It is remarkable that in the United States, with our legacy of legal slavery, the problem of racial discrimination that most troubles judges, policymakers, and political elites is the affirmative use of race by the state to promote equality for citizens of color. The Supreme Court of the United States has prohibited the City of Louisville, famous for its separate-but-unequal schools, from considering race in its efforts to prevent the voluntary segregation of its public schools. In Chief Justice Roberts’s world, to hold otherwise would violate the principal meaning of Brown v. Board of Education. Opponents of affirmative action have succeeded in eliminating the use of race by state officials in California, Washington, Michigan, and Nebraska.

Proponents of affirmative action, once beneficiaries of nondiscrimination doctrine, are now on the defensive. They are losing in the courts and in the political process. The Court seems determined to eliminate the use of race as a criterion for decisionmaking by state actors, notwithstanding the devastating impact that such action might have on citizens of color. With respect to the political process, judging by the relative success of state anti–affirmative action initiatives, that arena does not appear any more promising. Proponents of racial equality—those who care about reducing the often gaping and shocking disparities between blacks and Latinos on one side and whites on the other—are in need of fresh thinking and a new theoretical framework.

Stepping into the breach, Professor Kimberly West-Faulcon offers just that in her article The River Runs Dry: When Title VI Trumps State Anti–Affirmative Action Laws. The article takes racial inequality seriously and sees its amelioration as possible within the context of extant legal and jurisprudential frameworks. She focuses her analysis on public universities in states that have eliminated the use of race through initiatives and referenda. She shows empirically that admissions policies at public universities in California and Washington have had a statistically significant and disproportionately negative impact on the admissions prospects of black and Latino applicants. For example, in 2004, the University of California, Berkeley accepted 28.5% of white applicants for undergraduate admission; by contrast, only 15.4% of black applicants were granted admission.

Professor West-Faulcon argues that large disparities in admissions between black and white applicants (and between Latino and white applicants) could violate Title VI of the Civil Rights Act of 1964, which, inter alia, prohibits entities receiving public funds from adopting admissions policies that have the effect of discriminating on the basis of race. If Title VI were understood properly and given effect, she argues, it would prohibit the racial disparities in admissions that we have seen as a result of the elimination of affirmative action in many states. Universities would be forced to justify their reliance on standardized tests—the proximate cause of the racial disparities in admissions—or would be required to take race into account in order to comply with federal law, notwithstanding the state prohibition.

In this brief Response, I explore a reasonable assumption that underlies Professor West-Faulcon’s article, namely, that the failure to take seriously the problems of inequality that afflict communities of color—e.g., racial inequality in education—is a consequence of the absence of (or the failure to recognize) legal tools sufficient to the task. The assumption implies that we need more legal tools; if more legal tools were available, then we could begin to stem the tide of racial inequality. As Professor West-Faulcon shows in her article, however, legal tools are available. What, then, accounts for the failure of courts, specifically the Supreme Court, to take seriously the problem of racial inequality? I suggest that courts do not care enough about racial inequality and the dignity of people of color.