Introduction
I. Colorblind or Color-Aware?
II. Martin Luther King, Jr.'s Color-Awareness
III. Misusing King's Legacy
Conclusion

Introduction

Once again, recent incidents have revealed that the colorblind thesis, the notion that "race" does not or should not matter and that society and its laws are or can be colorblind, is simply unfounded.

Race discrimination in the context of the workplace received significant media attention when an executive of Texaco, Inc. tape-recorded meetings where company executives belittled minority employees and discussed the unlawful destruction of documents sought by plaintiffs in a pending employment discrimination suit. The plaintiffs alleged, inter alia, that minority employees worked in a racially hostile environment and that Texaco had systematically discriminated against minorities in promotions. The meetings were secretly tape-recorded in 1994 by Texaco's then-senior coordinator for personnel services, Richard Lundwall, and were turned over to the plaintiffs' attorney by Lundwall after he was dismissed from Texaco during a reduction-in-force. News accounts of the contents of the tapes reported Texaco executives referring to African American employees as "black jelly beans" and "niggers" and complaining about the celebration of Kwanzaa by Blacks. While Texaco's top official has condemned the tapes and the statements made by company executives, one African American commentator notes that "the Texaco tapes are to the issue of job discrimination what the Rodney King tapes were to police brutality."

The public reaction to the jury's not guilty verdict in the O.J. Simpson trial gave rise to the contention that "urban black juries all too often put race above justice" and evoked cries of concern and even outrage over the nation's intractable Black-White divide. The aftermath of the Simpson trial was characterized by discussions of the differing perceptions of many Whites and African Americans of the police and the criminal justice system and the use of the "race card."

Also consider the October 16, 1995 Million Man March on Washington, D.C. For some, the "day of atonement" was a source of pride and a day in which African American males united to address pressing issues facing their community. For others, the march was a self-serving platform for Louis Farrakhan, an individual they considered to be anti-Semitic, sexist, homophobic, and "a man whose presence and power is an affront to all who genuinely seek a color-blind, and color-just, America." Others asked how "this great moment in American cultural politics was orchestrated by the demagogic leader of a black fascist sect, while no other nationally prominent black leader could have pulled it off?" Some considered the march to be consistent with or, conversely, antithetical to their understanding of Martin Luther King, Jr.'s call for a colorblind society. For Anita Hill, bell hooks, Angela Y. Davis, and Patricia J. Williams, among others, the exclusion of women from the march reflected Black male patriarchy and the sacralization of masculinity.

If the country's reaction to the Simpson verdict and the Million Man March were not enough to highlight the nation's continuing (and arguably expanding) racial chasm, consider the recent publication of Dinesh D'Souza's The End of Racism. D'Souza argues, inter alia, that race is still the most divisive issue of our time; that African Americans "continue to show conspicuous evidence of failure" in the workplace, schools and colleges, and in maintaining intact families and secure communities; that "circumstances of poverty and deprivation in which blacks find themselves in America today are not the cause, but the result, of low intelligence;" that "black culture also has a vicious, self-defeating, and repellent underside that it is no longer possible to ignore or euphemise;" and that "African Americans seem woefully lacking in the skills needed to compete effectively in a multiracial society." If "blacks can close the civilization gap," D'Souza writes, "the race problem in this country is likely to become insignificant." These controversial and derogatory statements are made, incredibly, by an individual who espouses "colorblindness" while simultaneously categorizing and separating people on the basis of race and color.

The Texaco race discrimination charges, the Simpson trial and verdict, the Million Man March, and D'Souza's The End of Racism: these are but a few recent incidents highlighting the perpetual and problematic color line as well as bringing to light American society's "integral, permanent, and indestructible component" of racism. These and other historical and contemporary developments, by demonstrating that minorities continue to be subjected to numerous forms of harmful discrimination, form the backdrop for this Article's discussion and ultimate rejection of the colorblind thesis.

