On the Meaning of Discrimination: Anti-Racism Versus Color-Blind Policy

Chief Justice Roberts of the United States Supreme Court has said that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”1 In this Article, I examine what it means to discriminate on the basis of race—or what it means to stop discriminating on the basis of race. I consider interventions designed to enhance social welfare in an economy with racially discriminatory games operating at its base. One set of interventions is color-blind, in the sense that it treats all actors alike regardless of race. The other set of interventions is color-conscious in the sense that it treats individuals differently on the basis of race. The color-blind policy exacerbates the racially discriminatory effects of the games already being played in the economy. The only policy with a hope of reversing or not exacerbating these racially discriminatory effects is a color-conscious policy. This difference points to a difficulty in determining what nondiscriminatory policy means. Does it mean nondiscrimination in action, or nondiscrimination in effect?