Tracking the Colorblindness vs. Antiracism Debate

The shifting landscape of race-conscious policymaking is reshaping policies and practices across American institutions.

Following the U.S. Supreme Court’s ruling striking down race-conscious admissions, we launched a project during the 2024 academic year to track America’s escalating legal and policy debate that pits colorblindness against antiracist approaches that have prominence in recent years and are now influencing conversations across many parts of society. The Court’s decision quickly reverberated beyond campus walls in corporate boardrooms, nonprofit offices, and state legislatures. In the Center’s Racial Justice Weekly, we analyzed the implementation of various initiatives, from DEI programs to race-neutral alternatives, examining the tensions between different frameworks and exploring potential paths forward in this complex debate.

The Project

WEEK OF MAY 20, 2024

Race and the jury box, George Floyd four years later, and Impact of SFFA decision

“A recently released report found that just 19 states collect race and ethnicity information from prospective jurors, meaning that a majority of states may not be able to ensure that their juries are a “representative cross-section of the community,” as the U.S. Constitution mandates…Earlier in May, members of the Colorado Supreme Court heard oral arguments in a case that illustrates some of the practical implications of the study. While a lower court had ordered a new trial based on intentional racial discrimination in jury selection, Colorado’s Supreme Court justices struggled with how to evaluate that ruling, with few details available after the fact about what happened at trial.”

WEEK OF MAY 13, 2024

Healthcare algorithms and racial inequality, Legislation targeting race-based hair discrimination

“In 2019, medical researchers realized that a clinical algorithm was making Black patients appear healthier than they were and, in turn, making it harder for them to secure spots on the national kidney transplant waitlist. This motivated efforts — discussed more below — to remove race from the algorithm’s scoring criteria, an approach that’s been adopted across the U.S. to reduce racial disparities. But removing race from the kidney algorithm had other consequences: it appeared to reduce chemotherapy access, lessen Black patients’ eligibility for clinical trials and affect medication dosing.”

WEEK OF MAY 6, 2024

Antisemitism Awareness Act controversy, Rethinking higher education, and Oklahoma court arguments on reparations

“In response to the turmoil on American college campuses, the U.S. House of Representatives passed a bill—the Antisemitism Awareness Act—that would codify the definition of antisemitism. Now it’s the Senate’s turn to debate the legislation but despite the comfortable 320-91 vote margin in the House, the bill is drawing criticism from both sides of the aisle…Christopher Rufo, the conservative activist, says the Act operates using the same “coercive and corrosive” principles as DEI initiatives, providing special protections for members of a group based on their identity.”

WEEK OF APRIL 22, 2024

Supreme Court lowers bar for discrimination claims, Brown v. Board at 70, and racial profiling in Japan

“In Muldrow v. City of St. Louis, the U.S. Supreme Court handed down a unanimous decision in favor of a St. Louis police officer that will lower the bar for American workers to prove discrimination claims. In what was widely seen as a win for workers and an expansion of protections under Title VII of the Civil Rights Act, an interesting wrinkle emerged: conservative legal activists claimed the ruling would aid them in their effort to dismantle DEI programs. These initiatives, they argue, overtly discriminate by race and sex, and the now-lowered harm standard could increase their vulnerability to legal challenges. But some legal scholars and practitioners disagree, suggesting that Muldrow is a narrow decision, not the broad ruling DEI opponents were hoping for.”

WEEK OF APRIL 15, 2024

Scotland’s new hate crime law, New census racial classifications, and a Challenge to California’s death penalty

“In the first week after Scotland’s new hate crime law came into effect on April 1, the nation’s police force received more than 7,000 online reports of hate crimes. Scotland’s Justice Secretary said the increase in reported and recorded hate crimes demonstrated the need for the controversial legislation that criminalizes the “stirring up of” hatred against specific groups because of their race, religion, disability, sexual orientation, or transgender identity. Debate over the new law has spilled over outside Britain, with Elon Musk and Joe Rogan among the widely followed celebrities to criticize the legal change for potentially curtailing free speech…But Scotland’s leader, Humza Yousaf, has maintained that the newly created offenses “have a very high threshold for criminality.”

WEEK OF APRIL 8, 2024

Semiconductors, New federal racial categories, and College admissions decisions

“The Biden Administration announced a $6.6 billion subsidy from the Commerce Department’s CHIPS program for Taiwanese semiconductor giant TSMC to expand a planned chip production facility in Phoenix, Arizona…But the program has come under fire from a new corner: those who oppose the CHIPS Act’s provisions promoting diversity and equitable economic growth…An executive at the ‘anti-woke’ investment firm founded by former GOP presidential candidate Vivek Ramaswamy says “DEI killed the CHIPS Act.” Several Republican Senators, in a letter to Commerce Secretary Gina Raimondo, contend the Department’s funding guidance discriminates on the basis of race and violates the 5th Amendment and the Civil Rights Act of 1866.”

