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jack balkin illuminates the false symmetry of those who would be, and would have us all be colorblind. i will adopt his term 'magic word'. i like it. read his stuff, it's dense but extraordinarily thoughtful.
Existing Supreme Court doctrine insists on symmetry, in the sense that both discriminations against whites and against blacks are treated with strict scrutiny-- narrowly tailored to promote a compelling state interest with no less restrictive alternatives. This is the holding of Adarand. People who support colorblindness have varying views on what is discrimination “on the basis” of race, but all of them claim to support symmetry. Indeed, some people think that colorblindness is identical with symmetry across races. Adherences of colorblindness can differ on what is discrimination “on the basis of” race, but they can’t abandon the symmetry principle and still be adherents of colorblindness.
But-- and here’s the point-- in practice, almost nobody really is in favor of symmetry, because everybody understands that being black or Latino puts you in a very different social situation than being white in the United States. Even Adarand itself doesn’t really enforce symmetry. The law in Adarand made facial racial classifications which were clearly designed to help minorities in construction contracts. The Court argued that strict scrutiny applied regardless of whether whites or minorities were discriminated against, and then remanded to the lower courts for further hearings on whether the test of strict scrutiny was met. If the law in Adarand had created explicit classifications in favor of whites with a purpose of promoting whites in construction contracts, the Court would not have remanded the case to the lower courts for further hearings. It would simply have struck the statute down on its face. That’s because even the Justices who are most opposed to affirmative action understand the difference between a welcome mat and a no trespassing sign.
12:56:04 PM 
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