This Article focuses on one particular aspect of the colorblind thesis: the misuse of Martin Luther King, Jr.'s image and legacy by liberals, neoliberals, conservatives, and neoconservatives "who cheaply invoke Dr. King's words even as they kill the substance and spirit of his radical message." The campaign supporting the adoption of Proposition 209, the California Civil Rights Initiative ("CCRI"), directly illustrates the misappropriation of King's legacy. Supporters of this anti-affirmative action proposal which calls for racial neutrality and a colorblind America, regularly invoked King's name, suggesting that he would have embraced such a measure. The California Republican Party prepared a television commercial in support of the proposition that included King's reference to his dream of a colorblind and a content-of-character world. After opponents of the measure and civil rights leaders, including Coretta Scott King, denounced such use of King's words, complaining that King's legacy was being distorted, the "I Have a Dream" segment was removed from the commercial. The dangers of this misappropriation of "King-as-icon" and his legacy are illustrative of the ways in which facts and historical figures are distorted and in which iconolatry is substituted for reasoned argument. These dangers, as well as the need to identify and refute inaccurate distortions of history, are discussed in this Article.

I. Colorblind or Color-Aware?

Should law and public policy be colorblind? What are the tangible effects of applying a purportedly colorblind analysis in a world in which race and color play an undeniable role in the quantity and quality of opportunities for people of all races? Would colorblindness perpetuate the often crippling effects of past and present discrimination? Can those who have benefited from the anticompetitive advantages of de jure and de facto discrimination validly claim that colorblindness should now be the moral and legal norm? A call for colorblindness seems peculiar in a nation wherein race has been the most critical, and the most powerful [issue], in effecting political change. Race has crystallized and provided a focus for values conflicts, for cultural conflicts, and for interest conflicts--conflicts over subjects as diverse as social welfare spending, neighborhood schooling, the distribution of the tax burden, criminal violence, sexual conduct, family structure, political competition, and union membership. . . .

Whether race-consciousness is improper, illegal, or unconstitutional has been the focus of judicial and scholarly debate between those who contend that the Constitution and laws should be applied in a colorblind fashion, and those who reject that notion in favor of color-aware application of our laws.

A. Colorblindness

The colorblind thesis embodies one facet of several broad subjects of public policy including: equality, the meaning and application of an antidiscrimination principle, societal conceptions of permissible private/public choices, and the definition of impermissible discrimination. Proponents of colorblindness posit that "[c]lassifying persons according to their race is more likely to reflect racial prejudice than legitimate public concerns; the race, not the person, dictates the category." The lesson to be drawn "from centuries of race-based laws, traditions, and customs designed to subordinate blacks is that race should seldom be used as a criterion for decisionmaking, even when its use purports to make restitution for the present effects of a racist past." In the constitutional context, the Supreme Court, cognizant of the likelihood of prejudice in race-conscious classifications, has subjected such classifications to the strictest of scrutiny and has determined that, to pass constitutional muster, the classification must be justified by a compelling governmental interest necessary to accomplish a legitimate purpose.

Colorblindness is a policy choice and not, as many assert, a moral principle. Proponents of colorblindness include those who maintain that "[i]f it was wrong to discriminate against black people on the basis of their color, . . . it must be equally wrong to discriminate in favor of black people on the basis of their color." The mantra of the proponents of colorblindness "is Justice John Marshall Harlan's aphorism. . .that 'our Constitution is color-blind."' Some advocates of colorblindness believe that "merit" is the ultimate conception of colorblindness and that "people are treated unjustly and discriminated against 'when their merit is assessed according to their status rather than according to the value of their traits or products."' According to that view, any consideration of race "remains a regrettable if necessary deviation from the ideal of a color-blind meritocratic system."

In the aftermath of the United States Supreme Court's decision in Brown v. Board of Education, "colorblindness" was a dominant theme and slogan of the Civil Rights Movement. Brown was viewed as a major victory of the Civil Rights Movement, helping to establish "colorblindness as the central principle of the law governing racial discrimination."

