Below the Fold: The New Plessy versus Ferguson and White Privilege

Michael Blim

There is something odious about privilege. In this case, white privilege.

On June 28, the Supreme Court ruled in Parents Involved in Community Schools versus Seattle School District No.1 that using race as the sole criterion for assigning children to one elementary school or another violated the equal protection clause of the 14th Amendment to the Constitution. Chief Justice Roberts writing for the plurality of the Court set down their ruling is stark terms:

“Accepting racial balancing as a compelling state interest would justify the imposition of racial proportionality throughout American society, contrary to our repeated recognition that ‘at the heart of the Constitution’s guarantee of equal protection lies the simple command that the government must treat citizens as individuals, not as simply components of a racial, religious, sexual, or national class.’”

The racial classification of students in creating diverse public schools, Roberts argued, violates the landmark Brown versus Board of Education of Topeka, Kansas (1954) decision to require school districts, as the Court put it, “to achieve a system of determining admission to public schools on a nonracial basis.” (emphasis added by Roberts) Fifty-odd years of race-conscious remedies to provide African-Americans with equal educational opportunity, other than in cases of legislated de jure school segregation, have infringed upon the rights of each child to equal treatment under the law, whether he/she is black or white.

To mark the destruction of precedent, announce the end of an era spent searching for remedies to the historical disadvantages heaped on African-Americans during slavery and after, and perhaps to create himself a memorable, quotable line for the seven o’clock news, Roberts concluded his opinion for the Court with this exhortation: “The way to stop discrimination on the basis of race is to stop discrimination on the basis of race.”

In other words, just say no.

Justice John Paul Stevens, 87 years old, member of the Court for 32 years, and its elder statesman, spotted the slight of hand right away. How could Brown, a decision to remedy state discrimination against African-Americans, now be used against them in their quest for equal educational opportunity?

Justice Stevens put it this way:
“There is a cruel irony in THE CHIEF JUSTICE’s reliance on our decision in Brown versus the Board of Education. The first sentence in the concluding paragraph of his opinion states: ‘Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.’ This sentence reminds me of Anatole France’s observation: ‘The majestic equality of the law forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.’ THE CHIEF JUSTICE fails to note that it was only black schoolchildren who were so ordered; indeed the history books do not tell stories of white children struggling to attend black schools. In this and other ways THE CHIEF JUSTICE rewrites the history of one of this Court’s most important decisions.”

Once more, as in Plessy versus Ferguson (1896), the Supreme Court has used the equal protection clause of the 14th Amendment against African-Americans for whom it was written and designed to protect.

Privileged people never see the connection between their power and the powerlessness of others. One could say charitably that it is too threatening to their virtue. One could also say less charitably that many just don’t care. It is a liability to care or to assume responsibility. It tarnishes their self-justification. It picks at the myths that they carefully pin like manifestos on the murals of public life.

So, as Justice Stevens noted, Robeerts traduced Brown to make new law. In fact, this decision is Plessy versus Ferguson in a rather shabby and ignoble Brown versus Board disguise. The only problem they might have with Plessy is that the Court at least recognized the intent of the 14th Amendment as a pledge to blacks as a disadvantaged class and as a guarantee of “absolute equality of the two races before the law,” while ruling that it was never intended to abolish the social distinctions between blacks and whites. If states wanted to create race-segregated public transportations, schools, and other public places, they could do so. The black plaintiffs, the Court argued, were unwarranted in believing that segregation “stamps the colored race with a badge of inferiority.” Moreover, the Plessy Court believed, the plaintiffs assume “that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the races…. Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences…”

The Plessy Court concluded: “If the civil and political rights of both races be equal one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane…”

Justices Roberts, Alito, Scalia, and Thomas do not wish to recognize African-Americans as a class, and do not interpret the 14th Amendment as an explicit guarantee of African-American rights as a class in light of the historic deprival of their rights in slavery. Instead they construe the 14th Amendment solely as a guarantee of each person’s right to equal protection under the law. Thus, in the case before them, if a school district prefers a black child for admission to a public school because it seeks to integrate schools racially by administrative action, or in other instances seeks to re-assign black and white students to prevent their social isolation in all black schools, or seeks to create diverse student bodies under the belief that all students would benefit from the experience, the Court finds these kinds of actions impermissible. They violate the right of a white child to have access to educational resources that she or he seeks to enjoy because he or she is white.

It is a cleaner kill of the 14th Amendment’s guarantee of equal protection for African-Americans than was Plessy. African-Americans are no longer an historically disadvantaged group who lived almost 350 years as slaves and in renewed bondage under Jim Crow laws. After 388 years in America, only a minority of African-Americans since the mid-1960s have begun to live lives blessed by some measure of equal opportunity. For this Court, they have become individuals who happen to be black, one of a potentially infinite set of characteristics that defines each of them in distinctive ways. As such, their rights are no more important than those of any other persons.

Justice Thomas argues that the Constitution must be color-blind. “We are not social engineers… the Court does not sit to create an ‘inclusive society’ or to solve the problems of ‘troubled inner city schooling.’” Just as the majority in Plessy, he rejects the notion that African-Americans acquire a badge of inferiority when isolated from whites. In words that directly recall Plessy, he concludes that the Court cannot permit “measures to keep the races together and proscribe measures to keep the races apart.” He concludes: “the government may not make distinctions on the basis of race.”

Thomas takes Justice Harlan of the Plessy Court as his patron for a color-blind Constitution, quoting from Harlan’s Plessy dissent a rather odd declaration that he evidently finds supportive of his position. Justice Harlan in his peroration for a color-blind society says:

“The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty. 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. (words in italics omitted by Thomas)

This is an extraordinary comment to solicit an endorsement from Thomas. Here is Harlan, an apologist for white supremacy, denying disingenuously white dominance. Just as he refuses to recognize organized white rule, he refuses to acknowledge that African-Americans in 1896 were a caste. Color-blindness by Harlan is used here not simply as a dashing defense of individual equality before the law. In the context, it is an explicit rejection of the special status of African-Americans in the law, which even the Plessy majority accepted.

Justice Thomas and his colleagues follow Harlan’s reasoning precisely. Harlan’s white supremacist views are ignored doubtless as a recognition of the ignorance of the time.

Can Thomas and the other three justices be adjudged any less ignorant of their times? Can they be unaware of the desperate status of African-Americans today? Are they aware that as late as 1998, African-American family income was 49% of white income, and their net worth was 18% that of whites? Do they believe that 40 years of limited progress is enough compensation for 388 years of slavery and racism?

White privilege doesn’t allow these facts to come into evidence. After all, isn’t each African-American, and each American family for that matter, happy and healthy, or unhappy and unhealthy in its own way? To be so colorblind is to be so privileged that even facts are no enemy of your theory. You can actually deprive African-Americans of their rights again by ruling out of order any showing of their abundant economic and social inequality, and declare them theoretically equal in the eyes of the law.

This is the rhetorical trick of this insidious ruling.

Moreover, better to do it once and for all with a smashing opinion such as this one. Else, as Justice Roberts warned (and quoted above), people will start demanding racial proportionality throughout American life. That would put a bit of a crimp in the collar of white privilege.

In the case decided last Thursday, precedents didn’t matter. They stood Brown on its head. They converted the equal protection clause into another relatively harmless libertarian individual guarantee.

Characteristic of the far right wing in this period, they fall in with Margaret Thatcher: There is no society; there are only individuals. So use the law to strip out social missions from our institutions. Make the courts and the state simply night watchmen, there to protect property and haul off malefactors. In a game where whites start out more equal than others, if you are white, you have to like your odds.

And there is no telling what more this Court can do to pave your way.