Colorblind Law Is Not a Code Word, It Is Harlan's Dissent Made Good

There is a curious thing about modern political vocabulary. A principle can be a noble ideal for seventy years and then, with no change in its wording, become a dog whistle. "Colorblind" went through that transformation. In 1896 it was the sentence of a lone dissenter, quoted in the briefs of the lawyers who dismantled segregation. In the current argument, it is described by critics as a polite way to say you do not care about racism.

That is a serious charge, and it deserves a serious answer. This post states the opposing view at its strongest, then answers it with four pieces of the record: Justice Harlan's dissent in Plessy v. Ferguson, the arguments of the NAACP lawyers in the Brown era, the text of the Civil Rights Act of 1964, and the reasoning in Students for Fair Admissions v. Harvard (2023). The thesis is simple. The colorblind principle did not come from the opponents of civil rights. It came from the people who won them.

Defining the terms

Colorblind law is a rule that the government may not classify or treat individuals differently because of their race. It is a rule about what the state may do, not a claim that nobody notices skin colour or that history did not happen. Law that is colorblind can still address racial discrimination vigorously, because discrimination is the act of treating someone differently because of race. A colorblind rule is the thing that makes that act illegal.

Colorblind racism, the critics' phrase, names a different thing: the claim that a person or institution who ignores race is, by doing so, ignoring the effects of racism and protecting the existing order. It is an argument about outcomes and attitudes, not a legal doctrine. Keeping the two apart is the first step in clear thinking. A legal rule and a sociological accusation are not the same species.

The opposing view at its strongest

Here is the best form of the objection, in words its defenders would accept.

Formal neutrality is not the same as fairness. For roughly two and a half centuries American law enforced slavery and then enforced segregation, and the effects of that history did not end on the day the laws changed. Families that were barred from owning homes, from good schools and from well-paid work did not start the next generation on equal terms. If the law now says "we will treat everyone the same from here," then the advantage and disadvantage built up over generations are simply locked in. A rule that ignores race will, in practice, reproduce the distribution that racism created. Justice Blackmun made the point in Bakke in 1978: "in order to get beyond racism, we must first take account of race." And in 2023, Justice Jackson wrote in dissent that deeming race irrelevant in law does not make it so in life.

That is a real argument, made by real jurists, and it is not a stupid one. The sting in it is the claim about outcomes. A neutral rule applied to an unequal starting position gives an unequal result.

Now the answer.

One: Harlan said it first, and said it against the majority

On May 18, 1896, the Supreme Court decided Plessy v. Ferguson by a vote of seven to one. Homer Plessy had been arrested in New Orleans for sitting in a railway car reserved for white passengers, in violation of a Louisiana law of 1890. The majority held that separate accommodations were constitutional so long as they were "equal," and that the law did not stamp the black race with a badge of inferiority unless black people chose to put that construction on it.

Justice John Marshall Harlan, a Kentuckian, wrote the only dissent. It contains the sentence that conservatives and civil-rights lawyers have been quoting ever since: "Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law." A few lines on, he wrote that the law "regards man as man, and takes no account of his surroundings or of his color when his civil rights as guarantied by the supreme law of the land are involved."

Notice what Harlan was doing. He was not defending the existing order. He was attacking a law that the existing order had passed. The dissent calls the Louisiana statute a measure that would "permit the seeds of race hate to be planted under the sanction of law," and it predicted that the decision would in time prove "quite as pernicious" as Dred Scott. His colorblindness was a weapon aimed at a system of caste. Justice Harlan's Lone Dissent in Plessy and the Colorblind Constitution reads the dissent closely, and Justice Harlan Said Our Constitution Is Color-Blind in 1896, and He Was Right follows the sentence through the decades.

A fair account should add that Harlan was a man of his time, and his dissent contains passages about other groups that read badly today. That does not alter the argument. The legal principle he stated, that the state may not sort citizens by race, did not depend on his private limits, and later generations held him to the standard he set.

Two: the lawyers who won Brown argued the same thing

The principle did not remain a dissent for long, and the people who rescued it were the lawyers of the NAACP Legal Defense Fund. In the cases that became Brown v. Board of Education (1954), the NAACP lawyers argued that state-enforced school segregation by race violated the Equal Protection Clause. The argument was not that segregated schools should be improved. It was that the law could not sort children by race at all.

This is the point on which the critics' history is weakest. If colorblindness were a cover for indifference, it would be strange to find it in the briefs of the lawyers who spent two decades dismantling segregation. They argued colorblindness because it was the principle that destroyed the thing they hated. The Court, unanimous in Brown on May 17, 1954, held that separate educational facilities are inherently unequal and that segregation violates the Equal Protection Clause. For the originalist foundation of that holding, see Can an Originalist Defend Brown v. Board? Yes, and Here Is the Case.

Nor was this just the legal wing of the movement. The best-known statement of the civil-rights era, delivered at the Lincoln Memorial on August 28, 1963, expressed a hope that the speaker's four children would one day be judged by the content of their character rather than the colour of their skin. It was the same principle in the language of a pulpit. A movement does not invent a vocabulary and then forget it.