WEEK OF MARCH 18, 2024

California’s Racial Justice Act, Iowa’s gender balance rule, and the Co-option of ‘colorblindness’

“Georgia state legislators are advancing legislation that would ban non-U.S. citizens from certain countries from owning farmland, or any land in the state within 25 miles of a military base, unless they have lived in Georgia for most of the previous year. Proponents of the bills, which target foreign nationals from China, Cuba, Iran, North Korea, and Russia, say the ban is a national security measure needed to protect America’s food supply from hostile governments. But, opponents contend the bills discriminate illegally and raise echoes of McCarthyism, the Chinese Exclusion Act, and the internment of Japanese Americans. In February, a federal appellate court halted the enforcement of a similar law enacted by the state of Florida, finding that it was likely preempted by a federal statute.”

WEEK OF MARCH 11, 2024

Diversity hiring statements, Auto insurance algorithms, and ABA law school standards

“The Martin Scorsese-directed Killers of the Flower Moon received 10 nominations for this year’s Academy Awards but Oklahoma educators now say they are afraid to teach a book the movie is adapted from. Like the film, the book tells the true story of white settlers who murdered wealthy members of the Osage tribe. However, in 2021 Oklahoma passed a law banning teaching that “any individual should feel discomfort, guilt, anguish or any other form of psychological distress on account of his or her race or sex.” Oklahoma’s state school superintendent insists that teaching the Osage murders is permitted, though the state’s board of education has already punished Tulsa educators over implicit bias training for teachers that the board alleged broke the law.”

WEEK OF MARCH 4, 2024

Courts upend the U.S. Minority Business Development Agency and Florida’s “Stop Woke Act”

“A federal judge in Texas ruled that the Minority Business Development Agency (MBDA), a U.S. government agency designed to help minority-owned businesses, must offer its assistance to all business owners, regardless of race. The decision followed a legal challenge by three white business owners who claimed the agency’s policies and practices were unconstitutional. Established by the Nixon administration in 1969, the MBDA calls itself the only federal agency focused on assisting minority-owned businesses, but the recent ruling bars it from “considering or using an applicant’s race or ethnicity in determining whether they can receive” assistance.”

WEEK OF FEBRUARY 19, 2024

California ethnic studies, Supreme Court declines to hear Virginia case on race and high school admissions

“By 2025 California public high schools must teach a new subject—ethnic studies—and by 2030 students will not be able to graduate without it…When California released a draft of the curriculum, Jewish groups were among those that objected, and discussion of the Israeli-Palestinian conflict was largely removed from the final state model curriculum. Now ethnic studies scholars and educators argue their field has been censored and are advancing an alternative for California school districts they are calling “liberated ethnic studies.” Jewish groups like the Anti-Defamation League and the Deborah Project have filed lawsuits seeking to prevent those ethnic studies materials—which offer lessons that are critical of Israel, and some say are antisemitic—from being taught.”

WEEK OF FEBRUARY 12, 2024

DEI backlash; Virginia poised to end legacy admissions; the Race Card Project turns 14

“In 2020, California enacted a first of its kind law—the Racial Justice Act—that is changing the way race is recognized in the state’s courtrooms. Last week a judge removed gang charging enhancements, that could have resulted in life without parole sentences, for four men charged with murder following a 2021 drive-by shooting in Antioch, California. Their defense attorneys successfully argued that racism tainted the handling of the murder investigation and the charging of the defendants, all of whom are Black and in their early 20s. This closely-watched case may impact hundreds of other criminal cases in California and the law is likely to attract attention from other states.”

WEEK OF FEBRUARY 5, 2024

NFL’s diversity rule challenged, Free speech challenges on campus

“As the Super Bowl approaches, one of the NFL’s signature diversity initiatives—the Rooney Rule—is under fire. This week America First Legal, a group founded by former Trump advisor Stephen Miller, filed a federal civil rights complaint against the league alleging that the hiring practice is illegal. Some legal scholars and conservative activists say that requiring “diverse candidate slates,” as the practice is known in the private sector, is a legally vulnerable initiative after the Supreme Court’s ruling striking down race-conscious college admissions. The NFL, which is set to start the 2024 season with nine minority head coaches, says its diversity efforts are working and intends to defend the hiring policies.”

