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One marker of progress in American race relations is the public rejection of racially charged statements made by government officials or other public figures. The defeat of George Allen, who had been a prohibitive favorite for re-election to the Senate until he employed a racial slur in referring to an Indian-American, was a sign that this country is moving forward. Likewise, presidential aspirant Joseph Biden suffered a public setback when he described rival Barack Obama as an African-American candidate who was “articulate and clean,” thereby resurrecting stereotypes of other African-Americans as inarticulate and unbathed. But there remains at least one forum where racially loaded language is occasionally used by leading public figures without any reporting or public notice — the U.S. Supreme Court. In December, the Court heard oral argument in two cases challenging diversity programs in Louisville, Ky., and Seattle that take race into account as one factor in assigning students among schools. During the argument, Justice Antonin Scalia asked counsel for the Seattle school board what criteria the school board used to identify a student’s race. “I mean, what if a particular child’s grandfather was white?” asked Scalia. He continued, “There must be some criterion. There are many people of mixed blood.” The lawyer noted that the system allowed parents to self-identify their children, a technique that is used in the U.S. Census and many other information-gathering activities. “Seems like a big loophole,” Scalia grumbled. To give the justice the benefit of the doubt, his use of “mixed blood” may have been intended to dramatize his skepticism that racial identity is related to the goal of diversity. But he did not explain this. To those who have forgotten recent history, the term “mixed blood” may sound vaguely poetic. It is not. It is ugly language from a time when white Americans separated themselves by law from black Americans to avoid what officials freely called “contamination.” ONE DROP OF BLOOD The words were not always so harsh. Early in the 19th century, Thomas Jefferson proposed an assimilationist goal for American Indians, saying, “You will mix with us by marriage. Your blood will run in our veins and will spread with us over this great continent.” But when the abolition of slavery was followed by the end of Reconstruction, “mixed blood” took on a different meaning. As part of the adoption of Jim Crow segregation laws in the late 19th and early 20th centuries, Virginia and at least 16 other states enacted laws prohibiting “a white person [from] marrying other than another white person.” If the races were to be kept separate, of course, there had to be a way of identifying membership in a race. Various definitions of people other than white people were adopted, including, at the extreme, a person with “one drop of Negro blood.” Virginia made the thought process behind its Racial Integrity Act very clear in 1955 when the state Supreme Court upheld the 1924 law: The court wrote that the law was designed to preserve racial integrity and “to prevent the corruption of the blood” or the “creation of a mongrel breed of citizens.” It took another dozen years before the U.S. Supreme Court in Loving v. Virginia (1967) struck down that law as a violation of the 14th Amendment. In the 40 years since, “mixed blood” has all but disappeared from the vernacular. JUSTICE MARSHALL SPEAKS But not from Justice Scalia’s vocabulary. He has employed the term going back to 1990. In that year, the Supreme Court heard two cases involving challenges to federal policy favoring the issuance of more broadcast licenses to minorities in order to further the goal of viewpoint diversity. Scalia launched an attack on the policy, asking whether minority groups were determined “by blood” and asserting that “this has to do with nothing except blood, isn’t that right?” As he peppered the lawyers defending the policy with questions, he used the term “blood” eight times and argued that the Court was being asked to accept a congressional finding that the government “may predict human behavior on the basis of human blood.” In defense of the policy, the late J. Roger Wollenberg replied to that last remark that Congress could determine that people belonging to a group subjected to discrimination on the basis of their skin color might have a different perspective from others and that this perspective might hold whether the minority members were rich or poor. That gave then-Justice Thurgood Marshall an opening. Up to that point he had been silent, observing high-court protocol that one justice does not challenge a fellow justice in oral argument. Marshall said, ostensibly to Wollenberg, “You are constantly talking about blood. What statistic . . . do you have that there’s a difference in people’s blood?” Wollenberg protested that he had not been talking about blood and was not aware of any difference. Scalia, however, was undeterred and continued his questioning with the next lawyer. WHO ARE WE? Race continues to be the issue that clouds men’s minds and drives them to misjudge their fellows. My late friend Wiley Branton, who represented the students trying to desegregate Little Rock, Ark.’s all-white Central High School, had a fine legal mind, a down-home manner, a cherubic face, and an olive complexion that often led people to assume, mistakenly, that he was white. One of Wiley’s stories began with a phone call from an old high-school classmate. George was in trouble with the law in a Florida Panhandle city. Although the criminal complaint filed against him involved a minor matter, as a black man in a white town he had to take it seriously. So he called Wiley. Wiley then called the legal authorities to tell them that he would be representing George. In that call, he managed to suggest that George was a kind of retainer for the Branton family and that Wiley was providing legal services as an act of noblesse oblige. When Wiley arrived in Florida, he was warmly received. Within a few days, the district attorney asked him to address the segregated bar association and the sheriff invited him to go duck hunting. In short order, the charges were dropped. Wiley and George decided that, with victory in hand, it would be prudent to leave Florida immediately. As they drove away, they needed to use a rest stop. As Wiley recounts it, George got out of the car first and was told that no restroom was available to him but that he could use the back of the building. Wiley made the same inquiry and was directed to the restroom. Wiley said when he got there, “I heard old George splashing up against the wall outside, and the absurdity of it all just struck me.” A part of what is absurd these days is the conservatives who keep asserting that the nation is finally ready for Justice John Marshall Harlan’s ideal of a colorblind Constitution and that the law should stop acknowledging race. But the words of an Allen, Biden, or Scalia belie the notion that the last significant stumbling block to a colorblind society is race consciousness within the law. Thurgood Marshall is gone, and it is up to the rest of us to hold public figures accountable for their racial statements.
William L. Taylor has been a civil-rights lawyer for more than 50 years, having worked on Thurgood Marshall’s legal staff at the NAACP Legal Defense Fund in the 1950s and served as general counsel and later staff director of the U.S. Commission on Civil Rights in the 1960s. He now chairs the Citizens’ Commission on Civil Rights. His memoir, The Passion of My Times , was published in paperback last year.

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