Thanks to Maxspeak: Jack Balkin on the question, and possibly the myth of symmetry in the legal doctrine on race. He says no policy is colorblind if its purpose and effect is primarily to benefit minorities, and goes on to defend such policies on the basis that conservatives give the game away with the policies they are willing to accept. This reminds me somewhat of Ronald Dworkin's recent arguments on abortion rights. Since most prolifers accept abortion in the case of rape or incest it's not the life of the fetus that is an issue, but their sense that the weight of the act itself is being ignored. So according to Balkin, the question is how to construct a just asymmetry, as the problem is for Dworkin to construct a morally serious sense of freedom.

My problem with Balkin's generalization is that it does not separate method from intention. [though not being a lawyer I don't know how that fares as a legal argument these days] Say I want to choose 5 people out of a group of 20 for a combat mission. If I decide that it would be better not to pick the 5 myself, but to put all the names in a hat, is that discrimination, or its removal as an issue?
If I wanted to inaugurate a national health system for all, would it be discriminatory because I was only concerned about the well being of the poor?