Three: the Civil Rights Act of 1964 wrote it into the statute

The 1964 Act is the movement's legislative victory, and its text is colorblind. Title VII says it is unlawful for an employer to fail or refuse to hire, or to discharge, or otherwise to discriminate against, any individual because of that individual's race, color, religion, sex or national origin. Title VI says no person shall be excluded from, denied the benefits of, or subjected to discrimination under a federally assisted program on the ground of race, color or national origin. The word in both is individual or person. Neither speaks of groups.

The Act also contains Section 703(j), which says that nothing in Title VII requires an employer to grant preferential treatment because of an imbalance in the racial composition of its workforce. Congress wrote that limit into the statute itself, and it did so by writing equal treatment into the text. If you want to know what the movement thought it had won, read what it passed. For the later history of how federal orders moved away from that text, see Sixty Years of Federal Affirmative Action Orders, From 1961 to 2025.

Four: Students for Fair Admissions took the text at its word

In 2023, in Students for Fair Admissions v. Harvard, the Court held that the race-conscious admissions programs at Harvard and the University of North Carolina were unlawful: UNC's under the Equal Protection Clause, and Harvard's under Title VI, which the Court read as tracking that clause. Chief Justice Roberts's opinion held that the programs failed strict scrutiny. The Court noted that the programs treated race as a negative for some applicants, relied on stereotypes, and lacked a logical end point.

You can disagree with the result. You cannot honestly say the Court invented the principle. The majority drew it from the movement's own cases and from the statute's own words. Justice Gorsuch, in a concurrence, made the textual point directly: Title VI says "no person." For the case in context, see Students for Fair Admissions Ended an Experiment That Began With Bakke in 1978.

Five: the outcomes objection is a reason to enforce, not to classify

Return to the strongest objection. A neutral rule applied to unequal starting positions yields unequal results. That is true. The question is what follows from it.

What follows is not that the law should classify by race. It is that the law should attack the causes of unequal starting positions. Those causes are many: schools that fail children, neighbourhoods where housing is blocked by zoning, family breakdown, occupational licensing that closes doors to people without capital, and, where it exists, discrimination that can be proved and punished. Every one of those is a problem a colorblind government can work on without sorting its citizens by ancestry.

There is also a problem inside the preference position. If the state sorts people by race to correct the effects of past racism, it has to decide which races, in what proportions, and for how long. The first question has no stable answer, because racial categories shift with every census. The second has no neutral arbiter. The third has no natural end, which is why the Court in 2023 insisted on one. A rule that begins as a remedy and has no stopping point ceases to be a remedy and becomes a classification regime. And the Fourteenth Amendment says no state shall deny to "any person within its jurisdiction the equal protection of the laws." The word is person.

I would add one empirical point, which is that the objection proves too much. If past discrimination justifies present classification, the claim is not limited to one group. Every wave of American arrivals can tell stories of closed doors, and the state has no workable way to adjudicate whose grievance counts. The only rule that treats all of those families alike is the one that classifies none of them.

Six: colorblind law is the minority's best friend

There is a deeper argument, and it is the one Harlan saw in 1896. A rule that lets the state sort by race is a rule that can be turned against any minority when majorities change. The Plessy majority thought it was reasonable to classify by race. The Japanese-American internment of 1942, upheld in Korematsu v. United States in 1944, was a racial classification that the Court accepted. Both decisions were later repudiated, and Korematsu was repudiated by Chief Justice Roberts, writing for the Court in Trump v. Hawaii in 2018. Every time American law has permitted racial classification, the people who paid were those without power.

That is why a minority should want the colorblind rule most of all. It does not depend on trusting the majority to be generous. It sets a floor beneath every citizen regardless of who is in charge. The Equal Protection Clause is a restraint on exactly that kind of majority power. A colorblind rule is the legal form of "we do not trust ourselves with this power."

What critics are right about

A good argument concedes what is true. Critics are right that a person can use "colorblind" dishonestly, as a way to dodge any conversation about real discrimination. Some do. Critics are also right that a neutral rule without enforcement is a dead letter. The Fifteenth Amendment's guarantee of the vote meant little for decades because it was not enforced, and Southern states devised ways around it. Equal treatment has to be enforced, and that means courts, investigators and remedies that reach the person who was wronged.

The conservative answer is not to defend the colorblind principle as a slogan. It is to defend it as a principle that is demanding. It forbids the state from discriminating against anyone, including those who are fashionable to disfavour, and it requires the state to punish discrimination by anyone covered by the law. A person who wants to cite Harlan must be willing to apply him in both directions. For the myths that grow up around this debate, see Seven Myths About DEI Programs, Including That Critics Oppose Diversity.

The case in brief

1. Colorblind law is a rule about what the government may do: it may not sort individuals by race. It does not deny history, and it does not weaken enforcement against discrimination.
2. Harlan stated the principle in his lone Plessy dissent in 1896, as an attack on caste. The NAACP lawyers cited it in the Brown era, and the Civil Rights Act of 1964 wrote it into the statute with the words "individual" and "person."
3. Students for Fair Admissions (2023) applied that text and the precedents that grew from it. The Court did not invent the principle.
4. The best objection, that neutrality locks in old gaps, is a reason to attack the causes of those gaps and to enforce the law, not a reason to classify citizens by race.
5. The colorblind rule protects every minority, because a power to sort by race can be turned on anyone when majorities change.

What you can do: read Harlan's Plessy dissent in full, which is short and free online through the Library of Congress or the Supreme Court's own archive, and read the text of Title VII before you repeat or reject any claim about what it requires.