Boston University Law Review (forthcoming 2023)
In “Colorblind Capture,” Jonathan P. Feingold identifies an important error made by the Left. Even as it defends race conscious affirmative action, the Left has often acquiesced to the Right’s framing of affirmative action as “racial preference,” with predictable political and legal consequences. Feingold offers an alternative framing that better resists this “colorblind capture.” By carefully explicating how and when race matters—before, during, and after admissions—he explains how we might rebrand affirmative action as a countermeasure, a corrective, indeed, an affirmative obligation, potentially mandated by antidiscrimination law itself.
Feingold’s argument is sound, his analysis trenchant, and his recommendations thoughtful. He reminds us that even as the Left pragmatically engages advocacy in venues that have adopted a colorblind frame, the Left should do so strategically, with reservations, under a form of intellectual protest, so as not to reinscribe a “racial preference” narrative. I start my Response by wondering why the Left is so easily captured. Perhaps it’s because in between the two competing theories Feingold lays out—colorblindness (on the Right) and colorconsciousness (on the Left)—there sits a muddled theory in the middle I call color confusion.
I then explain how those of us sitting in “color confusion” can gain greater clarity by embracing behavioral realism, which takes seriously the idea that facts matter. The new facts from implicit social cognition, including implicit bias and identity bias, provide additional tools with which to persuade the muddled middle. It allows the Left to meet them on their own terms and still tilt them toward accepting tailored race-conscious remedies. Taking the science of implicit bias and identity threat seriously makes clear that well-designed race conscious interventions are countermeasures to race discrimination and not racial preferences.
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