WEEK OF JANUARY 22, 2024

University presidents controversy, Michigan race-based redistricting, and Obama/Trump education policies

“On Monday, the U.S. Supreme Court rejected an appeal by Michigan’s redistricting commission to undo a ruling that found the commission had discriminated based on race when it drew state legislature district lines. After the redistricting commission submitted a new plan that reduced the number of majority-Black state legislative districts in the Detroit area, a group of Black Detroit residents sued, arguing that the maps violated the Constitution and the federal Voting Rights Act. A three-judge federal panel largely ruled in the residents’ favor…”

WEEK OF JANUARY 15, 2024

School admissions, Race-blind charging by California prosecutors, and the Rooney Rule

“Can a school admissions program that is facially race-neutral and based on socioeconomic factors, but that potentially has racial effects, pass constitutional muster under the U.S. Supreme Court’s recent decision against affirmative action? A federal appeals court thinks so. The U.S. Court of Appeals for the 1st Circuit, in a unanimous decision by a three-judge panel, upheld an admissions plan devised by Boston’s selective public exam schools following the Supreme Court’s Students for Fair Admissions ruling.”

WEEK OF DECEMBER 10, 2023

Supreme Court case could spark reverse-discrimination claims; Univ. of Wisconsin regents reverse position and approve DEI and funding deal with Republican leaders

“The University of Wisconsin system has been locked in negotiations with Wisconsin’s top Republican leader over the system’s diversity, equity, and inclusion programs. An agreement appeared to have been reached, but then the unexpected happened. The board overseeing Wisconsin’s public universities narrowly rejected the deal. In a hastily-called board meeting, UW regents wrestled with the message their acceptance of the agreement might send campuses, as well as the precedent it could set for future funding negotiations with the legislature. Yet, in a surprising turn of events, a second vote was held merely five days after the initial decision. This time, three regents changed their votes leading to the approval of the same compromise that was previously rejected.”

WEEK OF DECEMBER 3, 2023

High school classes separated by race; Conservative groups say health program targeting deaths during childbirth is illegal

“The evidence is striking: Black women in the U.S. are two to three times more likely than white women to die during or soon after childbirth. In response, the City of San Francisco and California state public health researchers created a pilot program aimed at reducing this disparity by giving a $1,000 monthly stipend to a group of Black and Pacific Islander women during their pregnancy and postpartum periods, easing some of the financial burdens that can impact the health of mothers and their babies. But conservative groups say these public health efforts break the law. Recently the Californians for Equal Rights Foundation and a Dallas-based law firm, the American Civil Rights Project, filed a lawsuit alleging that San Francisco’s program, the first of its kind in the nation, discriminates illegally by giving the stipend only to people of specific races.”

WEEK OF NOVEMBER 19, 2023

Legal challenges on race using 19th century laws; Univ. of Texas scrambles to remove all signs of DEI

“Can the University of Texas system—with nine universities, five health centers, around 100,000 employees, and nearly 240,000 students—scrub virtually all mention of diversity, equity, and inclusion from its policies and organizations by Jan. 1, 2024? A new Texas law has banned DEI offices and requires public institutions to limit mentions and support of these initiatives. In response, the UT system recently issued guidance to its employees and student groups on meeting its complex new legal obligations before the looming deadline.”

WEEK OF NOVEMBER 5, 2023

Congress takes on legacy admissions; Teachers try to remove To Kill a Mockingbird from the classroom

“Should Congress step in and do what colleges and universities haven’t: end legacy admissions? A bipartisan bill introduced by Senators Todd Young (R-IN) and Tim Kaine (D-VA) would add a new standard for accreditation under the Higher Education Act that would prohibit institutions from giving preferential admissions treatment based on a student’s relationship to alumni or donors.”

WEEK OF OCTOBER 29, 2023

Supreme Court’s next affirmative action case; Nasdaq and SEC promote diversity and inclusion

“Does the Supreme Court have its next affirmative action case? The Fairfax County School Board in Virginia filed its brief opposing a petition from a group of Asian American parents asking the Court to overturn an appellate court ruling that the admissions policy at Thomas Jefferson High School for Science and Technology—one of the nation’s top public magnet schools—does not disproportionately impact Asian American applicants.”

WEEK OF OCTOBER 15, 2023

Court’s commitment to colorblindness tested; post-Affirmative Action for Med Schools and HBCUs

“Can states take race into account when drawing voting maps, or should the redistricting process be colorblind? The U.S. Supreme Court’s conservative majority appeared inclined to reinstate a South Carolina voting map that a lower court had ruled was unconstitutional despite evidence that voters were sorted based on race.”

WEEK OF OCTOBER 8, 2023

Naval Academy sued and California targets school book bans

“Should the U.S. Naval Academy be able to consider race in selecting the students who will become America’s future naval officers? The group that successfully challenged the Harvard and UNC affirmative action programs doesn’t think so and, on the heels of its challenge to West Point’s practices, filed a lawsuit seeking to end the Naval Academy’s use of race-conscious admissions.”

WEEK OF OCTOBER 1, 2023

Debate over race-blind and race-conscious policies heats up

“Is an Atlanta-based venture fund violating federal law in running a program designed to award grants to Black female business owners? A panel of federal appellate judges believes it did, temporarily blocking the fund from closing its application window while writing that the program was “racially exclusionary” and “substantially likely” to violate the law.”