The colorblindness thesis dictates that the immutable characteristic of skin color is meaningless. The colorblind position supports a legal skepticism of racial categories and racial classifications. . . . The apparent goal is to treat everyone equally without reference to context, situation, history or culture. On its face, the position is ostensibly neutral, in keeping with the dictates of procedural fairness and formal equality. . . ." Again, the aphorism of colorblindness conveys the message that the "essence of the obligation not to discriminate is for the pertinent decision-maker not to take color or race--any color or race--into consideration. The effect of blindness is to treat all colors as normative equivalents. . . ."Important questions concerning the connection of race and culture and the effects thereof on the lives of African Americans would not be addressed in a colorblind regime, for "colorblindness permits us to avoid any discussion of the morality or justice of assimilation, nationalism, or cultural differences. Instead, its proponents simply assert that justice and morality are vested within colorblindness," and that a colorblind and race-neutral approach "does not suffer the drawbacks of traditional race-based action such as injustice to dispreferred groups, stigmatization of preferred ones, and flagrant race consciousness."

B. Color-Awareness

For those who are color-aware, the "ideal of a society in which race is as insignificant a factor as eye color" has an initial but illusory appeal. In contrast to advocates of colorblindness, those who are color-aware do not believe that true colorblindness can ever exist. Rather, people who are color-aware view efforts to implement a colorblind regime as a form of race subordination that fails to acknowledge White hegemony even while fostering it. Of course, color-awareness of the subordinating variety has existed throughout the nation's history. Slavery, the legally enforced subordination of African Americans, and the effects of past and present discrimina-ion are harmful and powerful forces. Proponents of color-awareness do not deny these overwhelming instances where color-awareness has resulted in the subjugation of people of color. However, in today's society, where the baseline is not colorblind, the laws and Constitution need to be applied in a more remedial color-aware manner to address both the imbalance and the reality that racial and ethnic biases still exist.

Color-awareness advocates argue that "racial justice and colorblindness are not the same thing. Race-neutral policies are only as good or bad as the results they produce. . . . [T]o assume that ignoring race in making social policy will bring about justice or achieve morality is legal fantasy." Moreover, people of color may not want to be treated as raceless or colorless, since so much of who they are is the result of growing up as a person of color in America. To "e-race" individuals is to deny them a meaningful identity and separate them from their own flesh and blood.

Adoption of a colorblind approach would permit society in general and courts in particular to avoid accounting for and grappling with fundamental issues raised by past and present discrimination. Color-awareness, rather than sidestepping these issues, posits that it is permissible and desirable to take race and color into account when remedying the present effects of past racial discrimination. In that regard, Title VII of the Civil Rights Act of 1964 is a color-aware statute.

While Title VII is colorblind in the sense that an employer covered by the statute may not lawfully consider a person's race in making employment decisions, the statute effectively results in color-aware conduct on the part of employers. For example, in pattern and practice disparate treatment suits, the statistical "underrepresentation" of Blacks can raise the inference of intentional discrimination by employers which may cause an employer to take steps to limit its vulnerability to such legal claims by being aware of the racial demographics of its work force and by taking steps to address any underrepresentation of African Americans. Also, statistical underrepresentation in an employer's work force can be critical in disparate impact cases wherein a statutory violation can be found even in the absence of an unlawful employer motive. In order to avoid exposure to liability from a disparate impact suit an employer may seek to maintain a racially "representative" work force which effectively requires that it act in a race-conscious manner.

Color-awareness advocates thus believe that color-awareness comports with a reality in which a person's race and color are observable characteristics; after all, we all can distinguish among colors. Even the visually colorblind, who may not be able to differentiate colors, can distinguish between races.

