Abstract

Excerpted From: Arnold Brown Jr., Monochromacy of Justice: The Global Cost of Racial Colorblindness, 74 DePaul Law Review 995 (Spring, 2025) (271 Footnotes) (Full Document)

The doctrine of “colorblindness” has become a pivotal yet contentious principle in the jurisprudence of the United States Supreme Court and other nations' highest courts, redefining anti-discrimination measures and reshaping legal systems both domestically and globally. The doctrine of colorblindness is “the notion that the consideration and discussion of race perpetuate racial division,” and therefore racial classifications by government agencies should be prohibited. This Comment delves into the repercussions of the U.S. Supreme Court's embrace of the principle of colorblindness, which has led to the dismissal of remedial measures aimed at tackling racial inequality and inequity. These repercussions have resonated not only within U.S. state court systems but also in the law on a global scale, as the doctrine continues to embed itself in the judicial decisions and policymaking of other nations.

To understand the doctrine of colorblindness and its application in modern law, Part II begins with a brief history of race-conscious policies in the United States, focusing on the rise of affirmative action practices. It examines the three levels of judicial scrutiny and their relevance to affirmative action cases, as well as the broader effects of affirmative action across various sectors of American society. Given that the doctrine of colorblindness has been present for over a century, this Comment traces its evolution through two key periods: before and after Brown v. Board of Education. In the postbellum era, colorblindness was initially invoked to challenge racial caste laws and later served to support integration efforts. This Comment argues, however, that in the present day, the doctrine is increasingly used to obstruct race-conscious, progressive policies. To illustrate this argument with an example, this Comment analyzes a recent application of the colorblindness doctrine in twin landmark cases--Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina--poised to have a profound and far-reaching impact on race-conscious policies.

Building on the American origins and historical development of the doctrine, Part II of this Comment also examines race relations in other nations and how colorblind interpretations have shaped their constitutional frameworks. The narratives of the chosen countries primarily focus on the plights of the African diaspora; however, narratives of other minorities are discussed when relevant to the analysis. This section explores the histories of marginalized communities in Canada and Australia, examining how the need for race-conscious remedial measures emerged in each country. Both nations have embraced the colorblind doctrine through judicial decisions and policymaking, leading to challenges in addressing racial justice and discrimination. Canadian courts have grappled with principles of colorblindness, especially in matters concerning equality rights under the Canadian Charter of Rights and Freedoms. This concept has been scrutinized within the context of affirmative action and anti-discrimination measures. The High Court of Australia has also explored colorblind principles in its interpretation of Section 51(xxvi) of the Australian Constitution, especially regarding race-based affirmative action and policies addressing historical injustices faced by Indigenous populations.

The final Part of this Comment examines the harmful effects of adopting a colorblind interpretation of constitutional provisions on minority communities and scrutinizes the motivations behind the reasons why some nations have embraced this doctrine. It argues that these countries have implemented the colorblind doctrine as a means of maintaining existing racial hierarchies under the guise of equality. To address these challenges, the Comment purposes the use of saving clauses--provisions that explicitly permit laws and programs designed to redress disadvantages faced by marginalized groups. These clauses can help ensure the necessary implementation of race-conscious policies to promote substantive equality.

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The doctrine of colorblindness, once invoked to dismantle racial caste systems, has now become a tool to undermine race-conscious policies designed to achieve substantive equality. As this Comment has demonstrated, the judicial embrace of colorblind interpretations in the United States, Canada, and Australia has weakened legal protections for marginalized communities, making it increasingly difficult to redress historical and systematic injustices. By prioritizing formal equality over substantive justice, courts risk reinforcing existing disparities rather than dismantling them.

However, there is still a path forward. The incorporation of saving clauses can ensure that race-conscious policies remain legally protected and effective in addressing inequality. These clauses would not only help shield affirmative action and other programs from judicial rollback but also reaffirm a nation's commitment to achieving genuine equality. At a time when hard-won rights and protections are under attack, saving clauses offer a critical legal mechanism to uphold justice, ensuring that progress toward racial equality is not merely preserved but actively advanced.