A Return to Plessy and another Rollback of Civil Rights
The Supreme Court’s Return to Legalized Discrimination
I am feeling sick tonight. In a majority ruling, the Roberts-Trump Court overturned over sixty years of law and precedent on its head by intentionally misconstruing the 14th Amendment to overturn affirmative action programs designed to assist racial minorities in being admitted to colleges and universities. The Court’s decision, written by Chief Justice John Roberts and supported by Associate Justices Thomas, Alito, and Trump appointees, Associate Justices Gorsuch, Kavanaugh, and Coney-Barrett, made the fantasy that racism and discrimination can be overcome by ignoring it. The decision effectively ended the use of affirmative action in college admissions and the precedent set by it will certainly be used to challenge affirmative action programs elsewhere, especially since the man that brought the case, Edward Blum, worked for decades as a one-man crusader against everything from the landmark 1965 Voting Rights Act to affirmative action in higher education, now plans to challenge some corporate boards on racial preference grounds, and he says he knows of other plans to challenge minority scholarship and fellowship programs.
The ruling was intellectually dishonest in that it drew a distinction between the idea that the Constitution is colorblind but ignored the reality that our society is not colorblind and that racism and discrimination are widespread. Not only that, but people of color are more often targeted by law enforcement as crime suspects than white people, and long-standing economic, educational, and healthcare barriers to equality keep people of color, whether they be African Americans in Mississippi, Mexican Americans in Texas, Asian Americans and Pacific Islanders in California, Haitians in Florida, or Puerto Ricans in New York from being able to achieve the de-facto equality that could prove that our society has actually been achieved is a colorblind society.
When I read the majority opinion written by Chief Justice Roberts, I was appalled to see how he used the words of Associate Justice John Harlan’s dissent in Plessy v. Ferguson regarding the Constitution’s colorblindness in a manner that Harlan would have condemned, especially when he wrote it to show the damage being done to African Americans whose rights under the 13th and 14th Amendments were being denied and rolled back. He appealed to the ideals of the Declaration and Constitution because whites were trampling those ideals in the former slave states that rebelled and fought a war to keep African Americans enslaved and who refused to accept the results of that by using a violent insurgency campaign to end Reconstruction and reinstate White rule.
Following the end of Reconstruction the Courts, including the Southern-dominated Supreme Court began taking an axe to the rights of the newly emancipated African Americans. In 1883 the Supreme Court ruled 8-1 in what is known as the Civil Rights Cases that the Fourteenth Amendment, which was cited as the constitutional authorization for the Civil Rights Act of 1875 and mandates “equal protection of the laws,” did not apply to private citizens or entities. The majority wrote that the Equal Protection Clause only applied to laws passed or actions taken by civil governments.
When the Civil Rights act was passed, Associate Justice Joseph Bradley wrote: “To deprive white people of the right of choosing their own company would be to introduce another kind of slavery. . . . It can never be endured that the white shall be compelled to lodge and eat and sit with the Negro. . . . The antipathy of race cannot be crushed and annihilated by legal enactment.”
Bradley wrote the majority opinion less than 20 years after the passage of the Thirteenth Amendment. He questioned the necessity and appropriateness of laws aimed at protecting Black people from discrimination, after all, they had been free for almost twenty years. Bradley wrote:
"When a man has emerged from slavery, and, by the aid of beneficent legislation, has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the laws, and when his rights as a citizen or a man are to be protected in the ordinary modes by which other men's rights are protected."
Bradley’s words are similar to those of Chief Justice Roberts in the decision to overturn affirmative action. Roberts wrote about the precedent of Grutter v. Bollinger:
“which concerned the admissions system used by the University of Michigan law school. There, in another sharply divided decision, the Court for the first time “endorse[d] Justice Powell’s view that student body diversity is a compelling state interest that can justify the use of race in university admissions… Grutter imposed one final limit on race-based admissions programs. At some point, the Court held, they must end. This requirement was critical, and Grutter emphasized it repeatedly. “[A]ll race-conscious admissions programs [must] have a termination point”; they “must have reasonable durational limits”; they “must be limited in time”; they must have “sunset provisions”; they “must have a logical end point”; their “deviation from the norm of equal treatment” must be “a temporary matter.”
Rather than looking at the evidence of continued racial bias, prejudice and violence not only abounds but are increasing. Roberts, like Bradley, decided that enough time had elapsed and equal protection laws were no longer needed. Chief Justice Roberts’ opinion was little different. In effect, he said, “Time’s up, nothing to see here, move along.” However, college admission administrators say schools that have tried to raise the numbers of Black and Latino students without any consideration of race have found that no other criterion — class, or economic status, or programs like a guarantee of admission for students in the top 5% or 10% of their high school class, works as well as affirmative action.
Of course, the majority opinion did not cite the Civil Rights Cases or Justice Bradley’s opinion and instead twisted Justice Harlan’s dissent in Plessy v. Ferguson effectively reinstituting the majority opinion in the Civil Rights Cases to reverse affirmative action.
Roberts’ appeal to Harlan’s dissent in Plessy v. Ferguson ignored the very thing that Harlan opposed. Justice Harley Billings Brown wrote for the majority: “We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction on it.”
Though Roberts wrote that a university could consider an applicant's essay telling how prejudice or racism harmed them, they could not deem racism or any other systemic inequality related to race to maintain equal opportunity programs. Justice Roberts’s words were Orwellian doublespeak. They echoed his ruling in Shelby County v. Holder which struck down the enforcement provisions of the Voter's Rights Act of 1965 in 2013. Since that ruling voting rights are under attack around the country.
