As the constitution color-blind? "… Class remedies, such as affirmative action and racial set-asides, assume that all members of the 'monolithic white majority' are guilty of racial class injuries and all members of 'discrete and insular' minorities are victims of such injuries."

USA Today (Society for the Advancement of Education), July, 2004 by Edward J. Erler

The sweep of this pronouncement was breathtaking. If equal opportunity is not sufficient, then some form of unequal opportunity is necessary to achieve equality of result. If freedom is not enough, restrictions on the freedom of some are necessary for the advancement of others those--who came to be known in affirmative action parlance as "specially protected classes" or "preferred classes." Courts and administrative agencies set about implementing this interpretation of equal rights, which now was said to require racial classifications in order to succeed. The watchword of this vision of civil rights was class rights rather than individual rights.

The racial genie, finally having been confined by powerful legal restraints in the Civil Rights Act of 1964, was released again. Many believed that the genie had changed its nature and could be employed as a three for good. That was naive and dangerous. The racial genie tells us to forget the principles of the Declaration. It insists that race is not accidental, but an essential feature of the human persona. It urges us to embrace race openly and honestly--to make it the basis for an administrative state that promises genuine racial progress. Yet, anyone with the slightest acquaintance with human history knows that this siren song presages only evil in the guise of progress.

There is no way to say that rights belong to classes without discarding the notion that the first object of civil the equal protection of equal rights. If rights belong to classes and not to individuals, then equal protection of the laws is impossible. Class considerations abstract from the individual and ascribe to him or her class characteristics that are different--and necessarily unequal--from those of individuals outside the class. Class claims are claims of inequality, not equality. Likewise, class remedies, such as affirmative action and racial set-asides, assume that all members of the 'monolithic white majority' are guilty of racial class injuries and all members of "discrete and insular" minorities are victims of such injuries. This is pure fiction, of course. As Justice Clarence Thomas noted in his concurring opinion in the 1995 case of Missouri v Jenkins, "It goes without saying that only individuals can suffer from discrimination, and only individuals can receive the remedy." Class redresses will afford benefits to some who have not been injured and trammel the rights of some who have not perpetrated injuries. This lack of correspondence between rights and remedies violates the role of law by making the assignment of rights and remedies simply arbitrary.

In Regents v. Bakke, a minority of four members of the Court, led by Justice William Brennan, argued that the Civil Rights Act of 1964 was designed to be a class remedy for racial class fights, and that since "whites as a class" treed no protection from the majoritarian political process, no individual in that class can have standing under the Act. As a member of the white majority that passed the law, the plaintiff in Bakke had, in effect, imposed the injury upon himself. Thus, he had no standing to challenge the racial preferences in the law. This line of reasoning briefly achieved majority status in two subsequent cases, but decisively was rejected in the 1995 case of Adarand v. Pena.