into the structure of the interviews, assumptions that incorporated unquestioningly the premises of Chief Justice John Roberts’s ruling. The most conspicuous was that there are two clear “sides” to the debate, in which “colorblindness” signifies the antithesis of “diversity.” Rosen writes that “the effects of last week’s decision may be limited by the fact that American society is divided on just how colorblind or integrated society should be.” But King used colorblindness to mean a lack of prejudice, an acceptance of diversity and an openness to racial, ethnic and religious variety. Colorblindness, as Roberts and Rosen use it, means that any openness to race as a social factor is by itself the vice of prejudice. Diversity, rather than being the product of colorblindness, is now a pernicious form of color-consciousness, no matter whether in pursuit of integration or segregation. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” wrote Roberts in his decision. There’s a subtext of silliness to this, which in essence makes any seeing of race precisely equivalent to racism.