In sum, color-awareness best describes and most accurately captures the historical, contemporary, contextual, and nuanced dimensions of this nation's history and color line. As stated in Palmore v. Sidoti, it "would ignore reality to suggest that racial and ethnic prejudices do not exist or that all manifestations of those prejudices have been eliminated." Those who are color-aware are more likely to see the full dimensions of racial caste and subordination than are those who limit their legal and social inquiries to misguided attempts at achieving a purportedly neutral colorblind position. To borrow the words of Stanley Crouch, colorblindness is: a fiction that shrinks our understanding of this country by avoiding the evidence of those things seen just about everywhere--in our politics, our mass media, on our menus, our campuses, our showroom floors, in our department stores, our malls, our bureaucracies, the lobbies of our hotels, our movie theaters, at our airports, on our highways, in our advertising. Color-awareness is not similarly flawed.

II. Martin Luther King, Jr.'s Color-Awareness

The most significant issue to be addressed by this essay is how Martin Luther King, Jr.'s legacy has been misused in support of the colorblind thesis. As noted in the prologue, King dreamed that one day his "four little children [would] live in a nation where they will not be judged by the color of their skin but by the content of their character." This statement has been wrenched out of the social and political context in which King lived and died and has been misappropriated by some proponents of colorblindness who erroneously argue that "if colorblindness was good enough for Martin Luther King. . .then it ought to be good enough for a society that still aspires to the movement's goals of equality and fair treatment." This incorrect and ahistorical perversion of King's statement distorts his actual views and legacy, and illustrates the dangers of the misuse of "acontextual snippets."

A. King's Black Liberation Theology and Race Consciousness

King "filtered his theoretical deconstruction of hegemonic theologies through his knowledge of the history and experience of oppression, and thereby made that theoretical deconstruction richer, more contextual, and ready to engage the existential realities of oppression." That theoretical deconstruction grew out of King's religious views as well as his leadership role within an undeniably "colored" institution--the African American church. The Black church was more than just a place of worship; it was "also a bulletin board to a people who owned no organs of communications, a credit union to those without banks, and even a kind of people's court." Working from the base of Black liberation theology and within an "openly and frankly religious" Civil Rights Movement, King "advocated redemptive suffering of African Americans through their own bloodshed." King also sought to bring into being a community of racial equality, while fighting against the nation's racial caste system.

B. King's "Dream" and "Nightmare" Speeches

On August 28, 1963, King gave the keynote address of the Civil Rights March on Washington, D.C.--his well-known "I Have a Dream" speech. Delivering the speech at the Lincoln Memorial, King began by noting President Abraham Lincoln's signing of the Emancipation Proclamation: "This momentous decree came as a great beacon light of hope to millions of Negro slaves who had been seared in the flames of withering injustice. It came as a joyous daybreak to end the long night of their captivity." One hundred years after the signing of the Proclamation, however, King stated that the Negro is still not free; one hundred years later, the life of the Negro is still sadly crippled by the manacles of segregation and the chains of discrimination; one hundred years later, the Negro lives on a lonely island of poverty in the midst of a vast ocean of material prosperity; one hundred years later, the Negro is still languished in the corners of American society and finds himself in exile in his own land.

America defaulted on its promise to African Americans of life, liberty, and the pursuit of happiness, King continued, and had "given the Negro people a bad check: a check which has come back marked 'insufficient funds'. . . And so we have come to cash this check, a check that will give us upon demand the riches of freedom and the security of justice." Referring to the "sweltering summer of the Negro's legitimate discontent," King declared that there would neither be rest nor tranquillity in America until Blacks were granted their rights of citizenship. Nor would African Americans be satisfied as long as they were the victims of police brutality, were deprived of their dignity by "whites only" signs, or were subjected to injustices in America.

King then turned to the dream aspect of his speech. Among those dreams was the following: "I have a dream my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character. . . ." He expressed his hope that in Alabama, "with its vicious racists, with its governor having his lips dripping with the words of interposition and nullification. . . little black boys and little black girls will be able to join hands with little white boys and white girls as sisters and brothers. . . ."