While limited to college admissions, decision will certainly act as a precedent for those wanting to end affirmative action programs in any institution, private or public that uses them. In effect, the Court has handed a loaded gun to anyone like Edward Blum to reestablish White Supremacy anywhere they desire; after all, how many institutions or corporations want to be bled dry fighting a new Supreme Court Decision?
Associate Justice Ketanji Brown Jackson dissented from the majority in stark terms. Her dissent is one of the most pointed since Justice Harlan in Plessy v. Ferguson. She wrote:
“With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat. But deeming race irrelevant in law does not make it so in life. Ultimately, ignoring race just makes it matter more.”
I fear for the future of my African American students at the private Classical Collegiate Academy where I teach. These young men and women who are excelling in subjects are often neglected in public schools, as well as private religious or secular schools. Our school has a history of our students being accepted to prestigious colleges and universities, but many of our current and future students may be deprived of that because of their race.
I say this because that affirmative action only ended for racial minorities. Applicants whose parents or grandparents are graduates of the same schools whose race-based affirmative action programs have now become illegal by the Supreme Court’s judicial fiat are not affected. Programs for “Legacies” and children of University policies who receive preferential treatment are not affected, regardless of their qualifications.
The kind of affirmative action that remains legal is that which helps well of Whites or others of social and economic privilege. The fact that the only Supreme Court Justice who owes his entire career to affirmative action and special treatment because he was Black as an undergraduate at Holy Cross University, Yale Law School, and even the Supreme Court, Clarence Thomas wrote a concurring opinion with the majority was the most offensive part of the ruling.
In Plessy, Harlan wrote:
“The destinies of two races, in this country are indissolubly linked together, and the interests of both require that the common government of all should not permit the seeds of race hate to be planted under the sanction of law. What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments, which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens? That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana.”
But, the real meat of Harlan’s dissent was contained in this section of his dissent:
“In respect of civil rights, common to all citizens, the constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights. Every true man has pride of race, and under appropriate circumstances, when the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seems proper. But I deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved. . . .
The thirteenth amendment does not permit the withholding or the deprivation of any right necessarily inhering in freedom. It not only struck down the institution of slavery as previously existing in the United States but it prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude. It decreed universal civil freedom in this country. . . . But, that amendment having been found inadequate to the protection of the rights of those who had been in slavery, it was followed by the fourteenth amendment, which added greatly to the dignity and glory of American citizenship, and to the security of personal liberty, by declaring that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside,” and that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” These two amendments, if enforced according to their true intent and meaning, will protect all the civil rights that pertain to freedom and citizenship. Finally, and to the end that no citizen should be denied, on account of his race, the privilege of participating in the political control of his country, it was declared by the fifteenth amendment that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color or previous condition of servitude.”
These notable additions to the fundamental law were welcomed by the friends of liberty throughout the world. They removed the race line from our governmental systems. They had . . . a common purpose, namely, to secure “to a race recently emancipated, a race that through many generations have been held in slavery all the civil rights that the superior race enjoy.” They declared, in legal effect, this court has further said, “that the law in the states shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the states; and in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color.” . . .
It was said in argument that the statute of Louisiana does not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens . . . Every one knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons . . . The fundamental objection, therefore, to the statute, is that it interferes with the personal freedom of citizens. . . .
It is one thing for railroad carriers to furnish, or to be required by law to furnish, equal accommodations for all whom they are under a legal duty to carry. It is quite another thing for government to forbid citizens of the white and black races from traveling in the same public conveyance. . . . Further, if this statute of Louisiana is consistent with the personal liberty of citizens, why may not the state require the separation in railroad coaches of native and naturalized citizens of the United States or of Protestants and Roman Catholics? . . .
The white race deems itself to be the dominant race in this country . . . But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. . . . In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case.”
It is damming that Chief Justice Roberts and those who wrote to overturn affirmative action cannot see the obvious connection between their decision and the majority in Plessy. How can anyone read Harlan’s dissent and understanding of the Thirteenth and Fourteenth Amendments and then say that Harlan believed that our society was colorblind despite his belief that the Constitution was meant to be colorblind?
The answer of the Roberts-Trump Court is a damning indictment of the Court and much of our society. The majority and the people who support their ruling refuse to acknowledge the truth of what Justice Harlan wrote or the opinions of Brown v. Board of Education, and subsequent rulings that systemic racism, segregation, and discrimination are part and parcel of our society. Instead, despite their flowery appeals to ideals that neither they nor the admitted and unadmitted racists of the MAGA base elected Trump and gave Roberts the majority that he needed to overturn affirmative action.
This decision is terrible but not the end if good people of conscience and moral integrity stand against it. Likewise, I can say that the minorities that support this ruling will discover just how detrimental it will be to their children when they apply to an elite college or university, or when they are denied a job that they are qualified for but are not white enough to get.
I have more to say but will end here.
If you want to know more about the history of racism in the United States and the Supreme Court rulings such as Dred Scott, the Civil Right Cases, Cruikshank v. United States, Plessy v. Ferguson and Brown v. Board of Education please get a copy of my book Mine Eyes Have Seen the Glory: Religion and the Politics of Race in the Civil War Era and Beyond (Potomac Books an Imprint of the University of Nebraska Press, 2022). It is available online and at many brick-and-mortar bookstores. You can get an inscribed copy by becoming or upgrading a subscription to be a Founding Member.
