In the past few months, the U.S. Supreme Court has made it clear that our society may not use race-conscious methods to remedy the effects of racism, except as a last resort and only under strict constitutional constraints.
In May, the court knocked down a scholarship program designed to attract top blacks to the University of Maryland. In June, the court ruled that the federal government may not give special preference to a minority-owned business bidding for a road construction contract in Colorado. And last week, the court decreed that Georgia may not design voting districts based primarily on race as a way of ensuring black political representation.
Each of those rulings could have far-reaching effects. Schools are rewriting the eligibility rules for academic scholarships that once had been reserved for minorities. Federal, state and local governments are reviewing their affirmative action programs and minority set-asides. Some of the black representatives who won congressional seats in 1992 may lose those seats if their districts are challenged in court.
The early returns from all of this re-evaluating and reviewing and rethinking suggest that black progress will suffer -- and all in pursuit of what the Supreme Court calls a "color-blind society."
Clarence Thomas, the only black justice on the nation's highest court, put it this way: "Under our Constitution, the government may not make distinctions on the basis of race. It is irrelevant whether a government's racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged."
Sounds reasonable at first blush. Sometimes, the old homily that you fight fire with fire is a recipe for conflagration.
But the Supreme Court has not answered the larger question: How do we combat discrimination, then? Or need we even bother?
Civil rights leaders fear that some may use the court's rulings as an excuse to halt efforts to achieve racial equality altogether. Those leaders have long memories. They recall that segregationists have always argued that blacks were not hampered by discriminatory laws but by blacks' lack of ability and drive.
Justice Thomas seemed to echo this way of thinking with the words "those thought to be disadvantaged," as though he considers discrimination a figment of our imagination.
The conservatives on the Supreme Court have taken advantage of a strange juxtaposition. Racism used to be overt -- the "whites only" sign in the window, the open hostility to a black foolish enough to try to vote -- while the battle against racism was fought quietly in court rooms and through personal contacts between community leaders.
What we call the modern civil rights movement marked the moment when blacks decided to confront racism openly, through sit-ins and boycotts and large-scale marches.
And those overt challenges have forced the racists underground. Studies demonstrate that blacks are treated more harshly in almost every arena. Black children are more likely to be punished in school, black defendants are more likely to be sentenced to prison and for longer periods of time, black couples are less likely to receive loans from major financial institutions, black employees are last hired and first fired.
But each decision is justified by reasons other than racism. Even those researchers who find evidence of discrimination are forced to concede that the discrimination most likely occurs on the subconscious level. How do you fight attitudes?
Many communities elected not to try to fight those attitudes but to work around them. The scholarships, the set-asides, the affirmative action plans were all attempts to systematize fairness in the hopes that eventually fairness would become a habit.
Now the Supreme Court has all but outlawed this approach. It is as though the conservatives on the court have decided that our attempt to find a peaceful solution to our racial divisions was unconstitutional. What does that leave us? More conflict? Is that what they really want?