King's "I Have a Dream" speech arguably reflects his color-awareness. His recognition of the fact that African Americans were subjected to injustice and to the most base discrimination in every aspect of their lives because they were African Americans was certainly race-conscious. His dream and hope that Black children and White children would be able to join hands was race-conscious both in the identification of the discrimination that kept them apart and in the desire for an integrated future. His awareness of and objection to harsh racial realities, which were woven into the very fabric of his message, arguably demonstrated that King was color-aware. Furthermore, statements King made after his "I Have a Dream" speech more clearly suggest that his call for a transformative change in American society was color-aware.

In 1965, following the Watts riots, King began to doubt that Whites were willing to work for a racially just society. Four years after the "I Have a Dream" speech, King delivered a Christmas Eve sermon at the Ebenezer Baptist Church. During that sermon, referring to his 1963 speech, King stated "[t]oward the end of that afternoon, I tried to talk to the nation about a dream I had had, and I must confess to you today that not long after talking about that dream I started seeing it turn into a nightmare." The dream turned into a nightmare when four Black children were killed in the bombing of a Birmingham, Alabama church. The dream turned into a nightmare as he "moved through the ghettos of the nation and saw [his] black brothers and sisters perishing on a lonely island of poverty in the midst of a vast ocean of material prosperity, and saw the nation doing nothing to grapple with the Negroes' problem of poverty." Notwithstanding his "deferred dreams [and] blasted hopes," King still dreamed that "one day every Negro in this country, every colored person in the world, will be judged on the basis of the content of his character rather than the color of his skin, and every man will respect the dignity and worth of human responsibility." When viewed in light of other statements made by King, this speech evidences his color-aware approach to eliminating the subordination of minorities in the U.S.

C. King's Other Color-Aware Statements and Views

King's color-awareness is revealed in other speeches and writings. For instance, in his "Letter from Birmingham Jail," he expressed his grave disappointment, not with the Ku Klux Klan or the White Citizen Council, but with the White moderate devoted more to order than to justice. In another speech he recounted an incident during the Montgomery bus boycott in which a White person in Montgomery, Alabama told King that Montgomery had been a peaceful community, that "you people [Blacks] have started this movement and boycott, and it has done so much to disturb race relations, and we just don't love the Negro like we used to love them, because you have destroyed the harmony and the peace that we once had in race relations." King responded that Blacks had never had peace in the South, arguing that they were seeking a positive peace with an aim at achieving complete integration into American life, rather than a nominal integration which was little more than token democracy.

Was King opposed to explicitly race-conscious and color-aware laws and policies? In a 1965 interview, he was asked whether a proposal for a multi-billion dollar program providing preferential treatment for Blacks or any other minority group was fair. King's answer merits full quotation: I do indeed. Can any fair-minded citizen deny that the Negro has been deprived? Few people reflect that for two centuries the Negro was enslaved, and robbed of any wages--potential accrued wealth which would have been the legacy of his descendants. All of America's wealth today could not adequately compensate its Negroes for his centuries of exploitation and humiliation. . . . Accordingly, King's support for affirmative action and the color-awareness of his views cannot be doubted. His response to the question of the fairness of affirmative action could not be more direct or explicit--King believed that affirmative action was appropriate given the centuries of slavery and the massive theft suffered by African Americans at the hands of those who oppressed them.

In his last presidential address to the Southern Christian Leadership Conference, King called for the Negro to "boldly throw off the manacles of self-abnegation" and to stand up and say, "I'm black and I'm beautiful," a self-affirmation "made compelling by the white man's crimes against him." As articulated by Kwame Toure (nee Stokley Carmichael) and Charles Hamilton, Black Power meant that "black people must lead and run their own organizations. Only black people can convey the revolutionary idea--and it is a revolutionary idea--that black people are able to do things themselves. . . . They must achieve self-identity and self-determination in order to have their daily needs met." Thus, "black organizations should be black-led and essentially black-staffed, with policy being made by black people." It cannot be denied that this movement was explicitly color-aware. "Many have come seeing 'no difference in color,' they have become 'color blind.' But at this time and in this land, color is a factor and we should not overlook or deny this. The black organizations do not need this kind of idealism, which borders on paternalism."

King embraced some of these aspirations of the Black Power movement, particularly the call for African Americans to amass political and economic strength to achieve their goals. Developing political awareness and strength and electing Blacks to key political positions was, in King's view, "a positive and legitimate call to action that we in the civil rights movement have sought to follow all along and which we must intensify in the future." King did not equate Black Power with Black racism: It is inaccurate to refer to Black Power as racism in reverse. . . . Racism is a doctrine of the congenital inferiority and worthlessness of a people. While a few angry proponents of Black Power have, in moments of bitterness, made wild statements that come close to this kind of racism, the major proponents of Black Power have never contended that the white man is innately worthless. This is not to say that King agreed with all of the tenets of the Black Power movement, for he clearly did not. However, his acceptance and agreement with some aspects of Black Power illustrate his color-awareness.

Ten days before he was assassinated, King suggested to the convention of the Rabbinical Assembly that "temporary segregation" may have been necessary to prevent the loss of Black economic power which may have resulted from complete integration. In his last speech, given in Memphis, Tennessee on April 3, 1968, King urged Blacks to anchor direct action with the power of economic withdrawal. If fair treatment by businesses was not forthcoming, Blacks should withdraw their economic support from such businesses. King called on Blacks to support Black businesses: "[T]ake your money out of the banks downtown and deposit your money in Tri-State Bank--we want a 'bank-in' movement in Memphis. . . . You have six or seven black insurance companies in Memphis. Take out your insurance there. We want to have an 'insurance-in."'A King essay published after his assassination indicted White America for its "ingrained and tenacious racism." King said that many Whites could not understand why Blacks did not intend to remain at the bottom of the economic structure--"they cannot understand why a porter or a housemaid would dare dream of a day when his work will be more useful, more remunerative and a pathway to rising opportunity. This incomprehension is a heavy burden in our efforts to win white allies for the long struggle."

As described in this section, in many significant respects King was race-conscious and color-aware; indeed, the mere mention of his name brings to mind issues of color-awareness and African American (as well as universal) rights. King spoke "not abstractly but in a particular context at a particular historical moment, and he meant to make a particular historical point, one very much connected to issues of lower caste status." Given that context, one cannot fairly derive a colorblind principle from King's total message and philosophy. Such a derivation could only be achieved by omissions, distortions, simplification, acontextuality, and an overall lack of familiarity with King's views.

III. Misusing King's Legacy

A. Examples

Notwithstanding King's race-consciousness and color-awareness, "people have created a mythic Martin Luther King, Jr., and associated him with a fictional notion of colorblindness." Opponents of affirmative action, for example, have erroneously cited and used King's legacy as an endorsement of colorblindness, with particular reliance on King's dream that persons would one day be judged by the content of their character and not by their skin color.

Consider President Ronald Reagan's January 1986 radio address in which he rejected charges that his administration had attempted to do away with affirmative action and antipoverty programs and had weakened the enforcement of civil rights laws. Reagan stated: We are committed to a society in which all men and women have equal opportunities to succeed, and so we oppose the use of quotas. We want a color-blind society. A society, that in the words of Dr. King, judges people not by the color of their skin, but by the content of their character. John Jacob, then-head of the National Urban League, responded that Reagan's interpretation of King's statement was a distortion of what King actually meant. Jacobs stated, "For the administration to associate the name of Dr. Martin Luther King, Jr. with the attempt to destroy affirmative action is obscene."

In February 1986, Reagan again turned to King to support the explanation of his administration's efforts to do away with affirmative action programs. Reagan stated that "we want affirmative action to continue. We want what I think Martin Luther King asked for: We want a colorblind society. The ideal will be when we have achieved the moment when no one--or when nothing is done to or for anyone because of race, differences, or religion, or ethnic origin; and it's done not because of those things, but in spite of them." Reagan's use of King to support colorblindness is all the more disturbing given Reagan's comment that it was too early to tell whether King was under Communist influence.

William Bradford Reynolds, Assistant Attorney General during the Reagan Administration, expressed the view that the "struggle continues for a national heritage blind to skin color or ethnic background." Reynolds argued that Brown v. Board of Education set forth the judicial insistence on colorblindness in public school systems, and contended that the "true essence [of the colorblind principle] was best captured, in my judgment, by Dr. Martin Luther King, Jr., when he dreamed aloud in the summer of 1963 of a nation in which his children would 'not be judged by the color of their skin, but by the content of their character."'

In 1991, during the United States Senate's hearings on the nomination of Clarence Thomas to the United States Supreme Court, Senator Alan Simpson asked what was wrong with a colorblind society and referred to King, the "greatest . . . civil rights leader. . . [who] asked only that he and his children be judged, quote, 'based on the content of their character and not on the color of their skin,' unquote. Isn't what he was asking for was [sic] a colorblind judgment, and isn't that exactly what Judge Thomas is advocating?" In 1992, President George Bush declared that he shared King's dream of a colorblind society. One commentator, offended by Bush's comments, noted that Bush had used the Willie Horton fear tactic and racism in his 1988 presidential campaign and had opposed affirmative action proposals.

In a 1992 book, Jared Taylor expressed his hope that "[s]omeday the entire edifice of race-based preferences will be torn down" and referred to King's "I Have a Dream" speech as support for his position. Characterizing the development of what he called an explicit racial identity of Blacks as the "guiding light of a movement to carve out racial privileges based on race," Taylor asserted that race-consciousness on the part of African Americans "was a rejection of the color-blind vision of Martin Luther King, and a violation of the tacit agreement under which whites were abandoning their own racial identity." Again, as detailed in Part II, King was not opposed to race-conscious action that would have addressed the effects of past discrimination against African Americans, and he supported preferential treatment and the compensation of Blacks in recognition of the unpaid slave labor that was critical to this nation's economic development.

A more recent effort to misuse King to support the colorblindness thesis is found in Dinesh D'Souza's The End of Racism. Deceptively reducing King's complexity and legacy to a "vision of a society in which we are judged as individuals on our merits," D'Souza argues that the "mention of King's insistence that character, rather than color, should be the basis of public decisions inspires embarrassment and anger. . . ." According to D'Souza: "It is no exaggeration to say that a rejection of Martin Luther King, Jr.'s vision of a regime in which we are judged solely based on the content of our character is a virtual job qualification for leadership in the civil rights movement today." D'Souza also asserts that "King never abandoned his principled position of color blindness." D'Souza's fundamental misunderstanding of King and his failure to see King's color-awareness is repeated throughout The End of Racism. For instance, he erroneously argues that King was an adherent of colorblindness. For the reasons discussed throughout this essay, D'Souza's contention that King was colorblind is both factually and thematically wrong and cannot be squared with King's color-awareness.

The Republican leadership of the U.S. House of Representatives has quoted King in support of their call to eliminate affirmative action. Attorney Al Latham, a volunteer for the anti-affirmative action California Civil Rights Initiative, quotes King's "content of their character" statement. House Speaker Newt Gingrich and Linda Chavez, both conservatives, have quoted King in stating their opposition to affirmative action programs. Other "neo-Kingists" include California Governor Pete Wilson and California Civil Rights Initiative Chairman Ward Connerly.

B. The Dangers of Misappropriation

The daunting task of demonstrating or calling for colorblindness in a country in which race matters requires one to grapple with difficult questions regarding the application of concepts of equality in a society that "has rejected equality of income and wealth as both unnecessary and counterproductive." As a result of incompletely theorized agreements with respect to the meaning or meanings of equality, some individuals will agree on a general notion of equality without agreeing on the colorblind thesis, while others will agree on the colorblind thesis without agreeing on a large-scale theory of equality. Additionally, debating the colorblind thesis raises the issue of what constitutes "discrimination." Is "discrimination" to be understood in its ordinary, dictionary usage such that all discrimination (whether against or in favor of an individual or group) is unlawful, or is the term "discrimination" to be used and understood in a technical legal fashion such that, for example, prohibited discrimination against members of one group is distinguished from permissible "discrimination" (affirmative action) in favor of members of another group? Ordinary usage would support colorblindness, while technical legal usage would not preclude and could support an argument for color-awareness.

Furthermore, settling on an equality principle or concept of discrimination at any given point does not mean that those understandings have permanence or a fixed political valence. Rather, and because of the phenomenon of "ideological drift" identified by J.M. Balkin, their "valence varies over time as they are applied and understood repeatedly in new contexts or situations." Ideological drift is illustrated by the movement of colorblindness away from the concept offered in 1896 by Justice Harlan in Plessy v. Ferguson and toward the current use of colorblindness as the "rallying cry of conservatives who seek to protect white males from racial oppression." The misappropriation of King's legacy is all the more alluring for those who would otherwise have to address the aforementioned issues and debate the thesis on the merits. That King would be misused by colorblind proponents for purposes of the debate is not surprising, for he was--and remains--the leader that whites would have chosen for black Americans if they had the power to choose. To white eyes, King was safe and acceptable. It is hardly accidental that they invariably referred to him as "Dr. King," as if to draw assurance from the credentials he had earned in the white world. King stood for civil rights and peaceful change, as opposed to the fists of black power. . . . He also represented a mainstream religion, Baptist, which gave his movement moral impetus as well as political stature. Colleges and universities literally lined up to give him honorary degrees. It was this view of King that became "the establishment's model of what blacks should strive for: interracial harmony, coalition building, mutuality of interests across color and class lines."

The passage of time since King's life and death makes it easier to misuse and abuse his legacy. The farther away extant society is from the days of the Civil Rights Movement and the less informed society is and remains about the specifics of those days, the more likely it is that some will simply not know or appreciate King's real views. Because "what is forgotten is as crucial as what is remembered," some have found it convenient to, in Henry Louis Gates' words, "airbrush out the more radical aspects" of King. Such airbrushing has been applied by advocates of colorblindness who enlist King in support of their cause. Invoking the name of Martin Luther King, Jr., in support of colorblindness gives proponents of that theory a number of advantages. First, it provides them with a powerful rhetorical weapon. Linking the image of Dr. King and his efforts in the struggle against racism and injustice to colorblindness provides that theory with a veil of legitimacy. If not closely examined and analyzed, this veil could serve to replace reality and set up a no question zone--after all, the misappropriators can argue, how can one disagree with Dr. King? How can those who are color-aware square their position with the purported colorblind vision of the man who said that he dreamed of the day when his children would not be judged by the color of their skin but by the content of their character?

Despite manipulations of rhetoric, the argument that King was colorblind is simply wrong. But in the absence of a willingness to educate ourselves and to correct the glaring as well as the subtle errors in the King-supported colorblindness argument, it becomes easier to misstate and distort King's views and to substitute iconolatry and fundamentally flawed assumptions for argument and accurate conclusions. If the King-was-colorblind argument is not refuted, the misuse of his legacy will continue to be used to illegitimately skew the colorblind versus color-aware debate in favor of the former. That debate should be won or lost on the strength of the arguments made and reasoning employed by both sides and not on the basis of caricature, misrepresentation, and misappropriation.

CONCLUSION

Those who disagree with the proposition that the "question of race" is "not one of blindness, but of vision" should search for and rely upon facts and themes that do not misappropriate Martin Luther King Jr.'s legacy. Any such misuse of King as a symbol for colorblindness must be recognized for what it is: a deception (knowing or unknowing) built on misleading sound-bites, ahistorical and acontextual "analysis" and other fundamentally flawed premises. This deception must be highlighted and continually questioned by those who are interested in accuracy, principled argument, and respect for King's actual words, acts, and life.

[a]. Assistant Professor of Law, University of Alabama School of Law. B.A. 1980, Wilberforce University; J.D. 1984, University of Pennsylvania Law School.